Today in Supreme Court History: June 5, 1916

6/5/1916: Justice Louis Brandeis takes the oath.

Justice Louis Brandeis

Comments

[Dan Schiavetta]

Coleman v. Miller, 307 U.S. 433 (decided June 5, 1939): there is no time limit on states ratifying proposed Constitutional Amendments (here, a Child Labor Amendment) unless Congress has set a deadline

Henderson v. United States, 339 U.S. 816 (decided June 5, 1950): segregated dining cars in trains (different tables, with partition) violated Interstate Commerce Act (plaintiff had been told to take dinner in his cabin because the “reserved for blacks” tables were partly occupied by whites)

Hernandez v. Commissioner, 490 U.S. 680 (decided June 5, 1989): payments to Church of Scientology for training sessions are not deductible “charitable contributions” because services were received (“quid pro quo”)

Honeycutt v. United States, 581 U.S. 443 (decided June 5, 2017): brother who was co-conspirator in selling huge quantities of iodine crystals which they should have known were used to make meth not jointly liable for forfeiture of profits gained from sales because he had no ownership interest in the hardware store and received no direct income from them

Castillo v. United States, 530 U.S. 120 (decided June 5, 2000): additional “machine gun” language in statute criminalizing use of firearm while committing violent crime was an element of the crime and not a sentencing factor (same holding on slightly different facts in O’Brien, 2010, see May 24)

United States v. Jin Fuey Moy, 241 U.S. 394 (decided June 5, 1916): statute imposing registration and tax requirement on prescription of opium did not apply to defendant who was not among class of persons required to register

Cubbins v. Mississippi River Comm’n, 241 U.S. 351 (decided June 5, 1916): suit against commission for damages as to flooding of riverside property caused by construction of levees dismissed as barred by sovereign immunity (of the United States) which had created the commission

Zedner v. United States, 547 U.S. 489 (decided June 5, 2006): bank fraud defendant not bound by permanent waiver of right to speedy trial which judge encouraged him to sign early on

Stump v. Sparkman, 435 U.S. 349 (decided June 5, 1978): dismissing suit against judge who granted mother’s petition to have her daughter’s tubes tied and she underwent procedure being told it was an appendectomy; judge committed “grave procedural error” but was immune from suit because he did have jurisdiction over the petition

Troxel v. Granville, 530 U.S. 57 (decided June 5, 2000): State of Washington statute allowing “any person” to petition for visitation rights “at any time” without showing of parental malfeasance interfered with parent’s Due Process right to raise child (grandparents wanted to visit their deceased son’s children -- he had died by suicide -- but the mother wanted only “one short visit” per month -- there’s more to this story!)

[apedad]

What's the rest of the story in Troxel?

Seems like a pretty dry decision.

[SMP0328]

How about Stump v. Sparkman? Why did the mother want her daughter's tube tied?

[not guilty]

The full text of the mother's state court petition appears at footnote 1 of the SCOTUS opinion.

The mother alleged that the daughter was "somewhat retarded" and that the daughter on several occasions had left home to stay overnight with older youth or young men. The mother averred that she "believes that it is to the best interest of said child that a Tubal Ligation be performed on said minor daughter to prevent unfortunate circumstances to occur and since it is impossible for the affiant as mother of said minor child to maintain and control a continuous observation of the activities of said daughter each and every day."

The Circuit Judge approved the petition the same day in an ex parte proceeding without a hearing and without notice to the daughter or appointment of a guardian ad litem. The operation was performed shortly thereafter, the daughter having been told that she was to have her appendix removed. About two years later, she was married, and her inability to become pregnant led her to discover that she had been sterilized.

[Mr. Bumble]

Thank goodness the mother didn't seek a lobotomy like Joe Kennedy did for his daughter.

[John F. Carr]

I remember a case where a magistrate issued a search warrant for a woman's vagina on flimsy evidence (an informant heard a rumor that she kept drugs in there). In the ensuing lawsuit the Supreme Judicial Court of Massachusetts felt obliged to rule for the defense but said, prospectively, that such warrants should only be issued by judges. I would hope that Indiana also tightened its procedures for sterilization orders.

