Motions Filed In Fitzpatrick Case

“A VINDICTIVE PROSECUTION”

by Sharon Rondeau

(May 30, 2014) — Atty. Van Irion has filed several motions with the McMinn County, TN courthouse in the case of State of Tennessee v. Walter Francis Fitzpatrick, III, #14CR69, which charged Fitzpatrick with harassment, stalking, aggravated perjury and extortion.

On March 18, Fitzpatrick was reading a book while waiting on a bench outside the second-floor clerk’s office in the McMinn County courthouse to submit evidence of crimes to the grand jury when he was unexpectedly arrested by McMinn County sheriff’s deputies, handcuffed, and taken to the county “justice center” for processing.

Fitzpatrick had invited members of the community to accompany him that day as observers, but no one came forward.

Fitzpatrick is a 24-year honorably-discharged veteran of the U.S. Navy and Naval Academy graduate of the class of 1975.  While serving, he received numerous letters of commendation and awards.  Since living in Tennessee, he has been jailed a total of seven times by the Tenth Judicial District, which includes Monroe, McMinn, Polk and Bradley Counties.  The previous six incarcerations occurred in Monroe County, where Fitzpatrick exposed Gary Pettway’s 28-year installation as grand jury foreman by the criminal court judges.

Local and national media have been used to misrepresent Fitzpatrick’s conclusions that a “criminal syndicate” is operating within the district carried out by judges, sheriffs, their deputies, local attorneys and prosecutors, and members of the Tennessee Bureau of Investigation (TBI) and Knoxville FBI.

McMinn County Sheriff Joe Guy was named in Fitzpatrick’s criminal complaint.  Fitzpatrick had tried on six previous occasions to submit evidence of criminality on the part of Guy, Judge Amy Reedy, former grand jury foreman Jeff Cunningham, District Attorney General R. Steven Bebb, and others to the McMinn County grand jury for its review.

The Fifth Amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Of the history of the grand jury, Justia.com reports:

The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge and were free to make their presentments or indictments on such information as they deemed satisfactory…Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice. And in this country as in England of old the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.”³

While most states continue to use grand juries to review evidence of a crime before a defendant can be charged, Tennessee’s grand jury system has been overtaken by criminal court judges, who appoint their own foremen “from wherever they choose” without vetting for personal bias, criminal background or other disqualifying reasons.  The Tennessee Rules of Criminal Procedure allow the judge to choose the grand jury foreman, but with the understanding that the foreman is first selected in the same manner as the other jurors, which state law mandates be by “automated means” to avoid the possibility of human intervention.

By law, jurors cannot serve consecutive terms, but in Monroe County, Fitzpatrick found at least two who were empaneled for consecutive terms.  After Fitzpatrick identified one, a trial juror, prior to the commencement of a trial on December 1, 2010, Blackwood properly dismissed the juror.  In the other case, “Angela Davis” was allowed to consecutively serve as a petit juror in 2009, then as a grand juror who was later appointed “foreman” for one day to sign indictments against Fitzpatrick.  When challenged on Davis’s legitimacy, Blackwood stated that there was “no proof” that the same “Angela Davis” had served two consecutive terms.

Theoretically, if jury selection were performed by “automated means,” the same person would not be summoned in two consecutive terms, and if a computer error occurred, further screening would eliminate the individual from eligibility for service.

After potential jurors are selected randomly, they are screened for criminal history, prior knowledge of a case or relationship to a defendant, or other precluding factors.  According to state law, the final names are then to be chosen blindly out of a covered box in open court.  On December 7, 2011, Fitzpatrick observed Reedy selecting slips of paper placed on her desk, with the potential jurors’ personal information clearly visible, to populate the 2012 grand and trial juries.

Fitzpatrick took the forms containing the selected jurors’ information, which were left unguarded in a publicly-accessible part of the courthouse, with the intention of reporting the jury-rigging to the FBI, which ultimately resulted in his being charged with “tampering with government records.”

Convicted on that charge after Irion was disallowed from presenting a defense at the trial, Irion appealed based partly on his contention that then-grand jury foreman Faye Tennyson had been serving a second, consecutive, illegal term.  A hearing last November by a three-judge appeals court panel revealed that by means of “the Hixson brief,” the State of Tennessee’s position was stated as “the grand jury foreman is not a juror.”  In his brief, Deputy Attorney General Kyle Hixson did not address the legality of the practice.

In its June 3, 2010 indictment of Fitzpatrick, the Monroe County grand jury had called Gary Pettway “a juror,” but the State of Tennessee has now clarified that the foreman “is not a juror.”

After Cunningham threatened Fitzpatrick with impending arrest if he were to return to the courthouse, Fitzpatrick applied for a restraining order against Cunningham but was denied by two different judges, one of whom was Blackwood.

Blackwood has previously stated that the grand jury foreman is not treated differently from the other grand jurors, but his actions dating back at least two decades belie that statement, as The Post & Email will shortly reveal.

Just minutes before Fitzpatrick’s arrest on March 18, Judge Amy Reedy appointed a new grand jury foreman for an undisclosed reason, her third “pick” this year.  Attorney and Athens Community Federal Bank CEO and President Jeffrey Cunningham had served since late 2012 as foreman, replaced by his bank associate Larry Wallace in early March.  On March 18, shortly after noon, Thomas Balkom was appointed foreman, and Fitzpatrick was arrested at approximately 12:20 p.m.

In an initial hearing for the case on May 19, Irion asked Tenth Judicial District prosecutor Wayne Carter for a Bill of Particulars which Carter admitted he had not prepared.  Although a trial was scheduled for May 28 and 29 with which Blackwood wished to proceed, Blackwood was forced to reschedule it for June 23.

One of the documents Irion filed Thursday on Fitzpatrick’s behalf is entitled “Motion to Dismiss for Vindictive Prosecution” in which he describes the charges against his client as having arisen in an “extremely unusual procedural manner” demonstrating “evidence of prosecutorial vindictiveness.”

Regarding the four-count indictment, Irion asks the court to consider “Why was this action taken in this case?”

On page 4, Irion points out that in February, when Fitzpatrick attempted to present evidence to the grand jury but was blocked from doing so by Cunningham, Cunningham had threatened to have Fitzpatrick arrested on “exactly the charges brought by the Grand Jury one month later.”

Further, in a footnote on page 3, Irion states in a reference to Tennessee code:

It is ironic that Cunningham’s threats against Fitzpatrick fulfill all the elements of extortion pursuant to §39-14-112.”

In addition to being a bank president and CEO and a licensed attorney, Cunningham is an active member of the Tennessee Bar Association.

In his brief, Irion states that if the government should continue to prosecute the case, “Commander Fitzpatrick will show that Cunningham colluded with agents of the District Attorney’s office,…as well as employees of the Court, Judge Reedy, and possibly other Judges, in order to further this vindictive prosecution against Fitzpatrick.”

Assistant District Attorney Wayne Carter’s “Bill of Particulars” issued on May 23 failed to specify dates, times, places, and circumstances by which the Fitzpatrick’s alleged criminal acts were committed.  Working under Bebb, Carter called Reedy to be a witness for the prosecution.