TN – State v Fitzpatrick – Closing Arguments – van Irion – Constitutionally protected activities

In his closing arguments, van Irion argued that since Walt petitioning the Grand Jury or the court or the oversight committee is a constitutionally protected activity of petitioning the government, that therefor the jury should find Walt not-guilty.

In fact he even suggested that such a constitutionally protected activity cannot be the foundation for criminal charges, although later he accepts that lying under oath is considered to be perjury and in fact can be criminal. Therefore, if the jury believes that the evidence and facts support Walt having lied, and lied knowingly, that they jury may find a guilty verdict. Of course, the jury also has to find that the lies were material, and since the judge rejected the motion based on a failure on Walt’s part to indicate a relationship between him and Jeff Cunningham, anything in the motion is not material.

However, material means that it could have affected the course or outcome.

A conviction for aggravated perjury requires that the false statement be material.See Tenn. Code Ann. § 39-16-703(a)(3). The statutory language concerning perjury defines “material” as meaning that “the statement, irrespective of its admissibility under the rules of evidence, could have affected the course or outcome of the official proceeding.”

Source:  State v. Cutshaw, 967 SW 2d 332 – Tenn: Court of Criminal Appeals 1997

In addition, he argues that there remains sufficient doubt that Mr Fitzpatrick may not have known that some of his statements may have been lies. This is somewhat of a dangerous argument since it admits that the Jury has the right to determine intent from the facts presented and Appeals Courts are reluctant to second guess the Jury’s thinking in these findings.

See for example:

When an accused challenges the sufficiency of the convicting evidence, the standard is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Questions concerning the credibility of the witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

A jury verdict approved by the trial judge accredits the State’s witnesses and resolves all conflicts in favor of the State. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate view of the evidence and all inferences therefrom. Cabbage, 571 S.W.2d at 835. Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden in this court of illustrating why the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); Grace, 493 S.W.2d at 476.

Source:  State v. Cutshaw, 967 SW 2d 332 – Tenn: Court of Criminal Appeals 1997

PS: I believe that if Walt had challenged the sufficiency of the presentment with respect to clearly identifying what statement or statements were considered to be perjurous, he may have had an opportunity to succeed on appeal, however I have not found any evidence so far, that such an argument was made.

It has been stated in innumerable cases:

“Neither this Court, nor the Court of Criminal Appeals, is free to re-evaluate the evidence as it pleases. A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.”State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

In Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768 (1966), the Court said:

“This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in this Court.”

Source:  State v. Cabbage, 571 SW 2d 832 – Tenn: Supreme Court 1978

A lawful accusation is an essential jurisdictional element, and thus, a prosecution cannot proceed without an indictment or presentment that sufficiently informs the accused of the essential elements of the offense. State v. Perkinson, 867 S.W.2d 1, 5 (Tenn. Crim. App. 1992); State v. Morgan, 598 S.W.2d 796, 797 (Tenn. Crim. App. 1979). A judgment based on an indictment or presentment that does not allege all the essential elements of the offense is a nullity. Warden, 381 S.W.2d at 245;McCracken v. State, 489 S.W.2d 48, 53 (Tenn. Crim. App. 1972).

Applying these precepts to the case sub judice, we conclude that the presentment charging the Defendant with aggravated perjury was defective in that it did not sufficiently state the facts constituting the alleged offense. As we set forth above, the presentment alleged only that while under oath as a witness in the trial of Robert Miller, the Defendant knowingly, “with intent to deceive, made material false statements in violation of T.C.A. 39-16-703.” This language essentially tracks the statutory elements of the offense of aggravated perjury. See Tenn. Code Ann. § 39-16-703, -702(a)(1). The presentment, however, must not only allege the essence of the criminal offense, but also state which of the Defendant’s actions bring him within the statute so as to give him sufficient notice of the facts sought to be proved against him and of what offense he is called upon to answer. See Church v. State, 206 Tenn. 336, 333 S.W.2d 799, 809 (1960) (stating that the description of the offense charged must be sufficient in distinctness, certainty and precision to enable the accused to know what offense he or she is charged with and to understand the special nature of the charge he or she is called upon to answer); see generally David L. Raybin, Tennessee Criminal Practice and Procedure, § 16.19; 14 Tennessee Jurisprudence,Indictments, Informations and Presentments, § 19. In other words, the presentment must state sufficient facts and circumstances as will constitute the offense and not merely a legal result or conclusion. See Warden, 381 S.W.2d at 245; Raybin, Indictments, Informations and Presentments, supra. We believe 339*339 that the presentment in the case at bar did not allege sufficient facts to identify the offense for which the Defendant was being prosecuted.

