The following article was written and submitted to Montana 1st News by resident ‘Ghost Gilbert MT.”

The Ghost of Grand Juries Past: Reclaiming a Constitutional Safeguard in Montana

“The recent dismissal of the case against Jesse Boyd, the missionary arrested for defending his family in Cameron, Montana, should resonate with every Montanan concerned about the preservation of our rights. While Judge Luke Berger’s decision prevented a dangerous precedent from being set, it also exposed a disturbing trend: the erosion of our fundamental rights, often at the hands of those entrusted to protect them. The Boyd case begs the question: how could such a blatant disregard for the law and the rights of the accused even occur? The answer, in part, lies in the missing piece of Montana’s legal puzzle: the grand jury.

The Fifth Amendment of the U.S. Constitution clearly states that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…” This fundamental right, designed to protect citizens from overzealous prosecution, is conspicuously absent in Montana. We once had a functioning grand jury system, but it was effectively dismantled in the mid-1970s, a casualty of a complex legal battle that ironically involved an Attorney General attempting to root out corruption, not perpetuate it.

The Ironic Case of Kelly v. Gilbert

The case that effectively neutered Montana’s grand jury system, Kelly v. Gilbert (1977), presents a stark contrast to the Boyd case. In Kelly, the Attorney General, Robert L. Woodahl, and his assistant, Howard Gilbert, were investigating official misconduct and criminal acts within the state government. William T. Kelly, a key witness, was subpoenaed to testify before a grand jury. Kelly, however, resisted, claiming harassment and bad faith on the part of the prosecution.

The irony is thick. In the Boyd case, the Montana Attorney General’s office attempted to chip away at our rights, and the Fifth District Court stopped them. In Kelly v. Gilbert, it was the Attorney General attempting to uphold the law and address corruption, but the First District Court’s handling of the case ultimately led to the demise of the grand jury system in Montana.

A crucial detail in Kelly v. Gilbert is that Kelly had been granted transactional immunity before testifying. This meant he could not be prosecuted for any offenses related to his testimony. Theoretically, this removes the basis for invoking the Fifth Amendment’s protection against self-incrimination. Yet, the court issued a preliminary injunction preventing the state from compelling Kelly’s testimony, citing evidence of prosecutorial misconduct and harassment.

While protecting Kelly from potential abuse, the court’s decision had far-reaching consequences. It opened the door for accusations of malicious prosecution against the grand jury itself, effectively painting the body intended to protect citizens as a tool of oppression. The case dragged on for years, and amidst the legal wrangling, the public’s attention likely shifted away from the crucial issue at hand: the preservation of the grand jury system. The result? Montana lost a vital constitutional safeguard.

A Cautionary Tale from New York

One might point to the recent Daniel Penny case in New York, where a grand jury indicted Penny on manslaughter charges, as evidence that grand juries still function. However, a closer look reveals a different kind of problem. While grand juries still convene in New York, their independence has been significantly compromised.

The prosecution acts as sole legal counsel to the grand jury, and they are not required to present exculpatory evidence. The defense has no right to participate, creating a system where indictment is almost guaranteed, leading to the cynical observation that a grand jury could “indict a ham sandwich.” This is not the independent, citizen-led body envisioned by the Founders.

Lessons from History: Rebuilding a Robust Grand Jury System

If Montana is to reclaim its right to a functioning grand jury system, we must learn from the past. The Kelly v. Gilbert case demonstrates the danger of allowing judicial overreach to undermine the grand jury’s independence. The New York example shows how prosecutorial control can transform the grand jury from a shield for the people into a tool for the state.

What lessons can we glean from these examples, and how can we ensure a revitalized grand jury system in Montana truly serves its constitutional purpose?

• Clearly Defined Scope and Authority: The Kelly v. Gilbert case highlighted the need for clear legal boundaries for grand juries. Their powers must be explicitly defined to prevent overreach and accusations of malicious prosecution. This includes specifying the types of cases they can investigate, the limits of their subpoena power, and the procedures for judicial oversight.
• Independence from the Prosecution: To avoid the “rubber stamp” effect seen in New York, Montana’s grand jury system must be truly independent of the prosecution. This could involve appointing independent legal counsel to advise the grand jury, requiring the presentation of exculpatory evidence, and allowing limited defense participation to ensure a more balanced presentation of the case.
• Transparency and Accountability: Grand jury secrecy, while intended to protect witnesses and investigations, can also shield misconduct. Montana should consider mechanisms for greater transparency, such as allowing public access to transcripts of grand jury proceedings (with appropriate redactions to protect sensitive information) and establishing clear procedures for reporting and investigating allegations of prosecutorial misconduct.
• Citizen Empowerment and Education: The grand jury is meant to be the voice of the community. To fulfill this role, citizens must be educated about the grand jury process and empowered to participate effectively. This could involve public awareness campaigns, juror training programs, and clear guidelines for selecting grand jurors that ensure a representative cross-section of the community.
• Statutory Reform: Montana’s laws regarding grand juries need to be revisited and potentially revised to reflect these principles. This could involve amending existing statutes or enacting new legislation that clearly establishes the grand jury’s role, powers, and limitations, as well as the procedures for its operation.

The Jesse Boyd case serves as a stark reminder of the importance of constitutional safeguards. The grand jury, when functioning as intended, provides a crucial buffer between the state and its citizens, protecting individuals from unfounded prosecutions and ensuring that the power of the state is exercised responsibly. By learning from the past and implementing these reforms, Montana can reclaim this vital constitutional right and strengthen the foundations of justice for all its citizens.”

-GhostGilbertMT