A prosecutor up on ethics charges related to the collapse of a triple murder case three years ago faced a panel of fellow attorneys Monday and defended himself.
Paul Rush, assistant district attorney in the 10th Judicial District of Bradley, McMinn, Monroe and Polk counties, faced three ethics allegations brought by the Board of Professional Responsibility, the disciplinary agency for Tennessee lawyers.
They arose from the 2010 "debacle" when Michael Younger, on trial for three counts of murder and robbery in the 1999 Valentine's Day slaying in Cleveland, walked free on a mistrial.
The questions: Did Rush hide information helpful to the defense?
Did he ask a witness a question the judge specifically had ordered not be asked?
Did he disobey the judge's order afterward to turn himself in for possible discipline?
The answers should come from a panel of three local attorneys within 10 days.
Krisann Hodges with the Board of Professional Responsibility attorney presented the charges.
The first allegation is that Rush knew for months the state's key witness, Anita Wilson, was being investigated for bad checks but didn't tell the defense until two days before Younger's trial began. Prosecutors are required to give the defense information that can help the accused person's case. Here, the defense found out that Rush's senior prosecutor, Jim Stutts, had asked a Sweetwater, Tenn., detective to avoid charging Wilson until she testified against Younger.
Kim Parton, one of Younger's attorneys in the death penalty case, testified that Wilson was "the only witness who said Michael Younger implicated himself in this murder."
John Cavett, Younger's other attorney, testified that if Wilson was getting special consideration from the state for her testimony, "We had a right to know that."
"A man was on trial for his life. You don't monkey around with that, and you don't let anyone monkey around with that," Cavett said.
But Rush, questioned by his attorney, Dan Ripper, said the bad-check case against Wilson was just beginning when he learned about it. He said he didn't know Stutts, his supervisor, had asked the detective to slow-walk Wilson's case, and he had given the defense everything else in Wilson's voluminous criminal file.
"I was trying to tell them everything that I knew even if it was not pending," he said.
The second allegation is that Rush asked a witness whether Younger was a drug dealer, although Criminal Court Judge Amy Reedy specifically ruled that couldn't be asked.
The killing of O.J. Blair, Cayci Higgins and Dawn Rogers at a Cleveland apartment happened shortly Blair had fought with Younger and Maurice Johnson, another defendant, at a party in Sweetwater.
"Two days later, he ends up executed in the back of the head at his house," Rush testified. Johnson was convicted of murder and is serving a life sentence. A third defendant, Twanna "Tart" Blair, was freed after a mistrial.
At Younger's May 2010 trial, Cavett had asked a string of witnesses whether various people in the case were drug dealers. On cross-examination, he asked Pam Upton, who hosted the Sweetwater party, whether another person in the case also was a dealer. She said yes.
Rush came right back and asked Upton on redirect if Younger also was a drug dealer.
Rush testified he believed that Cavett's questions had violated the judge's order, so he was then free to ask as well.
"I thought, he just gave everybody in this case a motive except my defendant. He violated the order; he opened the door. ... I was very mad."
The defense objected and a mistrial was declared later.
Cavett maintained the crucial difference was that Younger was on trial.
"The defendant's the one with the due process right," he said.
Cavett had suggested at the time Rush tried deliberately to trigger a mistrial in a losing case, but Reedy and a later judge didn't find that to be the case.
When Ripper pointed out that the judge's order specifically mentioned other witnesses who weren't to be asked about drug dealing, Cavett conceded the state could have objected to his questions. But Rush didn't do that at the trial.
The final allegation is that Rush disobeyed the judge's order to report to the Board of Professional Responsibility. Reedy actually ordered him and Stutts to report and Cavett and Partin to write the board about the prosecutors' conduct.
Rush testified that the rules of professional conduct allow an attorney to research the law and, if he feels he hasn't committed a violation, not to report. He noted that Reedy specifically had said his conduct wasn't the issue in the lack of openness about the Wilson investigation, and said he'd done nothing wrong by questioning the witnesses about drug dealing after Cavett had done so.
Hodges said Rush willfully ignored the judge's order.
She said the board is asking for either a license suspension or public censure for ethical violations, even though "I'm not suggesting that Mr. Rush is completely responsible for the debacle that became the Michael Younger case."
Ripper said Rush made "good-faith" decisions and that, even if he made mistakes, they weren't willful violations of attorneys rules of conduct.
The hearing panel, attorneys Barry Gold, Scott Shaw and Crews Townsend, said they expect to have a ruling in 10 days.
Contact staff writer Judy Walton at firstname.lastname@example.org or 423-757-6416.
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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