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State v. Adams12/20/1999
ional docketing," the Defendant's case was originally destined to be assigned to Criminal Court, Division I, where Judge Thomas Shriver presided. Assistant District Attorney General Campbell, who was handling the case at that time, testified that she chose to directly present new coercion of a witness charges, which arose out of the Defendant's letters and drawings sent to Ms. Lewis from jail, to the Grand Jury before she presented the other charges to the Grand Jury for indictment. She said that she made this decision because it is her practice to prepare discovery and draft pleadings at the time she prepares the indictments, and the discovery response for the coercion charges was shorter and easier to prepare. She felt this process was more expedient because the Defendant was incarcerated and would have started making speedy trial claims if she took the time to draft the discovery pleadings for the other charges before presenting the case to the Grand Jury. She also testified she was aware that by directly presenting new coercion of a witness charges, the Defendant's case would be sent to Judge Cheryl Blackburn's court in Division III. This was because the normal procedure for assigning direct presentments to the four courts had been suspended in order to even out the case load, and all direct presentments were being assigned to Judge Blackburn. General Campbell admitted that she is a woman, that Judge Blackburn is a woman, that the other three judges are men, and that the Defendant is a man. She also admitted that Judge Shriver, the judge who would have heard the Defendant's case had she not chosen to directly present the new charges, had granted two new trials in cases she had prosecuted; however, she asserted that Judge Shriver's grants of new trials occurred after the indictments in this case. She conceded that defendants generally believed the late Judge Shriver's court to be "easier" than other courts.
The Defendant concedes that General Campbell gave a plausible explanation for her decision to move the Defendant's prosecution from one court to another and that it was not proven at the hearing that General Campbell was unethical, but he asserts that the case should have been removed from Judge Blackburn's court "so as to avoid the ugly specter of discriminatory treatment and forum shopping." We agree with the Defendant that attorneys and judges have the duty to avoid the appearance of impropriety, see Tennessee Code of Professional Responsibility Canon 9; Tennessee Code of Judicial Conduct Canon 2, but we find no evidence of impropriety or the appearance of impropriety in this case. The office of the district attorney general has the discretion to determine whether to prosecute a case and how to proceed with the prosecution. See Quillen v. Crockett, 928 S.W.2d 47, 50-51 (Tenn. 1996). General Campbell made the discretionary decision to directly present coercion charges to the Grand Jury, and that decision resulted in the Defendant's case being assigned to Judge Blackburn. The obvious facts that Judge Blackburn is a woman, that General Campbell is a woman, that the Defendant is a man, and that the late Judge Shriver was a man, do not create any impropriety or the appearance of impropriety. Neither do the facts that defendants generally believed the late Judge Shriver to be "easier" than Judge Blackburn or that General Campbell may have had some unpleasant experiences with Judge Shriver after this case was indicted. This issue simply has no merit.
Even if the Defendant had been able to show the existence of the appearance of impropriety, he has shown no prejudice. The test to be applied in reviewing a claim of prosecutorial conduct is "whether the improper conduct could have affected the verdict
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