[Michael P]

Jin Fuey Moy had another trip to the Supreme Court four years later, also for morphine offenses, that did not end so well for him, in an opinion written by one of the dissenters to the 1916 case: https://www.law.cornell.edu/supremecourt/text/254/189

[Dan Schiavetta]

Thanks

[Bob from Ohio]

A random guy had two Supreme Court cases about him! I imagine that is very rare.

[The Margrave of Azilia]

"Coleman v. Miller, 307 U.S. 433 (decided June 5, 1939): there is no time limit on states ratifying proposed Constitutional Amendments (here, a Child Labor Amendment) unless Congress has set a deadline"

IIRC the decision was that Congress, not the courts, got to decide issues about deadlines. Opponents of the proposed amendment wanted the courts to decide but the Supremes basically said it was a political question.

[Mr. Bumble]

Has the court ever weighed in on a state rescinding the ratification on an amendment or is that a question that has yet to come before it?

[The Margrave of Azilia]

I believe the Coleman doctrine is that Congress decides.

I think there was a question there about a legislature ratifying after previously rejecting, and the court refused to pass on that question. So if it was vice versa, with the approval preceding the rejection, that should also be up to Congress to adjudicate.

[John F. Carr]

The primary responsibility for deciding whether an amendment is ratified lies with the official delegated the responsibility. It's somebody you've never heard of, not the Secretary of State or President of the Senate personally. As far as I know the judgment of that official has never been overturned. In the old days the decision to accept the 16th Amendment was upheld even though not all states ratified identical text. A recent case declined to issue a writ of mandamus to certify the ERA as adopted.

[Krayt]

Amendment approval should be open and obvious to all, no decisions necessary.

If you have to go to court over some squirrely thing, it’s already a failure. The idea of lawyers fighting in court to get an amendment approved is already idiotic. There can be no confidence of the people they aren’t being had.

[David Nieporent]

If there's a dispute over whether an amendment was properly ratified, who decides whether that dispute has merit?

[Bob from Ohio]

Archivist of the United States, head of the National Archives.

[I just confirmed but knew already from the ERA case.]

[John F. Carr]

I think it used to be a different official in the Senate.

[Bob from Ohio]

According to wikipedia:

"Before the enactment of that statute in 1984, that duty was vested in the General Services Administration, and, before the establishment of that agency in 1949, it formed part of the duties of the United States Secretary of State."

[Dan Schiavetta]

Indeed. The 13th Amendment (abolishing slavery) came into effect only on December 18, 1865, upon the declaration of Secretary of State William H. Seward. By that time, the only legal slaves were in Delaware, Kentucky and Missouri, none of which had rebelled in the Civil War.

[Mr. Bumble]

Warning: Thread Hijack:

The Rev. Kirkland's favorite law professor has been granted permission to enter an oral argument in the Trump document case hearing set for June 21.

PAPERLESS ORDER granting Motions for Leave to Participate in Oral Argument as Amici Curiae 590 598 601 . The representatives designated in the respective filings (Josh Blackman, Gene C. Schaerr, and Matthew Seligman) will be permitted to appear on behalf of amici curiae and present oral argument at the June 21, 2024, hearing on Defendant Trump's Motion to Dismiss the Indictment Based on the Unlawful Appointment of Special Counsel Jack Smith 326 . Approximately 30 minutes reserved for each. Seating to be reserved for representatives presenting argument. Signed by Judge Aileen M. Cannon on 6/4/2024. (jf01) (Entered: 06/04/2024)

[not guilty]

Professor Blackman's amicus brief, https://storage.courtlistener.com/recap/gov.uscourts.flsd.648653/gov.uscourts.flsd.648653.410.2_3.pdf , is weak tea. Assuming arguendo that the appointment of the Special Counsel is somehow problematic, the Blackman brief (like Donald Trump's motion to dismiss) cites no authority whatsoever indicating that dismissal of the indictment is an available remedy for any irregularity or deficiency in the appointment of the Special Counsel.

