FIFTH AMENDMENT FRAUD: GRAND JURY SECRECY

Hoppy Heidelberg made the national news when he "violated" "grand jury secrecy." The fact is, grand jury secrecy has been violated for generations, though not by the likes of Hoppy Heidelberg.

There are a number of reasons for grand jury secrecy. The original reasons (prior to the 20th century) were good reasons. The problem is, the modern "reasons" for grand jury "secrecy" are a complete fraud. Those fraudulent reasons are as follows:

Essentially four reasons have been advanced as justification for grand jury secrecy.

(1) To prevent the accused from escaping before he is indicted and arrested or from tampering with the witnesses against him.

(2) To prevent disclosure of derogatory information presented to the grand jury against an accused who has not been indicted.

(3) To encourage complainants and witnesses to come before the grand jury and speak freely without fear that their testimony will be made public thereby subjecting them to possible discomfort or retaliation.

(4) To encourage the grand jurors to engage in uninhibited investigation and deliberation by barring disclosure of their votes and comments during the proceedings.

Pittsburgh Plate Glass Co. v. United States, 79 S.Ct. 1237, 1244 (1959)

See note 5 of the above case. It appears that these "principles" concerning the "reasons" for grand jury secrecy were made up out of thin air by a district court judge completely unfamiliar with the common law reasons for grand jury secrecy, mindlessly parroted by all other federal judges since then. See United States v. Amazon Industrial Chemical Corp., 55 F. 2d 254, 261 (D. Md. 1931) (no source from which principles derived).

The primary common-law reason for grand jury secrecy was to keep agents of the government from discovering what was going on. Under the English common law, government attorneys were not allowed into the grand jury room. When they did manage to encroach upon the function of the grand jury, the results were normally disaster for the accused.

A 17th century case bears quoting:

"It is true, it is said they are upon their oaths; and though it be not expressed in their oaths, that they should do right between the king and subjects, yet that is implied in the oath, I agree. But have they behaved themselves as if they were under an oath? Besides, all men are not capable of giving advice to be relied on in so great a matter as life; but the manner of doing it being in private can never be justified. I know, in Fitzharris's case, the King's counsel were cajoling the Grand-jury in private for some hours: but I did not think fit to take notice of it in that trial, because, I think both the grand and petty jury did very well; they acted according to the best of their understanding, which is all that God or man required of them; they asked pertinent questions, they were overruled in some, not fully answered in others; not that I think either of them gave a verdict according to law upon the fact, as it appeared upon the evidence; but that was not the fault of the jury, but of the king's counsel, and of the court, who misled the jury. I thought it more proper to take notice of it in this trial, wherein the first bill was rejected by an understanding jury, and all men wondered how the second came to be found Billa Vera: and for that reason, one of the king's counsel boasted at court, of his service and cunning management in the matter."

From Remarks on Colledge's Trial by Sir John Hawles, 8 Howell State Trials 724 (1681).

Colledge was indicted, tried and beheaded.

This was still the practice in this country until the 20th century. See United States v. Rosenthal, 121 F. 826 (1903).

There are a number of good reasons for keeping government attorneys out of grand jury proceedings, though some of them may take some time to come to light and some of those reasons have nothing to do with protecting the rights of the accused.

The rule also applied to stenographers and anyone else who was not a witness. Three paragraphs from an old federal district court case bear repeating:

"The rule in its spirit and purpose, admits of no exception. * * * If the presence of an unauthorized person in the grand jury room may be excused, who will set bounds to the abuse to follow such a breach of the safeguards which surround the grand jury?"

United States v. Philadelphia and R. Ry. Co., 221 F. 683, 686 (D.C.E.D. Penn. 1915)

"It is in my judgment entirely clear that the intent of the act of 1906 was plainly not to authorize the introduction into the grand jury room of previously unauthorized laymen, but to enlarge the number of office holding lawyers who might attend before the jury to render assistance in the matters of law alone."

Id. at 686.

"The wisdom of permitting the testimony to be transcribed and to go into the possession of persons outside of the office of the district attorney may be seriously questioned, as instanced during an investigation within a few years in this district, where the statements of witnesses before the grand jury, having been taken down stenographically, were repeated by an officer of the government, who had not been present in the grand jury room, but into whose possession they had come, at a public banquet."

Id. at 687.

There are things far more serious that being the subject of discussion at a public banquet.

A later example bears repeating.

During 1992, the Organized Crime Strike Force of the United States Attorney's Office in Detroit Michigan, began an investigation of Vito Giacalone and his attorney, Nathaniel C. Deday LaRene. Giacalone had been publicly identified as a reputed leader of the Detroit mafia. Initially, the Giacalone/LaRene investigation focused on allegations of extortion and money laundering. The United States District Court for the Eastern District of Michigan convened a grand jury as part of this investigation. The alleged victim of the extortion, Albert Allen, refused to testify that the approximately $500,00 that he had paid to Giacalone through LaRene was extorted from him. The focus of the investigation then turned to tax evasion, as the $500,000 had never been declared as income. Special Agent Frank Scartozzi of the IRS was assigned to the investigation, and he subsequently prepared a Special Agent's Report that detailed his findings. Included in this 1200-page report were transcripts from the grand jury proceedings; the names, addresses, and, in some cases, telephone numbers of witnesses who had testified before the grand jury; a summary of the government's investigation; a statement of the government's theory for the prosecution of the case; and a discussion of potential defenses to the prosecution. See United States v. Forman, 71 F. 3d. 1214 (6th Cir. 1995).

