The Hixson Brief

The Hixson Brief was submitted by Kyle Hixson as part of Walt’s Appeal of State v Fitzpatrick to the Court of Criminal Appeals at Knoxville.

Walt has claimed that:

On 20 September 2013 Tennessee’s Attorney General Robert Cooper admitted in a by way of a court filing submitted by Cooper’s Assistant Attorney General Kyle Hixson that Mr.Jeff Cunningham is not a juror

Source: 17DEC2013-GJCRIMCOM.pdf

What Hixson actually wrote is quite different

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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).

TN – Appointment Order Foreperson Grand Jury

Walt has made a big deal out of finding out that not all forepersons have an appointment order.

First of all, there is nothing in the laws or rules that require an appointment order. In fact the courts have ruled that the administration of the oath required by statute to be taken by the foreperson is in effect the appointment.

Record evidence of appointment 1. The administration the oath required by statute to taken by the foreman of the jury is in effect the appointment and a statement in the record that person was sworn as foreman necessarily implies his appointment such by the court. Woodsides v State 3 Miss 655. To same effect Bird v State 2 Miss 247 2. Although the better practice require it, it is not usual in all to enter the appointment of the foreman upon the minutes of the court and If an Indictment is indorsed, the foreman returned to the cour,t properly filed and transmitted the fact that the appointment of foreman was not entered upon minutes of the court Is not material. Peo v Roberts 6 Cal 214 and for Tennessee, State v Gouge 12 Lea 132.

Also

Evidence of Appointment The record showing that a grand jury was impaneled and sworn may be silent as to who was appointed foreman by the court. In such case the record showing an indictment was returned into court, endorsed a true bill, and signed by one of the jury as foreman, in the absence of plea in abatement to the regularity of the finding and to sustain the plea, is sufficient evidence of the appointment of such foreman State v Gouge 12 Lea 132 State v Collins 6 Baxt 151 152

Educating the Confused – Again – TN Grand Jury Foreperson

Sharon: Fitzpatrick had previously exposed that grand juries in Tennessee’s Tenth Judicial District operate illegally because the foreman, and in some cases, jurors, serve for multiple terms at the pleasure of the presiding judge.

Source: Post and Email

Rule 6 of the TN Rules of Ciminal procedure, which have been approved by the legislature and are legally binding explains:

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.

Walt seems to have parsed this sentence incorrectly, leading him to conclude that the foreperson has to be randomly drawn as well. I have documented the legal, and legislative history of the Grand Jury in quite some detail, citing for instance TN State v Gouge.

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).

So how is the foreperson selected?

(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. When concurrent grand juries are impaneled, the court shall appoint a foreperson for each grand jury.

(2) Qualifications of Foreperson. The foreperson shall possess all the qualifications of a juror.

Qualifications of a juror refers to the statutory requirements outlined in

  • TCA 22-1-101: It is the policy of this state that all qualified citizens have an obligation to serve on petit juries or grand juries when summoned by the courts of this state, unless excused. If you are 18 years of age or older, a citizen of the U.S., and have been a resident of Shelby County for the past 12 months you are qualified to act as a grand or petit juror, unless otherwise incompetent under TCA 22-1-102. If you are not qualified because of age or residency, a copy of driver license may be faxed to (901) 222-1651. If you are not a citizen, fax a copy of your visa, green card, or permanent resident card.
  • TCA 22-1-102: If you have been convicted of a felony or other infamous offenses, or if you have been convicted of perjury or subornation of perjury, you cannot act as a grand or petit juror. Documentation may be faxed to (901)222-1651.

So, the facts show that the judge indeed appoints the foreperson and together with the jurors chosen randomly forms the grand jury and thus is a “juror” of the grand jury. However, as has been pointed out,

The state respectfully submits that the defendant misapprehends the purpose of section 314. Section 314 does not speak to the qualifications of a citizen to serve as a juror. Section 314 simply forbids the government from requiring citizens to appear for jury service too often. Furthermore, the foreperson of the Grand Jury is not “impaneled” from the “summoned” members of the “jury pool”. See TN Code Annotated 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.

Source: State of TN v Walter Fitzpatrick, Brief of the State of TN in Appeal. Aka known as the Hixson brief.

Walt has hinted that he believes that Section 314 overrides Rule 6, however, that is contradicted by the simple fact that the legislature has recently proposed, to have the foreperson appointed from those randomly selected as jurors.

As to Juror, the definition is clear

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;

So Walt’s attempt to perform a ‘citizen’s arrest’ of the Foreperson of the Grand Jury did in fact involve an action against a juror but not one who was summoned and impaneled.

Furthermore, the legislative history shows how the legislature explicitly allowed the Court to appoint the foreperson of the Grand Jury, and reduced the number of jurors whose names are randomly drawn from 13 to 12.

CHAPTER NO. 37.
Senate Bill No. 293.

(By Mr. Louthan.)

