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Legal expert doubts legitimacy of proposed grand jury

| Friday, Sept. 13, 2013, 8:12 p.m.

A group of Westmoreland County residents seeks to reinstate the county's common law grand jury to “force prosecution of criminal acts that are politically incorrect.”

Thomas Altman of Greensburg, founder of Pennsylvania Freedom Allies, has organized a common law grand jury meeting and election to be held Tuesday at the county courthouse.

A Duquesne University law professor, however, said such a grand jury would have little legal clout.

A common law grand jury acts independently of prosecutors in its investigations. It has subpoena power and can bring what is called a presentment to a prosecutor, as referenced in the Fifth Amendment.

In 1946, however, the Federal Rules of Criminal Procedure were established, and they appear to do away with, or at least ignore, the common law grand jury model, stating that “presentment is not included as an additional type of formal accusation, since presentments as a method ofinstituting prosecutions are obsolete, at least as concerns the federal courts.”

Altman said groups in other counties, including Allegheny County, have held meetings and elections to reinstate their respective common law grand juries.

But even public meetings and elections are unlikely to provide such grand juries much legitimacy in court, said Duquesne University School of Law associate professor Wesley Oliver, director of the criminal justice program.

“That process has now been replaced with a very formal procedure by which the clerk of the court determines who's going to be on the grand jury,” Oliver said. “Whatever the mechanism used to be for convening of a common law grand jury, it's now been replaced, so I don't think they'd have any legitimacy at all.”

Unless common law grand juries are officially granted legitimacy by the courts, prosecutors offered presentments or individuals subpoenaed by these self-formed grand juries would not be legally compelled to cooperate, Oliver said.

Proponents for the reinstatement of common law grand juries cite the 1992 Supreme Court case United States v. Williams, specifically Justice Antonin Scalia's majority opinion, which argues that the grand jury is a fourth arm of government independent of the three traditional branches:

“… 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,” Scalia wrote. “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.”

Altman said the Pennsylvania Constitution supports the common law grand jury model in Article I, Section 2, which reads: “All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.”

The formal meeting to reinstate the common law grand jury for Westmoreland County will begin at 7 p.m. in Public Meeting Room One of the courthouse.

Organizers will offer a presentation briefly outlining the duties and nature of the common law grand jury, followed by a question-and-answer period and a show-of-hands vote to reinstate the jury.

Attendees can register for service in the common law grand jury following the vote.

Penn Hills Progress editor Patrick Varine contributed to this article. Greg Reinbold is a staff writer for Trib Total Media.

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