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GRAND JURY FOREMEN, GRAND JURORS, PROSECUTOR MUST TESTIFY
by Sharon Rondeau
(Jun. 9, 2014) — A hearing was held at 2:00 p.m. on Monday at the McMinn County, TN courthouse wherein Judge Jon Kerry Blackwood determined that 22 of 24 subpoenas issued by defense attorney Van Irion would be upheld.
On Thursday, deputy prosecutor for Tennessee’s Tenth Judicial District A. Wayne Carter had filed a motion to quash all 24 subpoenas, claiming that they were “a tactic for delay.”
Carter was working under District Attorney General R. Steven Bebb, who signed the indictment against Irion’s client, Walter Francis Fitzpatrick, III.
In 2009, Fitzpatrick discovered by accident that the grand jury foreman in Tennessee is a court-appointed position, or employee, which allows the foreman to wield considerable influence over the grand jurors, something which has been alleged and reported in mainstream news reports as having occurred in McMinn County.
Irion had told The Post & Email on Friday that Carter was unable to support the grounds on which he claimed the subpoenas should be denied.
The Post & Email learned on Monday evening that one of two people whose subpoena was quashed is Martha M. Cook, chief court clerk in Monroe County, which is one of four counties in the district. The other is Calvin Rockholdt, criminal investigator for the Tenth Judicial District.
The case arose on March 18 of this year when CDR Walter Francis Fitzpatrick, III (Ret.) attempted to introduce evidence of criminal behavior on the part of public officials to the McMinn County, TN grand jury. While waiting on a bench outside of the courtroom at approximately 12:20 p.m. EDT, Fitzpatrick was placed under arrest by two sheriff’s deputies and charged with extortion, aggravated perjury, stalking and harassment of the former grand jury foreman, Jeffrey Cunningham.
Cunningham had threatened to have Fitzpatrick arrested a month prior if he were to attempt again to bring evidence of wrongdoing to the grand jury, of which Cunningham was the judicially-appointed foreman.
When Fitzpatrick filed a request for a restraining order against Cunningham following the threat, Blackwood was one of two judges who denied its issuance.
Blackwood upheld subpoenas for Carter; Cunningham; Cunningham’s successor and acquaintance, Larry Wallace; temporary grand jury foreman Thomas Balkom, who signed the indictment against Fitzpatrick; members of the grand jury on the day Fitzpatrick was arrested; and Assistant District Attorney Steve Morgan, among others.
A list of those subpoenaed is here. Additional subpoenas may be issued in the coming days.
Also on Monday, District Attorney General R. Steve Bebb notified Tennessee Gov. Bill Haslam that he would be “retiring early,” “just two months before his term ends,” as reported by The Daily Post-Athenian.
Following Fitzpatrick’s March 18 arrest, Bebb had filed a motion to revoke his bond because of his conviction in a previous case in which the legality of the grand jury foreman’s service was challenged by Irion, but the motion appears to have been quietly withdrawn, as no hearing was ever held on it.
Fitzpatrick has described Bebb as “a criminal” for having appointed numerous grand jury foremen over his 23-year career as a criminal court judge prior to being elected District Attorney General in 2006. Rather than allowing the grand jurors to choose their own foreman, judges in Tennessee have been allowed to select a person “from wherever they choose,” without any kind of vetting known to the public, and allow him or her to serve for years and sometimes decades.
State code says that jurors may not serve consecutive terms, but county courts and the state attorney general’s office have altered the definition of the grand jury foreman at will. While Monroe County maintained that the foreman was a juror in 2010, charging Fitzpatrick with “intimidating a juror” involving the foreman specifically, Attorney General Robert E. Cooper, Jr. submitted to an appeals court last fall that the foreman does not come from the jury pool and is “appointed by the criminal court judge.”
In 2010, Cooper deferred in an official opinion to Rule 6 of the Rules of Criminal Procedure in defining a grand jury, which states that the grand jury foreman “must possess all the qualifications of a juror.” By state law, jurors cannot serve consecutive terms and must be chosen by “random automated means” [sic].
The Tennessee District Attorneys General Conference defines 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.”
In a brief submitted on May 29 by Irion titled “Motion to Recuse District Attorney’s Office,” Irion claimed that “Grounds for this motion are that all agents and employees of the office of the District attorney are likely to be fact witnesses with personal knowledge of evidence related to the Defendant’s assertion of vindictive prosecution. Further grounds for this motion are that the facts of the instant case raise an appearance of a conflict of interest.”
“Generally, a district attorney should not participate in the prosecution when it appears that he or she will be called as a witness at trial,” Irion continued in his brief, quoting from the 1996 case of State v. Baker.
Irion had also filed a motion to dismiss the case, which Blackwood rejected.
Carter announced in court today that he “has a new boss,” Steve Crump, reflecting the fact that Bebb’s resignation was effective immediately.
On May 16, Bebb had called Judge Amy Reedy as a witness in the case. Reedy appointed Cunningham, Wallace, and then Balkom as grand jury foreman, successively, with Balkom assuming the position minutes before Fitzpatrick was unexpectedly arrested.
Bebb declined to provide a statement to the Post-Athenian as to why he will be leaving his post at the end of June rather than in August, as was expected. Earlier this year, after the Board of Professional Responsibility (BOPR) had refused to pursue an ethics complaint filed against him by the Tennessee House of Representatives, Bebb had announced that he would not seek re-election.
A Facebook page has been established which urges the disbarment of Blackwood. Fitzpatrick has previously named Blackwood as “a criminal and a dictator” for having refused to verify if a juror had served two consecutive terms between 2009 and 2010 when papers which The Post & Email obtained at the end of 2010 indicate that it would place no undue burden on the court and is also required by state law.
Fitzpatrick’s trial is scheduled for June 23, with another hearing on June 16.