A claim of judge shopping

A claim of judge shopping

December 30th, 2009 in Opinion Times

"Judge-shopping'' may be officially frowned upon, but that doesn't mean it doesn't occur. Lawyers and officers who frequent the courthouse quickly get to know how judges tend to rule on certain types of cases, and some still try to game the system by getting particular cases before particular judges.

The practice of judge-shopping, however, is widely considered unethical because it may lead to preferential treatment. Thus it's surprising that an officer of the Tennessee Wildlife Resources Agency has candidly acknowledged that some TWRA officers have regularly and successfully sought for several years to get their citations for illegal hunting and fishing here heard first by one -- and more recently by two -- particular judges among the five judges in Sessions Court.

The apparent success of their efforts is reflected in some stunning statistics. Figures obtained by this newspaper's Monica Mercer from the Criminal Court Clerk's office show, for example, that Sessions Court Judge Bob Moon, an avid hunter who admittedly is favored by TWRA officers, heard 451 of 471 cases brought by TWRA officers to Sessions Court in 2004. By contrast, the other 20 cases were split among the other four Sessions Court judges.

Court records show similarly disproportionate distribution of cases in the years since. Judge Moon heard 86 percent of the TWRA's cases against Hamilton County residents in 2005. And from early 2006 to the end of 2008, he heard 51 percent of such cases, with most of the rest going to Sessions Court Judge David Bales, who had then assumed the bench and had begun handling some of the TWRA cases.

Judge Moon presided over 767 TWRA cases in the 2006-08 period, while Judge Bales, a close colleague, heard 389. That left roughly 350 TWRA cases to be heard by the other three judges.

These figures were obtained following a lawsuit filed by attorney Jerry Summers, who is seeking to have a TWRA charge against his client, Wayne McCullough, dismissed. Mr. McCullough has been charged with boating under the influence. Mr. Summers contends that judge-shopping by area TWRA officers here is rampant, that it deprives defendants of their constitutional right to a fair trail, and that it dictates dismissal of the charge against his client. His petition is scheduled to be heard in Criminal Court on Jan. 7.

Regardless of how that hearing turns out, Mr. Summers has stirred a controversy that merits judicial scrutiny. The weight of the statistics clearly suggest TWRA cases have been wrongly steered to Judge Moon and, more recently, to Judge Bales. The statements of TWRA's David Hicks, this region's supervising officer, reinforce that, as well.

Officer Hicks told this paper's court reporter, Ms. Mercer, that TWRA officers regularly seek to get their cases before certain judges because some other judges are not familiar enough with Tennessee's game and wildlife laws. That causes some not to take violations of wildlife resource laws seriously enough, he suggested, and forces the agency to spend time educating judges about relevant wildlife laws. The agency's director, Ed Carter, subsequently told Ms. Mercer that the agency has no judge-shopping policies, and that TWRA officers are not directed by him to seek particular judges for their cases.

The gap between the two officers' statements appears to suggest an unofficial pattern aimed, as Mr. Hicks noted, at finding judges who are known to enforce TWRA laws. Mr. Carter should put a stop to that.

The situation begs at least two questions. One is how the state may fairly help educate judges, if that truly is necessary, about the public values of TWRA laws. The other -- a more pointed judicial concern here -- is how TWRA officers secure the unpublished courtroom and trial schedules of the judges, who rotate among five numbered courtrooms every month.

Officers customarily are provided blocks of time in which to assign their cases, by reference to specific courtroom numbers. If TWRA officers know when particular judges will be in particular courts, and are thus able to assign their cases to land in specific judges' courtrooms, they must somehow learn the individual judges' courtroom schedules, or have that information given to them.

The scheduling of felony cases and cases involving arrests and indictments are now randomly assigned by computer to negate the possibility of judge shopping. That's not the process with Session Court judges for misdemeanor cases, but apparently it should be. No court officer, and no judge, should facilitate judge shopping by preferential assignment of cases, or disclosure of the judges' courtroom schedules. To do so breeds familiarity that hinders blind and impartial justice for all. That must not be tolerated.