Tennessee Case Now in Its Fourth Year Illustrates Fifth, Sixth Amendment Violations

“THERE’S NO INCENTIVE TO DO IT RIGHT IF THERE’S NO PUNISHMENT FOR DOING IT WRONG”

by Sharon Rondeau

(Jun. 22, 2016) — For nearly a year, The Post & Email has been reporting about the case of State of Tennessee v. Roy Cook, 2013-CR-197, in which the defendant’s twin brother, Andrew, accused him of extortion in April 2013, with an indictment issued in October 2013 by the Roane County grand jury.

Roane County is one of four within Tennessee’s Ninth Judicial District adjoining the Tenth Judicial District, where Walter Francis Fitzpatrick, III lived prior to his imprisonment in 2014 for “extortion” and “aggravated perjury” for having attempted to gain an audience with his county grand jury about local public corruption.

The Tenth Judicial District’s Monroe County was brought into the Cook case after Roy Cook’s computers were seized on April 24, 2013.

In what is now the “Tenth Judicial District” in McMinn County, returning World War II veterans in 1946 launched the “Battle of Athens” to cleanse county government of a politically-entrenched, corrupt sheriff, the practice of vote-rigging and voter intimidation.  In an essay written just after the confrontation between the veterans and Sheriff Pat Mansfield and his deputies in which the veterans were victorious, John Peck wrote, quoting Abraham Lincoln:

What Lincoln meant was just this: The government of any group of people is in the hands of the people and they must carry on an active part in maintaining their government unless they want to abide by the rule of a few unscrupulous persons who find ways and means of getting the reins of power in governmental offices. If the people as a whole do not maintain a vigilant watch over matters of government a few people, grasping for power and domination find it easy to undermine all the principles of democracy.

It has been said that the situation now prevailing in McMinn County puts its citizens in the best position of any county in the state and possibly in the nation as to the control and manipulation of its government.

Sixty-eight years later in McMinn County, following a “trial” in which the key witness denied having filed a criminal complaint, Fitzpatrick was found guilty on extortion and aggravated perjury charges and sentenced to three years in state prison.

In 2012, Fitzpatrick discovered that Tennessee county criminal courts were legislated out of existence in 1984 but continue to operate to this day.  Thirty-two years ago, the state legislature ordered that county criminal courts form designated districts to contain, in most cases, two or more counties.  While no one The Post & Email has contacted about the matter has acknowledged the existence of the laws, there is no evidence that they were ever repealed or modified.

The above interactive graphic depicting Tennessee’s 30 judicial districts can be found at http://www.tncourts.gov/administration/judicial-resources/judicial-district-map

Tennessee’s 30 judicial districts in general comprise multiple counties, suggesting that the 1984 laws were partially implemented.  Each judicial district’s lead prosecutor, termed the “district attorney general,” enjoys virtually unlimited power as stated in a 2013 opinion by former Tennessee Attorney General Robert E. Cooper, Jr.

Tennessee is the only state in which the state supreme court chooses the attorney general, who serves for a term of eight years.

Since Fitzpatrick became aware of the practice nearly seven years ago, The Post & Email has reported extensively on Tennessee’s longstanding grand jury foremen, who are handpicked by the criminal court judge and serve at his or her pleasure, sometimes for decades.  The practice contravenes the Fifth Amendment to the U.S. Constitution, which provides that an unbiased group of citizens review the evidence before a citizen of the community can be formally charged with a crime.

Roane County grand jury foreman Charles C. Snow has been serving for 23 years and was appointed by now-retired Judge Jon Kerry Blackwood, who sentenced Fitzpatrick.

The Sixth Amendment to the Bill of Rights provides that:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Article I, Section 9 of the Tennessee constitution states:

That in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of the county in which the crime shall have been committed, and shall not be compelled to give evidence against himself.

Assistant District Attorney General Robert Edwards is prosecuting the case against Roy Cook in which the plaintiff, Andrew Cook, claimed that Roy absconded with several computer circuit boards and attempted to “extort” $30,000 for their return.  The circuit boards were later found, but the case went forward.  Roy Cook has maintained his innocence throughout the case, which has passed the three-year mark but has not yet gone to trial.

The next hearing is scheduled for July 5 at 9:00 a.m.

Since his indictment, Roy Cook has been appointed three different attorneys at the county’s expense, all of whom have withdrawn.  The last, Alan Moore, withdrew as Cook’s counsel of record on April 18 of this year.  Although promised his constitutional right to counsel by Roane County, Roy Cook has yet to be appointed a new attorney.  He has accused the Ninth Judicial District of misconduct by withholding exculpatory evidence and failing to investigate.  “I didn’t get the evidence against me until ten months after I was indicted,” Cook told The Post & Email in a recent interview.

