The district attorney, first and foremost, has a duty to every citizen to search for justice without bias. They serve as our representative. It is possibly the most important political race to us as citizens. For this reason, I am concerned when I hear campaign promises that are untenable, impractical or even counter-productive to the fair administration of justice. I wouldn’t want a candidate to obtain votes for the impossible or the untrue.
At the recent debate between the district attorney candidates, one candidate’s selling point was her claim that she would have her assistants at the scene of murders within 15 minutes of the call to police. This is the type of idea that sounds good to the listener, but in reality would harm efforts to achieve justice. It could only be presented by someone without knowledge of criminal procedures or prior management experience in a prosecutor’s office. In reality, this rule would create headaches for law enforcement and harm their cases.
I speak with experience. I have formerly served as Hamilton County’s federally funded DUI and vehicular homicide prosecutor, Hamilton County’s gang prosecutor and as an assistant United States attorney on the U.S. border with Mexico. It is true that prosecutors need to see the scene of the crime in major cases. I know that it is common practice for them to do so. I used to go to the scene of vehicular homicide cases in the wee hours of the night. I have visited gang shooting scenes to see the location of bullet holes. I have traveled into the desert to retrace the route of cartel-based drug traffickers. However, this always occurred after detectives had reviewed the crime scene thoroughly and collected their evidence. I would never attempt to invade a crime scene, as a prosecutor, 15 minutes after notice to law enforcement. That would cause major problems.
To begin, I’d be stepping on law enforcement’s toes. Effectively, I’d be telling them that their investigators, professionally trained, need oversight. Most investigators receive hours upon hours of special schooling to learn processes for collecting and identifying evidence. This is different from the role of the prosecutor in conveying the import of that evidence in court. An intrusion of this kind can lead to command-and-control problems on scene. Do investigators on scene report to a lead investigator, or should they run everything by the state’s lawyer? From experience, I will tell you that there is often a natural deference toward any lawyer on scene, even when that shouldn’t exist. This stymies the chain-of-command for law enforcement.
Legally, an on-scene prosecutor would also be making himself a witness to the crime scene. Crime scene logs exist for a specific purpose. Chain of custody issues exist for each individual piece of evidence. A prosecutor should not be traipsing around a crime scene until all evidence is collected. Otherwise, he is an extra distraction on scene, and he may, unintentionally, disturb (or even destroy) evidence.
Detectives are given the duty of collecting evidence because they may then be required to hold their right hand up in front of a jury and be sworn to testify, at trial, regarding the facts obtained in the case. If a prosecutor finds himself or herself in the middle of that process, he could be called as a witness. This creates a host of problems. For example, what if the prosecutor knows of additional information not collected by law enforcement? What if that additional information was not disclosed before trial? Or, what if the prosecutor overheard a statement and his or her memory involved slightly different language from that in the official report? Does that make the prosecutor a conflicting witness with conflicting testimony? Should a prosecutor be required to take notes of what they see if they arrive on scene while evidence is being collected? This is where a prosecutor’s lack of professional training in evidence collection is problematic. Being a lawyer does not make one a good detective.
An even bigger nightmare from this scenario is the conflict of interest it creates. If a prosecutor is on scene, and they must dutifully prosecute all crimes within the county without bias, how can they do so if they are on scene at the time law enforcement makes the seminal determination whether a crime occurred? Are they not part of that process? Can they review that decision without bias? If they are a witness to that crime, a defense attorney will certainly ask the judge to exclude them from handling the case. Typically, the complete district attorney’s office is recused from the case if one of their own is a witness. This is an overwhelming burden on the taxpayer. Effectively, having assistant district attorneys on scene for homicide investigations would cause all homicides to be handled by prosecutors from outlying counties. In other words, our taxpayers would be paying outsiders to prosecute our homicide cases. This would be expensive, burdensome, and counter-productive. It would allow our DA’s office to “pass the buck” on all major cases.
The district attorney’s office has a limited budget. We as taxpayers must fund that budget. Having prosecutors, at all hours of the night, at shooting scenes and vehicular homicide wrecks is also impractical. They are citizens like us. They have families. Their children go to school. They cannot be out in the middle of the night and still effectively serve eight hours a day prosecuting cases. The amount of mental energy necessary to examine and cross-examine witnesses in court is significant. You cannot effectively try cases and conduct hearings on zero sleep. A proposal to have our assistant district attorneys at all overdose death scenes would further exacerbate this issue. We need lawyers in court prosecuting their cases. Prosecutors are always available by phone to handle legal questions as they arise.
