Walt’s hearing on Monday

Walter Fitzpatrick, who has once again been arrested, will have a hearing this coming monday for a preliminary hearing, the Post and Email ‘reports’. Walt was arrested last Tuesday when the Grand Jury returned an indictment charging him with extortion,” “stalking,” “harassment,” and “aggravated perjury”.

Walt has been on a quixotic quest to charge forepersons of the Grand Jury because Walt apparently fails to understand that under Tennessee law, the court appoints the foreperson and may reappoint said person for consecutive 2 year periods of time. While Walt insists that the foreperson has to be selected from amongst those who were randomly selected and summoned to appear, the case law and legal history do not support such an interpretation.

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Sharon – Obots discrediting Walt?

Sharon writes:

The Obots have watched and regularly written about Fitzpatrick’s blog posts in an attempt to discredit him as they have with Zullo’s investigation of the forgery.

Source: The Post Email

True, as to Zullo: I have shown how the facts do not line up with the fiction. So I would not call it a mere attempt, but rather a successful rebuttal. As to Walt, I leave the discrediting up to himself, I focus on exploring the validity of his claims, many of which I have found to be wanting.

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Educating the Confused – Again – TN Grand Jury Foreperson

Sharon: Fitzpatrick had previously exposed that grand juries in Tennessee’s Tenth Judicial District operate illegally because the foreman, and in some cases, jurors, serve for multiple terms at the pleasure of the presiding judge.

Source: Post and Email

Rule 6 of the TN Rules of Ciminal procedure, which have been approved by the legislature and are legally binding explains:

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 seems to have parsed this sentence incorrectly, leading him to conclude that the foreperson has to be randomly drawn as well. I have documented the legal, and legislative history of the Grand Jury in quite some detail, citing for instance TN State v Gouge.

And for those who still are confused if Rule 6 is part of TN law…

“Rules of Civil Procedure along with the Rules of Criminal Procedure and the Rules of Appellate Procedure, are “law” of this state, in full force and effect, until such time as they are superseded by legislative enactment or inconsistent rules promulgated by this court and adopted by the general assembly.”

Source: Tennessee Dep’t of Human Services v. Vaughn, 595 S.W.2d 62, 1980 Tenn. LEXIS 417 (Tenn. 1980).

So how is the foreperson selected?

(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.

(2) Qualifications of Foreperson. The foreperson shall possess all the qualifications of a juror.

Qualifications of a juror refers to the statutory requirements outlined in

  • TCA 22-1-101: It is the policy of this state that all qualified citizens have an obligation to serve on petit juries or grand juries when summoned by the courts of this state, unless excused. If you are 18 years of age or older, a citizen of the U.S., and have been a resident of Shelby County for the past 12 months you are qualified to act as a grand or petit juror, unless otherwise incompetent under TCA 22-1-102. If you are not qualified because of age or residency, a copy of driver license may be faxed to (901) 222-1651. If you are not a citizen, fax a copy of your visa, green card, or permanent resident card.
  • TCA 22-1-102: If you have been convicted of a felony or other infamous offenses, or if you have been convicted of perjury or subornation of perjury, you cannot act as a grand or petit juror. Documentation may be faxed to (901)222-1651.

So, the facts show that the judge indeed appoints the foreperson and together with the jurors chosen randomly forms the grand jury and thus is a “juror” of the grand jury. However, as has been pointed out,

The state respectfully submits that the defendant misapprehends the purpose of section 314. Section 314 does not speak to the qualifications of a citizen to serve as a juror. Section 314 simply forbids the government from requiring citizens to appear for jury service too often. Furthermore, the foreperson of the Grand Jury is not “impaneled” from the “summoned” members of the “jury pool”. See TN Code Annotated 22-2-306, -307 and -310. The foreperson is “appoint[ed] by the trial court. Tenn. R. Crim. P. 6(g)(1). As such, section 314, by its terms, does not apply to the appointment process of the grand jury foreperson.

Source: State of TN v Walter Fitzpatrick, Brief of the State of TN in Appeal. Aka known as the Hixson brief.

Walt has hinted that he believes that Section 314 overrides Rule 6, however, that is contradicted by the simple fact that the legislature has recently proposed, to have the foreperson appointed from those randomly selected as jurors.

As to Juror, the definition is clear

Juror (n) –   T.C.A. 39-16-101(1) ”Juror” means any person who is a member of any jury, including a grand jury, impaneled by any court of this state or by any public servant authorized by law to impanel a jury. “Juror” also includes any person who has been summoned or whose name has been drawn to attend as a prospective juror;

So Walt’s attempt to perform a ‘citizen’s arrest’ of the Foreperson of the Grand Jury did in fact involve an action against a juror but not one who was summoned and impaneled.

