Hamilton County District Attorney General Neal Pinkston's office can continue prosecuting the gang racketeering case, a judge ruled Thursday, despite a push by defense attorneys to disqualify it.
Criminal Court Judge Tom Greenholtz said the "appearance of impropriety" standard is no longer the guiding law in Tennessee, shooting down an argument that attorneys for defendant Courtney High made in their bid to get Pinkston's office off the 55-person case.
Their rationale: A lawyer who previously represented two defendants now works in Pinkston's office and could learn or share confidential information about the case if the right screening measures aren't in place. Because that creates an "appearance" of something fishy, another office needed to prosecute High, who faces the death penalty if convicted for his alleged role in the 2016 slaying of state's witness Bianca Horton, and every other defendant, attorneys Steve Moore and Fisher Wise argued.
Though some appeal courts use the "appearance" standard, Greenholtz wrote that it must reflect "objective public perception rather than the subjective and 'anxious' perceptions of litigants." He said the defense didn't make the case, pointing to 50-plus affidavits from members of Pinkston's office that described the various ways they'd isolated information from the prosecutor in question, Lee Ortwein.
That said, Greenholtz did order that no one can discuss the case with Ortwein, adding that Ortwein must have no access to the state's evidence, which Pinkston said he did not have during a hearing earlier this week. Pinkston added Ortwein hadn't shared any confidential information or been involved in the gang racketeering prosecution, which authorities have been building since before fall 2018, when Ortwein joined the office.
"Under the circumstances of this case, the Court does not believe that the continued prosecution by the District Attorney General 's Office would invite the public's 'doubt or distrust of integrity in our law, [in] our courts or in the administration of justice,'" Greenholtz wrote. "Nor would continued prosecution by that office objectively pose a substantial risk of disservice to the public interest. Accordingly, Mr. High's motion to disqualify the entire office of the District Attorney General based upon an alleged appearance of impropriety is, very respectfully, denied."
Pinkston's office brought this case in March 2018, charging 55 people with conspiring to commit crimes as well as a pattern of racketeering activity on behalf of the Athens Park Bloods street gang. A handful of others also face murder charges, and facilitation-of-murder charges, for Horton and other previously unsolved homicides.
Since that time, defense attorneys have raised questions about the state's evidence and filed many motions to dismiss. For example, they say, prosecutors have to show that each defendant committed two prior crimes, within two years of each other, to prove they were involved in racketeering for the gang under state law. But not every defendant has two prior crimes, some defense attorneys say. And if they do, not all of them fall within that specified timeline, they say.
In addition to that issue, Greenholtz will have to rule 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 gang racketeering activity. The judge is expected to rule within the next few days.
The next court date is Jan. 28.
Contact staff writer Zack Peterson at firstname.lastname@example.org or 423-757-6347. Follow him on Twitter @zackpeterson918.