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Home , Grand jury, Indictment, Jury

University of Baltimore Forum Volume 18 Article 2 Number 1 Fall, 1987

1987 The Grand - An Richard P. Gilbert Chief , of Special of

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Recommended Citation Gilbert, Richard P. (1987) "The - An Indictment," University of Baltimore Law Forum: Vol. 18: No. 1, Article 2. Available at: http://scholarworks.law.ubalt.edu/lf/vol18/iss1/2

This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. The Grand Jury - An Indictment

by The Honorable

Richard P. Gilbert

The origin of the Grand Jury has been not only to protect the King's subjects, but At the bottom of the water container was lost in time, I but it is safe to say that it is its action was closer to condemnation than a stone that the accused was to bring forth of ancient vintage. Shakespeare's "Twelfth mere indictment or accusation. Today, an when he withdrew his arm from the hot Night," Act III, Scene 2, observed that indicted is "presumed to be water. The arm was then bandaged for there "had been grand jurymen since innocent until proven guilty." Not so in three days, after which the bandage was before Noah was a sailor." While medieval times.6 Then, an accusation by removed. H the scalding had healed, the Shakespeare's comment is an exaggeration, the Grand Assize was followed by in accused was innocent; but if it had it does serve to illustrate that Grand the form of an ordeal.? The ordeal took festered, he was guilty. (This particular have been part of our legal system for cen­ four specific forms - cold water, hot ordeal may have given rise to the expres­ turies. water, hot iron, and morseLS sion "in hot water," meaning to be in It is reported in one source that King The cold water ordeal was of three days trouble, difficulty, or peril.) Ethelred of in the Tenth Century duration. The accused was submitted to it Trial by hot iron was of a similar pat­ had Grand Juries, or something similar to in the presence of a priest. The accused was tern. A piece of iron weight one to three Grand Juries. Some historians claim that taken to church where Mass was chanted pounds, according to the nature of the the ancestor of the present Grand Jury and communion was offered to him. He , was heated until it was red hot. The dates from 1166, the year of King Henry was told not to partake of the communion accused was then required to grab it with U's .2 The idea of the if he was guilty of the crime charged. After his naked hand and carry it nine feet and Grand Assize, as it was known to the Nor­ communion the accused was stripped and then drop it. His hand was bandaged for man French from whence it originally cast into a body of water. H he sank, he three days. If, at the expiration of that came, was to employ a body of knowl­ was adjudged not guilty. H he swam, he time, the wound had healed, he was not edgeable local gentry as the King's was pronounced guilty. The theory being guilty. H it festered, he was guilty. investigative arm. That body's function that his instinct for self-preservation The ordeal by morsel was undergone· by was to decide civil questions concerning would preclude his wilfully sinking.9 That the accused's swallowing a piece of barley conflicts of title and ownership of land. J particular ordeal seems to have been a "no bread or cheese of the weight of one As with most governmental institutions win situation." H the accused sank, he died ounce. H he succeeded without serious dif­ that survive to grow old, the duties change, from drowning; and if he swam, he died at ficulty, he was innocent; but if he choked, and the Grand Jury is no exception.