Jack Smith did not indict Donald Trump; the grand jury for the Southern District of Florida indicted Donald Trump. The Blackman brief concedes (p. 27) that the prosecution could go forward under the auspices of the United States Attorney for the Southern District of Florida:

Going forward, these Appointment Clause issues can be obviated only if this prosecution proceeds in the regular course under the supervision of the duly-nominated, confirmed, and appointed United States Attorney for the Southern District of Florida. There is no question that such a prosecution would be valid under the Supreme Court's Appointments Clause jurisprudence.

[Kazinski]

Why is it weak tea when its not making the argument you are criticising?

[not guilty]

Trump's motion requests dismissal of the indictment, as does Blackman's brief. The failure to cite legal authorities in support of that proposed remedy is quite a glaring omission.

[Commenter_XY]

The weak tea was evidently strong enough for a District Court judge to sip, NG. And to be fair, these issues have never been litigated before, have they? Meaning, a president being prosecuted for possessing classified docs in their home.

You say it is dilatory tactics by Judge Cannon. Others think differently.

[David Nieporent]

The weak tea was evidently strong enough for a District Court judge to sip, NG.

The same judge who previously in the case invented an entirely new rule for search warrants that the 11th circuit said was not only loony, but was utterly without jurisdiction to hear at all.

Meaning, a president being prosecuted for possessing classified docs in their home.

You mean a former president. And the prosecution isn't for possessing them, but for refusing to return them and then lying about it and covering it up.

[Dan Schiavetta]

+1

[bernard11]

XY trying for his titanium MAGA card.

[Noscitur a sociis]

Meaning, a president being prosecuted for possessing classified docs in their home.

The nature of the case has absolutely nothing to do with this issue. And many, many people have been prosecuted by special counsels appointed with exactly the same authority as Smith. (One such person is being tried in Delaware right now!)

[David Nieporent]

And many, many people have been prosecuted by special counsels appointed with exactly the same authority as Smith. (One such person is being tried in Delaware right now!)

Yeah, but Weiss, as USA, was Senate-confirmed, so he's in a different category than Smith.

[Noscitur a sociis]

I'm not sure that matters for Prof. Blackman's argument. His main point (as I understand it) is that "special counsel" isn't an office, so the people appointed as ones aren't officers. If you buy that, I'm not sure that Weiss happening to hold a different office would make things any better.

[bernard11]

Others think differently.

Others are wrong. You are being duped.

[David Nieporent]

Because it's being made in support of that argument. If dismissal is not the appropriate remedy (and as both ng and I (and I think a couple of other lawyers here) have been saying for months, it isn't), then this is all just Cannon doing her level best to delay the case yet again.

There's no need for amicus briefs, no need for oral argument on the underlying motion, and certainly no need for amici to be allowed to argue — something which is essentially unheard of at the district court level.

[Kazinski]

I’d say a prudent judge is going to at least take a look at an issue that was brought up, about her case specifically, at the Supreme Court during oral arguments.

And how is Cannon delaying the case? Was she going to schedule Trump’s trial between the May 31 NY verdict, and the July 11 sentencing?

Its the sound and the fury of the NY trial and resulting conviction that locked up the calendar in Florida.

[SRG2]

And how is Cannon delaying the case?

https://thehill.com/regulation/court-battles/4649910-cannon-indefinitely-postpones-trumps-mar-a-lago-documents-trial/

[Kazinski]

Well thanks for supporting my argument that the delays are due to Bragg's Manhattan extravaganza:

"Judge Aileen Cannon has indefinitely postponed former President Trump’s Mar-a-Lago documents case, punting some court dates into late July while declining to set a trial date.

"The Tuesday order — issued less than two weeks before Trump’s trial was still on the books to kick off on May 20 — leaves unclear when Trump’s case will ever come before a jury."

How was Trump's trial supposed to start May 20th when he was on trial in NY and had to be in court from when Jury selection started 2nd week in April, and didn't finish until the last day of May?

And now how is she supposed to shoehorn his trial now before sentencing July 11th in just 5 weeks?

Seems to me Bragg is the one responsible for pushing the earliest possible date for a trial to the end of summer.

[David Nieporent]

Again, the NY case went to trial in April because Cannon had already made it impossible for the Florida case to start on time. (Merchan — not Bragg — set the NY trial date.)

