The Grand Jury
Guest column by Hugh Turley
The Grand Jury is also known as the people’s panel. Every citizen should know the history and purpose of the grand jury in order to properly protect his fellow man from prosecutorial abuse. When citizens are unaware of their power they cannot exercise that power to uphold justice.
The origin of the grand jury dates back to 12th century England. King John recognized it in the Magna Carta ‑‑ at the demand of the people.
The grand jury was originally a body of twelve, and later twenty-three men that served as accusers who presented indictments at the request of not only the prosecutor of the king, but also at the request of individual citizens. In 1681 the grand jury rule of secrecy was adopted. This allowed the grand jury to meet in secret, especially out of the sight of the king’s prosecutors who might interfere. This secrecy provided the grand jury great power as an independent body with oversight over the government.
The grand jury was brought from England to the American colonies. Grand juries provided a means for citizens to protest abuses by the king’s agents. When the Royal Governor of New York sought to have newspaper editor John Zenger indicted for seditious libel, the grand jury twice refused to issue indictments.
The U.S. Constitution mentions the grand jury in Article Five of the Bill of Rights:
No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or an indictment of a grand jury…
The grand jury served the public in two ways. First, it limited the power of government to prosecute citizens by permitting the grand jury to vote for or against an indictment and second, it had the power to make a presentment. A presentment was a public report of the grand jury’s activity. Through a presentment, the grand jury could make criminal activity known to the public, including criminal conduct committed by government officials, judges, or prosecutors.
It is significant that the grand jury is not part of any of the three branches of the U.S. government—it is a pre-constitutional institution. Washington attorney John H. Clarke wrote in a motion to the United States District Court for the District of Columbia, “Although today the grand jury is more of a prosecutor’s panel, it is still a pre-constitutional institution, and is still a people’s panel, not captive or relegated by the constitution to a position within any branches… and it still serves as a vehicle for effective citizen participation in government.”
Citizens often mistakenly believe that because the grand jury meets at the courthouse it is under the judiciary or because the grand jury meets with a prosecutor it is under the executive branch. It is actually an independent institution adopted by the founders to protect the individual from prosecutorial misconduct.
In the early 20th century a grand jury used their power to investigate and indict the mayor of Minneapolis and force the police chief to resign. Under the leadership of foreman Hovey C. Clarke, the Minneapolis grand jurors paid private detectives out of their own pockets to investigate corrupt officials. When the county prosecutor refused to do his duty, Clarke dismissed him and took over the role of prosecutor. Much has changed in last 100 years.
From 1789 when the Bill of Rights was ratified, until the codification of the Federal Rules of Criminal Procedure in 1946, the grand jury was not regulated by statute.
All three branches of government shared a common interest in limiting the power of the grand jury—the pre-constitutional institution unregulated by any branch.
Gradually, the executive branch began to limit the power of the grand jury. It became standard practice for the government prosecutor to be present in the grand jury room to present evidence personally. With the government prosecutor present in the grand jury room, the adversarial roles between the prosecutor and the grand jury was weakened. The grand jurors tended to bond with the prosecutor and, ultimately, the institution has become a rubber stamp for the prosecutor’s indictments. In 1985 former New York Court of Appeals Judge Sol Wachtler, said, "Any prosecutor who wanted to could indict a ham sandwich."
Rule Six of the Federal Rules of Criminal Procedure limited grand juries to make presentments public only with the permission of a judge or prosecutor. The Federal Rules of Criminal Procedure passed by Congress, enacted by the Executive, and upheld by the Judiciary, removed the independent power of the grand jury to publicly accuse government officials of misconduct.
But grand jurors can still write a final report or presentment of their activities, and they can ask the judge to make it public. If a grand jury’s report accuses the judge or one of his friends of misconduct it is unlikely it will be made public. Thus, the power of grand jury secrecy has been reversed to the advantage of prosecutors and judges who decide what can be made public.
Assistant U.S. attorney and former associate Independent Counsel Miquel Rodriguez was once asked if the members of a grand jury would be able to protect the public from corrupt officials, he replied, “They’re all you’ve got.” Rodriguez advised, “Empowering the grand jury, [by] letting them know what they can demand, what they should be wary of, what their independent subpoena powers are, whether they have the authority to ask questions on their own in the grand jury. The real check and balance is the grand jury, the common person, selected at random.”
Although the power of the grand jury in the United States has been diminished, it is still a powerful tool available to the citizens. Grand jurors can issue subpoenas and question witnesses and they may pursue an investigation anywhere it leads. Grand jurors can even subpoena and question federal prosecutors. They can write a report and ask the judge to make the report public. Grand jurors still have the power to refuse to indict citizens.
Private citizens can no longer bring criminal activity to the attention of a grand jury for investigation. However, members of a grand jury do have the power to issue subpoenas and investigate criminal activity that they know about.
Following the April 19, 1995, bombing of the Alfred P. Murrah Building in Oklahoma City, the grand jury brought indictments against Tim McVeigh and Terry Nichols. Although witnesses saw several other men, “John Does,” with McVeigh, these witnesses were never called to testify before the grand jury. Prosecutors were not interested in the identity of the men seen with McVeigh. Grand jurors were likely unaware that they could follow these leads. Only one grand juror, a horse breeder named Hoppy Heidelberg, tried to pursue the identity of the other men seen with Timothy McVeigh. The prosecutor succeeded in having the judge dismiss Mr. Heidelberg from the grand jury.
Grand jurors should be inquisitive and wary of federal prosecutors. Citizens should remember what happened to Geronimo Pratt a decorated veteran of two combat tours in Vietnam. A covert FBI program against political dissidents targeted Pratt. He was tried and convicted of murder in 1972 and spent 27 years in prison, eight of them in solitary confinement. He was innocent. Geronimo Pratt was released from prison in 1997. The grand jury indictment of Geronimo Pratt was part of the process that unjustly sent him to prison for so many years.
State and federal grand juries vary in size. A federal grand jury is made up of twenty-three people. State and federal grand juries have different rules. Federal and Maryland grand jury handbooks are available to citizens on the Internet.
Grand jury handbooks available from the government naturally favor the prosecutors and attempt to limit the scope of grand jury investigations. The federal handbook offers “practical suggestions for grand jurors” such as asking “relevant and proper questions.” Citizens have the power decide for themselves what questions are relevant and proper and to not allow prosecutors to limit the scope of their inquiry.
Every citizen has the opportunity and obligation to serve on a grand jury. Grand jurors are drawn at random from lists of registered voters. Although the power of the grand jury has been weakened, the grand jury remains the citizen’s defense against government misconduct.
This article appeared originally in the January 2007 Hyattsville (MD) Life & Times. It is reprinted here with their permission. See also “Jury Duty: Time to Bring Back the Runaway Grand Jury.”