TENNESSEE COURT OF CRIMINAL APPEALS- EASTERN DIVISION
Walter Francis Fitzpatrick, III
Defendant-Appellant
Appellate Court Case Number:
E2013-00456-CCA-R3-CD
Trial Court Docket #: 12108CRM v.
State of Tennessee
Plaintiff-Appellee
APPELLANT’S BRIEF
Plaintiffs’ Appeal from Monroe County Criminal Court’s Conviction Against Walter
Fitzpatrick
Van R. Irion
Attorney for Defendant-Appellant
9040 Executive Park Drive, Suite 200
Knoxville, TN 37923
(865) 809-1505
Paul D. Rush
Attorney for Plaintiff-Appellee
Assistant District Attorney,
10 th
District
403 Tellico Street
Madisonville, TN 37354
1

Table of Contents
Table of Authorities
Table of Contents
Statement of Issues Presented for Review
Statement of the Case
Statement of Facts
Argument
I. Summary of Argument
II. Jury Instructions 8
A. Applicable Standards
1. Necessity Defense
8
9
B. The Instant Case Fairly Raised the Defense of Necessity 10
1. First Element of Necessity Defense: Testimony Fairly 10
Raised Defendant’s Reasonable Belief that Immediate
Conduct was Necessary to Avoid Imminent Harm
2. Second Element of Necessity Defense: Undisputed
Evidence of Minor Inconvenience to Government,
Compared to Preventing Systematic Jury Tampering
III.
Defendant’s Right to Testify
11
12
A. Applicable Standards 12
B. Defendant’s Excluded Testimony Left Commander Fitzpatrick with 13
No Defense
2
3
5
8
8
6
7
VI. Grand Jury Foreman Statutorily Prohibited from Serving on the Grand Jury 14
17 Conclusion
2

Cases
Campbell v. State ,
469 S.W.2d 506 (Tenn.Crimm.App.1971)
Chambers v. Mississippi ,
410 U.S. 284 (1973)
Davis v. State ,
64 Tenn. 612 (1875)
Harris v. New York ,
401 U.S. 222 (1971)
Mormon v. State ,
18 S.W.3d 152 (Tenn.1999)
Poe v. State ,
212 Tenn. 413 (1963)
Table of Authorities
Rock v. Arkansas ,
483 U.S. 44 (1987)
Nelson v. State ,
499 S.W.2d 956, 956 (Tenn. Cirm. App. 1972)
State v. Bowles,
52 S.W. 3d 69 (Tenn.2001)
State v. Burkhart ,
541 S.W.2d 365 (Tenn.1976)
State v. Culp ,
900 S.W.2d 707 (Tenn.Crim.App.1994)
State v. Davenport ,
973 S.W.2d 283 (Tenn.Crim.App.1998)
State v. David Wayne Smart,
2003 WL 21077997 (Tenn.Crim.App. May 13, 2003)
State v. Green ,
995 S.W.2d 591 (Tenn.Crim.App.1998)
State v. Harbison ,
704 S.W.2d 314 (Tenn.1986)
3
8
9
8-11
8-11
8
8
12
12, 13
14, 15
Page
12
13, 14
9
12
12, 14
9

