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“THE GRAND JURY IS WHAT MAKES US A CONSTITUTIONAL REPUBLIC”
by Sharon Rondeau
(Jun. 21, 2014) — On Monday, a trial will take place beginning at 10:00 a.m. at the McMinn County, TN courthouse of CDR Walter Francis Fitzpatrick, III (Ret.) on three felonies and one misdemeanor charge stemming from an arrest on March 18 of this year.
Fitzpatrick is a 24-year U.S. Navy veteran who has been a whistleblower about government corruption since 1989, when a politically-motivated admiral and his staff concocted false charges which culminated in a court-martial and the premature ending of his military career.
Senior Judge Jon Kerry Blackwood, who has presided over previous cases involving Fitzpatrick, will be on the bench on Monday.
On June 16, a lengthy hearing took place to determine whether or not the local prosecutor’s office was compromised in taking the case to trial, during which time Blackwood declared that it was not.
On March 18, Fitzpatrick was charged with stalking, harassment, aggravated perjury and extortion 18 while sitting on a bench in a hallway outside of the McMinn County courthouse awaiting a decision on his submission of evidence to the grand jury.
McMinn County is one of four counties in Tennessee’s Tenth Judicial District which also includes Monroe, Polk and Bradley Counties.
Fitzpatrick has been jailed on seven occasions since April 1, 2010 after the Tenth Judicial District prosecuted him for exposing grand juries as judicially-controlled as evidenced by long-serving “foremen” and at times, jurors serving consecutive terms in violation of state code. In late 2009, Fitzpatrick discovered that the Monroe County grand jury foreman had been serving for at least 20 consecutive years. Later, evidence from the court itself showed that Gary Pettway had worked for 28 years without an appointing order, vetting or any evidence that he had ever taken an oath of office. Similar evidence has just become available to The Post & Email from Bradley County.
Blackwood has said that the foreman “is no different than any other member of the grand jury” but has appointed numerous foremen who have served for many years and sometimes decades.
On June 3, 2010, an indictment signed by temporary Monroe County grand jury foreman Angela Davis against Fitzpatrick charged him with “intimidating a juror” in reference to Pettway. Not only had Davis known Pettway and Fitzpatrick, but she had also served as a petit juror in 2009, thereby violating state law. Blackwood nevertheless upheld the indictment.
Historically, Fifth Amendment grand juries performed their own investigations without any influence from a judge or prosecutor. Today’s grand juries, however, are wholly-owned by the judicial branch at the local level or U.S. attorneys, which are part of the executive branch at the federal level. Before 1946, when the Federal Rules of Criminal Procedure were changed by Congress to say that grand jury presentments were “obsolete,” grand jurors took a keen interest in the manner in which towns and counties were operated and often brought presentments to law enforcement naming public officials in alleged wrongdoing if evidence supported it. Working independently of prosecutors and judges, the grand juries of old designated their own foreman if there was to be one.
Connecticut and Michigan no longer use county or state grand juries to examine evidence before charging a defendant. In Connecticut, an exception to the law which took effect in 1983 is that a “judge, judge referee or three-judge panel” can constitute a “grand jury” under certain circumstances.
In a well-known essay entitled, “If It’s Not a Runaway, It’s Not a Grand Jury,” legal scholar Roger Roots wrote that “…while the grand jury still exists as an institution — in a sterile, watered-down, and impotent form — its decisions are the mere reflection of the United States Justice Department. In practice, the grand jury’s every move is controlled by the prosecution, whom the grand jury simply does not know it is supposed to be pitted against.
Roots describes modern changes to the grand jury by the government as producing the result that “In theory, the grand jury is a body of independent citizens that can investigate any crime or government misdeed that comes to its attention. In practice, however, the grand jury is dependent upon the prosecutor to bring cases and gather evidence. Except in rare instances of a “runaway” grand jury investigation of issues that a prosecutor does not want investigated, the powers of the grand jury enhance the powers of the prosecutor.
In a February interview with radio host Chuck Smith in which this writer participated, Roots indicated that he is aware of the massive corruption within the Tennessee judiciary and grand juries as well as the information Fitzpatrick has specifically brought to light since 2009.
Corruption in eastern Tennessee, which includes the Tenth District, has been well-chronicled since 1940, when local residents complained to the U.S. Department of Justice about election-rigging and local government abuse. Having received no assistance at the federal level, in 1946, World War II veterans took matters into their own hands in the Battle of Athens, expelling a sheriff and his deputies from the county after they took illegal custody of ballot boxes and physically struck and injured a black man attempting to cast his vote.
The same criminal court judges preside over cases throughout the four counties of Tennessee’s Tenth Judicial District. In 1984, the legislature directed the judicial branch to reform the criminal court system to encompass districts and not sole counties, but the law was never observed. Therefore, county criminal courts remain in operation throughout the state.
Several grand jury appointing orders dating back to 1980 from outside the Tenth Judicial District note that the foreman first met the qualifications of a juror, as the Rules of Criminal Procedure mandate in Rule 6(g)(2). However, during the same time period, McMinn County grand jury appointing orders reflect only that the judge’s choice was “a good, substantial citizen…and well qualified to fill said position.”
