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Old April 13, 2012, 12:45 PM   #1
animal
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5th and 14th question : Grand Juries

Although this is more a general Constitutional law question than gun related, it does concern many cases which are definitely gun related (including the current "case which must not be mentioned"). I realize it’s a bit on the edge of relevance to this site, but was wondering if there might be an avenue here to use the 14th Amendment to limit overzealous prosecutors in high profile cases … especially in cases where the prosecutor could reap political gain by an indictment of an "evil gunowner".
Assuming the moderators allow this post as relevant enough to gun rights …PleaseNO mention of current high-profile cases.

Anyway …

The Fifth amendment guarantees that in capital and otherwise infamous crimes, the accused cannot be held to answer except upon presentment or indictment by a Grand Jury.

As I understand it, an "infamous crime" under common law was generally held to be one of fraud or one which caused public scandal; but "infamous crime" under federal law includes all crimes punishable by more than one year of incarceration.
Since States vary greatly in their standards of which crimes require a Grand Jury for indictment (some including crimes punishable by life in prison as not requiring a Grand Jury), either SCOTUS has chosen to selectively apply the 5th Amendment guarantees to the States through the 14th Amendment, or has not yet heard a case specifically addressing indictment by a Grand Jury as an individual right.

Finally… the questions for you high-powered legal types (assuming the above impressions are accurate … otherwise, the question is simply "where am I being stupid")

If selective application of the 5th Amendment is the rule of the day for SCOTUS, what is the reasoning ?
(An absurd notion that indictment by Grand Jury is not a privilege or immunity? A narrow definition of "infamous crime" under Constitutional law combined with a broader definition under federal law ?)

What landmark cases address the decision to not apply the same standard of "infamous crime" to the States ?

or …

If no case has been taken to SCOTUS specifically addressing indictment by Grand Jury as one of the privileges and immunities, why not?
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Old April 13, 2012, 01:59 PM   #2
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Oh geez, where to begin? I suggest you locate and review the Supreme Court case of Hurtado v. People of the State of California, 110 U.S. 516 (1884). Much of the reasoning goes back to the original use of grand juries and centers around the Magna Carta.

Suffice it to say:

"Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law...It is merely a preliminary proceeding, and can result in no final judgment"

And:

"The same notice was given, the same process was issued, the same pleas were allowed, the same trial by jury was had, the same judgment was given by the same judges, as if the prosecution had originally been by indictment."

Be sure to enjoy the old-timey language!
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Old April 13, 2012, 06:16 PM   #3
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Yep, the right to a grand jury is one of the last rights in the Bill of Rights not applicable through states through the due process clause of the 14th Amendment. Alan Gura is waiting for a good quartering of troops case to take up.
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Old April 13, 2012, 11:49 PM   #4
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Remember that initially, as ruled by SCOTUS in 1833, the Bill of Rights did not apply to the States. Only quite some time after the 14th Amendment was adopted in 1868 did the SCOTUS begin to apply the Bill of Rights to the States, in a piecemeal fashion, through the 14th Amendment.

AFAIK, criminal procedure in States not requiring a grand jury indictment still provides various opportunities for an accused to challenge a charge before trial. For example, many state procedures allow for the filing of a motion to dismiss whereby the legal sufficiency of a charge can be tested. In serious crimes, state procedures often provide for a preliminary hearing to test probable cause. Current state procedure could well be found today by the Court to satisfy due process, just as they were the Court in Hurtado back in 1884.
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Old April 15, 2012, 02:00 PM   #5
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Hey, thanks for the responses and especially the case name
I found a small error on my taxes, so I haven’t had much spare time to dive into the stuff …. been busy with voluntary compliance obligations(isn’t that self-contradictory?).
Anyway, a cursory read was pretty interesting. I particularly liked the dissent, go figure...

The Hurtado decision appears to center on a pragmatic view that it was not necessary to overturn a conviction where an alternate form of due process exists in State law. … kind of a "it would’ve happened anyway, so let’s leave it alone" or "separate but equal guarantees of due process"?. In Hurtado it could be shown the official overseeing the indictment acted on the basis of clear information before him and there was little (if any) infamy (under common law definition) attached to the murder. IMHO "the system worked" in Hurtado; not because of any guarantee to due process, but thanks to a conscientious official. What I’m wondering most about are cases that did not have clear evidence at indictment and where there was a possible ulterior motive for an official to indict.

Does anyone know of a case concerning wrongful prosecution brought before SCOTUS where a person was found not guilty at trial and brought suit against a State because he wasn’t indicted by a Grand Jury?

