If State Law Allows Tennessee Citizens to Approach a Grand Jury, Why is Walter Fitzpatrick in State Prison?

FINDING:  EACH JUDICIAL DISTRICT CONDUCTS BUSINESS INDEPENDENTLY

by Sharon Rondeau

(Oct. 29, 2014) — On Monday, The Post & Email reported that a group of citizens had applied and been granted one or more hearings by the Davidson County, TN grand jury earlier this year concerning an allegation that Lt. Gov. Ron Ramsey and Speaker of the Tennessee House of Representatives Beth Harwell had broken the law pertaining to appointments to the Judicial Nominating Commission.

Davidson County is in Tennessee’s 20th Judicial District, whose new District Attorney General is Glenn R. Funk.  Under Funk’s photo on the district’s website, a court case from 1816 is quoted which reads:

The District Attorney General

“He is to judge between THE PEOPLE and the government; he is to be THE SAFEGUARD of the one and the advocate for the rights of the other; he ought not to suffer the innocent to be oppressed or vexatiously harassed, anymore than those who deserve prosecution to escape; HE IS TO PURSUE GUILT; he is to protect innocence; he is to judge the circumstances, and, according to their true complexion, to combine the public welfare and the safety of the citizens, preserving both, and not impairing either; he is to decline the use of individual passions, and individual malevolence, when he cannot use them for the advantage of the public; he is to lay hold of them where public justice, in sound discretion, requires it.”

Catherine Fout vs. State of Tennessee, 4 Tenn. 98 (1816)

However, the Fifth Amendment to the Bill of Rights states that the safeguarding of the citizenry against an overzealous government prosecutor is the function of the grand jury.

One of the citizens who testified to the Davidson County grand jury, John Jay Hooker, is currently an independent candidate for governor and has been involved in Tennessee politics for many years.  He opposes the current constitutional amendment to be decided by voters this coming Tuesday which, if approved, would allow the governor to appoint appellate and higher-level judges with the approval of the legislature.

The Tennessee constitution states that “the Judges of the Supreme Court” and “The Judges of the Circuit and Chancery Courts, and of other inferior Courts” are to be elected by “the qualified voters” of “the State” or “of the district or circuit to which they are to be assigned,” respectively.

The Tennessee Bar Association (TBA) favors the constitutional amendment, referred to now as “The Tennessee Plan,” claiming that it prevents politics and money from influencing judges.  Quoting Tennessean and seventh President of the United States Andrew Jackson, the TBA concludes its pamphlet advocating for the amendment with, “A good Judiciary lends much to the dignity of a state and the happiness of the people…a bad judiciary involved in party business is the greatest Curse that can befall a country.”

In a search of numerous internet pages using key words from the Andrew Jackson quote, The Post & Email was unable to find any attribution of the saying to Andrew Jackson other than in the TBA publication.  We were, however, able to find “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary” attributed to Jackson in more than one location.

The Tennessee Plan utilized a Judicial Nominating Commission to purportedly inform the public on the performance of judges for a “retention or removal” vote of the people following the respective judges’ eight-year terms.

The Judicial Nominating Commission was not renewed by the Tennessee legislature in July of last year.  However, according to Judgepedia, “Governor Bill Haslam issued Executive Order No. 34 and opted to create his own judicial nominating committee to continue the old judicial selection process, until voters had a chance to vote on the constitutional amendment. The commission was titled The Governor’s Commission for Judicial Appointments.^[2][3][4]“

Judges in Tennessee have long been protected by the legislature, higher-level judges, and attorneys tasked with reviewing evidence and issuing reprimands.  The former Court of the Judiciary, composed mostly of attorneys, was changed in 2012 by the legislature to the Board of Judicial Conduct (BJC), which performs the same function as its predecessor.

On October 23, the BJC issued a reprimand of Davidson County General Sessions Judge Casey Moreland.

Hooker, 84, counts among his friends the late Robert F. Kennedy, for whom he worked as a special assistant from 1961-1962 while residing with the Kennedy family in Virginia.  Hooker has his own Wikipedia entry in which he is described as an attorney from a prominent Nashville family descended from Founding Father William Blount, who also served as governor of Tennessee.  Hooker has opened his own law firm; run for judge, U.S. Senate, and Congress; run for Tennessee governor three times, including currently; and filed suit against the state supreme court for having allegedly been fraudulently appointed by a prototype of The Tennessee Plan.

On Monday, The Post & Email contacted both Harwell and Ramsey’s offices for comment on the Davidson County grand jury recommendations, which did not rise to the level of indictments, but received no response from either.

Hooker has filed a complaint with the BJC against Tennessee Supreme Court Chief Justice Sharon Lee, naming as respondents the other four state Supreme Court justices; the president of the TBA; Gov. Bill Haslam; and Herbert Slatery III, who Lee swore in several weeks ago as Tennessee’s new attorney general.

