Grand Jury Plea, Once more with feeling…

Renewed plea for a Grand Jury

Why the Charter Review Committee should put this on the ballot.

The Justice Restoration Project has been meeting for over a year with the expressed purpose of bringing back the Grand Jury process to Clallam County.

As the time came for the Charter Review Commission to sit again and decide what changes should  be made to the county charter it was decided by the Justice Restoration Project that this would be the best way to promote the idea–through the Charter Review Commission.  If it passed muster with them then it would go to the ballot and, if approved by a majority of the voters, then we would again enjoy the promise of the 5th Amendment to the Constitution which states, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”

Once upon a time Grand Juries were the law of the land.  They were made up of common folk from the community.  They were the only ones who could decide who should go to trial.  The courts and the prosecutors didn’t like that.  They prevailed upon state legislatures to muddy up the laws to make it seem like Grand Juries went out of style.  They are attempting to put them out of style even tho they are guaranteed by the 5th Amendment of the constitution.  The same one that prevents the state from coercing you to make self-incriminating statements.  “I plead the 5th.”  They haven’t been able to take that part of the 5th Amendment away yet. The Miranda decision ensured that.

Somehow, through the processes of our state legislature, that protection has been lost to us.  Now the state statute says that no grand jury shall be impaneled unless two thirds of the local Superior Court judges call for one.

Supreme Court Justice Antonin Scalia says the Grand Jury is separate and distinct from the courts–and the prosecution.  He calls it “a fourth estate.”

It is pretty well understood that state constitutions can provide more rights than the Constitution of the United States of America but, no state constitution can take away any rights guaranteed by the Constitution of the United States of America.  When guaranteed rights become fungible it begins a slow slide to tyranny.

Yet legislatures do it all the time and they get by with it unless and until someone puts the bogus laws to the test and the case wends its way to the Supreme Court of the state and there they must give you back the rights the legislature attempted to take away.  

It is not an easy campaign.  

That is why it should be done by the Charter Review Commission instead of putting people through such a hellish process to get what has already been guaranteed.  No doubt, it would require a courageous stand by these commissioners but I think that is what they were elected to do–look out for the rights of the people.  In some circles it would be an unpopular stand but it is right and it is a must.

One of the problems with individuals challenging the constitutionality of taking away the grand jury  is that before one may challenge the constitutionality of a law one must have “standing.”  One must be charged with a crime and made to stand trial without an indictment by a Grand Jury before they can challenge the law.  Folks over at the coffee shop cannot decide to challenge a law they think is unjust–they have to be charged with a crime to gain standing.

Now, most lawyers know that one must be indicted by a grand jury before being made to stand trial.  However, they are not going to bring it up because they are licensed by the state that is attempting to deny this Constitutional right.  Anyone who has ever been licensed by the state knows how easy it is to have heat put on a state license.  If you run a restaurant and you store the eggs anywhere but on the bottom shelf you can be shut down.

If you are a criminal defense attorney and you insist that every one of your clients be indicted by a grand jury then your license is going to heat up.

Now, how to ensure that one gets an indictment before being made to stand trial you must know about jurisdiction.   Jurisdiction is what gives the court the power to act.  If a court lacks jurisdiction then it has no power whatsoever over the individual.  There are two types of jurisdiction.  One is personal jurisdiction.  This means power over the person.  The way a court gains jurisdiction over the person is via indictment by a grand jury.  The other is subject-matter jurisdiction.  A bankruptcy court cannot hear a murder case, it lacks subject-matter jurisdiction.  One must not be made to stand trial without an indictment.  Same principal.  It lacks personal jurisdiction over the person.  

Yes, I know, most people go to trial and never get indicted.  That is because they did not challenge jurisdiction.  Once the defendant challenges the courts jurisdiction then the burden of proof shifts over to the court.  Now they have to prove the court has jurisdiction over the person.  

“Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but rather should dismiss the action.” Melo v. U.S. 505 F 2d 1026

A judgment rendered by a court without personal jurisdiction over the defendant is void. It is a nullity. [A judgment shown to be void for lack of personal service on the defendant is a nullity.] Sramek v. Sramek, 17 Kan. App. 2d 573, 576-77, 840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993).

“A court cannot confer jurisdiction where none existed and cannot make a void proceeding valid. It is clear and well established law that a void order can be challenged in any court”, OLD WAYNE MUT. L. ASSOC. v. McDONOUGH, 204 U. S. 8, 27 S. Ct. 236 (1907).

Be sure you realize one important thing about personal jurisdiction, it is very easy to give it up without knowing you are doing so.  

When someone is charged with a crime you will have an appearance date where you are ordered to appear in court.  Here you will hear the charges against you and you will be asked if you understand the charges against you.  If you say you understand (stand under) the charges you are screwed–you just gave up personal jurisdiction.  Even entering a plea of not guilty means you accept and acknowledge the jurisdiction of the court.  You must say nothing.  If you do say anything at the arraignment you have given up personal jurisdiction and you cannot regain it in that action against you.

The only way to deal with this scenario is to keep your mouth shut and have with you a prepared   “Special Appearance” motion challenging the jurisdiction of the court.  Then you shift the burden of proving jurisdiction  to the court and the prosecutor.  You do not have to prove they lack jurisdiction they must prove jurisdiction.  The only way they have jurisdiction over the person is with an indictment by a grand jury in felony cases.  The same may not apply to misdemeanors.

Now, will the court capitulate just because you filed a special appearance motion–no.  They will go back to the state constitution and the state statute and pretend that gives them the jurisdiction, “see it’s all right here in the law.”  Bunk.  Laws are passed all the time that are later found to be unconstitutional.  Once it was illegal to marry someone of another race.  That was finally ruled unconstitutional.  Once it was legal to have separate schools for different races.  That was found to be unconstitutional.  You may have to appeal every court ruling, all the way to the state supreme court until someone shows they understand the situation and impanels a grand jury.  Each time a ruling goes against the defendant he has a right to interlocutory appeal of that ruling.  It is a long and laborious task but someone must grasp the nettle and fight for the full constellation of rights guaranteed by the Founding Fathers.  It will be long, lonesome and frightening but someone must do it.  It would be great if the Charter Review Commission put the common law grand jury on the ballot for November.  Talk to the Charter Review Commission members.  They need to hear from you.

Now, having done all this you may still get indicted but at least you have turned back tyranny–at least for your lifetime and perhaps that of your offspring.  Good luck.

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