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MICHAELcL.cKATHREIN, Petitioner, BRIGID M. MCGRATH, et al., Respondents. On Petition For Writ of Certiorari to To The United States Court of Appeals For The Seventh Circuit Filed May 8, 2006
MICHAELcL.cKATHREIN
QUESTIONS PRESENTED The following questions are presented by the petitioner: I. Does an American citizen have a Constitutional right to petition the federal grand jury to investigate crimes committed against him? II. Does an American citizen have a statutory right to petition the federal grand jury to investigate crimes committed against him? III. Do members of the executive or judicial branches of government have the authority to block access to the grand jury? Petitioner MichaelcL.cKathreincwas the plaintiff-appellant in three appeals that were consolidated in the court below. Respondents Brigid M. McGrath, Michael P. Moner, Jeffrey R. Rosenberg, Daniel V. Kinsella, Schuyler, Roche & Zwirner, P.C., and Paddy H. McNamara were defendants-appellees in one case and R. J. Siegel was the defendant-appellee in the other two cases in the court below. QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . .. . i II. AN AMERICAN CITIZEN HAS A STATUTORY RIGHT TO III MEMBERS OF THE EXECUTIVE AND JUDICIAL BRANCHES CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .App. 1TABLE OF AUTHORITIES
American Textile Mfrs. Institute v. The Limited, Application of Wood, Aptheker v. Secretary of State, Belgard v. State of Hawaii, Blair v. United States, Bracy v. Gramley, Branzburg v. Hayes, Cabell Huntington Hosp., Inc. v. Shalala, California Motor Transport Co. v. Trucking Unlimited, Caminetti v. United States, Cobbs v. Robinson, Cook v. Smith, Costello v. United States, Eastern R.R. Presidents Conference v. Equal Employment Opportunity Commission v. Fast v. School Dist. Of City of Ladue, Friends of Earth, Inc. v. Hale v. Henkel, Harmelin v. Michigan, Ex Parte Grossman, In re April 1956 Term Grand Jury, In Re Grand Jury Application, In Re Grand Jury January, In Re Grand Jury Proceedings, In Re Groban’s Petition, In re Korman, In re Miller, In Re Price, In re Quarles, In re Subpoened Grand Jury Witness, In re Young, Johnson v. City of Evanston, Leeke v. Timmerman, Lewis v. The Board of Commissioners of Wake Co., Linda R.S. v. Richard D., Linder v. United States, Mackin v. United States, McCarthy v. Manson, McDonald v. Smith, Myers v. United States, Suter v. Munich Reinsurance Co., Town of Castle Rock, Colorado v. Gonzales, United States v. Baird, United States v. Brignoni-Ponce, United States v. Burr, United States v. Chanen, United States v. Deisch, United States v. Mandujano, 425 U.S. 564, 573, 96 United States v. Rawlinson, 27 Fed. Cas. 715, United States v. Sandford, United States v. Shackelford, United States v. Singer, United States v. Vazquez-Rivera, United States v. Virginia-Carolina Chemical Co., United States v. Williams, United Transp. Union v. I.C.C., Velarde-Villarreal v. United States, Welch v. United States, Wesson v. United States, Whitehouse v. United States District Court
First Amendment, U.S. Constitution. . . . . . . . . . . . . . . . . .1, 5 Fifth Amendment, U.S. Constitution . . . . . . . . . . . . . ..
1, 2, 11
Title 18 U.S.C. § 3332(a) . . . . . . . . . . . . . . . . . . . . . . . passim Title 18 U.S.C. § 3332(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Title 28 U.S.C. § 515(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Federal Rule of Criminal Procedure 6(a) . . . . . . . 2, 19, 21, 22 Federal Rule of Criminal Procedure 6(d) . . . . . . . . . . . . . . . .8
Abourzek, The Inquisition Revisited, Lewis Carroll, The Annotated Alice: Alice’s Adventures Congressional Record, Dongel, Is Prosecution A Core Executive Function? Grand Jury Foreperson’s Handbook, Sir John Hawles, Remarks on Colledge’s Trial, Jacoby, The American Prosecutor: Thomas Jefferson to Edmund Randolph, James Mills, The Underground Empire, Peters, Inquisition, Proceedings Against The Earl Of Shaftesbury, Rawson’s Dictionary of Euphemisms and Other Judge John Roberts, Schwartz, Demythologizing The Grand Jury, Stephen, A History of the Criminal Law of England, Harry S. Truman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
MichaelcL.cKathreini, on behalf of himself, hereby petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Seventh Circuit, filed on February 7, 2006. There was no good-faith determination of the law in petitioner’s consolidated cases in either the district court or in the Seventh Circuit Court of Appeals.
