“THE ISSUE IS NOT THE REAPPOINTING, BUT THE APPOINTING”
by David Tulis, ©2020, NoogaRadio 92.7
(Sep. 12, 2020) — An analysis of the bias-riddled Tennessee grand jury system has prompted Herbert Slatery 3rd, the state’s attorney general and lead prosecutor, to put on his workgloves, grab tongs and string rows of concertina wire between him and the people of Tennessee.
Mr. Slatery, hunkered down in a trench, peers with double-eyed periscopes across no-man’s land, anticipating an onslaught — or maybe just a single sapper.
His defensive works are evident in an exchange with state Sen. Bo Watson of Chattanooga, who demanded an opinion letter arising from this reporter’s analysis of the state’s partial and discriminatory judiciary.
The December 2019 deep cleanse scan of partiality in the grand jury system prompted Sen. Watson to ask a question about whether it is impartial in handing down criminal indictments, with one of the votes for indictment coming from a judge-picked favorite on the panel: The foreman.
The constitution and American jurisprudence require that juries be impartial and that they represent the people and their interests and that they be randomly selected. Whenever bias or favor appear in the selection of grand jury or petit jury members, an appealable issue is created. Due process — a rightly hallowed American concept — is threatened.
Killer dumb question
The question senator Watson asked:
Sen. Bo Watson asks AG Slatery question on grand jury Bo-Watson-asks-Slatery-question-on-grand-jury
Does the naming of the foreman by criminal court judges and their holding office for many years — apart from the randomly selected venire — impose a system of bias and discrimination on the grand jury that injures defendants’ rights to due process and an impartial system of justice, thereby abrogating the grand jury’s role as guardian of the people’s rights and liberties?
In a letter dated Aug. 27, Mr. Slatery tells senator Watson that no opinion will be given because “pending litigation that involves the questions posed in your opinion request.” He gives more reasons that indicate he would answer the same way, regardless of whether a case asking the question were in the courts.
It’s not immediately known whether such an argument is in the court system, or whether Mr. Slatery is merely anticipating claims arising from one of the 95 counties in the state demanding redress on the basis of the foreman problem.
The analysis by this reporter effectively says that the system in place in Tennessee for more than 100 years is unconstitutional and inherently biased. His review cites two supreme court rulings and a U.S. district court opinion that explain the problem for justice and equity in Tennessee — that of the naming of the grand jury foreman by local judges apart from the random selection process.
In Hamilton County, one of the foremen of the two grand juries is Hugh Moore, a former prosecutor and blue blood attorney at the high-brow Chambliss Bahner & Stophel law firm in Chattanooga. The investigation shows how grand juries are co-opted by state actors and serve the state and do not represent the skepticism and interests of the people. Some grand jury foremen are police-connected or have served police functions in state government. Others hold office 20 years or more, and run local grand juries in close amity with police, local elites and prosecutors.
Mr. Slatery’s letter is from the hand of a party identified as ANDRÉE SOPHIA BLUMSTEIN, solicitor general.
She says Mr. Slatery “has received and carefully considered” Sen. Watson’s request but then misstates the question — Sen. Watson’s bid for “an opinion as to the propriety of reappointing the foreperson of the grand jury for successive terms by the judges of the criminal court.” The issue is not the reappointing, but the appointing.
We are unable to provide the requested opinion because this Office represents the State in pending litigation that involves the questions posed in your opinion request. In compliance with our ethical obligations and to avoid intruding inappropriately into the administrative or judicial process, this Office has a longstanding policy of not opining on questions concerning matters or issues pending before administrative or judicial bodies or matters involving potential or threatened litigation. In particular, this Office may not issue opinions, such as the one you have asked for, related to matters in litigation in which the Office is itself involved or matters in which it has been or may be called upon to provide counsel to a client. [emphasis added]
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