So if a Judge said after 272 days holding me in jail “that the prosecution still didn’t have the evedence for him to have issued the arrest warrant in the first place” wouldn’t that make for illegal holdings within the United States and prove that the States hold to illegal proceedings of holding one prisoner by their illegal courts against the principle of Innocent until proven Guilty in a legal court of law?
Jeffery MayUS Attorney for the Western District of Missouri
INDICTMENT BY GRAND JURY
The history of the grand jury is rooted in the common and civil
law, extending back to Athens, pre-Norman England, and the As-
size of Clarendon promulgated by Henry II.
1
The right seems to
have been first mentioned in the colonies in the Charter of Liberties and Privileges of 1683, which was passed by the first assembly permitted to be elected in the colony of New York.
2
Included
from the first in Madison’s introduced draft of the Bill of Rights,
the provision elicited no recorded debate and no opposition. ‘‘The
grand jury is an English institution, brought to this country by the
early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand
jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide
a fair method for instituting criminal proceedings against persons
believed to have committed crimes. Grand jurors were selected
from the body of the people and their work was not hampered by
rigid procedural or evidential rules. In fact, grand jurors could act
on their own knowledge and were free to make their presentments
1274
AMENDMENT 5—RIGHTS OF PERSONS
3
Costello v. United States, 350 U.S. 359, 362 (1956). ‘‘The grand jury is an integral part of our constitutional heritage which was brought to this country with the
common law. The Framers, most of them trained in the English law and traditions,
accepted the grand jury as a basic guarantee of individual liberty; notwithstanding
periodic criticism, much of which is superficial, overlooking relevant history, the
grand jury continues to function as a barrier to reckless or unfounded charges . .
.
.
Its historic office has been to provide a shield against arbitrary or oppressive action,
by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance.’’ United States v. Mandujano, 425 U.S. 564, 571
(1976) (plurality opinion).
See
id. at 589–91 (Justice Brennan concurring).
4
This provision applies only in federal courts and is not applicable to the
States, either as an element of due process or as a direct command of the Fourteenth Amendment. Hurtado v. California, 110 U.S. 516 (1884); Palko v. Connecticut, 302 U.S. 319, 323 (1937); Alexander v. Louisiana, 405 U.S. 625, 633 (1972).
5
Witnesses are not entitled to have counsel present in the room. F
ED
. R. C
IV
.
P. 6(d). The validity of this restriction was asserted in dictum in In re Groban, 352
U.S. 330, 333 (1957), and inferentially accepted by the dissent in that case. Id. at
346–47 (Justice Black, distinguishing grand juries from the investigative entity be-
fore the Court). The decision in Coleman v. Alabama, 399 U.S. 1 (1970), deeming
the preliminary hearing a ‘‘critical stage of the prosecution’’ at which counsel must
be provided, called this rule in question, inasmuch as the preliminary hearing and
the grand jury both determine whether there is probable cause with regard to a suspect. See id. at 25 (Chief Justice Burger dissenting). In United States v. Mandujano,
425 U.S. 564, 581 (1976) (plurality opinion), Chief Justice Burger wrote: ‘‘Respondent was also informed that if he desired he could have the assistance of counsel,
but that counsel could not be inside the grand jury room. That statement was plainly a correct recital of the law. No criminal proceedings had been instituted against
respondent, hence the Sixth Amendment right to counsel had not come into play.’’
By emphasizing the point of institution of criminal proceedings, relevant to the right
or indictments on such information as they deemed satisfactory.
Despite its broad power to institute criminal proceedings the grand
jury grew in popular favor with the years. It acquired an independence in England free from control by the Crown or judges. Its adoption in our Constitution as the sole method for preferring charges
in serious criminal cases shows the high place it held as an instrument of justice. And in this country as in England of old the grand
jury has convened as a body of laymen, free from technical rules,
acting in secret, pledged to indict no one because of prejudice and
to free no one because of special favor.’’
3
The prescribed constitutional function of grand juries in federal
courts
4
is to return criminal indictments, but the juries serve a
considerably broader series of purposes as well. Principal among
these is the investigative function, which is served through the fact
that grand juries may summon witnesses by process and compel
testimony and the production of evidence generally. Operating in
secret, under the direction but not control of a prosecutor, not
bound by many evidentiary and constitutional restrictions, such juries may examine witnesses in the absence of their counsel and
without informing them of the object of the investigation or the
place of the witnesses in it.