Sorry if it seems like I’m being thick-headed about this, but rest assured your responses are much appreciated and that I am trying to learn the details of the SCOTUS logic here.
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Old April 15, 2012, 02:36 PM   #6
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Quote:
Originally Posted by animal
...What I’m wondering most about are cases that did not have clear evidence at indictment and where there was a possible ulterior motive for an official to indict...
First, just so we're all clear, the term "indictment" is most precisely used to refer to an accusation brought by a grand jury. When the accusation is brought directly by a prosecutor, it's usually referred to as an "information" or "complaint."

There no doubt have been cases in which a prosecutor improperly filed charges. And no doubt there have been cases in which an indictment perhaps should not have been handed down by a grand jury. Grand juries can make mistakes or be swayed by passion or prejudice too -- or by prosecutorial misconduct.

Perhaps the most notorious recent case is the 2007 indictment of three members of the Duke University men's lacrosse team for rape. The charges were ultimately dropped and the prosecutor disbarred.

What really provides for due process is that fact that the process is layered. There are numerous ways in which to challenge an accusation before trial, during trial and after trial.

Quote:
Originally Posted by animal
...Does anyone know of a case concerning wrongful prosecution brought before SCOTUS where a person was found not guilty at trial and brought suit against a State because he wasn’t indicted by a Grand Jury?...
That wouldn't happen. One can only appeal if he loses.
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Old April 15, 2012, 03:38 PM   #7
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I realize that the original criminal case would not be appealed if won.

I meant a scenario where a person won his criminal case and then sued the State that prosecuted him… Has one of those lawsuits ever made it to SCOTUS : where presentment or indictment by a Grand Jury was considered as a guarantee against undue loss of liberty or property by the accused during the "process"?

I realize that there are some checks on overzealous prosecutors in the various State legal systems and believe that abuses are very rare … except in cases of high political pressure. I also concede that a Grand Jury is not a magic bullet to guarantee that no abuses occur in holding a person to answer for a crime.
IMO, a Grand Jury does serve better as insulation from political pressure (both by an authoritarian govt. and from a govt. bending to popular pressure … the two greatest enemies of the rule of law, IMHO). What I am searching for is the specific logic in SCOTUS’s refusal to recognize an element of due process (which is specifically mentioned in the 5th Amendment) as one of the privileges in the 14th Amendment.
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Old April 15, 2012, 04:47 PM   #8
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So long as prosecutors stick to the prosecutorial functions of their office, they have absolute immunity in federal court for any alleged violation of civil rights. Most, if not all, states have similar provisions. If they go outside of the prosecutorial functions of the office, they have qualified immunity. Qualified immunity means they are immune if they acted in good faith and not clearly in violation of law (paraphrasing). For example, if a prosecutor went into the wrong house with a team of police officers to execute a search warrant, the prosecutor would have only qualified immunity, just like the police officers.
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Old April 15, 2012, 06:15 PM   #9
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Quote:
Originally Posted by animal
...IMO, a Grand Jury does serve better as insulation from political pressure (both by an authoritarian govt. and from a govt. bending to popular pressure … the two greatest enemies of the rule of law, IMHO)....
Maybe and maybe not. Remember, the prosecutor presents the case his way to the grand jury. The defense does not present to the grand jury. So the prosecution, i.e., the government, controls what the grand jury hears and how it hears it.

If the prosecutor is inclined to misconduct, he's can try to manipulate the grand jury. That seems to be what happened with the Duke lacrosse players. (Actually, to be fair, I'm not sure they were indicted by a grand jury. In the material I've recently read, a grand jury wasn't mentioned specifically. But the accusation was referred to as an indictment, which, if the term is being used correctly, implies a grand jury.)

Quote:
Originally Posted by animal
...I meant a scenario where a person won his criminal case and then sued the State that prosecuted him… Has one of those lawsuits ever made it to SCOTUS : where presentment or indictment by a Grand Jury was considered as a guarantee against undue loss of liberty or property by the accused during the "process"?...
There can be, and certainly have been, suits claiming wrongful arrest, wrongful prosecution, deprivation of civil rights based on prosecutorial misconduct, etc. Duke University and the lacrosse players sued and collected. But the bases of such suits would be the sorts of things I've mentioned. One would be highly unlikely to get anywhere claiming he was wrongfully brought to trial because it was done on an information rather than an indictment. There would have to be a lot more to it -- to the point that whether or not the matter went to a grand jury would most likely fade into irrelevance.

[1] As Jim mentioned, prosecutors have qualified immunity.

[2] If one is held to answer (accused and being taken to trial) based on an information rather than an indictment, if after prevailing you sue solely based on the lack a a grand jury, you would need to show that if your case had gone to the grand jury they would not have indicted you. That can be pretty tough to prove.

[3] Suppose you were held to answer based on an information (or an indictment for that matter), and you're finally acquitted by a jury. That means you were unable to dispose of the charge at one of the various preliminary stages before trial. If that has happened, it's probably going to be tough to convince a civil court that the government didn't at least have probable cause to try you. And that will drive a stake through the heart of your lawsuit.
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Old April 15, 2012, 09:19 PM   #10
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To understand how we got to where we're at, you need to crack some books.

