Tom C. Clark

“ But it does not require that the grand jury consider whether 'the kidnaped person has not been liberated unharmed' and so allege in the indictment. Thus the grand jury is deprived of any knowledge of the element of the offense that makes it capital. Hence a grand jury in complete ignorance of the facts as to harm suffered by the victim at the time of release is required to return an indictment which will support the death penalty if proof of such harm is shown at the trial. ”

“ In attempting to do what it believes to be a great right the Court in reality does a great wrong to the administration of justice. The most serious result is that the Court's procedure allows the United States Attorney to secure an indictment for a dapital offense without the grand jury's knowing tat he is doing so. This deprives kidnaping defendants of the very protection of the Fifth Amendment that the Court professes to be enforcing. ”

“ They are simple and clear. Rule 7 (a) provides that an offense 'which may' be punished by death must begin by indictment, while a noncapital offense may be prosecuted by information, if indictment is waived. Rule 7 (b) repeats that an offense 'which may' receive a sentence for a term of years 'may be' begun by information 'if the defendant, after he has been advised of the nature of the charge and of his rights, waivers in open court prosecution by indictment.' In filing the information under the Kidnaping Act, the Government forecloses itself from seeking the death penalty. ”