Defense wants to suppress evidence in Woodmore Elementary School bus crash case

A defense attorney for the 25-year-old bus driver accused of killing six children in a crash last year on Talley Road wants to suppress several pieces of potential evidence at Johnthony Walker's upcoming criminal trial.

Those include any jailhouse phone calls Walker made, any mention of two prior vehicular accidents and driving complaints, any autopsy photos of the dead or injured children, and any of the 1,300 pages of cellular data that prosecutors collected from his phone.

"Defendant takes the position that all such testimony of conduct prior to approximately 3:20 p.m. on Nov. 21, 2016, is not relevant," attorney Amanda Dunn wrote in one of the four motions she filed Tuesday.

On that date, prosecutors say, Walker was traveling about 20 mph over the speed limit and never braked while he overcorrected the course of bus 366 on Talley Road in Brainerd. Ultimately, the bus wrapped around a walnut tree, and the impact killed six Woodmore Elementary School children and injured others.

Walker faces 34 charges in connection with the crash, including six counts of vehicular homicide, seven counts of aggravated assault and 18 counts of reckless aggravated assault. He is set for trial Feb. 27 in Hamilton County Criminal Court and will have an out-of-town jury hear his case.

A spokeswoman said Hamilton County District Attorney General Neal Pinkston doesn't plan to file any written responses. Attorneys could address Dunn's motions at Walker's court date this Tuesday.

Dunn's requests aren't too unusual. Prosecutors often try to show autopsy photos to jurors to stress the impact of a crime, and defense attorneys often try to suppress them. Some of the state's assault charges are based on the children's injuries - so photos could help prove their case.

But photos also could inflame the jury's passions and hurt Walker's chances of a fair trial, Dunn said.

"Certainly there is nothing to be added to the trial of this matter by the use of autopsy photos, medical examiner's photographs or injuries, or even photographs of injuries for the surviving victims whose medical records are readily available to the court and to the jury," Dunn wrote.

Walker also faces a charge of use of a portable electronic device on a school bus, which could explain why prosecutors collected 1,300 pages of cellular data from his phone, as Dunn wrote in her motion. Walker had a cellphone out in the bus before the crash, according to court testimony. But not many details have surfaced about when or how Walker used it.

Dunn said nothing on Walker's phone before Nov. 21 is relevant, and that prosecutors downloaded stuff "which significantly predate[s] the accident in question."

One of her requests drew concern from a media law attorney.

Dunn said WSMV Channel 4, a TV station in Nashville, made a public records request for Walker's jailhouse phone calls between Nov. 21 and Oct. 3 - but she doesn't want the audio released.

Dunn said those phone calls are Walker's recorded statements and therefore belong in the state's investigative file. For her rationale, Dunn cited a procedural rule that says only two parties have access to those records in a criminal case: The state and the defendant.

Dunn has used that line of thinking before in Circuit Court, where Walker and his employer, Durham School Services, a corporation that provides much of the county's busing, are fighting several civil lawsuits.

And it's worked.

Because of the protective orders, plaintiffs' attorneys for the crash victims can't view any evidence prosecutors intend to use in their criminal case. The idea is to protect Walker's constitutional right against self-incrimination, but plaintiffs' attorneys have argued that it hampers their ability to make a negligence case due to limited access to evidence.

Robb Harvey, an attorney for the Nashville station, called Dunn's request to have a judge stop a public records request a "prior restraint." That's where government prohibits speech or expression before it can take place.

"We believe that that motion would constitute a prior restraint on news gathering and publication," Harvey said Wednesday, "and that the Criminal Court has no jurisdiction to decide what is essentially a public records request."

Dunn's last motion is to suppress any mention of Walker's driving history as well as complaints about his speeding.

Walker had two collisions in August and September, according to court records. Plus, a witness identified only as J.P. told police Walker was "traveling at a high rate of speed as [the bus] made a left-hand turn near Montview Drive" about 50 minutes before the crash.

"Defendant says this statement is not relevant," Dunn wrote, because it was before the crash. Furthermore, Dunn wrote, "it appears the bus was carrying students from a different school at the time of this alleged speeding event."

Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow him on Twitter @zackpeterson918.