Furthermore, the legislative history shows how the legislature explicitly allowed the Court to appoint the foreperson of the Grand Jury, and reduced the number of jurors whose names are randomly drawn from 13 to 12.

CHAPTER NO. 37.
Senate Bill No. 293.

(By Mr. Louthan.)

AN ACT to authorize and empower and to require the criminal judges of this State, and the Circuit Judges of the State, having criminal jurisdiction, to appoint the foremen of grand juries in the counties of their respective jurisdictions: to provide for the manner of said appointments, and to fix the term of such appointments, and to provide for the compensation of such foremen of grand juries, and to define their duties, powers and qualifications, and to repeal all laws in conflict with this Act, and to amend Section 4015 of the Code of Tennessee adopted in 1858.

Section 1. Be it enacted by the General Assembly of the State of Tennessee, That the various Criminal Judges of the State of Tennessee, and the Circuit Judges of the State, having criminal jurisdiction in any county, are hereby authorized, empowered and required to nominate and appoint the foremen of the grand juries in the various counties of their respective jurisdictions; and said foremen of the grand juries so appointed shall hold their office and exercise their powers of such office for a term of two years from appointment, unless for good cause, in the discretion of the presiding Judge, he may be removed, relieved or excused from office at any time. Said foreman shall be a 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; and Section 4015 of the Code of Tennessee, providing for the formation of grand juries, is hereby amended by striking out the word “thirteen” in the fourth line of said section and substituting in lieu thereof the word ” twelve” so as to provide that the twelve jurors whose names are first drawn shall be a grand jury for the term, in addition to the foreman appointed as provided in this Act.

Recent legislative attempts include HB 0601 and SB 0227

Grand Juries – As introduced, prohibits a person from serving as a grand jury foreman for more than four years. – Amends TCA Title 16; Title 20; Title 22 and Title 40.

SECTION 1. Tennessee Code Annotated, Title 40, Chapter 12, Part 1, is amended by adding the following language as a new, appropriately designated section:
Notwithstanding any rule of the court to the contrary, no person shall serve as grand jury foreman for more than four (4) years.
Clearly trying to override Rule 6. So, even the legislature does not appear to accept the conclusion that their previous acts have overridden the rules of the Court.
See also HB 1830, 107th Assembly
Grand Juries – As introduced, enacts the “Grand Jury Act of 2011.” – Amends TCA Title 20; Title 22 and Title 40.
Notwithstanding any rule of court to the contrary, on the first day of each term of court at which a grand jury is required to be impaneled, the judge of the court that is authorized by law to charge the grand jury and to receive the report of that body shall direct the names of all the qualified jurors in attendance for the criminal courts of the county to be written on separate slips of paper and

placed in a box or other suitable receptacle and drawn out by the judge in open court. The fifteen (15) qualified jurors whose names a re first drawn shall be the grand jury for the term and shall attend the court until dismissed by the judge or until the next term.
(b) Notwithstanding any rule of court to the contrary, the judge of the court that is authorized by law to charge the grand jury and to receive the report of that body shall appoint the foreperson of the grand juries in the counties of their respective jurisdiction from the fifteen (15) randomly selected grand jurors.
If concurrent grand juries are impaneled, a foreperson shall be appointed for each grand jury. The foreperson shall hold office and exercise the powers and duties of foreperson for a term of two (2) years from appointment; provided that, in the discretion of the presiding judge, the foreperson may be removed, relieved, or excused from office for good cause at any time. The foreperson’s term is subject to all of the restrictions of state law regarding the service of jurors.
The foreperson is a member of the grand jury and may vote with other grand jurors and the foreperson’s vote shall count toward the twelve (12) necessary for the return of an indictment.
SECTION 3. This act shall take effect upon becoming a law, the public welfare requiring
it.
Explicitly changing the selection of the foreperson.
Oh and this one

“Conflicts between provisions of the Tennessee Rules of Civil Procedure and provisions of the Tennessee Code Annotated which cannot be harmoniously construed will be resolved in favor of the Tennessee Rules of Civil Procedure.”

Mid-South Pavers, Inc. v. Arnco Constr., Inc., 771 S.W.2d 420, 1989 Tenn. App. LEXIS 12 (Tenn. Ct. App. 1989).

It’s going to be an uphill battle to claim that TCA 314 overrides the Court’s Rules of Criminal Procedures.

