During the motion hearing in June, the defense raised the issue that since the jurors who indicted Fitzpatrick in March, were told in January about his involvements in a Monroe County incident, that there may have been prejudice.
It is unclear to me if counsel raised the issue in a timely and proper fashion however.
Under the criminal procedure in this state, objection to the venire or the indictment is deemed waived unless raised in apt time by motion or plea in abatement.
In State ex rel. Lawrence v. Henderson, Tenn.Cr.App., 433 S.W.2d 96, 101, this court said:
“If the defendant does not object by motion or plea in abatement, to the venire or to the jurors summoned under it, before he pleads to the indictment, an objection thereafter is too late.”
Source: State ex rel. Henderson v. Russell, 459 SW 2d 176 – Tenn: Court of Criminal Appeals 1970
On a personal note, I believe that the Judge should have appointed a different Grand Jury to deal with the issue since the appearance of bias should be avoided at all cost.