· the hands of the government. No matter he was guilty.lo. The Grand Assize was established by how you look at it, he was just as dead. In 1215 trial by ordeal was abolished, II Henry II to enable him to wrest the Trial by hot water followed the same but the peril to an accused remained administration of from the church idea as trial by cold water, although it may almost as certain. A defendant was tried by and the feudal barons and place it under have been more painful. Water was heated the very same jury that had indicted him. 12 the sovereign. It was primarily a weapon to a high temperature, and the hand or Obviously, his propsects for were for the King's use in enforcing the King's arm of the accused was plunged into the not bright. Slim as they were, they became .5 water up to the wrist or elbow. The severi­ even slimmer as a result of the practice of Contrary to what many believe, the ty of the crime dictated the extent to royal ' ftning and imprisoning jurors Grand Jury of 700 or 800 years ago failed which the arm was immersed in the water. who found a defendant not guilty. 4-The Law ForumlFal~ 1987 By the middle of the Fourteenth Centu­ petence forced the city council to meet Notwithstanding that Constitutional ry, reached the point where an regularly and be more responsive to the fiat, the Supreme Court of the United accused could strike from a panel public's needs.21 A Boston Grand Jury's States held in Hurtado v. California, 110 any person who had been a member of the threat to indict public officials resulted in U.S. 516 (1884), that the requirement of Grand Jury that had indicted him. \3 It was improvement in the maintenance of the indictment by a Grand Jury in a capital or also about that time that the Grand Jury city's streets.22 infamous crime is not binding upon the began to hear testimony in private - a The prestige of the Grand Jury received states. There is nothing in practice that gave rise to the current a boost in 1743 as a result of a matter that that requires a state to "secrecy" of Grand Jury proceedings. 14 is more familiar when thinking of "the empanel Grand Juries. Today's popular, albeit misconceived, ." The case involved Neither the Maryland Declaration of notion that a Grand Jury is a buffer John Peter Zenger, a newspa­ Rights nor the Maryland between the government and the people - per publisher who criticized the Royal mandates a Grand Jury indictment as a that it acts as a protector of a person from Governor.23 The governor sought to have prerequisite to any criminal proceeding. oppressive government - was a long time Zenger prosecuted for criminal libel. The The establishment of the Grand Jury in in developing. More than five hundred Grand Jury declined to indict, thus evi­ this state is the result of statutory enact­ years elapsed from the origin of what we dencing its independence. Unfortunately ments by the . Chief Judge now call the Grand Jury to the ideal of for Zenger, he was subsequently tried by Robert C. Murphy of the Court of that body's being a buffer or protector. way of a criminal information. Fortunate­ Appeals of Maryland noted on January 31, The Grand Jury's protectorate role ly for him, he was acquitted. 1973, in his Report to the Maryland Gen­ seems to stem from a 1681 case involving eral Assembly on the State of the Anthony, Earl of Shaftesbury, and that "most states have abolished any such Stephen Colledge. 15 Those two gentlemen rigid requirements[s]" as indictment by a were vocal Protestant opponents of King Grand Jury. Charles II's to reestablish the Currently, twenty-two states require a Roman in England. The "no right to Grand Jury indictment in cases. Earl of Shaftesbury was also allegedly indictment by a Three require it only when a crime is pun­ involved in a plot to assassinate the King. ishable by death or . In The King and his sought to Grand Jury existed the other twenty-five states, the have Shaftesbury and Colledge indicted may elect to seek indictment or proceed and tried for . The Grand Jury, in the Constitution of by way of a criminal information. exerClsmg its power to interrogate the United States as Two states, and , in private outside the presence of statutorily require indictment by a Grand the royal prosecutors, refused to indict. 