Fitzpatrick Trial Postponed to June 23

WHERE IS THE EVIDENCE TO SUPPORT THE CHARGES?

by Sharon Rondeau

Is the McMinn County courthouse a place of justice or unfounded prosecution?

(May 23, 2014) — On Monday, May 19, at 1:00 p.m. EDT, a hearing was held at the McMinn County, TN courthouse in a case brought by the state against CDR Walter Francis Fitzpatrick, III (Ret.) on March 18 of this year.

A trial was scheduled for May 28 and 29, but the documentation to support the charges, called a “Bill of Particulars,” was not available, which caused the date to be changed to the end of June.

On March 18, Fitzpatrick had gone to the courthouse for the seventh time since November 2012 in an attempt to present criminal evidence to one of the two seated 2014 county grand juries involving then-grand jury foreman, Jeffrey Cunningham, and others in the local judiciary.

Cunningham is a licensed Tennesee attorney, active in the Tennessee Bar Association, CEO and President of Athens Federal Community Bank, and COO of Athens Bancshares Corp.

At approximately 12:20 p.m., while waiting on a bench outside of the clerk’s office on the second floor reading a book, Fitzpatrick was approached by McMinn County sheriff’s deputies and told that he was under arrest, as the grand jury had issued presentments accusing him of aggravated perjury, stalking, harassment, and extortion directed at Cunningham.  Fitzpatrick was jailed and released on March 28 after making bond.

The same day on which Fitzpatrick was arrested, a federal judge denied a Habeas Corpus petition filed on his behalf 26 months prior.

Allegations of criminality are brought to a grand jury for its review prior to issuing charges against an individual as stated in the Fifth Amendment to the Bill of Rights.  Some states have stopped using grand juries, while others, as is the case in Tennessee, employ corrupted “grand juries” which defy constitutional construction.

For more time than anyone can recall, criminal court judges in Tennessee have selected the foremen of the grand jury “from wherever they choose,” allowing them to work as a court employee for years and sometimes decades.  The foreman may or may not cast a vote with those individuals selected by random, automated means as mandated by state law, depending on the county.

Following Fitzpatrick’s reports, many others have approached The Post & Email with documentation of physical and emotional abuse, judicial misconduct, court-ordered child endangerment, police brutality, jury tampering, “doctored” court transcripts, and horrendous jail conditions.

The legislature has not differentiated between the selection of the foreman and the other grand jurors.  The Tennessee Rules of Criminal Procedure require the grand jury foreman to “possess all the qualifications of a juror.”  Tennessee code prohibits any person from serving consecutive terms as either a trial juror or grand juror.

It is unknown how many Tennesseans have been incarcerated as a result of illegally-formed grand juries or how many appeals might be involved.

In 2009, Fitzpatrick first discovered that Tennessee grand juries were tainted by the judicially-appointed foreman.  After exhausting all other options by approaching law enforcement, the FBI, the Administrative Office of the Courts, and the Tennessee Bureau of Investigation, on April 1, 2010, Fitzpatrick conducted a peaceful and legal citizen’s arrest on then-Monroe County grand jury foreman Gary Pettway.  From a point outside the courthouse, Judge Carroll L. Ross then ordered Fitzpatrick arrested and jailed for what would be the first of seven incarcerations to date on the part of judges in Tennessee’s Tenth Judicial District.

The Tenth Judicial District encompasses McMinn, Monroe, Polk and Bradley Counties.  The city of Athens, located in McMinn County, is the scene of the Battle of Athens of August 1-2, 1946, wherein World War II veterans took on corrupt local law enforcement over fraudulent elections and voter intimidation, forcing a corrupt sheriff and several others to flee the county permanently.

A case over which Ross presided was reversed in December after the appellant, George Raudenbush, presented evidence to an appeals court that his constitutional right to defense counsel had been denied prior to trial and he spent more than two years in state prison.

When Ross presided over the initial case against Fitzpatrick in 2010, he stated in open court that he would continue the practice of selecting whoever he wanted as grand jury foreman and maintaining him or her in the position for as long as he desired, statements which never appeared in the court transcripts.

The Tennessee Supreme Court, the legislature, and the attorney general have all been made aware that Tennessee grand juries are not operating legally.  The media has refused to report that judges in the Tenth Judicial District are openly breaking the law.

Last year in Davidson County, a grand jury foreman hand-picked by the judge was found to have been a convicted felon in violation of state law.  A local district attorney then resolved to “vet” grand jury foremen more thoroughly, but no mechanism  exists to do so with the judges having carte blanche to select the foreman “from wherever they choose.”

The Tennessee District Attorneys General Conference describes a grand jury as “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.”

When asked, Reedy was unable to offer an explanation as to why she is able to choose her own grand jury foremen given the District Attorneys General Conference’s description of a grand jury whose foreman is selected from among the 13 chosen randomly in accordance with state law.

Background information on hand-selected foremen is not “publicly available.”

