COURTROOM PROOF versus REAL WORLD TRUTH

I got a question a few days ago about the "Common Law Grand Jury" case down in Dixie County and overlooked it until today. The question was quite reasonable. It was occasioned by the fact that the judge issued a capias for failure to appear when the defendant was sitting right there in the courtroom. The result was that the defendant got thrown into jail with no bond for failure to appear at a court proceeding which he actually attended. This gave rise to the question: "How can a judge find that someone has failed to appear in court when he is sitting right there in the court?"

The answer may not be quite as reasonable as the question: There is a difference between courtroom proof and real world truth. Although he was sitting right there, the defendant had failed to prove that he was in the courtroom. Here's how a defendant proves that he has come to court according to his notice to appear:

When a defendant gets a notice to appear in court, he is expected to come to the courtroom and sit in the audience until his name is called. At that time, he is to respond, and come forward, go past the courtroom rail, and stand before the judge's bench. The procedure for getting him out of the audience and before the judge is simple. The prosecutor calls his name, and he steps forward. If he does not step forward, the prosecutor calls his name again. If the defendant fails to respond after his name is called three times, he has failed to appear and a capias can issue for his arrest.

The way it used to work when I was a prosecutor, I'd call the defendant's name and if he didn't answer, I'd make a motion for the judge to issue a capias for his arrest. The judge would direct me to comply with the formalities, and I would call out  in a booming voice "Dan Defendant! Come into court as you are required to do by law or a capias will issue for your arrest! Dan Defendant! Come into court as you are required to do by law or a capias will issue for your arrest! Dan Defendant! Come into court as you are required to do by law or a capias will issue for your arrest!" If I got no answer by the third bellow, I'd turn around and again ask the judge to issue a capias. The judge would then order that  capias issue for the defendant's arrest. I considered myself a sort of a magician. Instead of saying "abracadabra" and producing a rabbit, I bellowed "Dan Defendant! [etc.]" and produced a capias.

On several occasions when I bellowed out the magic words to produce a capias, the defendant would wake up, realize he was being called, and step forward. If he snoozed through the bellowing, then according to the courtroom proof he wasn't there regardless of whether the real world truth was that he was sitting in the courtroom.

In a similar fashion, if a bondsman had posted bond for the defendant to appear and he failed to appear, I would ask the court to estreat the bond [forfeit the bond]. The judge would direct me to comply with the formalities and I would boom out "Barry Bondsman! Produce the body of Dan Defendant in court as you are required to do by law or your bond will be estreated! Barry Bondsman! Produce the body of Dan Defendant in court as you are required to do by law or your bond will be estreated! Barry Bondsman! Produce the body of Dan Defendant in court as you are required to do by law or your bond will be estreated!" The judge would then order that the bond be estreated, and the bondsman could get his money back by going and getting Dan Defendant by the nape of the neck and dragging him to jail.

Again, I felt like a magician, only instead of saying "presto chango" and making the rabbit disappear I bellowed "Barry Bondsman![etc.]" and made his money disappear.

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.

"COMMON LAW GRAND JURIES" REVISITED

In my last blog I made light of the activities of a "common law grand jury" which had "indicted" our State Attorney, Jeff Siegmeister. I tried to demonstrate how misguided the "common law grand jurors" were in their actions by demonstrating (1) there is no such thing as a common law grand jury, and (2) even if there were such a thing as a common law grand jury, it was abolished when our legislature enacted statutes governing the operation of grand juries in this state.

I further offered the opinion that Siegmeister wouldn't bother to prosecute the "common law grand jury" because I thought it to be such a laughable organization. As it turns out the activities of the “common law grand jury” were far more wide-ranging and comprehensive than I realized when I wrote my first blog on the subject. I’m not sure how many public officials have been “indicted” for “treason” by the “common law grand jury,” but it seems that the “grand jury” has indicted quite a few officers throughout the state including, if I am correctly informed, the entire Dixie County school board. The school board’s act of “treason” was to adopt a curriculum of which the “grand jury” disapproved. I was also informed that the “grand jury” came into the courtroom in Dixie County and blocked the doors, refusing to let anyone else in the courtroom while they engaged in their foolishness.

It appears that I was mistaken when I assessed their actions as quaint, amusing, and mildly irritating. There appears to be good grounds to believe that the “common law grand jury” is becoming downright disruptive of governmental functions. There are laws against such activity, and the “foreman” of the “common law grand jury” has been arrested on felony charges. I am given to understand that the charges involve the use of simulated court process.

