Debunking the CLGJ – Scalia

And other problems with the Dixie County “Common Law Grand Jury”

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:

  1. It holds that grand juries are empaneled by a judge.
  2. It holds that the judge can’t tell the grand jury what to do after he has empaneled it.
  3. It holds that the proper advisor to the grand jury is the duly constituted prosecutor.

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.

 

3 thoughts on “Debunking the CLGJ – Scalia

  1. [NBC: A somewhat poor attempt at establishing a common law right to have a grand jury formed by anyone amongst ‘we the people’, which ignores the legal definitions of common law, they applicability of common law to an institution that has been a creation of statutory law, even in the earliest days, and thus cannot be common law. And finally a total failure to understand Scalia’s ruling in US v Williams, ignoring centuries of tradition (common law and precedent) in our nation. Not to mention that the Supreme Court has ruled that the Grand Jury right does not extend to the statutes under the 14th amendment. So much nonsense, no wonder Trussell was arrested and with a bit of luck we will see more attempts to apprehend those who are trying to make a mockery of our Constitution and our legal system. Just because they do not like the present day policies.]

    REBUTTALS TO ANTI-AMERICAN BAR INDOCTRINATED POSITIONS:COMMON LAW v. CIVIL LAW

    By Brent Williams; (brief history)

    Two fundamental traditions of law and government are active among humanity, each manifesting contrary ideals: the common law and the civil law. The common law rests upon justice administered by scriptural principles that presuppose and guard against the inherent imperfections of human reason. The civil law, on the other hand, justifies its methods by presupposing and appealing to man’s notions of perfected reason. The common law tradition governs only a handful of countries and is fundamentally consonant with Scripture, acknowledging the divine eternality of law as the measure of all things.

    [NBC: Common Law in legal terms means:Common law (also known as case law or precedent) is law developed by judges through decisions of courts and similar tribunals, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch.[1]]

    The civil law tradition, on the other hand, governs most modern nations and is fundamentally Babylonian trusting human reason as the worthy measure of all things.

    The common law tradition recognizes the necessity of human administration of law and government while providing safeguards against man’s weaknesses. The common law, however, does not teach that we elect or appoint men to govern us. On the contrary, the eternal law is our governor and the governor of those elected and appointed. Therefore, the duties of those administering government are purely ministerial: God binds magistrates and other officials to remain consonant with His character in word and deed; to arrogate more to elected officials is tantamount to idolatry. The
    common law has fashioned its methods to seek and derive law from the revealed mind of God.

    [NBC: We are not under God’s law but rather under Man’s law in this nation]

    By contrast, civil law’s ultimate source is the mind of man. In the common law tradition, all law is derivative: men must derive law from God. On the other hand, under the traditional civil law, men must make the law: i.e., law is a product of the human mind, un-derived from any source superior to humanity. Because the common law focuses on relationships, applicable common law standards are determined by first recognizing the kind of relationship that exists between contending parties.

    Once this question of fact is determined, out of this relationship arises a certain level of rights and responsibilities. Civil law, on the other hand, is primarily determined by ascertaining the will of the state as expressed in legislation. The question of relationship determines law: rights and responsibilities concerning life, liberty, and property. If the will of the state is the foremost consideration, however, private and individual determination of relationships to choose one’s relationships and freedom to define one’s associations by delineating one’s commitments contracts are forfeited. Therefore, common law is not made, but discovered by first recognizing the duty demanded by different categories of relationships; while civil law is the decreed by will of men, or a man, as the embodiment of the state. In the common law tradition, law is of eternal origin;

    therefore, all men and the state are subject to it. By contrast, the civil law tradition holds that because law is the will of man as expressed in the state’s legislation, law may change as man’s desire and will changes; further, since the state is the source of the law, the law is subject to the state and not the state to the law. Further, any freedom of private relationships such as association or contract is subject to impairment of the legislative will.

    FEEBLE ARGUMENTS FROM THE STATUS QUO

    Status quo – No legal authority: “This is a rogue band of citizens with no legal authority,” said Wes Oliver, Associate Professor and director of the criminal justice program at Duquesne University School of Law. “To what extent there was ever a common law grand jury system that was self-creating, there no longer is.” (No supporting authorities offered)

    FEEBLE (NBC) REBUTTAL

    In the Supreme Court case of United States v. Williams, 112 S.Ct. 1735, 504 U.S. 36, 118 L.Ed.2d 352 (1992), Justice Antonin Scalia, writing for the majority, confirmed that the American grand jury is neither part of the judicial, executive nor legislative branches of government, but instead belongs to the people. It is in effect a fourth branch of government “governed” and administered to directly by and on behalf of the American people, and its authority emanates from the Bill of Rights.

    JUSTICE ANTONIN SCALIA WENT ON TO SAY: (in U.S v. Williams) “The grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It is a constitutional fixture in its own right”.

