published Thursday, February 25th, 2010

Judge shopping placed on fast track


by Monica Mercer
Audio clip

Jerry Summers

Hamilton County Special Criminal Court Judge Jon Kerry Blackwood said Wednesday that Tennessee needs to "develop a uniform body of law with regard to the judge-shopping issue."

In making the statement, Judge Blackwood granted a local defense attorney permission to go straight to the Tennessee Court of Criminal Appeals to appeal the judge's earlier decision in a case that involves allegations of judge shopping.

In January, Judge Blackwood refused to dismiss a fairly routine boating-under-the-influence case that now has developed into a full-scale assault on the Tennessee Wildlife Resources Agency, bringing out assertions that the agency judge shops when it brings cases to Hamilton County General Sessions Court.

Judge Blackwood's permission for an "interlocutory appeal" to the Court of Criminal Appeals is a rarity and usually granted only to prevent "needless, expensive and protracted" litigation, according to state rules of court procedure.

The Court of Criminal Appeals in Knoxville normally will not hear a defendant's arguments unless all other avenues at the trial level have been exhausted.

It is not yet known whether the court will agree to hear the boating-under-the-influence case.

During a Jan. 7 hearing in front of Judge Blackwood, defense attorney Jerry Summers argued that the boating-under-the-influence charge against Gary Wayne McCullough should be dismissed in light of evidence that TWRA's local officers pick and choose which General Sessions Court judges preside over their cases.

Evidence came out at the hearing that General Sessions Judge Bob Moon, an avid hunter who has a reputation among TWRA officers for knowing their laws well, has heard the overwhelming majority of the agency's cases over the past several years.

"(Judge shopping) makes the idea in the public clear that they may not get a fair shot," Mr. Summers said in January.

Judge Blackwood agreed, stating in January that there is an "obvious prejudice" that judge shopping has on the public confidence in the judiciary.

But he stopped short of dismissing the case and instead sent it back to General Sessions Court to, in effect, be litigated all over again in front of a different judge.

In his ruling Wednesday, Judge Blackwood said he had no idea whether the Court of Criminal Appeals would uphold his decision, but that the higher court's opinion might be necessary for the "administration of justice" because of how judge shopping negatively can affect the integrity of the judicial system.

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