At first I was somewhat confused by this charge because the law only made use of simulated process a misdemeanor and then only if the process was used to try to fraudulently separate people from their money. The operative language of that statute is as follows:

Fla.Stat. 817.38 Simulated process.—

(1) CIRCULATION PROHIBITED.—It is unlawful for any person, firm, or corporation to send or deliver *** any letter, paper, document, notice of intent to bring suit, or other notice *** which simulates *** court process, *** with intent to lead the recipient or sendee to believe that the same is genuine, for the purpose of obtaining any money or thing of value, or that a state agency is the sending party.
***
(5) PENALTIES.—Any person, firm or corporation violating this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

It seemed to me that this particular statute was not applicable to the situation for two reasons: (1) Because there was no intent to defraud anyone. (2) Because the “indictments” generated by the “common law grand jury” were so idiotic and so obviously NOT legal process that only someone whose IQ was smaller than his hat size would think they had any legal significance.

What I failed to take into account was the law prohibiting the obstruction of justice through use of simulated process, which is a felony. The operative language of that statute is as follows:

Fla.Stat. 843.0855 Criminal actions under color of law or through use of simulated legal process.

***
(2) Any person who deliberately impersonates or falsely acts as a public officer or tribunal, *** including, but not limited to, marshals, judges, prosecutors, sheriffs, deputies, court personnel, or any law enforcement authority in connection with or relating to any legal process affecting persons and property, or otherwise takes any action under color of law against persons or property, commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
***
(4) Any person who falsely under color of law attempts in any way to influence, intimidate, or hinder a public officer or law enforcement officer in the discharge of his or her official duties by means of, but not limited to, threats of or actual physical abuse or harassment, or through the use of simulated legal process, commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
***

The statute defines “legal process” as follows:

[A] document or order issued by a court or filed or recorded with an official court of this state or the United States or with any official governmental entity of this state or the United States for the purpose of exercising jurisdiction or representing a claim against a person or property, or for the purpose of directing a person to appear before a court or tribunal, or to perform or refrain from performing a specified act. “Legal process” includes, but is not limited to, a summons, lien, complaint, warrant, injunction, writ, notice, pleading, subpoena, or order. [Fla.Stat. 843.0855(1)(a)]

 

The first theory of the prosecution seems to be that when the “common law grand jurors” convened and proceeded to hand out indictments, they

deliberately impersonate[d] or falsely act[ed] as a public officer or tribunal. [Fla.Stat. 843.0855(2)].

 

The tribunal, of course, being the “common law grand jury.”

The second theory of prosecution appears to be that the “common law grand jury”

falsely under color of law attempt[ed] to influence, intimidate, or hinder a public officer or law enforcement officer in the discharge of his or her official duties by means of, but not limited to, threats of or actual physical abuse or harassment, or through the use of simulated legal process. [Fla.Stat. 843.0855(4)].

Indicting public officials on bogus charges of “treason” and sending them letters trying to influence the officers in their exercise of their official duties certainly seems to fit the statute. So far only the “foreman” of the “common law grand jury” has been arrested, but it appears that any member of the “grand jury” is vulnerable to arrest.

 

State Attorney Siegmeister has properly recused himself from the case and called on the Governor to appoint an outside prosecutor to handle the case. It will be interesting to see whether the outside prosecutor opts to prosecute the "common law grand jurors" under the racketeering statute. So far the only charges leveled have been third degree felonies calling for a maximum five year prison sentence.

Obstruction of Justice, however, is one of the crimes that can constitute a racketeering predicate incident. [Fla.Stat. 895.02(1)(a)43]. A "common law grand jury" may very well constitute a racketeering enterprise. [Fla.Stat. 893.02(3)]. And each of the "indictments" issued by the "common law grand jury," when taken together, just might constitute a prohibited pattern of racketeering activity. [Fla.Stat. 893.02(4)].

When people associated with an enterprise engage in a pattern of racketeering activity, they have committed a first degree felony punishable by 30 years.

GRAND JURIES: COMMON SENSE AND COMMON LAW

I was interviewed by the Lake City Reporter the other day about “common law grand juries.” It seems that a “common law grand jury” has “indicted” our duly elected State Attorney, Jeff Siegmeister, on a charge of treason, and the Reporter wanted my opinion on what the “common law grand jury” had done. Trying to be as diplomatic as I possibly could, I used a precise legal term. I said it was “a bunch of baloney.”

