In 1681 Lord Shaftesbury and Stephen Colledge were "no-billed" for treason. The indictment had been requested no less than by the King of England himself, Charles II. After the first "no bill" was returned, Charles managed to get another grand jury convened in Oxford. The two were duly indicted. Lord Shaftesbury fled to the Continent (Europe) and Stephen Colledge was beheaded.

Government attorneys tried to get Colledge to implicate others to save himself. He refused. Sometime later the fellow who held Janet Reno's job in England wrote the following:

I know not how long the practice in that matter of admitting counsel to a grand-jury hath been; I am sure it is a very unjustifiable and unsufferable one. If the grand jury have a doubt in in point of law, they ought to have recourse to the court, and that publicly, and not privately, and not to rely on the private opinion of counsel, especially of the king's counsel, who are, or at least behave themselves as if they were parties.

Remarks on Colledge's Trial, by Sir John Hawles, Solicitor-General in the Reign of King William the Third, 8 Howell State Trials 724 (1681)

That is, under the English practice, prosecutors were not allowed in the grand jury room, either for investigations or deliberation (voting). This is true in the state of Connecticut even to this day. Cobbs v. Robinson, 528 F. 2d 1331, 1338 (2nd Cir. 1975).

This was the same practice in the United States 15 years after the Fifth Amendment was adopted.

On November 3, 1806, Joseph Hamilton Daviess, United States Attorney for Kentucky, moved that a grand jury be convened to consider indicting Aaron Burr for attempting to involve the United States in a war with Spain. On December 3rd the grand jury was called. Daveiss immediately moved "to be permitted to attend the grand jury in their room". This motion was considered "novel and unprecedented" and was denied. After hearing the evidence in secret the grand jury deliberated and, on December 5th, an ignoramus bill returned.

Demythologizing The Grand Jury, 10 American Criminal Law Review 700, 734 (1972)

This case is found in the published opinions as United States v. Burr, Fed. Case No. 14, 892 (C. Ct. D. Ky. 1806).

In England allowing a prosecutor in the grand jury room was considered violation of the grand juror's oath. Proceedings against the Earl of Shaftesbury 8 Howell State Trials 759, 773 (1681)

By the latter part of the 19th Century the "sappers and miners of the Republic," as Thomas Jefferson referred to federal judges, had begun to undermine the grand jury system. One judge in Tennessee went so far as to state that the function of the government prosecutor was to protect the accused from the grand jury. In re Dist. Atty. of U. S., Fed. Case No. 3925 (C.C. Tenn. 1872).

A recent Supreme Court case bears quoting:

Undoubtedly "No person shall be held to answer for capital, or otherwise infamous crime, unless upon a presentment or indictment of a grand jury." That does indeed confer a right not to be tried (in the pertinent sense) when there is no grand jury indictment. Undoubtedly, the common-law protections traditionally associated with the grand jury attach to the grand jury are required by this provision -- including the requisite secrecy of grand jury proceedings.

Midland Asphalt Corp. v. U. S., 109 S.Ct. 1494, 1499-1500 (1989).

Unfortunately not a single politically-appointed semi-competent legal parasite (federal judge) sitting on the bench today, including the Supreme Court nine, has any idea of what the common law protectors of the grand jury were. Or, if they do, they are being very careful not to recognize them.

Quotes from two Supreme Court cases bear repeating:

If a constitutional theory has no basis in the history of the amendment it seeks to interpret, is difficult to apply and yield unprincipled results, I see little use in it.

Wallace v. Jafree, 105 S. Ct. 2479, 2519 (1985) (Chief Justice William Rehnquist dissent).

As drafters of our Bill of Rights, the framers inscribed the principles that control today.

Id.

 

The constitution is a written instrument. As such it meaning does not alter. That which it meant when adopted, it means now. South Carolina v. United States, 26 S.Ct. 110, 111 (1905).

A lower court quote attributed to Justice Harry Blackmun also bears repeating:

. . . we must take care not to encroach on legitimate executive activities before the grand jury.

