American Grand Jury (hereinafter "AGJ") hereby files this "Motion to Reconsider" before the United States District for the District of Columbia requesting that the Honorable Royce C. Lamberth reconsider his Order to not allow the AGJ presentments to be accepted by the Court.
On July 2nd this Court issued an Order. In that Order the Court stipulated that presentments were constitutionally permitted. ["And although presentments are constitutionally permitted..]
However, the Court went on to say that there was no authority under this Court to accept presentments. ["there is no authority under the Rules of Criminal Procedure or the Statutes of the United States for this Court to accept one..] and further stipulated that grand juries only sit before the respective court which would convene them. ["Furthermore, grand juries are convened by the court for the district in which they sit..]
This Order further concluded that the presentments from AGJ were not legal or constitutional. ["presentment by such group has no force under the Constitution or the laws of the United States..]
The common citizen when reading this Order may be led to believe, "the court does not recognize constitutional presentments when the court itself does not authorize such an action."
The Court Order first admitted, "And although presentments are constitutionally permitted.."
So let's review the foundation and concept of the grand jury:
Justice Powell, in United States v. Calandra, 414 U.S. 338, 343 (1974), stated:
"The institution of the grand jury is deeply rooted in Anglo-American history. [n3] In England, the grand jury [p343] served for centuries both as a body of accusers sworn to discover and present for trial persons suspected of criminal wrongdoing and as a protector of citizens against arbitrary and oppressive governmental action. In this country, the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by 'a presentment or indictment of a Grand Jury.' Cf. Costello v. United States, 350 U.S. 359, 361-362 (1956). The grand jury's historic functions survive to this day. Its responsibilities continue to include both the determination whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions. Branzburg v. Hayes, 408 U.S. 665, 686-687 (1972)."
In discussing that power and unique independence granted to the grand jury, the United States Supreme Court, in United States v. Williams, 504 U.S. 36 at 48 (1992), Justice Scalia, delivering the opinion of the court, laid down the law of the land:
" '[R]ooted in long centuries of Anglo-American history, Hannah v. Larche, 363 U.S. 420, 490 (1960) (Frankfurter, J., concurring in result), 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 (1977). ' "
Justice Scalia also stated, that "the grand jury is an institution separate from the courts, over whose functioning the courts do not preside."
And finally, to seal the deal, Justice Scalia hammered the point home:
"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. See Stirone v. United States, 361 U.S. 212, 218 (1960); Hale v. Henkel, 201 U.S. 43, 61 (1906); G. Edwards, The Grand Jury 28-32 (1906).
Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm's length. See United States v. Calandra, 414 U.S. 338, 343 (1974"
The Court Order contradicted its first statement of "and although presentments are constitutionally permitted.." by making this statement:
"presentment by such group has no force under the Constitution or the laws of the United States."
This is wrong. The Court Order by Judge Lamberth should have stipulated without reservation that the AGJ presentments are constitutionally permitted. The Constitution did not give the Court the right to inadvertently rule on the legality of grand jury presentments.
As reaffirmed by the Supreme Court and Justice Scalia, we believe the Court must concur that the grand jury is part of the "Bill of Rights" and preserved even to this day as a basic right for "we the people" and not constitutionally set aside or granted to the Judiciary as an exclusive venue or a proprietary arm of the Court.
To get around the Constitutional issue the Court cited AGJ's non-compliance with the Rules of Criminal Procedure as the primary reason that they could reject the presentments.
Before we solve the mystery behind the Rules of Criminal Procedure lets offer the Court this review:
In the CREIGHTON LAW REVIEW, Vol. 33, No. 4 1999-2000, 821, IF IT'S NOT A RUNAWAY, IT'S NOT A REAL GRAND JURY by Roger Roots, J.D.
"In addition to its traditional role of screening criminal cases for prosecution, common law grand juries had the power to exclude prosecutors from their presence
at any time and to investigate public officials without governmental influence. These fundamental powers allowed grand juries to serve a vital function of oversight upon the government. The function of a grand jury to ferret out government corruption was the primary purpose of the grand jury system in ages past."
The Court should consider this: If the Judiciary were the only legal entity in our Country with the power to convene a grand jury, what then would preclude a Court from failing to indict a "known criminal" because of political pressure or other considerations? In other words, if the Court refused to convene a grand jury in a case where the public overwhelming demanded they do such, where is the oversight in our judicial system? There is none as the balance of power is gone.
