DO TENNESSEE PROSECUTORS FOLLOW THE LAW OR CREATE THEIR OWN?
by Sharon Rondeau
(Aug. 18, 2015) — On Friday, a hearing took place in the prosecution of Roy Cook of Roane County, TN, on a charge of “extortion” dating back to April 2013.
In a previous article dated June 27, The Post & Email reported that Cook understands that he is the first person to have been prosecuted on the charge in the history of Roane County. Cook protests his innocence on the charge, which was brought by his twin brother, Andrew Cook, to the Roane County grand jury.
Discovery documentation in the case can be found here. The case is being prosecuted by Ninth Judicial District chief prosecutor Russell Johnson.
In Tennessee, judicial district lead prosecutors are called “District Attorneys General.”
Roy Cook told The Post & Email that he was told to appear in court on Friday at 10:00 a.m. but his case was not heard until 2:30 p.m.
Roane County’s grand jury foreman, Charles C. Snow, was appointed by Judge Jon Kerry Blackwood in 1990 after having served as a court clerk for a number of years. Over the past six years, The Post & Email has reported that numerous state laws have been violated by Tennessee’s criminal courts regarding juror selection and that statutes passed in 1984 ordering county criminal courts to reorganize into multi-county districts were never observed.
Cook’s first attorney, public defender Walter C. Johnson, declined to speak with The Post & Email about the case in May. Cook has stated before and maintains that Walter C. Johnson failed to do anything on his case in the 14 months he represented him and finally filed a motion to be replaced as counsel. Cook reported that Johnson said that he “wasn’t strong enough to handle” his case.
Cook said that he learned through a confidential source that Walter Johnson is considering running for the judgeship being vacated at the end of the year when Judge E. Eugene Eblen is scheduled to retire.
Eblen did not allow an assistant Cook brought to the hearing to record it.
“I have grounds for a Motions hearing to get this dismissed on Brady violations,” Cook told The Post & Email on Friday evening. “This is Supreme Court material. It has to do with the prosecution disclosing evidence. ‘Brady‘ was a case that was reversed because it was found that the prosecutor withheld information. If you withhold information, it’s a Brady violation; if you withhold exculpatory evidence, that’s a Brady violation.
“In the past, they would say, ‘Well, we didn’t have it.’ That’s not an excuse any more, because if you know of exculpatory evidence, even if it’s not in your possession, you are required to inform the defense. They knew,” Cook said, referring to an email whose recipient’s name was redacted by an unknown party. Cook additionally reports that there are missing emails between Andrew Cook and Jeff Vittatoe, the original prosecutor of the case, which the present prosecution claims it cannot find.
A confidential source told The Post & Email that he knows the name of the person whose name was redacted.
“You cannot prosecute a prosecutor or a cop for Brady violations,” Roy Cook said. “The other parts of Brady include tampering with evidence, like whiting things out. If I were to do that, that would be tampering with evidence, and I could be arrested and charged. But if you’re a prosecutor or a cop, they can’t charge you.”
Vittatoe moved to Montana last year and appears to have used a “Yahoo!” personal email account rather than an official “tn.gov” account to communicate with the accuser. According to Roy Cook, Vittatoe’s investigative summary contains “misleading statements.”
“The prosecutor who has this case now, Bob Edwards, just started as a prosecutor last year, according to my attorney,” Cook said. “He got the case because he’s the low man on the totem pole.” Cook reported that an anonymous source claimed that Edwards “thinks the case is ridiculous” but that Ninth Judicial District chief prosecutor Russell Johnson “is pushing it” from political motivation.
On July 10, The Post & Email contacted Edwards, who promised in an email to speak with us on a particular day about the case but never followed up.
Several years ago, Walter Francis Fitzpatrick, III brought evidence of Tenth Judicial District misconduct on the part of judges, court personnel, law enforcers and the grand jury foreman to the Knoxville FBI and was told, “Live with it!” Since then, The Post & Email has reported on a number of other cases throughout Tennessee involving denial of due process, hand-picked grand jury foremen, jurors with conflicts of interest, and public defenders encouraging their clients to take plea-bargains before the prosecution produces a Bill of Particulars relative to the allegations.
Fitzpatrick is himself serving a three-year state prison sentence from the Tenth Judicial District for “extortion” and “aggravated perjury” for attempting to present evidence of government misconduct to the McMinn County grand jury in March of last year. Since late May, Fitzpatrick has reported an internal “prisoners-for-profit” operation in which inmates are forced to participate in educational courses which they have already completed or for which they are exempt by Tennessee Department of Correction (TDOC) administrative policies.
Cook also claimed that under Brady, “The prosecution is required to investigate the case. They never investigated this case. If I can find out what I’ve found out with my limited resources, why couldn’t the prosecutor do it? Someone had to, because they sure don’t want to do it.”
In a follow-up email to Friday’s interview, Cook further expounded, “In Kyles v. Whitley, the Supreme Court said the PROSECUTOR has an affirmative duty to learn of any favorable evidence known to other people and agencies acting on the government’s behalf on the case, including the police. Therefore Edwards or Johnson or both have a responsibility to discover and turn over ANY evidence that may favor the defense. How can they say they have fulfilled their responsibility when there was NO investigation done? In a case like this, the judge can either order them to investigate or he can dismiss with prejudice since a material witness (my brother Tom) is now deceased. They had ample time to investigate and did not do so. in Vittatoe’s investigative statement to the grand jury he states he will investigate. He had 7 months to do so before he left and the state has had over 2 years and hasn’t done so. I’ve investigated more than they have and they have more resources than I do.”
Cook also reported that a “Notice of Particulars” has not yet been received by Hedrick, although it was requested on July 22.
On August 16, The Tennessean reported that four convictions in Davidson County were overturned at the appellate level in a period of 35 days because of prosecutorial misconduct “or errors that warranted new trials.” In the past, then-Tennessee Attorney General Robert E. Cooper, Jr. wrote in an opinion that the District Attorney General is “answerable to no superior and has virtually unbridled discretion in determining whether to prosecute and for what offense.”
In a constitutional republic, public servants are expected to serve their constituents, not dictate to them.
Citing two federal cases, Cook said that a judge can “order the prosecution to disclose” withheld information or “appropriate remedial sanctions” for Brady violations. “‘Remedial sanctions’ means he can dismiss; he can get a continuance; he can somehow punish them. In U.S. v. Bagley, it says the judge can order them to disclose.”
Cook said that if the prosecution claims that Vittatoe’s emails “do not exist,” he and his attorney can then ask, ‘What effort have you put into finding them?'”
From notes taken from a legal paper written about Monroe v. United States, Cook read, “…it invokes the protection of the trial court and confers upon the court the power to eliminate any deficiencies in representation of counsel before the resources have been invested into a full blown trial.”