The Board of Professional Responsibility dismissed two of three charges of ethical misconduct against a local assistant district attorney in a decision dated Sept. 20, but the charge that stood has resulted in a public censure for 10th Judicial District ADA Paul Rush.
The board of attorneys has censured Rush based on allegations of ethical misconduct during the Cole Younger murder trial in 2010.
He received the public censure for intentionally soliciting prohibited evidence and for failing to follow the procedure required by rules of evidence.
The censure, when published, will note that Rush failed to self-report possible ethical violations as ordered by a court. In addition, the board ordered Rush to pay half of the costs of the hearing.
Two other allegations and claims against him were dismissed with prejudice, which means the decision is final and not subject to further action.
Rush has an opportunity to appeal the censure. The censure has not been published.
The Board of Professional Responsibility filed a Petition for Discipline against Rush on July 6, 2012, based on a complaint filed by defense attorney John C. Cavett on Aug. 19, 2010.
The petition made three complaints: First, Rush failed to make timely disclosure to Younger's defense counsel of information that bore on the credibility of one of the state's witnesses, Anita Wilson, who all agree was an important witness in the case. Second, the board asserted that Rush, on redirect examination of a witness, solicited information about whether Younger was a drug dealer. Those questions, the board asserted, violated a court order and a rule of evidence. Finally, the board asserted Rush failed to report the incidents to the Board of Professional Responsibility, even though Criminal Court Judge Amy Reedy ordered him to.
The hearing panel noted Rush had been practicing law for only 5 1/2 years at the time of the Younger trial.
Although he had participated in many jury trials, the Younger trial was his first capital murder case. He was the second chair to an experienced attorney. In addition, he was brought into the case as a part of the trial team only a few months before trial.
Rush's experience and the circumstances surrounding his involvement in the case were important to the hearing panel’s consideration of whether or not Rush intended to violate the rules.
Three witnesses presented testimony at the hearing in Chattanooga: Rush, and Younger defense attorneys Kim Parton and John C. Cavett. The Panel also received 17 exhibits, which included, among other documents, transcripts from a number of hearings that took place as part of the Younger case.
According to the written decision, information given to the defense is usually called "Brady Material” and failure to comply is referred to as a Brady Violation. In Tennessee, the Brady Duty applies not only to evidence directly bearing on the guilt or innocence of the defendant, but also information relating to the credibility of the state's witnesses.
Anita Wilson was an important state witness because she was expected to testify that Younger made statements to her linking him to the Valentine’s Day murders. The state had no physical evidence or eyewitness testimony linking Younger to the murders.
Prior to Younger’s trial in May 2010, Wilson had a long history of criminal convictions which cast substantial doubt on her credibility. Excluding an investigation for stolen checks, there was no claim or proof that Rush failed to timely disclose Brady Material, including shoplifting charges pending against her at the time of trial.
“Unfortunately, in the three months prior to the Younger trial, Wilson's criminal history continued to evolve,” according to hearing panel records. “The Brady Material relevant to the present petition concerned an investigation that targeted Ms. Wilson for fraudulently endorsing and passing checks she allegedly stole from her employer.
“Apparently, in February 2010, Ms. Wilson's former employer fired her and reported to the Sweetwater police that Ms. Wilson and possibly others had stolen checks. In March 2010, a Detective Illingworth of the Sweetwater Police Department informed Mr. Rush about the stolen check investigation against Ms. Wilson.
“Detective Illingworth informed Mr. Rush that Ms. Wilson's former employer had fired her and filed charges against her for stealing checks and cashing them at various banks in and around Sweetwater. Detective Illingworth informed Mr. Rush that he did not at that time have sufficient evidence to charge Ms. Wilson with a crime because he had not yet obtained and viewed videos from the banks where the checks were cashed that could link Ms. Wilson to the crime.
“In addition, he informed Mr. Rush that other employees from Ms. Wilson's former employer, Mexi-Wings Restaurant, were also under investigation. Mr. Rush asked Mr. Illingworth to keep him informed of the status of the investigation because he would have to turn the information over to the defense in the Younger trial. Prior to an evidentiary hearing that occurred two days before the Younger trial, Mr. Rush had not received from Detective Illingworth, or anyone else, additional information about the Wilson investigation.
“Detective Illingworth initially told Mr. Rush about the investigation while Mr. Rush was on duty during a busy Sessions Court hearing day. We find on this record that Mr. Rush told Detective Illingworth to get back to him. Detective Illingworth did not get hack to him.”
Two days before jury selection, Rush disclosed to defense counsel all he then knew about the Wilson check theft investigation. There is no evidence Rush knew anything more than what he told the court and defense counsel May 2, 2010.
Concerning the second allegation of improper solicitation of evidence occurred April 19, 2010, during an evidentiary hearing to determine the admissibility at trial of certain evidence the state intended to introduce.
In order for evidence of other crimes, wrongs or acts to be admissible, the court, upon request, must hold a hearing outside the jury's presence. Then, the court must find proof of the other crime to be clear and convincing and that it is material to an issue other than a character trait. Finally, the court must find that the evidence causes unfair prejudice.
The court clearly denied the state's motion and ruled that testimony from witnesses Amy Lonas, Anita Wilson, and Vivian Denise Carter that each had purchased drugs from Younger.
The state also presented proof from Pamela Upton related to Younger's actions at a party a few days before the murders. Upton gave testimony the state would use to show Younger had shown hostility toward a murder. The Court ruled this evidence was admissible. However, the state did not attempt to offer evidence through Upton that Mr. Younger was a drug dealer.
During her testimony, Upton did not testify under direct examination by Rush as to whether or not Younger sold drugs or was a drug dealer.
However, during cross-examination, Cavett asked whether two state witnesses and two of the murder victims were drug dealers.
Believing that Cavett opened the door, he asked Upton if Younger was a drug dealer, to which she reportedly replied, “Yes, sir.”
The hearing panel ruled Rush’s questions were in direct violation of a court order. At the same time, “we find credible Rush's testimony that he believed Mr. Cavett had ‘opened the door’ for his questions.”
Rush’s violation was that he did not object to the defense’s questioning. Had he done so, the judge would have agreed and sustained the objection.
“Mr. Rush’s actions interfered with a legal proceeding by causing a mistrial,” the panel noted.
Cavett's letter to the Board of Professional Responsibility did not address the improper questioning, Rush did not bring it up the issue, nor was violation raised by the board.
“In other words, this allegation was never the thrust and focus of the board's complaint against Mr. Rush,” the board stated in its decision. “However, this issue was [raised] at the September 9, 2013, hearing and addressed by Mr. Rush's counsel and counsel for the Board.”
The third allegation of failure to report the situation to the BPR violated court rules.
Rush did not report the situation to the board as ordered by Judge Reedy. His first contact with the board was his response to Cavett's letter.
He did not self-report because he believed his “behavior (was) well within the ethical guidelines.”
However, the board found that he violated Tennessee court rules by failing to self-report as ordered by Judge Reedy.
In conclusion, the board found that Rush's failure to report did not cause injury or potential injury to a client or party, nor did it interfere with a legal proceeding.