The best is Yale law professor Akhil Reed Amar's "The Bill Of Rights" (1998), which shows how the various elements of the Bill Of Rights were supposed to change under the 14th Amendment. Amar is no friend of the RKBA yet his own research forced him to come out on our side - very unwillingly!

The short form is this: the 14th Amendment was supposed to apply the entire BoR to the states as limitations on them, in 1868 upon it's passage (and yeah, it passed - at gunpoint where the South was concerned but they had it coming).

It didn't work out that way because in a series of cases between 1872 and roughly 1900, the US Supreme Court simply trashed the 14th from top to bottom, leaving it more or less completely useless. The cases involved start with Slaughter-House (1872) and run through Plessy v. Fergusen (the infamous "separate but equal" case of 1898). The worst though in my opinion was US v. Cruikshank, officially an 1875 case but the final decision came out in 1876. Charles Lane wrote a whole book on that case and it's aftermath, "The Day Freedom Died" (2008) which was cited favorably in Heller. Cruikshank directly caused at least 4,000 lynchings and uncountable numbers of other civil rights violations when it took the federal government out of the civil rights protection biz.

In the 20th century the Supremes realized they went too far. They rebuilt the 14th Amendment "crooked" - one piece at a time they applied the Bill Of Rights to the states under the theory of "selective incorporation", in which aspects of the BoR were declared "fundamental to due process" and selectively "incorporated" (or read that as "applied") to the states.

The last such selective incorporation case applied the 2A to the states in McDonald (2010). At the McDonald hearings, Alan Gura and company tried to get the court to finally ditch the "selective incorporation" fraud that began in 1872 in favor of "full incorporation under the Privileges and Immunities clause" (of the 14th Amendment). This would have had a bunch of other effects:

* It would have forced the states to use grand juries for major indictments, as that's one piece of the BoR not yet "incorporated".

* Ditto for the "quartering of troops" thing (3rd Amendment) which nobody really cares about these days.

* It would have required state and local trials in at least moderately serious civil cases to have a jury option.

* It would have also protected other civil rights not listed in the BoR, including a right to "free travel without pass or passport" (mentioned as a "privilege or immunity of US citizenship" in Dred Scott - which listed civil rights blacks didn't have as of 1856). And another really big one: a right to marry who you wanted. Yes, this would probably be read today to include gay marriage, which is likely why the NRA argued against "full incorporation" at the McDonald orals in favor of maintaining the fraud that is "selective incorporation".

* There are probably economic rights inherent as "privileges or immunities" that today are being stomped flat by grossly improper applications of eminent domain and other such lunacy.

So. This history is why there's no state requirement for grand juries. It means that some states don't have truly functional grand juries at all (California!) and hence fraud runs rampant that might otherwise be caught. It's also why a lot of traffic courts have switched to being "civil courts" so as to deny you a host of criminal law protections.

It's because of fraud going back to 1872 and still not addressed.
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Old April 16, 2012, 12:01 PM   #11
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Yes, this would probably be read today to include gay marriage, which is likely why the NRA argued against "full incorporation" at the McDonald orals in favor of maintaining the fraud that is "selective incorporation".
The NRA's main concern was that the Court wouldn't be receptive to the retconning they'd have to do on prior jurisprudence if McDonald was geared solely towards reinvigorating Privileges or Immunities. It became obvious at the beginning of oral arguments that they were right.

Gura was still amenable to an argument along Due Process lines, but having Clement along for the ride on that interpretation probably helped.

That said, yeah, I was really hoping to see PorI resurrected, and I thought McDonald was the perfect vehicle for it. So did folks of many differing political stripes. Unfortunately, only one Justice showed anything less than utter hostility towards the idea.

What's interesting is the number of folks in the gun culture who were absolutely, positively, foot-stomping opposed to the idea of incorporation at all.
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Old April 16, 2012, 02:45 PM   #12
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What's interesting is the number of folks in the gun culture who were absolutely, positively, foot-stomping opposed to the idea of incorporation at all.
There's a few but they tend to be the "South Shall Rise Again!" types, or those who take "state's rights" way too seriously. (Yes, there's a role for the states - but not in civil rights abuse.)
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Old April 16, 2012, 04:04 PM   #13
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Yep, I got into it at length with another member here in the lead-up to the McDonald case. On many other boards, the discussion was far less civilized.
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Old April 17, 2012, 08:19 PM   #14
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On the "South is gonna rise again types", I’ll assume ya’ll are talking about the various groups that would undermine the inalienable rights of individuals … Otherwise, I’d have to go on a flaming rant. I’ll just say that for the most part, they are an embarrassment, and most especially to me … since I consider myself about as "Southern" as a person can be. If however, "States’ Rights" are taken to mean the States only having "rights" with respect to the federal govt., I am inclined to agree with the "States’ Rights" crowd.