The unreported Court of Appeals’ Opinion affirming the judgment
of the consolidated cases of the district court, entered February
7, 2006, is reproduced at Pet. App. 1. The District Court’s
final judgment of June 9, 2005 is reproduced at Pet. App. 13, its
June 28, 2005 judgment is reproduced at Pet. App. 20 and App. 39,
and its August 23, 2005 judgment is reproduced at Pet. App. 33. JURISDICTIONAL STATEMENT The Court of Appeals’ final judgment was entered on February
7, 2006. This Court’s jurisdiction is invoked pursuant to 28
U.S.C. § 1254(1). CONSTITUTIONAL PROVISIONS INVOLVED This case involves the First and Fifth Amendments to the United States Constitution. The First Amendment, U.S. Constitution, provides: The Fifth Amendment, U.S. Constitution, provides:
This case involves Federal Rule of Criminal Procedure 6(a) and Title 18 U.S.C. § 3332(a). Federal Rule of Criminal Procedure 6(a) provides: Title 18 U.S.C. § 3332(a) provides: (a) It shall be the duty of each such grand jury impaneled within
any judicial district to inquire into offenses against the criminal
laws of the United States alleged to have been committed within that
district. Such alleged offenses may be brought to the attention of
the grand jury by the court or by any attorney appearing on behalf
of the United States for the presentation of evidence. Any such attorney
receiving information concerning such an alleged offense from any
other person shall, if requested by such other person, inform the
grand jury of such alleged offense, the identity of such other person,
and such attorney’s action or recommendation. STATEMENT OF THE CASE Jeffrey R. Rosenberg and Daniel V. Kinsella, of the law firm Schuyler, Roche & Zwirner, P.C., are attorneys employed by Michael P. Moner. The attorneys engaged in the practice of ‘padding’ their petitions for fees. Their acts were aided and abetted by two judges in the Circuit Court of Cook County, Brigid M. McGrath and Paddy H. McNamara. All are respondents. When petitioner moved the two district court judges to convene a grand jury to investigate the mail frauds and other crimes perpetrated by the attorney respondents against petitioner, the lower courts avoided the questions and allegations within petitioner’s complaints by the improper application of abstention doctrines. The Seventh Circuit Court of Appeals dispensed with petitioner’s request to have the lower courts convene, or allow access to a grand jury, as follows: Before leavingaKathrein’sasuit against Siegel, we address an argument he makes both here and in his appeal from the dismissal of his other federal complaint. In both federal actionscKathreincsought and was denied an order compelling a federal grand jury to investigate alleged crimes committed by the various defendants. In challenging those denials,cKathreincpersists with his frivolous contention that he is entitled to appear before a grand jury to present his allegations. See Korman v. United States, 486 F.2d 926, 933 (7th Cir. 1973) (holding that authority to convene federal grand jury is vested in district court); cf. Cook v. Smith, 834 P.2d 418, 420-21 (N.M. 1992) (recognizing New Mexico’s procedure permitting citizens to petition for convening a grand jury as rare).cKathreincadmits that the goal of his proposed investigation is to lead to the prosecution of the individuals that he has sued, but a private citizen lacks standing to demand the prosecution of another. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); Johnson v. City of Evanston, Ill., 250 F.3d 560, 563 (7th Cir. 2001). Note the words,c“Kathreinapersists in his frivolous contention that he is entitled to appear before a grand jury to present his allegations.” iKathrein’si request is legitimate. It is supported by the Constitution, Congressional statute, a rule of federal criminal procedure, substantial case law, learned treatises, and hundreds of years of common law practice. His approach may be unconventional and unwelcome, but frivolous it is not. Petitioner’s request is slighted by reflex. He moves to exercise a hoary right. A right of which ordinary citizens are unaware, that attorneys would not dare to seek, that prosecutors have no need to request, and that judges commonly believe, is not cognizable. “It’s a recession when your neighbor loses his job; it’s a depression when you lose yours.” – Harry S. Truman. Or in this case, it’s frivolous when a common citizen asserts this right; it’s a legitimate argument when a member of the legal community does so. Petitioner, and millions of independents like him, are thusly separated