Table of Authorities (Cont.)
Cases
State v. Hodges ,
944 S.W.2d 346 (Tenn. 1997)
State v. Hood ,
868 S.W.2d 744 (Tenn.Crim.App.1993)
State v. Locke ,
771 S.W.2d 132 (Tenn.Crim.App.1988)
State v. Polston ,
2004 WL 1869984 (Tenn.Crim.App.2004)
State v. Shropshire ,
874 S.W.2d 634 (Tenn.Crim.App.1994)
State v. Teel ,
793 S.W.2d 236 (Tenn.1990)
State v. Watson ,
1 S.W.3d 676 (Tenn.Crim.App.1999)
Thompson v. State ,
2005 WL 2546913, *25 (Tenn. Crim. App. 2005)
United States v. Scheffer ,
523 U.S. 303 (1998)
Statutes
T.C.A. §22-1-101
T.C.A. §22-2-308
T.C.A. §22-2-314
T.C.A. §39-11-609
T.C.A. §40-13-105
Rules
Tenn. R. Crim. P. 6(c)(1)(C)
Tenn. R. Crim. P. 6(g)
Tenn. R. Crim. P. 30
Secondary Authority
TENNESSEE CRIMINAL PRACTICE & PROCEDURE, Raybin (2008)
4
14
7, 11
8, 14-16
9
16
16
15, 16
8
14, 15
9
14
12
Page
9
9-11
8
8-10, 12
9-10, 12
8

A.
B.
C.
Statement of Issues Presented for Review
Whether the Trial Court erred by denying defendant Fitzpatrick’s right to testify in support of his defense of necessity.
Whether the Trial Court erred by refusing to instruct the jury on the defense of necessity.
Whether the Trial Court erred by denying defendant Fitzpatrick’s motion to dismiss on grounds that the grand jury foreman who signed the indictment against Fitzpatrick was statutorily prohibited from serving on the grand jury.
5

Statement of the Case
On December 7, 2011 retired Navy Lieutenant Commander Walter Fitzpatrick removed documents from a table in a public area in the Monroe County Courthouse. He was later charged with intentionally and unlawfully removing a government record in violation of T.C.A. §39-16-
504.
Before trial Commander Fitzpatrick filed a motion to dismiss on grounds that the grand jury foreman who signed the indictment against Commander Fitzpatrick was statutorily prohibited from serving on the grand jury in question. The trial court denied said motion.
At trial the court refused to allow Commander Fitzpatrick to testify to the jury regarding facts supporting his belief that the Monroe County Criminal Court was regularly selecting jury members in violation of Tennessee law. The court also refused to allow the defendant to testify that he had met with an FBI agent the day before the alleged crime, and that said agent had instructed the defendant to obtain tangible evidence in support of his allegations against the court. The court also refused to allow Commander Fitzpatrick to testify that he believed the documents he removed were evidence of illegal activity by the Monroe County Criminal Court and that said evidence would be destroyed if he had not removed the documents.
The trial court then refused to instruct the jury on the defense of necessity. With essentially no defense to consider, the jury immediately found Commander Fitzpatrick guilty.
Commander Fitzpatrick appeals the Trial Court’s denial of defendant Fitzpatrick’s right to testify to the jury in support of his defense of necessity. Commander Fitzpatrick also appeals the Trial Court’s refusal to instruct the jury on the defense of necessity. Finally, Commander
Fitzpatrick appeals the trial court’s denial of his motion to dismiss on grounds that the grand jury foreman who signed the indictment against Fitzpatrick was statutorily prohibited from serving on the grand jury.
6

Statement of Facts
For several years retired Navy Lieutenant Commander Walter Fitzpatrick has investigated jury selection practices used by the Monroe County Criminal Court. Tr.Transcr.
128:17-129:1; 156:23-157:22. Commander Fitzpatrick had met with an agent of the Federal
Bureau of Investigation and informed the agent that he believed jurors were being selected in violation of Tennessee law. Tr.Transcr. 133:20-134:6; 136:8-14. The agent requested that
Commander Fitzpatrick obtain tangible evidence in support of his allegations. Tr.Transcr. 136:8-
14.
After that meeting Commander Fitzpatrick witnessed what he believed was a violation of
Tennessee law, perpetrated by a judge in Monroe County Criminal Court. Tr.Transcr. 132:2-17;
133:7-134:6; 137:1-8. Later that morning while he waited in a room he believed was open to the public, Commander Fitzpatrick discovered several documents left on a table, alongside informational pamphlets published by the Court and offered to the public. Tr.Transcr. 136:15-25;
147:16-20. Commander Fitzpatrick immediately recognized that the documents left on the table were tangible evidence of the illegal jury selection he had witnessed. Tr.Transcr. 136:20-137:21.
Commander Fitzpatrick believed that if he left the documents in the courthouse, the documents would be destroyed. Tr.Transcr. 135:24-136:3. In order to preserve evidence of illegal jury selection, Commander Fitzpatrick removed the documents. Tr.Transcr. 135:24-136:3.
None of the information contained in the documents Commander Fitzpatrick picked up off the table was private information. Tr.Transcr. 64:7-18. To the contrary Tennessee State Law requires that said information be published. Id .; see also T.C.A. § 22-2-308.
7

