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DOES “HAND-PICKING” COMPROMISE OBJECTIVITY?
by Sharon Rondeau
(Apr. 9, 2015) — On Tuesday, The Post & Email spoke with Tipton County, TN clerk Mike Forbess regarding the selection of Tipton County grand jurors.
Over the last several months, The Post & Email has been reporting on the case of Tipton County resident Mike Parsons which now encompasses a second incarceration with the Tennessee Department of Corrections (TDOC).
Approximately two weeks ago, Parsons was moved from the Turney Center Industrial Complex (TCIX) in Only, TN to the West Tennessee State Penitentiary at Henning to attend a hearing during which he was indicted for two crimes which the county alleged he committed in February of last year. Parsons’ wife told The Post & Email that her husband was charged without a probable cause hearing or having been presented with a grand jury indictment.
Historically, the role of the grand jury is to evaluate evidence placed before it by the government as to whether or not an “infamous crime” has been committed, or to conduct an inquiry on its own and draw up a “presentment” for the government to then prosecute. U.S. Supreme Court Associate Justice Joseph Story said that the grand jury was “a great security to the citizens against vindictive prosecutions, either by the government, or by political partisans, or by private enemies.”
According to the Tennessee District Attorneys General Conference, “Following indictment by the grand jury, a defendant is formally notified of the grand jury’s action at a circuit court arraignment. You may recall that the defendant has already been arraigned once in the general sessions court. Nevertheless, Tennessee law requires that this process be repeated in the circuit court, this time by the circuit court judge. The judge will advise the defendant as to the charges brought against him by the grand jury and will also review or set bail as appropriate. The defendant will then be ordered to reappear on a later date known as appearance day. If the Defendant is indigent, the court will appoint an attorney (usually the public defender) to represent him/her.”
On February 11, 2014, Parsons’ farm was unexpectedly visited by county officials, at least one of whom was unidentified. They reported that a complaint from a PETA office in Maine had prompted them to open an investigation into the condition of the Parsonses’ farm animals.
Parsons characterized the unannounced inspection as a “raid,” and he was arrested for allegedly violating the terms of his parole from his first incarceration which began in November 2009 and ended in April 2012.
The Parsonses were ultimately cleared of the allegation of animal cruelty. However, Mike was jailed on the alleged parole violation and since that time has sought to clear his name for the second time.
At a hearing in November, Parsons attempted to make the case for why he should be freed, stating that the alleged violation – that of being in possession of firearms as a convicted felon – was false. Parsons told The Post & Email, citing Tennessee law 39-17-1307, that he had not been in possession of his wife’s firearms because he did not have a key or combination to the locked safe where his wife stored them.
The parole board upheld the parole revocation, a decision Parsons immediately appealed. Parsons had anticipated his release in May prior to the two new indictments issued by the Tipton County grand jury last month.
Parsons was first arrested in September 2007 after a man named Barry Laxton arrived on his property with a shotgun and killed one of his dogs in an unprovoked attack. Having attempted a citizen’s arrest, which is legal in Tennessee, on Laxton, Judge William H. Peeler instead ordered Parsons arrested on charges of aggravated assault and theft of property.
Parsons said that deep-seated corruption allowed the judge to manipulate the grand jury in his case, in part because of the practice of long-standing grand jury foremen who are hand-picked by the judge. Parsons also said that a juror who served during his trial was related to Laxton, lying about that relationship in an apparent effort to gain a seat on the jury.
Parsons believes that Laxton and several county officials retaliated against him for having run for county executive in 2006 and filing a lawsuit against the Tipton County Election Commission. Evening elections returns had shown Parsons far outdistancing his opponent with 79% of the votes, Jeff Huffman, but the following day, Parsons was informed that he lost.
He unsuccessfully attempted to obtain the ballots from the election, then filed the lawsuit challenging the results, which was ultimately dismissed at both the trial and appellate levels.
