Calls for a common law grand jury. Armed protesters occupying a federal wildlife refuge in Burns, Oregon have recently called for a so called common law grand jury to investigate alleged violations of the United States Constitution by local officials in Oregon’s Haney County.
Protesters allege that county officials, including a local judge, have failed to protect the people of the county. Occupiers are calling on the County to authorize a “common law grand jury” of local citizens to investigate the alleged government abuses.
Do the occupiers have a legitimate proposal, or are these the ramblings of a deluded, terrorist cult?
The answer depends, in part, on comparing the function of a modern grand jury to those of the occupier’s proposed common law grand jury.
The Modern Grand Jury
Although the make-up of modern grand juries varies by jurisdiction, most present-day grand juries are made up of 15 to 23 lay citizens. The grand jury serves the mostly prosecutorial function of deciding whether evidence presented by the government is sufficient to bring felony charges in an indictment.
Grand Jury proceedings are secret and held outside the presence of a judge. They are also one-sided. The Defendant has no right to be present or represented by counsel and the prosecution generally only presents its side of the case.
The So-Called Common Law Grand Jury
The Oregon Occupiers whose rump militia group recently branded itself the Citizens for Constitutional Freedom, have no known published position statements.
However, the similarly minded National Liberty Alliance describes the difference between Common Law as upholding the Constitution above all Statutory Law. The group cites Justice Scalia’s opinion in United States v. Williams for the proposition that the grand jury is not part of the judicial branch and is effectively a fourth branch of government.
The National Liberty Alliance has purportedly formed it’s own “common law grand jury” and filed various demands in courts and government offices throughout the United States.
The group also claims that, in December of 2014, fifty “common law grand juries” indicted the officer whose choke hold caused the death of New York citizen Eric Garner.
According to CNN, the armed protesters in Oregon are requesting that the county permit a common law grand jury to decide if local officials should be arrested for alleged constitutional violations.
The group has already appointed a “judge” to supervise the grand jury. The so called judge reportedly owns a PC design and repair store near Denver.
Common Law Grand Jury Fact Or Fantasy
The National Liberty Alliance’s reliance on the Williams case to argue that grand juries are effectively a fourth branch of government is somewhat misleading.
While it is true that Justice Scalia notes the “grand jury’s operational separateness from its constituting court,” the Court also notes that the proceedings convene in the courthouse under “judicial auspices.”
It is also true that the Williams Court limits the Judicial Branch’s supervisory powers over grand juries. However, the Court notes the legislature’s power to regulate grand jury proceedings by statute. 1
Therefore, the Williams Court itself contradicts the contention that statutes regulating grand juries undermine the Constitution.
That being said, groups supporting the armed protesters do make important and valid points.
Over time, legislative and prosecutorial actions have increased the prosecutor’s control over grand jury proceedings at the expense of their historically more independent and investigative role.
Consequently, the saying “you can indict a ham sandwich” has become a troubling catch phrase of modern culture.
Grand juries are increasingly a rubber stamp for prosecutorial discretion.
This trend is a growing source of controversy as grand juries have opted not to indict police officers in high profile police shootings. In many instances involving police shootings, prosecutors present mitigating evidence and permit defendant police officers to testify in their own defense. This is virtually unheard of in other contexts.
The armed protesters have a valid point that modern grand juries have departed from their historical relative independence from government prosecutors. The consequences on personal liberty are far reaching.
That being said, the ideological claim that statutes subvert the Constitution is contrary to fundamental principals of American jurisprudence.
Most absurd, however, is the notion that the historical or “common law” grand jury bears any resemblance to the vigilantism desired by the Oregon militants.
The Oregon protesters and their ilk raise interesting even poignant questions about the role of grand juries. However, the clumsy efforts of militant groups to anoint themselves representatives of a supposed fourth branch of government in no way reflects the framer’s intent.