Chattanooga defense attorney Jerry Summers said he plans to appeal to the Tennessee Supreme Court after an appeals court said his client's rights weren't violated by judge-shopping.
The Tennessee Court of Criminal Appeals this week reinstated an indictment for boating under the influence against Gary Wayne McCullough, a client of Summers'.
In January 2010, Special Judge Jon Kerry Blackwood ruled that the Tennessee Wildlife Resources Agency had steered McCullough's case, along with many others, to Hamilton County General Sessions Court Judges Bob Moon and David Bales to gain an advantage in how the wildlife cases were decided.
Blackwood sent the case back to Sessions Court for a new preliminary hearing.
Summers argued to the appeals court that the charges should be dismissed, claiming his client's due process rights were violated by TWRA officers' judge-shopping.
The appeals court disagreed, saying in its Tuesday opinion that the trial court records do not support that McCullough "suffered a violation of due process by the TWRA's practice of judge-shopping in citation cases."
The appeals court also found no evidence that either Moon or Bales "committed any violations of the code of judicial conduct or were otherwise biased in their disposition of TWRA cases."
In an email, Moon praised the appeals court's "excellent and well reasoned opinion."
"I am grateful that my finding of probable cause was affirmed, that the court determined that I in no way participated in the judge- shopping of the TWRA, and that my actions did not violate the Code of Judicial Conduct," Moon wrote.
Bales could not be reached for comment.
Reached by phone Thursday, Summers said he "respectfully differ[ed] with the Court of Criminal Appeals opinion" and plans to file an appeal to the Tennessee Supreme Court. He said he has two goals for the appeal.
"First to try and get the charges dismissed against Mr. McCullough, and we were unsuccessful on that," he said.
"The second reason was to expose the egregious practice of the TWRA picking the forum to try their cases," he said. "Hopefully that will improve the administration of justice in Hamilton County."
During trial, former judges and clerks testified that cases were randomly assigned by computer to Sessions Court judges, but that between 85 and 95 percent of the TWRA cases went to Moon or Bales.
Testimony also revealed that TWRA agents requested certain dates for hearings, knowing that the cases would be heard by either Moon or Bales.
The revelation that agents were choosing certain courts to try their cases gave an "appearance of impropriety" and influenced whether citizens thought they could get a fair trial, Summers said.