While in the Monroe County jail, Fitzpatrick observed that a “prisoners-for-profit” operation keeps citizens incarcerated for months and sometimes years awaiting a trial in violation of the Tennessee constitution.

In response to an appeal filed by Fitzpatrick’s attorney, Van Irion, early last year for another case, the attorney general’s office produced a brief stating that the grand jury foreman “is not a juror” and affirmed that he or she is chosen routinely by the criminal court judge by an undisclosed vetting method.  Irion had maintained that the grand jury foreman at the time, Faye Tennyson, had been serving illegally and that the indictment she signed naming Fitzpatrick as a criminal therefore invalidated.  While sidestepping the issue of the grand jury foreman, the three-judge appeals panel upheld Fitzpatrick’s conviction, also failing to address Fitzpatrick’s observations of Reedy hand-picking jury members in open court for the then-upcoming 2012 term.

Other Tennessee defendants have reported “doctored” court transcripts. More than one version of a transcript in one of Fitzpatrick’s cases surfaced in February 2011 without explanation containing an altered date and the wrong county name.

TCA 40-12-206 states that grand juries must comprise 13 jurors and “up to five alternates,” but in reality, they have 12 “jurors” and one non-juror, according to the state attorney general.  Fitzpatrick was attempting to submit the attorney general’s brief to the grand jurors so that they would know that their “foreman” was judicially-appointed and not selected by automated means in accordance with state law.

On seven different occasions, Cunningham blocked Fitzpatrick’s attempted submission to the grand jury, and sheriff’s deputies escorted the grand jurors out of the building so as to avoid contact with Fitzpatrick, who was in the parking lot readying to leave the premises.

Tenth Judicial District Criminal Court Judge Amy Armstrong Reedy has appointed an unknown number of foremen during her more-than-eight-year tenure, some of whom have worked in the position for decades.  Reedy has been noted to have said that it is her goal to see her fellow citizens serve “a million man-hours” in local jails or state prisons over the course of her career.

Minutes before Fitzpatrick’s most recent arrest on March 18, Reedy appointed a new grand jury foreman, Thomas Balkom, displacing her recent appointee, Larry Wallace.  Balkom reportedly came from the grand jury before Reedy chose him to be foreman, perhaps for only that day.

Wallace sits on the board of the bank where Cunningham is CEO.

An observer at the Fitzpatrick hearing on Monday reported that it began early because all necessary parties were present. The prosecutor, Wayne Carter, is a retired Army colonel at the rank of O-6 and a local pastor.

Irion asked the state for a Bill of Particulars so that he could prepare a defense and called out Carter for having filed documents with the court last Friday without informing him.  The documents consisted of a motion with the court asking Reedy to serve as a witness at the trial and a request for “enhanced punishment,” claiming that Fitzpatrick is a “career criminal.”

The reference to “Tampering with government records” is to a case brought against Fitzpatrick and heard by retired Judge Walter C. Kurtz on December 3, 2012, during which Irion was not permitted to present his defense.  Kurtz, also a military veteran, heard the prosecution’s case, denied Irion the chance to speak, and told the jury to deliberate on a verdict.  Approximately seven minutes later, the jury emerged from deliberations to state that they had found Fitzpatrick guilty.

Upon appeal, Irion argued that the then-Monroe County grand jury foreman, Faye Tennyson, was ineligible to serve because it was her second consecutive term.  Kurtz argued that a foreman can serve as many terms as the judge desires.

Tennessee state law makes no allowance for a judicially-appointed foreman or for the foreman to be chosen any differently than the other jurors.  News reports have indicated that the judges choose someone as foreman with whom they are acquainted.

Irion also raised objections to the court’s refusal to provide certain documents in the case to Fitzpatrick when he had visited the courthouse with that purpose, speaking with clerk Sherry Anderson.

It was Anderson who told The Post & Email early last month that if we wished to submit questions to the court, it must be done in writing.

Carter told the court that he “has hundreds of cases” and had not had a chance to interview Cunningham, who has reportedly been out of town.  Carter and Irion consequently asked for a continuance.  Judge Jon Kerry Blackwood was inclined to refuse, stating, “No, we’re going to go to court in a couple days here.”

Blackwood had presided over previous cases involving Fitzpatrick in which he denied him his constitutionally-protected right to counsel.  Blackwood also maintained in 2010 that the suspicion that a juror had served consecutive terms did not require the court to verify it, for which  Fitzpatrick called Blackwood “a criminal and a dictator.”

The day before Fitzpatrick’s latest arrest, Blackwood denied Fitzpatrick’s petition for a restraining order against Cunningham without adjudicating it.

Blackwood finally relented and set a new trial date for June 23.

A message left on Carter’s voice mail by The Post & Email on Wednesday requesting documents available to support the charges was met with no response.

“What if the government could continue prosecuting you until it got the verdict it wanted?” — Judge Andrew Napolitano

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