Selecting the Grand Jury and the Foreman in Tennessee State: By the Numbers

WHAT IS THE LEGISLATIVE INTENT?

by Sharon Rondeau

Laws in the state of Tennessee do not allow for a separate, hand-picked grand jury foreman, but for decades, judges have twisted the statutes and Rules of Criminal Procedure to “rig” grand juries empaneled to review evidence and issue indictments

(Dec. 2, 2013) — As reported by The Post & Email exclusively last week, for the first time ever, a Tennessee deputy attorney general has declared a public policy position admitting that the “foreperson” of all grand juries in Tennessee is IS NOT A JUROR as Tennessee state statutes require.

In September, Assistant Attorney General of the Criminal Justice Division Kyle Hixson wrote a brief in which he stated that “the foreperson is appointed by the trial court” and not “impaneled” using the selection process mandated by state law.

The Post & Email now endeavors to walk experienced readers through the step-by-step, word-by-word process which Tennessee statutes mandate court officials to practice in order to impanel (construct) grand juries and trial juries (also called petit juries) in the “Volunteer” state.

The statutes require that at times prescribed by law, court officials invested with these duties shall randomly select, by either automated or manual means, the names of prospective jurors to be summoned for jury duty either as grand jurors or trial jurors (also called petit jurors) for service for specified lengths of time.

The first assembly of citizens is termed “prospective jurors,” as the two remaining rounds of selection are yet to be made.

Prospective jurors are to be selected “in such a manner as to assure proportionate distribution of names selected without opportunity for the intervention of any human agency to select a particular name and in a manner that causes no prejudice to any person (Tennessee Code Annotated [TCA] 22-2-304).

Under Tennessee law, prospective jurors are invested in the status of “jurors” as defined thusly:

“Juror” means any person who is a member of any jury, including a grand jury, impaneled by any court of this state [Tennessee] or by any public servant authorized by law to impanel a jury. “Juror” also includes any person who has been summoned or whose name has been drawn to attend as a prospective juror; (TCA 39-16-101).

Under this legal definition, judges who are “public servants authorized by law to impanel a jury” are possessed of, as a matter of law, standing and status of a “juror.”

In the second round of this lawful process of jury construction, through the actions of a clerk or jury coordinator and sheriffs, the court works to populate the “jury pool.” The court orders citizens surviving the first elimination round to participate in the third round, by way of sheriff’s delivered “summons,” to report to the court, under pain of civil penalty for failing to do so, on a certain date, at a certain time and to a certain place (TCA 22-2-306 and 307).

“Immediately after the jury pool has been summoned…the jury coordinator [or court clerk] shall create a list of the members of the jury pool, and a copy of the list of members of the jury pool shall be posted in the clerk’s office for public inspection” (TCA 22-2-308).

Here we discover the use of the phrase “members of the jury pool” as the Tennessee legislature intended the phrase to be defined and understood.

The phrase “members of the jury pool is foreshortened in other parts of the Tennessee Code Annotated such that it allows for the making of great criminal mischief as has been reported by The Post & Email for nearly four years.

TCA 22-2-309 states the civil fines applicable to those who fail to answer the sheriff’s delivered court summons without the court’s finding of good cause.  “Members of the jury pool” are assembled in the courtroom on the date, at the time and place appointed for impaneling jurors.

A clearer interpretation of the several statutes relating to the selection of jurors could read as follows:

Tennessee state law commands that the grand jury foreman must be found among those thirteen (13) individuals who are selected from ‘members of the jury pool’ (TCA 22-2-310), whose names are “to be written on separate slips of paper and placed in a box or other suitable receptacle and drawn out by the judge in open court…[t]he foreperson and the twelve qualified jurors whose names are first drawn constitute the grand jury for the term” (Rule 6, Tennessee Rules of Criminal Procedure). From this final group of thirteen (13) grand jurors, the criminal court judge may ‘appoint’ the grand jury foreman.”

TCA 22-2-310 requires that “the members of the grand jury and petit juries shall be made up as provided by law from the jury pool.”

TCA 22-2-310 should instead, at the very least, read something like this:

Citizens impaneled for service on the grand jury or in the petit juries shall be chosen as provided by law from the members of the jury pool.

The statute should then continue to read:

Once citizens are impaneled, they shall be recognized as members of the grand jury or members of the petit jury, respectively.

Members of the jury pool are different from members of the grand jury or members of a trial jury.  The critical distinction made is that the understanding of the word “members” changes over time as the process transitions people from the jury pool to actual jury service.

Criminal court judges in Tennessee have exploited the legislature’s failure to make this critical distinction, granting themselves the authority to hand- pick grand jury foremen “from wherever they choose” and employing them for years and sometimes decades.