It is evident that these campaign promises are not from someone with prior management experience in a prosecutor’s office. The candidate who proposed this “15 minute arrival time” rule should seriously consult with her advisors about the legal ramifications of these proposals. I do not believe them to be legal, practical or wise when considering issues of becoming a witness or being conflicted-out of handling a case. I do not come to this point of view lightly. I have tried cases ranging from DUI to 1st degree murder. I have mediated disputes between ICE, DEA, Border Patrol and the FBI. I have been involved in several cases related to officer involved shootings. I have prepared a death penalty notice on a case arising in this county.
Hamilton County needs someone with decades of experience as a prosecutor rather than someone with brief experience. Hamilton County needs someone who has actively managed a district attorney’s office and the many difficulties that arise in that role. I do believe the challenger means well. However, Neal Pinkston is the only person in the present district attorney’s race with the experience and knowledge necessary to effectively represent the citizens’ interests in a fair and unbiased manner. He sees the above issues. He can’t propose a “15 minute crime scene arrival rule” because it is harmful to the county. He would not put us all at a disadvantage by having outside prosecutors, from other counties, handle our most critical cases. Prosecutors regularly go to crime scenes, however, veteran prosecutors wait to arrive until after the evidence is collected.
The proposal by Pinkston’s challenger demonstrates her lack of preparation and understanding of the job she is proposing to do.
Bret Alexander
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Bret, I would encourage you to review State vs. Ownby 2009 Tenn. Crim. App. LEXIS 40 *; 2009 WL 112582. The relevant holding from the Tennessee Court of Criminal Appeals is as follows:
This court and our supreme court have previously concluded that an Assistant District Attorney General's participation in the investigation leading to the indictment and prosecution of a defendant does not disqualify him from prosecution of the underlying case. State v. Claybrook, 736 S.W.2d 95, 104 (Tenn. 1987); see also State v. Elrod, 721 S.W.2d 820 (Tenn. Crim. App. 1986). "The actions of [the Assistant District Attorney General] in the investigation of this case, including the interrogation of the defendant following his arrest, were a part of his sworn and required duties as an Assistant District Attorney General. There is no merit to this issue." Elrod, 721 S.W.2d at 822. This court has also determined that an attorney, employed by the state and involved in the prosecution of the case who may be called as a witness by the opposing party is not subject to disqualification unless or until it becomes evident that his testimony will be prejudicial to the interests of his client. See State v. Browning, 666 S.W.2d 80, 87 (Tenn. Crim. App. 1983); [*28] see also State v. Zagorski, 701 S.W.2d 808, 815 (Tenn. Crim. App. 1985).
I would also encourage you to review State vs. Grooms 2020 WL 9171956 in which the holding from the Tennessee Court of Criminal Appeals is similar to State vs. Ownby.
It's unsettling that you have been a prosecutor who has been present on major crime scenes, but you disagree with the notion that prosecutors should be present at major crime scenes.
I, too, have been a prosecutor. District Attorney General Steve Crump encourages his assistant DAs to not only be present on the scene of homicides, but also overdose deaths, in the event that the overdose death could be prosecuted as a second degree murder. Unfortunately, in Hamilton County there are currently too many overdose deaths per year for the latter to occur, but certainly with 30-40 homicides a year, and approximately 28 prosecutors in the District Attorney's Office, it is entirely reasonable to ask an assistant district attorney to be on the scene.
The assistant district attorney, or myself, will be on scene to simply be helpful to law enforcement if the need arose. In the 10th Judicial District, where I prosecuted, it often meant helping with search warrants or simply familiarizing oneself with the case as early as possible.
Also, there will be no "15 minute rule" that you speak of. It's an appealing headline for an opinion piece, but it's simply not part of my platform. I mentioned "15 minutes" in a debate simply as an example. Logistically, one can often not even make it across town in 15 minutes. However, I will attempt to help the law enforcement agencies in Hamilton County by having an assistant district attorney on the scene of a homicide within a reasonable amount of time.
I believe you have my cell phone number. I have not heard from you since I began my campaign, but would love to meet with you any time to discuss this issue, or any others. My email address is also below.
Coty Wamp
wamp.coty@gmail.com