Walt and listening comprehension

On Thursday, Assistant U.S. Attorney Luke A. McLaurin falsely stated to three judges at the Sixth Circuit Court of Appeals that Fitzpatrick and Huff had exchanged “text messages” prior to and on the morning of April 20, 2010 in order to “plan” a “takeover” of the Monroe County courthouse.

If you listen to the exchange (around 32:00) , you will hear that the statement is that “he had gone up to Madisonville, he consulted with Fitzpatrick, he sent text messages back saying no we did not conduct a citizen’s arrest today”

To what was the Attorney referring?

Following that meeting, Defendant informed a friend via text message that no citizens’ arrests had been conducted that day. (R. 210, Trial Tr. at PageID# 1690.) When the friend asked if Defendant had “pull[ed] out the mussell [sic]” (id.), which was a reference to “some type of force” (R. 211, Trial Tr. at 1799), Defendant replied that he had not because Fitzpatrick had been released the night before (R. 210, Trial Tr. at PageID# 1690). Defendant explained, however, that it had not been a “wasted trip” because he had “met with the arrested to coordinate with all groups involved.” (Id. at PageID# 1690-91.) Defendant also stated, “we’re moving on to Phase 2.” (Id. at PageID# 1690.)

So Darren informed his friend that he had indeed met with the arrested to coordinate with all the groups involved and that they are moving on to Phase 2. Again, the testimony and evidence, does not appear to conflict with what the US Attorney said. Note that the US Attorney does not state that Darren had exchanged text messages with Fitzpatrick.

Walt: At Huff’s trial, there was no mention of “text messages,” and Fitzpatrick was never charged with participating in a conspiracy to commit violence.

Walt may not be fully familiar with the evidence that was brought into the trial of Darren Huff, but he is right that Fitzpatrick was never charged with participating in a conspiracy to commit violence. So why is Walt so upset? And why does he claim to be fearing for his life?

… all of which proved to be false reports called in to the mayor’s office by members of The Fogbow, a group of Obama sycophants who may now be under observation by law enforcers themselves.

Again, Walt is wrong. The bank manager and the teller were both concerned by Darren’s statements about “taking over the city” that they separately contacted the police. While others may have been concerned by the rhetoric of those attending Madisonville, the police response appears to have been quite appropriate give the statements Darren had made to Longmire and Dupree.

That morning, however, Defendant made comments that were “out of the ordinary.” (Id. at PageID# 1452.) Defendant told Longmire and Dupree that, on April 20, 2010, he was going to Madisonville with members of the Georgia Militia to “take over” the city. (Id. at PageID# 1447-49, 1454; R. 210, Trial Tr. at 1471-74, 1485-86.) He explained that they were going there because Fitzpatrick had been “wrongly arrested.” (R. 209, Trial Tr. at PageID# 1448.) Defendant stated he was going to bring multiple guns, including an AK-47 rifle, and that he would be on the “front line.” (Id. at PageID# 1449; accord R. 210, Trial Tr. at PageID# 1471-73.) He also said that he would have an anti-aircraft gun mounted on the back of his truck. (R. 209, Trial Tr. at PageID# 1450, 1456; R. 210, Trial Tr. at PageID# 1473, 1480-82.) Defendant assured Longmire and Dupree that they would hear about the incident on the news. (R. 209, Trial Tr. at PageID# 1449; R. 210, Trial Tr. at PageID# 1472.)

As Defendant was speaking, Longmire noticed that Defendant had driven a different truck to the bank than the one he normally drove. (R. 209, Trial Tr. at PageID# 1451-52.) The new truck was painted camouflage and had a “Georgia Militia” emblem on the door. (Id. at PageID# 1452, 1456.) When Defendant left the bank, he told Dupree that it had been nice knowing her and suggested that he might not ever see her again. (R. 210, Trial Tr. at PageID# 1475.) Longmire and Dupree both believed that Defendant was serious and were so concerned by his statements that they each separately contacted law enforcement authorities. (R. 209, Trial Tr. at PageID# 1452-53; R. 210, Trial Tr. at PageID# 1472, 1475-78.)

Given Darren’s statements in the text messages and to his bank manager and teller, it does not appear that the police response had been disproportional. The “Madisonville hoax”, as Walt calls it, may have been boastful statements by Darren, but they were serious enough for the police to take notice. The jury similarly found Darren Huff guilty of a violation of US Code 18 USC 231(a)(2)

(2) Whoever transports or manufactures for transportation in commerce any firearm, or explosive or incendiary device, knowing or having reason to know or intending that the same will be used unlawfully in furtherance of a civil disorder; or
 
 
Shall be fined under this title or imprisoned not more than five years, or both.
Walt may believe that the Madisonville police action was based on a hoax but the evidence supports the police’s decision to be prepared, in light of the statements made by participants. One can only imagine what could have happened were it not for the presence of the police.

