published Friday, January 8th, 2010

Ruling: TWRA ‘engaged in judge shopping’

Audio clip

Jerry Summers

A special judge ruled Thursday that the Tennessee Wildlife Resources Agency has tried to gain an advantage in how wildlife cases are decided in Hamilton County.

“TWRA has engaged in judge shopping,” Special Judge Jon Kerry Blackwood said after hearing a full day of testimony in a criminal court hearing to determine whether the rights of a man charged with boating under the influence were violated.

Judge Blackwood said the Tennessee Wildlife Resources Agency’s actions cast doubt not just on the due process of law afforded defendants charged by the agency, but they also cast “an appearance of impropriety in the judicial integrity of the (Hamilton County General Sessions) court.”

“I am suggesting this motion has raised some serious, serious questions about confidence in the judicial integrity of the court,” said Judge Blackwood, a senior judge from Townsend, Tenn., who was appointed to the case after local judges recused themselves.

TWRA Executive Director Ed Carter said Thursday that he couldn’t comment on Judge Blackwood’s ruling until he learned more about its particulars.

“Even if it occurs, I can’t understand how that would have any impact on whether a person is guilty of boating under the influence,” he said.

Judge Bob Moon, who over the past six years has heard 72 percent of the resources agency cases in Hamilton County, testified that he heard only the cases assigned to him by the clerks and the court computer, which is intended to randomly assign cases to judges and avoid the issue of judge shopping.

Noting that the statistics shown by court records “shocked” him, he said, “I don’t know that it creates an appearance of impropriety, but it certainly creates the appearance that I’ve been getting the lion’s share of cases.”

Judge Moon reddened when Chattanooga attorney Jerry Summers, who filed the motion to examine the issue, asked why the judge never questioned why he received — though he knew he did receive — most of the TWRA court cases.

“You have to understand these are a small portion, maybe 1 or 2 percent, of my total cases,” Judge Moon said. “Maybe I should have caught this, but I never put emphasis on it.”

He said he would not be surprised that wildlife officers preferred him or General Sessions Judge David Bales to hear their cases. Both judges are hunters and have some expertise in wildlife law, he said.

Judge Bales, in testimony, also said he handled the cases assigned him by the clerks and computer.

But other court officials testified that the “random” assigning computer system can be manipulated by clerks or through the input given to it.

Former Hamilton County General Sessions Court Judge Mike Carter, who helped design the court’s random case assignment system, testified Thursday that one judge could not get a majority of Tennessee Wildlife cases if the system is allowed to operate correctly.

And Criminal Court Clerk Gwen Tidwell testified that, until recent weeks, the resources agency did not supply her office with officer work schedules — necessary input for the random assigning system, which works like a database to match cases, schedules and judges.

Instead, according to testimony from several officials and persons charged by Tennessee Wildlife agents, the agency assigns its own court dates apparently based on publicly available sessions judges’ schedules.

In his ruling, Judge Blackwood remanded Gary Wayne McCullough’s boating DUI case for a second preliminary hearing in front of a different judge.

Hamilton County District Attorney General Bill Cox argued that there is no evidence that Mr. McCullough was treated unfairly, but he said the case has pointed up a problem with court assignments that is “being fixed.”

An analysis of TWRA cases heard in Hamilton County shows that Judge Bales also began to pick up a disproportionate number of resources agency citations — 45 percent in 2006. In that same year, Judge Moon handled 50 percent of TWRA cases, down from 87 percent the year before.

If the cases were assigned randomly, the analyses states, each of the five sessions judges should hear about 20 percent of the TWRA citations.

Judge Blackwood, in his ruling, said he particularly was concerned with the questions of judicial conduct.

He cited an affidavit in the case indicating Judge Moon and Judge Bales each spoke while Judge Bales was campaigning in 2006 at a fundraising event for the Cherokee Chapter of the National Wild Turkey Federation. According to the affidavit, Judge Bales told the group that TWRA cases brought before him would be dealt with severely if he were elected.

