The Grand Jury in Nebraska

• Publication year: 1998
• Citation: Vol. 33

33 Creighton L. Rev. 39. THE GRAND JURY IN NEBRASKA

Creighton Law Review

Vol. 33

RICHARD E. SHUGRU(fn*)

INTRODUCTION

In an age in which many, if not most, commentators have come to criticize the utility and practice of the grand jury system of indicting people for criminal conduct,(fn1) Nebraska has reexamined its century-old practice of relying on elected prosecutors for investigating crime and charging criminals.(fn2) Nebraska has, under limited circumstances, returned to the ancient system of grand jury inquest into certain conduct.(fn3) Nebraska's determination was predicated on a belief, by the proponents of the use of this citizen panel, that in the class of cases where the grand jury would be the tool by which society investigated and charged, it alone could be unbiased, uncorrupted and fair.(fn4) The grand jury served the English system for ages(fn5) and the American national government since the beginning of the republic.(fn6) Over a century ago, the states began experimenting with prosecution by complaint or information as filed by local prosecutors.(fn7) The United States Supreme Court, in an era long before the doctrine of incorporation, as it came to be used in the mid-twentieth century,(fn8) was employed to apply the guarantees of the Bill of Rights to the states through the Fourteenth Amendment, and ruled that the states were free to use a system other than indictment by grand jury.(fn9) The Court held that neither the due process of law nor law of the land commanded adherence by the states to the ancient method of charging for felony-class crimes.(fn10)

How did the states come to abandon the grand jury in favor of charging by information? What was left of the 19th century grand jury system at the state level by the time Nebraska approved its second constitution, implemented it with law, and was prepared to enter the twentieth century? Why did Nebraska decide that this system which harked back to the middle ages, and was virtually abandoned, should be dusted off and restored to the criminal procedure code albeit for the limited purposes of the recent legislation?

These questions will be addressed in this article. In addition, the structure and operation of the grand jury, as it is employed in this State at the dawn of the millennium, will be explained for the benefit of practitioner and student alike. It is left for the reader to determine the wisdom of the return to the grand jury in cases in which a person dies at the hand of authorities making an arrest or having custody of a prisoner.

HISTORY OF THE GRAND JURY SYSTEM IN NEBRASKA

The State of Nebraska has adopted two constitutions and two formal versions of a provision dealing with indictment by grand jury.(fn11) In 1871, when the State's constitutional convention debated the grand jury issue, fierce debate centered on the cost, fairness and efficiency of the grand jury system.(fn12) That convention's entire product was re-jected by the voters.(fn13) This best-reported convention of the 19th century captured the volatility of public sentiment concerning the continued employment of the grand jury.(fn14) It demonstrated a shift in attitude of many Nebraskans about how the criminal process should be initiated, and resulted in a determination in 1875 to try a new method of charging criminals.(fn15)

Nebraska's first constitution in 1866(fn16) was drafted shortly after the Congressional Enabling Act of 1864,(fn17) which had directed that a new state must obey "the laws of the United States, not locally inapplicable," and that these laws "shall have the same force and effect within said state as elsewhere within the United States."(fn18) That document stated, "[n]o person shall be held to answer for a criminal offense unless on the presentment or indictment of a grand jury,"(fn19) with the exceptions of impeachment, cases arising in the army, navy or militia, when in actual service in time of war, or public danger, and matters cognizable before a justice of the peace.(fn20) The political turmoil of the state's first years, the impeachment and removal of a governor, and other factors associated with settlement resulted in a demand for a new basic law.(fn21)

