SHELBY COUNTY JUDGE “ASSUMED THE ROLE OF PROSECUTING ATTORNEY”
by Sharon Rondeau
For an unknown reason, Fitzpatrick’s mailing was delayed for nearly a month in reaching us.
Fitzpatrick appeared on behalf of NWCX inmate Jerome L. Johnson, who filed a post-conviction petition challenging the legitimacy of his grand jury indictment from December 2010 because the signature of the foreman is illegible. Since it was issued, Johnson has been unable to discover the person’s identity.
In a previous letter, Fitzpatrick wrote that the Shelby County criminal court clerk “refuses to give out raw data” concerning Johnson’s “mystery foreman.”
Johnson asked his attorney to subpoena Fitzpatrick so that he could share his research and knowledge of the appointment and reappointment of grand jury foremen in Tennessee, an issue Fitzpatrick began studying during the fall of 2009 when he approached the Monroe County criminal court to file a petition.
As a result of his request, Fitzpatrick discovered that Tennessee’s presiding criminal court judges choose their own grand jury foremen from outside of the mandated empaneling process. The foreman therefore avoids the customary scrutiny for conflict of interest and bias against the accused which the remaining grand jurors face, and he or she is likely well-acquainted with the judge.
Fitzpatrick is not the only Tennessean to question the constitutionality of a judicially-appointed, hand-picked foreman from outside of the jury pool.
The practice likely began after a 1919 law was passed which permitted each criminal court judge to select the grand jury foreman from the community at large “within his discretion.” Although repealed in 1979, judges continue to insist that the custom is completely legal, and any legislative efforts to curb it have been thwarted, including by Tennessee Lt. Gov. and state senate president Ron Ramsey.
The Fifth Amendment allows for an unbiased grand jury to review evidence against a citizen before he can be charged with a crime.
An 1883 Tennessee Supreme Court case referred to the foreman as having been chosen from “the venire,” not the “community at large.” In two separate cases, the U.S. Supreme Court has opined that “bias” in the selection of the grand jury foreman must be “avoided.”
Until recently after its website was redesigned, the Tennessee Attorneys General Conference referred to a grand jury as containing 13 people, one of whom is chosen to serve as the leader, or foreman.
Last month, a Shelby County clerk told a resident that the court possessed no appointing orders for Shelby County grand jury foremen for the last eight years. However, The Post & Email acquired a copy of a September 2012 appointing order which indicated that foreperson Dr. William Sweet had “retired,” necessitating the appointing of a new person to the “office,” according to the ten judges who signed it.
While in court on August 16, Fitzpatrick revealed a copy of Johnson’s appointing order dated December 2, 2010, at which point Coffee was forced to admit that he, too, was unable to determine whose signature appeared as that of the foreman.
In addition to the hand-picked foreman, Shelby County designates a “foreperson pro tem” who is also appointed by the judge.
A very brief initial hearing in Johnson’s case on July 29 was continued to August 16, when Fitzpatrick was transported for the second time to the Shelby County courthouse in Memphis. Criminal Court Division VII Judge Lee V. Coffee presided on both occasions.
At the opening of his latest letter, Fitzpatrick wrote that Coffee swore him in but following approximately five minutes of questioning by Johnson’s defense attorney, Gregory Allen, “Coffee threw me out of the witness chair. Coffee then abandoned his role as ‘judge’ assuming the role as a ‘hostile witness’ testifying against Mr. Johnson…”
The Post & Email will continue the story in the second installment in the near future.