Tennessee Tenth Judicial District Prosecutor: Government Influence of Grand Jury “Unethical”

“THE GRAND JURY IS OPEN TO ANY CITIZEN WHO WANTS TO COME AND APPEAR”

by Sharon Rondeau

(Jan. 12, 2015) — The chief prosecutor of Tennessee’s Tenth Judicial District, which includes the counties of McMinn, Monroe, Polk and Bradley, told a local radio show host last month that “the grand jury is open to any citizen who wants to come and appear.”

Crump’s comments, as recounted by The Cleveland Daily Banner, were made during a discussion of the likelihood that a confrontation between a citizen and law enforcement could result in an “unjust”  outcome referring to the November 24, 2014 announcement that the St. Louis grand jury would not indict former Ferguson, MO police officer Darren Wilson in the shooting death of 18-year-old Michael Brown.

Darren Wilson is white and Brown was black.

The Fifth Amendment reserves to the grand jury the review of evidence against a citizen in the case of “capital” or “infamous” crimes to determine if probable cause exists to formally file charges.  The grand jury was designed to serve as a check on overzealous government prosecutors.

The states of Connecticut, Michigan and Washington no longer use grand juries to evaluate evidence, but rather, use the “information” method to issue criminal charges through local police departments.

The St. Louis grand jury had been seated before Brown was killed and took several months to interview witnesses and review evidence.  Alleged “orchestrated leaks” of information suggested that the grand jury would not find probable cause to indict Wilson.

Following the announcement of the grand jury’s decision, riots, fires, looting and gunfire took place, damaging or completely annihilating at least a dozen area businesses.  Despite having been alerted to the possibility of riots by Gov. Jay Nixon’s office, the Missouri National Guard was not immediately dispatched to Ferguson, which some suspect was a decision directed by the White House.

Wilson claimed that he shot Brown in self-defense after Brown tried to grab his gun and rushed him twice, punching him on the side of the face.

Crump said that although mistrust of government is currently high, he believes the Tenth Judicial District is a “stronger” community than Ferguson and maintains that his office does not “look at color” in its hiring practices and dealings with residents.

Of the grand jury’s composition and function, Crump said, “Those are your neighbors and if something is amiss, they are going to certainly not want you to be unjustly indicted,” he said.  He explained that the grand jury “is not a function of the DA’s office or of law enforcement.”

In 1992 in U.S. v. Williams, U.S. Supreme Court Associate Justice Antonin Scalia wrote for the majority:

“[R]ooted in long centuries of Anglo American history,” Hannah v. Larche, 363 U.S. 420, 490 (1960) (Frankfurter, J., concurring in result), the grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It ” `is a constitutional fixture in its own right.’ ” United States v. Chanen, 549 F. 2d 1306, 1312 (CA9) (quoting Nixon v. Sirica, 159 U.S. App. D.C. 58, 70, n. 54, 487 F. 2d 700, 712, n. 54 (1973)), cert. denied, 434 U.S. 825 (1977). In fact the whole theory of its function is that it belongs to no branch of the institutional government, serving as a kind of buffer or referee between the Government and the people. See Stirone v. United States, 361 U.S. 212, 218 (1960); Hale v. Henkel, 201 U.S. 43, 61 (1906); G. Edwards, The Grand Jury 28-32 (1906). Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the judicial branch has traditionally been, so to speak, at arm’s length. Judges’ direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office. See United States v. Calandra, 414 U.S. 338, 343 (1974); Fed. Rule Crim. Proc. 6(a).

The Franklin County, TN Circuit Court Clerk’s website describes the grand jury as “a body of thirteen citizens of the County who meet to hear evidence of criminal activity, in order to determine if there is probable cause to require the defendant to stand trial in Criminal Court.”  A law contained in Tennessee Code Annotated states that any citizen may testify to his local grand jury regarding knowledge of the commission of a crime.

