by Mary W Maxwell, LLB
Many things that are occurring in the 2020 “pandemic” are criminal. Genocide, murder, treason, and fraud, to name just the biggies. My recent book, Grass Court, expressed the view that today’s governments — around the world – won’t punish the relevant criminals. I believe that’s because all the governments are under the sway of some intimidating global rulers.
My book suggested that some neighbors get together and run a court on their front lawn (a “grass” court), like a real
trial. Today’s article is NOT about the grass court. It is about a new entity that I am founding, called the Committee of 23. At the end of this article, I will specify how the Committee of 23 differs from the grass court.
Announcing the Committee of 23
I propose a committee of 23 persons. We will more or less imitate a Grand Jury – which traditionally has between 16 and 23 members. Typically, members of a grand jury are handed some files by a District Attorney and are asked if they think the suspect (or “the person of interest”) should be indicted. Is there “probable cause” that a crime was committed by him or her?
The police may already have arrested the person based on receiving a complaint, such as “Ann Smith embezzled our company’s funds.” Or, cops may have apprehended someone while on patrol: “Harry Jones, being drunk, was seen stabbing a man with his umbrella.”
The Fifth Amendment of the Bill of rights guarantees “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” The grand jurors must decide if there “is a case to answer.” They operate secretly so the accused will not suffer a loss of reputation in the event that it was a false alarm.
In the early days, the matter was not administered by government. Rather, the citizen-led panel of 23 would look around and see if crime was happening. In colonial Massachusetts, the 23 were obliged to do so and to bring to the attention of the government any general troubles they identified.
The Committee of 23 that I propose is of that old-fashioned type. We will nose around. As much as we durn well please.
Authority of Grand Juries
In 2015, the Congressional Research Service – the CRS — wrote a report (number 95-1135) about the role of the federal grand jury. Charles Doyle at the CRS, summarizing the Report, noted that:
“The federal grand jury exists to investigate crimes against the United States and to secure the constitutional right of grand jury indictment. Its responsibilities require broad powers. [It is] an arm of the U.S. District Court which summons it, upon whose process it relies, and which will receive any indictments it returns.”
There isn’t much jurisprudential philosophy on the subject of grand juries, but US Supreme Court Justice Antonin Scalia, writing a dissent in US v Williams (1992), stated:
“The grand jury ‘can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.’ It need not identify the offender it suspects, or even ‘the precise nature of the offense’ it is investigating….”
For reasons in which I am not well-schooled, (which have to do with the Fourteenth Amendment and the concept of “incorporation”), the right of a citizen to a grand jury indictment, quoted above in the Fifth Amendment, applies to federal, not state, crimes. According to Frequently Asked Questions at the American Bar Association website, only 22 states require grand juries, but most of the other 28 do still use them.
I live in New Hampshire, specifically in Merrimack County. The issues that are grist for my mill are national, so I envision that my Committee of 23 will be of the federal type. Perhaps the appropriate US District Court is the one in Concord, New Hampshire, to which we should report our findings. But that is open to discussion.
The Law of Grand Jury Procedure
Importantly, I am calling the proposed new entity a Committee, not a grand jury. Since it is not an authorized body, it has no powers of summons or subpoena. But it also won’t have to abide by Federal Rule 6 of the Federal Rules of Procedure.
A famous aspect of the grand jury is its secrecy. Rule 6 (e) “Recording and Disclosing the Proceedings” describes the right, or lack of a right, of various parties to gain access to the grand jury’s information. For example, 6(e) 2 (B) v says that the court person who is recording the testimony may not divulge it.
Although secrecy does not bind our Committee’s work, I believe it will be wise to comply with any government rule on classified information so that we do not find ourselves in Julian Assange’s unhappy position.
It is heartening to note that Justice Scalia wrote, in the 1992 Williams case mentioned above:
“Thus, citizens have the unbridled right to empanel their own grand juries and present “True Bills” of indictment to a court, which is then required to commence a criminal proceeding. Our Founding Fathers presciently thereby created a “buffer” the people may rely upon for justice, when public officials, including judges, criminally violate the law….
“The grand jury is an institution separate from the courts, over whose functioning the courts do not preside….” [Emphasis added]
Will the “accused” have a right to due process? No. This is not a court. The Committee has a duty to investigate crime. I humbly invite any input into the creation of our “procedure.” It is natural to want procedure. But let’s keep in mind the law maxim Apices juris non sunt jura. “The niceties of the law are not the law.”
Comparison of the Committee of 23 and the Grass Court
Let me compare my new proposal to another one that I recently adumbrated. In September 2020, I published the book Grass Court: How To Use Law To Deal with the Pandemic. Its purpose is to encourage people to reject the notion that “officials” can’t be charged with crimes. (No, they do not have immunity!)
I noted that putting on a mock trial would empower citizens. You can conduct a mock trial of persons who are acting against the Constitution by, say, forcing vaccinations or establishing curfews. The book, Grass Court, contains a general introduction to sections of the US Constitution that a litigant or prosecutor can use, and it quotes the federal statutes against genocide and treason.
In 2017, I produced a stage play in Adelaide that consisted of a moot court trial for a wrongly convicted (and still imprisoned) Australian, Martin Bryant. Moot courts are used in law schools competitively, for fun and for skills training. The cases are usually fictional or historic ones.
For the Australian play, it was shocking to see how easy it was to create a trial that favored the innocent Bryant, even though all the material used in the playscript came straight out of the official file of the prosecutor!
I imagine the people who run a grass court trial will be similarly taken aback by their power to locate truth. Sure, it’s a daunting idea, but it can be done. Note, if you are worried about being sued for defamation, just use the name John Doe or Jane Doe for the accused.
By comparison with the grass court, the Committee of 23 will not be trying any criminals. We will merely be finding “probable cause” that a crime has (or has not) been committed. All of this depends on my being able to recruit 22, or at least 15 persons. By law, a panel of grand jurors can also have alternates if desired.
Will the “accused” have a right to due process? No. This is not a court. The Committee has a duty to investigate crime. I humbly invite any input into the creation of our “procedure.” It is natural to want procedures galore. But let’s keep in mind the law maxim Apices juris non sunt jura. “The niceties of the law are nor the law.”
Referring again to Charles Doyle’s summary of the Congressional Research Service’s 2015 report on the grand jury: “Its investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.” Don’t worry, the Committee of 23 is not in that league.
Finally, to quote Scala again:
“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.
Oh happy day.
Dear hearts, if you are interested in participating in the Committee of 23, please contact me by email (not via the Gumshoe Comments section) MaxwellMaryLLB @gmail.com.
Muchos gracias. (Ah, yes, we should be bilingual if possible.)