Walt oh Walt – “My life is being threatened”

Poor Walt, on Friday January 31, 2014, he called the McMinn County Sheriff’s office, to talk to their internal affairs officer to report that he had been ‘threatened’ by a Federal attorney and that his ‘life had been threatened’.

His first contact finally interrupts Walt’s monologue to inform him that she is a jailer and that he should talk to the front office. Why is it so hard for Walt to introduce himself without going off on a long rant? She connects him to the front office and Walt starts again with his demands and his monologue…

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Walt and Sharon finally getting it?

At the P&E, Sharon Rondeau writes:

In an indictment issued against both Huff and Fitzpatrick stemming from the citizen’s arrest, the foreman was identified as a “juror.” However, in a court brief filed in defense of the government’s conviction of Fitzpatrick in a case arising in December 2011, the state of Tennessee now claims that the foreman of any grand jury in Tennessee is not a juror, but rather, a court employee appointed by the judge by an unknown vetting process.

The foreman is part of the jury but is not a juror in the sense that unlike the jurors, he is selected by the judge and appointed to manage the grand jury business. He is ‘the thirteenth juror’ but as the rules, history and legal precedent show, he is not summoned after having been selected randomly from a pool of eligible candidates.

Rule 6 TN Rules of Criminal Procedures (In Tennessee the legislature approves the rules of the court)

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.

Anyone who is willing to do a little research would have come to realize these simple facts. For example, there are several bills in the legislature which address the Grand Jury, one of them is trying to change the selection of the foreperson from the present day situation to one where he is also randomly selected. It is unlikely that such a proposal will be successful as the role of the thirteenth juror is administrative.

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Educating the Confused – Walt and the Foreperson of the TN Grand Jury (again and again)

Walt has tried again, and failed, to get his foolish notions heard by the 2014 McMinn County Grand Jury.

He still, against all evidence, judicial precedent and logic, claims that a foreperson like Cunningham or Pettway, are committing crimes when they portray themselves or act like forepersons of the Grand Jury.

Needless to say, Walter is wrong. According to the Rules, and legal precedents, the Court gets to appoint the foreperson of the Grand Jury, whose only requirement is that he/she is eligible, which means being a resident of appropriate age, with no major convictions.

(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.

(2) Qualifications of Foreperson. The foreperson shall possess all the qualifications of a juror.

Which of course does not mean that the foreperson has to be selected through the process used to impanel a jury.

What are the qualifications of a juror?

  • TCA 22-1-101: It is the policy of this state that all qualified citizens have an obligation to serve on petit juries or grand juries when summoned by the courts of this state, unless excused. If you are 18 years of age or older, a citizen of the U.S., and have been a resident of Shelby County for the past 12 months you are qualified to act as a grand or petit juror, unless otherwise incompetent under TCA 22-1-102. If you are not qualified because of age or residency, a copy of driver license may be faxed to (901) 222-1651. If you are not a citizen, fax a copy of your visa, green card, or permanent resident card.
  • TCA 22-1-102: If you have been convicted of a felony or other infamous offenses, or if you have been convicted of perjury or subornation of perjury, you cannot act as a grand or petit juror. Documentation may be faxed to (901)222-1651.

Even the TN Legislature recognizes that the Judge gets to elect the foreperson, and has sought to change the procedures, but with no success so far.

Sharon and Walt appear to also still be confused by the procedures Walt observed in Court when the Judge appointed the jurors in accordance with TN law and statute. What Walt observed was not the juror selection process, which is random, but rather the appointment process by the Judge of those who had been selected and summoned.

It continues to amaze me why Walt continues down this foolish path? Even the McMinn Grand Jury has recently, again, rejected to hear Walt’s arguments since the Grand Jury had already decided on Walt’s claims several times before, and rejected his arguments. These findings are final and accusing people of crimes is not going to give Walt another opportunity to argue his failed case. Walt’s flawed understandings continue to cause him to pursue foolish pathways, and have led to his arrest, indictment and conviction before.

Once Walt understands the history and logic behinds the process in Tennessee, and why it is at odds with his ‘understanding’ of how a Grand Jury should work, he may find more fruitful avenues to pursue. For instance, the legislature of TN may be a better avenue for changing the laws and statutes.

