Of all the antagonists of 10th Judicial District Attorney General Steven Bebb, the one who will not go away is his former friend, ally and Cleveland Police Department detective, Duff Brumley.
Bebb blames Brumley for much of the bad publicity directed at the district attorney’s office, and Bebb blames its politicization partly on the fact Brumley and state Sen. Mike Bell are cousins by marriage. Bell revealed the familial ties to the Cleveland Daily Banner in August because he said he knew it would be raised as an issue as a member of the Senate Judiciary Committee.
But, attorney Gerald Tidwell of Chattanooga, who represents Brumley in a whistleblower lawsuit against the Cleveland Police Department, said Tuesday that Bebb should look at himself and his staff for their own prosecutorial failures and poor decision-making.
The district attorney told the Cleveland Daily Banner in an Aug. 29 interview that he and Brumley were friends in 2007 when Bebb asked for a TBI investigation into “certain aspects of the Cleveland Police Department” on the complaints of two unidentified lawyers involved in lawsuits against the department, as stated in the news article headlined “Bebb says police officers prosecuted” published in Tuesday’s edition of the Banner.
The original complaint was that Chief Wes Snyder perjured himself during formal questioning in a different lawsuit when he was asked about the existence of a point system used in the department as a motivation tool.
Bebb said he was told that if he asked for a TBI investigation, “… there are officers over there that are dying to tell about the corruption in the Cleveland Police Department.”
He added, “I asked for that investigation and none of that transpired. No one over there talked about any sort of corruption. I stood up and apologized for that investigation. I apologized to Wes Snyder and to the rest of the department for that investigation.”
The DA said the perjury charge lacked merit because the testimony was not given in court. “Unless he testifies in court, it can’t be perjury, so that case went nowhere,” Bebb explained, and continued, “But that was Duff Brumley. That’s Mr. Duff Brumley who was fired from the Cleveland Police Department.”
According to a Cleveland Daily Banner news article published Dec. 6, 2011, Brumley was a 13-year veteran of the police department when he was fired Aug. 18, 2010, after an internal affairs investigation that began in June 2010. The investigation began after the department received a complaint from the district attorney’s office.
In the same news story, Bebb claimed it was Brumley’s lack of credibility that prompted his office to file a motion to dismiss the case against Michael Younger, the third defendant in the 1999 Valentine’s Day murders.
Brumley charged, “… That he is being used as a scapegoat by General Bebb’s office to justify their own failure to properly prosecute Mr. Younger. His credibility has been good enough to establish cases for General Bebb’s office for years ... his credibility has never been called into question until he dared investigate former (10th Judicial Drug Task Force) Director Mike Hall who formally operated out of the DA’s office and whose drug task force works very closely with the DA’s office.”
Bebb said in the August interview that Brumley was investigating Hall, “but he forgot he was supposed to tell his supervisor, open a case and get a warrant before he runs somebody through the PMP (Patient Monitoring Database). He got his neighbor, Mike Birdwell. Mike Birdwell called his friend in Pikeville and gets him to run it through PMP, which ought to tell the average citizen something.”
According to Bebb, the pharmacist in Pikeville called his brother, Jason Swallows, a pharmacist in Cleveland, and told him what happened.
“That was illegal and if he (Brumley) did it with intent to hurt Mike Hall, it’s a felony,” Bebb said. “Part of the investigation that we ran after that showed he ran Don Williams, Toby Norris, Angie Gibson, Cleveland firefighter Zach Reagan and his wife, Dawn Brumley, through the Criminal Justice Portal, which is illegal without a reason to do it,” Bebb said.
Tidwell deposed Birdwell on Aug. 4, 2010, in connection with the whistleblower suit. Birdwell, 36, a licensed pharmacist and longtime friend of Brumley’s, said the detective asked him to check on Hall in the patient database to determine if there was a case.
“And he (Brumley) assured me,” Birdwell said in the deposition. “And I've known Duff since I was 14 years old. Duff's no stranger to me. And he said that if I were to just get — he said, I can do the subpoena and get the information, but, he said, as soon as I process that paperwork, all hell is going to break loose … internally at the police department, and primarily in the district attorney's office, all the way down to the Drug Task Force. He said everyone is going to raise total hell if I just do the subpoena, he said, so instead of ratting — instead of opening this can of worms that I really think he said I'm obligated to investigate all accusations.