16 originally drafted." Jury in all felony cases. In West Virginia an Shaftesbury's case is heralded as the cor­ accused may waive an indictment if the nerstone of the Grand Jury's role in pro­ felony is not punishable by life imprison­ tecting the innocent against malicious and ment, provided he has been advised of the oppressive government prosecutionY nature of the charge and there is a written Aside from the creation of the concept The Grand Jury was considered a highly waiver signed by him and his counsel. of an independent Grand Jury, another esteemed body, regarded by the public as Now that we have seen from whence the practice arose from the Shaftesbury case. a protector of the innocent and as repre­ Grand Jury stems, let us look at why it is That is for the prosecutor to present the senting the ultimate in independence of "grand." . Originally Henry II's Grand same to a subsequent Grand Jury spirit. Its influence was tremendous. Tho­ Assize consisted of twenty-four persons. It and obtain , notwithstanding mas Jefferson called it the "true of was, and still is, "grand" because of its size, the prior Grand Jury's refusal to charge, the people and the secret palladium of not because of its function. The number of which is precisely what happened to ." Grand Jurors has varied over the years. Shaftesbury and Colledge. As a result of Theoretically, the Grand Jury acts as a The federal government and some states being indicted, Shaftesbury fled to Hol­ "sword and a shield" """"" a sword to indict require twenty-three Grand Jurors with a land where he died two years later. Col­ when there is to believe quorum consisting of sixteen members. ledge was not so fortunate as to die a that a crime has been committed, and the Twelve votes are necesSary to indict. natural death. He was seized, tried, and accused committed it;24 a shield to protect Interestingly, nowhere in the United executed as a traitor. 18 In this country citizens against oppressive or frivolous States does the number of Grand Jurors today only one state applies a sort of "dou­ prosecution.25 By the time the United exceed twenty-three. West Virginia ble jeopardy" to Grand Jury proceedings. States Constitution was adopted in 1787, requires sixteen Grand Jurors. In Virginia In New York a failure by one Grand Jury the Grand Jury had become an established a Grand Jury may be composed of as few to indict precludes indictment by subse­ adjunct of the American judicial system. as five people. and South Dakota quent Grand Juries. 19 Significantly, however, no right to have six; Oregon, Iowa, , and With the by the British of the indictment by a Grand Jury existed in the Utah have seven. In the states which have American colonies, the Grand Jury system Constitution of the United States as origi­ more than twelve Grand Jurors, at least was imported to North America from nally drafted.26 That right did not become twelve must vote to indict. One state - England. The then Grand Jury inspected constitutional until the ratification of the - has a unique approach. There and reported on conditions of public "Bill of Rights." The Fifth Amendment a Grand Jury consists of twelve citizens, roads, the performance of public officials, provides, in pertinent part: "No person and unanimous consent is necessary before and the expenditure of public funds.20 shall be held to for a capital or oth­ an indictment is returned. Kansas, In colonial Annapolis a Grand Jury's erwise infamous crime unless on a present­ Michigan, Wisconsin, and Washington protest against corruption and incom- ment or indictment of a grand jury."27 permit one person Grand Juries.