For example:

Thomas Johnson Michie, The Encyclopedic Digest of Tennessee Reports: Being a Complete Encyclopedia and Digest of All the Tennessee Case Law Up to and Including Vol. 115 Tennessee Reports, Cooper’s Chancery Reports, Shannon’s Tennessee Cases, and the Tennessee Chancery Appeals Reports, Volume 6, 1908

  • Judge appoints foreperson
  • No need to record who was appointed foreperson

Book

Regardless, I wish him well.

Walt on Darren Huff – Part 1

Walt has written extensively on Darren Huff

LEOs were put on notice regarding the necessity, the authority and the intent to carry out a series of Citizens’ arrests on 8 March 2010. We asked for their assistance.

Instead, all we heard was the cricket laugh-track.

For good reason: There was no reason to support a legal foundation for arrest, let alone citizens’ arrests. Walt may have believed that some felony was being committed but the courts have been clear. Furthermore, accepting that citizens’ arrest can be legal under certain circumstances, none of these circumstances appear to apply in this case. Instead, Walt interrupted an official Grand Jury hearing, and tried to ‘arrest’ the foreman of the Jury, Mr Pettway. That was a foolish act and led to his subsequent arrest and conviction by a jury of his peers.

When questioned, Darren Huff reaffirmed his intent to carry out the lawful exercise of Citizens’ arrest.

So the FBI and prosecution was correct that Darren Huff had the intent to carry out citizens’ arrests, which Walt/Sharon, consider to be a ‘lawful exercise’?… This was exactly the reason why Darren was found guilty: He had transported firearms across state lines with the intent for them to be used in a civil disturbance. It’s a very simple question which was answered by the Jury with a guilty verdict.

Darren told FBI Special Agent Chuck Reed that if there were any problems, to give Darren a call.

Reed never called.

Darren drove to Madisonville.

And entered into history… Of course, the FBI has no reason to stop Darren from violating US law and it is somewhat silly that this has been raised as an excuse… Well, the FBI did not stop me so it must have been legal. Darren would have done best if he had gotten some legal advice before setting out on his quest.

Walt himself outlines the circumstances that led to his own arrest

Mr. Pettway and others were subsequently placed under Citizen’s arrest during the scheduled assembly of the Monroe County grand jury on the first Thursday in April 2010 in the brick and mortar County Courthouse.

Admitting that he indeed interrupted an assembly of the Monroe County grand jury and tried to place Mr Pettway under citizen’s arrest, a rather foolish step. Especially since Pettway was a lawful foreperson of the Grand Jury, who indeed is appointed by the Judge and can be appointed for multiple consecutive periods. The foreperson is not summoned to serve on the Grand Jury but rather is hand selected by the Judge.

A judge not present in the Courthouse counter attacked and ordered my arrest for misdemeanor charges of riot, disorderly conduct and disrupting a meeting.

Which seems reasonable given stated Walt’s intentions and the case was taken to a Grand Jury and subsequently to a petite jury, who found Walt guilty.

A Madisonville jury on Wednesday found Walter Fitzpatrick III guilty of disrupting a meeting and resisting arrest. He was found not guilty of retaliation and civil rights intimidation.

Source: WBIR

Darren Huff had operated a video camera and captured footage of the Citizen’s arrest inside the courthouse.  I had never met Darren prior to April 1 and had no contact with him afterward.

Which led to Darren’s pleading as to his role in the April 1 disturbance.

Walt back at it again… Emergency writ of Mandamus US v Huff

Walt Fitzpatrick, whose flawed understandings of TN statute, rules and laws about the foreperson of the grand jury have led to foolish actions resulting in jail time, is back at it again. He has filed something he calls an “emergency writ of mandamus” in Darren Huff’s appeal accusing anyone and anything of being criminally complicit…

This time he “commands” that the court releases Darren Huff, and “commands” various other things he believes the court should do. Why the Court should pay attention to Walt’s musings is beyond me though.

I am commanding you to recognize this fraud and release Navy Veteran Darren Wesley Huff as an innocent man.I demand and command that Mr.Huff’s innocence be publicly and loudly declared and that Mr. Huff’s name be cleared causing to expunge all government records naming Mr Huff a criminal in matters related to his case that have come into existence since April 2010.

As usual, he bases his ‘commands’ on a flawed understanding of issues of law. However, just like his foolish attempts to effect a “citizen’s arrest” resulted in jail time for him and Darren, this time, again, he seems to be dragging another poor soul down into the morasses of his ‘legal arguments’, potentially resulting in violence or intent to commit such violence.