from the protection of federal criminal law. They must accept whatever
ration of justice the legal profession – judges and lawyers
– is inclined to dispense. REASONS FOR GRANTING THE WRIT The Writ must be granted because the Seventh Circuit Court of Appeals’ decision conflicts with the original intent of Federal Rule of Criminal Procedure 6, 18 U.S.C. § 3332(a), this Court’s prior decisions, decisions of the other Circuit Courts of Appeals, and their own precedent. As petitioner will also demonstrate, Linda R.S. v. Richard D., 410 U.S. 614 (1973) was wrongly decided and must be corrected either by this Court or by Congress. I. An American citizen has a Constitutional right to petition the
federal grand jury to investigate crimes committed against him. The Fifth Amendment had in view the rule of the common law, governing the mode of prosecuting those accused of crime. Mackin v. United States, 117 U.S. 348 (1886); United States v. Deisch, 20 F.3d 139, 145 n. 11 (5th Cir. 1994). The grand jury had common law origins. In re April 1956 Term Grand Jury, 239 F.2d 263, 268 (7th Cir. 1956). Today’s federal judges appear to have little or no understanding of how the grand jury operated under common law, or how rich was its tradition. The very fact of the presence of the prosecutor in the grand jury
room contradicts the historically defined role of that body. How can
the grand jury protect the accused from the accuser if the accuser
is alone with the grand jury and can effectively control the course
of its investigation? On November 3, 1806, Joseph Hamilton Daviess, United States Attorney
for Kentucky, moved that a grand jury be convened to consider indicting
Aaron Burr for attempting to involve the United States in a war with
Spain. On December 3rd the grand jury was called. Daviess immediately
moved “to be permitted to attend the grand jury in their room.”
This motion was considered “novel and unprecedented” and
was denied. After hearing the evidence in secret the grand jury deliberated
and, on December 5th, an ignoramus bill was returned. See also United States v. Burr, Fed. Cas. No. 14,892 (C.Ct.D.Ky. 1806). A solicitor is not a judicial officer. He cannot administer an oath.
He cannot declare law. He cannot instruct the grand jury in the law.
That function belongs to the Judge alone. If the grand jury desire
to be informed of the law or of their other duties, they must go into
court and ask instructions from the bench. [A grand jury is] “a spear in the hands of ambitious prosecutors
anxious to silence dissent or to climb to greater political heights
over the backs of hapless defendants caught up in the system.” In this case, the judiciary and the executive branches steadfastly block petitioner’s access to his fellow citizens on the grand jury. As a federal judge in the nineteenth century remarked, “The moment the executive is allowed to control the action of the courts in the administration of criminal justice, their independence is gone.” In re Miller, Fed. Cas. No. 9,552 (C.Ct.D.Ind. 1878). [I]t is clear that the emperor and his servants assumed more and
more direct control of legal procedure, at first paralleling surviving
courts and procedures, but eventually superseding them. Gradually
the sources of law were narrowed down to one—the edict of the
emperor. That prosecutors were not allowed in the grand jury room, under the indictment by grand jury clause of the Fifth Amendment, was well understood in this country for over 100 years. See United States v. Rosenthal, 121 Fed. 862, 874 (S.D.N.Y. 1903) and the cases cited therein. In order to overcome the Rosenthal decision and the intention of
the Framers of the Fifth Amendment, Congress then enacted, on June
30, 1906, the statute that has come down to us as 28 U.S.C. §
515(a) and the Rule that has come down to us as Federal Rule of Criminal
Procedure 6(d), permitting the attorneys for the government to “attend
