published Thursday, August 16th, 2012

Pharmacist says traffic stop was drug task force retaliation

  • Dash-cam footage of Birdwell traffic stop
    This recording by the Drug Task Force in-car camera should have an audio track, but it was disabled, court records allege. If the audio worked, it would reveal what agent David Jones and driver Mike Birdwell said during the stop, as well as Jones' side of a series of telephone calls with another agent who was in touch with DTF Director Mike Hall. Jones pulled Birdwell over on Interstate 75 for reckless driving and following too closely. Jones testified at Birdwell's trial that the pharmacist was in a "road rage" and that he was worried about his safety.

Mike Birdwell believes it was no coincidence that he was pulled over on Interstate 75 by a 10th District Drug Task Force agent soon after talking to the TBI about then-task force boss Mike Hall.

More than two years after the traffic stop and almost a year after he went to a jury trial over the resulting ticket, Birdwell is still furious at what he says was a set-up.

“I’m pretty angry and upset. I feel like my rights were violated,” said Birdwell, who holds a doctor of pharmacology degree and is a clinical consultant for health care institutions.

“They brought me to trial not only with a lack of proof [against me], but with proof of perjured testimony,” he said.

Dallas Scott, the drug task force prosecutor who handled the case, called Birdwell’s allegation “ridiculous” and “out in left field.”

A Bradley County judge wouldn’t let Birdwell tell the jury why he felt he was a target, calling his theory “speculation” with no evidence to back it up. But telephone records add information the jury didn’t get to hear.

In June 2010, Birdwell said, he had been asked by Cleveland Police Detective Duff Brumley to check Hall’s record of narcotic prescription purchases in a state database.

In court depositions, Birdwell said he didn’t find any reason for concern, and that’s what he told Tennessee Bureau of Investigation Agent Jason Legg, who was looking into the drug-use allegations.

But 10th Judicial District Attorney General Steve Bebb reportedly was furious that someone was checking up on Hall, his handpicked task force director and friend. Though Brumley said in court records and internal affairs files that he had acted on TBI advice, he said Bebb had threatened to indict him for violating Hall’s privacy and misusing the database.

Then-drug task force Agent Eric Allman, among those who first raised concerns on whether Hall was using drugs, said in court testimony that he also spoke to the TBI about Hall. Afterward, he said, he was called on the carpet and grilled by Assistant District Attorney Stephen Hatchett.

Testifying in late 2011 in Brumley’s lawsuit over his firing, Allman said Hatchett wanted to know “anything I had said about the (drug task force) and I think maybe, specifically, to Duff Brumley and/or Judge (Amy) Reedy, and the TBI for just anything in general I’d said about Mike Hall.”

According to a court transcript, Brumley’s attorney, Jerry Tidwell, asked about the tenor of the meeting.

Allman: “It was pretty rough. He was pretty hostile.”

Tidwell: “Were you intimidated by that?”

Allman: “I suppose anytime an assistant district attorney is on you like that, it’s intimidating. … I think he was angry that I wasn’t — that I had said something to somebody.”

Allman testified that he soon quit the drug task force because the work atmosphere had become “particularly hostile.”

Asked in a July interview about allegations that he intimidated or retaliated against anyone over the Hall investigation, Hatchett said such talk “irritates me beyond measure.”

“Mike Hall was accused of using prescription drugs — abusing prescription drugs ... and there was no proof. None. We never found it.”

In fact, no further action was taken after the records check and Hall — who resigned two months later from the task force — was never formally accused of any drug offense.

THE HIGHWAY STOP

The way Birdwell tells the story, on July 21, 2010, he drove his silver-gray Toyota Corolla onto southbound I-75 at exit 33 from his home in Charleston, on his way to Chattanooga.

He saw a car pull out of the narrow, unpaved median cut-through just ahead on his left. He said the car pulled into the left lane and begin pacing a tractor-trailer at 66 mph.

“I knew it was (drug task force). They’re out there all the time,” Birdwell said.

He was directly behind the drug task force car, which hung in the left lane in the truck’s blind spot for nearly six miles, Birdwell said.

The speed limit on that stretch of I-75 is 70, but most traffic moves faster. Birdwell said a line of cars and trucks soon was nose to tail in both lanes behind him and the truck, with impatient drivers scrambling to find a way past the blockage.

Near exit 25, Birdwell says, he gave two quick taps on the horn and made a “move over” gesture to the driver ahead.

The lead car pulled over behind the truck, Birdwell said, so he speeded up to 70 and passed. Immediately, the other driver pulled back into the left lane, closed up on his car and hit the blue lights, he said.

Birdwell pulled over just past the off-ramp at exit 25, where drug task force Agent David Jones cited him for following too closely and reckless driving.

Most people would have paid the ticket and fumed. Birdwell decided to fight.

In a sworn statement in Brumley’s case, he said, “To say that I did it, what kind of message am I sending to my kids? If I roll over now and just walk away and don’t do the right thing … for me to pay that ticket is to say I did something wrong, and I did nothing wrong.”

WHAT THE JURY HEARD

When the case went to court in May 2011, Jones’ testimony under cross-examination contradicted Birdwell’s account in several respects, starting with how long he drove beside the tractor-trailer at well under the speed limit.

It also disagreed with video evidence from the stop.

Jones testified he pulled on at the 29-mile marker cut-through and took a mile or so to catch the truck, so he estimated he only paced the vehicle for “approximately a mile.”

Asked about the exact spot he had pulled onto the highway, Jones said, “We call it the 29 cut-through, but it’s actually about the 30 or 31 mile marker,” according to a trial transcript.

In fact, there is a separate, paved cut-through at mile 29 and the narrower cut-through at about mile 31.5.

