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FACTS, JURISDICTION CALLED INTO QUESTION
by Sharon Rondeau
(May 6, 2015) — Atty. Van Irion has filed a brief in response to the “Brief of the State of Tennessee” in the case of State of Tennessee v. Walter Francis Fitzpatrick, III, 14CR69, now on appeal with the Tennessee Criminal Court of Appeals-Eastern Division.
Irion filed Fitzpatrick’s appeal in early February. Oral argument is scheduled for May 19, 2015 at 9:30 a.m. EDT in Knoxville.
The case arose after Fitzpatrick, a retired career Navy commander, attempted to submit what he believed was substantive evidence of criminal wrongdoing on the part of public officials in McMinn County, one of four counties in the state’s Tenth Judicial District.
In the fall of 2009, Fitzpatrick inadvertently discovered that Tennessee grand juries utilize foremen who are appointed by judges, serve unlimited numbers of consecutive terms, and vote with the members of the grand jury when the required 12 votes to indict are not met by virtue of a dissenting vote from one of the 12.
However, Tennessee law requires that grand juries have 13 members. The 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. “
Tennessee code mandates that no juror is allowed to serve a second term within 24 months on either a grand jury or trial jury anywhere in the state. However, Fitzpatrick discovered instances of both as he became a close observer of the judicial process in Monroe County, also part of the Tenth District, where he lived before moving to McMinn County in early 2012.
Fitzpatrick was imprisoned five times in Monroe County for attempting a citizen’s arrest on April 1, 2010 on then-Monroe County grand jury foreman Gary Pettway and additional charges arising from the incident. In an April 22, 2012 editorial, Fitzpatrick termed Pettway as being “at the center of a criminal syndicate that’s been operating out of Monroe County, TN for 28 years,” which was the length of time Pettway had been installed as grand jury foreman.
Fitzpatrick also learned through an Open Records request response that no documentation existed that Pettway had ever been sworn in or formally appointed.
Multiple reports from others victimized by the corrupt Tennessee judiciary have reinforced Fitzpatrick’s identification of a “prisoners-for-profit” operation which seeks a continual supply of local citizens to fill jails and prisons for the benefit of an unknown number of government operatives. Defendants have described rigged grand juries and trial juries, an absence of due process, numerous violations of Tennessee code, convictions without evidence, an inability to obtain court transcripts, falsified transcripts, physical abuse while incarcerated, and trumped-up charges pursued by prosecutors operating without any legal restraint.
Tenth Judicial District chief prosecutor Stephen Crump stated in an interview late last year that “government influence” on the grand jury is “unethical.” However, Crump failed to respond to a letter from The Post & Email in January citing the myriad violations of law occurring in his district which defy his statement.
On March 18, 2014, Fitzpatrick brought a petition to the McMinn County courthouse, submitting it to the court clerk for consideration by the sitting grand jury. Fitzpatrick had submitted a number of different petitions between August 2012 and March 18 of last year dealing with suspected election fraud; wrongdoing on the part of judges, court clerks, grand jury foremen, prosecutors, law enforcers, and others in positions of public trust; and particularly, then-McMinn County grand jury foreman Jeffrey Cunningham, who is a licensed Tennessee attorney and CEO and President of the Athens Federal Community Bank.
In late 2011, Cunningham was hand-picked by then-Criminal Court Judge Amy Armstrong Reedy, who lost her bid for re-election to an eight-year term last August. After considerable first-hand observation, Fitzpatrick described Reedy as “a criminal” for engaging in the hand-picking of the foreman and members of the grand juries, for her apparent familiarity with certain trial jurors, and for her sentencing of a defendant to life in prison for murder without any forensic evidence having been presented at trial.
In December 2011, Fitzpatrick observed that rather than selecting grand jurors for the coming year “randomly,” as Tennessee law requires, Reedy selected the names from slips of paper placed on her desk in a face-up position.
The appointment by the judge of the grand jury foreman is so entrenched in Tennessee that few have questioned the practice. When it has been challenged, judges typically refer to Tennessee Rules of Criminal Procedure, Rule 6(g), which states that the judge can choose the foreman. However, it also states, “The foreperson shall possess all the qualifications of a juror.”
