AFTER TENNESSEE HIGH COURT REFUSES TO HEAR APPEAL
by Sharon Rondeau
(Mar. 17, 2016) — On November 4, 2015, Atty. Van Irion filed an Application for Permission to Appeal to the Tennessee Supreme Court from the Tennessee Court of Criminal Appeals on behalf of Walter Francis Fitzpatrick, III, who was incarcerated on August 19, 2014 on a three-year sentence to state prison on convictions of “aggravated perjury” and “extortion.”
Following the sentencing hearing and Fitzpatrick’s entrance into state custody, Irion filed Motion for New Trial and Motion to Suspend Judgment, both of which were denied by Senior Judge Jon Kerry Blackwood, who retired last September. In his one-page response, Blackwood stated that Irion’s motions were “not well taken.”
Between August 2012 and March 18, 2014, Fitzpatrick had made a number of attempts to bring what he believed was firm evidence of corruption on the part of prosecutors, judges, the Sheriff’s Department, court personnel, and other public officials, including the grand jury foreman, for review by the McMinn County grand jury. The grand jury foreman at the time, Jeffrey L. Cunningham, had been handpicked by Criminal Court Judge Amy Armstrong Reedy, beginning his service in January 2012 and remaining continuously through early March 2014.
Cunningham is CEO and president of Athens Federal Community Bank in Athens, TN, garnering a six-figure income and was acquainted with Reedy before she chose him to preside over the grand jury at the rate of $10.00/day.
In Tennessee, criminal court judges are permitted to choose the county grand jury foreman from the community at large outside of the impaneling process used by law for all of the remaining 12 members of the grand jury. The foreman then serves at the pleasure of the judge, sometimes for consecutive years or even decades.
The practice has been challenged by several past and present inmates of the Tennessee penal system, with the judges’ insisting at all times that despite state law, the Tennessee Constitution, the U.S. Constitution, and the Fifth Amendment to the Bill of Rights, all of which are meant to guarantee that a defendant is treated fairly before trial and conviction or acquittal, they are entitled to the privilege of appointing the foreman “from wherever they choose.”
Fitzpatrick was attempting to point out the unconstitutionality of the hand-picked grand jury foreman to the McMinn County grand jury when he was arrested by two sheriff’s deputies on March 18, 2014 and charged with aggravated perjury, extortion, harassment, and stalking by the very people to whom he wished to make his presentation to support the documentation he submitted to the court earlier that day.
In a confrontation exactly one month prior, Cunningham had threatened Fitzpatrick with arrest if he were to return to the McMinn County courthouse with petitions for the grand jury.
After a trial lasting approximately one and one-half days, Fitzpatrick was convicted on the charges of aggravated perjury and extortion and acquitted of harassment, while Blackwood dismissed the stalking charge after the first day’s hearings. The only “evidence” the jurors “examined” was Fitzpatrick’s petitions submitted under penalty of perjury to the McMinn County courthouse for a grand jury review.
The Sixth Amendment allows an accused to confront his accuser, although at Fitzpatrick’s trial, no accuser other than the prosecutor was identified. Cunningham, although a key witness, denied having made any formal accusations against Fitzpatrick. Irion has questioned how his client could have been convicted of perjury when Cunningham asserted under oath during the trial that Fitzpatrick “sure seemed to believe” the contents of his submitted grand jury petitions.
Dr. Roger Roots, J.D., Ph.D. and author of the essay, “If It’s Not a Runaway, it’s Not a Real Grand Jury” and well-known scholar on the history of American grand juries, commented on a radio show in reference to Fitzpatrick’s experiences in Tennessee that he had never observed a system as corrupt as that which exists there.
Roots wrote that the original function of the grand jury was “to act as a check on the government” rather than to acquiesce to the government’s bidding. “Today, critics are nearly unanimous in describing the alleged oversight function of modern grand juries as essentially a tragic sham. The Framers of the Bill of Rights would scarcely recognize a grand jury upon seeing the modern version conduct business in a federal courthouse. In modern federal grand jury proceedings, the government attorney is clearly in charge and government agents may outnumber the witnesses by six-to-one,” Roots contended.
Last May, Irion argued an appeal of Fitzpatrick’s convictions to the Court of Criminal Appeals for the Eastern Division in Knoxville. The opinion from the three-judge panel, issued on September 8, upheld the jury’s verdict while stating that a grand juror need not be free of bias against a defendant when deciding to vote or against his indictment.
From his prison cell, Fitzpatrick has written that Tennessee is “The Land Where the Law Went to Die.” He and other inmates at the Northwest Correctional Complex (NWCX) in Tiptonville have reported multiple instances of gang violence, assault of both correction officers and inmates, theft, forced participation in classes to garner federal dollars for the facility, prisoners with open and infectious wounds, and the smuggling-in of cell phones, drugs and other contraband expressly prohibited by Tennessee Department of Correction (TDOC) regulations.
In January, Fitzpatrick attempted to send The Post & Email evidence of wounds on his extremities, but the package was reportedly destroyed by an employee in the NWCX mailroom. While there, Fitzpatrick experienced multiple raids on his personal property, reportedly in search of articles published by The Post & Email, and theft of postage stamps which to our knowledge, were never returned.
On March 1, Fitzpatrick reported by letter that he was relocated to the West Tennessee State Penitentiary (WTSP) in Henning, a facility colloquially known as “West High.” The Post & Email is uncertain as to Fitzpatrick’s health as of this writing.
Between March 16 and 18, the American Correctional Association (ACA) is scheduled to perform a routine inspection of NWCX. The Post & Email notes that Fitzpatrick and a second, as-yet unnamed inmate who reported having been assaulted by a correction officer were both moved prior to the scheduled inspection.
In an email announcement issued on Wednesday evening, Irion wrote that as a result of the Tennessee Supreme Court’s refusal to hear Fitzpatrick’s appeal, he will petition the United States Supreme Court for a hearing.
The Post & Email queried Irion as to whether or not it is common for a state supreme court to deny a hearing on any given case, to which he responded, “Yes, this is common. The majority of petitions for review are denied.” He also stated that “the TNSC never gives a reason for refusing to hear a case.”
An 1883 Tennessee Supreme Court case discovered by an inmate acquaintance of Fitzpatrick’s last fall, “State of Tennessee v. John Gouge,” indicates clearly that the grand jury foreman was at that time chosen from the jury pool, or “venire.”
Two U.S. Supreme Court decisions, Hobby v. U.S. and Rose v. Mitchell, have stated that there can be no prejudice in the appointment of the grand jury foreman. Tennessee criminal courts have been allowing judges to hand-pick the grand jury foreman for more than a century.
Anyone wishing to donate to Irion’s efforts, which are being provided to Fitzpatrick on a pro bono basis, may do so by sending a “payment” through his law office website and indicating in the “Comment” area its purpose. Alternatively, donations can be sent by check to 800 South Gay Street, Suite 700, Knoxville, TN 37929 made out to “Law Office of Van Irion,” noting “Fitzpatrick defense fund” on the memo line of the check.