The way Jones told it in court, Birdwell roared up behind him at “probably a speed of 85 to 90 miles an hour,” pulled to “within about four feet from my bumper” and began honking the horn.

Jones said he pulled over into the right lane. Birdwell went past him, then jerked over right in front of his car and braked, Jones said. That forced him to brake as well, Jones said.

“That in my mind made me feel like Mr. Birdwell was not only being an unsafe driver to me, but the other vehicles on the roadway at the time,” he testified.

When he activated his blue lights and dash camera, he said, Birdwell jammed on his brakes to pull over, stopping so abruptly that Jones’ car nearly hit his.

Birdwell’s lawyer, Chattanooga attorney Ben McGowan, questioned Jones closely about why he didn’t activate his dash camera before he flipped on his blue lights.

The cameras are factory preset to operate on a continuous 30-second loop, which gives the officer a chance to capture the illegal behavior leading to the stop.

But that feature is disabled in drug task force cars, court documents state. It’s not clear why the task force turned off the factory preset, but its car cameras only come on when the officer flips a switch or activates his blue lights.

So the video from Jones’ dash cam doesn’t show any slamming brakes or sudden stops. It only shows Birdwell’s car pulling quickly but smoothly off to the side of the road with Jones behind him.

Though the officer testified he was only about two car lengths behind Birdwell and that he had to slam on his brakes to avoid a collision, the video seems to show a greater distance and no sudden front-end dip that would indicate Jones was braking hard.

Then Jones testified that Birdwell got out of the Corolla with his right hand behind his back.

“So, yes, I was ordering, ‘Let me see your hands. Get back, get back in your vehicle,’ yes, sir,” Jones testified on cross examination.

McGowan: “Was he moving his arms around or have a red face, screaming?”

Jones: “He was apparently aggravated, yes, sir.”

McGowan: “He was aggravated. Was he screaming? You indicated in your report he was screaming.”

Jones: “Yes, sir. … It looks like he’s screaming in that point to me.”

The video doesn’t show Birdwell waving his arms or screaming. It shows him jump quickly out of the car, grab for his wallet and hold it out toward Jones while he fishes inside. Then he turns on his heel, walks back to his car and gets in.

Jones testified he felt Birdwell might be a danger. But under questioning by McGowan, he said he didn’t call for backup or unholster his weapon. And the video shows Jones walking apparently casually to the passenger side of Birdwell’s car and leaning in the window.

“At that point, I don’t feel that there’s a high risk, you know,” Jones testified. “Once I see that it’s his wallet that he was going for and that he was trying, trying to present to me, my level of awareness, you know, for the safety issues goes down, because I do see that it’s not a gun or a knife.”

EXCLUDED EVIDENCE

Though the dash camera system also records audio, there’s no soundtrack on the Birdwell video.

If there had been, it might have been very revealing.

Jones testified that he didn’t know who Birdwell was or that the pharmacist had spoken to the TBI about Hall. But here’s what happened within moments of the stop, according to drug task force telephone records:

11:20 a.m. — Jones calls in traffic stop at mile marker 25.

11:24 a.m. — Drug task force Agent Toby Gregory calls Jones. The call lasts 2 minutes.

11:27 a.m. — Gregory calls task force Director Mike Hall for 2 minutes.

11:33 a.m. — Gregory calls Hall again for 3 minutes.

11:34 a.m. — Drug task force Agent Matt Bales calls Jones for 1 minute.

11:37 a.m. — Bales calls Jones again for 5 minutes.

11:37 a.m. — Traffic stop ends

There’s no way to know what was discussed during those calls, only who was making them.

The jury didn’t hear Birdwell’s theory of retaliation or the information from the telephone logs.

In a hearing outside the jury’s presence, McGowan tried to get Criminal Court Judge Carroll Ross to allow such evidence. He said Birdwell “has a right to establish motivation on the part of the accuser.”

But Scott argued that “the whole idea that the drug task force was out to get him for some reason is just pure speculation. ... There is no corroboration whatsoever.”

Ross agreed with Scott.

Without evidence, “I don’t see how there could be some conspiracy, ‘We’ll all wait on the interstate and when Dr. Birdwell drives by, we’ll all chase him around and charge him with some hyped-up kind of offense,’” Ross ruled.

The jury eventually found Birdwell guilty of following too closely and innocent of reckless driving. He since has paid the $100 traffic fine — plus, he said, $10,000 in legal fees.

That hasn’t soothed his anger over what he still insists was a deliberate ambush.

“I used to have faith in the justice system,” Birdwell said. “I got completely railroaded. I was blocked from even presenting my defense.”

Asked about the case in a July interview, Scott said, “his allegation that Dave Jones testified untruthfully is ridiculous. His allegation that I know Dave Jones was testifying untruthfully — I can’t even describe how ridiculous that allegation would be.”

He noted that Birdwell had a “very competent” attorney, that all the evidence was presented and that Birdwell testified.

Bebb who was present in the interview, interjected at that point, pounding the table with his fist and saying, “But a jury believed Dave Jones, not the Duff Brumley pimp.”

Contact staff writer Judy Walton at jwalton@timesfreepress.com or 423-757-6416. Subscribe to Judy on Facebook at Facebook.com/JudyCTFP.

about Judy Walton...

Judy Walton has worked 25 years at the Chattanooga Times and the Times Free Press as an editor and reporter focusing on government coverage and investigations. At various times she has been an assistant metro editor, region reporter and editor, county government reporter, government-beat team leader, features editor and page designer. Originally from California, Walton was brought up in a military family and attended a dozen schools across the country. She earned a journalism degree ...

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