Brown Says Tape Not To Be Released To Newspaper
posted January 17, 2008
Chancellor Frank Brown, in a 49-page memorandum opinion, has ruled that the Judge John Hagler tape should be returned to him and not made public.
Chancellor Brown said the 15-minute tape did not amount to exculpatory evidence in a murder case and was not a criminal offense.
Judge Hagler of Cleveland had resigned from his post as circuit judge for the 10th District after being advised that a Chattanooga Times reporter knew of the tape.
The newspaper and other news agencies sought to get a copy of the tape, and the Chattanooga Police Department had been set to turn it over to the newspaper and other media outlets. However, Judge Hagler went to court, saying it was his property and was a private matter.
The chancellor listened to the tape and said the recordings "may be called graphic fantasies by some, but which have absolutely nothing to do
with judicial business."
Here are Chancellor Brown's findings:
FINDINGS OF FACTS
Tennessee Code Annotated S 10 7 505 d provides that the court must render written findings of fact and conclusions of law
1 The Chattanooga Police Department has possession of a micro-cassette tape and numerous copies thereof containing Plaintiff s recorded words that are the subject matter of this lawsuit
2 The Chattanooga Police Department is an agency of the City of Chattanooga a
municipality located within the 11th Judicial District
3 The recordings made on the tape in question were dictated by Plaintiff
4 Plaintiff at all times relevant to this Memorandum Opinion and Order was a resident of Bradley County Tennessee
5 The Chattanooga Police Department does not have jurisdiction to investigate matters that occur in Bradley County Tennessee
6 The tape recordings when made were dictated by Plaintiff while he was a Circuit Court Judge for the l0th Judicial District for the State of Tennessee
7 Plaintiff resigned as said Circuit Court Judge effective December 31, 2007. He no longer holds an elected or public position
8 The tape in question was given to Nona Rogers then the judicial assistant for Plaintiff
9 Side A of the tape contained dictation about regarding Plaintiff s judicial functions
10 Ms Rogers testified she had typed the Memorandum Opinion at the beginning of side A therefore she proceeded to side B of the tape to determine if there was any judicial
dictation to transcribe
11 Side B of the tape does not contain any judicial dictation by Plaintiff
12 Side B of the tape consists of private personal recordings by Plaintiff which recordings may be called graphic fantasies by some but which have absolutely nothing to do
with judicial business
13 Ms Rogers kept the tape secreted the tape at the office and later took it to her home and placed the tape in her safe at home
14 Ms Rogers was terminated as Plaintiffs judicial assistant in November of 2005 due to a possible conflict of interest because her husband Mike Rogers was seeking to
become the Circuit Court Clerk for Bradley County
15 Ms Rogers met with Det. Alan Franks of the CPD and an agent of the FBI on
November 18 2005 shortly after her termination and she gave possession of the tape to Det. Franks on that date
16 Ms Roberts did not remember when she first obtained the tape recording in question but admitted that she may have had the tape for one to two years before turning the tape over to the CPD
17 At the time of trial Det Franks has been employed by the CPD for over 24 years and Sgt Bill Phillips has been with the CPD for over 19 years
18 Sgt Phillips was initially assigned to investigate the murder of The Rev Davis and he continues to have that cold case as part of his duties
19 Det Franks and Sgt Phillips both stated that the tape recording is not evidence of any known crime including the murder of The Rev Davis
20 R Steven Bebb has been the District Attorney General for the 10th Judicial
District since September 1 2006 and had served as Criminal Court Judge for the 10th Judicial District prior to his resignation in order to run for the Attorney General position
43
21 General Bebb testified that the recording he heard contained only Plaintiffs voice. However, the words on and the recording itself were not a criminal offense nor evidence of a criminal offense
22 Plaintiff is not a suspect in the murder of The Rev Davis according to the testimony given at the hearings
23 The testimony of Det. Franks Sgt. Phillips and General Bebb seemed clear on these points and no credible or knowledgeable evidence was received to contradict their testimony and
23 The tape recording has no relevance to the murder investigation concerning The Rev Davis
VI CONCLUSIONS OF LAW
1 The Chancery Court for the 11th Judicial District for the State of Tennessee has subject matter jurisdiction of this case pursuant to Tenn Code Ann S 10 7 505 b and Tenn
Code Ann S 29 30 103 a
2 Venue is proper because the defendant City of Chattanooga is a municipality located in Hamilton County Tennessee which is within the 11th Judicial District
3 Plaintiff is the owner of the recording on the micro-cassette tape and the copies made thereof
4 The microcassette tape recording and all copies should be returned to Plaintiff through his attorney if the recording is not a public record and does not contain exculpatory evidence
5 Tennessee Code Annotated S 10 7 301 6 Supp 2007 defines public records
as made or received pursuant to law or ordinance or in connection with the transaction of official business by any government agency
6 Tennessee Code Annotated S 1O 7 503 a Supp 2007 by wording applies only
to public records and not to private or personal material
7 The mere use of government property in creating a private or personal item of property does not automatically transform the private or personal item into a public record
8 Side B of the tape recording is not a public record because the tape recording had no relationship with Plaintiffs transaction of official business