the grand jury in their room.” I.e., one hundred years ago this June, the Congress took the common law right to petition the grand jury away from the people and gave it to the Department of Justice. The Congress cannot – merely by legislating – amend the Constitution. United Transp. Union v. I.C.C., 891 F.2d 908, 915-916 (D.C. App. 1989). [Congress] . . . is not given power by itself . . . to amend the Constitution. Myers v. United States, 47 S.Ct. 21, 37 (1926), In re Young, 141 F.3d 854, 859 (8th Cir. 1998). The legislature cannot enact laws for the accomplishment of objects not entrusted to the federal government. Linder v. United States, 45 S.Ct. 446 (1925). No one in 1791 entrusted the federal government with the authority to enact laws intended to turn the grand jury into a rubber stamp for federal prosecutors. Ironically, federal prosecutors employed by the Department of Justice did not even exist until late in the following century. The Department of Justice is wholly a creation of Congress, June 22, 1870. At its creation the only authority members of that agency possessed was to “have the case of prosecutions for mail depredations and penal offenses against the postal laws,” Sec. 7, and to “compile statistics of crime,” Sec. 12, 16 U.S. Statutes At Large 162-164. The grand jury is a pre-constitutional institution, given constitutional
stature by the Fifth Amendment. United States v. Chanen, 549 F.2d
1306, 1312 (9th Cir. 1977). If this is in fact true, then the grand
jury would have to function in the same manner and fashion as its
British predecessor, anything less would constitute an unconstitutional
procedure: The Declaration of Rights of 1689 is antecedent of our own constitutional text. The original meaning and circumstances of that enactment are relevant. See Harmelin v. Michigan, 111 S.Ct. 2680, 2687 (1991). Merely allowing a prosecutor in the grand jury room was a violation of the grand jurors’ oath. Proceedings Against The Earl Of Shaftesbury, 8 How. St. Tr. 759, 773 (1681), quoted in Hale v. Henkel, 26 S.Ct. 370, 373 (1906). To this day this is the law in Connecticut State grand juries. Cobbs v. Robinson, 528 F.2d 1331, 1338 (2nd Cir. 1975). Under the procedures followed by our ancestors before their migrations from England the prosecution of offenses was left entirely to private persons, or to public officers who acted in their capacity of private persons and who had hardly any legal powers beyond those which belonged to private persons. Stephen, A History of the Criminal Law of England, Volume I, at 493, quoted in United States v. Marion, 92 S.Ct. 455, 468 n. 2 (1971). The idea of a public prosecutor is a French practice. Id. The English practice was that followed in the United States for some time. Id. Private individuals conducted the bulk of prosecutions in colonial times. Dongel, Is Prosecution A Core Executive Function? Morrison v. Olson and the Framers Intent, 99 Yale L. J. 1069 (1990). See also United States v. Baird, 85 F. 633 (C.Ct.D.N.J. 1897) (complaint by postal inspector); In Re Price, 83 F. 830 (C.Ct.S.D.N.Y. 1897) (complaint by private citizen); United States v. Farrington, 5 F. 343, 346 (D.C.N.Y. 1881) (evidence of grand jurors competent to ascertain who was prosecutor). II. An American citizen has a statutory right to petition the federal grand jury to investigate crimes committed against him. Petitioner devoted thirty pages and cited nearly two hundred authorities
in his ‘frivolous’ lower court briefs supporting his right
to access the federal grand jury. His arguments were dismissed with
one sentence. This would hardly reflect an earnest deliberation. The bending of the meanings of words is symptomatic of a diseased institution, with the angle of linguistic deflection indicating the seriousness of the cancer within. The Spanish Inquisition represented an advanced case. Rawson’s Dictionary of Euphemisms and Other Doubletalk, rev. ed., p. 35 (1995). “When I use a word,” Humpty Dumpty said, in rather a
scornful tone, “it means just what I choose it to mean—neither
more nor less.” Alice-in-Wonderland was a world in which words had no meaning. Welch
v. United States, 90 S.Ct. 1792, 1803 (1970). The dishonest application of the English language by the lower courts demonstrates that the rights granted to American citizens in their Constitution are [in effect] merely licensed. Citizens must pray to the legal community for leave to assert those rights. Where their prayers are blocked, their rights are denied. The legal community has taken control of the right to assert our guaranteed rights, i.e., they are not inalienable, they are dispensed at will. ROBERTS: “So to the extent you are talking about the injustices
