The Struggle, Part III: Citizen's Access to Georgia Grand Juries

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 II

cont . . .

Part III

About the year 1848, a small book was published in France titled “The Law” in which the author, Frédéric Bastiat, commented,

It is impossible to introduce into society a greater change and a greater evil than this: the conversion of the law into an instrument of plunder. [this author’s emphasis]

It is for this very purpose that our Constitutional provision concerning this jury system was authorized to be imported from the Common Law by our forefathers and affirmed by the voters in the adoption of this body, this 4th and most powerful, branch of our government. Should any citizen, or member of a Grand Jury, believe that a law, in its operation within their society and within their jurisdiction, is unlawful, unjust in its application, or just simply bad law, the Grand Jury, upon being made aware of it, shall pass judgment upon it, either through presentment, by indictment, or the withholding of either. Should they find, as a matter of law, that such a statute commits an unlawful act in the violation of some criminal statute of their State, they may exercise their discretion to charge every state or federal lawmaker who passed such a law and the Governor, or President of the United States, who signed it into law, with a crime by special presentment, and may require indictment thereby. On the other hand, they may simply summon those to be indicted and offer them the opportunity to allocute their conduct, resign their office, and enter a written agreement never to seek or hold another office of public trust for the rest of their lives in exchange for the Jurors granting them immunity from prosecution. (See footnote *)

Though dictum at the time of Justice Hall’s writing, it was later raised to case law precedence through the holdings of two other State Supreme Courts. By the authority of the Full Faith and Credit Clause, the statement in the case of In re Lester, 77 Ga. 143 (1886) is the most succinct statement of both the right of a citizen to bring information to a Grand Jury and the duty of a Grand Juror receiving it, and the Grand Jury’s duty, upon receiving the information:

It is the right of any citizen or any individual of lawful age to come forward and prosecute for offenses against the state, or when he does not wish to become the prosecutor, he may give information of the fact to the grand jury, or any member of the body, and in either case, it will become their duty to investigate the matter thus communicated to them, or made known to one of them, whose obligation it would be to lay his information before that body.

Id. at 148, [Emphasis added]

As was held in the case of Illinois, vs. Parker, 374 Ill. 524; 30 N.E.2d 11; (1940);

Some courts hold that a stranger has a right voluntarily to bring facts to the knowledge of the grand jury. (In re Lester, 77 Ga. 143; State v. Stewart, 45 La. Ann. 1164).

And in the case of Brack v Wells, 184 Md. 86, 95-96 (1944) it was held;

… that the right of a private person to appear before the grand jury to make a complaint has been affirmed in the states of Louisiana, Alabama, Texas, and Georgia …

One must not miss the point that, in the State of Georgia, any citizen has the right to stand before a Grand Jury and present the evidence of which he has discovery, including questioning witnesses. And no person, or officer of the state, may obstruct him in the exercise of the constitutional rights which form the basis of this prerogative. Consistent with their oath of office, the Grand Jury MUST hear; otherwise they, themselves, would violate the Constitution and the criminal laws of both this State and this Nation.

An example of the proper functioning of a Grand Jury, in regard to citizen access, is found in a precedent case from southeast Georgia. Some 68 years after Lester, from Liberty County where a citizens committee, through their hired attorney, approached a Grand Jury and was successful in the removal of a Sheriff of the County. In that resulting Georgia Supreme Court case, Justice Candler, writing for the Court, said of the citizens committee and their attorney:

'As to the defendants John W. Underwood and the individual members of the so-called Citizens Committee, the petition shows no more than an effort on their part to assist the grand jury, as any good citizen should, in a proper discharge of the duties imposed upon it by law; …' Cook v. Sikes, 210 Ga. 722, 727; 82 S.E.2d 641 (1954)

Therefore, based upon these authorities, and the Common Law decision of Lord Chancellor Bacon in the Countess of Shrewsbury’s case, cir. 1612, wherein Lord Bacon wrote,

'… you must know that all subjects without distinction of degrees owe to the King tribute and service, not only of their deed and hand, but of their knowledge and discovery.',

it becomes without argument that in the State of Georgia the protectable guaranteed rights of a citizen, in his own person or by his attorney, to petition, peaceably assemble with, responsibly speak to, and be heard by those vested with the power of government for a redress of grievance includes a citizen’s right to appear before the Grand Jury, there to lay down the evidence of his discovery; for this is the Constitutional Law, the Statutory Law, and the Common Law in accord pursuant to the Rule of Law. In this Constitutional scheme, the State of Georgia is unique among the 50 States, and the ultimate maintenance of their government is left in the hands of citizens when in Grand Jury assembled.

