By Chelsea Manning
Letter from Chelsea Manning to Judge Anthony Trenga
May 28, 2019
Dear Judge Trenga,
October 16, 2019 "Information Clearing House" - During the contempt hearing on May 16, 2019, this Honorable Court directed me to take the opportunity during my confinement to reflect on my principles with respect to the institution of grand juries in the United States. This letter responds to that directive.
During the hearing, you stated that there exists “no dishonor” in providing evidence to a grand jury. You suggested that codification of grand juries in the text of the U.S. Constitution provided ample justification for this institution. In response to my suggestion of “preliminary” or “committal” hearings, you expressed skepticism over whether such publicly held hearings served the same purpose without damaging innocent people accused of crimes.
These arguments are raised frequently in discussions about the problems with grand juries. They are certainly not novel to me. Over the last decade, I frequently considered these and many other arguments while forming my opinions about the grand jury process. After spending the last two weeks reflecting on my decision not to testify before this grand jury, I wish to present my position in a more careful and complete manner than an impromptu colloquy can provide. After working with lawyers and researchers, I can also now cite specific sources that support my position.
First, I shall compare grand juries in their earliest form, including the ideals and practical problems they sought to address, to grand juries as they currently operate. Second I want to clarify that while my objection to grand juries emphasizes their historical use against activists, I also view grand juries as an institution that now undermines due process even when used as intended.
The drafters of the U.S. Constitution, despite their many flaws, possessed a sophisticated understanding of modern political theory. The framers did not set out to short-circuit due process protections. Obviously, to a contemporary reader, we now understand the many flaws and compromises in the Constitution, and see some as inherently cruel and indefensible: legal human slavery; the legalizing of subordinate civil status for women; segregation; and the disenfranchisement of those who did not own land come to mind.
Some such practices might have struck contemporaries of the Constitution as “normal” or “necessary,” but with the passage of time, and through the tireless work of millions of people taking bold and dangerous action, they are now obsolete. I am certainly not alone in thinking that the grand jury process, which at one time acted as an independent body of citizens along the lines 2 of a civilian police review board, slowly transitioned into the unbridled arm of the police and prosecution in ways that run contrary to the grand jury’s originally intended purposes. (1)
The 5th Amendment provides many of our most cherished procedural safeguards, concepts foundational to our criminal legal system, including ‘due process,’ a prohibition on double jeopardy, and the right against compelled self-incrimination. The grand jury is also enshrined in the fifth amendment, however, prior to the recent publicity surrounding the Mueller investigation, most Americans only knew two things about the grand jury.
First, people hear that a grand jury could indict a ham sandwich. Early grand juries acted independently, as investigations by citizens. Now, the grand jury process means the prosecutor decides what the grand jurors see – and what they don’t see. The grand jury imagined by the drafters of the fifth amendment – which did not involve a prosecutor – bears no resemblance to what we see today, where more than 99.9% of indictments sought are granted.
Second, we learn another, more sinister thing about grand juries: they don’t indict law enforcement. For example, in Dallas over a stretch of several years, more than 80 police shootings came before grand juries. Only one returned an indictment. (2) Grand juries have protected police officers since the slave patrols. They were used to indict abolitionists, but not people capturing and re-enslaving people seeking freedom from bondage. They were used to indict reconstructionists, while actively protecting lynch mobs. Both the ‘ham sandwich’ statement and selective indictment happen because of grand jury secrecy.
Also, a prosecutor’s presentation of a case is shaped by their own ideas and goals. There does not need to be any misconduct or bad intent on the part of a prosecutor to influence the grand jurors in a way that destroys their independence. If you look at legal scholarship about the history of the grand jury, you can see how today’s grand juries are unrecognizable from English and early American ones. The original grand jury was more than an investigator; they were supposed to protect citizens not just from unjust indictments but from unjust laws. In England, grand jurors who even allowed a prosecutor to come into the grand jury room were seen as having violated their oath. (3)
I am positive that the founders never intended the grand jury to function like those we see today. If grand juries were actually independent bodies that nullified unjust laws or their unjust application, to determine whether it was really in the public interest to decide who should be made “infamous” under the law, I would feel differently. Reading the history of grand juries, I have read of how during the American Revolutionary war, grand jurors refused to indict tax resisters against the crown, because while it was technically illegal, the grand jurors recognized that what made it a criminal act was a law imposed by an authority that most of them by that time did not recognize (4). Nonetheless, the grand jury once provided a modicum of due process, at least to the class of people to whom due process was made available.
In 2019, the federal grand jury exists as a mockery of the institution that once stood against the whims of monarchs. It undermines the Fourth Amendment’s protections against unreasonable search and seizure, and the Fifth Amendment’s guarantees of due process. Today’s grand juries do not safeguard such fundamental rights, and they are easily subject to abuse.
