Organizers “Reinstate” Common Law Grand Juries in Pennsylvania

by: Justin Norris, Staff Writer

Organizers in nineteen of Pennsylvania’s counties have gathered to “turn back the judicial clock to 1789” by reinstating common law grand juries.  Most notable, meetings have sprouted up in Allegheny, Beaver, Butler, and Westmoreland counties to introduce the concept of the common law grand jury and seek a vote for its reinstatement.

 

National Liberty Alliance, based in New York, has been the major proponent of this movement.  Their mission is to institute a common law grand jury across each of 3,141 counties in the United States.  According to their website, the duty of the common law grand jury is to expose fraud and corruption whether it is in the judicial or political realm. 

 

Proponents of common law grand juries look to a 1992 United States Supreme Court opinion to confirm their legitimacy.  In U.S. v. Williams, Justice Antonin Scalia wrote in his majority opinion that, “the whole theory of [a grand jury’s] function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people.”[1]  Supporters claim that the common law grand jury is, in effect, a fourth branch of government co-ordinate with the executive, legislative, and judicial branches of government.

 

John Darash, of the National Liberty Alliance, commented on the diminution of grand juries today.  In an online broadcast, he said, “right now the grand jury are people who are paid.  They get a government paycheck.  They’re controlled by the Courts and the prosecutor gets to bring the cases, not the grand jury.”[2]  He continued, “[grand juries] don’t seek out cases.  They don’t look for justice.”  What powers the common law grand jury would have—that current grand juries do not have—is the ability to subpoena witnesses, summon grand jury meetings, and make accusations from independent investigations.

 

However, some officials question whether common law grand juries would have any legal standing.  Lackawanna County District Attorney, Andy Jarbola, told a Times-Tribune reporter that such a group would not have any authority nor would they be able to subpoena anyone.[3]  Likewise, Duquesne University School of Law associate professor, Wesley Oliver, echoed similar sentiments suggesting that a formal process in the Federal Rules of Criminal Procedure has replaced the common law process that once was used in federal courts.[4]

 

Both critics and proponents though have not made clear whether these grand juries would operate on a state or federal level.  In the federal arena, supporters of common law grand juries argue that the Federal Rules of Criminal Procedure[5] have anesthetized some of the rights that are inherent in the Fifth Amendment of the U.S. Constitution.  Specifically, they suggest that grand juries are empowered to act independently of courts and to maintain full use of their investigatory powers.  The Supreme Court has hinted as much. Yet, the Court has not specified whether the independence of the grand jury refers to a prohibition on courts and prosecutors from interfering with grand jury decisions or something much broader.[6]

 

More important, proponents look to the time of the adoption of the Fifth Amendment as justification for the grand juries broader powers.  Before the American Revolution, colonial grand juries served broader political functions.  They not only investigated criminal activity, but also managed municipal operations.  Road-building, bridge maintenance, and the operation of local jails were all a part of the grand jury’s oversight power.  However, as administrative agencies began to manage local activities, the need for a grand jury to oversee public affairs diminished.

 

Whatever the case may be, the Supreme Court has not held that the Federal Rules of Criminal Procedure are unconstitutional in how they regulate grand juries.  If anything, the Court has authorized changes to the Federal Rules to guard against corrupting practices or prosecutorial misconduct.  For example, an amendment to Rule 6 of the Federal Rules of Criminal Procedure requires that prosecutors be recorded during these proceedings.  Moreover, the textual language of the Fifth Amendment limits grand jury powers to the indictment of federal felonies; nothing mentions the powers with which grand juries were invested during the American colonial era.

 

Despite the limited scope of the Fifth Amendment, the Supreme Court has been clear on one thing: the Fifth Amendment does not apply to the states.[7] The perplexing question then is why supporters of common law grand juries have organized at the county level rather than at the federal district court level.  Perhaps some believe that the “common law grand jury” system will operate on a county-wide level in their respective states and that, despite court precedent, they believe the Fifth Amendment still applies to the states.

 

However, many states have been playing by their own rules, which the Supreme Court has regarded as constitutional.  Indictments may be raised in any manner the states devise.  In some states, statutes govern the operation of a grand jury.  For example, Pennsylvania’s Consolidated Statutes Annotated § 4543 provides that a grand jury may be impaneled either through the initiative of the attorney general’s office or through the president judge of the court of common pleas.[8]  Thus, “in no case shall the investigating grand jury inquire into alleged offenses on its own motion.”[9] 

 

Other states have given the legislature the power to abolish the grand jury or to modify.[10]  Ten states have given their legislatures the power to abolish grand juries, while one state has given the courts the power to abolish the indicting grand jury (Pennsylvania).  Still, twenty-two states explicitly deny legislatures, or courts, the power to abolish grand juries, and some stipulate that the grand jury must be used for certain offences. And yet, others neither deny, nor require, the grand jury.

 

Looking at how states authorize grand jury powers demonstrates that the movement sponsored by the National Liberty Alliance will need more than a blanket strategy.  Even if a more nuanced campaign existed for common law grand juries, organizers would ultimately have to change the laws in their state through their legislatures or invoke some other constitutional mechanism such as a referendum or state constitutional amendment. 

 

Yet, proponents argue that their state and federal legislatures are corrupt, which requires the need for common law grand juries—to put these politicians out of business.  These arguments are not new.  In the 1970’s, a group known as the Posse Comitatus, who rejected authority above the county level, appointed their own judges and ambassadors after organizing a town known as the “Constitutional Township of Tigerton Dells” in Wisconsin. 

 

As Daniel Lessard Levin noted in his article, A Law Unto Themselves: The Ideology of the Common Law Movement, “This idea, they claim, derives from English common law and all legal powers in the office of the sheriff, while power to interpret the law is placed in ‘common law associations and Christian grand juries, composed of only white, Christian males.’ Posse members believe that the only legitimate law was divinely given in the Bible and manifested in the United States in the Articles of Confederation and Constitution, which restate that divine law.”

 

The National Liberty Alliance has derived similar theories.  On their website, they offer classes on the Constitution and the common law that espouse these theories.[11]  They also provide courses on how to access courts without an attorney and how individuals can represent themselves.[12]  The next question, however, is whether the National Liberty Alliance or their organizers intend to represent themselves if judges ignore their bills of indictment and whether they see this as important to their strategy.