ATHENS, Tenn. -- The following is submitted by Walter Francis Fitzpatrick, III, Commander, United States Navy, Retired:

The controlling legal authority condemning Tennessee's method of allowing criminal court judges to "handpick" county grand jury foremen is found in two U.S. Supreme Court cases:

Rose v. Mitchell (1979)

Hobby v. United States (1984)

The Supreme Court has held that discrimination in the selection of the grand jury's foreperson does not require the dismissal of an indictment if the foreperson was selected from among the grand jury by its own members, as long as the grand jury pool was selected in an unbiased manner from a cross-section of the community (Hobby v. United States, 1984). A federal grand jury foreperson is not in a position to sway the outcome of the case.

In Hobby (1984) SCOTUS said, [using Tennessee's method of selection] the foreman was not selected from among the local grand jury but instead from outside of it by a judge. Furthermore, the foreman had significant power in issuing subpoenas that could be [used to] influence the substance of an indictment.

The result of discrimination in foreman selection under the Tennessee system was that 1 of the 13 grand jurors had been selected as a voting member in an impermissible fashion.

This did [and still does] constitute a due process violation! (Zalman, Marvin, Criminal Procedure: Constitution and Society, 3rd Edition, Prentice Hall (2002), pg. 225).

In Rose (1979) SCOTUS excoriated Tennessee's method of selecting grand jury foremen:

"The exclusion from grand jury service of [any group] otherwise qualified to serve, impairs the confidence of the public in the administration of justice...[such exclusion] destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process...as this court repeatedly has emphasized, such discrimination not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government."

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SOURCE The JAG HUNTER

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