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

Continue reading

TN – Qualifications of the foreperson

Much has been made of the statement that the foreperson shall have the same qualifications as the other jurors, to suggest that the term qualifications include “not having been chosen to serve in a Jury in the last 24 months’. However, that is not a qualification.

1. Formerly, under T.C.A. § 40-1507, the grand jury foreman or forewoman had to be at least 25 years old in order to serve. This provision was repealed by Acts 1979, ch. 399, § 1, and replaced by Tennessee Rule of Criminal Procedure 6(g). Under the new rule, the qualifications for foreman are the same as those for regular jurors, resulting in a minimum qualifying age of 18 years. T.C.A. § 22-1-101 (formerly T.C.A. § 22-101).

Source: STATE v. BEAL, 614 S.W.2d 77 (1981)

T.C.A. § 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.

The continued confusion about the appointing of the Foreperson of the GJ in TN

Since at least 1980, Blackwood has participated in choosing grand jury foremen who have worked for years and sometimes decades in violation of Tennessee code.

Source: The Jaghunter

This is at odds with the known facts that in Tennessee, according to Statutes, and Rules of the Court, the foreperson is indeed appointed by the Judge for a period of two years. Said foreperson can be reappointed for consecutive periods of time.

As I have shown, the TN Statutes were amended in 1919 to separate the foreperson from the 12 jurors who were summoned through a random process. The foreperson instead was to be appointed by the Judge from the community at large and would serve for a period of two years.

The TN Public Acts 1919 Ch 37 states

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.

This was reconfirmed in other rulings.

Under the law of Tennessee, grand juries are composed of 12 jurors selected at random from the venire, and one foreman appointed by the Judge having criminal jurisdiction in that county. Tennessee Code Annotated sec. 40-1506 (hereinafter T.C.A.). The Judge may within his discretion select the foreman from the community at large, and his selection may be completely divorced from the selection of the venire and the selection of the other jurors. T.C.A. sec. 40-1506. An indictment may not be returned by fewer than 12 votes, but the foreman is possessed of all of the powers of the other members of the jury, including the right to vote. T.C.A. sec. 40-1706 and 40-1506.

Source: HALE v. HENDERSON 349 F.Supp. 567 (1972)

TCA 40-1506 was repealed in 1979 and replaced by Rule 6(g) of the Rules of Criminal Procedure. Note that in TN these Rules have the same status as laws and statutes. In fact, any laws in contradiction to the Rules of the Court are invalid.

This Office opined that a grand jury foreperson has the same voting power as any other grand jury member. Op. Tenn. Att’y Gen. 77-260A (August 9, 1977). That opinion was based on the Court of Criminal Appeal’s decision in Bolen v. State, 544 S.W.2d 918, 920 (Tenn. Crim. App. 1976). The Bolen decision was based on Tenn. Code Ann. § 40-1506, which has since been repealed. See Pub.Acts 1979, Ch. 399, § 1. Although the statute was repealed, it was replaced by Rule 6(g).

Source: Office of the Attorney General, Opinion No. 05-129 August 24, 2005

Chapter 399 of the Public Acts of 1979 was “AN ACT to repeal, amend or conform certain sections of Tennessee Code Annotated that are in conflict with or are substantially similar to the Tennessee Rules of Criminal Procedure.” The Public Act’s preamble reveals that the legislature noted that the Tennessee Rules of Criminal Procedure became effective on July 13, 1978, and that certain statutes enacted prior to that date either conflicted with the rules or stated “identically or substantially the same as the rules and are no longer necessary . . . .” The legislature found that it was “highly important and desirable to remove these inconsistent and superfluous provisions” and, therefore, repealed a multitude of statutory provisions, including Tennessee Code Annotated section 40-519. Public Acts 1979, Chapter 399, section 1.

Source: CHARLES A. HARMON, ET AL. v. JAMES J. J. JONES, ET AL. Appeal from the Criminal Court for Knox County No. 95571

It is ‘argued’ that a statute which limits the summoning of jurors not the appointment of the foreperson. As was explained to Walt in a submission by Kyle Hixson in a response to Walt’s appeal in another case:

“…the foreman of the grand jury is not ‘impaneled’ from the ‘summoned’ members of the ‘jury pool.’ See Tenn Code Ann. §§ 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.”

22-2-314.  Limitation on jury service.

“A juror who has completed a jury service term shall not be summoned to serve another jury service term in any court of this state for a period of twenty-four (24) months following the last day of such service; however, the county legislative body of any county, may, by majority vote, extend the twenty-four-month period.”

Rule 6 of the Rules of Criminal Procedure does state that the Foreperson and the 12 jurors who have been randomly selected, form the grand jury.

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.

The Rules of Criminal Procedure are not only law, but they invalidate any statute in contradiction to said rules

“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).

Again, in TN, such rules override any laws that are in conflict with them. So, even though the statutes no longer describe how the foreperson is to be appointed, the Rules of Criminal Procedure outline the process and they have the same force of law.

