The Tennessee Criminal Court of Appeals has denied Gatlinburg Police Department Det. Rodney Burns' request that it overturn a local judge's ruling, a development that allows Hamilton County District Attorney General Neal Pinkston to continue prosecuting the case.
Burns is the last adult facing charges in connection with the Ooltewah High School rape case. He filed an interlocutory appeal earlier this year, asking the higher court to reverse Hamilton County Criminal Court Judge Tom Greenholtz's decision allowing Pinkston to remain on the case.
Burns faces two counts of aggravated perjury in connection with his February 2016 testimony in the case. The offense is a class D felony that carries a sentence of between two and four years in prison. Burns' case is set for trial in June.
The Tennessee Court of Appeals states that Tennessee's Supreme Court has repeatedly said, "interlocutory appeals to review pretrial orders or rulings, i.e., those entered before a final judgment, are 'disfavored,' particularly in criminal cases."
The Court of Appeals' order also states Burns did not "establish a sufficient basis upon which to grant interlocutory review."
Burns' attorney, Bryan Delius, did not respond to a request for comment Tuesday and has not said if he plans to appeal the latest ruling to the Tennessee Supreme Court.
In July, Burns filed a motion asking that Pinkston be removed from prosecuting his case, claiming it was a conflict of interest because Burns had filed a $300,000 defamation lawsuit against Pinkston for comments he made to the media about the alleged perjury.
But Pinkston argued that he asked the TBI to investigate Burns a month before the civil lawsuit was filed. A series of problems will arise if defendants, such as Burns, are able to file civil lawsuits and have prosecutors removed from their cases, he previously said.
The TBI concluded in May that Burns gave untruthful testimony during the preliminary hearing of the three former Ooltewah High School employees charged with failing to report child sexual abuse last February. According to the May grand jury indictment, Burns "unlawfully and with intent to deceive" made two false statements under oath during that testimony.
In a hearing last month before Greenholtz, Delius argued that Burns' charges should be dismissed because Hamilton County Juvenile Court did not have jurisdiction to hold the preliminary hearing, arguing the proceedings should have taken place in Hamilton County General Sessions Court.
"The Juvenile Court is a court of exclusive jurisdiction for only those things the Legislature has given them authority over," Delius said. "The court did not have jurisdiction to try an adult criminal case."
Despite the charge of failure to report child sexual abuse being listed in the juvenile code section, the matter should have taken place in Criminal Court, he said.
Pinkston responded that the "murkiness or ambiguity" of the state's statutes dealing with reporting of child abuse and child sexual abuse made it appropriate for Hamilton County Juvenile Court Judge Rob Philyaw to hold the preliminary hearing.
Pinkston is expected to file a response to Delius in coming weeks.
Contact staff writer Kendi A. Rainwater at krain email@example.com or 423-757-6592. Follow her on Twitter @kendi_and.