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DAG files response to Harris motion

October 26th, 2011 12:02 am by Brad Hicks

DAG files response to Harris motion

ERWIN — On Monday, District Attorney General Tony Clark said his office intended to file a response to a motion filed in Unicoi County Criminal Court earlier in the day by legal counsel for Unicoi County Sheriff Kent Harris.
On Tuesday morning, Clark acted on those intentions and filed a six-page response in which he calls on the court to deny the motion requesting dismissal of Harris’ charges.
The motion filed Monday by Harris’ attorney Jim Bowman and signed by co-counsel Stacy Street alleges Clark interfered with the independence and composition of the county grand jury that returned 10 true bills charging Harris with 10 felonies.
Bowman’s motion alleges that when the grand jury convened on Oct. 14 to consider evidence regarding Harris’ alleged criminal activity, Clark questioned the jurors on their willingness or ability to serve on the panel in light of the specific case that was to be considered.
As a result of this questioning, two grand jury members were excused and three additional citizens were then impaneled as grand jurors, according to Bowman’s motion.
The motion says that within a few moments, one of these jurors was advised that her services would not be needed because Clark did not want her to serve and she was replaced with another citizen.
“To my knowledge, none of those jurors were legally disqualified,” Bowman said in a Tuesday phone interview.
In his motion, Bowman cites Rule 6(c) of the Tennessee Criminal Procedure, which governs the disqualification of grand jurors for interest. Harris’ legal counsel asserts that none of the grand jurors dismissed in the case were dismissed for cause as provided by this rule.
According to this rule, a grand jury member may be dismissed from considering a charge or deliberation of the other grand jurors if the member in question 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 defendant alleges therefore that the dismissal of those grand jurors and their substitution with others acceptable to the district attorney was not authorized by law and constituted an impermissible interference in the independence of the grand jury by the district attorney general,” Bowman’s motions states. “Such interference with the composition of the grand jury constitutes a legal defect in the institution of the prosecution.”
In a Tuesday phone interview, Clark said allegations of anything improper on his part are false and he denied allegations his actions allowed him to “handpick” the grand jury.
“In fact, my effort was to have a fair and impartial grand jury,” Clark said.
In his response, Clark sets out to clarify points from Bowman’s motion. First, Clark states the grand jury did not meet on Oct. 14 for the sole purpose of considering evidence regarding Harris’ alleged activity, but rather it was a regularly scheduled meeting of the panel.
Clark’s response also states 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.
The response said two members indicated an affirmative answer to this question.
“Without any further inquiry, those Grand Jurors were allowed to leave,” Clark’s response states. “Additional Grand Jurors were summoned by the Unicoi County Circuit Court Clerk and were empaneled.”
Clark’s response states that one of these new grand jurors expressed a working relationship with the Unicoi County Sheriff’s Department in regard to K-9 training. The juror was dismissed with the presiding judge being made aware of the situation, according to the response.
Clark cites several cases and TCA codes in his response and addresses Rule 6(c) of the Tennessee Criminal Procedure. Clark said Tuesday that while Rule 6(c) does govern the dismissal of jurors, the rule is not all-inclusive and other reasons for grand juror dismissal exist.
“By the terms of that rule, many people with prejudices for or against a person can sit on a jury,” the response states. “Neighbors, friends, colleagues, and any other sorts of persons are not prohibited from sitting on a grand jury by Rule 6(c). Nevertheless, those types of persons could have a difficult time rendering a decision that harms a person they know well. It is inconceivable that any appellate court in Tennessee would take issue with an inquiry beyond Rule 6(c) that is intended to insure that the grand jury in question can fairly decide a matter before it.”
Clark’s response concludes the same way it opens — requesting that the court deny the motion to dismiss Harris’ charges.
“The District Attorney General was not present either during the deliberation or the voting of the Grand Jury,” the response states. “The Presentment of 10 felony counts by the Unicoi County Grand Jury were the product of the Grand Jury’s determination, not by any undue influence of this District Attorney General.
“For this reason, this Honorable Court should deny the Defendant’s Motion.”
Harris is scheduled to make his initial appearance in Unicoi County Criminal Court on Nov. 22. Both Bowman and Clark said they do not anticipate that the judge overseeing the case will take up the matter of the motion and response prior to that date.

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