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Staff Photo by Dan Henry / The Chattanooga Times Free Press- 2/15/16. Detective Rodney Burns of the Gatlinburg Police Department is sworn in as a witness before Judge Robert Philyaw during a preliminary hearing for the Ooltewah High School basketball coaches and the school's athletic director in Hamilton County Juvenile Court on February 25, 2016. Hamilton County District Attorney Neal Pinkston charged head coach Andre "Tank" Montgomery, assistant coach Karl Williams and Athletic Director Allard "Jesse" Nayadley with failing to report child abuse or suspected child sexual abuse in connection with the rape of an Ooltewah High School freshman by his basketball teammates Dec. 22, 2015.

A recent Tennessee Court of Appeals ruling found that district attorneys general don't qualify for the same blanket protection against defamation claims as policymakers do, but that doesn't mean the doors for defamation suits have been opened.

The decision is the latest development in a yearslong legal battle between Hamilton County District Attorney General Neal Pinkston and a Gatlinburg, Tennessee, detective who Pinkston said made false statements while under oath during court testimony.

 

THE CASE FOR PERJURY

Detective Rodney Burns was indicted on two counts of aggravated perjury in May 2016 after a Tennessee Bureau of Investigation probe found he made false statements while under oath during a February 2016 Juvenile Court hearing for three former Ooltewah High School employees charged with failure to report child abuse.

Three of the school's basketball players raped a 15-year-old freshman teammate and three others with a pool cue on a team trip to Gatlinburg, Tennessee, in December 2015. One of the boys sustained severe injuries, but the coaches who found him bleeding and in pain didn't call police or the Department of Children's Services. They took the boy to a hospital, where medical staff alerted the proper authorities. The teen had to have surgery to repair his colon, bladder and prostate.

Burns' statements were made during a February 2016 preliminary hearing for the coaches — Ooltewah High School basketball head coach Andre "Tank" Montgomery, assistant coach Karl Williams and the school's Athletic Director Allard "Jesse" Nayadley. (Charges against Williams and Montgomery were later dropped. Nayadley accepted pretrial diversion, meaning the charges would be erased if he completed community service and met other requirements.)

But what Burns said differed from incident reports he filed in connection with the assault, and he contradicted himself several times. He said the attack was not rape because it was not sexual in nature and the accused received no sexual gratification from it. He said it was "something stupid kids do" and that the case was being blown out of proportion. He also said "there was no rape or torture, no screams of anguish."

But he previously 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 an indictment.

After the testimony, Pinkston asked the TBI to look into whether Burns committed perjury. The investigation was announced soon after.

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Neal Pinkston

The next month, Burns filed a lawsuit against Pinkston for publicly accusing him of perjury. And a few days later, Burns was criminally indicted.

The indictment said Burns "unlawfully and with intent to deceive" made two false statements under oath during that testimony. It also stated Burns didn't testify truthfully when he said he called authorities to report the incident on Christmas Eve. Later in the same testimony, he contradicted himself, saying that particular authority was not "within the parameters of what we report."

Ultimately, the perjury charges were dismissed on a technical issue: Juvenile Court didn't have "the statutory or constitutional authority" to hold it for the criminal charges the adults faced, Hamilton County Criminal Court Judge Tom Greenholtz ruled. And if a court doesn't have jurisdiction to hold a proceeding, then nothing that comes from the proceeding is lawful. In other words, Burns' testimony cannot be perjurious in a court that doesn't have authority, Greenholtz reasoned.

 

THE LAWSUIT

Defamation claims generally arise when a person believes something has been said about them that is so bad it has damaged their reputation, said G.S. Hans, assistant professor of law at Vanderbilt University.

In his lawsuit, Burns claims Pinkston's public accusation of perjury caused him to suffer "great damage to his reputation, his active cases [had] been postponed and he [had] been ridiculed by the public and media outlets."

Burns said Pinkston never consulted with him about Burns' reports about his testimony, either before or after the Feb. 15 hearing in which he said Pinkston became angry.

The state, which represented Pinkston, filed a motion to dismiss the suit, arguing that the statements were not defamatory and that Pinkston had an "absolute official privilege" against claims of defamation for statements he made in his official capacity as a district attorney — an elected official.

Under Tennessee law, high-level government officials enjoy a protection against defamation claims when performing official duties.

"What that means is that the governor, for example, generally can't be sued for defamation when he is acting as the governor [such as giving a public speech as part of his job]," Hans said.

The protection exists to allow government officials to be free to communicate with the public about government business and to exercise their duties without the fear of facing lawsuits that would "consume time and energies which would otherwise be devoted to governmental service," the U.S. Supreme Court found in Barr v. Mateo.

"There needs to be leeway when you're having discourse, essentially, with the public," said Chattanooga attorney John Cavett. "Everybody's interests are advanced when you have frank and free information flowing to the citizens so that they can decide whether they like what their government is doing or not.

"Even though people's reputations are important, we have to balance it a little more in favor of [free-flowing] information."

Tennessee's Supreme Court has adopted similar reasoning, and in this case, "Mr. Pinkston was trying to extend that privilege to 'lower-level' state employees like himself," Hans said.

But the court disagreed.

"... while vital to the public, the statutory duties of district attorneys general do not include formulating official policy at the state level," Court of Appeals Judge Thomas Frierson wrote in the Nov. 26 decision.

However, that doesn't mean there is a green light to sue Tennessee prosecutors for defamation, and it doesn't even mean Burns will win his suit. It only means the case will not be dismissed at this stage.

A number of other protections may apply to protect official statements made by district attorneys general.

For example, "qualified or conditional privilege" could apply. While "absolute privilege" grants total immunity against defamation claims, qualified or conditional privilege provides immunity, but that protection "may be defeated if the defamatory publication was made with malice, ill-will, or for an improper purpose," Frierson noted.

However, the Court of Appeals wasn't asked to weigh in on whether district attorneys general should be afforded that conditional privilege.

In the end, "Mr. Pinkston could still prevail in the actual case, potentially because, based on the statements, I'm not sure that what he said was actually defamatory," Hans said. "But defamation lawsuits are often time-consuming and expensive, so there may be a long road ahead for all parties."

To prove defamation, Burns would have to show that Pinkston made a statement with knowledge that it was false or would hurt Burns' reputation, and that Pinkston failed to find out the truth or "acted with reckless disregard for the truth."

"We haven't seen the end of the story by a long shot," Cavett said.

 

WHAT THIS MEANS FOR PROSECUTORS

In the meantime, other district attorneys general may be more cautious with what they say in public statements, Hans said.

"You might still win in a defamation case, but it's not going to be as easy to get it thrown out as you might have hoped if the privilege had been extended," he said.

And that may be a good thing. If prosecutors talk about who is under investigation, it could impact a suspect's reputation, especially if charges aren't ultimately filed.

But sometimes making a public statement is necessary.

"Depending on the kind of case, there are certain situations which [district attorneys] might want to talk about a case publicly, perhaps if they're trying get more witnesses to come forward or people who might have information," Hans said. "A public statement is a good way to do that. But you have to be cautious."

Ultimately, Hans and Cavett both said they expect the case to get appealed to the state Supreme Court.

"The Supreme Court could overrule the Appellate Court and find the privilege does extend to district attorneys," Cavett said. "I would be shocked if it did not get appealed."

Contact Rosana Hughes at rhughes@timesfreepress.com or 423-757-6327 with tips or story ideas. Follow her on Twitter @HughesRosana.

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