In November 2009, Parsons was sent to state prison for convictions on the charges of “aggravated assault” and “theft of property.”
The Post & Email has reported on similar cases in Madison County, Knox County, McMinn County, Monroe County, Polk County, Sevier County, Sumner County, and Lawrence County. Details of the cases include the common thread of judicial activism, disregard for Tennessee code, hand-picked jury members, “rigged” trials, complicit defense attorneys, denial of a defendant’s constitutional right to defense counsel, and the motive of incarcerating prisoners for profit.
In an interview published in late February, Parsons described an identical prisoners-for-profit scenario to that which has been described by another TDOC inmate, CDR Walter Francis Fitzpatrick, III (Ret.), in southeastern Tennessee. “Their goal is to convict you,” Parsons told us.
Grand jury foremen have served for decades under the current system, and any attempts by the legislature to eliminate the practice have been squelched.
At the sentencing hearing last August for Fitzpatrick, who had committed the “crime” of approaching the McMinn County grand jury with evidence of public corruption which included then-grand jury foreman Jeffrey Cunningham, Judge Jon Kerry Blackwood had asked rhetorically during a lengthy monologue, “Who cares if the grand jury foreman is serving illegally?”
The 1979 repeal of a 1919 law which allowed judges to choose the grand jury foreman from the community “at their discretion” resulted in its purported replacement by Criminal Court Rule 6(g)(1), which states, “The judge of the court authorized by law to charge–and receive the report of–the grand jury shall appoint the grand jury foreperson. When concurrent grand juries are impaneled, the court shall appoint a foreperson for each grand jury.”
Rule 6(g)(2) says that “The foreperson shall possess all the qualifications of a juror.”
The Tennessee District Attorneys General Conference describes a grand jury as having 13 members. “One of these thirteen is the fore person and will preside over the grand jury,” the organization’s website states.
Forbess told The Post & Email that Tipton County grand jury foreman William Brooks has been serving consecutively for more than 20 straight years,” “longer than I’ve been here.” When The Post & Email asked Forbess about the qualifications of the grand jury foreman, he said he “was not familiar” with the process.
Unlike other counties in Tennessee, the same judges in Tipton County preside over both civil and criminal cases, depending on the need.
Grand jurors are chosen three times a year: in March, in July, and in November. Names of potential jurors are reportedly chosen randomly by a computer from records from the Department of Safety. According to Forbess, letters are sent out to the 70-80 names chosen from the DOS list. While the county sheriff may serve summonses to potential grand jurors or trial jurors, the court may, by law, issue such summonses without the sheriff (TCA 22-2-307).
The potential grand jurors appear at court on the designated day, from which 12 grand jurors will ultimately be chosen. Forbess stated that in Tipton County, the 12 finalists are chosen from cards which the judge “shuffles in open court.” When The Post & Email asked if the judge is able to see the names on the cards, Forrest said he does not sit closely enough to the judge’s bench to be able to determine that.
Regarding the selection of finalists who will be empaneled into the grand jury or trial jury, a Tennessee attorney general’s 2010 opinion refers to Rules of Criminal Procedure Rule 6(a)(1), which states:
(a) Formation of the Grand Jury.
(1) Formation at a Regular Term. On the first day of each term of court at which a grand jury is required to be impaneled, the judge of the court authorized by law to charge the grand jury and to receive its report shall direct the names of all the qualified jurors in attendance for the criminal courts of the county to be written on separate slips of paper and placed in a box or other suitable receptacle and drawn out by the judge in open court. The foreperson and the twelve qualified jurors whose names are first drawn constitute the grand jury for the term and shall attend the court until dismissed by the judge or until the next term.
Forbess did not respond when The Post & Email mentioned that the finalists’ names are to be placed “in a box” and then chosen blindly.