Citizens have been permitted to testify to the Davidson County grand jury, as confirmed by District Attorney General Glenn R. Funk’s spokeswoman, Dorinda Carter.

TCA 40-12-105 states that the court clerk must publish a notice of a meeting of the grand jury between 30 and 40 days in advance in a local news publication with the following wording:

It is the duty of your grand jurors to investigate any public offense which they know or have reason to believe has been committed and which is triable or indictable in this county. Any person having knowledge or proof that an offense has been committed may apply to testify before the grand jury subject to the provisions of Tennessee Code Annotated, § _________ . The foreman in this county is presently: [Here list foreman and the foreman’s address]

“The grand jury is open to any citizen who wants to come and appear,” Crump said on the radio program last month.

On March 18, 2014, McMinn County resident CDR Walter Francis Fitzpatrick, III (Ret.) approached the court clerk’s office with a request to testify to the grand jury regarding evidence he possessed involving public officials, including the former grand jury foreman, Jeffrey Cunningham.

Fitzpatrick had unsuccessfully attempted to submit evidence to the McMinn County grand jury on several earlier occasions as well as to the Monroe County grand jury, in whose community he had lived between 2007 and February 2012.  In the first case from late 2009, after waiting approximately three months for an opportunity to approach the grand jury, Fitzpatrick was granted an audience by then-Monroe County grand jury foreman Gary Pettway along with two other grand jurors. The evidence Fitzpatrick submitted charging Barack Hussein Obama with treason was ultimately not advanced to the full grand jury.

During the process of obtaining a hearing, Fitzpatrick learned that grand jury foremen in Tennessee serve for years and sometimes decades at the appointment and pleasure of a judge.

Stunned at the brazen violation of law and common understanding of the function of a grand jury, Fitzpatrick asked local, state and federal law enforcement authorities to remedy the improperly-constructed grand juries to conform with Tennessee law without results.  He also paid for an advertisement in the local print newspaper and spoke to the town police chief, Gregg Breeden, about the possibility of a citizen’s arrest of Pettway should law enforcement fail to act.

After his requests for correction of the illegal and unconstitutional grand jury composition were ignored, Fitzpatrick attempted to carry out a citizen’s arrest of Pettway on April 1, 2010 but was himself ordered arrested and jailed by then-Criminal Court Judge Carroll Lee Ross.

Fitzpatrick was threatened, beaten, robbed, and incarcerated in the Monroe County jail on five occasions by corrupt local officials who objected to the exposure of their entrenched, corrupt system.  After moving in early 2012 following his last Monroe County incarceration, Fitzpatrick learned through open records requests that the appointing of grand jury foremen by judges “from wherever they choose” had been ongoing since at least the early 1980s.

Of Pettway’s 28 years as putative grand jury foreman, Fitzpatrick said, “He’s been locking up his neighbors without authority.”

While sitting outside the clerk’s office awaiting a decision as to whether or not he would be given an audience on March 18, Fitzpatrick was arrested by McMinn County sheriff’s deputies and charged with three felonies and a misdemeanor by the very grand jury he had petitioned for a hearing.

Because grand juries deliberate privately, they are not required to release the evidence they allegedly review before issuing indictments.  Then-District Attorney General R. Steven Bebb is believed to have instructed the grand jury to issue the “True Bills” against Fitzpatrick.

Bebb’s name has been associated with false prosecutions, lack of warranted prosecutions, allegations of corruption and assault of a female coworker, and himself appointing grand jury foremen when he served as a criminal court judge for a decade in the Tenth District.  Allegations of undue influence on the part of prosecutors in Bebb’s office by two former grand jurors resulted in “no action,” according to The Chattanooga Times Free Press in a six-day series published in August 2012.

Of the prosecutors’ current relationship to the grand jurors, Crump said in his interview, “We do not try to influence them in any way.”

