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and the Rules of Appellate Procedure, are “law” of this state, in full force and effect, until such time as they are superseded by legislative enactment or inconsistent rules promulgated by this court and adopted by the general assembly.”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