“IF ROY HADN’T DONE THOSE ARTICLES, THEY WOULD HAVE DISMISSED THE COMPLAINT”
by Sharon Rondeau
(Sep. 6, 2017) — A four-year-old Roane County, TN extortion case closed without a trial in late June continues to reveal new information which the former defendant, Roy Cook, is pursuing through the Tennessee Board of Professional Responsibility (BOPR) in the form of four separate complaints.
The complaints were filed against District Attorney General Russell Johnson; Assistant District Attorney General Robert Edwards; public defender and Cook’s first attorney, Walter Johnson; and his second attorney, Joshua Hedrick.
Over the case’s lifetime, Roy Cook was represented by a total of four attorneys paid for by the county as well as a fifth serving as “elbow counsel” during the last few months. The other two attorneys were Alan Moore and Jedidiah McKeehan, both of whom resigned because, according to Cook, they, too, refused to subpoena evidence that ultimately resulted in the indictment being dismissed. “None of the four defense attorneys could explain why they didn’t think missing phone records and emails and the results of a forensic analysis of my computers were pertinent,” Cook told The Post & Email. “The only reason I can think of is that everyone knew that the evidence would embarrass them and expose corruption inside the district attorney general’s office, which it did.”
The current four-pronged investigation originated in August 2016, when Roy Cook filed three respective complaints against Walter Johnson, Hedrick and Edwards, who was the face of the prosecution in court. The latter complaint was dismissed with the explanation that only a judge can file a complaint against a prosecutor. “However, after the indictment was dismissed, the BOPR reinstated the complaint and initiated a complaint against Russell Johnson,” Cook said. “It was the Board’s decision to do that after hearing the other complaints.”
On June 26, the case was dismissed at the request of District Attorney General Russell Johnson and upon the approval of Judge Jeffery Wicks. “After causing me time-consuming inconveniences over the last four years, Russell Johnson was not present at the dismissal of the indictment,” Cook told The Post & Email. “I think it was so that he could avoid having to answer some very hard questions about concealing evidence and evidence that was tampered with. It is also important to note that even after being confronted with evidence-tampering and what Johnson refers to as ‘sloppy police work,’ he has not taken any action to investigate or correct the problems.”
In Tennessee, the district attorney general is the lead prosecutor for the judicial district, which generally consists of three or four adjoining counties. The DAG is elected and serves an eight-year term. Large counties such as Knox and Sullivan comprise their own judicial districts.
The “district” designation arose from laws passed by the General Assembly in 1984 which ordered the county criminal courts to cease functioning independently and become a part of the new districts. Grand jurors and trial jurors were to be summoned from the judicial District, not the individual counties. However, each Tennessee county continues to this day to empanel its own jurors and function independently.
The Tennessee courts, including the Supreme Court, have found no fault with the judicial hand-selection of grand jury foremen from outside of the empaneled jury pool, a practice which placed a convicted felon, in contravention of state law, in the Davidson County grand jury several years ago. The longstanding but illegal practice has created a taxpayer-funded position often occupied for years or even decades by the same person.
On March 26, 2013, The Chattanooga Times Free Press reported that then-Tennessee Attorney General Robert E. Cooper, Jr. declined to recommend criminal prosecution for then-Tenth Judicial District chief prosecutor R. Steven Bebb, about whom The Post & Email has reported extensively, following a joint state-level probe. Of Cooper’s findings, The Times Free Press wrote, “The report quoted a Tennessee Supreme Court opinion stating that a district attorney general ‘is answerable to no superior and has virtually unbridled discretion in determining whether to prosecute and for what offense.'”
Throughout his 4+-year ordeal, Roy Cook maintained his innocence against the January 2013 accusation made by his twin brother, Andrew Cook, that he had attempted to extort $30,000 in return for disclosing the location of a number of missing circuit boards belonging to Andrew’s business.
On April 24, 2013, Detective Jeff Vittatoe served a search warrant on Roy Cook’s home office, confiscating two laptop computers, one desktop computer, a cell phone and other items. The computers were not returned for 20 months and the purported forensics report never finalized or signed. The whereabouts of the forensic analyst, Lt. Dan Schneider of the Harriman Police Department, are now said to be unknown. “I find this hard to believe in these days of cell phones and emails,” Roy Cook said of that development. “Surely they would have to have an address to send his W-2 to him.”