We then asked if jurors serve repeated terms within a 24-month time frame. Forbess responded that the judge routinely asks potential grand jurors whether or not they have served as a juror within the last 24 months, and if they respond in the affirmative, they “are not required to serve again.” The Post & Email then informed Forbess of TCA 22-to-314, which states, “A juror who has completed a jury service term shall not be summoned to serve another jury service term in any court of this state for a period of twenty-four (24) months following the last day of such service; however, the county legislative body of any county, may, by majority vote, extend the twenty-four-month period.”
Forbess was unaware of the wording of the law and indicated that he believed that service within the 24-month period was optional on the part of the juror.
By law, a defendant or his counsel may question jurors as to their qualifications to serve. TCA 22-3-101 states:
22-3-101. Absolute right of parties to examine.
Parties in civil and criminal cases or their attorneys shall have an absolute right to examine prospective jurors in such cases, notwithstanding any rule of procedure or practice of court to the contrary.
Defendants and observers of Tennessee trials have reported that jurors have openly admitted to having served on a jury within 24 months. Others have reported that jurors often appear familiar with the judge presiding over their case. Some jurors are reported to have had familial relationships to certain individuals which call into question their objectivity but not remedied.
One new grand jury foreman was described as “a friend” of the judge who picked her. Upon dismissing a 20-year grand jury foreperson in 2011 for an alleged lack of “objectivity” and “negativity,” three Hamilton County judges wrote:
The Grand Jury serves as a screening mechanism to ensure that sufficient evidence exists when a person has been accused. Objectivity and impartiality in this role are essential. Because the decisions of the Grand Jury result in criminal charges, loss of liberty and often prolonged incarceration prior to any determination in Criminal Court of whether or not a person is actually guilty, lack of impartiality of its leader could cause one to question the fairness of decisions and detrimentally impact the administration of justice.
In a previous case involving Fitzpatrick, 2009 petit juror Angela Davis served as a grand juror in Monroe County in 2010, then as foreman when the grand jury issued indictments against him. When Fitzpatrick objected, Blackwood responded that there was “no proof” that the same “Angela Davis” had served consecutive terms. However, Tennessee law requires that records of all jurors be maintained for two years.
The Post & Email related to Forbess the discovery that Eugene Grayer, a foreman of the Davidson County grand jury in 2011, was a convicted felon in violation of Tennessee law, and asked if or how that problem is avoided in Tipton County. Forbess responded that prospective grand jurors must complete a questionnaire which asks whether or not they had been convicted of a felony or certain classes of misdemeanors. He explained that respondents’ answers are accepted on the “honor system.”
TCA 22-1-102 forbids “persons convicted of a felony, perjury, subornation of perjury, or “any other infamous offense” from serving on a jury.
Forbess was not familiar with the Davidson County incident, which made national headlines. The Post & Email related that Davidson County is now performing criminal background checks on all prospective grand jurors to include the foreman, according to the district attorney general’s spokeswoman, Dorinda Carter.
For a week in August 2012, The Chattanooga Times Free Press presented a series on alleged undue influence on the McMinn County grand jury by the Tenth Judicial District prosecutor’s office and other accusations against District Attorney General R. Steven Bebb.
Bebb signed the indictments issued against Fitzpatrick on March 18, 2014 based on Fitzpatrick’s criminal complaint against Bebb and other public officials. In late May, Bebb announced an early retirement and vacated his office the following week.
We asked Forbess if the grand jury foreman votes with the 12 grand jurors selected from cards by the judge. Forbess responded that the foreman can vote if needed, but because the grand jury votes in secret, the details are not available to the public. “I know it takes 12 unanimous votes to indict,” Forbess correctly told us.
He also stated that grand jurors cannot be related to the defendant or accuser within the “sixth degree.” TCA 22-1-104 states:
22-1-104. Disqualification by interest or relationship.
No person may act as a juror in any case in which the person is interested, or in which either of the parties is connected with the person by affinity or consanguinity, within the sixth degree, as computed by the civil law, except by consent of all parties.
On Tuesday, The Post & Email asked Parsons’ wife how her husband was faring, to which she responded, “He’s hanging in there.”