AN ACT to authorize and empower and to require the criminal judges of this State, and the Circuit Judges of the State, having criminal jurisdiction, to appoint the foremen of grand juries in the counties of their respective jurisdictions: to provide for the manner of said appointments, and to fix the term of such appointments, and to provide for the compensation of such foremen of grand juries, and to define their duties, powers and qualifications, and to repeal all laws in conflict with this Act, and to amend Section 4015 of the Code of Tennessee adopted in 1858.

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.

Recent legislative attempts include HB 0601 and SB 0227

Grand Juries – As introduced, prohibits a person from serving as a grand jury foreman for more than four years. – Amends TCA Title 16; Title 20; Title 22 and Title 40.

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.
Clearly trying to override Rule 6. So, even the legislature does not appear to accept the conclusion that their previous acts have overridden the rules of the Court.
See also HB 1830, 107th Assembly
Grand Juries – As introduced, enacts the “Grand Jury Act of 2011.” – Amends TCA Title 20; Title 22 and Title 40.
Notwithstanding any rule of court to the contrary, on the first day of each term of court at which a grand jury is required to be impaneled, the judge of the court that is authorized by law to charge the grand jury and to receive the report of that body shall direct the names of all the qualified jurors in attendance for the criminal courts of the county to be written on separate slips of paper and

placed in a box or other suitable receptacle and drawn out by the judge in open court. The fifteen (15) qualified jurors whose names a re first drawn shall be the grand jury for the term and shall attend the court until dismissed by the judge or until the next term.
(b) Notwithstanding any rule of court to the contrary, the judge of the court that is authorized by law to charge the grand jury and to receive the report of that body shall appoint the foreperson of the grand juries in the counties of their respective jurisdiction from the fifteen (15) randomly selected grand jurors.
If concurrent grand juries are impaneled, a foreperson shall be appointed for each grand jury. The foreperson shall hold office and exercise the powers and duties of foreperson for a term of two (2) years from appointment; provided that, in the discretion of the presiding judge, the foreperson may be removed, relieved, or excused from office for good cause at any time. The foreperson’s term is subject to all of the restrictions of state law regarding the service of jurors.
The foreperson is a member of the grand jury and may vote with other grand jurors and the foreperson’s vote shall count toward the twelve (12) necessary for the return of an indictment.
SECTION 3. This act shall take effect upon becoming a law, the public welfare requiring
it.
Explicitly changing the selection of the foreperson.
Oh and this one

“Conflicts between provisions of the Tennessee Rules of Civil Procedure and provisions of the Tennessee Code Annotated which cannot be harmoniously construed will be resolved in favor of the Tennessee Rules of Civil Procedure.”

Mid-South Pavers, Inc. v. Arnco Constr., Inc., 771 S.W.2d 420, 1989 Tenn. App. LEXIS 12 (Tenn. Ct. App. 1989).

It’s going to be an uphill battle to claim that TCA 314 overrides the Court’s Rules of Criminal Procedures.

Educating the Confused – Walt and the Foreperson of the TN Grand Jury (again and again)

Walt has tried again, and failed, to get his foolish notions heard by the 2014 McMinn County Grand Jury.

He still, against all evidence, judicial precedent and logic, claims that a foreperson like Cunningham or Pettway, are committing crimes when they portray themselves or act like forepersons of the Grand Jury.

Needless to say, Walter is wrong. According to the Rules, and legal precedents, the Court gets to appoint the foreperson of the Grand Jury, whose only requirement is that he/she is eligible, which means being a resident of appropriate age, with no major convictions.

(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. When concurrent grand juries are impaneled, the court shall appoint a foreperson for each grand jury.

(2) Qualifications of Foreperson. The foreperson shall possess all the qualifications of a juror.

Which of course does not mean that the foreperson has to be selected through the process used to impanel a jury.

What are the qualifications of a juror?

  • TCA 22-1-101: It is the policy of this state that all qualified citizens have an obligation to serve on petit juries or grand juries when summoned by the courts of this state, unless excused. If you are 18 years of age or older, a citizen of the U.S., and have been a resident of Shelby County for the past 12 months you are qualified to act as a grand or petit juror, unless otherwise incompetent under TCA 22-1-102. If you are not qualified because of age or residency, a copy of driver license may be faxed to (901) 222-1651. If you are not a citizen, fax a copy of your visa, green card, or permanent resident card.
  • TCA 22-1-102: If you have been convicted of a felony or other infamous offenses, or if you have been convicted of perjury or subornation of perjury, you cannot act as a grand or petit juror. Documentation may be faxed to (901)222-1651.

Even the TN Legislature recognizes that the Judge gets to elect the foreperson, and has sought to change the procedures, but with no success so far.

Sharon and Walt appear to also still be confused by the procedures Walt observed in Court when the Judge appointed the jurors in accordance with TN law and statute. What Walt observed was not the juror selection process, which is random, but rather the appointment process by the Judge of those who had been selected and summoned.

