The Alaska Grand Jury: The State's "Need for Process" Scam

 

On March 15th 2022, Alaskans protested outside courthouses across Alaska. They demanded the Alaska Supreme Court overrule its Order 1993 (SCO 1993). With essentially no input by members of The Alaska's Legislature's Rules Committee, the highest court had created rule 6.1 formed of whole cloth.

The Legislature’s Rules Committee reviews language with recommendations from Legislative Legal for constitutionality. That didn’t happen in this case because it was a reactionary act responding to demands of Alaskans for accountability. This new law restricts citizens’ rights to petition the grand jury to investigate into official misconduct. The subject of grand jury process has been debated for centuries, there was no need to rush. Except, the rules were changed and enacted just weeks before a subpoenaed testimony of Alaska’s lead judicial investigator Marla Greenstein, as she has had the role for nearly 35 years.

According to the Peninsula Clarion, the Kenai Peninsula Borough Assembly held a hearing with Alaska’s Deputy Attorney General for the Criminal Division of the Department of Law, John Skidmore, and Alaska’s Court System’s general counsel, Nancy Mead, were in attendance. Skidmore made clear that investigative grand juries do not investigate crime. He did so knowing active petitions for investigations have not sought for criminal charges. The requests are for investigations into how policies and procedures of official offices may need changes.

In a 1975 Alaska Judicial Council article on “tentative recommendations”. It clearly describes the grand jury process that existed at the time. Proving a process is already established for petitions for investigations, but not the due process of accused officials. According to the article, it is possible an investigative grand jury’s “probe” may result in indictments as by-products of the investigation.

Petitioners often abandon their right to damages to seek an investigation into official misconduct for the greater good. They are caring for their fellow citizens public welfare and safety. It is Skidmore that is assuming the investigations may lead to criminal charges. Begs one to question, what is he hiding?

Opposing parties are debating the use of the word “directly”. Mead claims there has never been a citizen’s right to go directly to the grand jury for petitioning an investigative grand jury. Mead appeared particularly upset that a citizen would go to the grand jurors when the Attorney General has denied petitions reaching the grand jury in the past.

The fear of a citizen reaching a sitting grand juror with evidence of official misconduct is real. By way of stranger or neighbor, a grand juror has the legal duty, obligation, to provide the materials to other jurors. And this can get out of the State’s control quickly. And it has. Hence the rush to pass SCO 1993.

According to Mead, “The (Alaska) Supreme Court took note of the fact that around the state in 2022, there were three different citizens who wanted an investigation of grand juries as allowed by the Constitution, but there were no procedures in place for where they would go and how that investigative grand jury would be conducted.”

With Mead’s reasoning, the State will need a constitutional amendment every time a grand jury needs to have an established place and time!

Assembly member Lane Chesley warned Skidmore and Mead of the fall out of making major constitutional changes to grand jury rights for what is essentially administrative housekeeping. “I just wanted to say, after listening to hours and hours and hours and hours of public testimony on this issue … that you have a real crisis of confidence in your court system here,” Chesley said. “I just encourage you to take that seriously. If I can do anything on behalf of all the people who come here to testify, it’s to share with you how serious it is, how important they take it, and how they’re really, really struggling to have their voice heard.”

This article will address the use of “directly” in law, and the argument made by Mead, that Alaska lacked a process to handle the three citizen complaints mentioned above. Also, an exposure of the real intentions of the State, among others, to replace the grand jury entirely with the use of preliminary hearings.

What is Statute Construction and Interpretation?

According to Cornell Law, statutory construction is the “process of determining what a particular statute means so that a court may apply it accurately; also known as statutory interpretation. “

A judge shall interpret laws for the laws true meaning when there is any ambiguity in the language. According to Cornell Law, “Statutory construction begins with looking at the plain language of the statute to determine its original intent. To determine a statute’s original intent, courts first look to the words of the statute and apply their usual and ordinary meanings.”

General Counsel Mead claimed there was never a right to petition a grand jury investigation “directly”. The plain language of “directly”, with no other stipulations, would be interpreted as seen in this image of Blacks Law Dictionary, 10th Edition:

The Debate of “Directly”

 “Where from the generality of terms of description or for any other reasonable doubt arises that doubt is to be resolved against the operation of the law in favor of the voter.” (Reconstruction Act, 12 U.S. Op. Attorney General, 141, 160 (1867).

According to the Rules of Statutory Interpretation, if there is an unclear statute, the courts attempt to ascertain the intent of the legislation's authors, by looking at legislative history and other related sources. A procedure for grand jury hearings and rules comes from a combination of statutes, agency regulations, and legal precedence, aka, stare decisis.

Two definitions from the Black’s Law Dictionary are often used in tandem. These include:

1. Expressio unis est exclusio alterius: A Canon of construction holding that to be express or include one thing implies the exclusion of the other, or of the alternative.

Example: The Rule that “each citizen is entitled to vote” implies that noncitizens are not entitled to vote.

2. Expressum facit cessare tacitum: This is a negative-implication of the above (1). “Expressum facit cessare tacitum is a legal maxim that means “what is expressed makes what is implied silent.”

