Coming Soon to the Comedy Channel…

The Post and Email has announced that:

(Sep. 17, 2014) — Professional filmmaker William (Wilky) Fain has informed The Post & Email that a video depicting the efforts of CDR Walter Francis Fitzpatrick, III (Ret.) to expose corruption within the Tennessee judiciary is nearing the stage when it will be presented to an agent for consideration as the basis for a documentary.

HT: Zeke

I interpret this to mean that they are hoping that the Comedy Channel will have a late night slot available? Note that contrary to some claims, Walt has done almost nothing to expose corruption within the Tennessee Judiciary.

We will hear how the 5th Amendment Grand Jury presentment clause, which has never been incorporated by the 14th Amendment to apply to the States, somehow determines how the State of Tennessee should run its own Grand Jury system. I guess, they are not great believers in state rights.

We will hear how for decades and more, the statutes of the State of Tennessee have allowed the Judge to appoint the foreperson of the Grand Jury as the 13th “Grand Juror” from the population at large. We will learn how such appointments, which are valid for 2 years, can be extended for multiple consecutive periods. We will learn how the State of Tennessee has corrupted the courts by applying its statutes correctly.

We will learn that in spite of the clear history that the Court may appoint the foreperson from the eligible population at large, the courts have been subverting justice by doing so exactly. How dare they not follow the principles laid out by Mr Fitzpatrick…

In light of all this evidence it is clear that the State of Tennessee and the Judiciary are guilty of following their laws and statutes.

Oh the comedy that ensued…

• The fact that some geniuses were laughed at does not imply that all who are laughed at are geniuses. They laughed at Columbus, they laughed at Fulton, they laughed at the Wright brothers. But they also laughed at Bozo the Clown.
  • Carl Sagan, Broca’s Brain (1979), p. 64 ISBN 0394501691

 

 

TN – State v Fitzpatrick – What now…

Remember how only a few weeks ago, a certain Field McConnell, threatened to file a legal action against President Obama if Judge Blackwood would not reject the Jury’s decision as to Walt’s conviction.

Even though Walt was, in accordance with the Constitution, indicted by a Grand Jury and found guilty by a jury of his peers, Field somehow believes that the Judge should take notice of his ‘threats’. As expected, the judge totally ignored the rather meaningless statements and sentenced Walt to little more than the minimum sentence.

So now, being ignored by the judiciary and the media, Field has signed an affidavit in which he objects to the behavior of the Judge and the Prosecutor and proposes that the NLA, a common law knitting club, to “indict” them.

Why is it that some are so intent to fail, time after time?… The NLA has no legal relevance, and is nothing more than a “knitting club” petitioning the Courts for redress and unwilling to pay any filing fees or explain their “standing”.

Well, the outcome is so predictable and it will be fascinating to watch the developments. Now let’s see if the NLA will get themselves involved. As a sidenote, does Tennessee have a statute criminalizing pretending to be a judicial officer?

39-16-510.  Retaliation for past action.

  (a)  (1) A person commits the offense of retaliation for past action who harms or threatens to harm a witness at an official proceeding, judge, district attorney general, an assistant district attorney general, an employee of the district attorney general or a law enforcement officer, clerk, employee of the clerk, juror or former juror, or a family member of any such person, by any unlawful act in retaliation for anything the witness, judge, district attorney general, assistant district attorney general, employee of the district attorney general or a law enforcement officer, clerk, employee of the clerk, or juror did in an official capacity as witness, judge, district attorney general, assistant district attorney general, employee of the district attorney general or a law enforcement officer, clerk, employee of the clerk, or juror. The offense of retaliation for past action shall not apply to an employee of a clerk who harms or threatens to harm the clerk.

   (2) For purposes of subdivision (a)(1), “family member” means the spouse, parent, grandparent, stepmother, stepfather, child, grandchild, brother, sister, half-brother, half-sister, adopted children of the parent, or the spouse’s parents.

(b) A violation of this section is a Class E felony.

TN – P&E questioning job performance county officials

In a somewhat strange posting, the P&E is wondering if county officials in TN are performing their jobs satisfactorily.

