Hearing set after Judge Cupp called out Distric Attorney Clark canceled

Becky Campbell • Sep 27, 2013 at 10:08 AM

The hearing that District Attorney General Tony Clark was indirectly ordered to attend — scheduled for Thursday — to tell a judge why two similar vehicular homicide cases were handled so differently was canceled about two hours before it was supposed to start.

One case charges Rachel M. Proffitt with vehicular homicide in the July 27, 2009, death of Misty M. Briggs, 22, of Jonesborough.

Proffitt fell asleep while driving on Conklin Road around 8 a.m. that day, crossed the center line and hit a vehicle head-on, police said. Proffitt’s attorney, Don Spurrell, said in a previous hearing that his client had been up since 4 a.m. to go to Asheville, N.C., for methadone treatments, then drove back to Johnson City, took her husband to work and was on her way home when the crash happened.

Toxicolgy tests showed Proffit had a therapeutic level of legally prescribed methadone in her system.

Proffit has been slated to plead guilty to a lesser charge — criminally negligent homicide — since last year, but each time Criminal Court Judge Robert Cupp has said he has a problem with the case, always implying it was due to the reduced plea.

State prosecutors offered the reduced plea because the level of methadone in Proffit’s system wasn’t enough to impair her ability to drive.

Cupp wanted Clark to explain the difference between the Proffitt case and one that was recently dismissed in another court. At Proffitt’s last hearing Aug. 15, Cupp halted the plea from going forward and sent a verbal directive to Clark to come to court at a later date to explain.

That date was Thursday, but it was canceled.

“All I know is I got word from the court that the case had been reset,” defense attorney Don Spurrell said. The case is now set for a bench trial Dec. 3.

No one seemed to know if Clark is still under the indirect verbal order from Cupp, but Clark has said publicly he has no intention to attend.

“I don’t plan on being in court to explain to him why something was done or not done,” Clark told the Press in late August.

Cupp’s issue with the case took a different turn after a vehicular homicide case against another woman — Andrea Nantz, 26, of Harrogate — was dismissed by the District Attorney General’s Office last month. She rear-ended a parked car on Highway 11E and killed the man in the driver’s seat.

Nantz didn’t have alcohol in her blood, but did have trace amounts of amphetamines, methamphetamine, oxycodone and marijuana metabolite. There were allegations that she had partied the night before the crash. The levels were apparently just shy of the limits required to charge her with vehicular homicide by intoxication.

The prosecutor in Nantz’s case, Assistant District Attorney Ken Baldwin, had planned to proceed based on allegations that Nantz was using a cell phone at the time of the crash, but last-minute reviews of cell phone records showed the device she was suspected of using was not even in the vehicle at the time.

Cupp said during Proffitt’s hearing in August that the DA’s office “created a dangerous precedence in this district” by dismissing Nantz’s case. He demanded that Clark appear before him to explain the “inconsistency” of the DA’s office when determining how to treat similar cases.

“There’s one thing I’ve tried to do throughout my tenure on this bench and that’s try and be as consistent as I can about what I do and I think I do that. The problem is when I don’t get consistence in the attorney general’s office or don’t get consistency in another court,” Cupp said.

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