Secret proceedings lend unearned legitimacy to prosecutorial decisions that protect the powerful against accountability and over-punish the marginalized. It is not surprising that members of the defense bar are generally unsupportive of grand jury proceedings. Even the Department of Justice released a report acknowledging that “grand juries are notorious for being ‘rubber stamps’ for the prosecutor for virtually all routine criminal matters.” (5) Moreover, because prosecutors can compel people to show up and testify or produce documents to the grand jury without having to show probable cause, their unmonitored subpoena power functions to let them side-step the Fourth Amendment’s protections against unreasonable searches and seizures.
Imagine a world in which you were not a judge and were not connected to judges and prosecutors personally. If you or a loved one has charges brought before a grand jury, charges of which you or they were innocent, would you believe for one moment that the grand jury might not indict? What rights, specifically, would you consider safeguarded by the fifth amendment’s provision for a grand jury? Consider that it is more than six times as likely that you will be struck by lightning than that a federal grand jury will decline to indict. I object to grand juries even when used in the ways that are typically understood to be legitimate.
The ability of grand juries to be abused or used for political ends is entrenched and perpetuated by the fact that jeopardy doesn’t attach with a grand jury, so prosecutors can repeatedly bring the same changes. Even though there are some laws that say prosecutors must either show they have new evidence or that it is in the public interest to extend or reconvene a grand jury, this is hardly an obstacle. For instance, Thomas Jefferson had to convene three separate grand juries in order to indict Aaron Burr for sedition – but he was able to continue to convene those grand juries until he obtained that indictment.
Additionally, in the Antebellum South, grand juries routinely indicted anti-slavery activists for sedition, while those in the North sometimes refused — but charges would re-presented to new grand juries until they stuck. In 1968, a San Francisco Grand Jury was asked by Mayor Alioto to investigate the Black Panther Party. They refused, and the foreman gave a press conference about political overreach. Unfortunately, in 1969, a new grand jury began an investigation.
These examples run to the political, but grand jury shopping is something that can be done with any kind of case. Grand juries can also be used to coerce defendants to give up their trial rights and take pleas, both by threatening to indict for more severe charges than are warranted (which we know can be done easily), or by threatening to call a defendant’s loved ones before a grand jury as witnesses. The very threat of the secret proceeding is in itself terrifying to people. The secrecy of grand jury proceedings fuel paranoia and fear, running contrary to our ideals of open courts and stoking our disdain for secret testimony. I find, when I explain the secrecy of grand juries, people are often truly shocked that they are constitutional, and frequently compare them to the Court of Star Chamber.
The Court of the Star Chamber existed in England from the 15th to 17th centuries. This court lacked the same procedures as normal courts, and often pursued political and religious dissidents, and others who “sinned” against the crown. It lacked evidentiary standards and proceeded on rumor and hearsay. It imposed all kinds of arbitrary punishments, except the death penalty. In 1641, Parliament abolished the Court of Star Chamber as a dangerous relic of the past for its brutality and capriciousness. The grand jury was once a progressive and protective replacement for things like the Star Chamber, but in its current incarnation it bears far more resemblance to the Court of the Star Chamber than to its intended role as a bulwark against arbitrary state power. Apart from the fact that the grand jury itself does not impose punishments, the biggest difference between the grand jury and the Court of the Star Chamber is that Star Chamber proceedings were in fact largely open to the public.
I am not alone in objecting to the grand jury as a dangerous relic that has evolved in ways that increase its power without increasing its protections. This is not even a partisan issue. For instance, even the Cato Institute has made statements critical of the grand jury:
Prosecutors defend their actions by reminding everyone that legislators have approved the procedures. Legislators defend what they have done by reminding everyone that the courts have approved the procedures. Judges defend what they have done by reminding everyone that prosecutors and legislators are free to do otherwise—and that the people seem content since they have not revolted against the elected officials who run the system. Citizens, in turn, too often assume that someone in the government is looking out for their welfare, including their constitutional rights. No one takes responsibility for the fact that constitutional rights are slipping away. (6)
During the hearing on the 16th, you pointedly asked me whether I had taken an oath to uphold the constitution. What is more important than my willingness to blindly follow that document is my commitment to its general principles of due process and fundamental rights. I refuse to participate in a process that has clearly transformed into something that violates the spirit if not the letter of the law. Since I reject the grand jury process, I am totally ready to propose alternatives to it and point out that such alternatives already exist.
Only two common law systems of justice use the grand jury: the United States and Liberia. Even within the United States, half of the states have dispensed with the use of grand juries. While they reliably end with indictments, they do not reliably end with justice. While the grand jury is anomalous in the world, other countries are nevertheless able to prosecute people, demonstrating that there are alternatives to the grand jury.
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