A McMinn County Sheriff Corporal apparently informed Sharon that Walt is going to prison. Which is exactly what is to be expected to happen to someone who has been found guilty and sentenced to 3 years. Since the P&E, in the past, has complained about conditions in county jails, Sharon should be happy to hear that this time Walt is going to a State correctional facility.

Speaking of job performance, I wonder if Sharon has taken the time to familiarize herself with the laws, statutes and case law related to the appointment of a foreperson of the Grand Jury in TN. Contrary to her claims, which mirror Walt’s, the history of the TN Grand Jury and the laws passed, show that it is indeed the Judge who appoints a foreperson from amongst the population at large and that said Judge can re-appoint the foreperson for multiple, consecutive 2 year appointments. The recent statute which limits jury duty to once every two years, does not apply to the foreperson since he is not summoned but rather appointed.

Before one makes accusations of corruption etc, it is helpful to first outline the facts and study them. So far, the facts do not appear to support most of the ‘charges’ against the TN judiciary, the Sheriff’s office or the attorneys general. This does not mean that there is no corruption, just that the evidence has failed to point to any thus far.

For those interested, Walt’s status in the McMinn County jail can be checked here

Walt gets 3 years

“Boots on the ground” report that:

Walt got 3 years state prison, taken into custody, Judge Blackwood was furious, used the word “ludicrous” many times to describe Walt’s conduct, his thinking, Irion’s arguments. A district attorney and a probation officer talked to me. Both are friends of the Fogbow. More later, gotta hit the road to be home in time to do RC Radio.

Justice has run its course.

One of his supporters had bragged that:

My name is Field McConnell and I expect that Tennessee will address issues with Judge Jon Kerry Blackwood and vacate any improper judgement(s) against Walter Francis Fitzpatrick. If the State of Tennessee and the County of McMinn continue on this corrupt course I will be filing charges in U S District Court, District of North Dakota against Barry Soetoro, Punahou ’79 for wrongful death, 2000+ counts, in period 20 January, 2009 to the removal from office of Barry Soetoro. I will not be filing those charges if Walter Francis Fitzpatrick is rightfully exonerated.

Expect another legal filing and failure…

Educating the Confused – P&E and no victim

Sharon Rondeau at the P&E, has posted the following. And while I do not have access to the full document, it is hilarious how she keeps focusing on the ‘victim’ component. In case of ‘perjury’, there indeed is no real victim, just a perpetrator, who violates the expectations that “We the People” have when filing legal documents. As to the extortion charge, while there was no official police report, the actual court case shows that the victim of this extortion was Jeff Cunningham. The Jury looked at the evidence, was told what components were necessary for a guilty charge and found Mr Fitzpatrick guilty accordingly on two charges and acquitted him of a third charge.

Bombshell: State of Tennessee Admits No Victim Exists for Fitzpatrick’s “Crimes”

Tweet INDICTED, CHARGED, CONVICTED AND SOON TO BE SENTENCED, WITHOUT A VICTIM by Sharon Rondeau (Aug. 11, 2014) — The State of Tennessee Board of Probation and Parole has admitted that in the case of Walter Francis Fitzpatrick, III, 14-CR-69, in which Fitzpatrick was found guilty of “aggravated perjury” and “extortion,” there was no victim. […]

Time to celebrate?… From prison most likely… This is not rocket science and yet we see more and more of these ‘sovereign citizen like’ “arguments” in the news. Not surprisingly, none of them go very far.

Walter Fitzpatrick – Some weird stuff

Not only has a person named Field McConnell been making some foolish threats, but now they are organizing a “prayer breakfast” in the hope that higher authority intervenes. Unlikely…

“STAND WITH WALTER, STAND FOR AMERICA, STAND WITH JESUS. STAND.” by Sharon Rondeau

Walter decided to violate the laws of our Nation and was properly found guilty by a jury of his peers. Let’s pray that justice will be done. As to the weird claims of corruption, they appear to be all based on a failure to understand the laws of our nation. Ignorance has been the fuel behind much of Walt’s foolish behaviors that have led him to enjoy some time in our nation’s jails. Let’s sit back and enjoy this. I wonder if all this is happening with Walt’s approval… One thing seems certain to me, this is only going to do him a disservice.

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.

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.

