“OFF THE RESERVATION”
by Walter Francis Fitzpatrick, III, ©2017
(Jul. 4, 2017) — Charles Dickens tells us: The law is an ass.[i]
Here’s an object lesson consequent why Dickens said what he said:
Judges cherry-picking Tennessee grand jury foremen has been going on since 1919. To count the number of cases illicit grand juries have touched is to count the grains of sand in an hourglass measuring time over nearly the past one hundred years.[ii]
Original-intent legislation respecting grand juries, made law in Tennessee’s Constitution of 1797 (lifted almost completely from North Carolina’s Constitution), is that the grand jury was to be a populated with eighteen people, randomly selected; that is, selected by lot.
The law was silent about the method of selection for the foreman. It’s taken for granted that the grand jury assembly, once convened, was to select their leader from among themselves.
Logically it’s assumed, as it’s not addressed in the Constitution, that grand jurors served at the convenience of the court. No “term” time was specified. The court dismissed the grand jury when the court determined the grand jury was done with its caseload tasking.
In 1858 Tennessee’s legislature reduced the number required for a grand jury from eighteen (18) to thirteen (13).[iii]
The law commanded all thirteen grand jury members to be randomly-selected (by lot).
It was in 1858 when Tennessee’s legislature empowered “the court” (a judge) to “appoint” the foreman from the grand jury only after it is formed.
It was in 1858 when it appears the position of “grand jury foreman” was created. The U.S. Supreme Court (SCOTUS) observes: “The office of grand jury foreman is not a creature of the Constitution, but, instead was originally instituted by statute for the convenience of the court.”[iv]
Two years was first established in 1858 as the term-time for the grand jury foreman.
Term times for the remaining grand jurors were shorter.
Writing in 1883, Tennessee’s Supreme Court declared: “…the method of forming a grand jury is prescribed, substantially, by placing the names of parties summoned on the [jury pool], who are in attendance [in court], in a box or other receptacle, and having the scrolls drawn out [by lot] by a child under ten years of age, ‘and the thirteen jurors whose names are first drawn shall be a grand jury for the term.’ ”[v]
Again, in 1858, criminal court judges were empowered to select the foreman, so in reading the language of 1883 it’s clear the foreman has to be selected by lot along with fellow grand jury members. It is assumed term-time for grand jurors was two years; however, this assumption may be incorrect. If incorrect, further research is in order, maybe.
The ACTS of 1919 reduced the number of grand jury members randomly selected from thirteen (13) to twelve (12).
Be clear on this: The minimum number of people required in the grand jury remained at thirteen (13) and stands at thirteen today.
For the first time, the legislation of 1919 empowered criminal court judges to personally “hand-pick,” then appoint the grand jury foreman from the community at large.[vi]
“The judge may within his discretion select the foreman from the community at large, and his selection may be completely divorced from the selection of the venire [jury pool] and the selection of the other jurors.”[vii]
In 1919, Tennessee legislators unconstitutionally changed the method of forming the Grand Jury, specifically regarding the foreman, authorizing and allowing criminal court judges responsible for forming the Grand Jury to “hand-pick” the foreman. The office of county grand jury foreman came into existence.
Four years later, in 1923, writing for Tennessee’s Supreme Court, Justice L.D. Smith confirmed what the 1919 state statute required, expounding: “[Chapter 37 of the Acts of 1919] does not undertake to make any change in the method of selecting the grand jury other than is effected by the provision for the [criminal court judges’ personal] appointment of a foreman and in making [the foreman] a member of the grand jury.”[viii]
It was in response to a 1923 appeal when Justice Smith came to play a crucial role in the judicial and legislative history on the method of selection used to appoint county grand jury foremen in Tennessee.
Justice Smith was faced with deconflicting a Henderson County “private law,” enacted in 1921, which amended and ran smack into Tennessee’s 1919 “public law” regarding the methods (plural) regulating the selection of, in particular, a Henderson County grand jury as an entity, and the selection of a Henderson County grand jury foreman.[ix]
Appellant Oscar Roberts attacked his Henderson County grand jury because it had issued an outlawed indictment against Roberts consequent of Henderson County Circuit Court N. R. Braham’s error installing a person unqualified in Henderson County as both a juror and grand jury foreman into appellant Roberts’ grand jury membership.
According to law (de jure) as it applied in Henderson County in 1923, Judge Barham was required to select the grand jury foreman. But in the Roberts case, Barham failed to do so, leaving the task, in fact (de facto) to another judge.
Roberts argued the infected person was disqualified as a juror, rendering his grand jury under-populated and consequently disqualified as a group entity; handicapped not having the required number of voting members assembled.
Appellant Roberts’ attack on the grand jury foreman further argued that, yes, the foreman in Roberts’ grand jury was, in fact (de facto), installed by a criminal court judge (not Judge Barham), but it was the wrong criminal court judge who had made the personal selection.
Roberts properly contended that as a matter of law (de jure), his grand jury was illegal.
Roberts did not call out the constitutional infirmities respecting judges in Tennessee cherry-picking the foreman (beginning in 1919), and therefore, Justice Smith was under no obligation and had no reason to comment on the issue in his 1923 ruling.
Tennessee Assistant Attorney General Thos. L. Cornelius contended the Supreme Court should leave Roberts’ conviction undisturbed, arguing that, in fact (de facto), a criminal court judge had wrongfully selected Roberts’ grand jury foreman, but Roberts had suffered no harm due to judicial error.
Supreme Court Justice Smith did not agree. Smith asserted:
“There is no such thing as a de facto grand jury, for the law undertakes to provide the method of selecting men who can prefer a valid indictment, and no others can do so.”
Justice Smith reversed Roberts’ conviction and sent it back to Circuit Court Judge Barham to be handled in proper proceedings, in accordance with the law (de jure).
Tennessee officers went off the reservation in 1919, legislating county grand jury foremen out of the grand jury setting and illegally establishing the office of “grand jury foreman,” but in 1958 the combined power of the legislature, executive and judiciary went completely rogue by way of standing up a rival government competing with state and federal constitutions.
[i] Charles Dickens, Hard Times, 1854.
[ii] Chapter 37 of the Acts of 1919.
[iii] Tennessee Code Annotated (TCA) 4020, General Assembly 1857-
[iv] 1984: Hobby v. United States, 468, U.S. 339, 104 S.Ct. 3093, 82 L.Ed.2d 260.
[v] 1883: State v. Gouge, 80 Tenn. 132, Tenn. Supreme Court.
[vi] Chapter 37 of the Acts of 1919.
[vii] Hale v. Henderson, 349 F. Supp, 567, D.C. Tenn, 4 October 1972.
[viii] 1923: Roberts v. State.
[ix] 1923: Roberts v. State, 147 Tenn. 323, 247 S.W. 101 – Tenn Supreme Court.