At trial Commander Fitzpatrick was prohibited from testifying to the jury regarding all facts required to support his defense of necessity. Tr.Transcr. 129:10-20; 130:2-6; 143:2-7;
157:11-159:22; 162:9-16.
Finally, in the instant case the indictment was signed by an individual that had served on a previous grand jury within 2 years, in violation of T.C.A. §22-2-314. App. 2, Indictment at p.2; App.
169-170, Stmt. of Undisputed Fact at p.2-3.
Argument
I.
Summary of Argument
The trial court prohibited the defendant from testifying about facts in support of his defense of necessity. The defendant’s offer of proof testimony fairly raised the defense of necessity, but the jury never heard this testimony because the trial court ruled that this defense is not applicable. Because the court ruled the defense inapplicable, it also refused to instruct the jury on the defense of necessity.
The trial court’s refusal to allow testimony and give instructions on the defense of necessity left Commander Fitzpatrick with no defense at all. The trial court’s actions resulted in a denial of Commander Fitzpatrick’s right to due process.
II.
Jury Instructions
A.
Applicable Standards
On appeal a trial court's instructions to the jury are reviewed de novo, with no presumption of correctness. See State v. David Wayne Smart, No. M2001-02881-CCA-R3-CD,
2003 WL 21077997, at (Tenn.Crim.App., at Nashville, May 13, 2003), perm app. denied (Tenn.
Oct. 13, 2003); see State v. Bowles, 52 S.W.3d 69, 74 (Tenn.2001).
The trial court has a duty “to give a complete charge of the law applicable to the facts of a case.”
State v. Harbison, 704 S.W.2d 314, 319 (Tenn.1986); State v. Locke , 771 S.W.2d 132,
138-9 (Tenn.Crim.App.1988); see also Tenn. R.Crim. P. 30. “[A] defendant has a constitutional
8

right to a correct and complete charge of the law.”
State v. Teel, 793 S.W.2d 236, 249
(Tenn.1990). A charge is prejudicial error “if it fails to fairly submit the legal issues.” State v.
Polston , 2004 WL 1869984 (Tenn.Crim.App.2004); quoting State v. Hodges, 944 S.W.2d 346,
352 (Tenn.1997).
An accused’s right to a full exposition of the law applicable to the facts extends to the accused’s theory of defense.
Poe v. State , 212 Tenn. 413, 414-20 (1963); Davis v. State , 64
Tenn.612 (1875).
1.
Necessity Defense Standards
Tennessee statute codifies the defense of necessity. T.C.A. § 39-11-609. Conduct is justified, and therefore not criminal, if: 1) The person reasonably believes the conduct is immediately necessary to avoid imminent harm; and 2) The desirability and urgency of avoiding the harm clearly outweigh the harm sought to be prevented by the law proscribing the conduct, according to ordinary standards of reasonableness. T.C.A. § 39-11-609; State v.
Watson , 1
S.W.3d 676 (Tenn.Crim.App.1999).
Neither T.C.A. § 39-11-609 nor precedent requires the “imminent harm” to be physical harm to a person. To the contrary, the Tennessee Legislature’s selection of the general term
“imminent harm,” rather than something more specific like “injury” or “bodily harm,” indicates the Legislature’s intent to make the necessity defense available under a broad spectrum of circumstances.
Because necessity is a general defense, rather than an affirmative defense, the defendant need not prove the elements of necessity by a preponderance of the evidence. Tenn.Code Ann. §
39-11-203(c) (1997); State v. Green , 995 S.W.2d 591 (Tenn.Crim.App.1998); State v.
Davenport , 973 S.W.2d 283 (Tenn.Crim.App.1998); State v. Culp, 900 S.W.2d 707, 710
(Tenn.Crim.App.1994) (citing State v. Hood, 868 S.W.2d 744, 748 (Tenn.Crim.App.1993)).
9

