Judge Walter C. Kurtz Denies Fitzpatrick’s Request for New Trial pb

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by Sharon Rondeau

Does Kurtz make law from the bench?

(Jan. 11, 2013) — On January 9, a request for a new trial was denied to Walter Francis Fitzpatrick, III after a Tennessee judge refused to allow a defense to be presented at the trial.

Attorney Van Irion has been representing Fitzpatrick since August 20, 2012.  Following the December 3 trial, Irion petitioned for a new trial contending that he had not been permitted to present a “necessity” defense which he had prepared.

Judge Walter C. Kurtz announced his decision at a 15-minute hearing which began 45 minutes later than scheduled because Assistant District Attorney General Paul D. Rush had “forgotten” about the hearing.  Kurtz fined Rush $35 for his tardiness, after which Rush apologized to Irion and admitted that he had been properly noticed of the hearing.

Rush was allegedly placed under investigation last summer for prosecutorial misconduct in an unrelated trial.

A complete audio of the hearing is here:  Wed., 9 JAN. 2013 MOTION FOR RETRIAL HEARING(2)

Rush spoke first and acknowledged that Fitzpatrick had met with an FBI agent to discuss jury-rigging and other corruption in the Tenth Judicial District.  Rush described “handwritten” documents which Fitzpatrick believed would be “destroyed” if he did not remove them from the courtroom with the intention of presenting them to the FBI to support his claims of judges hand-picking jury members in violation of Tennessee law.

Rush stated that the documents did not prove “corruption.”  “The facts don’t fit a self-defense necessity,” Rush told the judge, referring to statute TCA 39-11-609, which states:

Under Tennessee law, conduct that would otherwise be criminal is justified if it is immediately necessary to avoid imminent harm.  Moreover, the need to avoid harm must outweigh the harm to society or the interests of others brought about through the defendant’s act.

The documents were removed from the courtroom on December 7, 2011 and mailed to The Post & Email shortly thereafter.  A redacted version of a slip of paper used to collect personal information about prospective jurors was displayed along with handouts apparently given to grand jurors following their selection.  Two months later, the documents were handed to two FBI agents from the Joint Terrorism Task Force upon request.  Fitzpatrick reported that the documents were brought to the courtroom for the December 3 hearing.

The Post & Email has been in touch with the FBI agents on two occasions since that time.

Rush has excoriated The Post & Email for publishing the documents even though no personal information was released.  After The Post & Email filed an ethics complaint with the Tennessee Board of Professional Responsibility (BOPR), we were advised that prosecutors were granted “wide latitude” in making their arguments in court.  Shortly thereafter, the person who signed the letter, Nancy Jones, resigned her position.

Given the number of complaints filed against judges and prosecutors in Tennessee, it is very rare for a censure to be issued.

Neither Rush nor anyone else from the Tenth Judicial District has ever accused The Post & Email of misrepresenting the activity of Tennessee government as reported to us by Fitzpatrick and others.

Kurtz read from the statute which described the “necessity” defense as one to be used when a person needed to avoid “imminent harm.”  Kurtz stated that the law does not allow anyone to be a “self-appointed vigilante” to determine whether or not jury-rigging was occurring.

“The motion for a new trial is respectfully overruled,” Kurtz pronounced.  Irion did not speak during the session.

Previously, Kurtz admitted that the charging documents in the case were signed by an unauthorized person.  During the trial, Bruce Arp stated that he was no longer employed by the Monroe County Criminal Court but invoked the Fifth Amendment as to the reason.

Rush asked Kurtz if the imposition of the sentence would be stayed and for how long after a notice of appeal was filed.  “Assuming Notice to Appeal is filed, I’ll let you take it up with the court of appeals…” Kurtz said to Rush.

The hearing ended at 11:31 a.m. EST.

Of the outcome of the hearing, Fitzpatrick said that Kurtz used the term “vigilante” both during the trial and on January 9. He further said:

There is a trend in what’s going on here in East Tennessee.  Judge Kurtz called me a “vigilante,” and I heard him use that term in description of me for the first time on the third of December.  A vigilante is someone who goes out and takes the law into his own hands without consideration of any law enforcement.  They’re just acting on their own behalf.  Calling me a “vigilante” is…I have gone to every law enforcement agency; I have done everything that a reasonable man would do 100 times over to get law enforcement engaged. On Wednesday he denied me the defense of necessity, saying that, using the cases that he cited, we did not reach a threshold of emergency or exigent circumstances that allowed me to use that defense.

Van Irion did a great job, but he didn’t know on Wednesday that this was going to be Judge Kurtz’s position.  He gave some examples:  a guy came out of the cold and was trespassing, but it was OK because he was trying to save his own life…he talked about a ship in a storm breaking an embargo…Van Irion’s point was that in Tennessee, the statute allows anybody to use the defense; it doesn’t have any boundaries on it.  But Kurtz came in and said, “You have to meet these kinds of threat levels before you can make use of this defense.”

I was sitting there and thinking to myself that the day before I ran into these documents lying on the table, I was in front of an FBI agent telling her my life was at risk.  I told her that I had a target painted on my front and on my back.  I said, “You’ve declared me a sovereign citizen,” and this was before we knew about the actual training course materials.  When she asked, “Who’s looking to kill you?” I said, “The people who are involved in the Jim Miller murder because of the corruption that’s been exposed; Monroe County sheriff’s deputies are involved in this; Sweetwater police have been named.  Todd Sweet was one of the guys who told me that there were crooked cops in the Sweetwater Police Department who were looking for me.  I was one of the people in the beginning accused of murdering Jim Miller.  Nobody is investigating the murder of Jim Miller or the corruption in Monroe County.

After I realized what the documents were, I got home, mailed them to you so they weren’t in my possession, and then on the way home, what do I see parked on the street but a Monroe County Sheriff’s SUV?  So the day of the event, the afternoon of 7 December 2011 before my house was raided – and I could have been killed that night by Monroe County sheriff’s deputies- I called the FBI and said, “Excuse me, but I was in your office yesterday telling you that I was being targeted and under surveillance.  I have a Monroe County Sheriff’s SUV parked on my street right now.  So what did the FBI do?  They called the Monroe County Sheriff.  That was part of the search warrant.  They called Conway Mason and said, “He’s home.”  Then that night, a SWAT team came, guns drawn, coming into the house.  If they  had wanted to shoot me dead, they could have.  And over what?  These papers were not that important.  They didn’t need them back.

So on Wednesday, the judge said “vigilante” and that my actions were not conducted under the kind of necessity that he recognizes needs to be in place, but they were.  We far exceeded anything that the judge laid out.

Fitzpatrick noted that Kurtz presided over the trial of Jessica Kennedy Powers, who was accused of murdering Jim Miller but ultimately convicted of acting as an accomplice in the crime.  To date, Powers is the only person implicated in the crime, although Fitzpatrick has identified three men who he is certain actually committed the murder as a “government hit.”  Two of those named by Fitzpatrick have recently been arrested on federal drug charges.

“I’ve been a major player in the Jim Miller murder since the day of the murder,” Fitzpatrick told The Post & Email.  “Kurtz discounted the seriousness of my involvement in the Miller murder on Wednesday morning and discounted the connection between my involvement and the recovery of those potential juror questioners on 7 December 2011.”


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