Walt Fitzpatrick – What perjury?…

Walter Fitzpatrick and his sidekick at the Post and Email have been expressing the belief that somehow the prosecutor had failed to provide any evidence of perjury. I listened to Walt’s recordings and made some notes about how the prosecutor summarized the case.

The jury looked at the evidence and found that Walt, in at least one instance, had made a statement under oath which was false, and made with the intent to deceive as part of an official proceeding and which was material. Appeal’s courts are not going second guess the jury as to what statement or statements they found to have been perjurous, and I believe that there exists sufficient foundation that Walt claimed that Cunningham had blocked him six times from appearing before the grand jury. A statement which I could see would lead a jury to convict Walt.

Fitzpatrick and the Grand Jury that indicted him

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

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

Source: 17DEC2013-GJCRIMCOM.pdf

What Hixson actually wrote is quite different

TN – Discrepancies name Foreperson

The Post Email wrote about Walt

(Oct. 7, 2012) — On October 3, 2012, Monroe County acting grand jury foreman Faye C. Tennyson told Assistant District Attorney Steve Morgan under oath that she is currently not under an appointing order as grand jury foreman. However, Tennyson confirmed that her signature appears on the indictment charging Walter Francis Fitzpatrick, III with “tampering with government records” in March of this year.

The lack of an appointing order is not sufficient to invalidate her signing off as the foreperson of the Grand Jury. First of all, any defect should have been remedied before the Grand Jury was sworn in:

22-2-313. Objection required to affect validity of selection. [Effective in Certain Counties. See the Compiler’s Notes.]

In the absence of fraud, no irregularity with respect to this title or the procedure under this title shall affect the validity of the selection of any grand jury or the validity of any verdict rendered by a petit jury unless the irregularity has been objected to before the jury is sworn.

Any objects were clearly made too late.

P&E: Morgan, acting for the prosecution, had asked Tennyson, “Do you have an appointing order?” to which Tennyson had answered, “No.” “After she said ‘no,’ they got her out of there right-quick,” an attendee of the hearing told us.

P&E: While an appointing order announcing Tennyson as the new foreman was issued early in 2011, Fitzpatrick had challenged its validity because it had no beginning date nor end date and misspelled Tennyson’s first name.

As courts have ruled, minor discrepancies between the name of the foreperson in the appointment order and the indictment are immaterial.

Variance between Indorsements and Minutes The minutes of court showed that CJ Davis was appointed foreman of the grand jury. The indorsement on the indictment a true bill was signed by JC Davis foreman of the grand jury .There is no explanation of this discrepancy in the record. No question was made upon it in the lower court. It was held that this court will presume that the discrepancy arose from mere clerical error and that it is immaterial. Green v State 88 Tenn 615 14 SW 430

van Irion had tried as well, arguing that since she had served on a regular jury, she could therefore not serve as the foreperson of the Grand Jury.

P&E: After assuming Fitzpatrick’s defense in August, Atty. Van Irion had maintained that Tennyson was ineligible to serve in 2012 when she had served in 2011. In 2008, a law was passed by the Tennessee General Assembly which stated that jurors could not serve consecutive terms.

Criminal Court Rule 6(g)(2) states that the grand jury foreman “shall possess all the qualifications of a juror.”

Source: Facebook

As Walt and others have been told, the foreperson of the Grand Jury is appointed by the Judge from the community at large while the 2008 statute refers to summoning of jurors, a concept which only applies to the 12 randomly selected Jurors, not the foreperson. As to qualifications, these refer to TCA 22-1-101

Every person eighteen (18) years of age, being a citizen of the United States, and a resident of this state, and of the county in which the person may be summoned for jury service for a period of twelve (12) months next preceding the date of the summons, is legally qualified to act as a grand or petit juror, if not otherwise incompetent under the express provisions of this title.

In the end, Walt’s objections fell on deaf ears because of the laws and statutes.

The Appeal’s Court considered Walt’s ‘arguments’ and found that:

Appellant argues that the trial court erred in denying his request to dismiss his
indictment because the grand jury foreperson had “illegally served on successive grand juries.”

Prior to trial, Appellant filed a motion in which he alleged that his indictment was
“counterfeit” because the grand jury foreperson had served a jury in the previous calendar year, 2011.

