SELECTION PROCESS MANDATED TO BE RANDOM, BUT JUDGES APPOINT FOREMEN
by Sharon Rondeau
(Jan. 13, 2014) — On January 12, The Post & Email spoke with a resident of Sullivan County, TN, who had business at the county courthouse located at 140 Blountsville Bypass, Blountsville, TN, on Thursday, January 9, 2014.
Sullivan County is located in the state’s Second Judicial District.
The citizen wished to inquire as to how the county’s grand juries are selected and asked to speak with the court clerk before proceeding to her appointment.
She asked the woman who presented herself as the court clerk how the grand jury foreman is selected, to which the woman responded, “The grand jurors choose the foreman from among themselves.”
Over the last four years, The Post & Email has reported on the process, composition and function of county grand juries, focusing on the state of Tennessee, where the foreman is chosen by a criminal court judge and can serve unlimited consecutive or non-consecutive terms.
In the Tenth Judicial District, which comprises Polk, McMinn, Bradley and Monroe Counties, it is well-known that judges select the grand jury foremen “from wherever they choose.” Contrary to indictments issued against Walter Francis Fitzpatrick, III and Darren Wesley Huff on June 3, 2010 which state that the foreman is a juror, Tennessee Deputy Attorney General Kyle Hixson stated officially in an appellate brief in September that the grand jury foreman is not and has never been a juror. Hixson contended that Fitzpatrick’s attorney erred when he claimed that the foreman who signed Fitzpatrick’s indictment had been serving illegally because the foreman is selected and retained in an entirely different manner from that of the grand jurors.
The Post & Email has reported previously that Tennessee code requires grand jury foremen to be jurors.
In Tennessee, grand jury foremen often serve for decades, with prosecutors and court personnel pointing to Rules of Criminal Procedure Rule 6g, which states:
(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 are reportedly reviewed by the Tennessee General Assembly for their lawfulness.
Since Fitzpatrick began raising questions about long-serving grand jury foremen in 2009, several such foremen have been replaced in Hamilton County, Monroe County, and McMinn County. The mainstream media described outgoing Hamilton County grand jury foreman Marsha Crabtree as having been “fired from her 20-year job,” and Crabtree herself described her foremanship as “a part-time county employee.” The judge who released Crabtree reportedly replaced her with “a friend” after Crabtree described her grand jury reports as “very critical of the Criminal Court system.”
In Monroe County, grand jury foreman Gary Pettway was discovered to have been working for 28 years without an appointing order or any evidence that he had ever been sworn in. On April 1, 2010, Fitzpatrick attempted to conduct a citizen’s arrest of Pettway for over-serving his term. There is nothing in Tennessee state code which differentiates a grand jury foreman from the other grand jurors.
The current case against Fitzpatrick now on appeal stemmed from his observation on December 7, 2011 that Judge Amy Reedy had been handpicking jurors from slips of paper containing their personal information which were handed to her not face-down or in a box, but openly, so that she could see the names. Fitzpatrick subsequently found the slips given to Reedy on a table in the lower courtroom and took them as evidence, as FBI Special Agent Roxane West had informed him that a “smoking gun” was needed for them to prosecute government officials in the Tenth Judicial District.
Last year, a judge-appointed grand jury foreman in Davidson County was found to have been a convicted felon and that all 919 cases over which he presided had to be reviewed, a story on which The New York Times reported. NewsChannel 5, which broke the story, reported that Eugene Grayer was appointed by Judge Monte Watkins without a background check as reported by District Attorney General Torry Johnson. Watkins reportedly would not speak to the press about the discovery of the convicted felon he had appointed to be grand jury foreman.
22-2-314. Limitation on jury service. — [Effective in Certain Counties. See the Compiler’s Notes.]
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.
[Acts 2008, ch. 1159, § 1.]
The indictments signed by temporary grand jury foreman Angela Davis on June 3, 2010 named Gary Pettway as “a juror.” Davis had been found to have served during the preceding term on a petit jury.
Defendants have the right to challenge the composition of a grand jury or trial jury as to their qualifications. On December 1, 2010, Fitzpatrick challenged his trial jury by asking if anyone had served on a jury within 24 months, to which one juror responded in the affirmative and was disqualified just prior to the commencement of the trial.
Tennessee law states that grand juries must contain 13 individuals selected by the process established by statute, but grand juries in Tennessee contain 12 people, with the foreman considered the 13th member. TCA 40-12-206 states:
The investigative grand jury convened pursuant to this part shall consist of thirteen (13) members and up to five (5) alternates.
The Tennessee District Attorneys General Conference describes a grand jury as:
a group of thirteen citizens chosen by the jury panel. One of these thirteen is the fore person and will preside over the grand jury.
