Gatlinburg Police Department Detective Rodney Burns is hoping to appeal a local judge's decision allowing Hamilton County District Attorney Neal Pinkston to prosecute him on a perjury charge related to the Ooltewah High School rape case.
Burns on Monday filed a request to appeal Hamilton County Criminal Court Judge Tom Greenholtz's ruling last month denying Burns' motion to disqualify Pinkston.
Allowing Pinkston to prosecute risks "irreparable injury" for Burns, the appeal request states. "Further, a new prosecutor may well choose not to prosecute this case, thus sparing [Burns] the agony of trial."
Burns faces charges of aggravated perjury, a Class D felony punishable by two to four years in prison, for his February testimony in Hamilton County Juvenile Court about the Ooltewah High School rape case.
Burns and his attorneys, Bryan Delius and Stephen Greer, argue Pinkston has a conflict of interest because Burns filed a $300,000 defamation lawsuit against him in March.
Pinkston said he asked the Tennessee Bureau of Investigation to investigate Burns for perjury in February, a month before Burns filed his lawsuit and three months before Burns was indicted.
Pinkston claims allowing defendants to file civil suits and removing prosecutors will cause major problems in criminal cases. He also alleged on multiple occasions people contacted him on Burns' behalf to say the civil suit would be dropped if he stopped prosecuting the case.
Burns' attorneys refuted that claim, saying a local attorney who may have told that to Pinkston was not acting on behalf of Burns' defense.
Greenholtz's ruling for Pinkston said filing of a civil claim to remove a prosecutor could be viewed as a litigation tactic. He also said suing a prosecutor "does not automatically create a disqualifying conflict of interest for a prosecutor."
In his request, Delius points to "legal ambiguity resulting from disparate appellate court opinions" as a reason to grant an appeal. He said an appeal would "help define whether appearance of impropriety remains a basis for disqualification of a prosecutor and the standards upon which appearance of impropriety is judged."
Delius states that leaving Pinkston on the case could mean if Burns is convicted, an appellate court could reverse it if it later decides Pinkston should have been disqualified.
"Thus the entire trial would be a waste of resources," Delius argues.
During Burns' testimony in February, he referred to the rape of the 15-year-old as "something stupid kids do." He said the perpetrators received no sexual gratification from the act, so he did not consider it a sexual assault.
The grand jury charged Burns with making two false statements under oath.
Burns testified in a previous hearing that "there was no rape or torture, no screams of anguish."
But he wrote in police reports someone told him "the victim yelled out in pain" and another person said "he could hear [the victim] yelling when they had attacked," according to the indictment.
Contact staff writer Kendi A. Rainwater at 423-757-6592 or firstname.lastname@example.org. Follow her on Twitter @kendi_and.