The word “members” occurs again in TCA 40-12-206, which is entitled MEMBERS – POWERS and reads:

The [investigative] grand jury convened pursuant to this part shall consist of thirteen (13) members and up to five (5) alternates.

The statute also commands that investigative grand juries “shall be impaneled in the same manner as the regular grand jury.”

Identical language in TCA 22-2-310 would read:

Citizens selected and impaneled for service on the grand jury or in the petit juries shall be made up as provided by law from the members of the jury pool. The regular grand jury convened pursuant to this part shall consist of thirteen (13) members and up to five (5) alternates. The regular grand juries shall be impaneled in the same manner as the investigative grand jury.

The reworded statute could then continue with similar language identifying the number of people the state legislature requires to populate the trial jury panels.

Tennessee Code Annotated (TCA) 40-12-206 is the only state statute which details the composition of every Tennessee state grand jury. The law commands that all grand juries be populated with thirteen (13) jurors (members) and up to five (5) alternates. The law does not provide for the judicial appointment of a “foreman” into a Tennessee grand jury.

It can be stated clearly that the intent of the Tennessee legislature is that at least thirteen (13) people and five (5) alternates populate all state grand juries. All of these individuals must be randomly selected from “members of the jury pool” who answered their summonses.  Instead, criminals courts in Tennessee empanel 12 grand jurors, with the 13th “member” the hand-picked foreman.

TCA 40-12-206 makes no distinction among the jurors (members). There is no distinction or separate-identity, non-juror “foreman.”

The process by which all jurors are to be selected is described as (1) Randomly populate the “jury pool,” (2) Randomly select potential jurors from the “jury pool,” (3) “Summon” the potential jurors to court for random selection into the grand and trial (petit) jurors for identified term dates, and (4) “Impanel” the grand juries and trial jurors.

The Tennessee Rules of Criminal Procedure, which is supposed to be an approved refinement of the statutes, is also ambiguous.

Rule 6, Section (a), “Formation of the Grand Jury,” reads:

(1) Formation at a Regular Term. On the first day of each term of court at which a grand jury is required to be impaneled, the judge of the court authorized by law to charge the grand jury and to receive its report shall direct the names of all the qualified jurors in attendance for the criminal courts of the county to be written on separate slips of paper and placed in a box or other suitable receptacle and drawn out by the judge in open court. The foreperson and the twelve qualified jurors whose names are first drawn constitute the grand jury for the term and shall attend the court until dismissed by the judge or until the next term.

Applying our corrections, Rule 6 should read as follows:

On the first day of each term of court at which a grand jury is required to be impaneled, the judge of the court authorized by law to charge the grand jury and to receive its report shall direct the names of all the qualified jurors in attendance for the criminal courts of the county to be written on separate slips of paper and placed in a box or other suitable receptacle and drawn out by the judge in open court. The thirteen (13) qualified jurors whose names are first drawn from the jury pool as prescribed by law constitute the grand jury for the term and shall attend the court until dismissed by the judge or until the next term.

A rewrite is completely consistent with the following language found in Tennessee’s 10th Judicial District Handbook for Victims and Witnesses:

Grand Jury

A case transferred to circuit court by “binding over” must then be presented to the grand jury, a group of thirteen citizens chosen from the jury panel. One of these thirteen is the fore person and will preside over the grand jury.

Tennessee state law commands that the grand jury foreman must be found among the thirteen (13) individuals who are selected from “members of the jury pool” (TCA 22-2-310), whose names are “to be written on separate slips of paper and placed in a box or other suitable receptacle and drawn out by the judge in open court…[t]he foreperson and the twelve qualified jurors whose names are first drawn constitute the grand jury for the term” (Rule 6, Criminal Procedures).

No question remains but that criminal court judges are authorized to appoint the grand jury foreman, but only from that group of thirteen (13) people emanating from “members of the jury pool,” who were randomly selected in the third round of picks and then transitioned to become “members of the grand jury.”

No Tennessee criminal court judge is allowed to hand-pick any juror.

Representing the state of Tennessee, Hixson publicly declared in his September 2013 appeals brief that in Tennessee, grand jury foremen are not jurors.

Restating the state’s now first-time-ever publicly pronounced policy position more clearly:

  • The grand jury foreman is not a juror.
  • A criminal court trial judge individually and personally selects, then specifically delegates (appoints, employs) grand jury foremen in Tennessee.
  • The grand jury foreman does not come from a randomly-selected jury pool.
  • The grand jury foreman is not summoned to a courtroom to participate in the process of jury impaneling.
  • Tennessee state statutes that apply to jurors and jury duty do not apply to the grand jury foreman who is, rather, a paid Tennessee state employee.
  • Judicial appointment of a grand jury foreman who is a “non-juror, as Hixson described the office and process, is illegal under the Tennessee statutes.

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