Judge Shopping Case Returns to Criminal Court in Hamilton County, TN

• STATE OF TENNESSEE v. GARY WAYNE MCCULLOUGH

This is the Hamilton County TN Wildlife Resource Authority case that has drawn considerable attention for its allegations of judge shopping.  Today, the Court of Criminal Appeals reversed the trial court and returned the case back to criminal court on an indictment.  In short, the defendant once again faces charges of boating under the influence and possession of marjiuana.

The court found that because the proof from the hearing does not support the trial court’s ruling that the defendant, who was prosecuted pursuant to an arrest warrant (as opposed to a citation), suffered a Constitutional violation of due process by the TWRA’s practice of judge-shopping in citation cases, the order of the trial court is reversed.

State prosecutors and the attorney for McCullough both agree that the TWRA engaged in a repeated pattern of judge-shopping when setting citation cases for hearing in the Hamilton County General Sessions Court. The trial court ruled that this pattern of judge shopping deprived the defendant of his due process rights under both the Fourteenth Amendment of the United States Constitution and article I, section 8 of the Tennessee Constitution.

On appeal, the defendant contends that the trial court correctly ruled that the defendant’s due process rights were violated by TWRA officers’ judge-shopping but that the trial court erred by not dismissing the indictment. The state disagrees and claims instead that the trial court got it wrong by dismissing the indictment and remanding the case to general sessions court because “the defendant has failed to prove not only that his case was improperly assigned but also that he was prejudiced by the assignment.” Also, the state contends that the indictment by the grand jury cured any defect that may have occurred in general sessions court.

Siginificant to the court of appeals, the defendant in this case was prosecuted pursuant to an arrest warrant, not a citation. The parties stipulated that no evidence would show that the defendant’s random computerized case assignment had been manipulated or changed. Regardless of any findings

the trial court made relative to TWRA officers’ choosing particular judges to hear citation cases, the record is clear that the defendant was prosecuted pursuant to an arrest and that his case assignment was not manipulated. The court wrote that because proof is absent in the case that this case was assigned to Judge Moon’s court via judge-shopping by the TWRA, the defendant’s due process allegation must fail.

Upon remand, the trial court is directed to reinstate the indictment.