IMO, the 14th Amendment erases any rights of a State with respect to it’s people in the same way that the federal govt. has no rights with respect to the people. The governments of the States and the federal govt. have only powers, and what is called "States’ Rights" today is more like a separation of powers issue. Full incorporation of the 14th is the only correct answer, but to do it all at once would mean the legal equivalent of a revolution (or a civil war … depending on which side won). I doubt you’ll find anyone on the bench that was both principled and courageous enough to start it. To tell the truth, I have little hope that the operation of the US govt will ever return to the principles upon which it was founded, much less that those principles would be fully applied to the States.

To me, the NRA argument against full incorporation is like a group of sailors preoccupied with a small breach in a sinking ship saying "the big hole in the hull is on the other side of the ship, causing it to list, and is helping us to clear our compartment of water … keep bailing". Whether or not those sailors could do anything about the big hole is, of course, another question. If they couldn’t do anything about the big hole, I’d much rather see the sailors trying to patch the breach than contributing to the water accumulating on the other side of the ship.
Still, one must strive for what he believes to be right regardless of his chance for success, and it seems that an incremental approach to full incorporation might one day succeed where a single all encompassing battle would surely fail. It would however, be nice if those fighting in the legal arena to protect one right would be mindful of causing damage to other rights.

Thanks for the patient responses to the questions of a common carpenter from Mississippi. They are greatly appreciated and have given me some direction in my reading. (I actually like reading old-timey language.) After looking over this post, I feel like I should apologize for being such a pessimist. Maybe tax season just got me down. Dunno really …
I can’t apologize for believing that "if it is just and written in the law, then it should be followed until it is erased". Good thing I wasn't alive in 1861. I would have fought for the Confederacy and opposed slavery as its most shameful institution, just as some in my family did. No one in my family fought for the North.
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Old April 17, 2012, 08:36 PM   #15
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Quote:
Originally Posted by animal
...To me, the NRA argument against full incorporation is like a group of sailors preoccupied with a small breach in a sinking ship saying "the big hole in the hull is on the other side of the ship, causing it to list, and is helping us to clear our compartment of water … keep bailing"...
Not really. It was about winning a case.
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Old April 18, 2012, 09:27 AM   #16
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I haven’t gotten deep into this yet, but judging by what I’ve read so far about the character of the court, I think the NRA did the best that they could do. Eight to one odds are a tough obstacle to overcome.
You might say idealism and naiveté resulted in the flawed sinking ship analogy. It leaves out a group judges using extraconstitutional ideology combined with bad precedent as cover: to prevent anyone from getting near the "big hole". Whatever happened to the idea of impartial judges basing decisions on the letter of the Constitution, or was it just another dream? Likewise, the idea that the law should be logically consistent within itself is a notion swept away by a twisted pragmatism based on a perceived need for regulation and needs-tested rights.

It still irritates me that that NRA helped lay another layer to the bad precedent barrier to full incorporation, but I really don’t think it could be helped. They’ll still get my money. I’m just not as happy giving it.

Currently and sadly, the only tactic with any chance of success would be "Selective incorporation to a goal" (to bastardize BF Skinner a bit) ? It can even be called "operant petitioning" ?
Bad pun better than bad analogy? Hope so … gotta find a way to laugh, right?
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Old April 18, 2012, 09:41 AM   #17
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For every court case in which you think the prosecutor is being over-zealous, there is probably going to be one in which you think he is being soft. For all of the complaints about being soft on crime is how we got to where we are today.
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Old April 18, 2012, 10:52 AM   #18
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It still irritates me that that NRA helped lay another layer to the bad precedent barrier to full incorporation, but I really don’t think it could be helped.
Many people felt that way, but the NRA didn't change the course of the case. Scalia made it very clear at the beginning of orals that the Court wasn't interested in Gura's primary strategy (total incorporation), so Clement's testimony was a helpful supplement.

In reality, let's consider the question as originally posed to the Court:

Quote:
Petitioners base their case on two submissions. Primarily, they argue that the right to keep and bear arms is protected by the Privileges or Immunities Clause of the Fourteenth Amendment and that the Slaughter-House Cases’ narrow interpretation of the Clause should now be rejected.
Only one Justice agreed with that interpretation, and if Gura had stuck to his guns, we'd have lost 8-1.
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Old April 18, 2012, 04:05 PM   #19
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I agree with Tom. It is very possible that without Clement making the NRA's argument, the 2A would never have been incorporated. Also, most of the folks angry at the NRA for not arguing incorporation via the Privileges and Immunities Clause are the same folks who get steamed at any hint the NRA is involved in anything else (whether true or not). The NRA is about gun rights, not any other rights that would have been sucked up through the P&I Clause.
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