Moreover, Tennessee law provides that provisions published in Tennessee Code Annotated will not supersede the Rules of Civil Procedure.   T.C.A. § 16-3-406 states that once the Rules of Civil Procedure have become effective, ‘all laws in conflict therewith shall be of no further force or effect.’   Any conflict between provisions of the Rules of Civil Procedure and provisions of the Tennessee Code which cannot be harmoniously construed shall be resolved in favor of the Rules of Civil Procedure.  Mid South Pavers, Inc. v. Arnco Constr.   Inc., 771 S.W.2d 420 (Tenn. Ct. App.1989).

Source: ARNOLD v. CITY OF CHATTANOOGA, Court of Appeals of Tennessee,Eastern Section, at Knoxville, 1999

The US Supreme Court also ruled on this issue in Hobby v US, 468 US 339 – Supreme Court 1984:

[4] Even if I limited my analysis to the information provided by Rule 6(c), I would still maintain that the foreman’s job is sufficiently consequential that discrimination in the means of selecting someone to perform it could actually prejudice a defendant. The very designation by the judge that one person will serve as foreman importantly differentiates that person from the other members of the venire. SeeUnited States v. Cross, 708 F. 2d, at 637 (“A foreperson has only one vote on the grand jury, but the selection by the district judge might appear to the other grand jurors as a sign of judicial favor which could endow the foreperson with enhanced persuasive influence over his or her peers”).

See also Mitchell v Rose, 570 F. 2d 129 – Court of Appeals, 6th Circuit 1978

The foreman or forewoman of the grand jury [in Tennessee] is selected in an entirely different manner. In essence, they are hand-picked by the trial judge from the eligible population for a two-year appointment. § 40-1506. They are subject to the same statutory qualifications as jurors except that they must be at least twenty-five years old.

Judge Blackwood and the First Amendment

[NBC: Update - I re-read the indictment which refers to on or around March 12, 2014 as the date of perjury. This appears to be his submission to the Court petitioning for a restraining order, not his submissions to the Grand Jury.]

Sharon Rondeau, at the Post and Email has posted a somewhat confusing article titled “Should Judge Blackwood be criminally prosecuted” about Judge Blackwell.

What Sharon sees as a person petitioning the government for ‘corruption’ is seen by others as a failure to properly understand the TN statutes and laws and thus when such a person makes claims under penalty of perjury, such a person may be arrested, indicted and convicted if a Grand Jury indicts the person and a Jury convicts him. I am not sure why one should blame a judge for following the legal procedures here.

Sharon has argued this to be the end of the First Amendment because he preceded over a case which involved someone petitioning the Government for Redress of Grievances and was found guilty of aggravated perjury.

I fail to understand why one believes that petitioning the government in a manner which exposes one to perjury charges, is somehow unconstitutional or a reason to prosecute the Judge.

Contrary to what Sharon believes, petitioning the government is not punishable with doing jail time. Sharon may have failed to properly understand the charges against Walt Fitzpatrick. Aggravated Perjury refers to statements made under oath and punishable with perjury charges.

TCA 40-12-104 reads in part

(d)  Submission of an affidavit which the person knows to be false in any material regard shall be punishable as perjury. An affiant who permits submission of a false affidavit, knowing it to be false in any material regard, is guilty of perjury. Any person subsequently testifying before the grand jury as to any material fact known by the person to be false is guilty of perjury.

Yes, Walt has the right to petition the government for redress of grievances but his submissions may be held to higher legal standards. TCA 40-12-104 has been cited by Walt and others to show that one has the right to petition the grand jury in Tennessee, so I am surprised that they were not familiar with the complete text.

[NBC: Update I have not seen Walt's submission to the Judge asking for a restraining or protection order. Anyone?]

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

Walt in Kitsap

Walt seems to have a rich history ‘pissing off’ people. This incident around the Tracyton port has quite a story however this newspaper report captures the essence of Walt.

Outside, Fitzpatrick sidled up to Mooney as the commissioner read a note calling the meeting open and then closed for lack of a quorum.

Fitzpatrick tried to talk over him, proclaiming that Mooney was out of order.

“You need to back off,” Mooney said. “I’m going to move over there. If you follow, you’re assaulting me.”

Fitzpatrick hung back as Mooney walked across the library’s scraggly lawn.

“Circle the wagons,” a member of the public called out.

About 10 Tracyton residents, many of whom live down the hill from the library, circled around Mooney, turning their backs on Fitzpatrick.

Mooney then said that once Keenan returned, they would hold a special meeting, tentatively scheduled for Aug. 27.

“I hate to do that to someone, but he brought it on himself,” one of the residents later said of Fitzpatrick.

Walt managed to rally together citizens to oppose him

Maybe future improvements will have a plaque on it for Fitzpatrick, Mooney said, although it won’t bear his name. But it might have a statement that he’s used to conclude several e-mails on the port: “Here endeth the lesson.”

Source: http://web.kitsapsun.com/redesign/2003-08-16/local/231603.shtml

Here endeth the lesson. Did Walter never learn?