Did Not Switch Sides After Learning Signals

The Tennessee Court of Criminal Appeals holds that a prosecutor’s prior representation of the defendant did not require disqualification of either the individual prosecutor or his office.

Defendant was aware of the prior representation but did not raise it until sentencing

During the first setting of the sentencing hearing, counsel for Defendant learned that Assistant District Attorney General (“ADA”) Jack Bare, who was the State’s lead counsel at trial, had represented Defendant on prior charges. The State sought in part to use convictions on which ADA Bare had represented Defendant to enhance Defendant’s sentence in the present case. The trial court continued the hearing upon defense request.

The hearing resumed two weeks later with another prosecutor handling the case. Defense counsel requested that the trial court grant a mistrial, arguing that ADA Bare’s previous representation of Defendant created an actual conflict of interest. Defense counsel noted that ADA Bare had represented Defendant on an aggravated assault charge in 2008 and told the trial court that the fact patterns were “very similar.” Defense counsel further requested that the entire District Attorney General’s Office be barred from handling this case.

Holding

We conclude that ADA Bare’s previous representation of Defendant did not require disqualification here. ADA Bare did not “switch[] teams after learning the signals” here. Clinard v. Blackwood, 46 S.W.3d 177, 188 (Tenn. 2001), abrogation recognized by Eady,___ S.W.3d ____, 2024 WL 442279, at *12; State v. Dixon, No. M2010-02382-CCA-R3- CD, 2012 WL 2356523, at *14 (Tenn. Crim. App. June 21, 2012), perm. app. denied (Tenn. Nov. 26, 2012). Rather, ADA Bare represented Defendant on completely unrelated cases more than a decade before this matter came to trial. Nor were the matters on which ADA Bare represented Defendant “substantially related” to his prosecution in this case, despite Defendant’s assertions. That ADA Bare previously represented Defendant on an aggravated assault conviction and Defendant was charged with aggravated assault here does not mean that the matters are substantially related. As the trial court pointed out, ADA Bare did not disclose any confidential information he received from representing Defendant, and because Defendant did not testify, there was no way to use any confidential information against him. The only information used against Defendant was public record: the convictions themselves, with ADA Bare’s name listed on the judgment forms.

Thus

The trial court did not abuse its discretion in denying Defendant’s requests to disqualify ADA Bare and grant a new trial on this basis. Defendant is not entitled to relief on this issue.

(Mike Frisch)