    United States v. Chanen, 549 F.2d 1306, 1312 (CA9 1977) (quoting Nixon v. Sirica, 159 U.S.App.
    D.C. 58, 70, n. 54, 487 F.2d 700, 712, n. 54 (1973)), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54
    L.Ed.2d 83 (1977).; United States v. John H. Williams, Jr.; 112 S.Ct. 1735; 504 U.S. 36; 118 L.Ed.2d
    352; No. 90-1972.

    “All laws, rules and practices which are repugnant to the Constitution are null and void” [Marbury v. Madison, 5th US (2 Cranch) 137, 180]

    “There can be no limitation on the power of the people of the United States (of America). By their authority the State Constitutions were made and by their authority the Constitution for the United States (of America) was established…” Hauenstein vs. Lynham (100 US 483).

    “The United States Supreme Court declares that the “Sovereignty” remains with the “people” and resides with the “people”…Yick Wo vs. Hopkins and Woo Lee Hopkins (118 US 356).

    “No action can be taken against a sovereign in the non-constitutional courts of either the United states or the state courts and any such action is considered the crime of Barratry1. Barratry is an offense at common law.” State vs. Batson 17 S.E.2d 511. 512,513.

    BARRETOR. In criminal law. A common mover, exciter, or maintainer of suits and quarrels either in courts or elsewhere in the country; a disturber of the peace who spreads false rumors and calumnies, whereby discord and disquiet may grow among neighbors.

    Co.Litt. 368. One who frequently excites and stirs up groundless suits and quarrels, either at law or otherwise. Mate v. Batson, 220 N.C. 411, 17 S.E.2d 511, 512, 513. BARRETRY. In criminal law. The act or offense of a barretor, (q. v.;) usually called “common barretry.” 4

    Steph.Comm. 262.

    Status quo – Common people are not capable of making such decisions: (No supporting authorities offered)

    REBUTTAL –
    “Whenever people are well-informed they can be trusted with their own government” – Thomas
    Jefferson … “The constitutions of most of our states assert that all power is inherent in the people;
    that they may exercise it by themselves, in all cases to which they think themselves competent” –
    Thomas Jefferson, letter to John Cartwright; June 5, 1824; “Trust in the jury is, after all, one of the
    cornerstones of our entire criminal jurisprudence, and if that trust is without foundation we must reexamine
    a great deal more than just the nullification doctrine.” – Judge David L. Bazelon

    Status quo – Legal experts say that in 1946, the Federal Rules of Criminal Procedure were established, doing away with the common law grand jury model. (No supporting authorities offered)

    [NBC: On the contrary much supporting authority exists which shows that the grand jury has always remained statutory and that the 1946 Rules of Criminal Procedure did exactly this. It never did away with the common law grand mjury as such a creature never really existed. ]

    REBUTTAL –

    “The Court of Appeals’ rule would neither preserve nor enhance the traditional functioning of the grand jury that the “common law” of the Fifth Amendment demands” – 1990, U.S v. Williams

    “The power of grand juries to inquire into the wilful misconduct in office of public officers, and to find indictments or to direct the filing of information’s in connection with such inquiries, shall never be suspended or impaired by law.” New York Constitution Article 1 §6

    Status quo – Grand juries must be approved by the courts.

    REBUTTAL –

    “The grand jury is an institution separate from the courts, over whose functioning the courts do not preside, we think it clear that, as a general matter at least, no such supervisory judicial authority exists” – 1990, U.S v. Williams

    [NBC: Scalia himself admits that the Court is the one that calls together the Grand Jury. And contrary to the claim here, Scalia admits to supervisory judicial authority however denies that this allows the Judge to force the prosecutor to present all the facts to the Grand Jury.)

    JUSTICE ANTONIN SCALIA SAID: “In fact the whole theory of its 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”. Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960); Hale v. Henkel, 201 U.S. 43, 61, 26 S.Ct. 370, 373, 50 L.Ed. 652 (1906); United States v. John H. Williams, Jr.; 112 S.Ct. 1735; 504 U.S. 36; 118 L.Ed.2d 352; No. 90-1972.

    Status quo – There is no statute or procedural rule that allows citizens to convene grand juries. (No
    supporting authorities offered)

    [NBC: Again, the absence of such a statute is self evident]

    REBUTTAL –

    There is no statute or procedural rule that prevents people from convening grand juries.

    [NBC: Since the statutes prescribe how a Grand Jury is to be convened, it is impossible to ignore that rule.)