In his petition, Hooker states that Lee committed a “Class E felony” by soliciting prospective votes in favor of Amendment 2 through a letter attached to an email sent by TBA President Jonathan O. Steen to other TBA members.

Lee and two other Supreme Court justices were retained in the August 7 elections by a vote of Tennessee citizens.  Ramsey, a Republican, had led a campaign to unseat the three, who are Democrats.

In its investigation of the operation of the Davidson County grand jury, The Post & Email discovered that complaints about hand-picked grand jury foremen in Tennessee date back at least two decades on the internet. As of publication time, we are still attempting to learn how the Davidson County grand jury foreman is selected.

More recently, CDR Walter Francis Fitzpatrick, III (Ret.) discovered that grand jury foremen in Tennessee’s Tenth Judicial District are hand-selected by judges and serve for decades if the judge so desires. In late 2011, Judge Amy F. Armstrong Reedy contacted bank president and attorney Jeffrey Cunningham at home in the evening to ask if he would serve as her next grand jury foreman.  Fitzpatrick acquired appointing orders from various Tennessee counties which showed that foremen were routinely appointed by criminal court judges without any apparent vetting and without having first been legally empaneled as a juror.

During the early 1980s, at least one Tennessee judge stated that the appointed foreman met the requirements of state law to serve as a foreman.  Other judges, including Judge Jon Kerry Blackwood and those in the Tenth Judicial District, signed appointing orders which contained wording not alluding to the law governing the selection of jurors.

In the fall of 2009, Fitzpatrick first discovered corruption in Tennessee grand juries when he found that Monroe County grand jury foreman Gary Pettway had been serving for at least 20 years, later confirming that Pettway’s term was 28 years.  Through a Public Records Act request, Fitzpatrick was informed that no appointing order or oath of office was on file for Pettway.  Over the last five years, Fitzpatrick has demonstrated that if a citizen in the Tenth District approaches a grand jury with unwelcome evidence of corruption on the part of public officials, the power of the grand jury is turned against the individual by issuing indictments under the influence of the judicially-selected foreman.

In June, Fitzpatrick was tried on three felony charges and a misdemeanor charge after having submitted several packets of what he considered to be compelling evidence that judges, prosecutors, law enforcers and then-grand jury foreman Jeffrey Cunningham were breaking the law.  During a pre-trial hearing, Cunningham, who was allegedly the victim of Fitzpatrick’s actions, denied having filed a criminal complaint against him, and no police report was produced.  Nevertheless, the trial jury convicted Fitzpatrick on two felony charges, with a three-year sentence imposed on August 19 by Blackwood.

Although Fitzpatrick named Cunningham as guilty of misconduct in his petitions, Cunningham did not recuse himself from considering them.

Blackwood was reportedly assigned by the Tennessee Supreme Court to preside over Fitzpatrick’s trial and sentencing despite his prior knowledge of Fitzpatrick’s efforts to expose the corruption in the state courts.

On October 20, a hearing was conducted by Blackwood to consider Fitzpatrick’s motions for a new trial and to suspend judgment.  Two days later, citing his appointment by the Tennessee Supreme Court, Blackwood denied the motions, simply stating that they were “not well-taken.”

On Monday, The Post & Email contacted Funk’s spokesperson, Dorinda Carter, with the following questions, the responses to which appear in bold:

Hello, Ms. Carter, I just left you a VM regarding some questions I have on the recommendation to indict Speaker of the House Beth Harwell and Lt. Gov. Ron Ramsey for allegedly appointing members to the Judicial Performance Evaluation Commission who might not have represented the makeup of the state’s population.

http://archive.tennessean.com/assets/pdf/DN222950926.PDF

I am trying to find out if the recommendation to indict ever went forward.  From perusing the internet, it looks as if DAG Funk did not pursue it.  Was evidence presented that Harwell and Ramsey “willfully an [sic] arrogantly ignored the law…?”  Were Ramsey and Harwell ever interviewed?  No charges have been brought. No one from our office is present when the grand jury conducts interviews so I am unable to answer this question.

Are average citizens permitted to present evidence to the grand jury at any time? Yes, per TCA 40-12-104

I am also wondering if the current Davidson County grand jury foreman was selected by the judge or by the grand jurors themselves once they are empaneled.  I recall reading that a former grand jury foreman, Eugene Grayer, who was chosen by the judge was a convicted felon, and many cases had to be reviewed as a result. Yes, the Judge appoints the foreman. The Criminal Court Judges have asked our office to run records checks on all members of the grand jury including the foreman.

http://bigstory.ap.org/article/nashville-da-says-grand-jury-foreman-was-felon

If the foreman is picked by the judge, what criteria are now used to make sure that he or she qualifies under TCA 22-2-314?  See above.