Minutes before Fitzpatrick’s arrest was carried out, then-Criminal Court Judge Amy Reedy appointed a new grand jury foreman whose signature appears on the indictments, which were issued without a criminal complaint ever having been filed with Bebb’s office.

The Bill of Particulars finally produced by deputy prosecutor A. Wayne Carter contained no specifics as to dates, times, places and crimes Fitzpatrick had allegedly committed.

At the time of Fitzpatrick’s arrest and trial, Crump was working in private practice, after which he won election on August 7, 2014.  While running for District Attorney General, Crump pledged, “While we will be relentless in pursuing those who break the law, we will be just as relentless to obtain justice for the victims of crime. We will serve the needs of victims with compassion and care.  We will insure that every victim is kept up to date with the progress of their cases and we will recover and collect every dollar of restitution possible to try to make the victims whole.”

If elected, Crump had promised that “We will be accountable to the people.”

At Fitzpatrick’s pre-trial hearing on June 16, a grand juror admitted that she had been influenced by comments made by then-foreman Jeffrey Cunningham, who testified that he had provided “background” on Fitzpatrick to the grand jurors in January when Fitzpatrick had appeared with a request to testify.

On December 14, The Cleveland Daily Banner reported of Crump’s interview:

Crump said a great misconception about a grand jury is DAs go in and argue for one decision or another.

“In fact, it is unethical for us to come in, particularly in Tennessee, and ask or tell the grand jury to vote a certain way,” Crump said.

“I don’t think people have an appreciation for the level of protection a grand jury affords someone,” Crump said on the radio program.  “They are a gateway, or a shield if you will, between people and government. In fact, that’s what I’m supposed to be,” Crump stated.

On June 24, Fitzpatrick was convicted of “aggravated perjury” and “extortion” after Deputy Prosecutor A. Wayne Carter misrepresented the facts and the key witness, Cunningham, admitted that he had never filed a complaint.  Senior Judge Jon Kerry Blackwood is strongly suspected of having worked with Carter to engineer a conviction in addition to having validated the indictments issued by the compromised grand jury.

Blackwood’s assistant has told The Post & Email that Blackwood’s office does not “communicate directly with the press,” referring us to the Administrative Office of the Courts’ spokeswoman, Michele Wojciechowski.  However, Wojciechowski, who had originally promised The Post & Email an interview at a mutually-convenient time, failed to respond to our questions after we dispatched recordings of Fitzpatrick’s pre-trial hearing and trial, both of which contained evidence that the outcome was predetermined.

Blackwood made personal and insulting remarks to Fitzpatrick during the August 19 sentencing hearing.

In explaining how the grand jury receives a case to review, Crump described the assembly as “an independent body exercising an independent jurisdiction.”

Fitzpatrick’s attorney, Van Irion, said directly afterward and on several radio shows that Fitzpatrick had been denied his constitutional rights.  During sentencing, Blackwood declared that he was “sick and tired of all these people demanding their constitutional rights.”

Blackwood also asked rhetorically during a rambling soliloquy, “Who cares if the grand jury foreman is serving illegally?”

The original statement issued by the Tennessee Board of Parole in its presentencing report that there was no victim of Fitzpatrick’s “crimes” was changed to say that Cunningham, although never having filed a criminal complaint or police report, was the victim.

“The people who I know have sat on our grand juries have been very clear thinking, independently-minded people. I think they do yeoman’s service. I don’t think they come in looking to do just whatever we say,” Crump told his radio audience on December 14.

“The grand jury serves as the conscience of the community,” he asserted.

Fitzpatrick is now housed at the Northwest Correctional Complex (NWCX) in Tiptonville, TN, which focuses on education and “community service.”  Fitzpatrick holds a Master’s Degree in Business Administration which he acquired while serving in the U.S. Navy.

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.”  There is no provision for a judicially-selected foreman who becomes an employee of the court.

Irion’s question of “What if Commander Fitzpatrick is right?” about the lawful composition of the grand jury remains unanswered.