Instead, if the evidence fairly raises this defense, the trial court must submit the issue to the jury.
Id . Where proof fairly raises the defense of necessity, the prosecution must prove beyond a reasonable doubt that the defense does not apply to the facts. State v. Davenport , 973 S.W.2d
283 (Tenn.Crim.App.1998); State v. Culp , 900 S.W.2d 707 (Tenn.Crim.App.1994).
When considering whether evidence has fairly raised a statutory defense such as necessity, “a court must, in effect, consider the evidence in the light most favorable to the defendant, including drawing all reasonable inferences flowing from that evidence,” because the trial courts and appellate courts must avoid judging the credibility of the witnesses when making this determination. State v. Polston , 2004 WL 1869984 (Tenn.Crim.App.2004); quoting State v.
Shropshire, 874 S.W.2d 634, 639 (Tenn.Crim.App.1994).
B.
The Instant Case Fairly Raised the Defense of Necessity
1.
First Element of Necessity Defense: Testimony Fairly Raised
Defendant’s Reasonable Belief that Immediate Conduct was
Necessary to Avoid Imminent Harm
In the instant case, during an offer of proof, the defendant testified that the documents he was accused of unlawfully removing were evidence that would prove the existence of illegal jury selection practices in Monroe County. Tr.Transcr. 136:15-137:21. The defendant testified that his conclusion was based upon a discussion he had had with an FBI agent. Tr.Transcr. 133:20-
134:6; 136:8-14. The defendant testified that the FBI agent had advised the defendant that the defendant would have to obtain specific evidence before the FBI would begin an investigation.
Tr.Transcr. 136:8-14.
The defendant also testified, outside of the jury’s hearing, that he believed that the documents he is accused of removing would have been destroyed if he had not secured said documents. Tr.Transcr. 135:24-136:3. Previous testimony from court personnel at motion
10

hearings in the instant case confirmed that the documents at issue would not normally be retained after information on said documents was input to a computer.
This testimony fairly raises the first element of the necessity defense. The evidence presented provides a basis for a reasonable juror to conclude that the documents at issue were evidence of jury tampering, and that the defendant reasonably believed that the documents would be destroyed if they had not been secured. The fact that the defendant was acting based upon information received from an FBI agent fairly raises the issue that the defendants’ actions were objectively reasonable.
2.
Second Element of Necessity Defense: Undisputed Evidence of Minor
Inconvenience to Government, Compared to Preventing Systematic
Jury Tampering
The Monroe County Court Clerk, testifying on behalf of the prosecution, explained that the loss of the documents defendant is accused of removing resulted in court personnel having to listen to a court reporter’s recording of the day’s jury selection proceedings in order to recover names and addresses of selected jurors. Tr.Transc. 32:8-33:19. The Clerk also testified that the loss of documents caused the Clerk’s office to have to send letters to said jurors. Id .
Undisputed evidence from prosecution witnesses also established that all information on the documents at issue was public information. Tr.Transcr. 64:7-18. Therefore, no sensitive or otherwise private information was lost. Id .; see also T.C.A. § 22-2-308.
This evidence, all presented by the prosecution, fairly raises the second element of the necessity defense. Tenn.Code Ann. § 39-11-203(c) (1997); State v. Davenport , , 973 S.W.2d 283
(Tenn.Crim.App.1998); State v. Culp, 900 S.W.2d 707, 710 (Tenn.Crim.App.1994) (citing State v. Hood, 868 S.W.2d 744, 748 (Tenn.Crim.App.1993))(the defendant need not prove the elements of necessity by a preponderance of the evidence, but must simply fairly raise the issue.)
This undisputed evidence provides a basis for a reasonable juror to conclude that the loss of the
11

