IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE, AT KNOXVILLE UNITED STATES OF AMERICA ) ) ) ) ) ) ) vs. Case No: 3:12-CR-60 PHILLIPS/SHIRLEY RICHARD R. BAUMGARTNER REPLY TO GOVERNMENT'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO DECLARE CASE COMPLEX [R. 10] Comes the defendant, Richard R. Baumgartner, through counsel, and files the following Reply to the Government's Response, filed June 11, 2012, at 12:57 p.m., in opposition to Mr. Baumgartner's motion to declare, for purposes of the Speedy Trial Act, this case as complex. The government's Response makes certain assumptions about what the defense knew and when the defense knew it. Although undersigned counsel can understand how certain assumptions could, on the surface, appear logical, undersigned counsel offers the following information to the Court and to the government. On January 21, 2011, TBI agents came to Mr. Baumgartner's office and made him aware that he was under investigation. The agents did not share with Mr. Baumgartner the scope of their investigation, who they had interviewed, or the breadth of information they had collected. When Mr. Baumgartner's counsel reached out to the TBI agents the next day to discuss their investigation, the agents shortly thereafter related to counsel to contact Special Prosecutor, Al Schmutzer. When contacted, Special Prosecutor Schmutzer advised that he was ready to go to the grand Case 3:12-cr-00060 Document 11 Filed 06/12/12 Page 1 of 5 PageID #: 84 jury to obtain a presentment. Special Prosecutor Schmutzer was on a hunting trip and was not in Tennessee at the time, and he agreed to hold off on grand jury action and meet with defense counsel only if Mr. Baumgartner immediately stepped down from the bench. In response to Special Prosecutor Schmutzer's ultimatum, Mr. Baumgartner on January 27 - six days after the TBI agents came to his office - announced he was taking a medical leave effective the next day and stepped down from the bench. Then, on February 6, 2011 - only nine days after stepping down from the bench, Mr. Baumgartner was in Lobelville, Tennessee, in an in-patient treatment program for drug addiction, with limited contact with the outside world, including defense counsel. When defense counsel was finally able to meet with Special Prosecutor Schmutzer on February 8, 2011, with the TBI agents present, the only "discovery" that was shared/provided to defense counsel was a TBI summary of an interview with Chris Gibson on January 20, 2010. (Attachment 1). No other discovery from the TBI investigation was forthcoming, and Special Prosecutor Schmutzer was pushing to conclude the matter quickly, either by presenting the case to the grand jury on February 16, 2011, or by a plea agreement to one felony count of official misconduct. Defense counsel prevailed on Special Prosecutor Schmutzer to reset the grand jury date to allow Mr. Baumgartner to complete his inpatient treatment and to allow an opportunity for counsel to relay Special Prosecutor Schmutzer's offer to Mr. Baumgartner and to discuss and advise Mr. Baumgartner regarding the offer. Because of needed medical tests and treatment, Mr. Baumgartner was allowed a medical furlough from Lobelville to return briefly to Knoxville, at which time he also conferred with counsel. An agreement with Special Prosecutor Schmutzer was reached in early March 2011 for Mr. Baumgartner to plead guilty to one count of felony official misconduct involving the purchase of 2 Case 3:12-cr-00060 Document 11 Filed 06/12/12 Page 2 of 5 PageID #: 85 narcotics from Chris Gibson. Mr. Baumgartner was not scheduled to complete his inpatient treatment until March 15, 2011; however, Special Prosecutor Schmutzer would not agree to schedule the plea after March 15, 2011. As a result, Mr. Baumgartner obtained permission from his treatment facility to return to Knoxville to plead guilty on March 10, 2011, after which he immediately returned to Lobelville to complete his treatment. The only evidence that the state had provided defense counsel to evaluate the advisability of the state plea was the TBI summary of an interview with Chris Gibson on January 20, 2010. Whereas, the first 203 items listed in the government's discovery response may have been generated by the TBI prior to Mr. Baumgartner entering his guilty plea, those items were not shared with defense counsel prior to the plea. The first time that defense counsel was provided anything, other than Gibson's TBI interview, occurred on or about October 3, 2011, when a heavily redacted copy of the TBI investigative file was provided by Knox County Special Judge Jon Kerry Blackwood. No CDs or DVDs were included. Many of the items listed in the government's discovery response were generated or obtained after the plea on March 10, 2011; indeed the bulk of the materials, from item 204 to item 272, was generated or obtained in 2012. Furthermore, even though the government advised in its Response at footnote 1 that it intends to play in its case-in-chief two recorded jail calls, item 121 on the discovery response reflects that 7 CDs of jail recordings were provided to the defense. The defense cannot simply ignore or fail to listen to the other recorded jail calls. Simply stated, to provide constitutionally effective assistance of counsel to Mr. Baumgartner, defense counsel must review all discovery that has been provided and filter it in light of the federal charges. Defense counsel has been working diligently through the discovery, but that task remains 3 Case 3:12-cr-00060 Document 11 Filed 06/12/12 Page 3 of 5 PageID #: 86 incomplete. On June 12, 2012, from 10:30 a.m. until 1:15 p.m. defense counsel was at the TBI's office in Knoxville inspecting tangible evidence that had been made available to the defense. May 23, 2012, when defense counsel was directed to contact the TBI to set up a time for inspection, was shortly before the long Memorial Day weekend, during which nothing could be arranged. Also, the TBI was unavailable during the week of June 4, 2012, to set up the inspection. The defense did not intentionally delay inspection, and part of the scheduling arrangements was dictated because a longer block of time had to be secured to allow defense counsel to review all the evidence seized from Chris Gibson's house pursuant to a state search warrant. The events that are the subject of this indictment are of recent vintage. There is little danger that witnesses or the evidence will become stale. No delay for delay's sake is being pursued by the defense. There is no urgency in the sense of removing Mr. Baumgartner from the bench. He has retired from his judicial position and has forfeited his license to practice law. Mr. Baumgartner voluntarily and knowingly waives his right to a Speedy Trial. When he goes to trial, Mr. Baumgartner wants to be fully prepared to meet the government's evidence and to marshal evidence in his defense. He respectfully requests that his motion be granted. Respectfully submitted this 12th day of June, 2012. THE BOSCH LAW FIRM, P.C. By: s/Donald A. Bosch Donald A. Bosch (BPR # 013168) Counsel for Richard R. Baumgartner 712 South Gay Street Knoxville, TN 37902 (865) 637-2142 CERTIFICATE OF SERVICE 4 Case 3:12-cr-00060 Document 11 Filed 06/12/12 Page 4 of 5 PageID #: 87 The undersigned hereby certifies on this date a copy of the foregoing document was filed electronically. Notice of this filing will be sent by operation of the Court's electronic filing system to all parties indicated on the electronic filing receipt. Parties may access this filing through the Court's electronic filing system This the 12th day of June, 2012.. THE BOSCH LAW FIRM, P.C. By: s/Donald A. Bosch Donald A. Bosch 5 Case 3:12-cr-00060 Document 11 Filed 06/12/12 Page 5 of 5 PageID #: 88