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THe P&E interviews Hughes

The P&E ‘interviewed’ Hughes who is a public defender in TN and who has represent Raudenbush.

Hughes states about Walt (Fitzpatrick)

I know he feels strongly that the system that’s in effect in east Tennessee and in Monroe County is illegal, a violation of the law.  I know he feels strongly about that.  Obviously, there’s no case law at the present time to support that.  I don’t know how often that issue has been litigated.

Source: the Jaghunter quoting P&E

As I have reported, the history of the foreman of the Grand Jury in TN and the case law do not support Walt’s position nor the P&E’s position. Wishing it to be so, does not yet make it so. While somewhat different from other States, the foreperson of the Grand Jury in TN is not selected randomly but rather appointed by the Judge from all those eligible to serve on a grand jury since the foreperson needs to meet the minimum requirements to serve on a Grand Jury. However, the Judge gets to select whom to appoint and can re-appoint said person for multiple consecutive two year periods of time.

It has been shown how the TN legislator has tried to change this but so far with no success. Walt may believe that the practice violates the law, but he has failed to show, especially in light of precedential rulings, that this is in fact the case.

Fitzpatrick Court Martial – Article 92(3) – Willfull/Negligent Dereliction in performance of Duty

Walt has argued that in response to the question:

Whether a specification for willful dereliction of duty was spelled out so that the accused knew the precise nature of his misconduct.

He considered it a “hard issue”:

(Note: Hard issue. No one has been able to name the act, or my failure to act, that constituted the alleged delict to this day no one can.)

Source: Cox Commission Report, Sunday,10 June 2000, p376

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Fitzpatrick Court Martial – Lt Zeller Memo Clemency Request

MEMORANDUM                                                                                                      31 MAY 1990

From: 006 (1)
To: 00
Via: 01 ___x(2)__ 02______

Subj: Convening Authority Action ICO LCDR Fitzpatrick

Sir, enclosed are the action and the Letter of Reprimand ordered awarded by the court members in the subject case. Also enclosed is a clemency request from the defense counsel in which he recommends that you disapprove the findings of the court, essentially overturning the court-martial, based on his· opinion that a court was not the proper forum. This contention is somewhat ironic in view of the fact that the accused was offered a fair hearing at mast and refused that opportunity. I strongly recommend that clemency not be granted, and that the sentence of the court-martial be carried out as adjudged. Your execution of the action and the letter will execute the sentence.

Very Respectfully,

T.W. Zeller

Note: The codes 00, 01 and 02 indicate RADM Bitoff, CAPT Edwards (Chief of Staff), CAPT Romanski (Deputy Chief of Staff)

(1) 006 is COMNAVSURFPAC
(2) Initialed Concur 6/1

Fitzpatrick Court Martial – Areas of concern

So far, in my review of the records that I have available for Walt’s court martial, I have found two areas of concern that I would like to focus on further:

  1. The first involves a memo (aka the Thanksgiving memo), dated Nov 23, 1989, sent by LT Zeller to RADM Zitoff, routed via CAPT Romanski,  expressing his concerns about the prosecutor. (Article 6(c) UCMJ, R.C.M 1106(b))
  2. The second involves a memo, dated May 31, 1990,  sent by LT Zeller to RADM Bitoff, routed via CAPT Edwards, forwarding the Court Martial action, the reprimand, as well as a clemency request and a recommendation on said request. (R.C.M. 1112, R.C.M 1106(b), Article 6(c) UCMJ)

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Fitzpatrick Court Martial – Oct 12 1989 was not a court martial

CDR. (sic, actually LCDR) FITZPATRICK: They did it against the law. They did it as we’re going to discuss in our next conversation. They rigged the entire court-martial process and they knew from its inception that they had no authority to court-martial me.

Source: Badfiction, quoting the Post and Email

Uh, well, you do realize that the Convening Authority has an enormous amount of leeway under the UCMJ to refer charges to a Court Martial? There was certainly jurisdiction and if there truly had been no authority, then it is surprising that you or your lawyer did not raise this issue. I am sure that quite a few issues you are complaining about now were, or should have been raised during trial and if they were not, you may have lost your opportunity to raise them in a later proceeding. RADM Bitoff was even advised to refer the matter to an Article 32 investigation which would provide Walt with all the tools to defend himself properly. And when the IO recommended Article 15, RADM Bitoff followed the recommendations and extended an Article 15 NJP to Walt. And while he state that he never saw the papers, he also is clear that he would have rejected it anyway, so no harm was done. That Walt failed to take proper notice of the impact of refusing an Article 15, where he would likely have received the same ‘punishment’ as CAPT Nordeen, and would have been able to continue his career in the Navy. Instead he chose the wrong door. We see the same in his attempt to perform a ‘citizen arrest’ of a lawful foreperson of the Grand Jury and other examples where he continues to escalate and then blames others for his predicaments.