But again, Cannon has failed to set a new trial date in Florida. You can't start a trial on 5 minutes' notice, so even when Cannon finally rules on all outstanding issues, it would likely take months for the trial to start. On the other hand, let's say that she had said last month, "Well, the May date is off; trial will start on August 1." Then it could start on August 1, provided she didn't make any wacky rulings that needed to be appealed.

[Kazinski]

All good points David.

But I should hope its becoming apparent to you that the lawfare "tie Trump up in court for all of 2024" has failed:

Braggs NY trial is over, except for sentencing, and then either Trump gets a suspended sentence, or Merchan overreaches and drives Trump's campaign even higher in the polls. If Trump is ordered to jail, that might be a good time for Cannon to schedule his trial and demand his presence in Florida.

The Georgia Trial is off until after the election, since Trumps appeal won't be argued until October. I guess the fix was in at the appeals court there too.

God knows what's happening on the DC trial, not peep from scotus, and a remand is possible that could drag things out further. Then Chutkan will probably get in line behind Cannon, although Smith could ask Cannon for a delay, or even dismissal to open a path for Chutkan's Hail Mary.

5 more months until the election and for the next 2 months at least any progress is dead in the water.

[bernard11]

the lawfare “tie Trump up in court for all of 2024” has failed:

Shorter Kazinski: Trump should never be held accountable for his actions, no matter how blatantly criminal.

As for the failure of the legal strategy, well, having a judge in your pocket, or your cult, sure helps you fight those strategies.

[Kazinski]

Maybe they should have started the indictments in 2021 instead of 2023.

All of the "crimes", except the Florida case were for crimes committed by Jan '21, yet they had to have their Jan. 6th show hearings to prepare the space, then wait to see whether Trump would run, then try to time the indictments so they would take up 6 months of the '24 campaign season.

They shot themselves in the foot.

[David Nieporent]

This case could've already gone to trial if Cannon hadn't been dragging her feet on everything. If it had, the NY one would've had to wait. But Cannon keeps entertaining silly issues, setting long briefing schedules, scheduling oral argument, and then never issuing rulings. And let's not forget that she has refused to even schedule a new trial date.

Just from today:

Cannon has reorganized her late June schedule of hearings.

6/21 - daylong hearing on lawfulness of Smith's appointment under Appointments Clause
6/24 - morning hearing on lawfulness of Smith's appointment under Appropriations Clause
6/24 - afternoon hearing on Smith's motion to modify Trump's conditions of release
6/25 - hearing on Trump's motion to suppress information found in MAL search warrant execution, as well as attorney-client information disclosed under crime fraud exception

The three day evidentiary hearing regarding Trump's motion to compel discovery has been cancelled (for now).

https://x.com/BradMossEsq/status/1798386774076498239

[Bob from Ohio]

Cry more David.

Supreme court auditions require extraordinary efforts!

[Kazinski]

Its absolutely clear that Trump isn't available for trial until after his Jul 11th sentencing in NY.

Smith and Bragg should have worked that all out, in fact they probably did.

[David Nieporent]

Smith and Bragg should have worked that all out, in fact they probably did.

You understand that judges, not prosecutors, set trial dates, right?

[Kazinski]

I understand prosecutors time their own motions, let the court know their preferences and when they think they will be ready for trial.

I hope you aren't going to tell me that prosecutors have no influence whatsoever on when trials are scheduled?

[SRG2]

I hope you aren't going to tell me that Smith and Cannon worked together on hearing and trial dates.

[Bob from Ohio]

"prosecutors have no influence whatsoever on when trials are scheduled"

Some have a lot of influence.

"BREAKING: Appeals court halts Trump's Georgia election case while appeal on Willis disqualification pending." AP

[Kazinski]

Ouch.

[Mr. Bumble]

As I've said before: ...to be continued.

[Mr. Bumble]

…and on another note:

Judge William Pryor has indicated the the 11th Circuit will not entertain meritless lawfare attempts to have Judge Cannon removed from this case.

[not guilty]

"Judge William Pryor has indicated the the [sic] 11th Circuit will not entertain meritless lawfare attempts to have Judge Cannon removed from this case."

When, where and in what context did Judge Pryor make that statement? Please link to original source material.