On October 21, 2013, the Roane County grand jury indicted Roy Cook and a younger brother, Tom Cook, for “extortion,” but Russell Johnson dismissed the indictment against Tom the same day. Roy Cook claims that Johnson should have known that the evidence provided to the prosecution was incomplete and unreliable from the beginning since neither then-Assistant District Attorney General Bill Reedy nor Vittatoe had wished to present the case to the grand jury. Rather, Andrew Cook testified.
In November 2013, Vittatoe left Tennessee permanently for Montana, although he afterward spoke with Roy Cook by phone about the case on several occasions. During one telephone call, Vittatoe admitted that the prosecution had acknowledged early on that the “evidence” Andrew Cook presented was questionable.
In December 2016, Vittatoe and Roy Cook had an hour-long conversation which Cook recorded and paid a professional to transcribe. Cook told The Post & Email that Vittatoe later stated to private investigator Craig Ward that he was aware he was being recorded, although permission from the other party(ies) is not required to record in Tennessee.
The transcription was provided to Roy Cook in two parts.
On the issue of grand jury testimony, Roy Cook said:
Russell Johnson claims in his BOPR response that he “allowed” Jeff Vittatoe to appear with Andrew Cook to “‘explain what aspects of the allegations he was able to confirm…’ This was my entire involvement with the grand jury presentation.” However, Vittatoe’s name is on the indictment as prosecutor but then is crossed out and Andrew Cook’s name is written in what appears to be Russell Johnson’s handwriting. Vittatoe also states in the transcript on page 68, “I’m glad that I made the decision to ask the general not to present the case.”
Also, both Edwards and Russell Johnson claim every time I said evidence was missing they would call Andrew Cook or Vittatoe and ask for it. However, Vittatoe states on page 55 of the transcript that, “I’ve not seen anything in your case, I’ve not — I’ve not read any documents. I only got quizzed about that redacted email, and I got an email from — and I guess it’s from Bob or from Julia Clevenger, one, but anyway, I responded to it.” So they again lie to the BOPR about calling Vittatoe about the forensic analysis and the missing phone records and emails.
Although Tennessee law allows for any citizen of the community to apply to testify to the grand jury about alleged crime, Andrew Cook was living and working in Costa Rica and maintained a business address in Florida, not Tennessee. In order to testify, an applicant must swear or affirm that the evidence he plans to present to the grand jury is true and complete to the best of his knowledge under penalty of perjury.
As noted on the final page of the case documents below, a log of phone calls provided by Andrew to the prosecution as evidence contains entries whose time frames overlapped. The handwritten notes are Roy Cook’s.
Tom had been employed by Andrew Cook’s company in Costa Rica until late November 2012, when Andrew terminated him. In early 2013, Tom was able to secure a judgment against Andrew in Costa Rica for lost pay. Tensions ran high among the three brothers, Andrew claimed the circuit boards were missing, and Tom died prematurely in June 2014.
In an email dated March 8, 2013 which The Post & Email has seen, Andrew Cook informed Roy Cook, “I have my circuit boards. I found them yesterday morning…” (Emphasis original) However, the prosecution did not present the email to the defense at any time.
Of that omission, Roy Cook told The Post & Email:
I discovered evidence recently that the prosecution did possess that email. The evidence is found in Vittatoe’s recorded conversation from December 2016 when he stated that he did remember seeing that email. It’s on page 49 of the transcript. Since Vittatoe left Tennessee in November 2013 and I never even met with a defense attorney until 2014, the only way he would have seen that email was if it came from the forensic analysis of the computers.
It is important to remember the prosecution denied for three years that a forensic analysis was done and admitted to it only after I discovered the detective who did it. It doesn’t even matter how the prosecution obtained the email; what is important is there is indisputable proof they have it and never turned over the exculpatory email to the defense. Both Russell Johnson and Robert Edwards have made false statements in their responses to the BOPR that all evidence was given to the defense when they asked for it.
