published Monday, November 16th, 2009

'Judge shopping' case to be heard today


by Monica Mercer

A Hamilton County Criminal Court judge is expected to decide today whether a boating-under-the-influence case will be dismissed based on allegations of "judge shopping."

In the case, the Tennessee Wildlife Resources Agency is accused of regularly judge shopping to get such cases assigned to certain General Sessions Court judges.

Local defense attorney Jerry Summers said he will present affidavits and other documents, as well as subpoenaed testimony from the Hamilton County Criminal Court clerk and a former sessions judge to prove his case before Criminal Court Judge Don Poole.

The issue is connected to the case of Gary Wayne McCullough, who is charged with drug possession and boating under the influence. Mr. Summers will ask Judge Poole to dismiss the charges today.

Former General Sessions Judge O. Michael Carter has been asked to attend the hearing and provide the court with "any orders or resolutions and judicial agreements that authorized any judge to deviate from the (normal random case-assigning procedure) because of any expertise in a particular area of law," documents state.

The issue of picking and favoring judges surfaced over the summer when the son of Hamilton County Criminal Court Clerk Gwen Tidwell was allowed to resolve his misdemeanor criminal impersonation case behind closed doors rather than in open court. Ms. Tidwell will be a witness at today's hearing.

General Sessions Judge Ronald Durby allowed Lucas Tidwell to resolve the case against him in the judge's office, setting off questions as to how judges are assigned to cases.

The process is supposed to be random with the help of a computer system. Hamilton County Chief Magistrate Larry Ables, who sets bonds for jailed defendants and assigns criminal cases to the different general sessions court divisions, told the Chattanooga Times Free Press in August that he "never overrides that system."

Mr. Ables is another witness expected to testify in Judge Poole's court today. Among several others subpoenaed is Bart McKinney, an information technology employee with Hamilton County.

Mr. McKinney has been asked to provide e-mail documentation and other correspondence from individuals requesting that certain cases be heard by certain judges.

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