Grand juries, a constitutional safeguard against public corruption

By JON FAULKNER

Last April, a Kenai Grand Jury indicted Judge Margaret Murphy on felony perjury charges. Few Alaskan know the status of the indictment, how it came to pass, and how a handful of concerned citizens are trying to educate Alaskans on the purpose and powers vested in grand juries by our Constitution. (See Past coverage at: www.alaskastateofcorruption.com)

David Haeg believes that the powers vested in the people to petition grand juries for the purpose of investigating misconduct by public officials is inviolable, and yet has been systematically dismantled by single vote margins and unconstitutional actions by our Supreme Court.  

His documentation of historic actions by our Supreme Court has drawn the attention of Alaskans and generated protests and sit-ins that have altered the legal landscape. He regards the indictment against Judge Murphy as a siren call:  “I’m hoping Alaskans will rise up in defense of their rights, and not become victims of this massive, ever-increasing consolidation of power in the hands of an elitist, unelected few,” he stated. 

The legal foundation for Judge Murphy’s citizen indictment is Article 1, Section 8, of our Constitution, which states, “The power of grand juries to investigate and make recommendations concerning the public welfare or safety shall never be suspended.”  Other than the right to bear arms, Haeg regards this right of citizens to legally investigate government corruption as the most protective of our democracy and freedoms.

Not a single Constitutional Convention delegate opposed the concept of grand juries. In fact, they unanimously agreed that grand juries secure other essential freedoms, including the power to investigate the government itself, free from the threat of retribution. Delegates opening acknowledged that “The power of grand juries to inquire into the willful misconduct in office of public officers, and to find indictments in connection therewith, shall never be suspended.” (Alaska Constitutional Convention, December 15, 1955.) 

Records of delegate deliberations support Haeg’s view that Grand Juries were conceived and authorized  to investigate public officials: “The grand jury is preserved, for all purposes, particularly for investigation of public officials.” (Alaska Constitutional Convention Commentary on the Preamble and the Declaration of Rights, December 15, 1955). Notably, this authorization stressed a citizen’s right to direct appeal. Delegates stated: “The grand jury can be appealed to directly, which is an invaluable right to the citizen.” (Alaska Constitutional Convention transcript page 1328.) 

Ed Martin, a lifetime Alaskan and activist on this topic, posed this question: “What is unclear about this? The arrogance of our Supreme Court is beyond the pale. How could anyone sensitive to the intent of our framers interpret this as anything but an unconditional right of direct appeal by its citizens? A right, mind you, stripped away from Alaskans by the very branch of government from whom our citizens are seeking justice and protection of our liberties.”   

Haeg’s chronology of events after statehood paints a picture of slow but steady erosion of this Constitutional right. In 1959,  the newly formed Supreme Court distributed its first “Alaska Grand Jury Handbook” and under the title “Importance of the Grand Jury”, the handbook stated, in part: 

“In time of peace no citizen can perform a higher duty than that of Grand Jury service… No body of citizens exercises public functions more vital to the administration of law and order. Thus, the citizens themselves, by this representative body of Grand Jurors, hold in their own hand the control of the maintenance of law and order throughout the state, through prosecution for crime. The importance of this power cannot be overestimated.” (Alaska Grand Jury Handbook, pages 3 and 5).

This same handbook re-affirms the right of citizens to appeal directly to the grand jury:

“A citizen is at liberty to apply to the Grand Jury for permission to appear before it in order to suggest or urge that a certain situation should be investigated by it… Charges of crime may be brought to your attention in several ways: …(4) by private citizens heard by the Grand Jury in formal session, with the Grand Jury’s consent.” The handbook also acknowledges how a grand jury has the “important duty of making investigations on its own initiative…” to “investigate how officials are conducting their public trust.” (Alaska Grand Jury Handbook pages 5, 6, and 7). This language stands in stark contrast to today’s revised, far more convoluted procedural handbook.    

