Hundreds of criminal court indictments in Nashville could now be in doubt. It’s come to light that a former grand jury foreman was a convicted felon, and couldn’t legally serve.
Grand juries decide which cases go to criminal court, and background checks are the rule for jurors. Not so, for grand jury foremen – they’re picked by judges. District Attorney Torry Johnson says he told Judge Monte Watkins a foreman he picked had a decades-old felony, for scheming to steal mail while working for UPS.
“Well I mean I think he was surprised, he was… very surprised.”
Grand juries run for three months, and the one in summer of 2011 sent out more than 900 indictments. Many have been resolved by now, but about 90 are still pending. Johnson says now defense lawyers may try to take back guilty pleas, ask for new trials, or avoid prison time. And it may end up in the state Supreme Court.
“I mean there are all kinds of things that – We’re only limited by the imagination of defense lawyers as to what they can claim.”
Johnson says a statute of limitations may also throw out some cases, but he couldn’t say how many – nor would he guess a potential cost for all the extra work now underway.
Johnson says his research hasn’t found any precedent hinting at what the revelation means in Tennessee, and he would argue it’s not fatal to the affected cases. His office is working on getting new indictments, or assembling criminal informations, which sometimes substitute for indictments.
“Worst-case scenario, I guess, would be that all of these cases and all of these defendants would have to be essentially brought back to court and their cases redone, either by way of criminal information, criminal indictment, etc. That could include trials and so forth. That’s the worst-case scenario; that is not what we believe would be necessary under the circumstances.
“Best-case scenario would be that it would only be in a case where a defendant could show that he was somehow prejudiced by the fact that Mr. (Eugene) Grayer, a convicted felon, was serving on the grand jury. I think it’s safe to say that would be exceedingly difficult for a defendant to do.”
Johnson emphasizes selecting the foreman was solely up to Judge Watkins, and in the future such appointments will be subject to background checks like regular jurors.
Grayer’s five years on probation came to light, Johnson says, after someone recognized his name among records of people denied a handgun carry permit. The district attorney doesn’t foresee a case against Grayer for serving on the grand jury, saying while the law disqualifies his service, it doesn’t criminalize it.
“Clearly, how ever this turns out, this is a bad situation. I don’t think there’s any question about it. But it happened, and we’re in the situation of saying we’ve got to make the best of a bad situation. Again, I think it’s still too early to say just how dramatic this is going to be. But it is something that we will – the courts, our office, the clerk’s office – will be generating some additional work and time as we try to sort through this.”
Whether – and perhaps, which – cases have to be redone will ultimately be up to the Court of Criminal Appeals, and possibly Tennessee’s Supreme Court. “And we won’t know until they rule,” Johnson says.