Harris’ attorneys file amended motion regarding dismissal of charges
Feb 2, 2012 at 11:57 PM
ERWIN — Attorneys for Unicoi County Sheriff Kent Harris filed a motion in Unicoi County Criminal Court amending a previously filed motion seeking the dismissal of charges against their client.
The motion alleges that three citizens who were empaneled to serve as substitute grand jurors were not members of the regular grand jury panel.
According to the motion filed earlier this week, one regular member of the grand jury was not present when the panel convened on Oct. 14 for the specific purpose of considering Harris’ alleged criminal activity. That day, the grand jury returned 10 true bills charging Harris with 10 felonies, including six counts of official misconduct, and one count each of tampering with evidence, criminal simulation, theft over $1,000 and attempted aggravated assault.
The motion also states that after District Attorney General Tony Clark questioned grand jury members concerning their willingness or ability to serve on the panel in light of the case that was to be considered, two other members were dismissed.
“This questioning did not take place before the court, but rather within the grand jury room. Whether such questioning was sanctioned by the court is not known,” the motion states.
The motion also states it is not known if the dismissals were ordered by the court.
According to the motion, three other people were then empaneled and sworn in as grand jurors by the court. Within a few minutes, the Unicoi County Circuit Court clerk advised one of these jurors that her services would not be needed because Clark did not want her to serve, the motion states.
“She then left and was replaced with another citizen,” the motion states.
Like the original motion filed by Harris’ attorneys in October, the amended motion filed Tuesday cites 6(c) of the Tennessee Rules of Criminal Procedure, which governs the disqualifications of grand jurors for interest.
According to this rule, a grand jury member may be disqualified from consideration of a charge or deliberation of the other grand jurors if that member has been charged with an indictable offense, is a prosecutor, if the offense was committed against the member’s person or property, or if the member is related to the person charged or to the victim of the alleged crime by “blood or marriage within the sixth degree, computed by the civil law.”
The motion filed Tuesday also cites Rule 6(b) of the Tennessee Rules of Criminal Procedure. Under this rule, when any grand juror becomes unable to serve out the term or is excused on any ground, the court shall fill the vacancy from the original panel. If the court is unable to do so, it must fill the vacancy with qualified persons in accordance with Rule 6(b)(2), which deals with filling the vacancy of a grand jury foreman.
“When the foreperson of the grand jury is unable to serve or is relieved, the court shall appoint a new one ... until such time as the foreperson is able to serve or until expiration of his or her term,” Rule 6(b)(2) states.
The motion also cites Rule 6(c)(2), which addresses filling a vacancy created by temporary disqualification. The rule states that “when a grand juror is excluded because of interest and fewer than 12 grand jurors remain to investigate any matter, the court shall fill the vacancy according to Rule 6(b) only during such investigation.”
“The defendant alleges therefore that the dismissal of those grand jurors and their substitution with three citizens who were not members of the regular jury panel constitutes a legal defect in the institution of the prosecution,” the motion states.
In late October, Clark filed a response to the defense’s original motion. In it, he stated the grand jury did not meet for the sole purpose of considering Harris’ alleged activity, but it was instead a regularly scheduled meeting of the panel.
Clark also wrote in his response that he asked grand jurors if they had any family or working relationship with Harris or any other bias that would prevent them from being impartial in considering the evidence. Two grand jurors indicated an affirmative answer to this question and were allowed to leave, Clark’s response stated.
According to the response, one of the new grand jurors expressed a working relationship with the sheriff’s department and was dismissed, with the presiding judge being made aware of the situation.
In his response, Clark also states that Rule 6(c) is not all-inclusive and other reasons for grand juror dismissal exist. Clark’s response also called asked that the court deny the defense’s motion.
The defense’s amended motion and others filed in the case up to this point are expected to be considered when Harris makes his initial appearance in Criminal Court on Tuesday.