Even if your characterization of what the Chief Judge said is correct, it says nothing about meritorious attempts to have Judge Loose Cannon removed. It is eminently foreseeable that Cannon, who has been reversed twice by the Eleventh Circuit at the investigatory stage of this prosecution, will make at least one boneheaded pretrial ruling in Donald Trump's favor which will be subject to an interlocutory appeal by the government. The prosecution will likely request that the appellate court order reassignment to a different judge upon remand.

In other cases where that court has reversed the same district court multiple times in the same case, the Court of Appeals has ordered that upon remand the matter be reassigned to a different judge. United States v. Plate, 839 F.3d 950, 958 (11th Cir. 2016); United States v. Gupta, 572 F.3d 878, 892 (11th Cir. 2009); United States v. Martin, 455 F.3d 1227, 1242 (11th Cir. 2006); United States v. Remillong, 55 F.3d 572, 577 (11th Cir. 1995); United States v. Torkington, 874 F.2d 1441, 1447 (11th Cir. 1989) (per curiam); United States v. White, 846 F.2d 678, 696 (11th Cir. 1988).

[Mr. Bumble]

Don’t have time to be your researcher but quick search returned:
https://www.msn.com/en-us/news/politics/judge-rejects-orchestrated-campaign-to-remove-trump-appointed-judge-from-classified-docs-case/ar-BB1nuTFx

[Magister]

The order itself:

https://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/GeneralOrder2024-J.pdf

[Bob from Ohio]

He's just being pedantic. Pryor did not use those exact words so no one can draw any conclusion this dolt disagrees with.

[not guilty]

Bob, I routinely link to original source materials out of respect for other commenters, who can check my work in real time. Citation of actual legal authorities is a skill that some of us learned in law school. It's too bad that you missed out there.

[Magister]

A link to the order was the first result I got when I searched on the sentence not guilty quoted (but omitting the final three words, from this case, and not quoted); Google helpfully corrected "the the" to "that the". Bumble's search may have been influenced by previous search history which led to a National Review article.

[Mr. Bumble]

Whatever. Obviously it was easy enough to find.

[Magister]

Sure, easy enough for a non-Bumble.

(It's linked in the article Bumble posted; what, didn't want to read past the headline?)

[Mr. Bumble]

So what was NG's problem?

[Magister]

Maybe that you originally didn't provide context or any link at all; maybe not wanting to read a National Review article in the hope that it will provide an actual link to what Judge Pryor actually stated.

[Mr. Bumble]

Maybe, maybe, maybe. Maybe just a prick?

[Bob from Ohio]

"Maybe just a prick?"

Occam's Razor

[Kazinski]

You'd think anyone familiar with Google could find it if he tried, but next time he should ask chatgpt, that should clear things up.

[not guilty]

Thank you for the link, Magister. To no one's surprise, the order says nothing like what Mr. Bumble described.

As the order recites, "Many of the complaints against Judge Cannon request that the Chief Circuit Judge remove her from the classified-documents case and reassign the case to a different judge. But neither the Chief Circuit Judge nor the Judicial Council has the authority to take this action under the Rules for Judicial-Conduct and Judicial-Disability Proceedings."

If and when Judge Loose Cannon makes a ruling in favor of Donald Trump that is subject to a pretrial appeal, all bets are off regarding reassignment upon remand.

[David Nieporent]

When, where and in what context did Judge Pryor make that statement? Please link to original source material.

What he's talking about is that a bunch of fucking morons are performatively filing purely form grievances against her. They're not involved in the case and have no knowledge other than what's already in the public domain. They're treating the grievance process like a change.org petition, basically. And Pryor is saying, like the famous esurance commercial, "That's not how this works; that's not how any of this works."

[The Margrave of Azilia]

After all the talk about rubber-stamp, ham-sandwich grand juries, with the legal establishment deeming their involvement a mere formality, finally we have an argument treating grand jurors as semi-autonomous, with the indictment having no necessary legal connection to the attorney who drafted it and pushed it through.

Of course, once we acknowledge the grand jury as separate from the prosecutor, we’ll have to acknowledge their right to examine the prosecution’s case and no-bill any proposed indictment which they find inadequate. How many in the legal establishment are willing to live with the possibility of grand jurors exercising an independent responsibility?

