District Attorney General Clark says no to judge’s demand

Becky Campbell • Aug 27, 2013 at 9:08 PM

District Attorney General Tony Clark said a local judge is taking political stabs at him from the bench, and he has no intention of attending a September hearing in a case in which the judge has verbally demanded his presence.

Criminal Court Judge Robert Cupp issued the verbal directive in open court earlier this month where two of Clark’s assistant attorneys were present. That message was apparently passed on to Clark, who at the time was handling a Greene County murder trial he was appointed to after the DA there withdrew.

“I don’t plan on being in court to explain to him why something was done or not done,” Clark said last week.

Cupp wants an explanation about why two similar cases — both originally charged as vehicular homicide — are being treated differently by the DA’s office. One of the cases, Rachel Proffitt, is in Cupp’s court and has been scheduled for a plea for months. The other, Andrea Nantz, was inherited by Judge Stacy Street after he was appointed to the bench after Judge Lynn Brown retired. It was dismissed in July on the day her trial was scheduled to start.

In Proffitt’s case, she fell asleep while driving on Conklin Road on July 27, 2009, crossed the center line and hit a vehicle head-on. A passenger in that car, Misty Briggs, 22, of Jonesborough, died.

According to information from previous hearings in the case, Proffitt was tired because she had gotten up very early to drive to Asheville, N.C., for her methadone treatment. Asheville is one of the closest locations of a methadone clinic, which treats people addicted to opiates.

In Nantz’ case, she also went off the road, but she rear-ended a vehicle parked on the shoulder of Highway 11E. It happened June 16, 2010, and the driver in the parked car, Floyd Watts, 76, of Greeneville, died.

The state’s theory early in the case was that Nantz was impaired. Toxicology tests showed she didn’t have alcohol in her blood, but did have trace amounts of amphetamines, methamphetamine, oxycodone and marijuana metabolite. Prosecutors said the amounts of the drugs were not enough to have impaired her driving.

Once the impaired driver theory disappeared, the case had moved forward under the theory that Nantz was negligent by using a cell phone at the time of the wreck.

Last-minute investigations by Assistant District Attorney Ken Baldwin — who only came into the case earlier this year — and defense attorney Bill Francisco revealed several key pieces of evidence.

The new information was Nantz had no cell phone with her when the crash happened, her passenger’s cell phone was not in use at the time of the crash and a cell phone number she gave as a contact number — which investigators initially believed to be hers — was used multiple times after the crash when Nantz was immobilized by medical personnel.

An EMT who was at the scene was also set to testify for the defense that Nantz did not have a cell phone when he was treating her or while she was being transported to the hospital.

Baldwin told Judge Stacy Street that it was impossible for Nantz to have been using that phone, which deteriorated the original theory she was distracted by a cell phone.

Clark said Baldwin didn’t feel like he had enough evidence to move forward with prosecuting Nantz, especially after some new evidence was discovered the weekend before the trial.

“That wasn’t an easy decision,” for Baldwin, Clark said. “The judge hasn’t talked to the officers or have the statements from the witnesses in that case. Certainly anytime there’s a death it’s tragic, but in that case we didn’t feel like there was a negligent act that was criminal.”

When Proffitt’s case was scheduled for a plea earlier this month, she had already decided to not enter into the agreement with Assistant District Attorney Robin Ray. The agreement would have had Proffitt plead guilty to criminally negligent homicide.

But Cupp wasn’t going to take the plea anyway because he wants Clark to explain what he calls inconsistencies in how the DA’s office handles similar cases.

Apparently, Clark isn’t going to do that.

“I don’t answer to Judge Cupp, all due respect to him. If he can’t hear a case for whatever reason, I’ll call the (Administrative Office of the Courts) and get a another judge,” he said.

“I have no intention of appearing in his court for him to ask me to explain myself. I don’t answer to him. I answer to the citizens.”

Clark said he believes Cupp’s verbal order is politically motivated.

“I take it as a personal political stab. I have never had a judge order me to court to explain something. I’ve had a judge call me and talk about something,” but never issue an order the way Cupp did, he said.

“There is nothing in the statute that allows a judge to order me into court to explain this. My job as a prosecutor is to evaluate cases, to trust my people, and to decide to try (cases), make an offer or dismiss it.

“For him to call me out, more or less, I take that as just a political stab at me. I took it personally,” Clark said.

“I will always be respectful to judges and the positions they hold but I don’t work for them. If a judge does not take a plea, he needs to make findings of fact and state on the record why he isn’t taking that plea.”

Clark said it needs to be understood that no two cases are exactly the same, so there are different considerations when determining how to proceed.

Proffitt’s case is set for Sept. 26.

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