All this information was then sold to the head of the Detroit Mafia by Theodore S. Forman. Forman at the time was an assistant United States attorney.

Luckily for the other people in the Hoppy Heidelberg jury, no government attorney has decided to sell the grand jury records to the Aryan Brotherhood. Yet.

Now let's go back to the four (4) reasons advanced by the U. S. Supreme Court for grand jury secrecy in order to demonstrate that the "reasons" quoted for grand jury secrecy are utter nonsense. Bear in mind that every significant Supreme Court decision is rooted in politics, not in law. Rodell, NINE MEN, page 90 (1955).

(1) To prevent the accused from escaping before he is indicted and arrested or from tampering with the witnesses against him.

Under the original indictment by grand jury practice, the accused was allowed to be present at the empaneling of the grand jury, before any "investigation" took place. The purpose of this practice was to allow the accused to challenge the legal qualifications of those who might consider indicting him, now codified in Federal Rules of Criminal Procedure 6(b)(2). Under present federal practice F. R. Cr. P. 6(b)(2) is completely meaningless.

Aaron Burr was present at the grand jury proceedings against him in 1807. See Demythologizing the Grand Jury, 10 American Criminal Law Review 700, 736 note 61 (1972). According to the U. S. Supreme Court, in the early days of this century this was still the practice:

Defendant says that he was not present in court at the time of the selection, summoning, and empaneling of the jury aforesaid, and has had no opportunity to make any challenges to the same as the members thereof, because he did not know of said action , and was not at the time represented by counsel, but that he has this day learned of the aforesaid acts for the first time, and therefore immediately presents this plea.

Defendant says that he has been and would be greatly prejudiced by the improper and illegal selection and empaneling of such grand jury as aforesaid, as it was composed at the time aforesaid of persons disqualified to act, and who were not residents or taxpayers of Puerto Rico, as required by law, and because of their unfamiliarities with the island and the conditions and circumstances,-- material matters in this case, and relevant thereto--some of said jurors as aforesaid having been but a few months in the island, and temporarily sojourning herein.

Crowley v. United States, 24 S.Ct. 731, 733 (1904)

(2) To prevent disclosure of derogatory information presented to the grand jury against an accused who has not been indicted.

As the evidence "leaked" in the Unabomber case has more than amply demonstrated this statement can most charitably be described as government propaganda.

(3) To encourage complainants and witnesses to come before the grand jury and speak freely without fear that their testimony will be made public thereby subjecting them to possible discomfort or retaliation.

What Hoppy Heidelberg got in trouble over were his complaints that the government attorneys were in fact inhibiting the grand jury investigation. Of course, "uninhibited investigation" may have another meaning. In a recent case in Chicago the grand jury transcripts reveal that the grand jury stenographer was asking questions of the government witnesses. I haven't seen a case yet where the janitor conducts the investigation but, in Chicago, I suppose that's next--along with the vendors hawking peanuts and hot dogs to the grand jurors. The Seventh Circuit Court of Appeals in Chicago, which oversees the antics in the lower courts described above, is not referred to as the "Seventh Circus"for nothing.

In all fairness to the "Seventh Circus," a lot of the other federal courts aren't much better. Some federal courts have held that grand jury secrecy protects the government. See e.g., In re Blue Ribbon Frozen Food Corp., 414 F. Supp. 399 (D.C. Conn. 1976).

Poor Stephen Colledge. If he had only known the government had to be protected from him he might not have been so bitter about his beheading.

(4) To encourage the grand jurors to engage in uninhibited investigation and deliberation by barring disclosure of their votes and comments during the proceedings.

The idea that grand jurors can engage in an "uninhibited investigation" while being led around by the nose by a government prosecutor, federal or state, is unconstitutional in theory and unworkable in practice.

What actually happens, as Hoppy Heidelberg discovered, is that grand jury secrecy is used to prevent the systematic misbehavior of government attorneys from coming to light. Since most federal judges are appointed from the ranks of these miscreants you readily see why the rest of the behavior of the federal judiciary is so erratic, unpredictable, unconstitutional, and in many cases, criminal.

As the old cliche goes, "you can't make a silk purse out of a sow's ear."

It is my own opinion that you cannot make a defender and upholder of the Constitution (what a federal judge is supposed to be) out of an individual who spent a great deal of his career trampling the very cornerstone of that Constitution, the indictment by grand jury clause of the Fifth Amendment, as a federal prosecutor.

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

Sidebar: The Real Reason for Grand Jury Secrecy

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This page was updated on November 29, 2006