It is our contention that the Rules of Criminal Procedure are obliged to govern a Court indictment, but not the presentments handed down by a "Constitutional Grand Jury."
An article appearing in American Juror, the newsletter of the American Jury Institute and the Fully Informed Jury Association, citing the famed American jurist, Joseph Story, explained:
"An indictment is a written accusation of an offence preferred to, and presented, upon oath, as true, by a grand jury, at the suit of the government. An indictment is framed by the officers of the government, and laid before the grand jury. Presentments, on the other hand, are the result of a jury's independent action:
'A presentment, properly speaking, is an accusation, made by a grand jury of its own mere motion, of an offence upon its own observation and knowledge, or upon evidence before it, and without any bill of indictment laid before it at the suit of the government. Upon a presentment, the proper officer of the court must frame an indictment, before the party accused can be put to answer it.' "
The Constitution is the supreme law of the land. Where in the Constitution does it say that the Judiciary must force a grand jury to subscribe to the Court's administrative rules when handing down its presentments? The answer to that question is, "no where."
Just to be sure, let's review the Rules of Criminal Procedure:
In 1946, the Federal Rules of Criminal Procedure were adopted, codifying what had previously been a vastly divergent set of common law procedural rules and regional customs. In general, an effort was made to conform the rules to the contemporary state of federal criminal practice.
Rule 7 of the Federal Rules of Criminal Procedure (FRCP):
"An offense which may be punished by death shall be prosecuted by indictment. An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment."
No mention of "presentments" can be found in Rule 7. But they are mentioned in Note 4 of the Advisory Committee Notes on the Rules:
"4. Presentment is not included as an additional type of formal accusation, since presentments as a method of instituting prosecutions are obsolete, at least as it concerns the Federal courts."
Did a Federal rules advisory committee just tell "we the people" that "presentments are obsolete?" Did a mere "note" in Rule 7 just rewrite the Constitution thereby abolishing law as ratified in Amendment 5 of the Constitution?
Amendment V of the Constitution, Bill of Rights 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.."
Most of the discussion about Note 4 to Rule 7 of the FRCP takes for granted that the common law use of "presentments" (as codified in the 5th Amendment) was made "illegal" in 1946 by this act. Nothing could be further from the truth. Note 4 does not contain language that makes the use of presentments "illegal."
Note 4 used the word "obsolete." Obsolete means outmoded or not in use anymore. The Rules of Criminal Procedure never said that Grand Jury presentments are "illegal" or "abolished."
The Constitution provides for "presentments." When the Federal Rules of Criminal Procedure were enacted they did not mention presentments, nor do they ban presentments, and if they did, such a ban would be unconstitutional, since an administrative enactment regarding procedure cannot overrule the Constitution.
The Court erred in its Order by ruling that Constitutional presentments can be barred or rejected simply because they don't comply with an administrative rule.
The Court Order refused to accept the AGJ presentments citing unconstitutionality and rules of procedure. We have respectfully argued that:
American Grand Jury has done everything in its power to be above board and forthright with the Court. We have done our part in handing down presentments and justifiably can pull from a huge amount of evidence to affirm said presentments. In order for the Court to retain credibility and power it must first serve the very people it represents with equity in justice. American Grand Jury is a qualified group of 173 people that need to be represented and heard.
So what is holding the Court back? The most famous reason is "this is not within our jurisdiction to act." Doesn't every Judge in our Nation swear an "Oath" to the Constitution? The "jurisdiction" here is the very Constitution itself, that jurisdiction alone gives every responsible Court the right to act upon the AGJ presentments. It is simply a matter of accepting the presentments, appointing a prosecutor, reviewing the evidence and proceeding toward an indictment. That is the way the Founding Fathers envisioned things to be. That is what our Constitution is all about. No one citizen or court should be above the "jurisdiction" or laws of the Constitution of the United States.
We ask that the Court and the Honorable Judge Royce C. Lamberth review our findings and apply their common sense and honesty by setting aside the "deny" Order to now allow the Court to accept our presentments. Our presentments are valid and legal. We stand ready to provide any and all evidence necessary to back up the allegations and charges within the AGJ presentments.
We humbly and respectfully await the Court's response.
Executed this 16th day of July, 2009 by Robert J. Campbell and Mack Ellis.