And I've discussed this before - if the putative prosecutor hasn't been duly appointed, then wouldn't an accusation made by the grand jury be, not an indictment, but an information? I thought informations had been abolished in federal procedure.

[Noscitur a sociis]

Of course, once we acknowledge the grand jury as separate from the prosecutor, we’ll have to acknowledge their right to examine the prosecution’s case and no-bill any proposed indictment which they find inadequate. How many in the legal establishment are willing to live with the possibility of grand jurors exercising an independent responsibility?

Who is disputing that they can do this?

And I’ve discussed this before – if the putative prosecutor hasn’t been duly appointed, then wouldn’t an accusation made by the grand jury be, not an indictment, but an information?

No? Why would it be?

thought informations had been abolished in federal procedure.

They have not.

[The Margrave of Azilia]

Sorry, I had meant to say presentment, not information.

OK, then, let me repeat something I previously cited from the 2004 edition of Black’s Law Dictionary, which said: “Presentments are obsolete in the federal courts.”

The same source then goes on to quote 1 Charles Alan Wright, Federal Practice and Procedure, Sec. 110, at 459 (3d ed. 1999): “With United States attorneys now always available to advise grand juries, proceeding by presentment is now an outmoded practice.”

But let us humor you and assume a grand jury issues a presentment. Would they need legal advice to do so? I was under the impression they didn’t. So they could amateurishly draft a presentment, the court would dismiss it for legal defects, and a later prosecution of the same suspect might be thrown out on double jeopardy grounds.

Is it plausible that the law actually allows this “obsolete” and “outmoded” procedure to mess up the system?

Why not confine the grand jury to its veto power over draft indictments?

[David Nieporent]

But let us humor you and assume a grand jury issues a presentment. Would they need legal advice to do so? I was under the impression they didn’t.

Correct.

So they could amateurishly draft a presentment, the court would dismiss it for legal defects, and a later prosecution of the same suspect might be thrown out on double jeopardy grounds..

No. Jeopardy does not attach for double jeopardy purposes until the trial jury is sworn in.

The reason that presentments are outmoded is because a prosecutor still has to prosecute the actual case. So if a jury goes out and issues a presentment against someone against the wishes of the prosecutor, it will necessarily go nowhere; it's basically an exercise in futility.

[The Margrave of Azilia]

Well, I'll be a monkey's uncle, it wouldn't be jeopardy after all. The govt gets "do-overs" up until the jurors get sworn.

All right, but it would still be a hassle for a defendant to have to be summoned to court for something the prosecutor isn't going to prosecute anyway, or to find out that this court appearance was meaningless because the prosecutor was going to procure another charging instrument.

I've claimed, not based solely on my own authority, that presentments are obsolete in federal court. Then I see conclusory remarks that yes, they can still be used. What's the skinny on that?

[Noscitur a sociis]

There's a little casualness with the usage, but as Black's indicates, properly speaking a presentment is not a charging document, it's a set of facts found by the grand jury with a request that an indictment reflecting them be prepared. The Federal Rules of Criminal Procedure do not contain any provision for this, and require that an indictment be signed by a prosecutor. (Not an officer, though, so kind of unavailing for Prof. Blackman's argument.) But this isn't constitutionally required as long as the indictment is found by the grand jury:

An objection is made to the indictment that it was not signed by the district attorney of the United States; but, as the indictment was found by the grand jury, and indorsed as a true bill by the foreman, and filed in open court according to law, we do not see that there is any error on that subject; certainly, none which goes to the jurisdiction of the court.

In re Lane, 135 U.S. 443, 449 (1890). And an irregularity with the signature under the rule is generally not ground for dismissing an indictment, including the signer's inability to act. See Kelley v. United States, 989 F.3d 67 (1st Cir. 2021) (indictment signed by AUSA whose license was suspended).

[The Margrave of Azilia]

This is very interesting.

The Kane case seems to precede the current rule.

The Kelley case doesn't seem self-evidently right, to put it mildly. If he can't function as a lawyer, he can't function as a prosecutor, ergo a document signed by him isn't signed by a prosecutor, right?