An eloquent explanation of this concept was found during research and comes from an English judge, Sir John Laws, he stated the principles as: “For the individual citizen, everything which is not forbidden is allowed; but for public bodies, and notably government, everything which is not allowed is forbidden.” (Laws, October 2, 2017)

Statutory interpretation requires the Court to assume the intentions of the authors of a law, Therefore, we should rely on the intentions of the 55 Delegates who wrote Alaska’s Constitution. Not a single delegate opposed the following: “The Grand Jury can be appealed to directly, which is an invaluable right to the citizen.” Alaska Constitutional Convention transcript page 1328.

Lack of Process?

As said before, procedures are developed from the combination of statutes, agency regulations and stare decisis. The Attorney General Handbook delegates the authorities and duties of the position. His position is as an “intake officer”. Counsel Mead admitted the AG has received letters in the past from citizens petitioning the grand jury. The AG’s duty as a prosecuting attorney is outlined in AS 12.40.070.

According to Alaska’s Original Grand Jury Handbook, there are four ways a crime may come to the grand jury’s attention. These include:

1. The Court.

2. A prosecutor.

3. From personal knowledge, or from others.

4. By private citizens heard by the Grand Jury in formal session, with the Grand jury’s consent.

Since Alaska has held multiple grand jury investigations over the decades there has been an established process for complaints. Based on research, the most prevalent complaint for a lack of process is the “due process” of State officials. Their due process is a means to raise their own defense during grand jury investigations.

A grand jury is held in secrecy with a body of 12-18 members. In the room is supposed to be an unbiased prosecutor guiding the grand jurors through the legal process and understanding. An accused official would not know of a secret grand jury. He would not be present to give a defense. The defense may be raised after an indictment and/or investigative reports.

According to Press Books, “Due process is a concept that all persons are entitled to “procedural justice” whenever they are threatened with the loss of life, liberty, or property at the hands of the government.” The due process of accused State officials has been of utmost concern of those individuals that oppose the use of grand juries.

The State is attempting to replace grand juries with preliminary hearings that will allow an accused official to raise a defense. The double standard comes when citizens are still subject to the grand jury, while accusations of failures in policy and procedures and possible misconduct must wait for officials to receive preliminary hearings for investigations that have yet to identify any officials due their due process.

“This procedural rule is not the least bit deferential to the “anti-suspension” clause. Indeed, it mocks it…Its constitutional power shall never be suspended by the overlay of cumbersome procedures which provide for private, judicial adjudication and review of whether the report is to publish adversely reflects on someone, or otherwise violates his or her constitutional right.” (O’Leary v. Supreme Court)

Criminal Rule 6.1 created hurdles and unnecessary steps to petition the grand jury for official investigations. The rules are not “least restrictive” to further the statutes purpose of serving the public welfare and safety. The true end goal is to eradicate the use of the grand jury.

The End goal

In February, 1975, the Alaska Judicial Council released its grand jury report providing its “tentative recommendations” for the grand jury process. This report focused heavily on the lack of “due process” for the accused officials. The Supreme Court placed active OCS complaints on hold until the Supreme Court could pass the due process laws developed for the accused. According to the Peninsula Clarion, General Council for the Alaska Court System Nancy Meade openly admitted the rule changes were prompted by three active petitions.

In Eliminate the Grand Jury, Campbell argues against the use of the grand jury based on U.S. v Dionisio, Justice Stewart wrote, “[T]he grand jury may not always serve its historic role as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor….”Justice Marshall dissented the majority ruling, Marshall expressed concern that the independence of the grant jury would from then on be at risk.

Campbell recommended the transfer of the juror’s powers to the AG, or prosecutor, including decision making on subpoena powers once relegated to the grand jury. SCO 1993 put these suggestions into action. “My suggestion would encompass the transfer to the prosecutor all powers which currently belong to the grand jury. Thus, for example, the subpoena power would be lodged with the prosecuting officer. This concept insofar as it relates to non testimonial identification or evidence, has already been suggested to the Judicial Council by its Advisory Committee.”

Campbell’s perspective appears to be the importance of due process for individuals accused of misconduct or crimes. The end goal is to replace the grand jury with preliminary hearings. “A hearing to determine whether there is probable cause to proceed with the prosecution would be conducted before a judicial officer such as a magistrate. I suggest that the hearing would be adversary in nature, with the accused given the right to appear with counsel, cross-examine the prosecution’s witnesses and present evidence in his own behalf.”

In a preliminary hearing, “[w]itnesses could be examined under oath as in secret, their testimony being recorded by an official court reporter. Testimony would thus be preserved for use at trial, if necessary. Authority to extend immunity from prosecution in exchange for testimony would also be given the prosecuting attorney.”

According to the Alaska Daily News, during the impeachment of Governor William Sheffield, Jr., his chief of staff, John Shively, was given immunity to report the Governor’s questionable actions. This immunity prevented Shively’s prosecution after he admitted to throwing away evidence. A prosecutor can sadly be persuaded to give immunity to specific people that may benefit the prosecutor personally or politically.