In the first place, what they “charged” Siegmeister with is neither treasonous nor criminal, and it could conceivably render the “common law grand jurors” themselves subject to prosecution under Florida Statute § 836.09, which says

If any person shall state, deliver, or transmit by any means whatever, to the manager, editor, publisher or reporter of any newspaper or periodical for publication therein any false and libelous statement concerning any person, then and there known by such person to be false or libelous, and thereby secure the publication of the same he or she shall be guilty of a misdemeanor ….

I doubt that Siegmeister takes them seriously enough to prosecute them, but that does appear to be an option which is open to him.

In the second place, there is not now nor has there ever been a legally recognized “common law grand jury.” We derive our law from two sources: statutory law and common law. We can distinguish common law from statute law by its origin—common law comes from judges, statute law comes from legislatures (and historically from kings).   As I will demonstrate, grand juries were not created by common law but by statute law. We’re going to have to look at a little history for me to make myself clear.

The earliest record we have of anything like our modern grand jury goes back to the rule of the Anglo Saxon King Ethelred the Unready. In 997 Ethelred enacted his Wantage Code, which provided:

Let twelve elder freemen, and the foreman with them, retire and swear upon the holy book which is given into their hands that they will not accuse any innocent person, nor screen any criminal.

Thus the grand jury was born as an accusatory body which preferred criminal charges against those suspected of wrongdoing. It has retained this function down to the Twenty-first Century. Modern grand jurors take an oath very similar to the one sworn by Etheldred’s jurors. For example, Florida’s Grand Jurors swear they

… shall not make a presentment against a person because of envy, hatred, or malice, and … shall not fail to make a presentment against a person because of love, fear, or reward.

Florida Statute § 905.10.

Our next evidence of comes from 1166, during the rule of the Norman King Henry II. Under his rule the Assize of Clarendon was enacted. The Assize provided for an accusatory body of twelve men to prefer criminal charges against wrongdoers.

A watershed moment in the development of the grand jury came in 1681, when King Charles II sought to punish the Earl of Shaftsbury, a political enemy. Charles insisted that the London grand jury indict Shaftsbury for treason, and he further insisted that they hold their meetings in public so that he could see how each individual member of the grand jury voted. The grand jury met in secret and refused to indict Shaftsbury. Ever afterward grand juries have met in secret.

The London grand jury’s defiance of King Charles gave the institution a reputation as a protector of the innocent. Only a few years before the American Revolution, the English jurist William Blackstone described the grand jury in glowing tones, writing that

[S]o tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty four of his equals and neighbors. [12 grand jurors and 12 petit jurors].

Commentaries on the Laws of England, Volume 4, *301.

Our Founding Fathers agreed with Blackstone, providing in Article Seven of the Bill of Rights that

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.  

Initially, this only applied to the Federal government, but almost all states have enacted statutory provisions creating local grand juries. Depending on the jurisdiction, a grand jury can consist of as few as 18 but no more than 24 grand jurors. In Florida the prescribed number of grand jurors is 21, with 15 constituting a quorum. Harking back to the days of Etheldred, it requires a vote of at least twelve grand jurors to bring criminal charges against anyone.

Grand juries, therefore, are and always have been creatures of statute. Whether it’s the Assize of Clarendon or the Bill of Rights, either a king or a legislative body has passed a law enabling the formation of grand juries. As I previously said, common law does not look to statutes, but to previous decisions of judges. In the strictest sense, then, there can be no “common law grand jury” because no grand jury was ever created by a judge’s decision.

As a matter of fact, the common law would not apply in the United States if it had not been enacted into law by local statutes. (Louisiana, for instance, is not a common law jurisdiction. Their legal system is based on the Napoleonic Code).  Florida Statue § 2.01 makes the common law applicable in Florida by saying

The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.

If our legislature had never passed any sort of law concerning grand juries, then quite possibly the Assize of Clarendon’s grand jury would be the law of Florida. But it’s not because it is inconsistent with Florida’s statutory law creating grand juries. At the risk of being redundant: when the Florida legislature enacted its laws relating to grand juries, it voided any previously existing English law on the subject, either statutory or common.

Conclusion: 1. There cannot be a “common law grand jury” because there never was a common law grand jury. English grand juries prior to July 4, 1776, were created by statute. 2. Even if there were such a thing as a common law grand jury, the Florida legislature voided it when they enacted laws governing grand juries. 3. Any group which is purporting to act as a “common law grand jury” is engaging in a legal nullity.