published Monday, September 9th, 2013

Assistant District Attorney Paul Rush faces ethical misconduct hearing in Cleveland, Tenn., case

The disciplinary board for Tennessee attorneys will hear ethics charges this week against a prosecutor who triggered a mistrial against a triple-murder defendant.

It's been more than three years since Michael Younger walked free on three counts of first-degree murder and aggravated robbery in the 1999 Valentine's Day slaying in Cleveland, Tenn.

Younger's trial ended in a mistrial in May 2010 after the judge found that Assistant District Attorney Paul Rush withheld evidence from the defense and asked witnesses questions he'd been told not to bring up. Charges against Younger eventually were dismissed, although another defendant was convicted of murder and sentenced to life without parole in the deaths of Dawn Rogers, Cayci Higgins and O.J. Blair.

In July 2012, Tennessee's Board of Professional Responsibility filed a petition charging Rush with ethical misconduct. Today and Tuesday, a panel of three attorneys will hear testimony and view evidence. If they find Rush violated the Rules of Professional Conduct, they could order discipline ranging from censure to suspension of his law license.

Rush's attorney, Dan Ripper of Chattanooga, did not respond to a request for comment last week.

The context for this week's hearing is an extended investigation into the 10th Judicial District of Bradley, McMinn, Monroe and Polk counties.

In August 2012, the Chattanooga Times Free Press published a six-day series airing allegations of prosecutorial and financial misconduct in the district attorney's office and the 10th District Drug Task Force, whose chairman is DA Steve Bebb.

Two weeks later, state Attorney General Bob Cooper ordered the Tennessee Bureau of Investigation and comptroller's office to pursue allegations raised in the series. In March, Cooper released a report stating that he had found no prosecutable violations against Bebb. Then the Senate Judiciary Committee and a special House oversight committee began looking into evidence developed by the TBI, comptroller and other sources.

The House committee has voted to recommend that Speaker Beth Harwell appoint a panel when the Legislature convenes in January to consider ethics charges against Bebb. The Senate committee has not yet voted.

Harwell's office said two weeks ago that she filed a complaint against Bebb with the Board of Professional Responsibility based on evidence in the TBI report. Rep. Tony Shipley, chairman of the House panel, said a panel member and Senate Judiciary Chairman Brian Kelsey each told him they also filed complaints.

The board's actions are confidential and it will not confirm or deny whether it has received complaints.

YOUNGER TRIAL

In the Younger trial, Criminal Court Judge Amy Reedy found that Rush knew, but didn't tell the defense in a timely manner, that a key prosecution witness was under investigation for check forgery. That knowledge would have allowed defense attorneys to raise doubts on the jury about the witness' credibility.

Reedy also found that Rush had asked another witness if Younger was a drug dealer, despite Reedy's order not to ask that.

Reedy declared a mistrial and ordered Rush and Assistant District Attorney Jim Stutts, who had told Rush about the problems with the witness, to report themselves to the Board of Professional Responsibility.

Younger's defense attorney, John Cavett of Chattanooga, said then he suspected Rush set out to tank a trial the prosecution was losing.

However, Rush said then that investigators were supposed to tell him if the bad check case against witness Anita Wilson developed, but they never did so. He said he could ask the other witness, Pam Upton, whether Younger sold drugs because defense attorneys had asked the question.

Reedy made a finding of prosecutorial misconduct against Rush but did not find he was trying deliberately to trigger a mistrial.

The board had not taken any public action against Stutts, who left the district attorney's office earlier this year.

The hearing will be held in Hamilton County Chancery Court.

Contact staff writer Judy Walton at jwalton@times freepress.com or 423-757-6416.

about Judy Walton...

Judy Walton has worked 25 years at the Chattanooga Times and the Times Free Press as an editor and reporter focusing on government coverage and investigations. At various times she has been an assistant metro editor, region reporter and editor, county government reporter, government-beat team leader, features editor and page designer. Originally from California, Walton was brought up in a military family and attended a dozen schools across the country. She earned a journalism degree ...

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