As with any investigation, secrecy is paramount, and though this Court of Inquiry is clothed with the power to open its proceedings to public scrutiny (except when they deliberate the evidence), with or without the presence of members of the press, such is not usually done. This in turn gives rise to the question, to whom does a citizen, wishing to impart evidence to a Grand Jury, make his petition? The Foreman (Chief Judge) or any judge of that body is the answer, however, any member thereof may be noticed. This may be accomplished through the submission of a formal written petition filed either with the Clerk of Court styled as a petition to the Grand Jury, a letter, a phone call, a visit to the juror’s home, asking the Bailiff to inform the Foreman that the petitioner wishes to speak with the Foreman for a moment, or a chance meeting on the street.[1]

Due to the secrecy of a Grand Jury inquisition, it must be understood that the right of a citizen to petition a Grand Jury to be heard is a privileged communication. It is not within the authorized duties of a District Attorney or another Court’s Judge to inquire as to the reason; nor is it within the powers granted to District Attorneys, Judges, or Sheriffs to obstruct any citizen’s right to petition. Any attempt by any state or local actors to violate or obstruct this privileged communication is the violation of at least two state felonies and at least one, possibly two, federal felonies. It is solely the duty of the Grand Jury to determine if a petitioner is bringing information which touches their present service.

This awesome inquisitorial power of a Grand Jury coupled with the rights of citizens to petition, peaceably assemble with, responsibly speak to, and be heard by the Grand Jury is the last bastion of Liberty precluding the necessity of an oppressed people taking a death-grip upon the 2nd Amendment.

We, the citizens, must be fully informed and knowledgeable, both of our duties as citizens and our responsibilities and powers when in Grand Jury assembled, when appeal is made to that body of our neighbors … the most powerful of our ‘public servants’.

Paul L. Nally

Former Judge,

827th Militia District,

Bartow County, Georgia

(formerly Justice of the Peace Court)


Case Law Cites:

Principal Purpose
One of the primary functions of grand jury is to act as shield against arbitrary prosecution and errant judges.

Ill.-People v. Rodgers, 92 IIl.2d 283.

Ga. - U.S.-Wood v. Georgia, 370 U.S. 375,

Ala.- Carr v. State, 187 So. 252, 28 Ala:App. 466,

Alaska - U.S. v. Caldwell, 8 Alaska 117,

Cal. - People v. Foster, 243 P. '667, 198 C. 112,

Fla. - Skipper v. Schumacher, 124 Fla. 384, appeal dismissed and certiorari denied 299 U.S. 507 - Lake v. State, 100 Fla. 373, affirmed on rehearing 100 Fla. 373 - Reed v. State, 94 Fla. 32,

Ind.-Adams v. State, 214 Ind. 603,

OkI . -Tweedy v. Oklahoma Bar Ass'n, 624 P.2d 1049,

United.States.- U.S. v. Donohue, D.C.Md., 574 F.Supp. 1269.

Investigate possible offenses

Ga. - Beckham v. O'Brien, 176 Ga.App. 518.

N.Y.-People v. Perez, 433 N.Y.S.2d 541 [purpose is to determine if crime committed and who committed it]

Duty and Confidentiality of Citizen’s Report of Crime

In re Quarles, 158 U.S. 532, 535-536 (1895)

[1] O.C.G.A. § 15-12-74. Grand jurors have a duty to examine or make presentments of such offenses as may or shall come to their knowledge or observation after they have been sworn. Additionally, they have the right and power and it is their duty as jurors to make presentments of any violations of the laws which they may know to have been committed at any previous time which are not barred by the statute of limitations.

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