The Struggle . . . against ALL ENEMIES . . . domestic: Georgia's Grand Juries

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.)


Part I


INTRODUCTION

“It is the right of any citizen or any individual of lawful age to come forward and prosecute for offenses against the state, …” In re Lester, 77 Ga. 143, 148 (1886), Justice Hall.

In those nations whose legal system are derived from the Common Law, the “rights” of citizens are usually defined in the document which acts as the “legal founding document” of that nation and is generally referred to as a constitution. In law, this constitution is understood to be a “special contract” between a people and their neighbors who would serve the social and economic needs of the masses as their public servants.


Among the rights which are guaranteed to be protected to an individual citizen are, at least, the fundamental rights, i.e., the rights of speech, petition, assembly, and religion; and other rights may be specified, implied, or found in the Common Law, i.e., possession of weapons, choice, privacy, being heard, and travel.[1]


To understand the right of a citizen’s free access to a Grand Jury in Georgia, keep in mind the fundamental rights listed above, particularly petition, assembly, speech, and hearing.


“Woe to those who make unjust laws, to those who issue oppressive decrees, to deprive the poor of their rights and withhold justice from the oppressed of My people,” - Isaiah 10

It is for that Divine warning that our forefathers were influenced to bring forth the Grand Jury, fully intact from the Common Law, into the statutory text of our Constitution of this State.


ESTABLISHMENT OF THE CRIMINAL JURY SYSTEM


In Georgia, the establishment of the criminal jury system is comprised of two separate Article I “Courts of Inquiry”, The Criminal Trial Jury and The Grand Jury, and each is an independent constitutional entity; both are children of and adopted directly from the Common Law. They have a separate legal constitutional cognizance of both their nature and historical powers by their establishment in the Ga. Const., Art I, § I, par. XI. Their placement in Article I clearly makes them a tool available directly by the people or an individual citizen … not a tool to be controlled or abused by any other branch of our government; they are not agencies under the auspices, direction, or control of any other government entity, and they are not subject to legislative enactments beyond the General Assembly’s providing for the selection and compensation of those sworn to serve and the number necessary in any particular jurisdiction … nothing else.[2]


THE CRIMINAL TRIAL JURY

The Criminal Trial Jury is established as an Article I Court of Inquiry and is populated by 12, or not less than 6 in some cases, “Judges of the Law” (commonly referred to as jurors). These Judges (quasi-judicial officers) take an oath of office and their jurisdiction is limited to the facts and law of a particular case being tried before them. They are clothed with all the power of that body as was known to and acceptable by the Common Law; which is basically, to judge the facts and the law involved in the case before them. Their proceedings are not to be the subject of legislative, executive, or judicial encroachment. The focus of a criminal trial jury is to, first, determine the “rightness” and legality of the law under which a charge is made and as given them by the Judge, and, if finding no objection to the law, then to determine whether this law should be applied to the defendant in the case; then to determine the facts from the evidence before them, apply the facts to the elements of the law to be proved, and return a verdict based upon their individual and collective judgment as to whether the weight, relevance, and sufficiency of the facts proves to them, beyond a reasonable doubt, that the accused did, or did not, commit the act alleged or that a crime was even committed.


THE GRAND JURY


The Grand Jury is likewise established as an independent legal entity in that same constitutional provision and is, also, an Article I Court of Inquiry. It is populated by 16 to 23 “Judges of the Law” (jurors). The entire broad scope of the duties incumbent upon a grand Jury are contained in its oath[3] of office as applied to the statutes and found in the Common Law. The oath of a Grand Juror in Georgia is almost 400 years old.


There are two significant differences between a criminal trial jury and the criminal inquest of a Grand Jury. First, the Grand Jury’s primary focus is upon the question of whether a crime has been committed as opposed to a trial jury who presumes that a crime has occurred. And, in the fulfillment of that duty, the Common Law recognizes that the Grand Jury is possessed with extraordinary inquisitorial power. They may, upon nothing more substantial than a rumor, commence their inquiry into any entity’s (personal or governmental) conduct in this State. Second, a Grand Jury needs go only to the question of probable cause to believe that a crime has been committed and that a person or persons accused probably committed, or did not commit, the act. Upon probable cause, established by sworn testimony and other evidence, they may issue an indictment. A trial jury must go beyond a reasonable doubt in order to convict.


Secondly, unlike a criminal trial jury, the Grand Jury is not confined to just one or two laws upon which they may pass judgment and from which they may issue a presentment. One must realize that the enabling constitutional language, adopted from the Common Law and approved by the voters of this State relative to a Grand Jury in Georgia, brings the full scope of the powers and duties of grand juries as was known to the Common Law[4] into the legally enforceable governmental structure of this State, providing them legal recognition under our “Rule of Law”, and it is this broad power to be “Judges of the Law” which is of such great import to the protection of the Liberties of all citizens.

