Judge Jon Kerry Blackwood, after a day-long hearing on Thursday found that the Tennessee Wildlife Resource Agency was guilty of "judge shopping," but he stopped short of dismissing a boating under the influence case.
Judge Blackwood said TWRA officers directed most of their cases to Judges Bob Moon and David Bales in General Sessions Court and it gave the appearance that they were trying to "gain an advantage" in prosecuting the cases.
He said allegations that Judge Bales told a group of turkey hunters at a banquet that he and Judge Moon were giving stiff sentences to poachers were "very serious." But he said it had not been proven beyond the preponderance of a doubt that there were violations of two canons of judicial ethics.
Judge Blackwood, who is a senior judge from Townsend, Tn., remanded the case against Gary McCullough back to General Sessions Court for a new preliminary hearing. Judge Moon held the initial one.
District Attorney Bill Cox said the case has brought to light problems in assigning cases in General Sessions Court, and he said those are being addressed. But he said the case did not rise to the level of allowing the defendant to escape prosecution.
Both Judge Moon and Judge Bales took the witness stand - the only ones called by the state. Judge Moon said he did not recall hearing Judge Bales make a statement about vigorously prosecuting poachers and Judge Bales said he talked instead about hunter safety and getting young people involved in outdoor activities.
Attorney Jerry Summers, who represents McCullough, submitted an affidavit in which he said "reputable" individuals had stated that Judge Bales made the remark at the fundraising event for the Cherokee Chapter of the National Wild Turkey Federation on Feb. 4, 2006, at the time the judge was running against two opponents for the judgeship.
Michael Oppizzi, a former Cherokee Chapter president, was called by attorney Summers and asked if he had heard the remark. He indicated he had.
He said there were not supposed to be speakers at the fundraising event - just a dinner and then an auction. But he said Judge Moon spoke for 15 minutes and Judge Bales for less than 10 and the auctioneer "was getting antsy."
Robert Coddington Jr. said he was arrested for boating violations, handcuffed and taken to jail. He said he was told by the TWRA officer that "he was going before Judge Moon."
Former General Sessions Court Judge Mike Carter said he led a reorganization of General Sessions Court in 1999 to try to prevent judge shopping. He said a system was set up designed to assign cases at random and keep all the cases of a defendant with the same judge.
He said he had not been aware that the wildlife cases were going mainly to one or two judges. Those cases do not go into the computer, but the TWRA officer sets the date (with knowledge of when the judges will be sitting).
Former Judge Carter said on one occasion he got a stack of wildlife cases and a TWRA officer took them off his deck, saying that Judge Moon had asked for them.
Judge Moon said after the hearing, "I have absolutely no memory of that, but if that occurred it is most likely that I had completed my docket and volunteered to help Judge Carter with his docket. In that event, it was Judge Carter who selected what cases that he wished for me to resolve and handle for him. That is very common among Sessions judges to volunteer to hear other judges' cases and to assist them in completing their larger dockets after we have completed ours. But the transferring judge always selects what cases are given to another judge and not the officer."
Saying he has owned marinas and been very active in boating, former Judge Carter said, "I stopped getting TWRA cases and I didn't know why."
The former judge said he was led to start the reorganization after an attorney moved one case from his court. He said he asked why he had done so he admitted he took it to a more favorable judge.
Attorney Summers said Judge Moon and Judge Bales were getting as many as 95 percent of the TWRA cases. He said after he raised objections in 2007, some of the cases began to go to Judge Christie Sell also.
Judge Moon said the wildlife cases are the lowest charge the court hears - Class C misdemeanors. He said he would go weeks without getting any wildlife cases and was surprised the percentages he handled were so high. He said he did not realize there was such an imbalance in those cases because they were a small part of the 60,000 cases a year the court hears.
Attorney Summers asked Judge Moon if he supported Judge Bales for the post, and he said he did introduce him around and make calls in his behalf to the County Commission when they first supported him in a 5-4 vote. He said Judges Clarence Shattuck and Richard Holcomb were making similar moves in behalf of Judge H.L. Smith.
The two judges said they had no role in assigning cases and sought to deal fairly with all those who come before them.
Attorney Summers told the court, "This is not judge shopping. This is judge selection."
DA Cox said there was no evidence the hearing against McCullough was not a fair one. He said the Grand Jury also heard the case and indicted him.
Judge Blackwood, who came into the case after the three Criminal Court judges recused themselves, said there was a question whether judicial canons 2 and 5 were violated. He said 2 deals with judges being impartial and five with a judge making a pledge in favor of one side instead of acting fairly for both sides.
He said, "It is important that the courts not be politicized and that we do not let law enforcement be allowed to use or abuse the courts."
The judge noted that TWRA official Dan Hicks had been quoted as saying the cases were taken to judges familiar with wildlife law.
Early in the hearing, attorney Summers said TWRA Officer Glen Atchley had told him Wednesday his subpoena "ain't no good" and he would not be found on Thursday.
Upon hearing that, Judge Blackwood directed that the officer "plow through the snow and get here" or else face the possibility of spending two weeks in jail. The officer was at the courthouse when the case resumed after lunch.
He said he had checked with TWRA attorneys after noticing that the subpoena was not signed and was mailed instead of delivered in person. He said he was advised it was not valid and he did not have to appear.
Judge Blackwood asked, "You're a law enforcement officer and you are quibbling over technicalities on a subpoena?"
Jerry Hixson, who operates a riding stable in Middle Valley across from a TWRA tract, said he had a run-in with Officer Atchley about horses going on TWRA property.
He said he was told that Judge Moon could put him in jail and take his horses away.
Officer Atchley said he has hunted with Judge Moon in the past.
Judge Moon said after the hearing, "Judges neither assign, control nor set cases for trial nor prepare dockets. Those responsibilities are strictly clerical functions and not judicial functions. I will be the first to state that a great majority of the wildlife cases or any specific cases should not have been assigned to me and that is a matter that should be immediately addressed by the TWRA and the clerk's office."