During the motion hearing in June, the defense raised the issue that since the jurors who indicted Fitzpatrick in March, were told in January about his involvements in a Monroe County incident, that there may have been prejudice.
It is unclear to me if counsel raised the issue in a timely and proper fashion however.
Under the criminal procedure in this state, objection to the venire or the indictment is deemed waived unless raised in apt time by motion or plea in abatement.
In State ex rel. Lawrence v. Henderson, Tenn.Cr.App., 433 S.W.2d 96, 101, this court said:
“If the defendant does not object by motion or plea in abatement, to the venire or to the jurors summoned under it, before he pleads to the indictment, an objection thereafter is too late.”
Source: State ex rel. Henderson v. Russell, 459 SW 2d 176 – Tenn: Court of Criminal Appeals 1970
On a personal note, I believe that the Judge should have appointed a different Grand Jury to deal with the issue since the appearance of bias should be avoided at all cost.
The Hixson Brief was submitted by Kyle Hixson as part of Walt’s Appeal of State v Fitzpatrick to the Court of Criminal Appeals at Knoxville.
Walt has claimed that:
On 20 September 2013 Tennessee’s Attorney General Robert Cooper admitted in a by way of a court filing submitted by Cooper’s Assistant Attorney General Kyle Hixson that Mr.Jeff Cunningham is not a juror
What Hixson actually wrote is quite different
Justice has been served
Sharon is speculating based on courtroom ‘observers’ making what sound to be unfounded claims about Cunningham’s testimony and is pretending that Walt was convicted for ‘attempting to submit a petition to the McMinn County Grand Jury’. Accuracy in reporting requires one to be more careful in one’s claims.
The Post Email Speculates
Tweet AFTER STAR WITNESS PERJURES HIMSELF by Sharon Rondeau (Jun. 24, 2014) — On Tuesday afternoon, a jury in the case of State of Tennessee v. Walter Francis Fitzpatrick, III, 14-CR-69, convicted the defendant of aggravated perjury and extortion for attempting to submit a petition to the McMinn County grand jury in March. He was [...]
After a late start yesterday, the Jury has recessed for deliberations. It sounds like Walter was not asked to testify by his defense counsel, a wise decision indeed. I wonder if they got to argue their ‘the Foreperson is illegal” claims, which by all account are based on a flawed understanding of TN statutes and law.
The Post & E-mail ‘reports’
A trial in the case of State of Tennessee v. Walter Francis Fitzpatrick, III, 14-CR-69, has ended and the jury was in deliberations as of 10:30 a.m. EDT
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
November 19, 2013 Session
STATE OF TENNESSEE v. WALTER FRANCIS FITZPATRICK, III
Appeal from the Criminal Court for Monroe County
No. 12108-CRM Walter C. Kurtz, Judge
No. E2013-00456-CCA-R3-CD – Filed April 11, 2014
Appellant, Walter Francis Fitzpatrick, III, was indicted by the Monroe County Grand Jury for one count of tampering with government records. After a jury trial, Appellant was convicted as charged and sentenced to eleven months and twenty-nine days with twenty days to serve in incarceration and the remainder to be served on probation. Appellant appeals his conviction. He argues that his indictment was faulty because the grand jury foreperson was not eligible to serve; that the trial court erred in ruling that Appellant could not testify regarding his proposed defense of necessity; and that the trial court erred in denying Appellant’s request for a jury instruction on the defense of necessity. After a thorough review of the record, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court are Affirmed.
The Court ruled on Apr 11, 2014
Summary: The denial of Fitzpatrick’s Motion to Dismiss based on his theory that the grand jury foreman was illegally appointed was affirmed as Fitzpatrick did not supply the appellate court with a transcript of the hearings held by the trial court on this matter. The situation facing Fitzpatrick was not such that his stealing the documents was a “necessity”.
As to Fitzpatrick’s necessity defense:
Appellant argued in the trial court that his taking of the documents was a necessity because he was told by an FBI agent to get tangible evidence and because he thought the documents would be destroyed. However, as set out above, the defense of necessity has been used in situations where there is a lesser of two evils situation created by some sort of natural force or condition. That situation was clearly not present in the facts at hand.
Examples given by the court of a true situation where a necessity defense could be raiser are
a ship violating an embargo law to avoid a storm and a pharmacist providing medication without a prescription to alleviate someone’s suffering during an emergency.
Fitzpatrick loses. On to the Tennessee Supreme Court.
Sharon Rondeau may have missed the April 11 ruling. Funny…
Sharon Rondeau from the Post and Email (P&E) and Walter Fitzpatrick have commented on the fact that jurors in Monroe County fill out “Juror Questionnaires” which include such details as, name, address, occupation, name of spouse, occupation of spouse etc.
Based on the information which Monroe County apparently collects on each potential juror, it seems that it could have been easily determined whether or not the “Angela Davis” serving as foreman for one day in 2010 and who signed out an indictment against Fitzpatrick was the same as she who served in 2009. The judge stated that there was no proof, but there could have been.
Source: P&E, Judge Amy Reedy Caught in the act of hand-picking jurors?, Sharon Rondeau, Dec 21, 2011
If so, the defendant’s attorney should have provided such proof. Failing that, the Judge was correct. Furthermore, Angela Davis can serve as a foreman in 2010 and serve in 2009, as the foreperson of the Grand Jury is not summoned but rather appointed by the Judge. But that was irrelevant to the issue.
Walt accused Martha Cook of “outlawry”:
Item: Martha Cook in her outlawry profiles the jury pools. Cook directs potential jurors to complete a poll survey calling for disclosure of personal information such as marital status, education level, profession, employment status, employer, spouses’ name and address, spouses’ employment status and employer, and number of children.
Item: Martha Cook’s collection of personal information from members of the jury pool beyond what is statutorily mandated is outlawed. Martha Cook’s construction and maintenance of a database containing off-limits personal information collected from jury pool members is outlawed.
So why would Martha Cook provide the prospective jurors with a juror questionnaire? Well, she is following the rules:
Walter Fitzpatrick attended a court meeting on December 7, 2011, where he claims he observed the Judge manually selecting the jurors. The Grand Juries impaneled were for the Jan-Dec 2012 time period. Walt believed that he was witnessing fraud by the court and removed some documents from the court room. However, I believe that Walt may have been wrong about the process he observed, which, as I will show, appears to match the processes outlined in the Tennessee Code and the Rules of the Court.
You have just been impaneled to serve on the Grand Jury for the Criminal Court of Monroe County. Your term of service will be for the months of January thru December 2012.
Source: Chief Court Clerk Martha Cook’s letter to Grand Jurors