9 The possession of an item of property by a governmental agency does not in and by itself make such an item a public record
10 The State must provide a person charged with a crime any exculpatory evidence it possesses
11 The State includes local police departments and other persons involved in the investigation and prosecution of persons charged with criminal offenses
12 Exculpatory evidence is evidence that indicates someone other than the accused committed the crime lessens the punishment of the accused or impeaches the state's witnesses who testify against the accused person
13 The tape in question is not exculpatory evidence related to the investigation of the murder of The Rev Davis or any other person and
14 The micro-cassette tape the recording on such and all copies should be returned to Plaintiff as the tape recording is neither a public record nor exculpatory evidence
VII CONCLUSION
Based upon the above the court concludes that the tape recording is not a public record Side B of the tape recording has nothing to do with the Plaintiffs former judicial duties The content of the tape has been examined by agents of the TBI, FBI and the CPD as well as General Bebb many of his assistants and the court. The Newspaper s contention that the use of state property automatically makes the product a public record is not correct. The tape recording is not a public document. Therefore, the Newspaper is not entitled to inspect and copy the tape on this basis. The tape recording is not evidence of a crime. The testimony is unanimous on this Issue. The tape does not contain The Rev. Davis' name or otherwise factually have anything to do with the CPD s investigation to find the murderer of The Rev Davis Because the CPD does not have jurisdiction the tape is not exculpatory evidence and all of the other factors mentioned above the City of Chattanooga through its police department is not entitled to retain the original micro-cassette tape and any copies of such tape.
The court has been called upon to decide fairly narrow issues of law The court considers the record to be developed sufficiently in order that a decision can be rendered as to the legal standard.
This case involves interpretation of the Public Records Act and its exceptions recognized by state law Issues involving the construction of statutes and their application to facts involve questions of law Memphis Publishing Co v Cherokee Children Family Services Inc 87 S W 3d 67 74 Tenn 2002 other citations omitted
The Tennessean supra at 2007 Tenn App LEXIS at 10 This court holds that the issue of whether an item is or is not a public record is determined by the above standard it is a matter of law
There are issues which are of interest to one or more parties and perhaps the public that are not before the court One thing is absolutely clear The Plaintiff was so embarrassed by the tape that he to protect his family and the judiciary resigned his position as Circuit Court Judge. If revenge was a factor in anyone's plan in leaking the existence of the tape, then revenge has been accomplished. If embarrassment and humiliation were the objects of the disclosure, then such have been realized.
Therefore it is ORDERED ADJUDGED and DECREED
1 That John B Hagler Jr. is decreed to be the owner of the recording on the
micro-cassette tape at issue
2 That the recording on the tape is not a violation of the criminal law by
evidence of a crime or exculpatory evidence and a public record
3 That the City of Chattanooga and its Police Department shall release and return to John B Hagler Jr. through his attorney the original micro-cassette tape containing his voice recording and all copies of such tape recording in the possession of the City of Chattanooga the CPD its agents and employees upon the Order becoming a final Order and if such return does not occur and this order is not stayed then the Clerk Master shall issue immediately a
Writ of Possession to size such property
4 The City of Chattanooga and its Police Department its employees and agents are enjoined pending further Order of this court or a court of higher jurisdiction from delivering
up the audio tape recording of Plaintiff or any copies or transcripts or information taken from said tape to any third person firm or corporation including but not limited to the newspaper any law enforcement officer of Bradley County or any other Tennessee County and any municipalities provided however this injunction shall not prevent the Chattanooga Police Department from releasing a copy of the tape to the Tennessee Bureau of Investigation the
Federal Bureau of Investigation or any other appropriate federal agency upon the specific request of these agencies
5 That the City of Chattanooga and or the Newspaper shall have thirty 30 days within which to obtain a stay of this court's order from the Court of Appeals
6 That the Plaintiffs Motion for a Scheduling Order is denied as moot
7 That the Newspaper s Motion to Strike the Plaintiffs Motion for Criminal Contempt is granted and the Plaintiffs Motion for Criminal Contempt is stricken and denied
8 That the Clerk shall seal the Submission of Additional Material and attachments thereto and keep such records private as violative of the spirit of the court s temporary
injunction dictated in open court on January 3 2008 pending further order of this court and or a court of higher jurisdiction
9 That this Memorandum Opinion and Order shall constitute a final judgment on all issues regarding the ownership and possession of the micro-cassette tape the recordings on it and all copies as well as whether the tape constitutes a public record and or exculpatory evidence as there is no just reason to delay the finality of this Order and
10 That the Clerk s costs of this case are adjudged one third 13 against the
Plaintiff one third 13 against the City of Chattanooga and one third 13 against the Intervenors i.e. Chattanooga Publishing Co Tom Griscom and Ryan Harris for which
execution may enter.
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