I am also seeking to obtain a comment from grand jury foreman Arnett Bodenhamer if possible, as he provided a statement to The Tennessean on this matter.  I can’t speak for the foreman.

TCA 40-12-104 reads:

TENNESSEE CODE ANNOTATED
© 2014 by The State of Tennessee
All rights reserved
*** Current through the 2014 Regular Session ***
Title 40  Criminal Procedure
Chapter 12  Grand Jury Proceedings
Part 1  General Provisions
Tenn. Code Ann. § 40-12-104  (2014)

40-12-104.  Application to testify by person having knowledge of commission of offense.

(a) Any person having knowledge or proof of the commission of a public offense triable or indictable in the county may testify before the grand jury.

(b) The person having knowledge or proof shall appear before the foreman. The person may also submit the sworn affidavits of others whose testimony the person wishes to have considered.

(c) The person shall designate two (2) grand jurors who shall, with the foreman, comprise a panel to determine whether the knowledge warrants investigation by the grand jury. The panel may consult the district attorney general or the court for guidance in making its determination. The majority decision of the panel shall be final and shall be promptly communicated to the person along with reasons for the action taken.

(d) Submission of an affidavit which the person knows to be false in any material regard shall be punishable as perjury. An affiant who permits submission of a false affidavit, knowing it to be false in any material regard, is guilty of perjury. Any person subsequently testifying before the grand jury as to any material fact known by the person to be false is guilty of perjury.

HISTORY:Acts 1978, ch. 727, § 1; modified; T.C.A., § 40-1626; Acts 1995, ch. 213, §§ 1-4.

On Wednesday, The Post & Email followed up with Carter by asking, “Thank you very much, Ms. Carter.  Do you know if the foreman was selected by the judge from the group of empaneled grand jurors or externally, through another process?” to which she responded, “I’m not sure about the judge’s process. His secretary is Tamika Clarke at 615.880.3404.  Hope this helps.”

Clarke works for Judge Monte Watkins of Davidson County Criminal Court Division V.

We then contacted Clarke, with whom we had also spoken on Monday.  At that time, we had asked about the report that Grayer had served as Davidson County grand jury foreman as a convicted felon, to which she had responded that she “could not comment” on it.

In Wednesday’s conversation, we asked Clarke if the grand jury foreman is chosen by the judge from within or outside of the grand jurors empaneled from computerized lists of drivers’ licenses and other public information, to which she responded, “I expect the foreman could be selected either way.”

Clarke told us that the grand jurors, including the foreman, are sworn in on their first day of service.  She said that the district attorney performs background checks on all grand jurors, which also includes the foreman.

When we asked if a grand jury foreman had ever served for two or three decades, Clarke responded that she had “never heard” of a foreman serving for that long but referred us to the district attorney’s office for the actual records.

We asked Clarke if we could contact the grand jury foreman but were told that the names and contact information of the grand jurors are never given out to members of the public.

In the Classified section of The Tennessean, in what appears to be a notice of a grand jury meeting on September 17, 2014 in Robertson County, the grand jury foreman is identified with contact information, with a citation to the law referenced by Carter which allows for citizens to present evidence to the grand jury.

The same wording with different identifiers appears as a Legal Notice in the September 20, 2010 edition of The Murfreesboro Post.  The Monroe County Buzz published a similar notice on September 2 of this year naming June Thompson, who has served for two previous and consecutive terms, as Monroe County grand jury foreman.

In Lawrence County, TN, after researching and finding the name of the foreman, Arthur Jay Hirsch wrote to him to request a subpoena to testify to the grand jury in order to protect himself from the possibility of the same situation faced by Fitzpatrick when the McMinn County grand jury issued indictments against him, apparently at the request of then-Criminal Court Judge Amy F. Armstrong Reedy and then-District Attorney General R. Steven Bebb.

Clarke told us that it appeared to her that “different jurisdictions” conduct business differently throughout the state based on the information we shared with her about the Tenth Judicial District.  Connie Turner of the Administrative Office of the Courts (AOC) had suggested the same when we spoke with her about the denial of public records to not only us, but a resident of Tennessee who is a “citizen of this state” in accordance with the wording of the Tennessee Open Records Act.

Of his numerous submissions to the McMinn County grand jury, Fitzpatrick stated both before and after his trial that nothing stated within them was misleading or untruthful.

Transported to the Bledsoe County Correctional Center (BCCX) on or about August 26, Fitzpatrick is eligible for parole in early March of next year.  But on what were his convictions based, given TCA 40-12-104?

Court and grand jury corruption in other states has also seen citizens jailed, including Terry Trussell of Dixie County, FL.  Unlike Florida Gov. Rick Scott, Haslam has not responded to citizens’ reports of corruption and graft within the state courts.  Fitzpatrick’s congressman, Chuck Fleischmann, has been unresponsive, as have his state senator and representative.