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).