During the contempt hearing on May 16, 2019, this Honorable Court directed me to take the opportunity during my confinement to reflect on my principles with respect to the institution of grand juries in the United States. This letter responds to that directive.…
The 5th Amendment provides many of our most cherished procedural safeguards, concepts foundational to our criminal legal system, including ‘due process,’ a prohibition on double jeopardy, and the right against compelled self-incrimination. The grand jury is also enshrined in the fifth amendment, however, prior to the recent publicity surrounding the Mueller investigation, most Americans only knew two things about the grand jury.
First, people hear that a grand jury could indict a ham sandwich. Early grand juries acted independently, as investigations by citizens. Now, the grand jury process means the prosecutor decides what the grand jurors see – and what they don’t see. The grand jury imagined by the drafters of the fifth amendment – which did not involve a prosecutor – bears no resemblance to what we see today, where more than 99.9% of indictments sought are granted.
Second, we learn another, more sinister thing about grand juries: they don’t indict law enforcement. For example, in Dallas over a stretch of several years, more than 80 police shootings came before grand juries. Only one returned an indictment. (2) Grand juries have protected police officers since the slave patrols. They were used to indict abolitionists, but not people capturing and re-enslaving people seeking freedom from bondage. They were used to indict reconstructionists, while actively protecting lynch mobs. Both the ‘ham sandwich’ statement and selective indictment happen because of grand jury secrecy.
Also, a prosecutor’s presentation of a case is shaped by their own ideas and goals. There does not need to be any misconduct or bad intent on the part of a prosecutor to influence the grand jurors in a way that destroys their independence. If you look at legal scholarship about the history of the grand jury, you can see how today’s grand juries are unrecognizable from English and early American ones. The original grand jury was more than an investigator; they were supposed to protect citizens not just from unjust indictments but from unjust laws. In England, grand jurors who even allowed a prosecutor to come into the grand jury room were seen as having violated their oath. (3)
I am positive that the founders never intended the grand jury to function like those we see today. If grand juries were actually independent bodies that nullified unjust laws or their unjust application, to determine whether it was really in the public interest to decide who should be made “infamous” under the law, I would feel differently. Reading the history of grand juries, I have read of how during the American Revolutionary war, grand jurors refused to indict tax resisters against the crown, because while it was technically illegal, the grand jurors recognized that what made it a criminal act was a law imposed by an authority that most of them by that time did not recognize (4). Nonetheless, the grand jury once provided a modicum of due process, at least to the class of people to whom due process was made available.
In 2019, the federal grand jury exists as a mockery of the institution that once stood against the whims of monarchs. It undermines the Fourth Amendment’s protections against unreasonable search and seizure, and the Fifth Amendment’s guarantees of due process. Today’s grand juries do not safeguard such fundamental rights, and they are easily subject to abuse….