in society and the discrimination in society, the best thing the courts
can do is enforce the rule of law and provide a level playing field
for people to come in and vindicate their rights and enforce the rule
of law.” By its redefinition of words, the lower court amended the Constitution and deniedcKathreincthe right to petition a mechanism of his government for the redress of his grievances. The prosecutor was a private individual. United States v. Rawlinson, 27 Fed. Cas. 715, Fed. Case No. 16,123 (C.Ct.D.C. 1802) (Court of the opinion his name should be written at foot of the indictment); United States v. Shackelford, 27 Fed. Cas. 1037, Fed. Case No. 16,261 (C.Ct.D.C. 1828) (indictment quashed). The “prosecutor” means a person who prosecutes in the name of the United States, or in the name of the United States and himself. United States v. Sandford, 27 Fed. Case 952, Fed. Case No. 6,221 (C.Ct.D.C. 1806). Public prosecutors are . . . not part of America’s heritage from British common law. Jacoby, The American Prosecutor: A Search For Identity, p. 7 (1980). [U]ntil 1853 there was nowhere any general, organized control of Federal prosecution. Id. at p. 20. U.S. Attorneys and their subordinates use dishonest application of the language to avoid culpability in the denial of citizen’s rights. Compare a request petitioner submitted to the U.S. Attorney, Exhibit A, App. 40, with the deflective response petitioner received two weeks later, Exhibit B, App. 43. The improper motives and methods of today’s prosecutors, i.e., government attorneys, have become systemic. Centac can identify the Exxons of international crime, can pursue
them, infiltrate them, gather roomsful of intelligence and evidence
against them. But it cannot prosecute them. Only U.S. Attorneys can
do that. And U.S. Attorneys around the country are not in a hurry
to tie up prosecutors on such time-consuming, highly complex conspiracy
cases. Buy-bust cases, swift and simple, are easier, more immediately
gratifying, and visible to the voters. To be independent and informed, the grand jury must be able to obtain
all relevant evidence, since only then can its judgment truly be informed.
United States v. Mandujano, 425 U.S. 564, 573, 96 S.Ct. 1768, 48 L.Ed.2d
212 (1976) (plurality opinion); United States v. Calandra, 414 U.S.
338, 343-44, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). The wisdom of maintaining grand jury independence from a public
prosecutor has deep roots in our system of justice. They bring into the grand jury room the experience, knowledge and
viewpoint of all sections of the community. They have no axes to grind
and are not charged personally with the administration of the law.
No one of them is a prosecution attorney or law-enforcement officer
ferreting out crime. III. Members of the executive and judicial branches of government do not have the authority to block a citizen’s access to the federal grand jury. Petitioner relied upon the following authorities in his “frivolous” request to present evidence of criminal wrongdoing to a federal grand jury. The Seventh Circuit completely failed to address Application of Wood, 833 F.2d 113 (8th Cir. 1987) (district court judge ordered U.S. Attorney to present petitioner’s evidence to federal grand jury). [The grand jurors] are not appointed for the prosecutor or for the court, they are appointed for the government and for the people. Hale v. Henkel, 26 S.Ct. 370, 373 (1906). Shall diligent inquiry be enjoined? Id. at 374. Members of the grand jury are supposed to act independently of either the prosecuting attorney or judge. See United States v. Singer, 660 F.2d 1295, 1302 n. 14 (8th Cir. 1981). Where federal judges and U.S. Attorneys block or control the flow
of information about criminal violations of federal law, all grand
jury independence is lost. The longstanding principle is that the public has a right to every
man’s evidence is particularly applicable to grand jury proceedings.
Branzburg v. Hayes, 92 S.Ct. 2646, 2660 (1972) (citations omitted). Where there are no remedies, there are no rights. Where the U.S.
