published Saturday, January 9th, 2010

End the judge-shopping

Judge Jon Kerry Blackwood’s ruling Thursday that the Tennessee Wildlife Resource Agency “has engaged in judge shopping” in General Sessions Court here, apparently for years, is well founded and troubling. It suggests that the practice, involving more than 1,600 TWRA cases from 2004 through 2008 that were adjudicated by just two of the five Sessions Court judges, was flatly deliberate and, worse, that it was widely tolerated until it was finally forced onto the court agenda last fall by attorney Jerry Summers.

The broad pattern of judge-shopping to which he referred should never have occurred. It is unethical and taints the court. That it evidently became a deeply entrenched pattern should have been recognized and remedied by a range of people involved with the court. It also should provoke scrutiny by the state court system’s disciplinary committee and a review of TWRA case dispositions in other counties.

Gaming court schedules

A TWRA regional supervisor admitted to this newspaper last month that his officers have regularly tried, very successfully in Hamilton County, to schedule their cases here before judges who are educated in and known to enforce Tennessee Wildlife laws. Its police officers need a strict reprimand and a crash-course on judicial ethics. And judges and court-related personnel here and elsewhere who may have played court-docket ball with the TWRA merit a harsh censure.

Judge-shopping is the practice of gaming court scheduling to get cases heard by particular judges to influence the outcome. Judge Blackwood forthrightly pointed out the seriousness of the offense: It casts doubt on the due process of law afforded defendants in the cases, and creates “an appearance of impropriety in the judicial integrity of the court.”

Those are core judicial values that should be protected not just by judges, but also by prosecuting and defense attorneys who practice before the court, and by the clerks who assign cases to individual judges’ dockets.

Judicial integrity tainted

Judge Blackwood’s ruling came on a motion by Mr. Summers to have a TWRA charge of boating-under-theinfluence against his client dismissed due to the legal questions raised by the judge shopping issue. Referring to that motion after a daylong hearing, Judge Blackwood said: “I am suggesting this motion has raised some serious, serious questions about confidence in the judicial integrity of the court.”

The candor of Judge Blackwood, a senior judge brought from Townsend, Tenn., to Chattanooga to hear Mr. Summers’ petition after other local judges properly recused themselves, speaks volumes about a pattern that should have been recognized and remedied by Sessions Court judges Bob Moon and David Bales, among others.

Judge Moon, court records show, heard 72 percent of the TWRA’s cases here from 2004 through last year. His percentage had been higher — as high as 87 percent — but dropped after Judge Bales was elected to the bench in 2006 and also began hearing a disproportionate number of TWRA cases. Between them, the two judges, both avid hunters, have heard the vast majority of TWRA cases, while the other three Sessions Court judges heard relatively few since 2004.

In their testimony before Judge Blackwood, Judges Moon and Bales said they merely heard the hundreds of TWRA cases assigned to their dockets, but never questioned the assignment of so many TWRA cases. The cases were assigned by the Sessions Court clerk’s office, an arm of the Criminal Court clerk’s office headed by Gwen Tidwell. Judge Moon said he didn’t question his number of TWRA cases — and in fact was “shocked” to learn it — because they amounted to just 1 percent or 2 percent of his total cases.

An implausible scenario

That seems implausible. It’s more logical that the judges, as well as the court clerks who until a couple of weeks ago released their courtroom assignment schedules for judges to TWRA officers and others, should have known, and stopped, the TWRA’s recently admitted judge-shopping. Certainly TWRA officers could not shop for judges if court clerks or judges were not complicit by divulging their courtroom assignments to officers seeking appointments to present their cases.

Beyond that, the normal informal contact between office clerks, lawyers, prosecutors and the five Sessions Court judges themselves conceivably would have alerted the judges to the fact they were hearing the preponderance of TWRA cases. Prosecutors in the district attorney’s office, as well, should have long noted and questioned the imbalance of TWRA cases that originally went to Judge Moon, and that later was shared with Judge Bales.

Blind justice the goal

An affidavit referred to by Judge Blackwood noted that linkage. It claimed that the two judges spoke at a 2006 fund-raising event for the Cherokee chapter of the National Wild Turkey Federation. Judge Bales, then a candidate for the judgeship, told the hunters’ group that if elected he would vigorously enforce Tennessee Wildlife laws, the affidavit said. Both judges said they did not recall the statements.

The TWRA’s systematic judge shopping also occurred outside the computer-based random assignment of cases that normally prevails for all five judges. Had TWRA cases been assigned through that process, as they should have been, the abuse of the judicial system would not have occurred.

It should now be remedied, and the lessons taken to heart, here and elsewhere around the state. If law enforcement officers, court clerks, judges, lawyers and prosecutors are complicit in the steering of cases to selected judges because of their presumed attitudes about the law, justice cannot be blind and impartial. The public is entitled to better.

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