A current example is found in the Affordable Health Care Act. The mandate of that federal statute requires the taking of wages from employees and gives them little or no value in return, or, alternatively, deprives them, or punishes them, for their “right to choose” as to whether they even want insurance if they choose not to participate. This is a violation of the 4th Amendment’s Unreasonable Seizure and the Taking Clauses of the 5th Amendment;


“ … shall be free from unreasonable … seizures.” and
“ … nor shall private property be taken for public use, without just compensation.”,

and as such, its enforcement in Georgia counties creates a violation of our Theft By Taking statute (O.C.G.A. 16-8-2).


Should a local Grand Jury understand this relationship, they have remedial power in the Constitution and statutes of this State to rectify the matter. They can issue a Special Presentment declaring that a particular law is null and void and unenforceable in this State and serve notice of the same by Presentment upon both State and Federal officials. Should there be any resistance to their Order, they may then decide whether to issue indictments against any official(s), state or Federal, for violations of Georgia’s Theft Statute or appropriate Federal criminal statutes. This is a present case wherein the Law has been subverted and turned to an instrument of unlawful plunder, and it is within a Grand Jury’s jurisdictional power as “Judges of the Law” to invalidate (nullify) it and indict to trial those who brought such a law into existence.


As to the legal effect of those brief sentences in our Constitution, combined with the knowledge of the recognized Common Law powers and duties of grand juries, evolved over the centuries since the League of Twenty-Five Barons established in the Magna Carta, it is made plain that the following exist as a matter of Constitutional Law in this State,


  • The Grand Jury is a legal, singular and separate, independent governmental quasi-judicial and enforcement entity; not constitutionally assigned to any of the other three branches nor to be controlled by them in the proper exercise of its duties as defined in their oath; and the Legislature may not go beyond constitutionally approved statutes providing for the selection and compensation of that body,


  • The Grand Jury is established as an Article I Court of Inquiry separate from the Art. VI Courts, and each member is clothed as a Judge (quasi-judicial officer),


  • These Grand Jury Judges are acknowledged to exercise the power to be “Judges of the Law” in addition to all other powers known to the Common Law, and that power is not acknowledged to any other state officer or branch of this government,


  • The proceedings of a Grand Jury is self-administered by this tribunal of Judges,


  • Their Paramount Duty is to, in the language of the Magna Carta, “ … to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter.” Today, that command is found in the Ga. Const., Art. I, § I, par II and states, “Protection to person and property is the paramount duty of government . . . ”.


The jurisdictional limit of a Grand Jury is found in these words, it may not “violate a valid privilege whether established by the Constitution, statutes, or the Common Law.”[5]

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[1] U.S. Const., Amend. IX, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

See also, Ga. Const., Art. I, § I, par. XXIX, “The enumeration of rights herein contained as a part of this Constitution shall not be construed to deny to the people any inherent rights which they may have hitherto enjoyed.”


[2] Ga. Const., Article I. § I. Paragraph XI.

(a) ... In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts. (the semicolon after jury means that what follows applies to “criminal cases”.)

(c) The General Assembly shall provide by law for the selection and compensation of persons to serve as grand jurors and trial jurors.

[Here note the provision of Ga. Const., Article III. Section VI. Par. I mandate to the Legislature, (…”not inconsistent with this Constitution”…)]

See also, Prosecuting Attorneys’ Council of Georgia, 2015, Grand Jury Handbook, p. 4, “The oath should be administered to witnesses in an impressive manner, so that they will realize that it is a serious, judicial hearing, …”


[3] O.C.G.A. § 15-12-67(b) … “You as foreperson (or member) of the grand jury for the County of ______, shall diligently inquire and true presentment make of all such matters and things as shall be given you in the court's charge or shall come to your knowledge touching the present service; and you shall keep the deliberations of the grand jury secret unless called upon to give evidence thereof in some court of law in this state. You shall present no one from envy, hatred, or malice, nor shall you leave anyone unpresented from fear, favor, affection, reward, or the hope thereof, but you shall present all things truly and as they come to your knowledge. So help you God."


[4] 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, pursuant to their terms, until otherwise repealed, amended, superseded, or declared invalid or unconstitutional:

(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. (For the adopting Act of 1784, see Prince's 1822 Digest, p. 570; Cobb's 1851 Digest, p. 721; and Code of 1863, Section 1, paragraph 6.)


[5] United States v. Calandra, 414 US 338, 346, [Grand Jury] “ … may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law.”

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