In The Spirit of Truth.
My name is Leo Donofrio. I have a J.D. from St. John’s University. I’ve passed three bar exams; New York, New Jersey and the Multi-State. I’ve been licensed to practice law in New Jersey and the Federal Courts for the last twenty years.
NEW COMMENTING POLICY
I put my name and professional reputation on everything I post at this blog. From now on, if you want to post here, you must be licensed to practice law. State your real name and the jurisdiction(s) you are licensed in. NO EXCEPTIONS.
The national dialogue on the legal issues discussed here has often become juvenile at best and intentionally misleading at worst. If you tried to argue on a bar examination – or law school final – that the US Supreme Court in Ex Parte Lockwood did not acknowledge Minor v. Happersett as a precedent on the definition of federal citizenship, you would fail. Yet, all over the blogosphere anonymous propaganda pushing blatant falsehoods is rampant. “NOT UP IN HERE!”
Feel free to use the comment box for submitting letters to the editor. I am always happy to hear from you and will investigate tips and links alike, but only legal peers will see their commentary published. And such commentary by fellow members of the bar will be printed in full. My responses will follow in a separate comment.
Law school is hard. Bar examinations are VERY difficult. And attorneys are also required to take continuing legal education for years after admission to the bar.
While I appreciate the love and faith people have shown me in their comments, I cannot print them any longer. The analysis must stand upon its own merit as filtered through the counter-analysis of other attorneys who are willing to stake their professional reputations upon such dialogue.
Attorneys may not intentionally mis-represent the law. That is a violation of professional rules of conduct. Anonymous commenters and bloggers do not have the weight of that responsibility over them, nor are they subject to the same penalties for breaking the rules.
WE ARE THE INQUISITORS.
I am currently working on a project called OCCUPY GRAND JURY. Rather than begging the government to police itself – which is futile – why not take the power of the People back from the three branches who have usurped it from us? The Constitution provides the means by which the People are empowered to do just that. It grants those sworn in as federal grand jurors the power to institute investigations independent of the US Attorney or the Court.
So, if you wish to see elected officials held up to the truth of the law, the nation must re-educate from the ground up. That means taking back the power of “presentment”, a power granted to the People of the United States – by the People of the United States – directly in the 5th Amendment. While an insidious note was included in the 1944 revision of the Federal Rules of Criminal Procedure which labels this power as “obsolete”, the power does still exist. “Obsolete” simply means out-dated, it does not mean illegal.
THE PRESENTMENT POWER DOES NOT ENABLE CITIZENS TO FORM THEIR OWN GRAND JURIES.
Rather, the power is directly related to, and works in conjunction with, the other branches of government. That the legislative branch performed a coup d’etat over this power via the 1944 note is evident. Lower courts of the Judicial Branch have been complicit recently in upholding the usurpation along with the Executive.
But the US Supreme Court has consistently held that the power of the Grand Jury remains with the people:
“The Fifth Amendment guarantees that no civilian may be brought to trial for an infamous crime “unless on a presentment or indictment of a Grand Jury.” This constitutional guarantee presupposes an investigative body “acting independently of either prosecuting attorney or judge,” Stirone v. United States, 361 U. S. 212, 361 U. S. 218, whose mission is to clear the innocent, no less than to bring to trial those who may be guilty.” United States v. Dionisio, 410 U.S. 1 (1973).
In United States v. Williams, 504 U.S. 36 (1992), the Supreme Court stated:
“Because 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…,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) …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).”
While recent opinions in the lower courts have reinforced the Legislature’s usurpation, the Supreme Court’s decisions in the precedents cited above are paramount having been issued decades after the 1944 note. The most comprehensive discussion of presentment and the independent power of the grand jury can be found in United States v. Smyth, 104 F. Supp. 283 (1952):
“The authority to initiate independent investigations cannot be taken away without erasing the word ‘presentment’ from the fundamental law of the land.”
Justice James Alger Fee is responsible for that vital quote. In the full opinion, he chronicles the true glory of the power of the People over the grand jury. This case was decided eight years after the cancer of the 1944 Note. It is a must read for every American citizen.
It’s time that our schools added classes on the responsibility and power of citizens to serve as grand jurors. The national curriculum for high school and up should be required to include classes on the grand jury. This is the only way our nation will survive. The Constitution is a miracle of democracy. But it only works if the People exercise their Power as the fourth branch of government. That power has been usurped by the other branches. Like a table missing one leg, we cannot stand without taking this power back.
This does not mean that you may form your own grand jury lynch mobs. The Supreme Court has made clear that the power of the grand jury is in conjunction with the other branches. The Judicial branch swears the grand jury in and may end their session at will. Still, the Executive branch needs the grand jury to prosecute crime. Therefore, they must swear you in. When one is sworn in, one becomes an independent inquisitor with full power to investigate. That power must be exercised.
I am preparing a free treatise on the power of the People inherent in the Grand Jury. You may follow the progress of this movement at – http://occupygrandjury.com .
Follow me on Twitter @ParacleteEsq
Leo Donofrio, Esq.