Appeals Hearing Held in Fitzpatrick Case

ATTY. VAN IRION:  GRAND JURY WAS DEFECTIVE FROM THE OUTSET

by Sharon Rondeau

(May 21, 2015) — On Tuesday, oral argument was heard in the appeal of State of Tennessee v. Walter Fitzpatrick, 14CR69, in which CDR Walter Francis Fitzpatrick, III (Ret.) was convicted of “aggravated perjury” and “extortion” by a McMinn County, TN trial jury and sentenced to three years in prison.

Fitzpatrick is currently incarcerated at the Northwest Correctional Complex (NWCX) in Tiptonville, which is approximately 12 hours away by car from the office of his attorney, Van Irion, in Knoxville.

Fitzpatrick is a 1975 graduate of the U.S. Naval Academy, which Irion told the court early in his oral argument.

On March 18, 2014, Fitzpatrick was indicted on the aforementioned perjury and extortion charges, in addition to harassment and stalking, as he sat on a bench reading a book awaiting a decision on whether or not he would be allowed to testify relative to a petition he had submitted to the McMinn County grand jury.

Irion argued that one of the grand jurors who indicted Fitzpatrick was compromised, as she later testified that former grand jury foreman Jeffrey Cunningham had warned her that Fitzpatrick might have posed a danger to her and the other grand jurors, thereby making her “a victim.”  As a result, Irion claimed that the court had “no jurisdiction” to try the case resulting from the four grand jury indictments.

Speaking of the grand jury members, Irion told the court, “They can’t be a victim themselves.  They can’t have such a personal relationship with the potential defendant that they’re going to sit in there and influence the rest of the grand jury.  That’s why we don’t want the prosecutors involved in the deliberation.  There is precedent where prosecutors’ being present in the deliberation either is a way to void the indictment, or at least it was a very, very close call, depending on the circumstances…having a voting grand juror in there who is a victim of the crime is just too prejudicial…”

In January 2014, two months before Fitzpatrick was indicted, the same grand jury was seated at the McMinn County courthouse when Fitzpatrick brought in a petition asking to testify.  Cunningham refused, had Fitzpatrick escorted out of the courthouse by armed sheriff’s deputies, and then asked the deputies to escort out each grand jury member.  The deputies carried out Cunningham’s request, ensuring that the grand jurors and Fitzpatrick did not have an opportunity to exchange words in the parking lot across the street.

Irion recounted that the grand juror in question had testified during the pre-trial hearing on June 16 that she “felt threatened” by Fitzpatrick after having been “warned” by former grand jury foreman Jeffrey Cunningham about him.

Irion contended that Fitzpatrick, an “honor graduate of the Naval Academy,” simply “annoyed the wrong person,” resulting in the charges, trial and convictions on the perjury and extortion charges.

Questions or comments the judges posed were not audible because of where the recording device was situated in the courtroom.

“The only thing this man ever did was go to law enforcement and go to the grand jury with a petition asking to testify before the grand jury,” Irion said.  He told the judges that the state’s written brief had “urged the court to ignore all of the precedent” on a citizen’s right to petition his government for redress of grievances.

Irion appeared astounded that “criminal liability” for a constitutionally-protected right had been sought and achieved against his client.  He also claimed that the charge of “extortion” “requires a threat.”  He told the court that Fitzpatrick had not told Cunningham to “step down, or I will go to law enforcement.”

Similarly, Irion argued that “perjury” requires an intent to deceive.  He related the fact that during testimony, Cunningham affirmed that Fitzpatrick “certainly acts as if he believes” what he had written in his petitions to the grand jury submitted over a number of months.

The state’s attorney then argued that “Ms. Hicks,” the grand juror who Irion claimed was a victim of two of Fitzpatrick’s alleged crimes, was not a victim because Fitzpatrick was acquitted on one of the charges and the second was dropped by the judge.  The state’s attorney said that the issue was “moot” and that the court’s time should not be “wasted” discussing the matter.  He asked why Irion had gone to “so much trouble” to prove that the grand juror was a victim of the crimes.  He said that Ms. Hicks’ name did not appear in Fitzpatrick’s applications for a protective order.  “I may have misread the opening brief of the defendant, but I didn’t see any theory offered as to how Ms. Hicks is even arguably the victim of the extortion…” the state’s attorney said.

He then argued that Irion “may have argued” that Hicks was a victim of all of the charges based on “a misunderstanding of the law.”

Speaking of Fitzpatrick’s trial, the state’s attorney said, “It’s not as though he was just shepherded through the system and the jury rubber-stamped the indictment” by invoking the fact that Fitzpatrick was acquitted on one charge.  He described the jury as “unbiased.”

“There is no constitutional value to perjurious statements,” the state’s attorney argued.  He then brought up Fitzpatrick’s petition challenging Obama’s “claim to the presidency” made in Monroe County in the fall of 2009.  He said that “Mr. Cunningham” had testified that Fitzpatrick’s petition claims “were false.”  The state’s attorney acknowledged that Fitzpatrick believed that Cunningham was “serving illegally on the grand jury” which he said could have been interpreted as a “threat” to cause Cunningham to “step down from the grand jury, or I will file an application for a protective order to force you to step down.”  The state’s attorney then speculated that Fitzpatrick’s ultimate intent was “to harass you, annoy you, to cause your friends to call you and ask what is going on…”

While living in Monroe County in 2009, Fitzpatrick had inadvertently discovered that grand jury foremen are hand-picked by the criminal court judge and serve at the pleasure of the judge, often for consecutive years or even decades.  After spending months speaking with local law enforcement, the Tennessee Bureau of Investigation (TBI), FBI and other officials without result, Fitzpatrick attempted a citizen’s arrest on the 28-year-serving Monroe County grand jury foreman, Gary Pettway.

