Defense attorneys for a man facing the death penalty in the state's massive gang racketeering case say the Hamilton County District Attorney's Office needs to be disqualified from the prosecution.
Citing an "appearance of impropriety," attorneys Steven Moore and Fisher Wise argued Monday that District Attorney General Neal Pinkston's office needs to be taken off the 55-person case because a former defense attorney who previously represented two of the defendants became a prosecutor for Pinkston last fall.
Per ethics rules, they say, defendants Cortez Sims and Montez Murphy were not given notice that Assistant District Attorney Lee Ortwein left his defense practice in November to work for Pinkston, who brought a Racketeering Influenced and Corrupt Organizations case against 55 alleged members of the Athens Park Bloods street gang last spring.
Because Sims and his family members are accused of planning the 2016 murder of state's witness Bianca Horton, and because Murphy is charged in the overall case, Moore and Wise argued that Criminal Court Judge Tom Greenholtz should order Pinkston's office off the case to avoid any appearance of impropriety or unfairness.
Prosecutors have already signaled they will seek the death penalty against Moore and Wise's client, Courtney High, along with defendants Charles Shelton and Andre Grier, if they're convicting of kidnapping and killing Horton to prevent her from testifying against Sims at a different murder trial in 2017. Though Horton was not present, a jury still convicted Sims of first-degree murder, and he is serving a life sentence amid an appeal of the conviction.
"We don't want our justice system to be tainted by the appearance that attorneys are getting information they shouldn't get from other attorneys who've previously been involved in other cases," Wise said.
To be clear, Wise and Fisher said, they were not directly accusing Ortwein of sharing any confidential information — just the concern that a "reasonable person" could interpret it that way with all of the media attention and chatter about the case. They said ethics rules and some case law back up their concern and that prosecutors have the burden of proving them wrong.
To that end, Pinkston said he submitted 50-plus affidavits from members of his office, including Ortwein, explaining how no confidential information was shared. Greenholtz, who reviewed the affidavits, said one of them asserted that Ortwein never discussed the Sims prosecution with anybody other than his wife, another Assistant District Attorney in the office who works on more minor crimes in General Sessions Court.
Pinkston said Monday that Ortwein hasn't ever been involved in the racketeering prosecution, hasn't represented Sims since the summer of 2017, and doesn't have access, like most of his office, to the state's evidence, which is stored electronically.
"Does Mr. Ortwein have a conflict? Without question," Pinkston said. "Has he participated in any of this prosecution? No. The majority of this investigation occurred long before Mr. Ortwein was ever in the DA's office. It occurred almost a year leading up to that."
Judge Greenholtz said he will consider the issue further and release an order at a later date. The judge is also expected to rule soon on another issue in the case: Whether the state has to prove that each defendant benefited financially from any prior crimes prosecutors are using to tie them to the gang.
Some defense attorneys say the state's racketeering law states that "[financial] gain" is essential and are hoping to get the case dismissed with that argument. Prosecutors have countered that any crime committed in service of the gang contributes to the gang's overall influence and possible wealth.
Contact staff writer Zack Peterson at firstname.lastname@example.org or 423-757-6347. Follow him on Twitter @zackpeterson918.