5
The exclusionary rule is inapplicable
1275
AMENDMENT 5—RIGHTS OF PERSONS
of counsel at line-ups and the like, the Chief Justice not only reasserted the absence
of a right to counsel in the room but also, despite his having referred to it, cast
doubt upon the existence of any constitutional requirement that a grand jury witness be permitted to consult with counsel out of the room, and, further, raised the
implication that a witness or putative defendant unable to afford counsel would
have no right to appointed counsel. Concurring, Justice Brennan argued that it was
essential and constitutionally required for the protection of one’s constitutional
rights that he have access to counsel, appointed if necessary, accepting the likeli-
hood, without agreeing, that consultation outside the room would be adequate to
preserve a witness’ rights, Id. at 602–09 (with Justice Marshall). Justices Stewart
and Blackmun reserved judgment. Id. at 609. The dispute appears ripe for revisiting.
6
United States v. Calandra, 414 U.S. 338 (1974). The Court has interpreted a
provision of federal wiretap law, 18 U.S.C. §
2515, to prohibit utilization of unlawful
wiretap information as a basis for questioning witnesses before grand juries.
Gelbard v. United States, 408 U.S. 41 (1972).
7
‘‘Of course, the grand jury’s subpoena is not unlimited. It may consider incompetent evidence, but it may not itself violate a valid privilege, whether established
by the Constitution, statutes, or the common law . .
.
. Although, for example, an
indictment based on evidence obtained in violation of a defendant’s Fifth Amendment privilege is nevertheless valid .
.
. , the grand jury may not force a witness
to answer questions in violation of that constitutional guarantee. .
.
. Similarly, a
grand jury may not compel a person to produce books and papers that would incriminate him. .
.
. The grand jury is also without power to invade a legitimate privacy
interest protected by the Fourth Amendment. A grand jury’s subpoena
duces tecum
will be disallowed if it is ‘far too sweeping in its terms to be regarded as reasonable
under the Fourth Amendment.’ Hale v. Henkel, 201 U.S. 43, 76 (1906). Judicial su-
pervision is properly exercised in such cases to prevent the wrong before it occurs.’’
United States v. Calandra, 414 U.S. 338, 346 (1974).
See also
United States v.
Dionisio, 410 U.S. 1, 11–12 (1973). Grand juries must operate within the limits of
the First Amendment and may not harass the exercise of speech and press rights.
Branzburg v. Hayes, 408 U.S. 665, 707–08 (1972). Protection of Fourth Amendment
interests is as extensive before the grand jury as before any investigative officers,
Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) (now highly qualified
as to its scope, supra, p. 1265); Hale v. Henkel, 201 U.S. 43, 76–77 (1920), but not
more so either. United States v. Dionisio, 410 U.S. 1 (1973) (subpoena to give voice
exemplars); United States v. Mara, 410 U.S. 19 (1973) (handwriting exemplars). The
Fifth Amendment’s self-incrimination clause must be respected. Blau v. United
States, 340 U.S. 159 (1950); Hoffman v. United States, 341 U.S. 479 (1951). On com-
mon-law privileges,
see
Blau v. United States, 340 U.S. 332 (1951) (husband-wife
privilege); Alexander v. United States, 138 U.S. 353 (1891) (attorney-client privilege). The traditional secrecy of grand jury proceedings has been relaxed a degree
to permit a limited discovery of testimony.
Compare
Pittsburgh Plate Glass Co. v.
United States, 360 U.S. 395 (1959),
with
Dennis v. United States, 384 U.S. 855
(1966).
See
F
ED
. R. C
RIM
. P. 6(e) (secrecy requirements and exceptions).
8
United States v. Washington, 431 U.S. 181 (1977). Because defendant when
he appeared before the grand jury was warned of his rights to decline to answer
in grand jury proceedings, with the result that a witness called be-
fore a grand jury may be questioned on the basis of knowledge obtained through the use of illegally-seized evidence.
6
In thus allowing the use of evidence obtained in violation of the Fourth Amendment, the Court nonetheless restated the principle that, while free
of many rules of evidence that bind trial courts, grand juries are
not unrestrained by constitutional consideration.
