PDF: Attorney general response
The state attorney general's office has said it has "no objection" to a man bypassing local jurisdiction and appealing straight to the Tennessee Court of Criminal Appeals in a case involving allegations of "judge shopping" in Hamilton County General Sessions Court.
Getting face time in Tennessee's higher courts for such "interlocutory appeals" is rare, legal experts say, because case precedent has established that legal matters in general should be fully litigated at the local level before the appeals process kicks in.
It's why local defense attorney Jerry Summers, who represents defendant Gary Wayne McCullough, said the attorney general's "unusual" response makes him more hopeful the Court of Criminal Appeals will agree to hear his arguments.
"I've probably handled hundreds of interlocutory appeals over the years, and most of the responses from (the attorney general's office) have been that the application is frivolous and unfounded in the law and has no merit," Mr. Summers said Thursday. "This was a pleasant surprise."
Mr. Summers said he could not speculate whether the attorney general's response indicates a recognition of the seriousness of judge shopping, which the Tennessee Supreme Court deems unethical.
Mark Fulks, senior counsel with the attorney general's office, also declined Thursday to comment specifically on Mr. McCullough's case, confirming only that the office opposes interlocutory appeals in a "majority" of cases.
Since receiving the attorney general's response about two weeks ago, the Court of Criminal Appeals has not yet decided whether it will hear the case.
Mr. Summers claims that a local Criminal Court hearing in January should have led to the outright dismissal of Mr. McCullough's boating under the influence charge because of evidence showing that the Tennessee Wildlife Resources Agency regularly picks and chooses which general sessions judges hear its cases.
General Sessions Judge Bob Moon has heard 72 percent of the agency's cases in the last six years, records show. He has denied any knowledge of so-called judge shopping, but the TWRA previously told the Chattanooga Times Free Press that it seeks out judges across the state who are believed to have more knowledge than others about the agency's laws.
Special Judge Jon Kerry Blackwood ruled in January that the TWRA does indeed engage in judge shopping and noted how the practice raises "serious, serious questions" about confidence in judicial integrity.
But he also ruled the situation could be fixed by allowing a different General Sessions judge to hear Mr. McCullough's case.
The attorney general's office agrees with Judge Blackwood's ruling, despite its decision not to oppose the appeal to the Court of Criminal Appeals.
Mr. Summers wants to argue that the only remedy in order to fully protect Mr. McCullough's rights is to dismiss the charge.