His first attorney was public defender Walter C. Johnson and the second Joshua Hedrick of Whitt Cooper Trant & Hedrick.  On April 15, Roy Cook submitted a lengthy motion to dismiss on which Judge Jeffrey Wicks has not ruled. Upon Moore’s withdrawal, Roy Cook told Wicks, “I would like a competent attorney who is not corrupt.”

Ninth Judicial District chief prosecutor Russell Johnson ran for his post unopposed, and Wicks is running unopposed for his seat in August after being appointed to fill the vacancy left by Judge E. Eugene Eblen, who retired at the end of last year after five decades on the bench.

Roy Cook’s three computers were seized, then retained by the prosecutor’s office for 20 months, ostensibly to perform forensic analysis for evidence of the “extortion” accusation.  Lt. Dan Schneider of the Harriman Police Department reportedly received the computers from the original case investigator, Jeff Vittatoe.

In November 2013, one month after Roy Cook was indicted, Vittatoe relocated to Montana.  On Tuesday, The Post & Email placed respective calls to Vittatoe and Schneider for comment about the computer forensics aspect of the case but has not received a response as of press time.  Directly afterward, we left a voice message for Edwards inquiring about the forensics and the status of the prosecution.  Edwards’s voice message states that he returns all calls “within three business days.”

Roy Cook reported that an evidence log he has acquired through discovery does not indicate when Schneider received the computers or signed off on their return in December 2014. In fact, the only evidence that Schneider ever received them is a handwritten statement by Vittatoe on the evidence log.

Roy Cook evidence.log

In communicating with the plaintiff by email following Andrew Cook’s complaint, Vittatoe used a Yahoo! email account instead of a Tennessee government email address, and certain parts of the emails presented as evidence have been whited out.

On May 2, Roy Cook wrote in an email to Edwards:

Since I have not heard from anyone about my new attorney yet, I feel the need to continue to investigate and obtain evidence to prove my innocence.  You told Judge Wicks on 4/15/2016 you had never heard of the evidence I mentioned. I think we both know that is not entirely true. I have multiple emails to my attorneys discussing the forensic analysis of the 3 computers.  I also sent you and Josh Hedrick an email on 2/22/2016 requesting the phone records.  The phone records are mentioned in an email from Andrew Cook to Jeff Vittatoe.  Vittatoe also mentions them in his Investigative Summary as well as in the Affidavit for Search Warrant. These items were in the evidence that was turned over to me on 8/15/2014 so I can only assume you have had this evidence in your possession for at least the same amount of time.

Also, if you read the evidence receipt log you will see Vittatoe writes that on 5/21/2013, “highlighted item have been released to Lt. Dan Schneider for forensic analysis”. However, there is no initials in the chain of custody.  In addition to that someone whited out the Submitting Agents name.  You have had this in your possession for at least 2 years also. It’s obvious that someone whited out parts of the log just as they did the emails.

In late May and acting as his own attorney, Roy Cook requested that the Roane County court clerk issue several subpoenas for documents on his behalf, one of which went to Yahoo! for emails exchanged between Vittatoe and Andrew Cook in addition to those he was able to obtain before a four-month window for information storage maintained by Yahoo! expired.

Yahoo! responded to Roy Cook’s subpoena by stating that it does not have to comply with the release of documentation, citing federal case law.

A PDF of Yahoo!’s response to the subpoena can be read here in better resolution:  Roy Cook Yahoo! Response to subpoena

Roy Cook has spoken with Schneider, Vittatoe, an FBI agent and Shane Harrold, the Monroe County computer analyst assigned to conduct the forensic analysis on his computers.

“Schneider told me that he took the computers to Detective Harrold, who had a 62-minute and 30-second conversation with Andrew (Cook),” Roy Cook told us, as evidenced by records he has been able to acquire from Vonage.  “Andrew called Vittatoe on Friday, September 6, 2013 and had a 24-minute conversation.  Immediately after hanging up with Vittatoe, Andrew called the Monroe County Sheriff’s Department, where Harrold works.  The following Monday, the 9th, he had the 62-minute, 30-second conversation with Harrold. That was the month before I was indicted.  How can no information and no evidence obtained be presented to the grand jury?” he asked.

Emails from March and April 2013 have been supplied to the prosecution, but Roy Cook said that emails from January and February that year which have not been obtained would prove him innocent of the extortion charge.

Cook recently received a facsimile of a subpoena he requested be issued to Schneider requesting his presence at the July 5 hearing to which Schneider appears to have written “NO RECORDS TO PROVIDE” in the upper-right just under the case name.