In January of last year, a grand jury foreman hand-selected by a judge was found to have a felony conviction on his record, which violates TCA 22-1-101. At the time, The Knoxville News Sentinel reported that [Davidson County grand jury foreman Eugene] “Grayer’s felony went unnoticed because in Tennessee grand jury foremen are not screened for eligibility the way other grand jurors and trial court jurors are. Regular jurors are selected randomly from eligible members of the public and compelled to serve, but grand jury foremen are appointed by criminal court judges and can chose [sic] whether to serve.”
As a result of Grayer’s illegal service and the impact it could have on those indicted and convicted of crimes, Davidson County District Attorney Torry Johnson was quoted as having said, “We’re only limited by the imagination of defense lawyers as to what they can claim.”
Monroe County Chief Court Clerk Martha M. Cook told a local newspaper in January 2011 that a judge could select the foreman “from wherever they choose” after Pettway was not reappointed to the grand jury foremanship for the first time in 28 years.
In contrast to Bradley and Monroe Counties, indictments from a 2007 Hamilton County, TN grand jury indicate that all of the grand jury members, including the “foreman or forewoman, were “duly summoned, elected, impaneled sworn and charged [sic] to inquire for the body of the County…” Hamilton County is where 20-year grand jury foreman Marsha Crabtree had worked until the judges concluded in early 2011 that her “objectivity” might be in question.
However, in an appellate court brief last November, Tennessee’s deputy attorney general, Kyle Hixson, wrote that the grand jury foreman “is not impaneled from the summoned members of the jury pool.”
In a hearing held last Monday, June 16, Fitzpatrick’s alleged accuser, Jeffrey Cunningham, denied in sworn testimony that he had accused Fitzpatrick of anything. Rather, he claimed he had spoken with the District Attorney General’s office, which is now prosecuting the case. No police report or specific record of the alleged transgressions of “stalking,” “harassment,” “aggravated perjury,” and “extortion” have thus far been produced.
Two individuals with knowledge of the grand jury deliberations subpoenaed to appear have not responded to at least two attempts at service by local law enforcement, one of whom is Thomas Balkom, the grand jury foreman appointed by Judge Amy Reedy specifically for Fitzpatrick’s case.
On Monday, Irion called prosecutor A. Wayne Carter to the witness stand and asked, “If grand jury proceedings in McMinn County were found to be corrupt in any way, would that make more work for the District Attorney’s office?” to which Carter responded, “I cannot answer that question” (7:11). When Irion rephrased the question, referring to the grand jury “process” as hypothetically being “corrupt,” a woman lodged an objection which the judge sustained without audible comment.
Irion then called Fitzpatrick to the witness stand to ask if he had been “investigating the grand jury system” in McMinn County, TN and for “how long,” a question to which Carter immediately objected. Carter addressed himself to the judge, stating, “I just don’t see the relevance of these lines of questioning.”
Carter said that at issue was whether or not Fitzpatrick is being prosecuted “vindictively,” as his attorney, Van Irion, had contended in a court brief. Irion, apparently reading from a statute, told the judge that “If circumstances demonstrate that the prosecutor has a personal stake or when there is institutional bias against retrial or basically a situation that would create more work for the District Attorney’s office…” to make the case that the Tenth Judicial District was compromised in prosecuting his client. Blackwood responded, speaking softly on the recording. Irion then stated that a “vindictive prosecution” involves charging a defendant for activities which “the law plainly allows.”
Fitzpatrick then stated his reasons for approaching the grand jury on several occasions after November of last year, which he said were prompted by Hixson’s brief. He explained that Hixson had written “in a declarative statement that the grand jury foreman is not a juror.”
In January, Cunningham blocked Fitzpatrick’s submission from reaching the grand jury, which he adjourned. Cunningham then asked standby deputies to remove Fitzpatrick from the courthouse, which they did. Cameras are on at all times in waiting areas, hallways and courtrooms during regular operational hours of the courthouse.
In February, after attempting to again submit evidence to the grand jury, Cunningham, approaching Fitzpatrick unsolicited, told Fitzpatrick that he would have him arrested for “stalking” and “harassment” if he made another attempt to reach the grand jury.
Fitzpatrick affirmed in response to Irion’s question that he did not present his petition to Cunningham because “Mr. Cunningham, I believe, is a criminal. I named him in a criminal complaint in the petition…I see a conflict of interest regarding Mr. Cunningham’s position in the grand jury dealing with the accusation that he’s a criminal. I don’t see that Mr. Cunningham should be in the same room to consider, discuss, influence with the other jurors…”
Fitzpatrick testified that the envelope containing his petition in March said on the outside, “Mr. Cunningham is not a juror” based on the Hixson brief. “I’m trying to make a statement to the people because I can’t make it any other way,” Fitzpatrick said.
The grand jury which was adjourned in January and who Fitzpatrick said “walked right past” him after their dismissal by Cunningham is the same group which voted to indict him on March 18 on the four charges. Two of the members testified that they could “not remember” the proceedings which led up to the presentment being issued. A third grand juror stated the same before the hearing commenced and was dismissed by Irion.
In February, Fitzpatrick filed a request for a restraining order against Cunningham, stating that Cunningham had “stalked” him by attempting to threaten him not to return to the courthouse. Judges Jeri Bryant and Blackwood each denied Fitzpatrick’s request without a hearing.
Irion filed three more briefs with the court on June 19.
Late last week, Blackwood upheld the charge of “aggravated perjury” after Irion asked that it be dismissed on the grounds that no evidence existed to support it.
“The grand jury is what makes us a constitutional republic,” Fitzpatrick has said.