Source:  State v. Cutshaw, 967 SW 2d 332 – Tenn: Court of Criminal Appeals 1997

 

 

Educating the Confused – Fitzpatrick

Manning reads a letter by Neil Turner, asking people to spend 3 minutes sending the following message:

“My name is ___________.  As a concerned Citizen, I feel it is my duty to report to you that a jury in Tennessee’s Tenth Judicial District has recently criminalized a citizen’s attempt to take a petition for the redress of grievances to a grand jury.

NBC: No such thing has happened. Walt was accused and convicted of aggravated perjury in his attempts to have his complaints heard by a Grand Jury.

On June 24, 2014, honorably retired US Navy Lt. Commander Walter Fitzpatrick was found Guilty of crimes that were never committed: ‘extortion’ – where nothing was extorted, and ‘aggravated perjury’ – where there was no proof of any perjury.

NBC: Again, the Jury disagreed. In fact, I believe myself that when Walt accused the foreperson of the Grand Jury of having blocked him from the Grand Jury, is by itself sufficient for the jury to have found him guilty of aggravated perjury. As to extortion, again, the jury was presented with the evidence as well as the requirements for conviction and found that the evidence was sufficient. The remaining charge of harassment was rejected by the Jury resulting in a not-guilty on that count. Walt himself recorded the trial which provides us with a complete overview of what was presented, including the summary statements by the prosecutor towards the end of the trial, outlining the elements of the three charges and the evidence presented.

All other State agencies and the Knoxville FBI have refused to take action against these and other well-documented cases of civil rights violations against Tennessee citizens. It is the duty of your committee to investigate and take appropriate action concerning these violations of Constitutionally guaranteed rights of American Citizens.”

NBC: These state and federal agencies have refused to take action because there is just no evidence supporting these claims.

STATE OF TENNESSEE v. WALTER FRANCIS FITZPATRICK, III

Case Record

STATE OF TENNESSEE v. WALTER FRANCIS FITZPATRICK, III Monroe County Circuit Court Kurtz, Walter C 12108CRM

Walt had appealed his conviction to the Appeal’s Court, arguing that he should have been allowed to use the “necessity defense”. On April 11, 2014, the Appeals Court affirmed the lower court’s judgement. Walt filed a petition for rehearing, which was denied on April 29th, 2014.

The case was appealed to the TN Supreme Court on June 26th, 2014, were it is pending.

An “innocent” man is on his way to prison

The Post & Email ‘reports‘ that Walt Fitzpatrick will spend another period of time in prison. While the prisons are full with ‘innocent’ people, the P&E asks a good question: What on earth did Walt do, to deserve another prison sentence? The full article by Laurie Roth can be read here.

Let’s see if I can help add some light onto these matters as there appears to be some confusions:

Walt was indicted by the McMinn County Grand Jury of four criminal counts on 05/13/2014 and arrested in the Courthouse while he was waiting to hear about his sixth(?) petition to have his complaints to be presented in front of the full Grand Jury.

The charges were:

Aggravated perjury, harassment, stalking and extortion

The stalking charge was dropped in the pre-trial hearing by the Judge and the Jury found Walt guilty of aggravated perjury and extortion and not guilty of harassment.

The aggravated perjury charge involved Walt’s attempts to file a protection order against the foreperson of the Grand Jury, Jeff Cunningham. Walt had tried, unsuccessfully, to have his complaints heard by the full grand jury, for at least six times and believed that Jeff Cunningham was block Walt from being heard by the Grand Jury, even though the evidence suggests that Walt’s petition was heard and rejected by the full Grand Jury, not just the statutory group of three.

