Judge: Woodmore bus crash evidence to remain sealed while driver faces criminal prosecution

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Any evidence law enforcement collected from the deadly Woodmore bus crash will remain under seal to protect the 24-year-old driver's constitutional rights while he faces criminal prosecution, a judge ruled Monday.

Circuit Court Judge J.B. Bennett said plaintiffs' attorneys cannot yet access video footage, engine control module or other data provided by Durham School Services after one of its drivers, Johnthony Walker, swerved into a tree Nov. 21 with 37 Woodmore Elementary students onboard, killing six.

"That information will be protected," Bennett told several lawyers whose clients want to be compensated for the deaths and pain and injuries caused by the crash. "But [my rule] does not apply to pre-accident information."

Plaintiffs' attorneys can run down personnel files, prior accidents, disciplinary measures, phone calls and other pieces of information related to Walker and Durham while a dozen or so civil suits remain frozen for 90 days, Bennett said. But anything sitting inside the district attorney general's case file needs to stay there, he said, that way nothing taints the jury pool against Walker, who faces charges of vehicular homicide, reckless endangerment and speeding. The lawsuits also target Durham, an Illinois-based corporation that provides the majority of the county's buses.

Walker's criminal defense attorney, Amanda Dunn, said her client's case will be presented to the grand jury today or Monday.

Much of the hearing focused on each legal team's concerns with turning over evidence in a civil case with a criminal case pending next door. The process of exchanging evidence that will be used in a case is known as "discovery."

"Any discovery in this case is premature and exceptionally, potentially damaging to my client's constitutional rights," Dunn said. "On Nov. 21, after the collision, the DA's office went to representatives from Durham for assistance, and Durham provided consent to the DA and the Chattanooga Police Department. Whatever is produced by Durham now is in possession of the state."

Other attorneys for Walker and Durham proposed giving the company until June to respond to requests for evidence and scheduling depositions for September and October.

"Waiting a year to take depositions is just a joke," objected Bo Hixson, one plaintiff's attorney. "I would suggest staying Walker's obligation to answer until after he's indicted - but nothing else. Durham has already gathered this stuff since December. Memories fade, evidence disappears, witnesses die. We need to proceed."

Attorney Robin Flores said a criminal prosecution could take years to conclude among proceedings, trial delays and post-conviction appeals. He also didn't believe the Fifth Amendment right to remain silent applied to Durham like it did to Walker.

"Here it looks like Durham was just complying with the initial investigation," Flores said. "I think [their argument not to respond] is an overreach of the Fifth Amendment protection. That protection is only for the individual."

An analogous case in Hamilton County is Ben Brewer, 41, who authorities also charged with vehicular homicide after his truck crashed into a line of vehicles stopped for construction work on June 25, 2015, on Interstate 75. The collision killed six people, injured several more, and spawned several civil lawsuits alongside a criminal prosecution that's set for trial April 4.

"There is not discovery in that case," Dunn said, causing one plaintiffs' attorney to stand and say he had, in fact, exchanged evidence in one of those cases.

"I think the larger part of the analysis is, is Mr. Walker going to get a fair trial?" Dunn asked. "I can't begin to tell you the amount of information that has already been disclosed through the media, the Hamilton County Board of Education. Indeed, many of the attorneys to my right were present at Mr. Walker's preliminary hearing, where a great deal of information was provided. So concerns about losing evidence? All of that is taken care of by the state doing its job."

Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow him on Twitter @zackpeterson918.