[The Margrave of Azilia]

I note that when I said

"How many in the legal establishment are willing to live with the possibility of grand jurors exercising an independent responsibility?"

you replied

"Who is disputing that they can do this?"

Who is claiming they can't? I'm just suggesting that they generally *don't,* but if the system respects the grand jurors as independent actors like the commenters suggest, then there should be more exercises of independent judgment like they're authorized to do.

[Dan Schiavetta]

Charles Alan Wright!

I’m old enough to remember his late-career involvement in the Watergate case. It wasn’t pretty.

It was like watching Steve Carlton pitch in 1988.

[Noscitur a sociis]

I’m just suggesting that they generally *don’t,* but if the system respects the grand jurors as independent actors like the commenters suggest, then there should be more exercises of independent judgment like they’re authorized to do.

I'm not sure how that follows. Isn't the grand jury indicting close to 100% of the time exactly what you'd want to see if the system were functioning well?

[The Margrave of Azilia]

"Isn’t the grand jury indicting close to 100% of the time exactly what you’d want to see if the system were functioning well?"

In a system of completely honest and competent prosecutors who are free from mistakes, then of courses there should be 100% indictments.

How do you account for the near-100% rate in the system which exists on *this* planet?

[bernard11]

Isn’t the grand jury indicting close to 100% of the time exactly what you’d want to see if the system were functioning well?

I don’t think so. Wouldn’t that mean prosecutors weren’t bringing enough cases to the Grand Jury?

I mean, in some abstract sense where they were never wrong, that might hold, but in the actual, human, error-prone, probabilistic world we live in, they are going to make mistakes. A 100% success rate – zero false positives* – means too many false negatives.

More simply, they are not bringing enough cases.

(*By “false positive” I mean a case where the grand jury does not indict, and by “false negative” one where the prosecutor fails to bring a case that owuld lead to an indictment if brought. IOW, it’s the prosecutor, not the jury, who gets the false positive or negative.)

[David Nieporent]

I’m not sure how that follows. Isn’t the grand jury indicting close to 100% of the time exactly what you’d want to see if the system were functioning well?

Not at all. A grand jury is an investigative body. It should investigate and decide that some people should be prosecuted for something and some shouldn't.

[David Nieporent]

if the putative prosecutor hasn’t been duly appointed, then wouldn’t an accusation made by the grand jury be, not an indictment, but an information?

No. As I previously explained, grand juries are constituted by courts, not prosecutors, and operate under the former's authority. Grand juries can issue indictments entirely without the involvement of a prosecutor if they want. (Though of course it wouldn't go anywhere if the prosecutor didn't run with it, but that's unrelated to the validity of the indictment itself.)

Of course grand juries generally do not operate that way, but it's a formalist response to a formalist argument.

[The Margrave of Azilia]

"Grand juries can issue indictments entirely without the involvement of a prosecutor if they want."

Wouldn't that be called a presentment?

[David Nieporent]

Yes, that is the technical terminology. Doesn't change the point about the necessity of the prosecutor's role, though.

[The Margrave of Azilia]

There seems to be some disagreement on whether federal grand juries can do presentments.

On the one hand Black’s Law Dictionary and Wright’s Federal Practice seem to indicate that federal grand juries no longer do this.

On the other hand, commenters assert the continued legitimacy of federal presentments, citing no authority except themselves.

[not guilty]

A charging instrument found by a federal grand jury on its own initiative, without input from a prosecuting attorney, is known as a presentment. That method of charging has fallen into disuse in federal criminal practice.

A criminal information bypasses the grand jury and is drafted by the prosecutor. It is most often used when there is an agreement between the prosecution and the defense as to what offense(s) will be charged and the defendant affirmatively waives his right to grand jury proceedings.

[The Margrave of Azilia]

“That method of charging [presentment] has fallen into disuse in federal criminal practice.”

That’s what I was getting at.

Again, I’m sorry I said “information” and not “presentment.” Once more, I was wrong on the Internet.

So, what happens if a grand jury tries to revive the practice of presentment which has fallen into disuse?

[Commenter_XY]

So wait, a grand jury can just go off and indict any schmoe they want, independent of a prosecutor. And that is presentment.