Now retired Judge Carroll Lee Ross then ordered Fitzpatrick arrested and jailed.  Fitzpatrick was jailed a total of five times in Monroe County for attempting to show that a judicially-appointed foreman was illegally influencing the grand juries.

On February 18, 2014, Fitzpatrick brought a summary of what he believed was convincing evidence of judicial and prosecutorial wrongdoing to the McMinn County courthouse for the grand jury’s consideration with new information since his attempt the month before to gain an audience with the grand jury.  After Cunningham approached him with an armed sheriff’s deputy while he awaited a decision on whether or not he would be allowed to testify, Fitzpatrick felt threatened and applied for a restraining order against Cunningham which Senior Judge Jon Kerry Blackwood denied.

Blackwood had presided over Fitzpatrick’s trial arising from his citizen’s arrest of Pettway on April 1, 2010.  During the trial on December 1 of that year, Fitzpatrick had challenged the jurors’ eligibility and found a juror who was serving in violation of TCA 22-2-314, which mandates a 24-month period between jury services.  Blackwood acknowledged the defect and dismissed the juror.  However, he insisted that the grand jury’s June indictments against Fitzpatrick were valid, despite having been signed by a foreman who was not only acquainted with Fitzpatrick, but had also served during the previous six-month term as a trial juror in Monroe County.

Fitzpatrick’s protective order application filed in February of last year did not ask that Cunningham be removed from the grand jury.  However, the state’s attorney argued that the jury was able to “make rational inferences” and “connect the dots” between the protective order request and “a threat” allegedly directed at Cunningham.

The state’s attorney maintained that if “the law meant what the defendant says it does, it would be open season on grand jurors.”  He said that “using the processes of government” to defame a public servant is not a protected constitutional activity.

When the state rested its case, Irion countered with, “the fact that Ms. Hicks was a victim of the crime of extortion was…addressed in the reply brief in the beginning of the arguments.”

Irion argued that the substance of Fitzpatrick’s petitions to the McMinn County grand jury had to do with how Cunningham had been “appointed” to the foremanship.  Irion quoted from a case heard by the Sixth Circuit Court of Appeals, also mentioned in his brief, which reportedly said, “You can’t have extortion charges for someone attempting to petition the government except under the most extreme circumstances, and that means that you can prove that they really didn’t want want any response from the government.”

Irion said that the trial jury did not “fix the indictment.”  “I’ve never seen a situation where a man was trying to petition the grand jury and ended up in prison,” he said.  Irion then recounted how Cunningham had taken “a law enforcement officer” over to where Fitzpatrick had been sitting on a bench on February 18, 2014 and quoted Cunningham as having told Fitzpatrick, “I’m not going to let you in front of this grand jury.  You shouldn’t come back here; in fact, I think what you’re doing is dumb.”  Irion then asked the court hypothetically how Cunningham’s statement to Fitzpatrick in the company of “an armed law enforcement officer next to him” was not “a threat.”

Cunningham is CEO and President of Athens Federal Community Bank.  He is also an attorney and member of the Tennessee Bar Association with a particular interest in “criminal law prosecution.”  Remuneration for the position of grand jury foreman is $10.00 daily.

Fitzpatrick’s February filing can be read here.

He told the court that the incident had been recorded, a copy of which is held by The Post & Email.

On Wednesday evening, The Post & Email was a guest on the American Liberty Live radio network hosted by Jeffrey Sisk speaking about corruption within the Tennessee courts and prosecutors’ offices resulting in a prisoners-for-profit operation.  Sisk stated that he was well-acquainted by having interviewed Dennis Schuelke, author of Attorneys Above the Law, on a number of occasions.

“This is the most absurd situation where this man has been in prison – prison, not county; prison, since last August, because he simply asked the government to look at how this grand jury system was being done.  Even if the guy’s crazy, even if he is constantly bugging people, there are ways to deal with that,” Irion said.

A judge then apparently asked a question which Irion answered with “Yes, Your Honor” twice, then explained that he had asked that the perjury charge be dismissed in a pretrial motion.  He recounted how Blackwood had reviewed and denied Fitzpatrick’s request for a protective order prior to the trial, during which Irion said that Blackwood had said in court that Blackwood “made a statement to the jury” as to “why I denied the petition.”

In a lengthy soliloquy during the sentencing hearing, Blackwood had called Fitzpatrick “a moral coward” for having accused him of wrongdoing in petitions to the grand jury and opined that Fitzpatrick had not “learned his lesson.”

Tennessee law allows any citizen who believes he has evidence of a crime to take it to his county grand jury.

Irion is then heard saying, “Thank you, Your Honor,” then a woman spoke, apparently ending the session, and the recording concluded.

The state’s and Irion’s briefs filed before the hearing can be found here.