In 1962, Alaska’s Legislature passed AS 12.40.030 and AS 12.40.040, complimentary statutes that reinforced a Grand Jury’s duty to investigate and disclose knowledge of certain crimes and present them to the court. They also authorized broad powers to investigate and make recommendations concerning the public welfare or safety. Language exists which limits Grand Jury powers to “…all crimes committed or triable within the jurisdiction of the court…” However, the Constitution delegates broad powers to the judicial branch to implement the administration of justice through the courts, and herein lies the thrust of the issue.   

Haeg notes that between Statehood and 1985, grand jury investigations and recommendations were common and include a range of alleged corruption by judges, district attorneys, and law enforcement officials.  In 1985, a grand jury recommended that Alaska’s legislature impeach Gov. Bill Sheffield for steering a $10,000,000 state lease to a campaign contributor. In reaction to this perceived incursion into their judicial prerogative, a divided Alaska Supreme Court issued Criminal Rule 6.1, which suspended certain grand jury rights to investigate and make recommendations. Two of five justices, Burke and Compton, declared Rule 6.1 to be unconstitutional because it violated the plain wording of Article 1, Section 8 of Alaska’s Constitution, cited above.

Thus, a single vote decided the issue for Alaskans—by a court sitting in judgment about what limits exist to citizen grand juries. 

Once again, in 1991, an important case (O’Leary v. Superior Court) upheld the constitutionality of Rule 6.1 by a single Justice. In their dissent, Justices Burke and Compton wrote: “This procedural rule is not the least bit deferential to the “anti-suspension” clause. Indeed, it mocks it. The Grand Jury, and not the courts, can choose matters on which it reports and recommends, and the manner in which to do so. Its constitutional power shall never be suspended by the overlay of cumbersome procedures which provide for private judicial adjudications and review of whether the report it is to publish adversely reflects on someone, or otherwise violates his or her constitutional rights.” 

Not surprisingly, after 1991 grand jury investigations and recommendations stop according to Haeg and then in 2004 evidence emerges indicating systemic corruption within Alaska’s Legislature and judicial system. In 2006, FBI-led raids of Legislative offices resulted in several criminal prosecutions. That same year, FBI section Chief Colton Seale reportedly told Haeg that he personally fielded many complaints nearly identical to Haeg’s [systemic judicial corruption in Alaska] and in many cases his investigations expanded rapidly and implicated high-level officials. But in each case, a call came from Washington, D.C. telling Seale to pull the plug on his investigations. 

According to Haeg, in 2017 a group of Alaskans became energized by the fact that our Constitution empowers its citizens to investigate government corruption which certain officials may not want to be investigated. That same year, Haeg’s group asserts that the Alaska Supreme Court bypassed established protocols and rewrote the Alaska Grand Jury Handbook yet again. At that time, according to Haeg, they eliminated all references to a citizen’s right of direct appeal to a grand jury, as well as all references to the grand jury’s right to decide, without undue restraint, what to investigate.

This action by the Supreme Court outraged Haeg’s group and in 2018 they assembled a petition of roughly 500 Alaskan signatures asking government officials to deliver their petition to a grand jury, which was refused. According to Haeg, Deputy Attorney General John Skidmore and others directed a total of six different grand juries to cease investigating evidence of judicial corruption even after the Grand Juries initiated actions of their own to investigate. 

By April 2022, organized protests were occurring across Alaska and in June Superior Court Judge Jennifer Wells permanently disbanded a Kenai Grand Jury after it decided, by majority vote, to investigate evidence of judicial corruption and cover up. One day later, activists organize a state-wide courthouse sit-in and on July 4, 2022, filed felony complaints of “Interference with Official Proceedings” (see AS 11.56.510) and “Jury Tampering” (see AS 11.56.590) against Judge Wells.  Protesters organized a citizen’s arrest of Judge Wells and Deputy Attorney General John Skidmore for those same charges, prompting Judge Wells to announce her retirement. 