7
A witness called
before a grand jury is not entitled to be informed that he may be
indicted for the offense under inquiry
8
and the commission of per-
1276
AMENDMENT 5—RIGHTS OF PERSONS
questions on the basis of self-incrimination, the decision was framed in terms of
those warnings, but the Court twice noted that it had not decided, and was not deciding, ‘‘whether any Fifth Amendment warnings whatever are constitutionally required for grand jury witnesses. .
.
.’’ Id. at 186, 190.
9
United States v. Mandujano, 425 U.S. 564 (1976); United States v. Wong, 431
U.S. 174 (1977). Mandujano had been told of his right to assert the privilege against
self-incrimination, of the consequences of perjury, and of his right to counsel, but
not to have counsel with him in the jury room. Chief Justice Burger and Justices
White, Powell, and Rehnquist took the position that no
Miranda
warning was required because there was no police custodial interrogation and that in any event
commission of perjury was not excusable on the basis of lack of any warning. Justices Brennan, Marshall, Stewart, and Blackmun agreed that whatever rights a
grand jury witness had, perjury was punishable and not to be excused. Id. at 584,
609. Wong was assumed on appeal not to have understood the warnings given her
and the opinion proceeds on the premise that absence of warnings altogether does
not preclude a perjury prosecution.
10
United States v. Dionisio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S.
19 (1973).
11
Id. at 9.
12
Id. at 9–13.
13
Id. at 13–15. The privacy rationale proceeds from Katz v. United States, 389
U.S. 347 (1967).
jury by a witness before the grand jury is punishable, irrespective
of the nature of the warning given him when he appears and regardless of the fact that he may already be a putative defendant
when he is called.
9
Of greater significance were two cases in which the Court held
the Fourth Amendment to be inapplicable to grand jury subpoenas
requiring named parties to give voice exemplars and handwriting
samples to the grand jury for identification purposes.
10
According
to the Court, the issue turned upon a two-tiered analysis—’’wheth-
er either the initial compulsion of the person to appear before the
grand jury, or the subsequent directive to make a voice recording
is an unreasonable ‘seizure’ within the meaning of the Fourth
Amendment.’’
11
First, a subpoena to appear was held not to be a
seizure, because it entailed significantly less social and personal affront than did an arrest or an investigative stop, and because every
citizen has an obligation, which may be onerous at times, to appear
and give whatever aid he may to a grand jury.
12
Second, the directive to make a voice recording or to produce handwriting samples
did not bring the Fourth Amendment into play because no one has
any expectation of privacy in the characteristics of either his voice
or his handwriting.
13
Inasmuch as the Fourth Amendment was in-
applicable, there was no necessity for the government to make a
preliminary showing of the reasonableness of the grand jury re-
quests.
Besides indictments, grand juries may also issue reports which
may indicate nonindictable misbehavior, mis- or malfeasance of
1277
AMENDMENT 5—RIGHTS OF PERSONS
14
The grand jury ‘‘is a grand inquest, a body with powers of investigation and
inquisition, the scope of whose inquiries is not to be limited narrowly by questions
of propriety or forecasts of whether any particular individual will be found properly
subject to an accusation of crime.’’ Blair v. United States, 250 U.S. 273, 281 (1919).
On the reports function of the grand jury,
see
In re Grand Jury January, 1969, 315
F. Supp. 662 (D. Md. 1970), and Report of the January 1970 Grand Jury (Black
Panther Shooting) (N.D. Ill., released May 15, 1970). Congress has now specifically
authorized issuance of reports in cases concerning public officers and organized
crime. 18 U.S.C. §
333.
15
Congress has required that in the selection of federal grand juries, as well
as petit juries, random selection of a fair cross section of the community is to take place, and has provided a procedure for challenging discriminatory selection by moving to dismiss the indictment. 28 U.S.C. §§ 1861–68. Racial discrimination in selection of juries is constitutionally proscribed in both state and federal courts. Infra, pp. 1854–57.
16
Ex parte Wilson, 114 U.S. 417 (1885).
17
Id. at 427.
18
Mackin v. United States, 117 U.S. 348, 352 (1886).
19
United States v. Moreland, 258 U.S. 433 (1922).
20
Ex parte Wilson, 114 U.S. 417, 426 (1885).
21
Wong Wing v. United States, 163 U.S. 228, 237 (1896).
22
Ex parte Wilson, 114 U.S. 417 (1885).
23
Mackin v. United States, 117 U.S. 348 (1886).