    JUSTICE ANTONIN SCALIA SAID: “The grand jury requires no authorization from its constituting court
    to initiate an investigation,” see Hale, supra, 201 U.S., at 59-60, 65, 26 S.Ct., at 373, 375, ).; United
    States v. John H. Williams, Jr.; 112 S.Ct. 1735; 504 U.S. 36; 118 L.Ed.2d 352; No. 90-1972.
    “The grand jury’s functional independence from the judicial branch is evident both in the scope of its
    power to investigate criminal wrongdoing, and in the manner in which that power is exercised. “Unlike
    [a] [c]ourt, whose jurisdiction is predicated upon a specific case or controversy, the grand jury ‘can
    investigate merely on suspicion that the law is being violated, or even because it wants assurance that
    it is not.'” United States v. R. Enterprises, 498 U.S. —-, —- , 111 S.Ct. 722, 726, 112 L.Ed.2d 795
    (1991) (quoting United States v. Morton Salt Co., 338 U.S. 632, 642-643, 70 S.Ct. 357, 364, 94
    L.Ed. 401 (1950)). Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979
    (1919).; United States v. John H. Williams, Jr.; 112 S.Ct. 1735; 504 U.S. 36; 118 L.Ed.2d 352; No.
    90-1972.

    Status quo – Unless common law grand juries are officially recognized by the courts, prosecutors offered presentments or individuals subpoenaed by the self-formed grand juries would not be legally compelled to cooperate. (No supporting authorities offered)

    REBUTTAL

    Prosecutors are not offered presentments; presentments are filed with the Supreme Court Chief Clerk and once filed cannot be removed, anyone interfering with an official proceeding commits a crime

    [NBC: Nope, presentments cannot be filed with the Court as the Federal Rules no longer allow for such procedure. Since there is no procedure to file these, there is no need to remove them. There is nothing official about a group of self described enthusiast who file some random documents with the court. If they want to pay the filing fee, then by all means let them do so and the case will be dismissed for lack of prosecution.]

    under US codes.

    USC 18 §2076 – Clerk is to file: Whoever, being a clerk willfully refuses or neglects to make
    or forward any report, certificate, statement, or document as required by law, shall be fined
    under this title or imprisoned not more than one year, or both.

    [NBC: There is no requirement by law to file silly presentments from self described groups)

    USC 18 §2071 – Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or
    destroys, or attempts to do so, documents filed or deposited with any clerk or officer of any
    court, shall be fined or imprisoned not more than three years, or both.

    [NBC: With court order documents can be removed]

    18 USC §1512b – Whoever knowingly uses intimidation, threatens, or corruptly persuades
    another person, or attempts to do so, or engages in misleading conduct toward another person,
    with intent to – (1) influence, delay, or prevent … an official proceeding; (2) cause or induce
    any person to – (a) withhold … a document, or other object, from an official proceeding; (b)
    alter, destroy, mutilate, or conceal an official proceeding; … shall be fined under this title or
    imprisoned not more than 20 years, or both.

    THE FOX & THE HEN HOUSE

    If the government can select the jurors [like they do now], it will, of course, select those whom it
    supposes will be favorable to its enactments [like they do now].

    [NBC: Unlike the Common Law Grand Jury, the government uses automated and random selection of the grand jury members.]

    And an exclusion of any of the freemen from eligibility is a selection of those not excluded [like they do now]. It will be seen, from the statutes cited, that the most absolute authority over the jury box that is, over the right of the people to sit in juries has been usurped by the government; Lysander Spooner, Trial by Jury, page 92, 1852

    “Men must be governed by God or they will be ruled by tyrants”. William Penn

    [NBC: Meaningless concept.]

    Amendment V – “No person shall be held to answer for a capital, or otherwise infamous crime, unless
    on a presentment or indictment of a Grand Jury…” It is in effect a fourth branch of government
    “governed” and administered to directly by and on behalf of the American people.

    [NBC: The Grand Jury part has never been extended to the States… Ooops]

    “…the jury shall have the right to determine the law and the fact”. New York Constitution Article 1.
    §8 “As understood at common law and as used in constitutional provision, “jury” imports body of
    twelve men.” [State v. Dalton, 206 N.C. 507, 174 S.E. 422, 424; People ex rel.Cooley v. Wilder, 255
    N.Y.S. 218, 222, 234 App.Div. 256; Hall v. Brown, 129 Kan. 859, 284 P. 396.]

    “The jury has a unalienable right to judge both the law as well as the fact in controversy.” John Jay,
    1st Chief Justice United States Supreme Court, 1789.

    “The jury has the right to determine both the law and the facts.” Samuel Chase, U.S. Supreme Court Justice 1796, Signer of the unanimous Declaration

    “The jury has the power to bring a verdict in the teeth of both law and fact.” Oliver Wendell Holmes, U.S. Supreme Court Justice, 1902.

    [NBC: Totally misconstruing Scalia, and lacking any logic. Lots of random quotes and failure to understand that Scalia himself accepts that the Grand Jury exists by virtue of the jurisdiction of the court, something the Supreme Court has ruled upon long long ago…]

  2. The common law rests upon justice administered by scriptural principles that presuppose and guard against the inherent imperfections of human reason.