Fal~ 1987/rhe Law Forum-S With that background in mind, let us 10) the person who issued the warrant cutor's utilizing the Grand Jury as a tool. now consider the role of the Grand Jury in for and expressed an opinion as to the That is a reason why members of the today's society. What does it do, and how of the accused, United States v. Belvin, 46 Grand Jury are not free to allege that a does it to it? F. 381 (1891); named but unindicted person or one who Far from being a "buffer" between the 11) a deputy , Owens v. The State, is unnamed, but nevertheless identifiable government and the people, the Grand 25 Tex. App. 552 (1888); by position, title, or description, has acted Jury is an investigatory and accusatory 12) a policeman, Hopkins v. State, 23 Md. improperly or illegally. Nothwithstanding body.28 It rarely hears from any witnesses, App. 53 (1974); the curb on Grand Jury reports, an Anne except those subpeoned before it for the 13) depositors in an insolvent bank when Arundel County Grand Jury appealed an purpose of demonstrating to the jurors the bank president was accused of causing order to have its report become public. that the State has reason to ask for an the insolvency, Coblentz v. State, 164 Md. They lost. The was dismissed. indictment against someone for an alleged 558 (1933). Nevertheless, the court proceeding was criminal violation. Whether the state's Contrary to popular view, a Grand Jury, mooted by the report's being "leaked" to reason always amounts to "probable unlike the petit jury, is not a judicial tribu­ the press by person or persons unknown. cause" is open to considerable debate. nal. The rules of evidence do not apply. It So much for secrecy in that case!J2 The Grand Jury has been both praised acts upon any knowledge possessed by any 0/ Today, any prosecutor worthy of the and damned. There are those who still its members from any source. JO By their name will acknowledge that he or she can view it as being clad in its ancient role of oath, Grand Jurors are sworn to bring have anyone indicted.JJ If a particular "buffer" between the citizen and the State, indictments or to refuse to do so as a result Grand Jury balks at indictment, the a safeguard of liberty. Others, not so chari­ of the knowledge they have acquired prosecutor, following the 1681 Shafiesbury table, see the Grand Jury as nothing more through their inquiry. That inquiry more , need but turn to the next than an instrumentality of the prosecu­ often than not is limited to what is pre­ Grand Jury or the next to obtain the tion. They believe that the Grand Jury has sented to them by the prosecutor. Patent­ indictment.J• Of one thing you may be abandoned its historical role and become ly, a prosecutor does not ordinarily certain, if the prosecutor so desires, an the "rubber stamp" of the prosecutor. present evidence which would lead to dis­ indictment will follow just as surely as Some critics label the Grand Jury as ­ missal of the matter. What is presented is night follows day.J5 This practice by baric, mischievous, abusive, and insult­ carefully designed to achieve the prosecu­ prosecutors gives credence to the charge of ing. 29 They perceive it as nothing more torial result - indictment. "rubber stamp." In any event, the idea than another tool of the prosecution. The investigations and of that a Grand Jury acts as a buffer between To illustrate that the Grand Jury is at the the Grand Jury are supposed to be cloaked the government and the people, opposite end of the spectrum from that of in secrecy and free from interference or unfortunately, is no more than a fiction. It an impartial fact finder, one need only influence. "Leaks," however, are not is a tale that we like to believe because it look to case histories involving legal uncommon and sometimes may be planted makes us feel safe and secure, but then attacks on Grand Jury composition. or managed. In order to protect the inno­ again so does a belief in a fairy godmother, Membership on the Grand Jury of the fol­ cent, a Grand Jury's inquiry into a per­ and the two are equally protective. lowing persons has been held not to taint son's activities, which inquiry does not As we have discussed, there is no need that august body's deliberations: result in an indictment, should not be for a Grand Jury in state criminal 1) the prosecutor in the case, United made public.J ! Such a person must be pro­ proceedings.J6 The State's Attorney is an States v. Williams, 28 F. Cas. 666 (CCD. tected from disrepute and character elected public official, a constitutional Min. 1871); assassination by a Grand Jury's or a prose- officer, fully clothed with all