24
Parkinson v. United States, 121 U.S. 281 (1887).
25
United States v. DeWalt, 128 U.S. 393 (1888).
26
Ex parte Wilson, 114 U.S. 417, 426 (1885). public officers, or other objectionable conduct.
14
Despite the vast power of grand juries, there is little in the way of judicial or legislative response designed to impose some supervisory restrictions on them.
15
Within the meaning of this article a crime is made ‘‘infamous’’ by the quality of the punishment which may be imposed.
16
‘‘What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another.’’
17
Imprisonment in a state prison or penitentiary, with or without hard labor,
18
or imprisonment at hard labor in the workhouse of the District of Columbia,
19
falls within this category. The pivotal question is whether the offense is one for which the court is authorized to award such punishment; the sentence actually imposed is immaterial. When an accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he
shall not be put upon his trial, except on the accusation of a grand
jury.
20
Thus, an act which authorized imprisonment at hard labor
for one year, as well as deportation, of Chinese aliens found to be
unlawfully within the United States, created an offense which
could be tried only upon indictment.
21
Counterfeiting,
22
fraudulent
alteration of poll books,
23
fraudulent voting,
24
and embezzlement,
25
have been declared to be infamous crimes. It is immaterial how Congress has classified the offense.
26
An act punishable by a fine of not more than $1,000 or imprisonment for not more than six 1278
AMENDMENT 5—RIGHTS OF PERSONS
27
Duke v. United States, 301 U.S. 492 (1937).
28
See
Stirone v. United States, 361 U.S. 212 (1960), wherein a variation be-
tween pleading and proof was held to deprive petitioner of his right to be tried only
upon charges presented in the indictment.
29
Ex parte Bain, 121 U.S. 1, 12 (1887). Ex parte Bain was overruled in United
States v. Miller, 471 U.S. 130 (1985), to the extent that it held that a narrowing
of an indictment is impermissible.
30
United States v. Miller, 471 U.S. 130, 144 (1985).
31
Breese v. United States, 226 U.S. 1 (1912).
32
Costello v. United States, 350 U.S. 359 (1956); Lawn v. United States, 355
U.S. 339 (1958); United States v. Blue, 384 U.S. 251 (1966).
Cf.
Gelbard v. United
States, 408 U.S. 41 (1972).
33
Johnson v. Sayre, 158 U.S. 109, 114 (1895).
See also
Lee v. Madigan, 358 U.S.
228, 232–35, 241 (1959).
34
395 U.S. 258 (1969);
see also
Relford v. Commandant, 401 U.S. 355 (1971) (offense committed on military base against persons lawfully on base was service connected). But courts-martial of civilian dependents and discharged servicemen have been barred. Id.
See
supra, pp.
316–19.
months is a misdemeanor, which can be tried without indictment,
even though the punishment exceeds that specified in the statutory
definition of ‘‘petty offenses.’’
27
A person can be tried only upon the indictment as found by the
grand jury, and especially upon its language found in the charging
part of the instrument.
28
A change in the indictment that does not
narrow its scope deprives the court of the power to try the accused.
29
While additions to offenses alleged in an indictment are
prohibited, the Court has now ruled that it is permissible ‘‘to drop
from an indictment those allegations that are unnecessary to an of-
fense that is clearly contained within it,’’ as, e.g., a lesser included
offense.
30
There being no constitutional requirement that an indict-
ment be presented by a grand jury in a body, an indictment deliv-
ered by the foreman in the absence of other grand jurors is valid.
31
If valid on its face, an indictment returned by a legally constituted,
non-biased grand jury satisfies the requirement of the Fifth
Amendment and is enough to call for a trial on the merits; it is not
open to challenge on the ground that there was inadequate or in-
competent evidence before the grand jury.
32
The protection of indictment by grand jury extends to all per-
sons except those serving in the armed forces. All persons in the
regular armed forces are subject to court martial rather than grand
jury indictment or trial by jury.
33
The exception’s limiting words
‘‘when in actual service in time of war or public danger’’ apply only
to members of the militia, not to members of the regular armed
forces. In O’Callahan v. Parker, the Court in 1969 held that of-
fenses that are not ‘‘service connected’’ may not be punished under
military law, but instead must be tried in the civil courts in the
jurisdiction where the acts took place.
