Tennessee Judge Grants Permission for The Post & Email to Record Court Hearing

IN STATE OF TENNESSEE V. ROY COOK

by Sharon Rondeau

(Sep. 26, 2015) — At the conclusion of court proceedings on August 18 at the Roane County, TN courthouse in Kingston in the case of State of Tennessee v. Roy Cook, a new hearing date was set for November 16 during which Cook’s allegations against the prosecution for Brady violations are expected to be aired.

Brady violations involve the prosecution’s failure to divulge exculpatory or “favorable” evidence to the defendant and his counsel.  Roy Cook has pointed to emails exchanged between the accuser, his twin brother, Andrew Cook, and Vittatoe which Roy said contain “whited-out” information.

Roy Cook also alleges other instances of prosecutorial misconduct.

Judge E. Eugene Eblen, who is retiring after 50 years on the bench at the end of the year, is presiding over the case, for which a trial date of April 5, 2016 has been set on a charge of extortion.

Roane County is part of Tennessee’s Ninth Judicial District whose District Attorney General, or chief prosecutor, is Russell Johnson.  According to Cook, Johnson delegated the prosecution of the case to deputy prosecutor Robert C. Edwards after investigator Jeff Vittatoe moved to Montana approximately two years ago.

Johnson may be seeking Eblen’s seat on the bench, although an email inquiry to Johnson sent several weeks ago asking whether or not he would do so did not receive a response.

In The Post & Email’s previous coverage of the Cook case, it was noted that Vittatoe used a Yahoo! email account to communicate with Andrew Cook.

On August 18, Roy Cook was accompanied by not only his attorney, Joshua Hedrick, but also an observer who brought a recording device which Eblen did not permit him to use.  Judges in Tennessee are provided wide latitude in deciding whether or not audio- and/or video-recording of proceedings will be permitted.

As The Post & Email has documented over the last six years, obtaining audio-recordings of trials, motions hearings and other court proceedings is virtually impossible in the state of Tennessee. Many defendants have reported that judges and court clerks have refused them documentation in various forms pertaining to their cases, and The Post & Email has received letters from inmates with the same experience.

In one case, a prison inmate filed a lawsuit after having been refused a copy of his grand jury indictment by the court clerk, after which the judge felt it necessary to issue a formal court order denying its release. The Post & Email will be publishing the judge’s order in the near future in a separate article.

Tennessee’s Public Records Act states that microfilms, audio-recordings, documents, minutes of meetings, and other government-generated documents will be made available to “any citizen of this state” at a reasonable cost or upon request at the location where the documents are maintained, with nominal copying fees assessed.

On several occasions, The Post & Email has been refused both audio-recordings and documentation based on our geographic location outside of Tennessee. In one instance, Monroe County chief clerk Martha M. Cook released an audio-recording of a probable cause hearing involving Walter Francis Fitzpatrick, III, and court transcriptionist Denise Barnes accepted our $33.00 payment for a transcript of Walter Francis Fitzpatrick‘s June 28, 2010 arraignment hearing.  However, outside of those instances, we have been denied all requests for audio-recordings and most for public documents.

While Roy Cook reported that he was told that no one in Roane County has ever been prosecuted on an “extortion” charge, Fitzpatrick was accused, tried and convicted of the same charge as well as “aggravated perjury” in June of last year by nearby McMinn County in the Tenth Judicial District for which he is serving a three-year sentence in state prison.

On September 2, 2015, The Post & Email contacted the Roane County Criminal Court to inquire about the possibility of a volunteer recording Cook’s November 16 hearing.  The clerk who took our call could not provide an answer to our question and immediately transferred us directly to Judge Eblen’s chambers.

Judge Eblen picked up the phone, and we explained why we desired an audio-recording, citing the denial of official audio-recordings by the courts, particularly to those who are out-of-state.

Eblen offered us a typewritten transcript which he said the court reporter could prepare upon request, but we explained that we would like an audio-recording instead.  Eblen then requested that we send him a written request for him to consider.

On September 3, we mailed the following letter to Eblen’s office:

On Thursday, The Post & Email received a voice message and subsequent email stating that Eblen had approved our request to audio-record Cook’s hearing on November 16, 2015 with the caveat that we “not create a disturbance.”

The email we received reads as follows: