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:
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 foreman 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 foreman 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]
“Moreover,” Ms. BLUMSTEIN continues, “while we are not able to issue the requested opinion, it appears that the Tennessee Court of Criminal Appeals has in the past ruled on the issue that is the subject of the opinion request. As that court itself has stated,
it has consistently held that a grand jury foreperson may serve longer than the requisite two-year term. See Teague v. State, 529 S.W.2d 734, 736 (Tenn. Crim. App. 1975) (holding that the long, uninterrupted tenure of a grand jury foreman did not deprive the defendant of due process or equal protection under the law); Nelson v. State, 499 S.W.2d 956, 956 (Tenn. Crim. App. 1972) (finding no authority indicating that a grand jury foreman appointed for two years was disqualified to serve a longer period either by reappointment or holding over); Joseph B. Thompson v. State, No. E2004–00920–CCA–R3–PC, 2005 WL 2546913, at *25 (Tenn. Crim. App. Oct. 12, 2005) (reiterating the rule announced in Nelson); see also David Louis Raybin, Tennessee Criminal Practice & Procedure § 9:8 (2014) (asserting that although a grand jury foreperson’s term of office is two years, the grand jury foreperson may be reappointed).
State v. Crenshaw, No. W201401367CCAR3CD, 2015 WL 2447717, at *14 (Tenn. Crim. App. May 22, 2015).
U.S. judge outlines reform steps
Ms. BLUMSTEIN encloses a copy of State v. Crenshaw because that is as close as a court of appeals has gotten to Sen. Watson’s question. But it is not close enough. The careful judges speak truly when they say “long, uninterrupted tenure of a grand jury foreman did not deprive the defendant of due process or equal protection,” as a new foreman or a longtime veteran foreman are no different, insofar as duration of tenure goes.
The Crenshaw ruling does not examine the essential first fact, the crucial first question: Whether the naming of a voting member of the grand jury by a judge injects personal interest, bias, discrimination and private reason into the selection process for that spot on the grand jury.
In 1972 a U.S. district court judge in Memphis outlines how the system in Tennessee can be overturned. Judge Swinford, in Hale v. Henderson 349 F.Supp. 567 (1972), agrees with a petitioner’s thesis about Tennessee’s grand juries. “[A]lthough the petitioner may well have brought to light constitutional shortcomings in the general method of selection of grand jury foremen for the State of Tennessee,” he begins, “the particular facts of his case do not entitle him to relief.”
Judge Swinford telegraphs future litigants and appellants how to attack the status quo.
Under the law of Tennessee, grand juries are composed of 12 jurors selected at random from the venire, and one foreman appointed by the Judge having criminal jurisdiction in that county. Tennessee Code Annotated sec. 40-1506 (hereinafter T.C.A.). 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 and the selection of the other jurors. T.C.A. sec. 40-1506. An indictment may not be returned by fewer than 12 votes, but the foreman is possessed of all of the powers of the other members of the jury, including the right to vote. T.C.A. sec. 40-1706 and 40-1506. The petitioner has not contended that the method of selection of the venires from which the grand juries are chosen has been such as to systematically exclude members of racial groups; he contends that the selection of the foremen, who are, as mentioned, voting members of the grand juries, is not safeguarded by a racially neutral and random method, but is wholly within the discretion of the criminal Judge. He further contends that since 1940 there have been no black grand jury foremen, thus demonstrating a prima facia case of racial discrimination under the law of Coleman v. Alabama, 389 U.S. 22, 88 S.Ct. 2, 19 L.Ed.2d 22 (1967). The petitioner argues that inasmuch as a voting part of the grand juries have been improperly chosen, the whole of the grand juries have been tainted; which is to say that a grand jury that is 1/13 unconstitutional cannot render constitutionally valid indictments. [Emphases added]
The petitioner’s entitlement to relief must depend on the particular facts of his case, and although his argument with respect to the method of selection for grand jury foremen is well taken, it is the opinion of the court that he cannot successfully assert that his right to equal protection of the law has been abridged by the purposeful exclusion of blacks from any part of the grand jury which returned the indictment upon which his conviction was based. [Emphasis added]
Notwithstanding the petitioner’s argument that grand jury foremen have been arbitrarily appointed and that over a period of history all grand jury foremen so appointed have been white, it appears that the particular grand jury indicting the petitioner was composed wholly of men selected from the venire. The grand jury indicting the petitioner was not chaired by the regular foreman, but by the foreman pro tempore, who was chosen from a body of grand jurors which were selected from the venire. [Emphasis added]
In other words, this defendant’s foreman just happened to have been selected from the randomly selected venire. Judge Swinford describes a problem that, had facts been different, might have led him to start the process of overturning Tennessee’s system.
The system remains in place, and local judges concur. On Jan. 23 this reporter sent his analysis to Hamilton County criminal court judge Tom Greenholtz, with copies to fellow jurists Don Poole and Barry Steelman, each elected to office.
He asked about their personal picks on the grand jury — Mr. Moore and fellow foreman, Jimmy Anderson, and asked if their being judicial selectmen explains why the grand jury is indifferent to crimes by city and county employees and unresponsive to this reporter’s inquiries and demands to be heard.
I have knowledge of criminal acts by a law enforcement officer in Hamilton County and have put the county under two administrative notices regarding blatantly unconstitutional and illegal customs and usages — one touching on false arrests violative of Tenn. Code Ann. § Title 40-7-103, the other on widespread abuse of the trucking and shipping law at Title 55, motor and other vehicles.
Should members of the public have confidence in the system? In a phone call, Judge Greenholtz assured me of a written answer so that I might assure the public that it is worthy of their respect and confidence.
I await his response, still.