A Hamilton County judge is considering whether public defenders who want to get truck driver Ben Brewer a new trial can subpoena the Tennessee Bureau of Investigation for any conversations it had with local prosecutors about a “contaminated” blood sample.
During a brief hearing Monday, Criminal Court Judge Don Poole wanted to know how much Brewer’s defenders knew about the alleged contamination before the Kentucky trucker’s January trial for a 2015 wreck on Interstate 75 that killed six. If Brewer’s defenders knew enough about it before trial, then their chances of getting him a new proceeding due to concealed evidence are lower.
“We knew there was potentially [a solvent] in the blood sample,” Assistant Public Defender Jay Underwood admitted Monday. “What is that? A component of diesel fuel. We’re representing a diesel trucker. We knew there were those kinds of issues. We didn’t know the TBI put it there.”
Underwood said defenders learned the TBI added a solvent when a forensic scientist testified about it at trial. That’s why Underwood said he subpoeaned the TBI for any possible communications it had with District Attorney General Neal Pinkston’s office. If there’s anything that shows prosecutors knew about the contamination and didn’t share possibly helpful information, it could help Brewer’s defenders in their bid for a new trial.
But Pinkston wants to squash the subpoena and says any communications are considered work product that shouldn’t be released. In a motion last month, Pinkston said his office has provided Brewer’s defense with everything to which it is entitled in a criminal case. The TBI also previously said any solvents or chemicals it uses to isolate substances in blood samples do not alter the test results.
Blood results have been a regularly litigated issue in Brewer’s case.
Prosecutors say Brewer had methamphetamine in his system when he crashed into slowed traffic on I-75 near the Ooltewah exit on June 25, 2015, creating 453 feet of carnage that killed six people, including nearly an entire family, and injured several others. For proof, they relied on a test of Brewer’s blood and on-scene officers who said Brewer never hit the brakes. At the end of trial, a jury convicted Brewer of six counts of vehicular homicide by way of intoxication, among other charges, and Poole sentenced him to 55 years in the Tennessee Department of Correction in March.
But defenders said the state couldn’t prove Brewer was intoxicated at the time of the crash, an important component of vehicular homicide by way of intoxication, a Class B felony. In court Monday, Underwood noted that Pinkston’s office previously authorized a second testing of Brewer’s blood sometime after the 2015 crash but never told them. Defenders said they discovered that test, which showed different, reduced levels of methamphetamine in Brewer’s blood, right before his June 2017 trial date. Poole said prosecutors didn’t “willfully” conceal that evidence but rescheduled Brewer’s trial to give defenders more time to investigate.
Underwood emphasized Monday he wasn’t accusing the state of anything nefarious but said he had reasonable grounds to investigate. Poole said he’ll take the matter under advisement and issue an opinion before the next court date for Brewer’s motion for new trial on Oct. 1.
Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow him on Twitter @zackpeterson918.