documents at issue resulted in little more than a minor inconvenience to the government. This evidence fairly raises a question for the jury: whether “desirability and urgency of avoiding” destruction of documents, evidencing wide-spread and systemic jury tampering, outweighs a minor inconvenience to government employees.
The fact that the defendant was acting based upon information received from an FBI agent fairly raises the issue that the defendants’ actions were objectively reasonable.
Because the evidence fairly raises the elements of a necessity defense, the trial court’s refusal to instruct the jury on said defense constitutes reversible error. State v. Polston , 2004 WL
1869984 (Tenn.Crim.App.2004); quoting State v. Shropshire, 874 S.W.2d 634, 639
(Tenn.Crim.App.1994)(a court must consider the evidence in the light most favorable to the defendant, including drawing all reasonable inferences flowing from that evidence).
Therefore, the defendant respectfully requests that this Court reverse the Monroe County
Criminal Court’s denial of Defendant Fitzpatrick’s motion for a new trial and order that a new trial be granted.
III.
Defendant’s Right to Testify
A.
Applicable Standards
“It is now a well established principle in both state and federal law that a criminal defendant has a constitutional right to testify at trial.” Mormon v. State , 18 S.W.3d 152, 159
(Tenn.1999); citing State v. Burkhart, 541 S.W.2d 365, 371 (Tenn.1976); Campbell v. State, 4
Tenn.Crim.App. 100, 469 S.W.2d 506, 509 (1971); Rock v. Arkansas, 483 U.S. 44, 49–52
(1987); Harris v. New York, 401 U.S. 222, 225 (1971).
A criminal defendant’s right to testify is not an unqualified right, and “may bow to accommodate other legitimate interests in the criminal trial process,” including most applications of the rules of evidence and procedure. United States v. Scheffer, 523 U.S. 303, 308 (1998).
12

However, the Supreme Court has found the exclusion of evidence based upon a rule of evidence to be unconstitutionally disproportionate where it infringed upon a weighty interest of the accused. Rock v. Arkansas, 483 U.S. 44, 58 (1987). Specifically, the Supreme Court has found normally acceptable rules of evidence to be unconstitutional under circumstances where excluded testimony was critical to the accused’s defense.
Chambers v. Mississippi , 410 U.S. 284
(1973).
B.
Defendant’s Excluded Testimony Left Commander Fitzpatrick with No Defense
In the instant case the defendant was prohibited from testifying to the jury that an FBI agent had instructed the defendant to obtain tangible evidence like the documents that the defendant was accused of unlawfully removing. Tr.Transcr. 136:8-14. The defendant was also prohibited from testifying to the jury that the documents at issue were evidence of illegal jury selection practices by the Monroe County Criminal Court. Tr.Transcr. 133:20-134:6; 136:8-14.
The defendant was also prohibited from testifying to the jury why he believed that the documents at issue would have been destroyed if he had not removed them. Tr.Transcr.135:24-136:3. In other words, the defendant was completely prohibited from discussing any of the facts that would have supported his defense of necessity.
The trial court’s ruling left Commander Fitzpatrick with no defense at all. The defendant readily admitted that he took the documents at issue, but when he tried to explain why he took the documents the trial court refused to allow the defendant to testify. See Tr.Transr. 147:16-20;
155:3-16. Without any testimony explaining the justification for Commander Fitzpatrick’s actions, and with no instructions from the court on the defense of necessity, the jury had nothing to consider. This is why the jury convicted in a matter of minutes. The trial court excluded the defendant’s testimony on the facts that represented the accused’s entire and only defense. Such
13

