Crossville Chronicle, Crossville, TN

April 4, 2013

SCOUT REPORT: Prosecuting ham sandwiches

By Clinton Gill
Glade Sun editor

CROSSVILLE — Unlike the modern monstrosities of legal contortionism that have become commonplace, one does not need to be a legal scholar to comprehend the meaning of the Bill of Rights. It is genius in its simplicity. The protections afforded in this covenant are self-evident, although knowing the backstories can certainly help foster a deeper understanding of why these protections are so important. Experience being the best teacher, each amendment is derived from a lesson the framers learned from history – lessons they learned so well that the United States has managed to remain the longest running constitutional republic in world history.

Last week, I began covering the origins of the Fifth Amendment, which reads as follows:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Fifth Amendment is separated into five basic clauses: the grand jury clause, double jeopardy clause, due process clause, eminent domain clause and the most commonly known self-incrimination clause. Each of these were designed to keep the government from imprisoning its enemies.

The first clause of the Fifth Amendment is known as the grand jury clause. The grand jury system originated in England as the Assize of Claredon, which was enacted by King Henry II during the 12th century. King Henry devised this system as a way to take power from the Catholic Church, while also giving him a tool to use against his political enemies. The king appointed "justices in eyre" who traveled around from town to town, summoning free men from the surrounding areas to report any major crimes in the community that they had knowledge of (robbery, theft, murder, forgery, arson, etc). These primitive grand juries only brought accusations ("She turned me into a newt!"), they did not weigh guilt or innocence. The accused would then face the traditional trial by ordeal. Trial by ordeal generally involved some unpleasant feat of survival that was more often than not to be determined by a miracle, such as walking over hot coals or retrieving a stone from boiling water – after which, the hand or feet would be wrapped and examined after three days; if God had not healed the wounds, the accused were found guilty.

Over the course of about 500 years, the system evolved into a protection against government persecution rather than one that reinforced it. Requiring a grand jury to bring serious charges became a powerful tool, so long as the jurors were independent of the court and prosecution. For example, in the previously discussed 1735 trial of John Peter Zenger ("The Germ of Freedom"), the grand jury refused to indict Zenger three times.

Today, grand juries are panels of citizens that  are supposed to serve two functions: 1) examine evidence to determine whether or not there is enough probable cause to bring charges against someone and, 2) serve as the investigative arm of the government and help the prosecution gather evidence. However, our laws have become so complicated that jurors must rely heavily on the prosecution to walk them through the process. Rather than acting as a shield against "ill-conceived or malicious prosecutions," grand juries have formed a habit of rubber-stamping whatever the prosecution brings before them. As Former New York State Judge Sol Wachtler famously noted, "Any prosecutor who wanted to could indict a ham sandwich."

The double jeopardy clause stipulates that, once acquitted, a person may not be tried for the same crime twice in criminal court. In comparison to an individual, the government has virtually endless resources. If not for the double jeopardy clause, the government could perpetually bring charges against an individual, thereby having the potential to inflict bankruptcy upon its enemies and increasing the likelihood of erroneous convictions. The double jeopardy clause does not apply to civil litigation though, since the punishment does not affect "life or limb." For example, O.J. Simpson was acquitted of the murder charges against Nicole Brown Simpson and Ron Goldman; however, he was found guilty in the civil trial, resulting in millions of dollars being paid in restitution for wrongful death.

Due process of law is a fundamental guarantee that all legal proceedings will be conducted in a fair and organized manner, and that the government cannot arbitrarily deny citizens their rights to life, liberty and property ... unless, of course, they are found to be in violation of the National Defense Authorization Act for Fiscal Year 2013, in which case they can be detained indefinitely without trial. More on that, next time.