District Court for the Northern District of Illinois and the Seventh
Circuit Court of Appeals deny petitioner’s remedies, they deny
his rights. Petitioner’s remedy is unfiltered access to the
federal grand jury to present his evidence of violations of federal
statutes against him by the respondents. [I]nforming is a right or privilege secured by the Constitution or laws of the United States. Velarde-Villarreal v. United States, 354 F.2d 9 n. 3 (9th Cir. 1965). The grand jury can insist upon the production of every person’s testimony. In re Subpoened Grand Jury Witness, 171 F.3d 511, 513 (7th Cir. 1999). The grand jury cannot review what it cannot (is not allowed to) see. The Federal Rules of Criminal Procedure…have the force of statute. United States v. Christian, 660 F.2d 892, 899 (3rd Cir. 1981). If this Rule [6(a)] is applied with full force in the Virgin Islands, it arguably would confer on the district court the authority to convene a grand jury to investigate crimes and indict where it found probable cause. Id. at 900. There is a power that the court does not have – the power to fundamentally alter the historic relationship between the grand jury and its constituting court. Whitehouse v. United States District Court For District of Rhode Island, 53 F.3d 1349, 1357 (1st Cir. 1995) quoting United States v. Williams, 112 S.Ct. 1735, 1744 (1992). As the case history cited herein illustrates, most of today’s
federal judges exercise no deference to that “historic relationship.” I.e., The Seventh Circuit applied the identical mischaracterization
in its ruling. It appears contradictory, and perhaps punitive, that the applications of 18 U.S.C. § 3332(a) and Linda R.S. v. Richard D., 410 U.S. 614 (1973) can be so straightforward in the Southern District of New York, yet be completely ignored when seeking the benefit of the identical statute, 18 U.S.C. § 3332(a), in the N.D. of Illinois or the Seventh Circuit Court of Appeals. The sole function of the court is to enforce the law according to the statute. Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194 (1917). The goal of statutory interpretation is to implement congressional intent. Cabell Huntington Hosp., Inc. v. Shalala, 101 F.3d 984, 986 (4th Cir. 1996). Courts cannot judicially rewrite statutes. In re Espy, 80 F.3d 501, 505 (D.C. Cir. 1996) quoting Aptheker v. Secretary of State, 84 S.Ct. 1659, 1668 (1964). Policy considerations may not trump the plain language of the statute. American Textile Mfrs. Institute v. The Limited, 190 F.3d 729, 738-739 (6th Cir. 1999). In the absence of legislative guidance, it is inappropriate for courts interpreting statutes to pick and choose based on the court’s assessment of the relative importance of the interests served. Suter v. Munich Reinsurance Co., 223 F.3d 150, 160 (3rd Cir. 2000) (citation omitted). The Seventh Circuit Court of Appeals relied upon four cases as “precedent” to deny petitioner the relief he sought, i.e., access to the federal grand jury to present his evidence, pursuant to Federal Rule of Criminal Procedure 6(a) and 18 U.S.C. § 3332(a). Each case is addressed in turn. It appears contradictory that the Seventh Circuit can quote a case that addresses 18 U.S.C. § 3332(b), then ignore 18 U.S.C. § 3332(a) as it applies to petitioner’s case. Article II, Section 14 of the New Mexico Constitution states that
“a grand jury shall be ordered to convene . . . upon the filing
of a petition therefor signed by not less than the lesser of two hundred
registered voters or five percent of the registered voters of the
county.” In this mandamus action we assumed original jurisdiction,
N.M. Const. art. VI, § 3, to decide whether a district Judge
enjoys discretionary authority to refuse to convene a grand jury requested
by petition. We conclude a Judge is mandated to convene the grand
jury or otherwise substantially comply with the request. It appears contradictory that the Seventh Circuit would address a state constitutional provision and ignore a federal statute, simultaneously. The Constitution’s requirements are as applicable to the police
when they choose sides in a dispute among citizens as when they seize
evidence for use in criminal prosecutions. See, e.g., Soldal v. Cook
County, 506 U.S. 56 (1992); Guzell v. Hiller, 223 F.3d 518 (7th Cir.
