Weird gaps, irregularities mark grand jury appointments

A review of appointment orders for grand jury foreman in Hamilton County uncovers an unusual record suggesting deep irregularities in the creation the citizen bodies charged with bringing indictments in criminal cases in Chattanooga and across Tennessee.

By David Tulis / 92.7 NoogaRadio

The oddities in appointment orders signed by local judges suggest a review is in order to pare back government control of the bodies whose original intent is to check arbitrary activities by officials, police and prosecutors and filter which cases go to trial.

The record of appointments of Chattanooga attorney and former federal prosecutor Hugh Moore and others as jury foremen shows:

➤ Duplicated or overlapping foreman assignments, including triple assignments on the concurrent grand jury in late 2011.

➤ A 3½ year gap and a 1½ year gap on the concurrent grand jury without a jury foreman, and a 1½ year gap on the regular grand jury. Either the grand jury in each case did not operate, or the grand jury ran ad hoc without proper authority under existing protocols.

➤ Orders by judges that misrepresent term expiration dates.

Hamilton County criminal court clerk Vince Dean sent grand jury reform activist Walter Francis Fitzpatrick of Athens, Tenn., the records. Mr. Dean’s mailing was responsive to a request for all appointment orders going back nine years.

“From 2010 to today,” says Mr. Fitzpatrick, 64, a 6-foot-1-inch former Navy lieutenant commander, “I estimate there have been as many as 52 grand juries — both regular and concurrent. There should’ve been one person appointed to each to be foreman under lawful practice. 

“While there have been an estimated 52 opportunities for the common man to come in and fill that job, only five people have been personally anointed” as foreman, he says in an interview.

A study of jury law and practice is leading Mr. Fitzpatrick to call for an overhaul of the jury system in Tennessee and to halt handpicking of jury foremen by criminal courts judges. In Hamilton County judges Tom Greenholtz, Don Poole and Barry Steelman signed off on Mr. Moore and Jimmy Anderson as foremen in January. 

State and federal law require random selection of all members of a jury, whether it be trial jury or grand jury, whether regular or concurrent. The regular grand jury weighs accusations by cops and district attorneys. The concurrent grand jury inspects county penal and judicial administration and shares in the workload of cases.

Mr. Fitzpatrick insists that U.S. supreme court decisions and state law guarantee a republican form of government, one that is representative. Random selection of jury members is implied in that promise. State and federal constitutions require respect of due process rights, and among these are jurors of one’s peers, which at common law have always been selected randomly. The complaint by Mr. Fitzpatrick — who has suffered a criminal prosecution and prison sentence intended to thwart his crusade — is that judge-picked foreman are unjust and illegal.

“For 100 years Tennessee judge manifest grotesque criminal and civil deprivation of equal protection under the law, and deprivation of due process under the law in acts of discriminatory supremacy,” Mr. Fitzgerald says in a June 19 letter to U.S. attorney general Bill Barr, demanding federal intervention.

Irregularities in record

On the regular grand jury, no foreman is assigned between May 1, 2017, to Jan. 7, 2019.

For the concurrent grand jury, a gap exists from Jan. 1, 2012, to May 1, 2015, according to photocopies sent by the court clerk. That’s about 1½ years for the regular grand jury and more than 3½ years the concurrent grand jury.

Appointing orders are important because they show when a regular succession of authority is vested in the foreman and when that authority is revoked.

Without details, one wonders about the rules of succession for this public duty or office. (Grand jury foremen are, in practice, appointed offices.)

Two foremen, Deanna Anderson (in one term, she served nearly a year, from Jan. 5, 2015, to Dec. 31) and Robert Smith (Jan. 15 to April 30, 2015) were contemporaneously “anointed” into the 2015 regular grand jury. In other words, two people are on record as having the job. 

Mrs. Anderson is a fixture in the grand jury scene. She has served repeatedly from 2011 to 2017 as foreman in concurrent and regular grand juries. Mr. Smith started out on the concurrent grand jury in 2010 and moved to the grand jury in May 2011. He resigned April 30, 2015, according to appointing orders for his replacement.

“It appears criminal court judges are moving people in and out of the grand jury foreman bullpen so rapidly and haphazardly,” Mr. Fitzpatrick says, “the court clerks can’t keep the paperwork straight.” 

Mr. Fitzpatrick’s grievance is only partly illuminated by the irregularities suggested in appointment orders. He says the orders themselves are part of the larger scheme to wrest from the people their grand jury authority and to make grand juries pliable before police and police-state interests, with the foreman named by favor of local judges and not selected at random.

That partiality and discrimination undermines confidence in the judicial system, violating a major tenet of the state’s rules for judicial conduct, and opening prosecutions to an appealable bias that in the future may work to overturn criminal convictions and prison sentences.

Gaps in open records request

Mr. Fitzpatrick smells rotten fish in criminal court clerk Mr. Dean’s treatment of his inquiry. In an irregularity, Mr. Fitzpatrick’s open records request is not acknowledged by the return of the green postcard from U.S. postal service certified service. Mr. Fitzpatrick has asked Darren Rzeplinski, the Athens postmaster, to request tracer action and to alert the U.S. postal inspector’s office.

Mr. Fitzpatrick sent his open records request via certified mail June 10. Mr. Dean’s mailed response is postmarked June 14. It is a manila envelope containing grand jury appointment order photocopies. However, Mr. Dean writes no cover letter in response. Lack of postal certification and lack of a written reply, Mr. Fitzpatrick says, allows it to be said that no request was made, and no answer made in response.

Implications of this review

The irregularities in Mr. Fitzpatrick’s review require a serious look at what has occurred in judicial polity in Tennessee in the past decade. A review of existing practice strongly suggests that grand juries are multiply co-opted out of their members’ rights and authority to prosecute crimes by state actors. 

The grand jury is a powerful instrument belonging to the people, one by which they can investigate lawlessness and violations of constitutional rights by agencies and state and local offices. Roger Roots, in a legal history, Conviction Factory, says DAs and states have neutered grand juries and made them servants of the inquisitorial and accusatory corporate and commercial state.

Since February 2018 I have worked for police traffic arrest reform, required under the clear intent and scope of Tenn. Code Ann. Title 55, the motor and other vehicles law regulating shipping. Courts, police and DAs ignore this law and its clear limits and bring humiliation and injury among the entire body of the citizenry in the state. To think I have to get through a judge-appointed foreman to lodge a complaint of criminal activity by sheriffs and police departments makes me believe such a route to reform is impossible. In other words, we have no means of redress of grievance against false arrest and state violations of the shipping law through our chief protector, the grand jury.

Says Mr. Fitzpatrick: “The government has stripped grand juries of their ability to decide on their own to self-regulate, to act as their own independent entity. They’ve been taken over by prosecutors who are directing each and every act.

“The foreman is assisting the judge and the prosecutor, feeding the system of the police-growth industry. The foreman’s alliance with judges and prosecutors facilitates the prison-for-profit business model. I fear that the ruin of thousands of families in Tennessee can be traced back to these protocols the U.S. supreme court has outlawed in two major rulings.”

Mr. Fitzpatrick says the quirks in Hamilton County’s grand jury records are typical of problems he has unearthed in McMinn, Monroe, Davidson, Shelby and others of the state’s 95 counties. 

Trace the Fitzpatrick saga at The Post & Email