The Drama of Procedural Nonsense

I appreciate Kaimi’s post about the jury instructions in Reynolds. But I do object to his claim that the procedural arcana at the beginning of that opinion are of no interest today. The substantive law that they deal with — the number of grand jurors necessary in an Article II territorial court — are not of current interest, but the issue is the final chapter of a dramatic story that tells you something about the world of legal hardball that 19th century Mormons played in.

In order to understand the story, you have understand the strange legal netherworld that territories occupied in the 19th century. They were not quite fully functioning states, but they also were not under direct federal control. Utah had a territorial legislature that could pass territorial laws and spend money raised from territorial taxes. Congress, however, had a veto power over territorial laws, and the President appointed many key territorial officers, such as the Governor, the Justices of the Territorial Supreme Court, and the local Marshal. Federal law controlled in the territories, but territorial law would fill in any gaps left by congressional silence.

In the 1860s, Judge McKean, an ardent anti-Mormon, was appointed Chief Justice of the Utah Territorial Supreme Court. McKean viewed himself as on a religious mission to break the back of Mormon power in Utah. He did this by teaming up with the local U.S. Attorney and inditing Brigham Young, along with most of the First Presidency and the Quorum of the Twelve on a host of charges ranging from bigamy to murder for complicity in the Mountain Meadows massacre.

McKean, who viewed the Territorial legislature as illegitimate because it was dominated by loyal Mormons taking instructions from Church leaders, looked to federal law in enpanelling his grand jury. In other words, he treated his court as though it were a regular, Article III federal court, like that which might sit in a state. While the inditements against Brigham and others were pending, the Supreme Court ruled in another case coming to it on appeal from the Utah Territorial Supreme Court that McKean was mistaken. Territorial courts were not regular federal courts endowed with the constitutional protection of life tenure, etc. Rather, they were what is (now) known as Article II courts, that is special tribunals set up by Congress with judges who lack the authority and protection of full Article III courts. Hence, McKean was mistaken in using the procedure from Artile III courts in his territorial court room. The federal statute books, however, did not contain any provisions governing grand juries in territorial courts. In other words, McKean would have to follow the procedures set forth in Territorial law. This was important, because those procedures meant that Mormon territorial officials controlled selection of the grand jury, rather than federally appointed non-Mormon officials.

This arcane legal ruling totally changed the dynamic of legal power in Utah. The territorial legislature could now control the empannelling of grand juries, and with it the power of federally appointed officials to make criminal inditements. McKean and his cronies were set to reissue their inditements against Brigham and the rest of the Brethren under territorial law. The Mormons responded by passing a law defunding all territorial grand juries. In effect, they made it illegal for a court in the territory to empannel ANY grand jury. The result was that they completely shut down the machinery of the criminal law in Utah. So long as the federals threatened Church leaders with prosecution, the Mormons would make it impossible for them to prosecute anyone.

And so it stood for something like a year and a half, I think, until Congress Acted. They passed a law called the Poland Act, which changed the grand jury machinary so that control passed from the Territorial legislature to the federal officials. The feds in Utah were back in business. By this time, however, they were uncertain of their ability to get a Utah grand jury to indite Brigham and others. Furthermore, they were worried about the possiblity of open Mormon resistance if they did. The Mormons, on the other hand, were worried that they had lost their shield against prosecution. A deal was struck. The Mormons provided George Reynolds as a defendant for a “test case” and in return the feds agreed not to indite Brigham or other high church leaders. The deal, however, went south almost as soon as the inditements against Reynolds was issued. The feds issued a second inditment against George Q. Cannon, and Reynolds and the Church’s lawyers decided that they were going to fight the feds at trial tooth and nail.

The grand jury that had indited Reynolds had 23 members. This was the number used in federal courts. The Poland Act, however, while putting the selection process in non-Mormon hands was silent on the number of jurors. In the face of that silence, the court should have looked to territorial law, which set the number at 15. In otherwords, the trial court mistakenly took the position that the Poland Act has imported wholesale all of the procedures of Article III federal courts into the territorial courts. In fact, the Poland Act had only selectively imported those procedures. Reynolds appealed to the Territorial Supreme Court, arguing that his inditment was illegal. He won and his first conviction was thrown out. The government then retried him, this time obtaining an inditment from a 15 member grand jury. On appeal to the Territorial Supreme Court the second time, Reynolds reversed course, arguing that the number of grand jurors should have been governed by federal law after all. The Territorial Court was not amused, and rejected Reynolds’ argument. This was one of the issues that then went to the Supreme Court, which ruled that the Territorial Supreme Court was correct. The effect of this ruling, which affirmed the exact scope of the Poland Act, was to place the machinary of the criminal law in Utah once and for all in the hands of federal officials. It also gave them a road map for negotiating the grand jury maze that had stymied prosecution of Mormons for more than five years.

What I find interesting about this whole thing is the extent to which the Church and the feds were engaged in legal brinksmanship. The procedural kibbitzing at the beginning of Reynolds does not make for interesting reading, to be sure, but it is the final act of a play that demonstrates a fair amount of political and legal moxie on the Church’s part. Imagine if Gordon B. Hinkley instructed the Utah State legislature to shut down all criminal prosecutions in the state….