2000). Apparently this principle does not apply to judges and prosecutors who “choose sides” in order to protect corrupt state court judges and a law firm engaged in criminal violations of federal law. Finally, there is the application (or, more correctly, misapplication) of Linda R.S. v. Richard D., supra. Petitioner did not demand a prosecution; he requested access to a federal grand jury, pursuant to Federal Rule of Criminal Procedure 6(a) and/or 18 U.S.C. § 3332(a), to report criminal acts. To stand this argument on its head, even the United States Attorney cannot demand a prosecution. If the grand jury refuses to indict, that is the end of it. Simply put, Linda R.S. was wrongly decided. Linda R.S. violates the Equal Protection Clause. This was not one
of this Court’s more sentient decisions, in that it abandoned
children who, through no fault of their own, were not sanctioned by
the state. Denial of food, clothing, and shelter is hardly an abstract injury. A prosecution is not an investigation. Between 1701 and at least June 30, 1906, a private citizen had a judicially cognizable interest in the prosecution of another, as petitioner has demonstrated. The dissenters in this 5-4 decision appeared willing to ignore status
quo and consider the effect of the practice. Fortunately for children born out of wedlock, almost all states in the Union have enacted laws nullifying this decision. Unfortunately, the proposition that a “private citizen lacks
standing to demand the prosecution of another” has been interpreted
by our courts to mean that citizens who have been damaged by the crimes
of others, shall have no opportunity to present their evidence, except
at the will of a judge or a prosecutor. It goes without saying that
judges and prosecutors can have interests that conflict with the interests
of the damaged party. Therefore, a citizen’s right to assert
his rights is fettered; it becomes a gift to be dispensed in conformity
with the interests of the giver. The common law is lost. In other contexts, we have explained that “a private citizen
lacks a judicially cognizable interest in the prosecution or non-prosecution
of another.” Linda R. S. v. Richard D., 410 U. S. 614, 619 (1973). One must wonder whether, had this incident happened to a citizen of influence as opposed to a citizen with none, the question would have risen to this Court or if so, what this Court’s decision would have been. These sworn statements, as the District Court determined, adequately
documented injury in fact. We have held that environmental plaintiffs
adequately allege injury in fact when they aver that they use the
affected area and are persons “for whom the aesthetic and recreational
values of the area will be lessened” by the challenged activity.
Sierra Club v. Morton, 405 U.S. 727, 735 (1972). See also Defenders
of Wildlife, 504 U.S., at 562-563 (“Of course, the desire to
use or observe an animal species, even for purely esthetic purposes,
is undeniably a cognizable interest for purposes of standing.”). Birdwatchers have standing but mothers of murdered children do not. This case conspicuously failed to address the following: Whites comprise 67.2% of South Carolina’s general population and blacks comprise 29.5%. The population of South Carolina prisons is exactly opposite. Of those incarcerated, blacks comprise 67% and whites comprise 31%. I.e., the “Rodney King treatment” perpetrated on prison inmates, most of whom were black, was apparently looked on with approval by eight upper class whites and one black (Thurgood Marshall) who spent most of his time on the U.S. Supreme Court authoring dissenting opinions. Control of the grand jury by government attorneys and lower court judges can be corrected even without a grant of certiorari by this Court. Congress has the authority to overrule wrongly decided cases. Wesson v. United States, 48 F.3d 894, 901 (5th Cir. 1995). Congress . . . may cure any error made by the courts. Fast v. School Dist. Of City of Ladue, 728 F.2d 1030, 1034 (8th Cir. 1984) (en banc). Congress has the power to counter judicial doctrine. Belgard v. State of Hawaii, 883 F.Supp. 510, 514 (D. Hawaii 1995). It should not be necessary for Congress to visit this issue. CONCLUSION Petitioner’s question tests the application of checks and balances. It asks this Court to settle the intent of Congress in 18 U.S.C. § 3332(a) and to determine whether the “public interest” in Federal Rule of Criminal Procedure 6(a) should be excepted by those against whom it is invoked. Did Congress intend that the subjects of inquiry be the gatekeepers of inquiry and if so, would this sanction a conflict of interest against the public interest? For the reason set forth above, this petition for a writ of certiorari should be granted. Dated: May 8, 2006 Respectfully submitted, MICHAELcL.cKATHREIN |