“And he said that a judge, and I can't remember really now,” Birdwell continued. “The judge stands out to me, but he said three people had came to him, approximately three had came to him and had made accusations and inquiries about Mike Hall's alleged drug issue. And he said, man, if I file a subpoena, it's going to be madness. He said, all I want to know is if it's worth opening this can of worms.”
Birdwell stated he did not have access to a computer at that time so he called a pharmacist friend in Pikeville who actually searched the database. The search revealed nothing of concern or any indication of Hall having prescriptions filled and selling pills to someone else.
“And I told Duff that, that I didn't think that it was, it was worth it. He didn't look to be a problem on paper,” Birdwell said.
Assistant District Attorney Stephen Hatchett, who attended the Banner interview with Bebb, explained that officers must have a good-faith basis for running people through the crime database.
“If you are exceeding your official authority and you are doing it with the intent to harm another or to benefit yourself, it falls under official misconduct,” Hatchett said. “Accessing the Patient Monitoring Database is a misdemeanor. Mike Hall was run through it, there’s no question about that. Brumley relied on what was the TBI’s poor advice. The TBI said yes, ‘... we were telling people that and we were telling them wrong.’”
Birdwell said in the sworn statement to Tidwell that it was not uncommon for police officers to ask for a search.
“I've been friends with law enforcement for years,” Birdwell said. “And, you know, all of them. I mean, even, even Cleveland City with (CPD officer) Matt Jenkins could, could tell you that — you know, like if you, you were — if there was a pharmacist — a lot of pharmacists won't talk to you. Same way with physicians. They won't play ball. But I'm actually a member of this community and the people that participate in diversion and illegal activity — we're not talking about your grandma taking, you know, Lorazepam before bedtime or the stressed-out housewife taking Alprazolam, or any — we're not talking about people with legitimate medical uses. I'm talking about people who are potentially diversion. I mean, there's no way you're going to take 500 Xanax in a month. You know, something's going on there if you're using 500 Xanax in a month.
“And so routinely Matt Jenkins for the Cleveland City and Mike Hall — I mean, Matt, I didn't see as much as Mike. Mike would come by once a week, no less than once a month, but typically about once a week he'd have a handful of names.”
Tidwell said TBI Special Agent Kimberly Harmon was responsible for training narcotics and police officers to use the database. She clearly stated Brumley’s actions were consistent with the training she gave prior to being notified by staff attorneys to discontinue that training method. That training was not discontinued until after Brumley had been fired by the Cleveland Police Department for doing what TBI trained people to do, Tidwell said.
After Brumley was fired from the police department, he filed a whistleblower lawsuit in July 2010. The courts ruled against Brumley in the whistleblower case. The decision has been appealed.
Tidwell stated in a written trial brief, “The specific method was to ask a pharmacist if a person’s drug-purchase history was suspicious or not without asking for the names of drugs purchased or the quantity. If the answer was that the purchase history is suspicious, the officer would request a court order for the actual records pursuant to the statute. In this, it was thought the officer was not violating HIPPA.”
Tidwell’s brief continued, “Counsel also intends to introduce testimony at the hearing from pharmacist James Birdwell who has previously given a sworn statement that Mike Hall and other Drug Task Force agents have contacted him on numerous occasions asking him to do exactly what Brumley did. Counsel contends it is clear that firing Brumley for accessing the prescription medicine database in the manner he did was arbitrary and capricious. This was standard operating procedure for many law enforcement officers up until the TBI decided to change this method of training. It is most likely still done by law enforcement officers as the TBI deciding to stop training in this method does not mean it will be discontinued.”
In the Banner interview, Hatchett pointed out, “Fine, he thought he was doing it correctly, that’s a misdemeanor. Running people through the portal if you don’t have a basis for doing it, that’s where you run into the possibility of a charge of official misconduct.”
Hatchett said Brumley might have believed he had accessed the PMP correctly, but three weeks later, he ran the others through the Criminal Justice Portal.
“Why was he running them through the portal? That was the crux of the investigation on Brumley,” Hatchett said. “The Mike Hall thing was done, but that’s what led us to drug test everyone on the drug task force.”
Bebb said Brumley knew about the warrant requirement “and you would think if Judge (Amy) Reedy wanted Mike Hall checked out for drug use, she would know you needed a warrant. Both of them knew that. That case was also given to a special prosecutor, but he chose not to prosecute.”
Tidwell stated in a written trial brief it was routine practice in the narcotics division to follow up on a tip before opening a file and having a number assigned. Narcotics detectives receiving the tip generally conduct surveillance to confirm the information before opening a file complete with a file number.
