Free from oppression? No, but ...

The idea that the government cannot hold any of its citizens to answer or punishments upon allegations of capital or otherwise infamous crimes without meeting stringent procedural guidelines as to trials can be traced into the dim recesses of the history of the common law.  This inquiry, trial by jury, extends to the Magna Carta of 1215, and further yet, to the Assize of Calarendon of 1166, both of which touch upon this question.

 The Sixth Amendment to the US Constitution, the lineage of which extends to that time, contains only seven requirements, but, for a wrongly and oppressively accused citizen, among these are two of imminent note.  Speedy processing and the scrutiny of the public are without doubt essential to a free people.

 When considering the constitutional propriety of rules of practice and procedure, whether imposed by statute or of common policy and practice, the reasoning of James Madison should not go unnoticed.  In Mr. Madison’s Speech to Congress of June 8, 1789 we read, “…, that no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights.”  [emphasis added]

 Viewing the concept of “disarming” the state’s government of power which would “trench” [cut into] a protectable guarantee, it would be an anathema upon the Sixth Amendment, and by extension to the people themselves, for a government, by its agents, to engage in any delaying tactic, including the failing to provide an immediate, hours not weeks, due process compliant hearing , or by forbidding a citizen’s right to petition and be heard by a presently seated grand jury for immediate presentment by them for the purpose of a citizen having his name cleared.  Holding a citizen in confinement or under any restraint of Liberties (i.e., bond) and allowing the appearance of an impugning or impingement of his reputation for an alleged criminal act through procedures designed for delay is not constitutionally permissible; nor is such permissible in the minds of a moral and ethical people who love Liberty.  The right to an unsullied reputation is in every way as sacrosanct as one’s right to privacy. 

 Every procedural scheme must be valued in the light of what is constitutionally permissible, weighted heavily on the side of the presumption of innocence and the presumption of wanton oppression.  At no time would delaying procedural conduct be more heinous than in those cases were the criminal prosecution of a citizen is that in which criminal charges are brought based upon malice, wantonness, and in retaliation for the exercise of the accused’s protectable guarantees; and at no time more so than when those guarantees are aimed at incidents of official corruption. 

 The 6^th Amendment imposes a legal non-discretionary duty upon the government.  If this requirement is not promptly met, either from oversight or a willful and maligned intent to continue “official punishment” not otherwise legally sanctioned in compliance with all due process, it becomes the absolute guaranteed right of the accused, through petition or remonstrance, to appeal to either the courts of inquiry or to the Grand Jury, whichever is earliest and consistent with  his sole discretion, for a redress of his grievance as to wanton accusation, unlawful arrest, illegal confinement and unwarranted restraint of an illegal bond.  The constitutional duty of either becomes immediate upon such appeal and may not be denied without creating a constitutional tort. 

Any argument that being let out on bond is a stay or a waiver to the immediacy of implementation of the due process requirements of the 6^th Amendment is a fallacy, a tale told by a fool.  Such argument is countermanded by the plain language requirement of the 5^th Amendment which is likewise susceptible to only one understanding and that is simply that no person “shall be held” …  Being placed on a bond is a “holding” for the purposes of State action.  And when there is no likelihood that a suspect is fleeing or about to flee, the requirement of the 5^th Amendment is mandatory, i.e., presentment by grand jury before any form of State holding is permissible. 

  Under Georgia Law, the commission of an intentional constitutional tort is defined as a Theft (O.C.G.A. 16-8-2) (see also Georgia’s definition of “property”, O.C.G.A. 16-1-3(13)) from which no Judge or District Attorney has immunity.  This is the reason for strict compliance with the oaths of office of those persons ... and the primary reason for the awesome power of a grand jury who are not held to answer for the proper performance of their duties and who sit, with criminal trial juries, as the only and highest authorities, as “judges of the Law”, no matter into whose business, that of a judge or a district attorney or a sheriff, they choose to stick their collective noses!  And may God have mercy on any into whose business they stick their noses and get even a whiff of corruption!

Paul L. Nally

Pine Log, Ga.