All State and Local Officers (public servants) are subject to the inquisition of a Grand Jury!

Updated: Oct 2, 2019

by: Judge Paul L. Nally (ret.)

"Disclaimer – You are not to believe as true anything written here unless it is consistent with that which you already know to be true, or you are willing to research for yourself." ~ Judge Nally (ret.)

Click Here to Read Part I

Click Here to Read Part III

cont . . .


Part II [*]

Though the usual method of selecting and removing government officers is a matter of the elective franchise, there is an interim method (in addition to the recall) for holding all state and local public servants accountable by the people … the Grand Jury. Provision is specifically made in our Constitution for this process which acknowledges the authority of any Grand Jury in any County to make inquiry into the proper performance of an office by its elected holder.


This constitutional authority to a Grand Jury does not permit any State or local officer’s exclusion from the inquisition of this Court of Inquiry, especially judges.[1]



DUTIES OF INDIVIDUAL GRAND JURORS

Our Constitution provides that Grand Jurors are to be Judges of the Law and the facts. Being ordinary citizens and drafted for a specific time, ranging from 2 months to 6 months (with 3 months being the norm), they are known in the Law as “Quasi-Judicial Officers”, but for their term, they are, and make no mistake about this, Judges; and they are clothed with the awesome power of the Common and Statutory Law in this State to investigate and prosecute crime wherever, and in whatever office, it might be found.[2]


The body of the Grand Jury is divided into two parts, the Chief Judge (the foreperson) and the “panel” of the other Judges (jurors). Together, they are known as the Tribunal or simply, the Grand Jury.


THE FOREPERSON



  • The Chief Judge (foreperson) has the duty to manage the daily affairs of the Tribunal,

  • He sets the schedule of their proceedings,

  • He maintains order among the body (usually in accordance with Robert’s Rules),

  • He creates committees and assigns members (usually on a volunteer basis first),

  • He swears witnesses to a statutorily required oath, and

  • He must sign each and every indictment and special or general presentment.

(Note: as part of his duty of scheduling his Court’s proceedings, the Foreman usually schedules the DA to present his complaints first, then, if any juror has an issue to bring before the body, it would be scheduled, and lastly, any citizen petitioning to be heard must be scheduled.)


INDIVIDUAL JURORS


The normal duty of the individual Jurors is to hear cases presented by the district attorney which usually precedes any other business. Although most every case has been preceded by a magistrate’s determination of probable cause, it is still necessary that, unless knowingly waived in writing, no felony may be prosecuted without first, the Grand Jury’s judgment of the law under which the charge is made, and second, there is the finding of probable cause, or lack thereof, by its members diligently inquiring into the evidence and witnesses in the case. It is important to keep in mind that this dual probable cause determination is not a mere exercise in duplicity. The Grand Jury is acknowledged to be clothed, in criminal cases, with a power not acknowledged by our Constitution to any other Judge; the power to JUDGE the Law … which no Article VI judge enjoys … nor dies a district attorney.


It should not go unnoticed that at this stage, if a Grand Jury, or one of them, might wish to question the accused, then the accused may be summoned and brought before that body for inquiry as to any evidence he might wish to proffer upon the question of probable cause. However, he may not be compelled to testify without a grant of immunity. Nor should it go unnoticed that criminal complaints may be laid before this Court by private citizens, or their attorney, who, under current case and statutory law, may stand in the place of a state’s prosecutor (the DA or the State’s Attorney General).


Individual jurors may be assigned to various committees to perform inspections or investigations known to the Common Law. These include:


  • Periodic Inspections,

  • Annual Inspections,

  • Optional Inspections,

  • Recommendations as to taxing authorities and transportation concerns to state and local infrastructure bodies, and

  • Investigative Committees (to make initial inquiries of crimes which may have been committed by county, state, or federal officers or others) which may result in an independent Grand Jury Investigation leading to possible indictments or presentments, either general or special.