The above wording also appears in the Tenth Judicial District’s Handbook for Victims and Witnesses.
When Pettway was replaced in 2011 in Monroe County, Chief Court Clerk Martha (Marty) M. Cook referred to the grand jury foreman as a “juror,” although selected differently from “the other jurors.” In the same county, Special Judge Jon Kerry Blackwood stated in open court that the foreman “is the same as any other juror.” However, Blackwood refused to investigate whether or not “Angela Davis” was the same person who had served in both 2009 and 2010 and signed Fitzpatrick’s June 30, 2010 indictment.
The District Attorney General of the Tenth Judicial District, R. Steve Bebb, has been accused of criminality by several members of the community but exonerated by the attorney general‘s office. However, the Tennessee General Assembly may remove Bebb from his post during the upcoming legislative session. On January 2, 2014, Assistant District Attorney General Paul D. Rush was censured by the Tennessee Supreme Court for violating one of the Rules of Criminal Procedure by conduct displayed during a 1999 murder case after the Board of Professional Responsibility (BOPR) cited him on ethics violations on September 30.. Last year, Rush was accused of unduly influencing McMinn County grand jury members but was not prosecuted by the attorney general’s office.
Last month, Fitzpatrick attempted to bring the Hixson brief and a criminal complaint against foreman Jeff Cunningham to the McMinn County grand jury, but he was told that the grand jury would not review it after Cunningham himself reportedly presented it to them.
Rush has accused this writer of a lack of “ethics” and “integrity,” and The Post & Email filed its own ethics complaint against Rush for what we perceived was defamation in the courtroom. At the time, the BOPR found that “there was no basis for the complaint.”
On January 13, The Post & Email contacted the Sullivan County courthouse to request information on the grand jury and was transferred to the jury coordinator, Mr. Tommy Kerns, who was very generous with his time in responding to our questions.
We asked Kerns how grand jury members are chosen, to which he replied that lists of drivers’ license holders are “randomly chosen by computer” to select the first round of potential grand jurors. He stated that a “new law” effective in 2009 mandates that “nobody is exempt except for medical or financial hardship.”
The District Attorney General of the Second Judicial District is Barry Staubus.
When we asked how the initial group was reduced to yield a new grand jury, Kerns stated that the judge “has full authority” to decide if a person has a conflict of interest with a case to be reviewed by the grand jury. The judge ultimately chooses between 16 and 18 slips of paper with the names of potential grand jurors which are reportedly laid face-down and picked out at random.
Kerns said that he and his deputy handle “paperwork” associated with failures to appear and formation of the new grand juries. The grand jury deliberates “in secret,” and Kerns said he has never been present during their meetings.
We asked how the grand jury foreman is selected, to which he responded that the foreman is selected by the judge and “stays the same” even as grand jury members come and go as their terms begin and end. The current Sullivan County grand jury foreman is reportedly a retired teacher who has been serving for eight years.
When queried about the responsibilities of the grand jury foreman, Kerns stated that “the grand jury foreman sits with the district attorney” and is “like a coordinator.” He said that the foreman “doesn’t have decision-making authority,” but rather, “keeps the flow of paperwork” going smoothly. When we asked if the grand jury foreman is a county employee, Kerns stated that he or she is not. He also said that the grand jury foreman does not vote with the grand jury in Sullivan County.
Kerns reported that the foreman receives $10.00/day and $.15/mile as compensation, the same as the grand jurors.
We mentioned TCA 22-2-314, which mandates that no juror can serve consecutive terms in Tennessee. According to Kerns, the law means that “you do not have to serve for two years,” but that if a person happens to have served and is summoned the following term, the person can serve if he or she chooses to. “If they say they served last year, I tell them they don’t have to serve, but if they say they want to, I’ll let them serve,” Kerns told us.
We asked Kerns if anyone had ever raised a question about a foreman serving for multiple years, to which he responded in the negative. He claimed that a long-serving foreman provides “continuity” which might not otherwise be present. “He could leave whenever he wants to,” Kerns added.
Kerns told us that the presiding Criminal Court judge, Robert Montgomery, has been appointed to an Appellate Court, to which he will transfer in September.
“I’m confident that we’re doing what’s right,” Kerns told us. He said that he is “99.9% sure” that any undue influence from the district attorney general on the grand jury foreman is not occurring in Sullivan County. Kern stated that “We’re public servants; we work for the citizens, and we have to remember that that’s #1.”
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Update, January 14, 2014: At 8:20 a.m. EST, The Post & Email received the following email from Mr. Kerns after having sent him a Word version of the above article:
Thank you for sending the article. Thank you for reporting accurately. It doesn’t need to be in the article but I am also the Circuit Court Clerk for the 2nd Judicial District. Again thanks for doing a good job of reporting. Tommy Kerns