We now have proof they withheld that email, and they never turned it over. They’re going to say, “Oh, well, he had that.” How did they know I had it? I never gave them a copy. I had some emails; some I had not saved. But that one I had. I saved it because I figured Andrew was going to try to get Tom busted for theft down in Costa Rica and we wanted some proof that he found them. I assumed he’d told the detective when the detective showed up here with the search warrant. But we looked at him and I told him in one ear and Tom told him in another, and in his email to Andrew, Vittatoe said, “I was surprised to find Tom there. Both brothers told me that you found these circuit boards; I have not heard that from you.”
All Andrew said in his other emails was, “All I ever wanted was to get my boards back and be left alone.” Well, he had that on March 8, 2013; he had his boards back and he was being left alone.
On July 31, 2017, the BOPR contacted DAG Johnson in writing for a response to Roy Cook’s allegations of misconduct within his office, referencing complaint “CAP 53199c-2.” The letter included an email Roy Cook had written to the BOPR placing the blame for his prosecution under questionable circumstances on Johnson. “…Bob Edwards was not completely informed by AG Russell Johnson of all of the facts…Russell Johnson knew of the whited out emails, the concealment of the forensic analysis, and he was the one who pushed us because I did interviews with the Post and Email,” Roy Cook wrote. “Its [sic] his name and not Edwards that should be on the complaint.”
The Tennessee Supreme Court’s Rules of Professional Responsibility has a section for prosecutors, which states, in part:
RULE 3.8: SPECIAL RESPONSIBILITIES OF A PROSECUTOR
The prosecutor in a criminal case:
(a) shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) shall make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) shall not advise an unrepresented accused to waive important pretrial rights;
(d) shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;…
An issue which remains unresolved is the individual who “whited-out” a name from emails included in the initial discovery package presented to Cook’s first defense attorney, Walter Johnson, and whose name it was. Roy Cook has maintained that the altering of an email and the lack of investigation on the part of the prosecution constitutes a crime in and of itself.
On July 24, 2017, Roy Cook told the BOPR in an email that he believes DAG Russell Johnson “pushed a malicious prosecution for personal reasons” which he believes stemmed from a peaceful protest he held against a private company which was a donor to Russell Johnson’s election campaign.
In their responses to the BOPR’s inquiry, Walter Johnson and his cohort in the public defender’s office, Will Wooten, stated that they believed early on that the case against Roy Cook would “likely be dismissed” in 2014 by then-Assistant District Attorney General Bill Reedy (p. 2 below). Walter Johnson added that despite Roy Cook’s computers having been seized and kept by the “State” for forensic analysis for 14 months, “the State…indicated that indeed the computers had not been examined” (p. 3).
Click to access roy%20cook%20walters-response.pdf
On page 4 of Walter Johnson’s response to the BOPR’s letter of inquiry, he wrote:
On page 5, Walter Johnson responded to his former client’s raising of the “computer forensic analysis” issue with:
Rule 3.3(h) of the Tennessee Supreme Court’s Rules of Professional Conduct requires an attorney to report suspected misconduct on the part of another attorney to the “tribunal” with which it is associated:
(h) A lawyer who, prior to the conclusion of the proceeding, comes to know that a person other than the client has perpetrated a fraud upon the tribunal or otherwise committed an offense against the administration of justice in connection with the proceeding, and in which the lawyer’s client was not implicated, shall promptly report the improper conduct to the tribunal, even if so doing requires the disclosure of information otherwise protected by RPC 1.6.
On pages 50-51, Roy Cook informed Johnson in an email as to why he believed obtaining Andrew Cook’s Vonage phone records was important to his defense and that if Johnson proved to be overwhelmed with his current caseload, he would accept the appointment of another public defender.
In exchanging emails with Roy Cook, Walter Johnson appears to have used a non-government email address.
The obtaining of the Vonage phone logs proved crucial to Roy Cook’s convincing Edwards that the “evidence” Andrew Cook had presented to support his claim was faulty. In a partial transcript of a March 31, 2017 hearing, Roy Cook refers to the telephone recordings Andrew presented as evidence against him as “doctored.”