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Fitzpatrick – Was RADM Bitoff an accuser?

Walt is and has been quite adamant that RADM Bitoff was an accuser and thus could not have convened the Court Martial. However, that may be based on a flawed understand of the rules and definitions.

In a Letter to Patty Murray, Ma5 5, 1994, RADM H.E. Grant, US Navy Judge Advocate General, explains that RADM Bitoff never took the role of an accuser

Did RADM Bitoff, an accuser, convene a special Court­ martial?

RADM Bitoff convened a special court-martial and referred the charges against LCDR Fitzpatrick to that court on January 24, 1990. He was not, however, an accuser. In military law, the term “accuser” refers to the person who swears to the charges, the person who directs that charges nominally be signed and sworn by another, and any other person who has an interest other than an official interest in the prosecution of the accused (Article 1, UCMJ). While an accuser is disqualified from referring charges to court, no motion to dismiss the charges alleging that RADM Bitoff was an accuser was made at trial. As indicated above, failure to make such motion prior to pleas waives the issue. As a result of his application, and post-application letters from the accused and members of Congress, LeOR Fitzpatrick’s allegations of unlawful command influence have been reviewed by not less than 8 judge advocates, including myself, none of whom were involved in the case at the trial level or have any personal interest in the case. In addition to the fact that the issue is legally moot as having been waived by failing to object at trial, none of these judge advocates have found any legal merit whatsoever in LeDR Fitzpatrick’s allegations. Thus, there is no evidence to support the characterization of RADM Bitoff as an accuser. In fact, there was no evidence of any action on the part of the convening authority, Rear Admiral Bitoff, his chief of staff, Captain Edwards, or his staff judge advocate, LCDR Zeller, which prevented LCDR Fitzpatrick from receiving a fair trial. It is my opinion that had any motion been made attacking RADM Bitoff’s referral of this case to trial, it would properly have been denied.

Walt believes that he found a smoking gun

After 10 years of silence John Bitoff finally came forward to write in April 1999 “I brought the charges and I convened the Court-Martial.”

Source: Letter of RADM Bitoff, Ret, to Norman Dicks, April 30 1999

Referral is the order of a convening authority that charges against an accused be tried by a particular court-martial panel. The convening authority may not refer a charge to a court-martial unless there are reasonable grounds to believe that the accused committed the offense charged, and that the specification of the charge alleges an offense under the UCMJ.
Source: Balancing Order and Justice: The Court Martial Process, American Bar Association, 2012

Fitzpatrick – The right to confront your accuser

In the Cox 2001 report, Walt shows that he does not really understand the legal concept of ‘the right to confront your accuser:

Lastly this: I was denied the right to confront my accusers in court. Neither Bitoff nor Zeller testified.

He has shown the same failings in later court encounters, not understand that it is the prosecutor who brings the charges, just like LT Zeller brought the charges against him. Bitoff never was a formal accuser, he served the role as the Convening Authority, who preferred the charges to a Special Court Martial.

There is no right to confront the Convening Authority or even the accuser. LT Zeller collected all the evidence, and testimony and witnesses and prepared a list of charges with which Fitzpatrick would be confronted. To ensure impartiality, Bitoff actually convened an Article 32 hearing, where the evidence against Fitzpatrick would be gather by an investigating officer (IO).

The IO’s recommendation was an Article 15 Non Judicial Proceeding (NJP), however Walt decided to refuse an Article 15, basically forcing the Commander’s hand to forward the issue to a court martial. Still, rather than sending it to a more serious court martial, the General Court Martial, he referred the charges to a Special Court Martial, once again doing Fitzpatrick a favor.

Sure, you get to face ‘your accuser’ in court which means that you get to challenge witnesses, testimony and evidence brought forward.

Read for example the 6th Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Walt continues to confuse the roles that LT Zeller and RADM Bitoff played and while he has raised the issue several times, independent investigations continued to find that his claims about LT Zeller and RADM Bitoff did not hold up under closer scrutiny.

Walt Fitzpatrick – Cox Report 2001

In 2001, Walt brought complaints about his court martial claims to the Cox Commission, and has thus provided us with a wealth of information about the circumstances of his court martial. I see many similarities between Walt’s behavior then and now, and his arguments and understanding of the law are similarly confused by his beliefs. Still, I want to take this opportunity to look at the what happened and determine if there is any validity to Walt’s claims, even though his case has been reviewed several times already, all with similar outcomes. I am not a lawyer, and therefore my interpretations of the UCMJ and other statutes, are solely my best attempts.

