Last week, attorney Curtis Bowe filed two motions for his client, Andre "Tank" Montgomery, one of three adults charged in the Ooltewah High School rape incident. One called for a new court date. The other asked to dismiss the charges altogether, citing a combination of factors.
Montgomery, the last man to face active charges for the case in Hamilton County Criminal Court, was scheduled to next appear Aug. 24. But whenever motions are filed in a case in the county, they're usually automatically docketed one week later to set a different date to hear them, clerks said.
That's what appeared to happen Monday, when Bowe accompanied Montgomery and some family members into the gallery for the latest update on his client's four counts of failure to report child sexual abuse. A spokeswoman from the district attorney's office said there was never an official hearing scheduled for Monday on Montgomery and cited the system automatically docketing motions one week after they've been filed. In his address to the court, though, Bowe questioned why District Attorney General Neal Pinkston wasn't there.
Ultimately, the attorneys settled on an Aug. 31 date after Judge Don Poole suggested it would be better for everyone to work together.
Montgomery was charged in Hamilton County after a December team trip to Gatlinburg, Tenn., during which a freshman was raped, allegedly by three of his teammates. The school's athletic director, Allard "Jesse" Nayadley, and volunteer assistant coach Karl Williams also faced the same charges.
All three men were in Gatlinburg at the time of the rape, and, according to previous court testimony, the men never alerted the Department of Children's Services or police about the assault. The hospital alerted the Gatlinburg Police Department, which days later charged three juveniles with aggravated rape and aggravated assault.
In May, District Attorney General Neal Pinkston dropped the charges against Williams, saying he "was not provided any training regarding the mandatory reporting law." And about two weeks before that, Nayadley accepted pretrial diversion, meaning he agreed to skip a grand jury review and the charges will be erased from his record in 180 days if he completes 10 hours of community service, attends a course on reporting abuse and is well-behaved.
Bowe, on the other hand, has continued to fight Montgomery's case.
In his motion calling for a new court date, Bowe asked the court for another 60 days. He didn't have a specific date, just nothing "later than November 2," since the state hadn't provided all the evidence necessary for him to independently investigate, he said.
His other motion calling for the case to be dismissed is more layered.
Bowe cited seven reasons, calling the charges "vague and ambiguous," and largely focused on language in Tennessee statutes, as well as the district attorney's ability to "arbitrarily and capriciously" charge someone outside of their jurisdiction — specifically, Pinkston filing the charges against Montgomery in Hamilton County even though other Hamilton County Schools administrators allegedly knew about the incident in Sevier County.
Attacking the language, Bowe wrote, "there are no provisions in the statutes which identify or define 'child on child' conduct as abuse or child sexual abuse. Thus, no reasonable person has notice that conduct between children can constitute child sexual abuse and need be reported."
Because those involved in the assault were ages 15 to 17, Bowe wrote, "statutorily, they are children."
Not "persons," as defined by Tennessee law.
Bowe also called out administrators higher than Montgomery in the Hamilton County Department of Education chain of command who don't face charges. Specifically, he named former Superintendent Rick Smith, who Bowe said failed in "his duty to notify the parent within 24 hours."
"Simply put, the prosecution of Montgomery and not the administrators with knowledge who failed to report is arbitrary at best and discriminatory at worst," he wrote.
When he approached the bench Monday after waiting about two hours in court, Bowe railed against Pinkston's office.
"I don't know that he's going to be here," Bowe told Criminal Court Judge Don Poole. "I don't know where [Pinkston] is."
After assistant district attorney Andrew Coyle said he would find Pinkston, Bowe sat down and the judge dealt with other attorneys. A few minutes later, Coyle crossed the courtroom and talked to Bowe.
Then, Coyle said, "we have a date."
Bowe seemed to agree, but told Poole he wanted to make an announcement about Montgomery.
"His family is here taking time off of work. Mr. Pinkston is not here. Apparently no one in his office can handle this other than him, and I'm kind of offended on behalf of my client because he's not here."
Bowe said Pinkston wasn't communicating with his office. Bowe understood that he filed the motions on Aug. 8, and that maybe Pinkston would like to file a response first, "but a letter saying we need to move the date would be appropriate," he said.
Melydia Clewell, spokeswoman for the district attorney's office, said "all [he] had to do was check with General Pinkston to pick a new date and then appear in court to submit to the judge for approval. I'm not sure why Bowe went into the courtroom today without a new date to submit."
In court, Bowe said he was comfortable moving Montgomery's next hearing to Aug. 23, "but Burns will also be up."
He was referring to Gatlinburg police Detective Rodney Burns, who faces two counts of aggravated perjury in Judge Tom Greenholtz's courtroom because of his testimony in Montgomery's preliminary hearing. Whereas Montgomery's failure to report child sexual abuse is a class A misdemeanor that carries a sentence of 11 months and 29 days, Burns faces a class D felony and two to four years behind bars.
"If we set it for Tuesday, I don't want my client waiting," Bowe said.
Coyle said, "it might be appropriate for General Pinkston to respond to that."
"I can go check and see our office," Coyle said. "He's been there the whole time and it doesn't seem the defense went and checked on him."
Bowe fired back: "I just need some direction. Because if I'm supposed to run across the hall every time I need something set and done, then that needs to be in the general procedure."
Afterward, Bowe could not be reached for comment.
Contact staff writer Zack Peterson at firstname.lastname@example.org or 423-757-6347. Follow on Twitter @zackpeter son918.