- Law Cases
by Sharon Rondeau
(Feb. 8, 2013) — The Knoxville News Sentinel is reporting that more than 900 cases resulting in convictions in Davidson County, TN may have to be retried because the grand jury foreman was ineligible to hold the position during his three-month tenure.
The acting foreman, Eugene Grayer, had received a felony conviction in 1977 and was not eligible to serve according to Tennessee law. TCA 22-1-102 states:
22-1-102. Incompetent persons.
The following persons are incompetent to act as jurors:
(1) Persons convicted of a felony or any other infamous offense in a court of competent jurisdiction; or
(2) Persons convicted of perjury or subornation of perjury.
A criminal defense attorney who represented several clients indicted by the grand jury led by Grayer said that a guilty plea made at the time renders a case non-appealable from the defendant’s having forfeited his right to “challenge any defects in the grand jury.”
The felony record was discovered by “happenstance” when a clerk noticed Grayer’s name on an apparent list of people denied handgun permits, although the Sentinel indicates that Grayer was contacted for comment about his ineligibility at the telephone number listed on his handgun permit. Whether or not Grayer will retain his handgun permit is unclear.
A Criminal Court of Appeals will consider whether or not approximately 800 cases in Davidson County need to be retried as a result of Grayer’s having served as foreman illegitimately.
The Sentinel explains that while “grand jurors and trial court jurors” are “selected randomly from eligible members of the public,” grand jury foremen are chosen by the criminal court judge.
22-2-314. Limitation on jury service.
A juror who has completed a jury service term shall not be summoned to serve another jury service term in any court of this state for a period of twenty-four (24) months following the last day of such service; however, the county legislative body of any county, may, by majority vote, extend the twenty-four-month period.
In some cases, the foreman has served for decades at the pleasure of the judge, becoming an employee of the state rather than a representative of the people of the county or district. The Post & Email contacted the Tennessee Administrative Office of the Courts more than two years ago regarding the custom of retaining grand jury foremen for multiple terms and was told by spokeswoman Laura Click that that was the way it was done in Tennessee.
Historically, grand juries operated without the supervision of a prosecutor, conveying their findings to local law enforcement for further investigation. Lawyers and government representatives were barred from grand jury deliberations unless called as witnesses. In 1946, Congress amended the Federal Rules of Criminal Procedure (FRCP) to read that “presentments” from such grand juries comprising citizens were “obsolete.” However, that did not repeal or alter the Fifth Amendment, which states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
According to Cornell University Law School, “A person being charged with a crime that warrants a grand jury has the right to challenge members of the grand juror for partiality or bias, but these challenges differ from peremptory challenges, which a defendant has when choosing a trial jury. When a defendant makes a peremptory challenge, the judge must remove the juror without making any proof, but in the case of a grand juror challenge, the challenger must establish the cause of the challenge by meeting the same burden of proof as the establishment of any other fact would require. Grand juries possess broad authority to investigate suspected crimes. They may not, however, conduct “fishing expeditions” or hire individuals not already employed by the government to locate testimony or documents. Ultimately, grand juries may make a presentment. During a presentment the grand jury informs the court that they have a reasonable suspicion that the suspect committed a crime.”
There is nothing in Tennessee law stating that the grand jury foreman is not a juror him- or herself or that the selection process is different from that of the other jurors. However, the practice of judges selecting foremen is apparently justified by the Rules of Criminal Procedure issued by the Tennessee Supreme Court. Rule 6(g) reads:
(g) Appointment, Qualifications, Term, Compensation, Vote, and Duties of Foreperson.
(1) Appointment of Foreperson. The judge of the court authorized by law to charge–and receive the report of–the grand jury shall appoint the grand jury foreperson. When concurrent grand juries are impaneled, the court shall appoint a foreperson for each grand jury.
(2) Qualifications of Foreperson. The foreperson shall possess all the qualifications of a juror.
(3) Duration of Appointment. The foreperson shall hold office and exercise powers for a term of two (2) years from appointment. In the discretion of the presiding judge, the foreperson may be removed, relieved, or excused from office for good cause at any time.
(4) Duties of Foreperson. The grand jury foreperson has the following duties:
(A) to assist and cooperate with the district attorney general in ferreting out crime, to the end that the laws may be faithfully enforced;
(B) out of term, to advise the district attorney general about law violations and to furnish names of witnesses, whom the district attorney general may, if he or she deems proper, order summoned to go before the grand jury at the next term;
(C) in term, (in addition to the district attorney general who also has such authority) to order the issuance of subpoenas for grand jury witnesses; and
(D) to vote with the grand jury, which vote counts toward the twelve necessary for the return of an indictment.
(5) Compensation. The county legislative body determines the foreperson’s compensation, which must not be less than ten dollars ($10.00) per day for each day the foreperson’s grand jury is actually in session. The foreperson’s compensation may not be diminished during the term of appointment. The foreperson shall receive no other compensation for these services. The foreperson’s compensation shall be paid out of the county treasury in the same manner as jurors are paid.
The Rules of Criminal Procedure therefore conflict with state law, which says that no juror can serve a consecutive term. Some argue that the foreman is a special appointee as opposed to a juror like all of the others. In federal grand juries, the foreman’s work concludes at the same time as that of the other jurors, when all members of the grand jury are dismissed.
