TN – State of TN v Fitzpatrick – Brief of the Appellant and the Foreman of the Grand Jury

Walt/van Irion ‘argue’ in their appeal’s brief

However, all of the authorities cited by the trial court had, at the time of its ruling, been overridden by subsequent act of the Tennessee Legislature. Specifically, T.C.A. §22-2-314, which became law on January 1, 2009.

However, the evidence for this is sparse and in fact contradicted by the fact that in 2013 a House and Senate bill has been introduced to limit the reappointment of the Foreperson of the Grand Jury to 4 years.

HB 0601 and SB 0227

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.
SECTION 2. This act shall take effect upon becoming a law, the public welfare requiring it.
Historically, the foreperson of the Grand Jury in TN has been appointed by the Court
5832 (4020) 4796 Foreman how appointed term removal 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 foreman of the grand juries in the various counties of their respective jurisdiction 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 1919, ch 37, sec 1
Source: Baldwin’s Cumulative Code Supplement, Tennessee 1920:  By Tennessee, Neal Bradford Spahr, Charles Bond Seymour
So the foreman is appointed by the judge and becomes a member of the Grand Jury and is not summoned to serve as a juror. Check out also Public Acts of 1919 Chapter 37, which spells it out clearly…
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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. The petitioner has not contended that the method of selection of the venires from which the grand juries are chosen has been such as to systematically exclude members of racial groups; he contends that the selection of the foremen, who are, as mentioned, voting members of the grand juries, is not safeguarded by a racially neutral and random method, but is wholly within the discretion of the criminal Judge. He further contends that since 1940 there have been no black grand jury foremen, thus demonstrating a prima facia case of racial discrimination under the law of Coleman v. Alabama, 389 U.S. 22, 88 S.Ct. 2, 19 L.Ed.2d 22 (1967). The petitioner argues that inasmuch as a voting part of the grand juries have been improperly chosen, the whole of the grand juries have been tainted; which is to say that a grand jury that is 1/13 unconstitutional cannot render constitutionally valid indictments.

Source: Hale v TN State Penitentiary 349 F.Supp. 567 (1972)

Although TCA 40-1506 has since then been repealed (1979 Ch. 399 § 1), it was replaced by Rule 6. See also Opinion of the Attorney General OP 129 (2005)