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.
About 800 of those cases had been resolved, mostly with 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."
Johnson said ultimately state appeals courts will have to decide whether the indictments are valid because of Grayer's conviction.
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.
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.
"However, those cases where there was a jury trial will probably have to be retried," the attorney 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.
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."