“In this case, Brumley was trying to confirm the tip he received from two Drug Task Force Agents that Director Hall may be abusing prescription medication.
Tidwell said. “When he was told that Hall’s prescription purchase history was not suspicious he dropped the matter without opening a file or getting a number.”
Bebb said there was also the issue in the triple homicide (Valentine’s Day Massacre) of 220 phone calls between Reedy and Brumley during the course of that case.
Hatchett said awareness of the phone calls resulted from the Brumley, Hall and DTF investigation. That Reedy and Brumley often talked to each other was only casually mentioned in Cleveland Police Department’s independent internal investigation.
“It was mentioned that Brumley talks an awful lot to the judge,” Hatchett said. “We sent an open records request to the city and got his city-issued cellphone and started looking and said — holy cow! Now what are we going to do? That’s when we took all of that to the attorney general’s office.”
Bebb said the state attorney general assured him the office would look into the phone calls, “but three weeks later, nothing happened.”
He also filed a complaint in the court of the judiciary against Reedy which went nowhere.
Tidwell said the district attorney’s office was “cherry-picking” phone numbers from cellphone call history.
“They failed to mention most of those calls were preceded by a call from (Assistant District Attorney) Paul Rush or someone from the DA’s office,” Tidwell said Tuesday. He said each call only lasted one to two minutes and asked how much collusion could there be in such short conversations?
“He (Brumley) was doing his job as a liaison between the court and the prosecutor,” Tidwell said. “One of the things he was asked to do was check the schedule for the next day. It was all mundane trial stuff. He was certainly not trying to influence the judge’s decision.”
Also, Brumley and Reedy live near each other and he mowed her grass and their children played together. Some of the calls were about mowing grass, but the majority of the calls were about the next day’s schedule, Tidwell said.
Bebb said it was his understanding during 24 years as a judge that he should not have ex parte (in the absence of the other party) conversations with any witness during that lawsuit.
“Put yourself in that position,” Bebb said. “If you are being charged with a crime and the jury convicts you, and you find out the judge and the prosecuting officer are close friends, talking on the phone all the time; no matter if it was totally innocent, you’re not going to be happy.”
According to a Banner story published Dec. 19, 2010, there were allegations of misconduct on all sides in the capital murder trial of Michael Younger, the third defendant in the 1999 Valentine’s Day homicide of three people.
Special judge Jon Kerry Blackwood granted dismissal of the charges without prejudice, meaning the case could be resubmitted.
Younger’s trial ended in mistrial after allegations of prosecutorial misconduct regarding a procedural ruling and evidence introduction through questioning.
The case against Younger was clouded with controversy. Reedy recused herself after allegations of phone calls between her and Brumley surfaced.
At one point, defense attorneys John Cavett of Chattanooga, and Kim Parton of Knoxville, asked to be taken off the case.
“The cumulative effect of the actions of the state of Tennessee in repeatedly violating the court’s pre-trial discovery orders, Rule 404 rulings and Brady violations cause this court to form great concern that either the state is acting at all costs to gain advantage in this motion, or is acting recklessly and without regard for the proper and orderly administration of justice in this matter,” Reedy wrote regarding the issues.
Rush, co-prosecutor alongside veteran special prosecutor and former Assistant District Attorney General Richard Fisher, used an opportunity opened by the defense to question one witness about Younger’s and Johnson’s occupation as alleged “drug-dealers.”
According to Banner news coverage of the trial, the violations centered around a pre-trial hearing where such testimony was not to be allowed; however, Rush argued that he used the opportunity to question the witness to “establish motive” after the defense “opened the door.”
Blackwood cited the court order was clear “not to go into the subject” and if Rush had questions, he “should have approached the bench and asked the court questions on how to proceed or not to revisit the issue whether or not the ‘defense opened the door.’”
Rush said he “was not intending to provoke a mistrial in the case.”
As a result of the allegations against Bebb, the district attorney recently requested the appointment of a pro-tem district attorney, “to investigate any allegations of impropriety in this office, either by myself or any employee.”
Former state Attorney General Paul Summers was appointed to conduct the investigation along with the Tennessee Bureau of Investigation and assisted by the Office of the State Comptroller.
“There will be no public announcements regarding the progress of this investigation. At its conclusion, the Attorney General’s Office will make a determination as to whether any further legal proceedings are warranted,” according to the statement issued by the state attorney general’s office.