Judge allows DA to continue in perjury case against Gatlinburg detective

Staff Photo by Dan Henry / The Chattanooga Times Free Press- 8/31/16. Former Ooltewah High School head basketball coach Andre "Tank" Montgomery exits the courtroom after appearing before Judge Don Poole on August 31, 2016 facing charges of failure to report child sexual abuse.

A judge has denied a motion to disqualify Hamilton County District Attorney Neal Pinkston from prosecuting Gatlinburg, Tenn., detective Rodney Burns.

Burns faces charges of aggravated perjury for testimony he gave in February about the Ooltewah High School rape case. The offense is a class D felony that carries a sentence of between two and four years in prison.

"Upon consideration of the pleadings filed by the parties," Hamilton County Criminal Court Judge Tom Greenholtz wrote in the order filed Tuesday, "the evidence submitted in open court and following the hearing of this matter, the arguments of counsel, and the record as a whole, the Court hereby respectfully denies Mr. Burns's motion to disqualify."

A month after Burns gave his testimony in the Ooltewah case, he filed a $300,000 defamation lawsuit against Pinkston for publicly accusing Burns of perjury. In July, Burns filed a motion asking that Pinkston be removed from prosecuting his case, claiming his involvement in the prosecution was a conflict of interest because of the lawsuit.

But Pinkston argued that a series of problems will arise if defendants, like Burns, are able to file civil lawsuits and have prosecutors removed from their cases.

Pinkston said he had asked the Tennessee Bureau of Investigation to investigate Burns in February, a month prior to the civil lawsuit being filed. The Hamilton County grand jury indictment was issued in May.

Pinkston also alleged on multiple occasions he was contacted on Burns' behalf and was told the civil suit would be dropped if he stopped prosecuting the case.

Burns' attorneys, Bryan Delius and Stephen Greer, refuted that, saying a local attorney may have told Pinkston that, but he was not acting on behalf of Burns' defense.

An initial hearing was held on the motion in August, and Greenholtz denied two of the three reasons they offered to disqualify, but said he needed more time to consider the potential conflict.

In the order released Tuesday, Greenholtz explained his decision, saying it was made "largely because these issues are not frequently discussed by Tennessee courts."

Greenholtz noted that courts have historically been hesitant to disqualify prosecutors when sued by defendants because the filing of a civil claim could be abused as a litigation tactic and the existence of a lawsuit doesn't always disqualify the prosecutor.

"Although Tennessee courts have not fully explored this issue," he wrote, "it is clear that the mere filing of a civil lawsuit against a prosecutor does not automatically create a disqualifying conflict of interest for a prosecutor."

When asked to comment on Tuesday's ruling, a spokeswoman for Pinkston's office said, "It's against state law for the prosecutor to talk about a pending case."

Delius' office did not immediately respond to comment Tuesday afternoon.

During Burns' testimony in February, he referred to the rape of the 15-year-old as "something stupid kids do." He said the perpetrators received no sexual gratification from the act, so he did not consider it a sexual assault.

According to the grand jury indictment in May, Burns "unlawfully and with intent to deceive" made two false statements under oath during this testimony.

Burns testified in a previous hearing that "there was no rape or torture, no screams of anguish." But previously he wrote in police reports that someone told him "the victim yelled out in pain" and another person said "he could hear [the victim] yelling when they had attacked," according to the indictment.

Hearing delayed for former coach

The charges facing former Ooltewah High School basketball coach Andre "Tank" Montgomery should not be dismissed, Pinkston argued this week.

Pinkston filed a response Monday to Montgomery's motion to have the case dismissed, calling Montgomery's argument meritless. In the motion, Montgomery's attorney, Curtis Bowe, claims the statute under which Montgomery is charged is unconstitutional, vague and deficient.

The case was scheduled to be heard Tuesday morning before Hamilton County Criminal Court Judge Don Poole, but before the hearing began, Bowe requested it be delayed, saying he needed more time to prepare.

Poole agreed to push back the hearing, but told both Pinkston and Bowe he expects them to be prepared for closing arguments Nov. 22. Poole will either rule to dismiss the case or move toward a settlement or trial.

Montgomery is charged with failure to report child sexual abuse, after older teammates were involved in the rape of a freshman during the basketball team's trip to Gatlinburg, Tenn., to compete in a basketball tournament last year, just days before Christmas.

During previous testimony in the case, Bowe said lawmakers have failed to address what to do when a case of abuse involves a child abusing another child, and the law also does not offer clarity about when and to whom a report of abuse should be made.

Pinkston's response argued that both the Court of Criminal Appeals and the Office of the Attorney General have determined that minors can commit "child sexual abuse." He said the law also clearly states the places an adult like Montgomery should report such abuse.

"[Bowe's] assertion that a school official can know of a child rape perpetrated by another student and not say anything to anyone represents a rather skewed view of [the statute,]" Pinkston wrote in the motion.

Montgomery is the only former Ooltewah High School employee still facing charges in connection with the rape.

Pinkston previously filed charges of failure to report child sexual abuse against former Ooltewah High School volunteer assistant coach Karl Williams and the school's former athletic director, Allard "Jesse" Nayadley.

The charges against Williams were dropped in May. And two weeks before that, Nayadley accepted pretrial diversion, meaning he agreed to skip a grand jury review, and the charges will be erased if he completes 10 hours of community service, attends a course on reporting abuse and is well-behaved.

In August, three former Ooltewah High School students were convicted in connection with the attack, and will be released before the end of this year.

The oldest of the three defendants, who turned 18 soon after the incident, was convicted of aggravated rape. The two other boys, who were 16 at the time of the rape, were convicted of aggravated assault.

Contact staff writer Kendi A. Rainwater at 423-757-6592 or krainwater @timesfreepress.com. Follow on Twitter @kendi_and. Contact staff writer Emmett Gienapp at 423-757-6731 or egienapp@timesfreepress.com. Follow on Twitter @emmettgienapp.