BUT DISCIPLINARY BOARD HEARING REINSTATED
by Sharon Rondeau
After reporting strip searches and seizures of letters and articles by correctional officers received from The Post & Email over the last several weeks prior to his relocation, on June 26, Fitzpatrick was informed he would move from Guild 14 to Guild 2. The correctional officers in his former guild were reportedly “frantically” looking to see if their names had been published.
In the letter, dated “29 June 2015,” Fitzpatrick complimented Correctional Officer Lori Avery, who is employed in Fitzpatrick’s new quarters in the area of education, for her professional demeanor.
Although deemed not to be a suitable candidate for any of Tennessee’s state prison educational programs during the intake process, in December Fitzpatrick was inexplicably sent to NWCX, which emphasizes education, above community service or learning a trade.
Following the searches of both Fitzpatrick and his former roommate, Fitzpatrick was moved and excused from the Pro-Social Life Skills program after allegedly being physically threatened by the instructor while another staff member sat at her desk looking on. Fitzpatrick objected to participating in the class because he said that the workbooks required him to admit to criminal behavior of which he said he is not guilty.
Between August 2012 and March 2014 Fitzpatrick submitted numerous petitions to the McMinn County grand jury seeking an audience to describe his first-hand observations of alleged corruption on the part of prosecutors, judges, court clerks, law enforcers, and grand jury foremen. The Post & Email has documented over the past six years that Tennessee grand juries are controlled by the criminal court judge by means of a hand-selected foreman working as an employee for as long as the judge wishes, sometimes for decades. When deemed “necessary,” the grand jury foreman casts a vote with the other 12 jurors to determine whether or not an individual will be indicted for a crime. State law requires that there be 12 unanimous votes in favor to issue an indictment.
On March 18, 2014, while Fitzpatrick awaited a disposition on his latest petition, he was arrested by two sheriff’s deputies on four grand jury indictments produced within minutes of the judge’s appointment of a new grand jury foreman. At a pre-trial hearing, former McMinn County grand jury foreman Jeffrey Cunningham denied having accused Fitzpatrick of a crime, although Cunningham was portrayed as the state’s chief witness and victim.
Last August, Fitzpatrick was sentenced to three years in state prison on convictions of aggravated perjury and extortion. While the parole officer’s written report stated that there existed no victim of the alleged crimes, she changed her statement orally at the sentencing hearing to say that Cunningham was the victim.
The Fifth Amendment of the Bill of Rights, which contains the only reference in our founding documents to the grand jury, states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In Tennessee, grand jurors are required to swear an oath that they will “keep secret the state’s counsel, the other jurors’ and your own; that you will present no person from hatred, malice, or ill will, nor leave any unpresented through fear, favor, or affection, or for any reward, or the promise or hope thereof, but that you will present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding. So help you God.”
In the 2008 U.S. Supreme Court case of United States v. Williams, associate Justice on Janine Scalia wrote for the majority in a reversal of a lower court’s decision:
Rooted in long centuries of Anglo-American history,” Hannah v. Larche, 363 U.S. 420, 490, 80 S.Ct. 1502, 1544, 4 L.Ed.2d 1307 (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 1977) (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, 98 S.Ct. 72, 54 L.Ed.2d 83 (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, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960); Hale v. Henkel, 201 U.S. 43, 61, 26 S.Ct. 370, 373, 50 L.Ed. 652 (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, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974); Fed.Rule Crim.Proc. 6(a).
The grand jury’s functional independence from the judicial branch is evident both in the scope of its power to investigate criminal wrongdoing, and in the manner in which that power is exercised. “Unlike a court, whose jurisdiction is predicated upon a specific case or controversy, the grand jury ‘can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.’ ” United States v. R. Enterprises, 498 U.S. —-, —-, 111 S.Ct. 722, 726, 112 L.Ed.2d 795 (1991) (quoting United States v. Morton Salt Co., 338 U.S. 632, 642-643, 70 S.Ct. 357, 364, 94 L.Ed. 401 (1950)). It need not identify the offender it suspects, or even “the precise nature of the offense” it is investigating. Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919). The grand jury requires no authorization from its constituting court to initiate an investigation, see Hale, supra, 201 U.S., at 59-60, 65, 26 S.Ct., at 373, 375, nor does the prosecutor require leave of court to seek a grand jury indictment. And in its day-to-day functioning, the grand jury generally operates without the interference of a presiding judge. See Calandra, supra, 414 U.S., at 343, 94 S.Ct., at 617. It swears in its own witnesses, Fed.Rule Crim.Proc. 6(c), and deliberates in total secrecy, see United States v. Sells Engineering, Inc., 463 U.S., at 424-425, 103 S.Ct., at 3138.
Fitzpatrick’s most recent letter, dated 29 June 2015, reports:
This time tomorrow I’m being forced to attend the TDOC/NWCX Adult Basic Education school (ABE) to work to obtain my GED. No kidding.
Fitzpatrick holds Bachelor’s and Master’s degrees and obtained his high school diploma at Villanova Preparatory School in Ojai, CA. A GED is an alternative to a high school diploma for those who did not complete their high school coursework for one reason or another.
In previous letters, Fitzpatrick said he believes that inmates are forced into classes they do not need, have already taken, or for which they are unqualified so that the facility can bill the federal government for each participant up to $3,000 in some cases.
His letter continued:
One very good and professional correctional officer–Lori Avery–is working diligently right now to secure my release from the program. But it could be weeks.
Correctional Officer Avery is reaching out to California’s Board of Education to secure certification of my 1969 high school diploma.
Copies of paperwork generated this morning enrolling me in the ABE/GED course (under protest you’ll remember) are enclosed.
The dragon days of Guild #14 are past and opening. The Guild #2 routine is much like that of Guild #5. I’m returned to a state of “normalcy.” I’m out of the Pro Social Life Skills program for good. And the “Class-A” disciplinary write-up is dismissed. No disciplinary board.
However, farther down on page 3 in a section of the letter written later, Fitzpatrick wrote:
I can’t keep up with ever changing events!!
The disciplinary board for the “Class-A” right up Terry Hopper issued on 19 June 2015 is back on the table!!…
I was summoned to Unit #1–Disciplinary Board office–at 1422 hrs. local (2:22 p.m. CDT). I just returned.
Sgt. Cagle informs me my “D-Board” was to be held today, but D-Board members are not here today. So Cagle rescheduled to disciplinary hearing to Wednesday, 1 July 2015. Time to be determined, but probably in the morning.
I reported to Sgt. Cagle Vivian Windsor informed me last Friday morning, 26 June 2015, the write up was dismissed.
Sgt. Cagle shot back: “Hopper didn’t drop the write-up.”
So I signed notice of the continuance and enclose the pink copy with this letter.
The Post & Email will report any new developments as they become available.