This is a developing story and was updated Aug. 31 at 11 p.m. with additional information.
A judge Thursday ruled against diversion for Johnthony Walker, saying the request for an alternative sentence is premature since the 25-year-old hasn't pleaded guilty to anything in connection with the Woodmore crash.
"Based upon the charges, he appears to be eligible," Hamilton County Criminal Court Judge Don Poole said, referring to Walker's 34 charges, the worst of which is vehicular homicide, a Class C felony. "But under the laws that exist, he is not a qualified candidate."
Diversion would have allowed Walker to get his case dropped and expunged if he completed probation, community service or some other court-ordered program. But of more substance Thursday was the issue of bond reduction, and whether Walker, who has been in custody since the Nov. 21 accident, should be released while his case is pending.
"There's no question that my client has individuals in the community that would vouch for his reputation, that he is of good moral character, that he is reliable, that he is responsible," said defense attorney Amanda Dunn, referencing the three witnesses who offered to house Walker and transport him to court. "As somber as this case is, truly nothing about these charges makes my client a risk of non-appearance if he were to be given a reasonable bond."
Judges set bonds in criminal cases primarily for two reasons: If a defendant poses a danger to the community or is a flight risk. But Walker is neither, Dunn argued.
Before Nov. 21, he was a father to a 4-year-old son, an introverted artist who studied the impact of graffiti on modern art, and a low-key neighbor who skateboarded to work and school because he didn't have a steady home life or transportation arrangement, she said.
Poole said he would rule on Walker's bond before the next court date on Oct 3. Walker will continue to be held in Hamilton County Jail on a $107,500 bond, which he can't afford, Dunn said.
The 25-year-old had no prior criminal history before the Nov. 21 crash, court records show. Plus, new evidence filed by Dunn last week called into question her client's "criminal liability," she said.
According to Thursday's testimony, Dunn's defense team found a video from Sonic Drive-In in Brainerd in April that showed a white van heading toward the direction of the crash, which killed six Woodmore Elementary children and injured 31 others. Furthermore, an eyewitness told Chattanooga police that Walker swerved right to avoid a collision with the white van because Talley Road was too narrow. Combined, those pieces of evidence put the state's likelihood of conviction "somewhat in question," Dunn said.
Hamilton County District Attorney General Neal Pinkston said Thursday's hearing was not a trial and that prosecutors had more proof.
Pinkston pointed out the defense didn't know the identity of the second driver, didn't know where the van went after the accident, and didn't have reliable time stamps on three video footage stills. Plus, the eyewitness gave different statements to the police and the National Transportation Safety Board, the prosecutor said.
"In the statement to the NTSB [the witness] doesn't talk about the swerving," Pinkston said. "She talks about one white vehicle passing. And so I would like to provide that for the court."
It's unclear how Dunn's evidence will impact the case. Because of his nonexistent criminal history, Walker is what prosecutors call a "Range I offender," and would qualify for the lowest range of sentencing. In this case, that's six years maximum, Dunn said, even if Walker is convicted of all 34 charges.
Still, the NTSB said Talley Road was not on Walker's designated route. The NTSB continues to work on a final report of the incident. Police also say Walker lost control of the bus because he was traveling about 50 mph in a 30 mph zone.
Stay with the Times Free Press as more information becomes available.