Roy Cook Subpoena 06-10-16 13cr197_rad0CC0F

According to a handwritten notation of the date and time on the subpoena, the document was faxed to Schneider at the Harriman Police Department at 9:15 a.m. EDT on May 26, 2016.  Roy Cook believes that Schneider then faxed the document to the prosecutor’s office with the inclusion of “NO RECORDS TO PROVIDE.”  “There is no fax number where it came from on page 2, so they faxed something else over that I didn’t get.  Who would block their fax number?  The prosecutor’s office,” Roy Cook further ruminated.

“It looks as if they didn’t reset the time ahead on the fax machine for daylight savings time.  If we can assume that the court clerk faxed it at 9:15 a.m. and got it back at 9:28 a.m., not 8:28 a.m., they had it for 13 minutes.  That’s not enough time to look for anything.  So that would mean that Schneider had it for eight minutes, and the prosecutor had it for less than ten,” Cook said.  “I’ve pointed out and exposed prosecutorial misconduct on an egregious level, I think, and no one seems to care.  Emails and evidence have been withheld from me, and they’re still prosecuting this case after four years.”

Regarding the whiting-out of some of the emails presented as evidence, Roy Cook asked rhetorically, “Isn’t it a prosecutor’s job to investigate crime?”

Cook further reported that Court Clerk Kathi Hamilton confirmed to him that the subpoena was returned within minutes and that Schneider had called to tell her that he would be faxing it back to her.

“They’ve had the records for three years.  Then they did a 15-minute search for records that are three years old and decided they didn’t have them.  But where are the records?  Why are there no signatures on the evidence log?  Why didn’t Steve Harrold or Schneider sign for the computers?  Why hasn’t Harrold turned over the forensic analysis of the computers?  I know why:  because it would prove me innocent.  It would have shown that I was innocent a month before the grand jury indicted me, and they chose to indict and prosecute me anyway,” Roy Cook said.

“Shane Harrold told me that someone told him this case was not going to trial and that is why he didn’t complete the forensic analysis on all three computers,” Cook continued.  “And if I had not contacted Schneider, I would never have known about Harrold or the forensic analysis or that someone stopped the forensic analysis.  And we have whited-out emails!”

“How many 62-minute conversations would you say an investigator has with a plaintiff?” he then asked rhetorically.  “Why did Schneider fax the subpoena to Edwards?”  “‘Explain the conversation you had with Edwards, Dan,'” Cook said, addressing himself hypothetically to Schneider.

“They are so arrogant…13 minutes…because they know the judge isn’t going to do anything,” Cook ruminated.  “There’s no incentive to do it right if there’s no punishment for doing it wrong.”

“They knew before they indicted me that I was innocent; the emails they would have found would have proved it.  They’ve seen some of those emails because I’ve supplied some.  They chose to ignore them at that point.  Andrew said in one of them, ‘Roy did not ask for any money.’  If I didn’t ask for money and we started negotiating, this was a negotiation.  The negotiation ended on January 18.  You did not give the prosecutor any of those emails from January 15 to January 18.  You chose to give those to the FBI because you had to; the FBI said, ‘There’s no crime.’  When you went over to the Ninth District, all you supplied them was redacted March and April emails and falsified phone records,” Roy Cook said of his accuser.

As to why the case has been prosecuted, Roy Cook believes that it was motivated by “retaliation” for something which happened years ago involving Roy Cook and a private company financially supportive of Russell Johnson.  “They’re prosecuting people for nonsense,” he said.

Cook then described the scenario by which, if he were to be assigned a new attorney, “I would have to put my faith in someone who’s getting paid by the people who want to prosecute me.  I would have to hope he gets up there and does his job, because I’m not even allowed to question the witnesses.  I can, but only if I waive my right to counsel.  I’ve not asked a defense attorney to do anything outrageous.  Something I said to Alan Moore before he left was, ‘Can they prove, even if they say things were sent from one computer to another, who it was who sent the emails?’  My (now-deceased) brother Tom was living with me then, and there was never an investigation done about that.  Vittatoe even said that he was ‘surprised to see Tom here’ at the time.”

“If they want to prosecute me and take away my freedom, label me a felon and pretty-much ruin my life, don’t they have to have proof?” Cook posed of the prosecution’s position.  “Look at all the money they’ve wasted!”

As to why Tennesseans do not appear outraged about the squandering of taxpayer dollars on false prosecutions, prosecutorial malfeasance, and government corruption as evidenced by his case, Cook said, “They won’t do anything until they (government operatives) come for them.”

One Response to "Tennessee Case Now in Its Fourth Year Illustrates Fifth, Sixth Amendment Violations"

  1. Jeffrey Harrison   Wednesday, June 22, 2016 at 9:34 PM

    Christians, let’s continue to remember Mr. Cook in prayer.

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