Jeff had informed Walt that he believed that some of the statements made by Walt may have exposed him to criminal charges, however Walt, undeterred sent letters to the Supreme Court and the TN Bar to have Jeff Cunningham’s law license revoked. In addition, Walt also filed for a protection order against Jeff, which was rejected by the Court after observing that Jeff was not a relative of Walt.

Jeff, as the foreperson of the Grand Jury, appears to have reported his interactions with Mr Fitzpatrick to the presiding Judge as well as to the prosecutor’s office. The prosecutor apparently decided to bring the charges in front of a Grand Jury to have Walt indicted. The Grand Jury returned the indictment and Walt was arrested. During his trial, evidence was presented to the Jury who returned a guilty verdict on two counts and a not-guilty verdict on one count.

Walt is now awaiting sentencing and his case may be appealed. Walt continues to insist that he has done nothing wrong and that the evidence does not support his convictions. However, 12 sworn jurors apparently disagreed with Walt’s interpretation.

Roth apparently is unfamiliar with the full history of Walt’s efforts which appear to have been fueled by flawed interpretations and understanding of the Tennessee Statutes. In Tennessee, the foreperson of the Grand Jury has been, since at least 1919, appointed by the presiding Judge from the population at large. The foreperson is appointed for a two year term and may be re-appointed for consecutive terms. Various courts have confirmed these facts.

During Walt’s attempts to have his claims of “treason” against President Obama heard by a Tennessee Grand Jury, Walt believed that the foreperson of said Grand Jury was ‘illegally’ appointed. When Walt interrupted a Grand Jury proceeding to try to “arrest” said foreperson, he was subsequently charged and convicted. Although claims of “systemic corruption” in the Tennessee Court system have been leveled, little supporting evidence has been presented beyond the flawed understanding of Rule 6 of the TN Rules of Criminal Procedure and a few other confusions, such as the impact of a 1984 statute on the nature of the TN Court System.

More recently, Walt was convicted after he walked out of a court room with confidential papers, believing that they showed evidence of a crime. Walt had been observing how the Judge selected and swore in the two Grand Juries and the jury pool for the petite jury. Walt believed that he had witnessed illegal acts by the Judge and believed that the papers supported his claims. See also this TPM article for more background.

More recently, Walt has been filing petitions to be heard by the McMinn County Grand Jury, however his petitions were repeatedly rejected. Citing a recent statute which limits the summoning of Jurors, Walt believed that the foreperson of the Grand Jury was serving illegally, even though, as had been pointed out to Walt, the statute is limited to those jurors who are summoned, and does not apply to the foreperson who is appointed by the Judge.

While the Tennessee process is different from other states and the Federal Grand Jury process, history shows that the Courts have been appointing forepersons of the Grand Jury, even for consecutive periods of time.

I have been reporting on this elsewhere, so let me cut and paste some fragments:

Rule 6 of the TN Rules of Criminal Procedure states:

The foreperson and the twelve qualified jurors whose names are first drawn constitute the grand jury for the term and shall attend the court until dismissed by the judge or until the next term.

Walt actually quoted from Rule 6 in a recorded conversation with a court official and had interpreted the above phrase to mean that the foreperson and the twelve qualified jurors are drawn from the randomly selected pool. The court official laughed and pointed out Walt’s misunderstanding, with limited success apparently.

g) Appointment, Qualifications, Term, Compensation, Vote, and Duties of Foreperson.

(1) Appointment of Foreperson. The judge of the court authorized by law to charge–and receive the report of–the grand jury shall appoint the grand jury foreperson. When concurrent grand juries are impaneled, the court shall appoint a foreperson for each grand jury.

It’s so clearly explained by the Rules…

The Advocate and Democrat explains

In 1983 the Tennessee Court of Appeals ruled there is no language in Tennessee Criminal Court Rules of Procedure stating a grand jury foreperson is limited in how many terms they can serve.