In a July 6, 2017 email to the BOPR pertaining to his complaints, Roy Cook wrote:
In an email which became an open letter dated July 3, Cook excoriated all of the parties who played a role in his prosecution, including that Vittatoe and Hedrick informed him that the prosecution would have abandoned its case years earlier had he not “gone public” by approaching the press, and specifically, The Post & Email.
In an interview with The Post & Email last week, Roy Cook told us that Johnson and Edwards provided contradictory responses to the BOPR as to whether or not they read The Post & Email’s articles on the case. “All of those statements cannot be true,” Cook said. “With Hedrick, he had to admit that he knew I was being prosecuted for your articles because I had the email that he had sent me in July or August 2015. He’s on recordings with the private investigator saying, ‘If Roy hadn’t done those interviews, they would have dismissed the complaint.’ It is also worth noting that Hedrick incriminates himself by this statement. Per the BOPR code of conduct, Hedrick was required to report Edwards and Russell Johnson to the Board but failed to do so.”
Roy Cook has recently revealed (and supplied a copy of) a one-hour, 39-minute recording of the June 5, 2017 meeting with Robert Edwards. Also in attendance at the meeting were armchair counsel Steven McGrath and private investigator Craig Ward. A copy of this recorded meeting has also been provided to the BOPR.
“It was in this meeting that Edwards admitted he and Russell Johnson read the articles ‘two or three times,'” Roy Cook told The Post & Email. “However, in his statement to the BOPR, Russell Johnson denies ever reading any articles. Edwards also admitted to having ‘misgivings’ about certain aspects of the victim’s statements and evidence. If they had all these ‘misgivings’ and were aware of sloppy police work, then why did they proceed with the prosecution? Surely there ‘misgivings’ should have at least initiated an investigation. But no, they were content to try to damage someone’s life in spite of their doubts.”
Hedrick’s response to the BOPR inquiry can be read here: HEDRICK RESPONSE BOPR
On August 24, the BOPR informed Roy Cook that its investigation of his complaints would be advanced to the next level. “After careful review, the CAP Director has determined that all the above complaints should next be reviewed by our Chief Disciplinary Counsel,” the Lead Legal Assistant for the Consumer Assistance Program (CAP) wrote.
On that development, Roy Cook told us:
The only reason this is getting any play with the BOPR is that all four of them have lied. Somebody’s lied, because not everything they said can be true and accurate. Did Russell Johnson read your articles and did it influence his decision? We have one attorney who says, “He read the articles and it influenced his decision.” We have another, his deputy, Robert Edwards, who said, “We read the articles 2-3 times.” Then Russell Johnson said he never read the articles. All three of those statements cannot be true.
Hedrick had to admit he knew I was being prosecuted for your articles because I had the email that he had sent me in July or August 2015, right after you wrote the first article. He was on recordings with the private investigator saying, “If Roy hadn’t done those interviews, they would have dismissed the complaint.”
I had the right to speak about this in public. Part of my complaint is that I was prosecuted because I spoke about this in public. The BOPR should be conducting an open-door investigation, more so than it was with me. They didn’t do an investigation of the allegations against me or, as Vittatoe characterizes it, a “half-****” investigation.
Russell Johnson has to explain why he dismissed the complaint against Tom but not against me. The day we were indicted, he immediately dismissed Tom’s. It’s in Walter Johnson’s response; it has the initials “RJ” next to it, so it was made by Russell Johnson. So what did he see in the evidence that made him dismiss the indictment against Tom? If he looked at the evidence against me closely, he would have seen the lies, and he had been told that Andrew had concealed the fact from Vittatoe that he found the missing boards in his home. That should have been a red flag. But remember, Johnson states he didn’t even participate in the grand jury presentation and states in his response to the BOPR, “I have no direct knowledge of Andrew Cook’s testimony.”
Russell Johnson can’t have it both ways. He can’t claim no knowledge, then dismiss the indictment against Thomas for lack of evidence. It appears Russell Johnson’s own words and deeds are coming back to haunt him because also, in his response to the BOPR, he lies when he says Thomas Cook was not indicted. Russell Johnson dismissed that indictment. Even Walter Johnson from the public defender’s office confirms this “was a huge red flag.” It will be interesting to see what the BOPR decides to do in reference to Russell Johnson’s actions and false statements.