Educating the Confused – Foreperson and TN State Law

Some people at the “Post & Email” are still confused about the workings of the Tennessee Grand Jury.

They report that the foreperson of the Grand Jury resigned as of March 4, 2014

Rule 6 of the Tennessee Rules of Criminal Procedure explains

(2) Vacancy as Foreperson. When the foreperson of the grand jury is unable to serve or is relieved, the court shall appoint a new one according to Rule 6(g) until such time as the foreperson is able to serve or until expiration of his or her term.

and

c) Disqualification of Grand Juror for Interest.

(1) Disqualification. No member of the grand jury shall be present during–or take part in–the consideration of a charge or the deliberation of the other grand jurors, if:

(A) the member is charged with an indictable offense;

(B) the member is a prosecutor;

(C) the offense was committed against the member’s person or property; or

(D) the member is related to the person charged or to the victim of the alleged crime by blood or marriage within the sixth degree, computed by the civil law.

(2) Filling Vacancy Created by Temporary Disqualification. When a grand juror is excluded because of interest and fewer than twelve grand jurors remain to investigate any matter, the court shall fill the vacancy according to Rule 6(b) only during such investigation.

The only remaining question is if the foreperson permanently or temporarily resigned. But in the end, it is clear that the foreperson removed himself from the Grand Jury to allow the Grand Jury to reach its indictments on March 18, 2014, after Walt had been sharing his activities with the “Post & Email” providing for all the necessary materials that may have led to his indictment.

Walt, and the writer of the Post & Email article appear to be still confused about who appoints the foreperson of the Grand Jury and the status of said person and claim that the procedure violates State Law and “he District Attorneys General Conference description of a grand jury.”

The description is a non-legally binding overview of the Grand Jury and I am surprised that our diligent researchers have apparently missed the rich history found in the TN legislature. Or perhaps one would look at the Rules of Criminal Procedure for the State of TN, to fully comprehend the meaning of the term foreperson.

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.

Clearly establishing that the foreperson is not a “qualified juror whose names are first drawn” but rather one who is appointed by the Judge.

(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.

There is extensive case law and legislative history to establish this simple fact, and there is no compelling argument provided otherwise.

Much is made of the statement that “the foreperson is not a juror” which is correct, in the legal sense, as the foreperson and the 12 qualified jurors make up the Grand Jury for the term. Of course, the rules also provide that the foreperson’s vote is counted as one of the 12 necessary for an indictment. Again, the facts do not support the claim that somehow the appointment of the foreperson is in violation of state law.

It is unfortunate that Walt, perhaps unaware of these facts, continued to pursue his quixotic quest against Cunningham and others like Gary Pettway. In case of Gary Pettway, Walt’s actions resulted in conviction and jail time.

I have provided much relevant evidence such as TN Public Acts 1919 Ch 37 – Foreman of Grand Jury which defines a juror as

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;

TN Public Acts 1919 Ch 37

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.

In other words, while not being a juror, he is a member of the grand jury and votes with the other members.

Also in the following case the court outlines how the foreperson is selected

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.

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

Oh and for those who want to argue that Rule 6 is not part of the TN law…

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).

And Rule 1 outlines

(2) Law. “Law” includes statutes, codifications contained in Tennessee Code Annotated, and published judicial decisions.

For those who want to argue that the Rule was superseded, the Legislature of TN recently tried to change the selection of the Grand Jury foreperson, so they apparently disagree.

3 thoughts on “Educating the Confused – Foreperson and TN State Law

  1. It’s funny. Right wing morons are usually the first to jump on the “State’s Rights” bandwagon. Here the question is, does TN have the right to operate their local court system the way they choose, rather than the way a couple of outsiders think it should work?

    Not too long ago, TN fought in a civil war for the right to do things “their own peculiar way”. Usually the Right Wingers support States Rights, particularly if it is the State’s Right to take Rights away from some group that is not liked by Right Wingers. But I don’t see anybody losing rights due to the way they pick the jury foremen in TN. It is just different from how Walt and Sharon think it should be done.

  2. The way they pick the foreman is somewhat peculiar to Tennessee. I believe in Alabama, the present practice is to appoint the foreperson from amongst the jurors but the judge has quite a bit of leeway as to how he selects the foreperson.

    What annoys me is that perople like Sharon and Walt are making claims that the process is against the law, or that it is some nefarious way for the court to manipulate the system when in fact the legislative history would have helped them understand better the motivations.

    And based on this erroneous assumption about the foreperson, Walt has gotten himself into trouble more than once.

    Similarly, I believe that a failure to properly understand the jury selection process got him convicted for removing the jury selection papers. All this started because the Grand Jury ignored Walt’s ‘criminal complaints’ which have no more legal relevance than a piece of toilet paper with some notes scribbled on. They are both expressions of freedom of speech, but that’s it.

    Walt however will continue his mistakes and it saddens me that some people appear to be enabling him rather than help him understand the follies of his claims.

  3. Another layer of insanity is that these people, Walt in particular through his (former?) association with Carl Swenson and the “Citizen’s Grand Jury” movement, have a test case for jury selection right in front of them, if they ever bothered to think about it.

    Do they believe any of the jurors or foremen on any of their fake juries were selected randomly from the population in general?

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