What stops an upstate NY grand jury from indicting Alvin Bragg for some bullshit charges, independent of a prosecutor?

Why would this practice fall into disuse? Was it abused?

[David Nieporent]

What stops an upstate NY grand jury from indicting Alvin Bragg for some bullshit charges, independent of a prosecutor?

What stops a cop from Idaho from flying to New Jersey and arresting you for some bullshit charges?

[Commenter_XY]

Lack of jurisdiction? = stops the ID cop

Why did presentment fall into disuse?

[Magister]

I can see various reasons why, just from the information in these comments.

1. The presentment goes nowhere if a prosecutor doesn't prosecute it, and many prosecutors would balk at bullshit charges. (The ones who wouldn't would probably ask a grand jury for the bullshit indictment, so no presentment needed.)
2. Since "grand juries are constituted by courts", there is presumably somebody overseeing it, like a judge, who might also balk at bullshit charges (since I haven't seen all the Law and Order episodes, I don't know if a judge could spontaneously dismiss the charges without a motion from the defendant to do so).
3. Grand jurors, like other jurors, are presumably charged with doing the job properly and mostly take that seriously; you'd need a grand jury with enough nutcases to go there.
4. If the charges aren't bullshit, then probably a prosecutor would already want to request an indictment, so presentments are less likely for non-bullshit charges.

[The Margrave of Azilia]

I'm interested in the claim that presentments still exist in the federal system.

[Magister]

Why? Do you want to talk a grand jury into issuing one, or just to prove someone wrong about the matter?

[not guilty]

Presentments are still available in some states. I recall a former client who went before a grand jury on her own initiative and obtained a presentment charging her ex-husband for perjury because his income tax filings reflected income far in excess of what he swore to in child support proceedings. The DA declined to go forward on the presentment.

Even after presentments had fallen into disuse in the federal system, SCOTUS continued to recognize the validity thereof as a charging instrument. See, Hale v. Henkel, 201 U.S. 43, 61 (1906):

While presentments have largely fallen into disuse in this country, the practice of grand juries acting upon notice, either of their own knowledge or upon information obtained by them, and incorporating their findings in an indictment, still largely obtains.

Since both indictments and presentments are specified in the Fifth Amendment, it would seem that both remain viable methods of initiating a prosecution.

[The Margrave of Azilia]

Magister,

In reply to your polite inquiry, I’ve heard the assertion that the federal system can use presentments. I cited authorities to the contrary, to which commenters replied with statements backed only by their own authority.

Finally, ng provides some authority that federal grand juries can issue presentments, at least as of 1906, though whether this was superseded by the current rule I don’t know.

And in the precedent ng gives, they quote with approval from Blackstone:

“A presentment, properly speaking, is the notice taken by a grand jury of any offense from their own knowledge or observation, without any bill of indictment laid before them at the suit of the King, as the presentment of a nuisance, a libel, and the like, upon which the officer of the court must afterwards frame an indictment, before the party presented can be put to answer it.”

So federal practice is that you can’t be hauled into court on a presentment until the grand jury has approved an indictment based on the presentment.

Sometimes I ask questions because I want to know the answer, though to be fair this may not have occurred to magister.

[David Nieporent]

In reply to your polite inquiry, I’ve heard the assertion that the federal system can use presentments. I cited authorities to the contrary,

No, you didn't. Saying that they're "obsolete" or the like is not "to the contrary."

[Magister]

Long story short, the answer to my question is apparently to prove someone wrong on the internet.

So federal practice is that you can’t be hauled into court on a presentment until the grand jury has approved an indictment based on the presentment.

I would think that a prosecutor can take a presentment and proceed to prosecute without returning to a grand jury for an indictment; that would seem explicitly within the text of the Fifth Amendment ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury").

That not guilty posted about the same information three hours before Margrave's reply gives me additional confidence in my own conclusion. Is there a reason to think otherwise?

[Noscitur a sociis]

Why would this practice fall into disuse?

Because we have professional law enforcement agencies and prosecuting attorneys who can investigate what happened and what criminal charges are appropriate before presenting a case to the grand jury.

[Bob from Ohio]

Darn you Bumble, I want to post that.