By TRAVIS LOLLER
Associated Press
NASHVILLE, Tenn. (AP) - Nashville's top prosecutor said Thursday he is expecting a flood of
appeals of criminal cases after it was discovered that a grand jury
foreman was a felon and ineligible for jury service under state law.
The Tennessee grand jury led by Eugene Grayer
returned 919 indictments during its three-month term between July and
September of 2011.
Davidson County District Attorney General Torry Johnson said at a Thursday news conference that
About 800 of those cases have been resolved, mostly
on guilty pleas, Davidson County District Attorney General Torry
Johnson said at a news conference Thursday. About 90 cases still are
pending.
Since the discovery two weeks ago of Grayer's
35-year-old conviction arising from a theft scheme, prosecutors have
been working to repair the pending cases - either by getting new
indictments from the current grand jury or issuing a criminal
information, which bypasses the grand jury process but requires the
consent of the defendant.
Of the 800-or-so other cases, Johnson said, "The
worst-case scenario would be that all the cases and defendants are sent
back to court and their cases are redone. ...In the best-case scenario,
that would only happen in cases where the defendant could show he was
somehow prejudiced by the fact that Mr. Grayer was on the grand jury,
something I think would be exceedingly difficult."
Criminal defense attorney David Raybin said he has
several clients who were indicted by the grand jury on which Grayer
served, but he does not expect to appeal any of those cases.
That's because those clients pleaded guilty,
waiving their rights to challenge any defects in the grand jury when
they pleaded, Raybin said.
"However, those cases where there was a jury trial will probably have to be retried," he said.
Raybin said his reading of the case law is that
having a felon on a grand jury, particularly as the foreman, makes the
indictments questionable in cases where the defendant pleaded not
guilty.
According to Johnson, Grayer's felony went
unnoticed because in Tennessee grand jury foremen are not screened for
eligibility the way other grand jurors and trial court jurors are.
Regular jurors are selected randomly from eligible members of the public
and compelled to serve, but grand jury foremen are appointed by
criminal court judges and can chose whether to serve.
Johnson said his office will start running background checks on grand jury foremen as well.
Grayer was appointed by Judge Monte Watkins, who
declined to comment on the situation. Johnson said he did not know how
Watkins came to select Grayer.
"Typically judges appoint someone they are acquainted with," he said. "They look for a responsible member of the community."
Johnson said he did not know whether the judge
asked Grayer if he was a felon. The prosecutor said Watkins was "very
surprised" when he was told about it by the district attorney's office.
According to court records, Grayer was convicted in
1978 of a charge called "attempt to commit a felony" for his role in a
scheme to steal items shipped by UPS, which was his employer. Grayer was
sentenced to five years on probation.
In 2010, a year before serving on the grand jury,
Grayer applied for a handgun permit. The state Department of Safety
denied the application, citing Grayer's conviction, and sent a copy of
the denial to the district attorney's office as a matter of routine.
Two weeks ago, a clerk came across Grayer's name
while filing new handgun permit denials and remembered him from his time
on the grand jury, Johnson said. That clerk alerted prosecutors.
Johnson said it was "happenstance" that the clerk made the discovery.
A call to the phone number listed on Grayer's
handgun carry permit application rang unanswered, as did a call to a
number listed for him in a phone directory.
In the summer 2011 grand jury report written at the
end of its three-month term, Grayer's fellow jurors praised him. They
wrote that Grayer's "detailed questions to presenters, attention to
detail of documents, outstanding guidance to his fellow Jurors, his
insight of the operations and policies of Law enforcement and criminal
justice systems was outstanding."
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District Attorney Torry Johnson III holds a news conference on the matter Jan. 31, 2013.
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