U. S. v. Udziela, 671 F. 2d 995, 999 (7th Cir. 1982).

Harry Blackmun, you will recall, is the mental giant who wrote the "majority opinion" in Roe v. Wade, introducing concepts that had never even occurred to those who wrote the Fourteenth Amendment (the Amendment relied upon for the decision).

The Executive Branch is headed by the President.

The Attorney General is his underling, who in turn controls all United States Attorneys. The fact is that the executive branch never had any "legitimate. . . activities" before the grand jury

. . . . no amount of repetition of historical errors in judicial opinions can make the errors true.

Wallace v. Jaffree at 2516.

The constitution was framed in the language of the English common law. Jacoby, The American Prosecutor: A Search for Identity, page 7 (1980).

Until 1853 there was nowhere general organized control of Federal prosecution. Id. at 20.

In England every private person had the same rights as the Attorney General to initiate a prosecution. Once a case had been presented to the grand jury, it was entirely out of the prosecutor's hands. Stephen, A History of the Criminal Law of England, Vol. I pages 493-502 (1883).

The Department of Justice was not created until June 22, 1870. At the time the only authority the Justice Department had was to investigate postal crimes and compile crime statistics.

In the early days of our Republic "prosecutor" was simply anyone who voluntarily went before the grand jury with a complaint. United States v. Sandford, Fed. Case No. 16, 221 (C. Ct. D.C. 1806).

Almost a century later a private citizen could still have an arrest warrant issued. In re Price, 83 F. 830 (C. Ct. S.D.N.Y. 1897). Back then grand jurors themselves were the only ones competent to ascertain who was the prosecutor. United States v. Farrington, 5 F. 343, 346 (D.C.N.Y. 1881).

The rise of the "public prosecutor," both at the federal and state levels, has drastically altered grand jury statistics.

For example, of 448 cases examined in 1838, there were 80 "no bills." 1 The Law Rptr 215 (Suffolk County Mass. 1838).

In 1976 there were 23,000 federal indictments returned. There were 123 no bills. Hearings on H.R. 94, 95th Cong., 1st Sess. 738 (1977).

Congressman Joshua Eilberg, the author of H.R. 94 (The Grand Jury Reform Act), failed to get his bill passed. The Justice Department then retaliated against him by suing him for running up too much of a telephone bill while he was a member of Congress. United States v. Eilberg, 536 F. Supp. 514 (E.D. Pa. 1982).

The absurdity of the present system was recognized over a century ago.

But Mr. Chairman, in order to get a more distinct idea of this matter, let us for a moment briefly consider the functions and duties of Grand juries, and, as I understand it, their main duty is to examine the records of witnesses, or both, and come to a conclusion as to whether the persons accused of the crime ought to be tried or not. This they do under the advice of the District attorney.  In many cases they are, in whole or in part, composed of persons ignorant of the law; and in a majority of cases, if the District attorney tells them that the evidence is sufficient to convict they indict, and on the contrary, if he tells them the evidence is not sufficient they do not indict. They are, in the very nature of things, almost entirely under the control of the District attorney, in all matters coming up in the Grand Jury room, and merely echo his opinions. The whole thing, then, practically viewed, merely amounts to a roundabout and very expensive method of getting the opinion of the District attorney. And I submit that if this be necessary in order to insure the ends of justice, then, in the name of common sense, why not get the opinion of the District attorney directly, and thus curtail the enormous expense attending the present system?

1 Debates and Proceedings of the State of California pages 308-17 (1880) Remarks of Mr. Huestis during 1878-79 California Constitutional Convention

The fact is, allowing career civil service bureaucrats into the grand jury room has rendered that part of the Fifth Amendment (as the statistics prove) a nullity.

As a federal judge stated over a century ago, "The moment the executive is allowed to control the action of the courts in the administration of criminal justice, their independence is gone." In re Miller, Fed. Case No. 9, 552 (C.Ct.D. Ind. 1878).

Michael H. Brown, Author of The Erwin Rommel School of Law: How to Defeat an Illegal Legal System