Media Coverage and a Federal Grand Jury

were more akin to sentences, since “trial” often consisted of a harrowing
ordeal such as being “cast into the depths of the sea;” if the suspect “sank,
he was adjudged not guilty; if he swam, he was pronounced guilty.” Leroy
D. Clark, The Grand Jury: The Use and Abuse of Political Power (New
York: Quadrangle, 1975), 8. In 1164, some 500 years before grand juries
were brought to colonial America, Britain’s King Henry II established the
first known type of grand jury—not to safeguard citizens from oppression
but to wrest authority from rival feudal barons and the Church. Even the
“independent” grand juries of colonial times failed contemporary standards
of justice. “Grand juries have always served the interests of whichever
political element could control them,” one scholar wrote. “Where grand jurors’
sympathies were with the patriot faction, as in pre-Revolutionary Massachusetts,
they frustrated the Crown’s efforts to punish radicals. In other
colonies, where they were sympathetic to Royal officialdom, they served
Royal interests as well. The image of the grand jury as a shield, important
though it was in the minds of the framers of our Constitution, was based on
a mythology of sorts.” Gary P. Naftalis and Marvin E. Frankel, The Grand
Jury: An Institution on Trial (New York: Hill and Wang, 1977), 7-8. After
the American Revolution, the onetime colonists who had been spared prison
because of an independent grand jury system were shaping the laws of the
new republic. Thomas Jefferson and James Madison made sure to continue
these “people’s panels” that had previously served the patriots so well by
enshrining them in the Fifth Amendment to the Constitution. Jefferson,
however, soon learned first-hand about the limits of the grand jury system.
In 1791, the future president complained that the opposition Federalist Party
had managed to transform grand juries “from a legal to a political engine”
by encouraging them “to become inquisitors on the freedom of speech.”
Cowan, 36; Charles E. Goodell, “Where Did the Grand Jury Go?” Harper’s
(May 1973), 16; and U.S. Constitution, Amendment V.
13 Clark, 5; and Naftalis and Frankel, 11.
14 The dismissive phrase that grand juries were capable of “indicting a ham
sandwich” was coined by New York judge Sol Wachtler and later immortalized
by writer Tom Wolfe in his novel Bonfire of the Vanities. Marcia
Kramer and Frank Lombardi, “New Top State Judge: Abolish Grand Juries
& Let Us Decide,” NY Daily News (Jan. 31, 1985), 3; David Plotz, “Judicial
Restraint,” Slate.com (April 16, 1997).
15 Because of this problem, the British government, which invented the
grand jury system, abolished it in 1933, opting instead to weigh the validity
of indictments in open court. Some states in the U.S. do the same, especially
in the West, where the grand jury system often failed to take root at
the local level. In very rare instances, “runaway” grand juries still assert
themselves, wresting control of a criminal investigation away from prosecutors.
U.S. News, 19; Clark, 8; Naftalis and Frankel , 7-8; Cowan, 36-7;
and Goodell, 24, 16. See also Linda Himelstein, “Rocky Flats Grand Jurors
Seek Immunity to Tell All,” The Recorder (25 Nov. 1992), 3+.
16 Goodell, 24, 22; and Cowan, 19.
17 Clark, 73-87.
24 • American Journalism —