I will likely release my findings in increments as the issues raised by Walt require quite a convoluted analysis of a myriad number of ever expanding issues he has raised. Sound familiar?

Disclaimer: I personally do not like Walter Fitzpatrick or his semi-official “spokesperson”, Sharon Rondeau but I do respect that they have the prerogative to present their arguments and supporting evidence and that it is up to all to find out if their conclusions are sufficiently supported by the facts. I have no problems pointing out problems and concerns I have found with the processes, on either side,  and I hope that my comments and conclusions as well as my description of what happened can contribute to everyone’s understanding.

Read the full report here (Walt’s case starts at page 250 and runs all the way to page 441…) For a good rebuttal of the Cox report findings read here. This also lays to rest many of Walt’s confusions about Article 32 versus the Grand Jury. And for an overview of the complexity of the Court Martial, I recommend this article.

COMMISSION ON THE 50TH ANNIVERSARY
OF THE UNIFORM CODE OF MILITARY JUSTICE

Statement Before
The Commission
By
WaIter Francis Fitzpatrick, III

Tuesday, 13 March 2001

TN Public Acts 1919 Ch 37 – Foreman of Grand Jury

Before the 1919 Act, the Tennessee Grand Jury consisted of 13 jurors and the Judge would appoint one of them to be the foreman/foreperson. In the 1919 Act, the number of jurors from the jury pool was reduced to twelve and a foreperson was added, who was appointed and selected by the Judge. The twelve are selected by drawing names randomly, just as is done today and the foreperson needs to have all the qualifications of a juror and is a member of said Grand Jury although he is not impaneled or summoned

Impanel (v) – The act of selecting a jury from the list of potential jurors, called the “panel” or “venire.” The steps are: 1) drawing names at random from a large number of jurors called; 2) seating 12 tentative jurors (or six where agreed to); 3) hearing individual juror requests for being excused, to be determined by the judge; 4) questions from judge and lawyers for both sides; 5) challenges of tentative jurors either for cause (decided by the judge) or peremptory (no reason given) by the lawyers; 6) swearing in the jurors who survive this process. See also TCA 22-2-310 Impaneling jurors

Summon (v) - To order to come; send for, esp to attend court, by issuing a summons. See also T.C.A 22-2-307 Summoning jurors

Juror (n) –   T.C.A. 39-16-101  (1) “Juror” means any person who is a member of any jury, including a grand jury, impaneled by any court of this state or by any public servant authorized by law to impanel a jury. “Juror” also includes any person who has been summoned or whose name has been drawn to attend as a prospective juror;

Once the jurors have been randomly selected to form a jury panel, they are summoned by the Sheriff to appear and then the Judge selects the Grand Jury as explained in Rule 6. Contrary to the beliefs of some, the judge indeed selects the jurors, as outlined in the T.C.A. and Rule 6.

Note that the grand jury is also discussed in T.C.A 40 -12 and TCA 16-2-510 explains how Grand Juries are impaneled, and contrary to the beliefs that Rule 6 does not reflect Tennessee Statute, it clearly does.

16-2-510.  Holding of court — Terms abolished — Grand juries.

(c) New grand juries shall be impaneled at least twice a year at times selected by the presiding judge of the district. The presiding judge within each district shall be responsible for designating the foreperson and for impaneling, charging and receiving the report of the grand jury, but may designate another judge to perform these responsibilities. In those districts in which there is a criminal court judge or judges, the criminal court judge or judges shall perform the duties pertaining to the grand jury assigned to the presiding judge by this subsection (c).

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TN Legislative Intent

In 2011, HB1830 was introduced to increase the number of the Grand Jury to 15. This specific sentence was added:

The foreperson’s term is subject to all of the restrictions of state law regarding the service of jurors

See here  for motivation to have this bill enacted: Rule 6 would otherwise allow the Judge to appoint and re-appoint the foreperson consecutive times.

This is the first time we see the legislator address the status of the foreperson of the grand jury and the term of his/her appointment.

In 2007,  HB1129 clarified that a specific jury rule also applied to the Foreperson

Grand Juries – Clarifies that grand jury foreman who intentionally communicates to another how the grand jury voted on a question commits official misconduct as prohibited by § 39-16-402

In HB3638, jurors who were summoned for jury duty could not be summoned again for 2 years.