In 1919, the legislature approved a law which permitted the judge, “within his discretion,” to appoint the grand jury foreman, although it was repealed six decades later in 1979. Nevertheless, judges continue to appoint the foreman “from wherever they choose” by an unknown vetting process, if one even exists.
On February 18, 2014, Fitzpatrick filed paperwork for a protective order against Cunningham after Cunningham approached him with an armed sheriff’s deputy and asked him to leave the courthouse while he was awaiting the disposition of a submission to the grand jury. Cunningham additionally told Fitzpatrick that if he should return with another grand jury petition, Cunningham would have him arrested.
In its brief, the state claimed that Fitzpatrick misrepresented the facts on the application for the protective order. It claimed that Cunningham felt threatened by Fitzpatrick, while Fitzpatrick told The Post & Email at the time that he felt threatened by Cunningham’s actions.
After handing his submission to the court clerk on March 18, Fitzpatrick was sitting on a bench outside the grand jury room awaiting a decision and reading a book when he was approached by two sheriffs’ deputies, handcuffed and arrested as a result of a grand jury indictment signed by a foreman appointed just minutes before by Reedy. When Fitzpatrick asked why he was arrested, he was told that the charges advanced from the grand jury were “extortion,” “aggravated perjury,” “stalking,” and “harassment.”
Fitzpatrick was jailed for approximately a week before making bond.
During a pre-trial hearing on June 16, Cunningham testified that he never accused Fitzpatrick of “anything,” although Cunningham was identified as the victim of Fitzpatrick’s alleged crimes. Two of the grand jurors who indicted Fitzpatrick reportedly provided testimony at the hearing which differed from statements they had made to Irion beforehand.
Judge Jon Kerry Blackwood presided over the trial on June 23 and 24, which resulted in convictions on the perjury and extortion charges. Blackwood had dismissed the “harassment” charge, and the jury found Fitzpatrick not guilty of “stalking.” None of the jurors would speak on or off the record with this writer.
At Fitzpatrick’s August 19, 2014 sentencing hearing, Blackwood delivered a lengthy soliloquy in which he called Fitzpatrick “a moral coward” for having accused him of criminality. Blackwood, too, has appointed and reappointed numerous grand jury foremen over his 30-year career and has been made aware of jurors serving consecutive terms in violation of law, yet taken no action to correct it.
State code allows any citizen to bring evidence of alleged criminal activity to his local grand jury. Following the sentencing, Irion stated that criminalizing a citizen’s ability to bring a petition to the grand jury created a “chilling effect” on the First Amendment right for citizens to seek redress of grievances from their government.
In the State of Tennessee’s brief, Attorney General and Reporter Herbert Slatery III and his deputy, Jeffrey D. Zentner, identified Cunningham as “an employee” of the Athens Federal Community Bank. On pp. 4-5, the state maintained that “Mr. Cunningham knew his appointment as foreperson by judge’s order in 2011 to be valid and lawful and not an indictable offense.”
The state presented a false statement of fact when it wrote, “Mr. Cunningham did not block the November petition-twelve grand jurors heard it.” The full McMinn County grand jury did not review any of Fitzpatrick’s petitions.
In his brief on behalf of Fitzpatrick, Irion claimed that the trial court did not have jurisdiction to hear the case. “Because grand juror Hicks was a victim of the alleged crime of extortion as charged on the indictment, Hicks was disqualified to participate in discussion or vote on that indictment. TN R. Crim. Proc., 6(c)(1)(C). Because Hicks did participate in discussion of that indictment, and did vote on that indictment, the indictment is void, at least as to the extortion charge,” Irion wrote.
The state’s brief can be read here: Fitzpatrick State Appeal Brief April 2015
Irion’s response brief can be read here: Fitz II Reply Brief 5.2
Fitzpatrick is currently housed at the Northwest Correctional Facility in Tiptonville, where several inmates reportedly have been murdered. Prior to his incarceration, Fitzpatrick requested no letters, mail, visits, or telephone calls, but rather, that supporters familiarize themselves with the functioning of the grand juries in their own communities.
As Irion is working pro bono, he established a legal defense fund through his office for those wishing to support Fitzpatrick.