Former Ooltewah basketball coach asks that charges of failure to report child sexual abuse be dismissedView 8 Photos
One day after the conviction of three former Ooltewah High School students in the assault of their basketball teammate, the boys' coach was also in court.
Andre "Tank" Montgomery appeared Wednesday before Hamilton County Criminal Court Judge Don Poole, requesting that his four charges of failure to report child sexual abuse be dismissed.
Montgomery is the only former Ooltewah High School employee still facing charges in connection with the rape of a freshman during the basketball team's trip to Gatlinburg, Tenn., just days before Christmas 2015 to compete in a tournament.
During Wednesday's hearing, Montgomery's attorney, Curtis Bowe, argued Montgomery had no obligation to report the abuse, calling the statute under which he is charged unconstitutional, vague and deficient.
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, Bowe argued.
"Because of that this matter should be dismissed and Mr. Montgomery should be acquitted of this charge," Bowe stated.
When given a chance to respond, Hamilton County District Attorney Neal Pinkston was quick to point out that Bowe has not notified the Attorney General's Office of his complaint regarding the constitutionality of the statute, which is required by law.
"I don't know why he didn't notify them, he should have," Pinkston said.
In response, Bowe said, "We didn't provide that notice because we presumed the attorney general would take its own interest in this. And it didn't."
Bowe agreed it would be fair to suspend the hearing, saying he would notify the Attorney General's Office of his concern.
Poole scheduled the hearing to continue Oct. 18, giving the Attorney General's Office time to respond. Poole said during the coming weeks he will also review Bowe's argument to dismiss.
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.
Back-and-forth also continues in the case against Gatlinburg Police Detective Rodney Burns.
Burns is charged with two counts of aggravated perjury due to his testimony in the Ooltewah rape case, and his defense attorneys argue it's a conflict of interest for Pinkston to prosecute the case since Burns filed a $300,000 defamation lawsuit against him.
In an Aug. 23 hearing before Hamilton County Criminal Court Judge Tom Greenholtz, Pinkston claimed it's not a conflict of interest for him to prosecute, saying the civil suit was filed after the Tennessee Bureau of Investigation began looking into Burns. He argued that the civil suit was filed as a way to have him removed from the case.
Pinkston said he was given an offer on behalf of Burns' defense, which said the civil suit would be dropped if he stopped prosecuting the case.
In the hearing, Burns' attorneys, Bryan Delius and Stephen Greer, denied making such a deal, saying Jerry Summers, a Chattanooga attorney, may have mentioned one. But they said Summers was not authorized to act on Burns' behalf.
Pinkston affirmed Summers did make mention of such an offer, and said Greer also referenced the deal in a meeting with him and two members of his staff.
Summers said Wednesday he never made an offer to Pinkston in the case, but he did mention what Delius had told him, which was that there had been discussions about dropping the civil lawsuit if Pinkston stopped prosecuting.
"I was never employed by the defense," Summers said. "I had no authority and didn't make any offer."
Two affidavits affirming what Pinkston said in court regarding Greer's reference to the offer were filed in Hamilton County Criminal Court on Friday.
Hamilton County Executive Assistant District Attorney Lance Pope stated he was in a meeting where Greer "asked General Pinkston if he would be willing to dismiss Burns' criminal indictment if the civil lawsuit 'went away.'"
Melydia Clewell, Pinkston's spokeswoman, also submitted an affidavit, saying Greer made reference to the deal still being on the table during a meeting with herself, Pinkston and Pope.
Greer said he had no comment Wednesday regarding those affidavits, but referenced two letters he submitted to the court as evidence during the Aug. 23 hearing.
In a letter, Greer told Delius that Pinkston mentioned Summers' conversation with him regarding Burns' case.
"I gather from what [Pinkston] said that Summers may have told him that if the criminal proceedings stopped or were terminated, that the civil suit would be dismissed," Greer wrote.
In a motion filed in Hamilton County Criminal Court Aug. 26, Delius stated that Greer only represents Burns in the criminal case "and would have no legal authority to resolve the civil claim."
"Neither Mr. Delius nor Detective Burns have ever directed Mr. Greer or any other third party, including Jerry Summers, to offer dismissal of the civil suit in exchange for non-prosecution of the Defendant," Delius states.
In the Aug. 23 hearing, Greenholtz said if a deal was proposed by the defense. it "raises a whole lot of issues."
The next hearing in the case is scheduled for Sept. 20.
Contact staff writer Kendi A. Rainwater at 423-757-6592 or email@example.com. Follow on Twitter @kendi_and.