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U.C. sheriff’s attorneys file new motion to dismiss case

November 8th, 2011 6:55 am by Brad Hicks

U.C. sheriff’s attorneys file new motion to dismiss case

ERWIN — Attorneys for Unicoi County Sheriff Kent Harris filed a second motion in Unicoi County Criminal Court on Monday afternoon requesting that charges against their client be dismissed, alleging that the presentment document returned by the grand jury charging Harris with 10 felonies was not signed by grand jury members when it was presented to the court.

The motion, filed and signed by Harris’ attorney Jim Bowman and also signed by cocounsel Stacy Street, requests the dismissal of charges against Harris due to what his attorneys refer to as a “defect in the institution of the prosecution” and “a defect in the presentment.”

On Oct. 14, a Unicoi County grand jury indicted Harris on 10 felony charges, which include 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 states that after the grand jury convened on that day to consider evidence concerning Harris’ alleged criminal activity, it delivered to the court a presentment document charging Harris with criminal conduct. The motion states this document was not signed by the grand jury foreman or any members of the grand jury when it was delivered to the court.

“At some point thereafter, but on October 14, 2011, the document was received by the clerk of the court and marked filed,” the motion states. “At some point after the grand jury was dismissed, the omission of the signatures was discovered and, presumably, at the direction of the court the grand jury members came back to court to sign the presentment.”

The grand jurors individually returned to court for the sole purpose of signing the presentment, but the grand jury was not reconvened for this purpose, according to the motion. The motion states that individual grand jurors signed the presentment as they arrived back at the Unicoi County Courthouse.

“At what point in time all twelve grand jurors and the grand jury foreman finally signed the purported presentment is not known,” the motion states.

Although the motion states that having all members of the grand jury individually sign the presentment is not required by the constitution or statute, it states that a presentment is to be signed by all members, citing an opinion from Stoots vs. The State of Tennessee. The motion also states that under TCA 40-35-105, the grand jury foreman is required to sign indictments.

The motion states that because the presentment was not signed when it was presented to the court, it is invalid and that “a pretrial motion to dismiss is the proper method to bring the issue before the court.”

Harris’ attorneys also assert that Rule 6(k)(1) of the Tennessee Rules of Criminal Procedure, which states that each member of a grand jury is to keep the grand jury’s proceedings and testimony given before it secret, was violated.

“When the document purporting to be a presentment was returned to the court, it was not signed as required by law. Its subsequent signing was contrary to the requirement that all proceedings of the grand jury are conducted in secret,” the motion states.

This most recent motion requesting the dismissal of Harris’ charges comes on the heels of several motions filed by Harris’ attorneys on Friday requesting that the prosecution disclose information on witnesses it intends to call in the case and any agreements that may have been entered between the prosecution and its witnesses. Harris’ attorneys are also requesting that they be provided with any statements made by Harris, records in custody or under control of the state, and any exculpatory evidence the prosecution may possess.

On Oct. 24, attorneys for Harris filed a motion requesting that the charges against their client be dismissed, alleging that District Attorney General Tony Clark interfered with the composition and independence of the grand jury. According to that motion, two grand jury members were dismissed after Clark questioned grand jurors on their willingness and ability to serve in light of the specific case to be considered, and a third was was dismissed after being told that Clark did not want her to serve.

In this motion, Harris’ attorneys cited Rule 6(c) of the Tennessee Rules of Criminal Procedure, which governs the disqualification of grand jurors for interest. Harris’ attorneys asserted that none of the excused grand jurors were dismissed for cause as provided by this rule.

The following day, Clark filed a response to this motion in which he requested that the court deny this motion to dismiss the charges. In his response, Clark said two of the dismissed grand jurors indicated that they may have a relationship with Harris or another bias that would prevent them from being impartial. The third dismissed grand jury was dismissed after expressing a working relationship with the Unicoi County Sheriff’s Department, according to Clark’s response.

Neither Bowman nor Clark could be reached Monday for comment. Harris is scheduled to make his initial appearance in Unicoi County Criminal Court on Nov. 22.

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