“If that statement was made, it does create in a reasonable person’s mind that these judges might act impartially in a TWRA case,” he said. “We do not want our courts to become avenues for agencies to use or abuse us.”

In their testimonies, both judges said they didn’t recall that statement being made.

about Pam Sohn...

Pam Sohn has been reporting or editing Chattanooga news for 25 years. A Walden’s Ridge native, she began her journalism career with a 10-year stint at the Anniston (Ala.) Star. She came to the Chattanooga Times Free Press in 1999 after working at the Chattanooga Times for 14 years. She has been a city editor, Sunday editor, wire editor, projects team leader and assistant lifestyle editor. As a reporter, she also has covered the police, ...

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ermedic said...

a theif is a theif, I don't care if they are stealing a candy bar from a store or a deer from tennessee sportsmen. If a judge will not uphold the law and throw the book at a criminal, then they need not to set on the bench. Thank you TWRA for working for the sportsmen of the state who pay your wages. Just a note, TWRA doesn't recieve any tax money from the state of Tennessee. Their funds come from federal dollars supplied by excise taxes on sporting equipment, license fees and fines. It is good to have judges that understand this and throw the book at criminals. In some counties we don't have the luxery to have different judges and the criminals just get turned loose without any fines or loss of privileges.

January 8, 2010 at 11:13 a.m.
anonymight said...

We should probably just execute poachers. Maybe before the next judicial election we can find a candidate who will promise a firing squad with the poacher's own weapon if the TWRA alleges a violation. Heck why do we even elect judges? Ermedic and I can just go out into the woods with our guns and shoot all the poachers we find. Too funny.

An independent, neutral and detached judiciary is the cornerstone of a judicial system that has preserved our God given rights better than any other system in the history of mankind. If these judges, and I'm not saying they do, fashion their sentences to appease the passions of a particular audience, they should resign. Every case should stand and fall on its own merits and the public should have confidence that that is the case. If these judges are campaigning on the plank that they will favorably treat TWRA agents, the public is right to fear that they might not get a fair shake in their courtrooms.

January 8, 2010 at 12:49 p.m.
james276 said...

If you think that the defense attorney who started this does not "judge shop" on a regular basis you are blind. Both sides use the system to their advantage. Most "Judges" are elected and make rulings to maintain or get a vote. “independent, neutral and detached judiciary is the cornerstone of a judicial system that has preserved our God given rights better than any other ........." PLEASE!!! Look at how many criminals are walking around. The next time anyone here is in court look around and see how many people are there for the 5th or 6th drunk driving (Why do they even have a license). anonymight: it is amazing how you go from giving someone a penalty for commiting a crime to Ermidic insinuating killing the poachers. Maybe we should let the people in Knoxville off that murdered and raped that couple in case the prosecutor Judge shopped. Way to go at keeping America and its resources safe!

January 8, 2010 at 1:38 p.m.
Salsa said...

Lawyers only think judge shopping is bad when someone other than a lawyer does it. It is standard operating practice for them otherwise.

January 8, 2010 at 2:42 p.m.
anonymight said...

No one was let off. The case against the drunk boater is still pending. If the proof is there he should be punished to the extent allowed by law and funded by taxpayers. The reason there are so many criminals in court for repeat offenses is because your legislature would rather give your money to everything else except prison bed manufacturers.

You know, every once in a while the State, TWRA, FBI, etc. arrest innocent people by mistake. Upholding the protections our founding fathers and soldiers fought and died for doesn't create crime. Your unwillingness to elect people who will pass sentencing laws that incarcerate people does. Do you really think those 5th and 6th dui offenders have a license? There only reoffending because the legislature doesn't want to spend $40 a day to imprison them.

And now back up your rhetoric. Give me one example of how the defense attorney has judge shopped.

January 8, 2010 at 4:35 p.m.
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