exclusion is clearly unconstitutional. Rock v. Arkansas, 483 U.S. at 58; Chambers v. Mississippi ,
410 U.S. 284.
Because the trial court prohibited the defendant from testifying to the jury regarding facts supporting the defendant’s defense of necessity, and prohibited the defendant from arguing the necessity defense to the jury, the trial court violated the defendant’s constitutionally protected rights. Mormon v. State , 18 S.W.3d 152, 159 (Tenn.1999); Chambers v. Mississippi , 410 U.S.
284 (1973).
Therefore, the defendant respectfully requests that this Court reverse the Monroe County
Criminal Court’s denial of Defendant Fitzpatrick’s motion for a new trial and order that a new trial be granted.
IV.
Grand Jury Foreman Statutorily Prohibited from Serving on the Grand Jury
The trial court’s order of July 2, 2012 denying the Defendant’s motion to dismiss states that “Tennessee law, however, is clear that a foreperson may serve on successive grand juries and is not limited to one term.” App. 152, Or. at ¶2. In support of this conclusion of law the
Court cited: Nelson v. State , 499 S.W.2d 956, 956 (Tenn. Cirm. App. 1972) and Thompson v.
State , 2005 WL 2546913, *25 (Tenn. Crim. App. 2005); RAYBIN, TENNESSEE CRIMINAL
PRACTICE & PROCEDURE, §9.8 (2008). However, all of the authorities cited by the trial court had, at the time of its ruling, been overridden by subsequent act of the Tennessee Legislature.
Specifically, T.C.A. §22-2-314, which became law on January 1, 2009. T.C.A. §22-2-314 states:
“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 twentyfour (24) months following the last day of such service; however, the county legislative body of any county, may, by majority vote, extend the twenty-fourmonth period.”
See Acts 2008, ch.1159, §1.
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It should be noted that Title 22 explicitly applies to grand juries as well as petit juries. See
T.C.A. §22-1-101.
To emphasize the point that T.C.A. §22-2-314 overrides previous authority on this issue, the Court in Nelson specifically stated that its ruling was based upon the fact that no authority existed at the time of the Nelson ruling that prohibited grand jury forepersons from serving consecutive terms. 499 S.W.2d 956, 956 (1973). Such authority now does exist because the
Tennessee Legislature created said authority as of January 1, 2009. Similarly, the only authority cited by the Thompson Court in 2005 was Nelson v. State , quoting the Thompson Court’s statement “we find no authority…” Thompson v. State , 2005 WL 2546913, *25. The Tennessee
Legislature has remedied that situation after Nelson
. T.C.A. §22-2-314 overrides
Thompson and
Nelson and Raybin, and any rule of procedure, and any other rule of court that violates T.C.A.
§22-2-314. Just as legislative acts are subordinate to the state and federal constitutions, judicial precedent are subordinate to acts of the legislature. Except where courts are interpreting the constitution, court precedent can be nullified by acts of the legislature. Such is the case with
T.C.A. §22-2-314. The Legislature overrode
Thompson and Nelson and Raybin.
Yet in the instant case the indictment was signed by an individual that had served on a previous grand jury within 2 years. App. 2, Indictment at p.2; App. 169-170, Stmt. of Undisputed
Fact at p.2-3. As described above, this is a clear violation of T.C.A. §22-2-314. Also as described above, Thompson and Nelson and Raybin have been overridden by T.C.A. §22-2-314.
The trial court also orally justified its denial of Commander Fitzpatrick’s motion to dismiss by stating that grand jury foremen are not members of the grand jury. However, this conclusion runs contrary to the clear indication of Tennessee Rules of Criminal Procedure. Rule
6(g)(2), “Qualifications of Foreperson ,” states
“The foreperson shall possess all the qualifications of a juror.” For this reason alone, even if a foreperson is not a member of the jury,
15