The fifty-two delegates to the 1871 convention engaged in a heated debate over the grand jury issue.(fn22) An Omaha delegate, C.F. Manderson, moved to adopt language continuing the traditional method of grand jury indictment,(fn23) but his motion was followed immediately by an amendment from J. E. Philpott of Lancaster which provided that the grand jury system could be "abolished by law in all cases."(fn24) The debate centered on whether grand jury practice was anachronistic, expensive and arbitrary.(fn25) Samuel Maxwell of Cass County castigated the system charging that "any sneak" could go before a grand jury and bring injury and trouble on a person with whom he had a controversy.(fn26) This was done frequently, the former member of the territorial legislature declared.(fn27) He favored a system which would give to the legislature power to suppress this "great nuisance."(fn28)

Siding with Maxwell was Silas A. Strickland, president of the constitutional convention and former United States Attorney for Nebraska.(fn29) He passionately argued that the grand jury was a secret system, tainted with barbarism and not unlike the dreaded Star Chambers of English history.(fn30) Strickland railed against informers who could sneak in the back door of a grand jury and do great mischief to the innocent.(fn31) He characterized the grand jury as "the place to spend all the gall and venom which some men possess."(fn32) Strickland added:

Often an indictment is found against an honest upright man, who, for months perhaps writhes in the agony of being the object of unjust suspicion, while the fellow who has done this, walks about the street in the image of his Maker, when he should have hoofs and horns.(fn33)

Strickland was also concerned because, under the Nebraska grand jury system, the only witnesses which could be heard were those on behalf of the territory.(fn34)

On the other side of the argument, Eleazer Wakeley of Douglas County insisted that the grand jury is a barrier to crime epidemics.(fn35) In places ridden by crime, he declared, how could it be expected that one man would be brave enough to stand up against evil doers.(fn36) Who is it who fears the grand jury, Wakeley asked? It is the murderers and felons, he insisted.(fn37) O.P. Mason of Otoe County invoked the name of the great scholar Thomas Cooley whose work on constitutional limitations(fn38) inspired many states in their fabricating a new fundamental law after the civil war. He pleaded that the delegates not place such great authority in the hands of one individual because the information indictment was a "dangerous innovation."(fn39)

J.C. Campbell, from the same jurisdiction, lashed out at prosecutors and charged that the man in that job "is generally some little petifogging jack-leg of a lawyer."(fn40) Let us stand, Campbell pleaded, "by the good old system."(fn41)

Other delegates called for compromise, allowing the legislature to decide when a grand jury indictment was required and when an indictment by information was preferable.(fn42) The renowned Omaha lawyer Experience Estabrook led this compromise movement, calling for the convention to permit the legislative experimentation.(fn43) He observed that no state which had done away with mandatory indictment by grand jury desired to return to it.(fn44)

The Nebraska Constitutional Convention of 1871 did not result in the people's ratification of a new fundamental law.(fn45) The convention drew heavily on a Granger constitution adopted the previous year in Illinois which, itself, had moved through several alterations of the fundamental law regarding grand juries.(fn46) In the Illinois Constitution of 1818, for example, the state's basic document upon admission to the Union, article I section 10, specifically prohibited proceeding in a criminal matter by information, except in cases relating to military jurisdiction.(fn47)

In 1848, the Illinois Constitution's provision relating to the proceedings in criminal cases was reworked to require presentment or indictment by a grand jury.(fn48) The exceptions were for impeachments and matters cognizable by a justice of the peace.(fn49) In 1870, Illinois once again amended the document to provide that "the grand jury may be abolished by law in all cases."(fn50) The 1871 Nebraska provision stated:

No person shall be held to answer for a criminal offense, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary, and in cases of impeachment, and in cases arising in the army or navy, or in the militia when in actual service in time of war or public danger, unless on a presentment or indictment of a grand jury, or information of a public prosecutor: and provision shall be made by law for the impaneling of grand juries wherever [whenever] the respective courts or the judges thereof shall order.(fn51)

Although this language was rejected by the voters in a subsequent election in 1874, voters authorized another constitutional convention. The delegates convened in May of the following year.(fn52) Relying once again on the Illinois Constitution of 1870 as its template, the convention submitted the document with textual changes to the grand...