Ruling: TWRA 'engaged in judge shopping'

Ruling: TWRA 'engaged in judge shopping'

January 8th, 2010 by Pam Sohn in News

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.