Because judges have wielded considerable power and influence over the grand juries for decades as part of a long pattern of government abuse of the citizens, in 1946, a group of World War II veterans confronted the McMinn County Sheriff’s Department to protest rigged elections, intimidation, police brutality and political cronyism, ending in the sheriff and his crooked deputies fleeing the area and an ethics group established to prevent corruption and rigged elections.
On April 1, 2010, Fitzpatrick conducted a citizen’s arrest of then-acting Monroe County grand jury foreman Gary Pettway, who had been serving for more than 20 years consecutively at the behest of the judges. Prior to confronting Pettway, Fitzpatrick had met with local law enforcement and spoken with Tennessee Bureau of Investigation and Knoxville FBI agents about Pettway’s violation of the law, but none would act. Instead of stopping Pettway from continuing in his compromised position, Fitzpatrick was ordered arrested by Judge Carroll Lee Ross, who was absent from the courtroom at that time.
Fitzpatrick has been jailed five times as a result of his attempts to bring attention to the corruption in Monroe County. He has been physically battered, robbed of his possessions with local police refusing to prosecute the perpetrators, and had his military pension garnished by two-thirds without due process.
Fitzpatrick has argued that the indictments against him were invalid because the grand jury foremen, Gary Pettway and later, Faye Tennyson, were themselves ineligible to hold the position. Nevertheless, each indictment proceeded to trial, with most resulting in convictions. The latest trial held on December 3 resulted in a suspended sentence, although Fitzpatrick’s attorney was not allowed to present a defense, in violation of Article I, Section 9 of the Tennessee constitution.
Prior to a trial conducted on December 1, 2010 at which Fitzpatrick represented himself, he challenged a petit juror’s presence on the jury in keeping with TCA 22-3-102, which states:
22-3-102. Challenge for general causes of incompetency.
Either party to an action may challenge for cause any person presented as a petit juror, in either a civil or criminal proceeding, who is incompetent to act as a juror under chapter 1 of this title or who has completed a jury service term in any court of this state within the previous twenty-four (24) months.
In May of last year, Fitzpatrick discovered laws passed by the Tennessee General Assembly in 1984 which had directed the criminal courts to reorganize into districts to allow for growth and a larger cross-section of potential jurors to review and hear cases. The courts ignored the order and continued to hold criminal defendants accountable at the county level. Jurors must be selected by automated means without the possibility of human intervention.
After his last incarceration, Fitzpatrick challenged the McMinn County grand jury to prove that it was functioning legally in light of the 1984 laws, with the foreman declaring that it was not a question “for them to decide.” The same foreman who served last year has been reinstalled this year in McMinn County.
In August of last year, The Chattanooga Times Free Press reported that allegations of corruption within the prosecutor’s office in the Tenth Judicial District, which includes McMinn, Monroe, Polk and Bradley Counties, were under investigation by three state agencies. No update on the alleged investigation has been provided by the Tennessee Attorney General’s office, and a prosecutor named in alleged improprieties is still serving in his position after pledging to step aside during the probe.
Last June Fitzpatrick told The Post & Email that “some judge or prosecutor somewhere is going to understand that we’re not doing this right.” State Senate Judiciary Committee Chairwoman Mae Beavers has also identified “lifelong chairmen” [foremen] as evidence of corruption within the courts.
Other violations including forgery, altered court transcripts, sheriff’s department confiscation of funds, and hand-selection of jurors have been documented and reported to state and federal authorities with no action taken. A court transcript produced after an arraignment hearing for Fitzpatrick was posted on the internet and watermarked “Friends of Politijab” when Fitzpatrick himself was unable to obtain a copy of it. The Post & Email later paid the required fee and obtained a copy which differed from that which Politijab had posted. A complaint filed against the court reporter, Denise Barnes, was dismissed with the statement, “There is no basis for the complaint.”
Tennessee Gov. Bill Haslam’s office has never responded to The Post & Email’s complaints of judicial corruption in a meaningful way.
Regarding the “screening” of grand jury foremen in Tennessee, the Knoxville News Sentinel reported:
According to [Davidson County District Attorney General Torry] Johnson, Grayer’s felony went unnoticed because in Tennessee grand jury foremen are not screened for eligibility the way other grand jurors and trial court jurors are. Regular jurors are selected randomly from eligible members of the public and compelled to serve, but grand jury foremen are appointed by criminal court judges and can chose [sic] whether to serve.
Johnson said his office will start running background checks on grand jury foremen as well.
Grayer was appointed by Judge Monte Watkins, who declined to comment on the situation. Johnson said he did not know how Watkins came to select Grayer.
“Typically judges appoint someone they are acquainted with,” he said. “They look for a responsible member of the community.”
According to Monroe County Chief Court Clerk Martha M. Cook, “The judge can pick the foreperson from wherever they choose.”
Fitzpatrick has been seeking other members of Tennessee’s Tenth Judicial District to join him in standing up against government corruption. He has accused the judiciary and Barack Hussein Obama of committing treason.
Tags: Barack Hussein Obama, Bradley County, citizen's arrest, Cornell University Law School, corruption, Davidson County, Faye Tennyson, Fifth Amendment, Gary Pettway, Grand Juries, grand jury foreman, indictments, judicial corruption, Laura Click, Martha M. Cook, McMinn County, Monroe County, petit juries, Polk County, presentments, Rules of Criminal Procedure, Tennessee, Tennessee Code Annotated, Tennessee constitution, Tenth Judicial District, The Knoxville News Sentinel, treason, Walter Francis Fitzpatrick III