    Nope, that is not what common law is all about. In fact, it is a well established principle that in presence of a statute, common law has to be ignored.

    But it gets worse as there is no foundation for a common law grand jury since a grand jury has always been a statutory creature, and although some try to trace it back to ancient common law, its first implementations were already statutory.

    Worse,

    There is no statute or procedural rule that prevents people from convening grand juries. JUSTICE ANTONIN SCALIA SAID: “The grand jury requires no authorization from its constituting court to initiate an investigation,”

    ROTFL… what do you think constituting court really means? Without the court there is no jurisdiction, there is no subpoena power.

    Let’s learn from the Supreme Court who in 1809 observed already that

    No act of congress confers on the United States courts, the right to summon grand juries, or describes their powers. The laws of congress have invested the courts of the U. S. with criminal jurisdiction, and since this jurisdiction can only be exercised through the instrumentality of grand juries, the power to direct them results by necessary, implication. Hence, the powers of grand juries are co-extensive with, and are limited by, the criminal jurisdiction of the courts of which they are an appendage. Hence, too, a presentment by a grand jury in the circuit court of the U.S., of an offence of which that court has no jurisdiction, is coram non judice, and is no legal foundation for any prosecution, which can only be instituted on the presentment or indictment of a grand jury, to be carried on in another court, unless that court has no right to direct grand juries.

    But the district courts of the U. S. have that power, as completely as the circuit courts, to the extent of their criminal jurisdiction.

    Source: United States v. Hill, 1 Brock 156, 1809

    Presently, the statutes which have been enacted to establish how the grand jury is to be summoned clearly outline that which the Court in US v Hill had already observed: The power and jurisdiction of the Grand Jury comes from and are limited by the criminal jurisdiction of the court of which they are an appendage.

    As to Florida, we already have the Florida Supreme Court observing that

    Thus in Taylor v. State, 117 Fla. 706, 158 So. 437, 440, the Supreme Court said: “The mode of selecting a grand jury is a matter of statutory requirement. No grand jury can be drawn and organized except pursuant to the requirements of the statute.”

    And the Supreme Court of the US

    Also, as to federal grand juries, after legislation had been enacted covering the summoning and organization of grand juries by federal trial courts, the Supreme Court of the United States, in the case of Ex parte Mills (1890), 135 U.S. 263, 10 S.Ct. 762, 34 L.Ed. 107, 109, said: “A grand jury, by which presentments or indictments may be made for offenses against the United States is a creature of statute. It cannot be empaneled by a court of the United States by virtue simply of its organization as a judicial tribunal.” Implementing that statement, the Supreme Court of the United States held in Mills that a territorial federal court was not within the provisions of the revised statutes relating to the empaneling of grand juries for the district and circuit courts of the United States, and therefore, having been given no legislative authority to summon and organize a grand jury, was without jurisdiction to do so.

    Scalia repeated that which we already knew, that the Grand Jury works separate from the court, although it cannot exist without the Court. Furthermore, Scalia’s ruling in US v Williams suggests that the prosecutor runs the show and that he has no duty to present evidence that shows the innocence of the “accused”.

    As to the Federal rules and the Clerk of Court, the Clerk can remove with the consent of the court any filing and may even refuse to file documents that have no legal relevance. There is no requirement by law that these fake “true bills’ be filed or taken seriously. Now they can be filed as part of a lawsuit, which needs to be properly initiated. There is no law which states that the Clerk has to accept any and all nonsense.

    We already know that the Court can strike documents from the docket, after which they are no longer available. The court may also accept documents as MISC and file them for reasons such as assessment of penalties if such documents are repeatedly filed in violation of the rules.

    We also know that if the document complies with the rules of the court, the filing is ministerial but that does not apply to random documents sent to the clerk.

    “It is difficult enough to practice law without having the clerk’s office as an adversary” an appellate court wrote. It added that whether the moving party’s motion “has legal merit is a determination to be made by a judge, not by the clerk’s office.” Noting that actions by the clerk’s office were “quite troubling,” the court stated that when a document presented for filing is in a form that complies with the rules of court, the clerk has a ministerial duty to file it and then notify the party that the defect should be corrected. Voit v. Superior Court (Julie Montano) (Cal. App. Sixth Dist.; December 14, 2011) 201 Cal.App.4th 1285.

  3. It appears to me that the phrase “…the jury shall have the right to determine the law and the fact” in the New York Constitution Article 1. §8 relates to trials for libel. I cannot find a similar phrase in the Constitution relating to other trials.

    Article 1 §14 relates to the Common Law and its potential supercession by later statute and the Constitution.

    Article 1 §6 concerns the Grand Jury.

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