Monday, September 15, 2014

EVEN MORE ON "COMMON LAW GRAND JURIES"

[CAVEAT: I will be talking about a "common law grand jury indictment" which "charges" Third Circuit State Attorney Jeff Siegmeister with a number of crimes. The fact that I talk about the "indictment" should not be interpreted to mean that I believe any of the charges leveled against Siegmeister in the "indictment." On the contrary, I have studied the "indictment" and believe it to completely unfounded. Please keep this comment in mind as you read this blog post.]

As I reported in a previous blog post, my criticism of the Dixie County “common law grand jury” received a number of comments which begin somewhat incoherently and then degenerated into vituperative profanity. I said that I welcomed temperate comments. I got one from someone who styled himself “Grand Jury Foreman.” He pointed out to me that the “indictment” which I criticized was not an “indictment,” but rather a “True Bill Presentment.” Grand Jury Foreman’s comments were rational, coherent, and polite. They deserve a response. Grand Jury Foreman doesn’t seem to understand the nuances of the common law or the realities of the criminal justice system. I say this as an observation, not as a criticism. As Will Rogers once said, everybody is ignorant, just on different subjects.

First let’s talk about the label at the top of the “indictment.” Although it says “True Bill Presentment,” it is an “indictment.” As Shakespeare or somebody once said, a rose by any other name would smell as sweet. Under the pre-1776 law England, the terms “presentment” and “indictment” were used interchangeably, although the term “presentment” could have a broader meaning than “indictment.” In the appendix to the 1908 American edition of Blackstone’s Commentaries on the Laws of England, Blackstone reproduces an indictment of one Peter Hunt for the crime of murder. The language of that indictment, shorn of excess verbiage reads as follows:

Be it remembered at the session of oyer and terminer held in the County of Warwick in the third year of the reign of George III, pursuant to letters patent of the said King to inquire by oath of good and lawful men [i.e. the grand jury] into [the commission of treasons, felonies, and misdemeanors], by the oath of Sir James Thomson, baronet, Charles Roper, Henry Dawes, Peter Wilson, Samuel Rogers, John Dawson, James Phillips, John Mayo, Richard Savage, William Bell, James Morris, Laurence Hall, and Charles Carter, esquires, good and lawful men of the county aforesaid, then and there impaneled, sworn, and charged to inquire for the said lord the king and for the body of the said county, it is presented: THAT Peter Hunt [committed the crime of murder].  

You will notice that in the indictment the grand jurors say they present that Peter Hunt committed murder. So in olden times there wasn’t much difference between a presentment and an indictment. Today, the term presentment is usually thought to refer to a report by a grand jury which criticizes a public official without accusing him with a crime. As a matter of fact, the term “presentment” has pretty well gone out of use, being replaced by the more easily understood term, “report.”

So “True Bill Presentment” is a somewhat incoherent term for the document and you have to look to the language of the document to figure out what the “common law grand jury” intended to do. The language unmistakably identifies the document as an indictment when it says:

[The combined common law grand juries of Florida] hereby present this true bill for trial against State Attorney Jeffrey Siegmeister for conspiracy to overthrow the government of the United States, high treason, 18 USC §1961-68 RICO, 18 USC §4 - Misprision of felony, 18 USC §241 Rights, conspiracy against, 18 USC §242 Rights, deprivation, 18 USC §.872 Extortion by officers, 18 USC §1001 Conceals, or covers, 18 USC§1346 Scheme or defraud, 18 USC§1512b engages in misleading conduct, 18 USC §2071 Concealment, 18  USC §2382 Misprision of treason, 18 USC §2384 Seditious conspiracy, 42 USC§1985 Rights, conspiracy to interfere, 42 USC§1986 neglect to prevent and Jury Tampering.

The “common law grand jury” says that the State Attorney committed over half a dozen crimes and says that he ought to stand trial for those crimes. That’s what an indictment does. It says someone committed a crime and that he ought to stand trial.

Let’s assume for a moment that there is such a thing as a “common law grand jury” and see how this indictment stacks up under the “common law” of England as stated in Blackstone’s Commentaries. If my client were brought before the common law court of oyer and terminer of Dixie County, here’s how I would respond to the charge:

                The indictment is improper and should be dismissed because:

1.       Common law grand juries have jurisdiction to bring charges only in the county in which they were empaneled. The indictment says it is brought by the combined common law grand juries of all counties of Florida.

2.       Common law indictments must name the members of the grand jury who bring the charge. This one does not.

3.       Common law grand juries impaneled under the common law of Florida only have jurisdiction to bring charges for crimes against the laws of Florida. This indictment charges crimes against the laws of the United States of Florida and should be brought in Federal District Court, not Dixie County oyer and terminer.

4.       Proper indictments must be endorsed by the foreman as “a true bill.” This one is not.

Of course courts of oyer and terminer do not exist in Florida, just as common law grand juries don’t exist in Florida or anywhere else.

Grand Jury Foreman seems to think that the United States Supreme Court case United States v Williams, 504 U.S. 36 (1992), authorizes common law grand juries. It does no such thing. Here’s what it says:

A.      It holds that grand juries are empaneled by a judge.

B.      It holds that the judge can’t tell the grand jury what to do after he has empaneled it.

C.      It holds that the proper advisor to the grand jury is the duly constituted prosecutor.

In the opinion, Justice Scalia wrote:

As Blackstone described the prevailing practice in 18th century England, the grand jury was "only to hear evidence on behalf of the prosecution[,] for the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined." 4 W. Blackstone, Commentaries 300 (1769); see also 2 M. Hale, Pleas of the Crown 157 (1st Am. ed. 1847). So also in the United States.

So according to Justice Scalia’s interpretation of the common law of England, the grand jury only hears evidence presented by the prosecution.

Grand Jury Foreman ends by asking, when you think a public official has done wrong and the local law enforcement will do nothing about it, how can you get the case looked into. Well, when I was a prosecutor, a lot of people disapproved of the way I handled cases, and here’s a partial list of the things they did to express their disapproval:

A.      Complained about me to the Governor.

B.      Complained about me to the Attorney General.

C.      Complained about me to the Florida Bar.

D.      Complained about me to the Florida Department of Law Enforcement.

E.       Complained about me to the FBI.

F.       Complained about me to the media.

If the disgruntled complainant can get no satisfaction after exhausting all the above avenues of complaint, then the disgruntled complainant must confront the fact that his complaint is unfounded.