The trial court heard this motion on June 28, 2012, and made the following findings in a written order:

Defendant asserts that the grand jury foreperson has illegally served on successive grand juries. Tennessee law, however, is clear that a foreperson may serve on successive grand juries and is not limited to one term. See Nelson v. State, 499 S.W.2d 956, 956 (Tenn. Crim. App. 1972) and Thompson v. State, 2005 WL 2546913, *25 (Tenn. Crim. App. 2005). See also Raybin, Tennessee Criminal Practice & Procedure, § 9.8 (2008) (selection of grand jury foreperson).

TN – Appointment Order Foreperson Grand Jury

Walt has made a big deal out of finding out that not all forepersons have an appointment order.

First of all, there is nothing in the laws or rules that require an appointment order. In fact the courts have ruled that the administration of the oath required by statute to be taken by the foreperson is in effect the appointment.

Record evidence of appointment 1. The administration the oath required by statute to taken by the foreman of the jury is in effect the appointment and a statement in the record that person was sworn as foreman necessarily implies his appointment such by the court. Woodsides v State 3 Miss 655. To same effect Bird v State 2 Miss 247 2. Although the better practice require it, it is not usual in all to enter the appointment of the foreman upon the minutes of the court and If an Indictment is indorsed, the foreman returned to the cour,t properly filed and transmitted the fact that the appointment of foreman was not entered upon minutes of the court Is not material. Peo v Roberts 6 Cal 214 and for Tennessee, State v Gouge 12 Lea 132.

Also

Evidence of Appointment The record showing that a grand jury was impaneled and sworn may be silent as to who was appointed foreman by the court. In such case the record showing an indictment was returned into court, endorsed a true bill, and signed by one of the jury as foreman, in the absence of plea in abatement to the regularity of the finding and to sustain the plea, is sufficient evidence of the appointment of such foreman State v Gouge 12 Lea 132 State v Collins 6 Baxt 151 152

State v Fitzpatrick – In Jury deliberations

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

Darren Huff’s text messages…

Darren not only loves to talk, but also loves to text…

MR. THEODORE: And then I’ll just read them in order there as they go down, the conversation that’s going on on that Blackberry, the text messages, starting with right alongside here from a Mike Fulmer: “How did today go? Are you still a free man?” “LOL,” I think most people understand as “laughing out loud,” “It went well, and now we’re moving to Phase 2,” and that’s, again, that’s from Mr. Huff’s cell phone, so that’s what he sent.

The next message coming in: “What happened? Did ya do a citizen arrest?” Also coming in to his phone the message, “Did ya pull out the mussell(sic),” a spelling mistake there, but– and, again, that’s coming in to his phone.

The message that Mr. Huff sends from his phone is: “Not today. They released him night before last, so now we’re adjusting days.” Message coming to his phone then from Mr. Fulmer: “So a wasted trip?” Mr. Huff’s message back: “Not at all. We met with the arrested to coordinate with all groups involved.”

So, they met with Mr Fitzpatrick (“the arrested”) to coordinate with all groups involved. Coordinate what?…

Now remember that the Post and Email had ‘argued’

On January 30, 2014, Assistant U.S. Attorney Luke A. McLaurin told a three-judge panel of the Sixth Circuit Court of Appeals that Fitzpatrick and Darren Wesley Huff had exchanged “text messages” to plan a “courthouse takeover” on April 20, 2010. Fitzpatrick has submitted a sworn statement to The Post & Email refuting McLaurin’s claim in addition to stating that he does not use text-messaging with anyone.

Without knowing Fitzpatrick’s response to McLaurin’s statement, Huff also refuted McLaurin’s perjured statement in response to our question posed by email.

Ignoring for the moment that the P&E appears to be less than familiar with the meaning of perjury, we can also lay to rest that the US Attorney had made a false statement. From the audio I captured the following statement

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”

It seems that all this is supported by Darren’s text messages. Why noone took the time to actually research what the AG had actually said and what the evidence showed, is unfortunate but has hopefully been corrected now.

TN – TN v Fitzpatrick – Court of Appeals ruling

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

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.

TN – TN v Fitzpatrick – Appeal Denied…

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…

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.

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.

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.