So we have the US Supreme Court observing

HOBBY v. UNITED STATES, 468 U.S. 339 (1984)

Moreover, Rose must be read in light of the method used in Tennessee to select a grand jury and its foreman. Under that system, 12 members of the grand jury were selected at random by the jury commissioners from a list of qualified potential jurors. The foreman, however, was separately appointed by a judge from the general eligible population at large. The foreman then served as “`the thirteenth member of each grand jury organized during his term of office, having equal power and authority in all matters coming before the grand jury with the other members thereof.’” Rose [468 U.S. 339, 348] v. Mitchell, supra, at 548, n. 2 (quoting Tenn. Code Ann. 40-1506 (Supp. 1978)).

And in

ROSE v. MITCHELL, 443 U.S. 545 (1979)

Given the fact that any foreman was not limited in the number of 2-year terms he could serve, and given the inclination on the part of the judge to reappoint, it is likely that during the period in question only a few persons in actual number served as foremen of the grand jury.

It’s all there…

Advocate and Democrat

“As I understand this ruling,” Melson said, “the Tennessee rules concerning the service of a grand jury foreman contains no term limits.”

Exactly…

I have also documented how the TN legislature has attempted to change the rules on various occasions.

Another failed Sovcit attempt

Another ‘victim’ of the naive belief that the Courts have no jurisdiction over a “sovereign” person. 180 days for criminal contempt of court and additional charges for assault.

Hull asked Hochstetter to approach the bench, but the 32-year-old reportedly refused to identify himself and did not come forward.

When the judge – who knew Hochstetter – verbally confronted him, Hochstetter “stood up and began to yell that he was not Scott Hochstetter, that he had constitutional rights to a jury trial and that he could not be touched,” police reported.

Despite repeated orders to sit and be quiet or leave, Hochstetter reportedly continued to stand and cause a disturbance – even after Hull threatened him with criminal contempt of court.

Source

 Scott T Hochstetter IL

Almost all 50 states have a “Common Law Grand Jury” Knitting Club

It seems that after abandoning earlier requirements, the NLA is now getting close to the magical 50 states when something surely will happen.

Why 50 states means anything different to 49, or 48 is beyond me. They have tried to be taken seriously but the lack of any constitutional or legal foundation for their claims has resulted in zero progress, other than the threat of ‘indictments’. While the “knitting club” is free to voice its concerns, it will remain totally irrelevant.

Be prepared for all 50 states to join and for nothing to happen. You heard it here first.

Educating the Confused – Orly and timely filing of appeal

On July 29th Orly writes: Taitz v Colvin was appealed to the 4th Circuit

However the lower court ruled on May 13, 2014 and the time for appeal is 60 days (FRAP Rule 4(a)(1)(B)(ii)). Instead of filing the appeal, Orly decided to file a foolish motion with the lower court.

As an attorney, plaintiff would have known that she was entitled to appeal this Court’s ruling if she disagreed with it. To my knowledge, she did not do so. Instead, she has filed several post-ruling motions. See ECF 38, ECF 40.
Presently pending is plaintiff’s motion to reopen this case, and for the Court to recuse and to transfer the case to another judge on the ground of actual conflict of interest. See ECF 43. The motion is filed pursuant to 28 U.S.C. § 455 and F.R. Civ. P. 60 (b)(2) and 60 (b)(6).

There is no evidence on Pacer that the case was filed timely with the 4th Circuit. Also Rule 4(a)(4)(A) does not apply:

(4) Effect of a Motion on a Notice of Appeal.

(A) If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:

(vi) for relief under Rule 60 if the motion is filed no later than 28 days after the judgment is entered.

Sincethe motion with the lower court, which was denied, was filed on July 21, well outside the 28 day limit.

07/21/2014 43 MOTION to Reopen Case; Motion for recusal; Motion to transfer case; Second Motion for reconsideration by Orly Taitz (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(jf2, Deputy Clerk) (Entered: 07/22/2014)

Perhaps Orly wants to appeal the order denying motion 43? That would be rather entertaining. Never a boring moment with Orly fumbling her way through the rules of the court.