THE GRAND INQUEST


Though the presentment of cases by a district attorney requires the perceptive attention of each Juror, it must be understood that there could be times when an individual Grand Juror obtains information of some serious allegations of impropriety, or worse, crimes committed within his government; or it could be that a citizen petitions the Grand Jury to be heard upon such a matter. In either case, it becomes the duty of the Grand Jury Foreperson to schedule a hearing upon the complaint, and, if the jury is convinced of the seriousness of the matter, they may commence an investigation; and depending upon whether a government office, or officer, is involved, it is possible that the district attorney may be incompetent to act as the Jury’s legal advisor. In such a case, it shall devolve to the Grand Jurors assembled to determine whether some member of the district attorney’s office, or member of the Prosecuting Attorney’s Council might be qualified to substitute; or if another district attorney, or even an attorney in private practice, might have to be suggested to be employed by the district attorney’s office as a substitute.


As a matter of law, when a district attorney is disqualified, the method is for the district attorney to notify the Governor of his disqualification, in which case the Governor shall appoint the replacement. That statutory scheme, however, does not prohibit the Grand Jury from making a recommendation to the Governor as to whom they might prefer for their legal advisor.


But, in every case, it is the discretion of the Grand Jury to decide whether it even needs the assistance of counsel as it is possible that the petitioner before them, or a member of their tribunal, may be sufficiently knowledgeable to inform that body of the law upon which the case is predicated.


It is in such cases of independent Grand Jury investigations, that the secrecy of the Grand Jury’s proceedings is paramount, even to the exclusion of district attorneys and judges. And that is true especially in the event that information of crime comes from a citizen of the county. The imparting of that information and evidence constitutes a privileged communication before those judges, even to the exclusion of whoever stands as the legal advisor of the Grand Jury unless the Grand Jury determines it requires legal advice or the advisor’s presence, until the investigation is complete and a presentment is decided upon.[3] If no presentment is returned, that information, i.e., the identity of the witness or prosecutor (as the case may be), remains privileged and may not be revealed except as provided by law.


Part III: CITIZEN’S ACCESS

TO BE CONTINUED . . .

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[*] O.C.G.A. § 1-3-2, As used in this Code or in any other law of this state, defined words shall have the meanings specified, unless the context in which the word or term is used clearly requires that a different meaning be used.


See also, rules of statutory interpretation, some illustrative works of which are Crawford, THE CONSTRUCTION OF STATUTES (1940), Sutherland, STATUTES AND STATUTORY CONSTRUCTION (3rd cd., Horack, 1943), and Sanders and Wade, LEGAL WRITINGS ON STATUTORY CONSTRUCTION, 3 VAND. L. REV. 569 (1950).

[1] Ga. Const., Article II, § III, Paragraph I, Suspension and Removal of Public Officials

(a) As used in this Paragraph, the term "public official" means the Governor, the Lieutenant Governor, the Secretary of State, the Attorney General, the State School Superintendent, the Commissioner of Insurance, the Commissioner of Agriculture, the Commissioner of Labor, and any member of the General Assembly.
(b) Upon indictment for a felony by a grand jury of this state or by the United States, which felony indictment relates to the performance or activities of the office of any public official, …

Ga. Const., Article VI. § VII. Paragraph VII, Discipline, removal, and involuntary retirement of judges

(a) Any judge may be removed, suspended, or otherwise disciplined for willful misconduct in office, or for willful and persistent failure to perform the duties of office, or for habitual intemperance, or for conviction of a crime involving moral turpitude, or for conduct prejudicial to the administration of justice which brings the judicial office into disrepute. …
(b)(1) Upon indictment for a felony by a grand jury of this state or by a grand jury of the United States of any judge, …

[2] O.C.G.A. § 1-1-10(c) The following specific laws and parts of laws are not repealed by the adoption of this Code and shall remain of full force and effect …:

(1) An Act for reviving and enforcing certain laws therein mentioned and adopting the common laws of England as they existed on May 14, 1776, approved February 25, 1784.


[3] In re Quarles, 158 U.S. 532, 535-536 (1895), “ … and such information, given by a private citizen, is a privilege and confidential communication, for which no action of libel or slander will lie, and the disclosure of which cannot be compelled …”

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