34
This decision was over-
ruled, however, in 1987, the Court emphasizing the ‘‘plain lan-
1279
AMENDMENT 5—RIGHTS OF PERSONS
35 This clause confers power on Congress to ‘‘make rules for the government and regulation of the land and naval forces.’’
36 Solorio v. United States, 483 U.S. 435 (1987). A 5–4 majority favored over-
ruling O’Callahan: Chief Justice Rehnquist’s opinion for the Court was joined by Justices White, Powell, O’Connor, and Scalia. Justice Stevens concurred in the judgment but thought it unnecessary to reexamine O’Callahan. Dissenting Justice Mar-shall, joined by Justices Brennan and Blackmun, thought the service connection rule justified by the language of the Fifth Amendment’s exception, based on the na-ture of cases (those ‘‘arising in the land or naval forces’’) rather than the status of defendants. 37 Id. at 450–51.
38 Ex parte Quirin, 317 U.S. 1, 43, 44 (1942).
39 Green v. United States, 355 U.S. 184, 187–88 (1957). The passage is often approvingly quoted by the Court. E.g., Crist v. Bretz, 437 U.S. 28, 35 (1978); United States v. DiFrancesco, 449 U.S. 117, 127–28 (1980). For a comprehensive effort to assess the purposes of application of the clause, see Westen & Drubel, Toward a General Theory of Double Jeopardy
, 1978 SUP. CT. REV. 81.40 M. FRIEDLAND, DOUBLE JEOPARDY
(1969), part 1; Crist v. Bretz, 437 U.S. 28,
32–36 (1978), and id. at 40 (Justice Powell dissenting); United States v. Wilson, 420 U.S. 332, 340 (1975). guage’’ of Art. I, §8, cl. 14,
35 and not directly addressing any pos-
sible limitation stemming from the language of the Fifth Amend-
ment.
36
‘‘The requirements of the Constitution are not violated
where a court-martial is convened to try a serviceman who was
a member of the armed services at the time of the offense
charged.’’
37
Even under the service connection rule, it was held
that offenses against the laws of war, whether committed by citizens or by alien enemy belligerents, could be tried by a military commission.
38
DOUBLE JEOPARDY
Development and Scope
‘‘The constitutional prohibition against ‘double jeopardy’ was
designed to protect an individual from being subjected to the haz-
ards of trial and possible conviction more than once for an alleged
offense. The underlying idea, one that is deeply ingrained in
at least the Anglo-American system of jurisprudence, is that the
State with all its resources and power should not be allowed to
make repeated attempts to convict an individual for an alleged of-
fense, thereby subjecting him to embarrassment, expense and or-
deal and compelling him to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility that even though in-
nocent he may be found guilty.’’
39
The concept of double jeopardy
goes far back in history, but its development was uneven and its
meaning has varied. The English development, under the influence
of Coke and Blackstone, came gradually to mean that a defendant
at trial could plead former conviction or former acquittal as a spe-
cial plea in bar to defeat the prosecution.
So we have 11,411 Sworn Officers + 400 Judges + 8,000 D.O.C. (as of 2009)
Or 20,000 thousand defendants @ $20,000,000.00 million dollars each and this figure does not include the Legislative branch or the entire exucutive Branch or the Court personal as secratarys and gofors because they Conspired withn you as Honourable
For a writ to issue, the respondent must have a clear duty, the petitioner must have a beneficial interest in respondent’s performance of that duty, respondent must have the present ability to perform, respondent must have failed to perform a duty or have abused his discretion in performing the duty, and petitioner must have no other plain, speedy or adequate remedy.
According to @Washington State From Chief Justice Madsen, more than 400 judges that serve the public in our county courthouses, cities and towns, we see your illegal courts in actions against the Rules of your commission.
1) What Constitutional rights have been violated?
STATE OF WASHINGTON v. MAY, JEFFERY ROBERT, (STATE OF WASHINGTON CASE NO.13-1-01296-6 2013 & CASE# 328571 ALSO YAKIMA CITY CASES 99-1-01169&93-107117 ILLEGAL IN CUSTODY 09/15/2000 TO 11/01/2000.).
(No Grand juries in the United States
From Wikipedia, the free encyclopedia)
The United States is virtually the only common law jurisdiction in the world that continues to use THE MANDATORY CONSTITUTIONAL PRACTICE OF the grand jury of th Fifth Amendment to screen criminal indictments.[1), 2).]