October 12, 2009
This ConOp comes from Duane A. Sipe, and it was previously published with the title, “Time to Take Action” on Page 4 of Ravalli County’s August 2009 Issue of The First Edition. Please add Mr. Sipes’ blogs, USSA Watchdog and Montana Grand Jury, to your respective blogrolls. We look forward to inspiring discussion here!
As is often attributed to Edmund Burke, the quote, “The only thing necessary for the triumph of evil, is for good men to do nothing” shows itself to be truer with each passing day.
Take the Constitutional reference to grand juries for example. The 5th amendment reads, in part, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury …”
Let’s take a look at a couple of cases that shed light on what our founders put in place regarding the grand jury.
An independent grand jury is to “stand between the prosecutor and the accused,” and to determine whether a charge is legitimate, or is “dictated by malice or personal ill will” ~ (Hale v. Henkel, 201 U.S. 43 (1906)).
The Supreme Court states that the independent grand jury’s purpose is not only to investigate possible criminal conduct, but to act as a “protector of citizens against arbitrary and oppressive governmental action,” and to perform its functions; the independent grand jury “deliberates in secret and may determine alone the course of its inquiry” ~ (United States v. Calandra, 414 U.S. 338 (1974).
“The grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It is a constitutional fixture in its own right.” ~ United States v. Chanen, 549 F.2d 1306, 1312 (CA9 1977.
“In fact, the whole theory of its function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people.” ~ United States v. Williams, 504 U.S. 36 at 48 (1992), Justice Scalia.
And from the Creighton Law Review article titled, “If It’s Not a Runaway, It’s Not a Real Grand Jury” we find, “The function of a grand jury to ferret out government corruption was the primary purpose of the grand jury system in ages past.”
What happened? What does the Creighton Law Review mean … ages past? Well, the power of government, when left unchecked, tends to grow, like a vicious uncontrollable cancer. It is the force of evil that causes those in power to exercise ever expanding, oppressive power, over others … when allowed to do so. Those in judicial power, in recent decades, have found another way to remove (or so they think) another piece of the people’s final authority over its government.
From the Creighton Law Review article once again, we find: “In 1946, the Federal Rules of Criminal Procedure were adopted … In the area of federal grand jury practice, however, a remarkable exception was allowed. The drafters of Rules 6 and 7, which loosely govern federal grand juries, denied future generations of what had been the well-recognized powers of common law grand juries: powers of unrestrained investigation and of independent declaration of findings. The committee that drafted the Federal Rules of Criminal Procedure provided no outlet for any document other than a prosecutor-signed indictment. In so doing, the drafters at least tacitly, if not affirmatively, opted to ignore explicit constitutional language. What all authorities recognize as a ‘presentment,’ however, has been written out of the law and is no longer recognized by the federal judiciary. A ‘runaway’ grand jury, loosely defined as a grand jury which resists the accusatory choices of a government prosecutor, has been virtually eliminated by modern criminal procedure. Today’s ‘runaway’ grand jury is in fact the common law grand jury of the past. Prior to the emergence of governmental prosecution as the standard model of American criminal justice, all grand juries were in fact ‘runaways,’ according to the definition of modern times; they operated as completely independent, self-directing bodies of inquisitors, with power to pursue unlawful conduct to its very source, including the government itself. The loss of the grand jury in its traditional, authentic, or runaway form, leaves the modern federal government with few natural enemies capable of delivering any sort of damaging blows against it. The importance of this loss of a once powerful check on the ‘runaway’ federal government is a focus that has remained largely untouched in the legal literature.”
It’s time to breathe life back into this power, granted solely to the people, so that we may correct the wrongs inflicted upon us … one unconstitutionally acting public official at a time. The power is truly, in the hands of the people.
Just like Dorothy, we own a pair of ruby slippers; although, our pair is the Constitution and the Declaration of Independence.
For me, it is becoming more apparent, as I research such topics, that we’ve had the power to ‘go home’ all along, I just didn’t know how much … until now.
It’s time “good men” did something. Let’s get our ruby slippers out of the attic, dust them off, put them on, and take a walk in them.
© Duane A. Sipe
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