In July of 2022 a new Kenai grand jury was convened to investigate evidence of judicial corruption, possibly aided by a more sympathetic office under Attorney General, Treg Taylor.  On Aug. 2, 2022 the jurors were advised of their right to independent counsel. Predictably, a showdown ensued. In December 2022, immediately after the grand jury subpoenaed several judges and judicial investigator Marla Greenstein, the Alaska Supreme Court issued Supreme Court Order 1993, a rule change that, according to Haeg, stripped the grand jury of constitutional powers to investigate, make recommendations, and indict government officials such as investigator Greenstein. (See SCO 1993 at alaskastateofcorruption.com).

Haeg’s group regards these actions as self-serving and without constitutional foundation, and argues that Greenstein’s 35-year reign as Alaska’s sole investigator of judicial misconduct is evidence of a too-cozy relationship.   

Tensions increased when, on Dec. 15, 2022, Haeg’s group uncovered an internal Alaska Supreme Court “Memorandum” indicating the Supreme Court bypassed the required oversight of their own 13-member Rules Committee when creating SCO 1993 – ostensibly to avoid interference with their goal to tighten control over grand jury rights. (See SCO 1993 History at alaskastateofcorruption.com) 

Members of the Rules Committee reportedly entered protest of the Court’s action, stating that “…the rule changes were important and serious changes of a constitutional nature and should not be rushed through”). According to Haeg’s timeline, the Rules Committee was denied a hearing.  (See SCO 1993 History at alaskastateofcorruption.com).  

Immediately following this action, citizens gathered petition signatures calling upon Alaska’s Legislature to impeach all five justices for committing unconstitutional acts. Several weeks later, on February 6, 2023, the Alaska Supreme Court rescinded portions of its own order (SCO 1993) which prohibited Grand Juries from indicting, but also retained portions barring citizens from appealing directly to the Grand Jury.  The revisions also retained key provisions granting government officials the power to dictate to the Grand Jury what they can investigate, who they can subpoena in pursuit of that investigation, and what the Jury can actually say in their final recommendations. (See SCO 2000).

In April 2023, the Kenai Grand Jury indicted Judge Margaret Murphy on felony perjury charges and in August Haeg’s group learned that the Kenai Grand Jury proceedings were ongoing but frustrated by procedural efforts to quash certain findings and recommendations. Proceedings are not public, but according to Haeg, Judge Murphy’s prosecution for felony perjury continues on January 8, 2024, at 10 am, room 401 of the Anchorage Nesbett Courthouse.   The oral arguments will also be live-streamed on https://courts.alaska.gov/. (For background, see indictment, case 3HO-23-00295CR on Alaska CourtView, and TV/news stories at alaskastateofcorruption.com)

How did all this get so bad and go on unaddressed for so long? Haeg answers this by offering his followers a glimpse of history (in this case from New York City) which—if ignored, he fears will be repeated here in Alaska. 

New York City’s 1994 Mollen Commission Report

”To cover up their corruption, officers created even more: they falsified official reports and perjured themselves to conceal their misdeeds. In the face of this problem, the Department allowed its systems for fighting corruption virtually to collapse. It had become more concerned about the bad publicity that corruption disclosures generate than the devastating consequences of corruption itself. As a result, its corruption controls minimized, ignored and at times concealed corruption rather than rooting it out. Such an institutional reluctance to uncover corruption is not surprising. No institution wants its reputation tainted – especially an Department that needs the public’s confidence and partnership to be effective. Since no entity outside the Department was responsible for reviewing the Department’s success in policing itself, years of self-protection continued unabated until this Commission commenced its independent inquiries.”

Interested readers can also contact the Alaska Grand Jurors Association at PO Box 123, Soldotna, Alaska 99669

alaskagrandjurorsassociation.org and alaskastateofcorruption.com

A Petition seeking investigation into the Alaska Supreme Court’s actions is at this link.

Jon Faulkner is the president of Alaska Gold Communications Inc., which publishes Must Read Alaska.