There has been a lot of local media attention this week on a “judge shopping” case making its way through the Hamilton County Criminal Court system.

The phrase “judge shopping” is always in quotes and sounds very untoward, but what exactly is judge shopping and why does everyone appear to be so alarmed over it?

Judge shopping is the effort to get your case in front of a Judge you think will rule in your favor.

And what’s so wrong with that? After all, didn’t your momma advise, “You’d better shop around”? If you were on trial for your life, and you could shop between two judges, The Hanging Judge or Old Softy, wouldn’t you pick Old Softy?

A fair trial in a fair tribunal is a bedrock constitutional principle of our judicial system and that fundamental right of fairness flows from the constitutional phrase “due process of law.”

The Framers of our Constitution were deadly serious about guaranteeing procedural fairness to criminal defendants, and any real or perceived manipulation of the assignment of a criminal case to a certain judge or away from a certain judge strikes a blow against the basic notion of procedural fairness.

Most state court systems, and all federal court systems, deal with judge shopping proactively by devising administrative systems based on the random assignment of cases.

What if the sneaky, mean old prosecutor was clever enough to beat the random system and got your case set before The Hanging Judge?

What happens when the random assignment system breaks down or is thwarted deliberately? Can anything be done about it?

Interestingly, the answer is, “Probably not.” And, that is why our local case is really much ado about nothing.

Here are the facts in a nutshell: Gary Wayne McCullough was arrested on August 30, 2008, by officers of the Tennessee Wildlife Resources Agency (TWRA) on charges of Boating-Under-The-Influence (BUI) and other lesser boating offences.

On Nov. 12, 2008, McCullough had a preliminary hearing before General Sessions Court Judge Bob Moon as to whether there was probable cause (facts and circumstances within the arresting officer's knowledge sufficient to warrant a prudent person to believe that a suspect has committed a crime).

Judge Moon found there to be probable cause that McCullough committed BUI and sent the matter to the Grand Jury. The Grand Jury also found probable cause and issued formal criminal charges (indictments) against McCullough.

The case is now in Criminal Court and making a big splash because the Defendant has filed a motion to have his case dismissed on the grounds that “his right to Due Process of Law has been violated due to ‘judge shopping’ by agents of the Tennessee Wildlife Resources Agency (TWRA) and other unknown parties in collaboration with them.”

More specifically, McCullough alleges that local TWRA officers have been engaged in a pattern of deliberately placing the majority of their criminal cases onto two of the five Hamilton County General Sessions Court Judges’ trial dockets.

Further, McCullough alleges that a TWRA officer deliberately placed Defendant’s case onto Judge Moon’s trial docket and by-passed the Court approved random selection process, thereby committing the unconstitutional act of judge shopping.

Courts take pains to prevent judge shopping, but once confronted with the fact of a successful judge shopping trip—once the horse has escaped from the barn—the legal analysis turns to ascertaining whether any harm or prejudice resulted.

Remember, both The Hanging Judge and Old Softy were elected to the bench and meet all the requirements to hold judicial office. The law recognizes that every judge has his or her own eccentricities, foibles, quirks, point of view and understanding of the law.

This is the legal analysis McCullough faces:

A defendant does not have a right to have his case heard by a particular judge, or the right to have his judge selected by random selection. Even when there is an error in the process by which the trial judge is selected, the defendant is not denied due process as a result of the error unless he can point to some resulting harm.

After all, exactly one-half of all defendants will appear before The Hanging Judge. The other half will appear before Old Softy. It’s the luck of the draw. If the system works perfectly, there is still a fifty percent chance your case will be heard by The Hanging Judge. So why would we dismiss charges solely on the grounds of judge shopping when you could have ended up with him anyway?

Assuming that judge shopping occurred, did the fact of judge shopping harm McCullough in any way? The answer is most likely no. After all, he had a 20 percent chance of getting Judge Moon anyway.

The answer is yes, ONLY if the Judge was not neutral and detached at the time of the preliminary hearing. If the judge was in some way disqualified by a judicial conflict of interest peculiar to McCullough’s case, only then may McCullough’s case be dismissed.

And that leads me to next week’s Part II article: “Was The Judge Winking At Me, Or Giving Me The Evil Eye: When A Judge Is Disqualified From Hearing A Case.” Stay tuned.

My column title is “Loopholes and Alibis”

D. Marty Lasley
Attorney at Law
615 Walnut Street, Suite 200
Chattanooga, TN 37402
423 309-4218
lasleylawoffice@mac.com