Both sides of the grand jury’s validity agree the prosecutor’s personal and political interest might lead him to abuse his position. Those individuals that want to abolish the grand jury call for grand jury powers to be transferred to the prosecutor. In contrast, those Alaskans opposing SCO 1993 call for MORE independence of the grand jury.

Principles of Interpretation of Statutes

1. Purpose of the statute

2. Intention of law authors.

3. Is the statute capable of being implemented?

4. If a meaning of a word is clear and unambiguous the effect must be given regardless of the outcome. Also known as The Literal Rule of Interpretation.

5. The process of construction should be the combination of the literal and opposite approach.

6. If the literal construction leads to absurdity, the construction must be shifted to another Interpretation.

7. If two or more than two provisions of the same statute are conflicting with each other in that situation the court will try to construe the provisions in such a way to give the effect for both the provisions by maintaining the harmony between both the laws.

Alaska Criminal Rule 6.1(a)(3): “[T]he issue involves a matter of general importance to a large number of people rather than to an individual or small group of individuals “

“An issue that concerns primarily a private matter than one that concerns the general public is not generally an issue concerning the public welfare or safety within.”

Alaska Commentary to Criminal Rule 6.1(c)(1)(e): Subpoenas; Evidence; Proceedings:

“While conducting an investigation and preparing a report concerning the public welfare or safety as described in this rule, a grand jury may issue a subpoena to compel testimony from witnesses or to compel the production of documents only with the approval of a majority of the grand jurors, after due consideration of the reasonableness of the proposed subpoena, the necessity of the anticipated testimony or documents, and the anticipated burden on and inconvenience to the recipient of the subpoena. If the prosecuting attorney reasonably believes that a subpoena approved by a majority of grand jurors was not approved in good faith, would be unreasonably burdensome on the recipient, is not reasonable, or is not necessary, the prosecutor may, without consent from or authorization by the grand jury, inform the superior court and seek a judicial determination whether the subpoena shall issue.”

In US v. Amazon Indus. Chem. Corp., 55 F.2d 254, 261 (D. Md. 1931) discussed policy concerns with the Secrecy Rule::

(A) To prevent the escape of those whose indictment may be contemplated;

(B) To insure the utmost freedom to the grand jury in its deliberation, and to prevent persons subject to indictment or their friends from importing the grand jurors;

(C) To prevent subordination of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted by it;

(D) To encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes;

(E) To protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation and from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.”

Sources

1. O’Hara, Ashlyn. (March 15, 2023). State Officials Clarify Grand Jury Role. Peninsula Clarion. Retrieved on December 15, 2023. https://www.peninsulaclarion.com/news/state-officials-clarify-grand-jury-role/#:~:text=Investigative%20grand%20juries%2C%20he%20said,%2C%E2%80%9D%20the%20Alaska%20Constitution%20says

2. Supreme Court Order 1993

3. Alaska Criminal Rule 6.1

4. Rubinstein, M.L.. (1975). Grand Jury in Alaska – Tentative Recommendation to the Judicial Council. Alaska Judicial Council. Retrieved on December 15, 2023. https://www.ojp.gov/ncjrs/virtual-library/abstracts/grand-jury-alaska-tentative-recommendations-judicial-council

5. Cornell Law. Statutory Construction.https://www.law.cornell.edu/wex/statutory_construction

6. Black’s Law Dictionary, 10th Edition,

7. Reconstruction Act, 12 U.S. Op. Attorney General, 141, 160 (1867).

8. Laws, John. (October 2, 2017). “The Rule of Law: The Presumption of Liberty and Justice.” Judicial Review. 22 (4): 365-373.

9. Alaska Constitutional Convention transcript page 1328. (“directly”)

10. Alaska Original Grand Jury Handbook

11. AS 12.40.070, Duty of Prosecuting Attorney.

12. Press Books. (?) The Due Process and Equal Protection Clauses.

https://pressbooks.pub/alaskacriminallaw2022/chapter/the-due-process-and-equal-protection-clauses/#:~:text=See%20Alaska%20Constitution%2C%20Art.,the%20hands%20of%20the%20government.

13. Campbell, William J., Eliminate the Grand Jury, 64 J. Crim. L. And Criminology, 174 (1973)

14. O’Leary v. Supreme Court, 816 P.2d 163 (1991) https://law.justia.com/cases/alaska/supreme-court/1991/s-4105-1.htmll

15. Alaska Law Review. (1986). The Reportorial Power of the Alaska Grand Jury. Duke Law Scholarship Repository. Retrieved by December 15, 2023. Notes the reportorial power of the Alaska grand jury https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1219&context=alr

16. AS 12.40, Grand Jury.

17. https://content.next.westlaw.com/practical-law/document/Ibe943df6e1e711e698dc8b09b4f043e0/Expressio-unius-est-exclusio-alterius?viewType=FullText&transitionType=Default&contextData=(sc.Default)#:~:text=A%20Latin%20term%20literally%20meaning,one%20matter%20excludes%20other%20matters.

18. https://definitions.uslegal.com/e/expressum-facit-cessare-tacitum/