It continues to amaze me why Walt continues down this foolish path? Even the McMinn Grand Jury has recently, again, rejected to hear Walt’s arguments since the Grand Jury had already decided on Walt’s claims several times before, and rejected his arguments. These findings are final and accusing people of crimes is not going to give Walt another opportunity to argue his failed case. Walt’s flawed understandings continue to cause him to pursue foolish pathways, and have led to his arrest, indictment and conviction before.

Once Walt understands the history and logic behinds the process in Tennessee, and why it is at odds with his ‘understanding’ of how a Grand Jury should work, he may find more fruitful avenues to pursue. For instance, the legislature of TN may be a better avenue for changing the laws and statutes.

For example:

Thomas Johnson Michie, The Encyclopedic Digest of Tennessee Reports: Being a Complete Encyclopedia and Digest of All the Tennessee Case Law Up to and Including Vol. 115 Tennessee Reports, Cooper’s Chancery Reports, Shannon’s Tennessee Cases, and the Tennessee Chancery Appeals Reports, Volume 6, 1908

  • Judge appoints foreperson
  • No need to record who was appointed foreperson

Book

Regardless, I wish him well.

Walt on Darren Huff – Part 1

Walt has written extensively on Darren Huff

LEOs were put on notice regarding the necessity, the authority and the intent to carry out a series of Citizens’ arrests on 8 March 2010. We asked for their assistance.

Instead, all we heard was the cricket laugh-track.

For good reason: There was no reason to support a legal foundation for arrest, let alone citizens’ arrests. Walt may have believed that some felony was being committed but the courts have been clear. Furthermore, accepting that citizens’ arrest can be legal under certain circumstances, none of these circumstances appear to apply in this case. Instead, Walt interrupted an official Grand Jury hearing, and tried to ‘arrest’ the foreman of the Jury, Mr Pettway. That was a foolish act and led to his subsequent arrest and conviction by a jury of his peers.

When questioned, Darren Huff reaffirmed his intent to carry out the lawful exercise of Citizens’ arrest.

So the FBI and prosecution was correct that Darren Huff had the intent to carry out citizens’ arrests, which Walt/Sharon, consider to be a ‘lawful exercise’?… This was exactly the reason why Darren was found guilty: He had transported firearms across state lines with the intent for them to be used in a civil disturbance. It’s a very simple question which was answered by the Jury with a guilty verdict.

Darren told FBI Special Agent Chuck Reed that if there were any problems, to give Darren a call.

Reed never called.

Darren drove to Madisonville.

And entered into history… Of course, the FBI has no reason to stop Darren from violating US law and it is somewhat silly that this has been raised as an excuse… Well, the FBI did not stop me so it must have been legal. Darren would have done best if he had gotten some legal advice before setting out on his quest.

Walt himself outlines the circumstances that led to his own arrest

Mr. Pettway and others were subsequently placed under Citizen’s arrest during the scheduled assembly of the Monroe County grand jury on the first Thursday in April 2010 in the brick and mortar County Courthouse.

Admitting that he indeed interrupted an assembly of the Monroe County grand jury and tried to place Mr Pettway under citizen’s arrest, a rather foolish step. Especially since Pettway was a lawful foreperson of the Grand Jury, who indeed is appointed by the Judge and can be appointed for multiple consecutive periods. The foreperson is not summoned to serve on the Grand Jury but rather is hand selected by the Judge.

A judge not present in the Courthouse counter attacked and ordered my arrest for misdemeanor charges of riot, disorderly conduct and disrupting a meeting.

Which seems reasonable given stated Walt’s intentions and the case was taken to a Grand Jury and subsequently to a petite jury, who found Walt guilty.

A Madisonville jury on Wednesday found Walter Fitzpatrick III guilty of disrupting a meeting and resisting arrest. He was found not guilty of retaliation and civil rights intimidation.

Source: WBIR

Darren Huff had operated a video camera and captured footage of the Citizen’s arrest inside the courthouse.  I had never met Darren prior to April 1 and had no contact with him afterward.

Which led to Darren’s pleading as to his role in the April 1 disturbance.

THe P&E interviews Hughes

The P&E ‘interviewed’ Hughes who is a public defender in TN and who has represent Raudenbush.

Hughes states about Walt (Fitzpatrick)

I know he feels strongly that the system that’s in effect in east Tennessee and in Monroe County is illegal, a violation of the law.  I know he feels strongly about that.  Obviously, there’s no case law at the present time to support that.  I don’t know how often that issue has been litigated.

Source: the Jaghunter quoting P&E

As I have reported, the history of the foreman of the Grand Jury in TN and the case law do not support Walt’s position nor the P&E’s position. Wishing it to be so, does not yet make it so. While somewhat different from other States, the foreperson of the Grand Jury in TN is not selected randomly but rather appointed by the Judge from all those eligible to serve on a grand jury since the foreperson needs to meet the minimum requirements to serve on a Grand Jury. However, the Judge gets to select whom to appoint and can re-appoint said person for multiple consecutive two year periods of time.

It has been shown how the TN legislator has tried to change this but so far with no success. Walt may believe that the practice violates the law, but he has failed to show, especially in light of precedential rulings, that this is in fact the case.