TRCrP 6(g)(2) indicates that foremen are still subject to the qualifications of Title 22, including
T.C.A. §22-2-314.
Also, Tennessee Rules of Criminal Procedure 6(g)(4)(D), “Duties of Foreperson,” states that forepersons “vote with the grand jury, which vote counts toward the twelve necessary for the return of an indictment.” If foremen were not considered members of the grand jury, then their vote couldn’t be considered as part of the 12 necessary for an indictment under Tennessee statute, yet it is.
The conclusion that foremen are considered members of the jury is also supported by the fact that indictments must be signed by the foreman. See T.C.A. §40-13-105.
Also, if foremen were not considered members of the grand jury Tennessee Rules of
Criminal Procedure 6(c)(1)(C), entitled “Disqualification of Grand Juror for Interest,” would not apply to grand jury foremen. That rule disqualifies members of the grand jury for interest, stating
“No member of the grand jury shall be present during–or take part in–the consideration of a charge or the deliberation of the other grand jurors.” If the foreman were not considered a member of the jury, and were not restricted just as other members of the jury, then this provision would not apply to foremen. Yet it would make no sense to have a rule that disqualifies individual members for bias from taking part in any deliberations, yet allow the foreman to be exempt from the rule, because foremen control and direct the “deliberation of the other grand jurors.” See TRCrP 6(c)(1)(C).
For all these reasons, grand jury foremen are “jurors,” subject to all rules that apply to any grand jurors. The opposite conclusion runs contrary to explicit law, would negate the purpose of many protections intended by existing law, and would simply make no sense.
Still, regardless of whether foremen are considered members of the grand jury, because
Title 22 applies to grand juries and because TRCrP 6(g)(2) explicitly states that all foremen must
16

possess all of the qualifications of other jurors, it is clear that T.C.A. §22-2-314 prohibits grand jury foremen from serving “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.” T.C.A. §22-2-314.
1
In light of this recent statutory authority, the grand jury foreman that signed the indictment against Commander Fitzpatrick was statutorily prohibited from serving on the grand jury at the time she signed the indictment. Therefore, the indictment must be dismissed.
Conclusion
For the reasons set forth above the Appellant respectfully requests that this Court dismiss the indictment against Commander Fitzpatrick, or in the alternative, reverse the Monroe County
Criminal Court’s denial of Defendant Fitzpatrick’s motion for a new trial and order that a new trial be granted.
Dated: 23 th
Day of Tamuz, Year of our Messiah 2013 (a.k.a. July 1, 2013).
_______________________
Van R. Irion,
Attorney for Plaintiffs-Appellees
9040 Executive Park Drive, Ste. 200
Knoxville, TN 37923
(865) 809-1505
1 Tennessee Rules of Criminal Procedure 6(g)(3), 6(l)(1), and 6(l)(2) appear to contradict the defendant’s assertion on the applicability of T.C.A. §22-2-314 to grand jury foremen. However, it is well established that rules of procedure are subordinate to later acts of the legislature. To the degree that any rule of procedure runs contrary to later-passed statutes, said rule of procedure is void. The defendant respectfully asserts that T.C.A. §22-2-314 made
TRCrP 6(g)(3), 6(l)(1), and 6(l)(2) contrary to state law as of January 1, 2009, and void as of January 1, 2009.
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CERTIFICATE OF SERVICE
It is hereby certified that the undersigned has served a true and correct copy of the foregoing “Appellant’s Brief” has been served upon attorney for Appellee, Assistant District
Attorney for the 10 th District, Paul Rush, by placing a copy in the U.S. Mail, 1 st Class postage pre-paid, addressed to 403 Tellico Street, Madisonville, TN 37354 .
__________________
Van R. Irion,
Attorney for Plaintiffs-Appellees
9040 Executive Park Drive, Ste. 200
Knoxville, TN 37923
(865) 809-1505
18