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.