of the 2) a relative of the victim, Collins v. authority necessary to initiate proceedings State, 3 Ala. 64 (1912); against anyone the prosecutor believes has 3) The complaining , Holmes v. committed a criminal act. The prosecutor State, 160 Ark. 218 (1923); U.S. v. Belvin, should be charged directly with the 46 F. 381 (1891); U.S. v. Williams, 28 F. responsibility of InItIatmg criminal Cas. 666 (1871); In re Tucker, 8 Mass. 286 proceedings. The prosecutor, not a Grand (1811); Jury, is answerable to the electorate for 4) the son-in-law of the victim, charges improperly, maliciously, or Oglesby v. State, 83 Fla. 123 (1922); abusively instituted.36 That, it is 5) a rape victim's father, Zell v. State, 15 "The prosecutor submitted, is the way it should be. Let the Ohio App. 446 (1922); should be charged prosecutor be accountable for his or her 6) the committing , State v. acts. It is time for prosecutors to stop using Chairs, 9 Baxt. (Tenn.) 196 (1877); U.S. v. directly with tbe the Grand Jury as a "front" for the Palmer, 27. F. Cas. 410 (1810). prosecutor's act; it is time for the 7) a member of a jury before whom the responsibility of prosecutor to stand on his or her own legs accused was alleged to have committed initiating criminal and not those of twenty-three other perjury, State v. Wilcox, 104 N.C. 847 persons'. It is time for prosecutors to come (1889); proceedings. " out of the Grand Jury room and publicly 8) a special officer, Com· acknowledge that he or she, not the Grand monwealth v. Hayden, 163 Mass. 453 Jury, is the movant behind a criminal (1895); charge. 9) a member of an the We emulated England in adopting the object of which was to detect crime, Grand Jury system. Let's continue to Musick v. The People, 40 Ill., 268 (1866); follow in their footsteps and do what Com. v. Craig, 19 Pa. Super. Ct. 81 (1902). England did more than fifty years ago - abolish it. 6-The Law ForumlFal4 1987 Notes 'Olson, Pn/ace to Edward. 1M Grand I,."." at 1 (1973). 'Younger, 71HJ PtlOple's Panel: 1M Grand IN? in the United States 1634-1941, at 1 (1963). sId. at 12. • Frankel and Naftalis, 1M Grtmti p.ry. at 3 (1975). • Olson, Preflla! to Edwards, 1M Grand I,."." at 8 (1973). • Frankel and Naftalis, 71HJ Grtmti p.ry. at 7 (1975). 7 Olson, Pre/Ila! to Edwards, 1M Grand I,."." at 4 (1973). 'Frankel and Naftalis, the Grandl-,. at7 (1975). 'Id. at 7, B. ,old. "Id. at 8. u Olson, Preface to Edwards, 1M Grtmti1-,. at 18-22 (1973). IS Id. at 24. ,. Olson, Preface to Edwards, 1M Grand 1-,. at 28 (1973); Frankel and Naftalis, 1M Grand I,."." at 9 (1975) . .. Olson, Preflla! to Edwards, 1M Grand 1-,. at 29, 30, 129 . .. Frankel and Naftalis, 71HJ Grtmti p.ry. at 9 (1975). "Id. "Id. "NY Code 55 C.P.I.. S 190.75. That section provides: When a charge has been so dismissed [by a Grand Jury] it may not again be submitted to a grana jury unless the court in its authorizes or directs the people to resubmit such charge to the same or another grand jury. If in such case the charge is again dismissed [by the Grand Jury] it may not again be submitted to a [subsequent] grand jury." "Frankel and Naftalis, 1M Grtmti J-J at 9 (1975). "Id. at 11. HId. at 10, 11 • .. Beale & Bryson, Grand I", u.v tmti Practice S1:01 to S 6:~I. at 14 (1986); Olson, Pn/ace to Edwards, 71HJ Grand I",. at 32 (1973); Frankel and Naftalis, 1M Grand I",. at 11 (1975) • •• Olson, Preface to Edwards, 1M Grand 1-,. at 141 (1973). "Frankel and Naftalis, 1M Grand p.ry. at 3 (1975) . .. Beale & Bryson, n. Grand I", Ltw &- Prru:tice S 1:01 to S 6:~I. at 18, 19, (1986). :D Frankel and Naftalis, 1M Grand I,."." at 32, 33 (1975). ·'Id. at 35 • .. Olson, Preface, to Edwards, 1M Grand I,."." at 1 (1973).

Without you, there's no Way_ Judge Gilbert is the ChiefJudge ofthe Court of Special Appeals ofMaryland. He is the Chairman ofthe Commission on Judical Disabilities; Chairman ofthe University ofBaltimore Law School Advisory Board and member ofthe Committe of the Appellate Judges' Conference. American Bar Association. ChiefJudge Gilbert also serves as a Adjuna Professor ofLaw at the University ofBaltimore Law School, Chief Judge Gilbert is a member of the American Bar Association. American Judicature Society, Maryland State Bar Association, Baltimore City Bar Association and the American Judges Association. Chief Judge Gilbert further distinguishes himself through extensive publications. He is the Co-Author of three books including United Way of Central Maryland Maryland , Practice and Procedure (Michie 1983), Maryland WE PUT THE MONEY Law Handbook (Michie 1985), and Maryland Workers' Compensation Handbook TO WORK (Michie 1988).

Fal/, 1987/The Law Forum-7