Chattanooga prosecutors have until Halloween to turn over evidence that would help 54 people charged in a gang racketeering indictment defend themselves. But some defense attorneys say that's too much time and that prosecutors should have provided that information about three weeks ago.
"The facts and circumstances of this prosecution are atypical," defense attorney Ben McGowan wrote in a recent motion for his client, Che' Anthony Berry Cannon. "The state was in complete and unilateral control over the timing of the investigation and the presentment and should, therefore, have had complete and organized [evidence] to be provided at or near arraignment."
McGowan is one of the approximately 45 attorneys who began representing the alleged gang members on April 27 in Hamilton County Criminal Court. Many defendants entered "not guilty" pleas that day, even though they don't know what they're specifically accused of doing, apart from allegedly belonging to the Athens Park Bloods gang. In a 22-page presentment based on a monthslong investigation, prosecutors say that street gang is responsible for murdering a state witness, starting fires, robbing houses, conspiring with other alleged members to sell drugs, and helping other alleged associates bond out of jail.
But only eight or so of those indicted are associated with those specific allegations. The rest, who face at least 12 to 20 years in prison, say they won't know their roles until prosecutors provide them with evidence of prior crimes, and how they relate to gang activity. Criminal justice experts previously told the Times Free Press this approach is fairly common: If a case drags on with vague information, a defendant might be more likely to flip and testify against someone else. It's the same strategy federal prosecutors used to take down mob bosses and leaders of other criminal syndicates.
Still, it means defense attorneys can't thoroughly investigate the state's evidence until they know what it is, McGowan said in his motion.
Melydia Clewell, a spokeswoman for the local district attorney's office, said prosecutors are following a scheduling order put in place by Criminal Court Judge Tom Greenholtz and likely will provide evidence soon. Clewell said there's no legal requirement that prosecutors must provide evidence to defendants on the day they plead guilty or not guilty to their charges.
"We generally provide discovery long before deadline," she wrote Thursday in an email. "At present, I have no reason to believe that will not be true in this case."
In the meantime, some Chattanooga attorneys gathered Wednesday and Thursday at a local restaurant to discuss the law that makes this kind of prosecution possible. Boyd Patterson, a former prosecutor and current public defender who helped write that legislation in 2012, said defense attorneys can get creative with their legal arguments because Tennessee's law is narrowly written.
For instance, Patterson said, the law says Tennessee prosecutors can include only certain prior crimes in certain time windows. Patterson also said Tennessee's law appears to be the only one of the 33 such laws in the nation that includes language about defendants committing crimes for financial gain. Patterson said he wrote a bill to remove that language from the state's law in 2013, to make it broader like Florida's law, where state prosecutors routinely bring gang racketeering cases. But the bill never passed because of a high projected cost, Patterson said.
In the meantime, defense attorneys could have lots of options for a motion to dismiss.
"When is the beatdown of a rival gang member related to financial gain?" Patterson asked. "Same with an aggravated assault or a murder. The state's going to have to show that it is. [The state] can say the legislative intent is satisfied [for financial gain] because the motives of the criminal enterprise are met. However, it's just as easy to interpret that every single [prior crime] must be proven to involve [financial] gain. And this is one of the things the Legislature decided not to pass."
Contact staff writer Zack Peterson at firstname.lastname@example.org or 423-757-6347. Follow him on Twitter @zack peterson918.