IN THE CRIMINAL COURT OF HAMILTON COUNTY, TENNESSEE

STATE OF TENNESSEE ) Docket No. 305662 )

vs. ) Division II )

COURTNEY HIGH ) Judge Greenholtz

MOTION NO. 7: COURTNEY HIGH'S MOTION TO DISQUALIFY ATTOR~EY LEE ORTWEIN AND THE OFFICE OF THE DISTRICT ATTORNEY GENERAL-FOR

THE ELEVENTH JUDICIAL DISTRICT OF THE STATE OF TENNESSEE~ .: 'I

COMES NOW, Courtney High, Defendant in the above-styled cause, .'§r and - '"I ' J

through counsel, and hereby moves this Honorable Court to enter an Order disqualifying

attorney Lee Ortwein and the Office of the District Attorney General for the Eleventh

Judicial District of the State of Tennessee (hereinafter "District Attorney") from the

prosecution of this case. In support thereof, Defendant presents the following:

I. Factual Basis for Recusal of Attorney Lee Ortwein

Attorney Lee Ortwein represented Cortez Sims in a previous murder trial wherein

Mr. Sims was found guilty of murder largely based upon the eyewitness testimony of

Bianca Horton. Cortez Sims and Courtney High are codefendants along with 53 others

who are charged in the RICO superseding Presentment-the operative charging

instrument before the Court (hereinafter "Presentment"). Presentment pp. 1-3

During the previous murder prosecution of Cortez Sims, Bianca Horton testified

at his juvenile court transfer hearing.1 According to the allegations in the Presentment,

after Ms. Horton testified at Sims transfer hearing, members of the Athens Park Bloods-

1 Cortez Sims was a juvenile at the time, and a juvenile transfer hearing was required to determine whether he would be tried as an adult

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the gang to which the State claims Mr. Sims and Mr. High belong-murdered her.

Although Ms. Horton was murdered prior to the trial of Cortez Sims, her recorded

testimony was presented to the jury at his trial and used to convict him. In the case before

the Court, the State of Tennessee alleges that Courtney High, Charles Shelton, and Andre

Grier conspired to murder, kidnapped and murdered Bianca Horton to prevent her from

testifying at the jury trial of Cortez Sims. Presentment pp. 23-26

As of November 1, 2018, attorney Lee Ortwein left private practice and accepted

employment with the District Attorney.

II. Actual Conflict of Attorney Lee Ortwein

The Supreme Court outlined the role of the prosecutor in a criminal case as follows

almost a century ago:

[He] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor - indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S 78, 88 (1935).

All members of the Bar of the State of Tennessee are governed by the Rules of Professional

Conduct (hereinafter "RPC") found in Tennessee Supreme Court Rule 8. The Tennessee

Supreme Court has "original and exclusive jurisdiction to promulgate" rules governing

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the professional conduct of attorneys. Petition of Tenn. Bar Ass'n, 539 S.W.2d 805, 807

(Tenn. 1976). The RPC themselves have been amended many times, and the opinions of

Tennessee's appellate courts continue to elucidate their application more fully. See State

v. Orrick, No. M2017-01856-CCA-R9-CD (Tenn. Crim. App., October 15, 2018). See

generally Tenn. Sup. Ct. R. 8. Commentary and comments to the RPC are adopted by our

supreme court and are intended to be used to explain and illustrate the meaning and

purpose of the RPC in practice. The comments "are intended as guides to interpretation"

to promote practicing law in compliance with the RPC. Tenn. Sup. Ct. R. 8, Scope [15],

[23]; See Clinard v. Blackwood, 46 S.W.3d 177 (Tenn. 2001).

Tenn. Sup. Ct. R. 8, RPC 1.11 governs the duties of a lawyer serving as a public

officer or employee such as a District Attorney General or an Assistant District Attorney

General and their duties to former clients:

Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee:

(1) is subject to RPCs 1.7 and 1.9; and (2) shall not: (i) participate in a matter in which the lawyer participated personally

and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing, or under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter ... "

Tenn. Sup. Ct. R. 8, RPC 1.11(d)

RPC 1.11(d) states that District Attorney General's and their assistants are subject

to RPC 1.9. Id. RPC 1.9 governs a lawyer's duties to former clients:" A lawyer who has

formerly represented a client in a matter shall not thereafter represent another person in

the same or a substantially related matter in which that person's interests are materially

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adverse to the interests of the former client unless the former client gives informed

consent, confirmed in writing." Tenn. Sup. Ct. R. 8, RPC 1.9(a) (2017).

It has long been firmly established, both in the Canons of Professional Ethics and by judicial opinions, that attorneys cannot represent conflicting interests or undertake to discharge inconsistent duties. When an attorney has once been engaged and received the confidences of his client, he cannot enter the services of those whose interests are adverse to that of his client or former client. The rule is a rigid one, and it is well that it is so. An attorney cannot be permitted to participate in the prosecution of a criminal case if, by reason of his professional relation with the accused, he has acquired knowledge of facts upon which the prosecution is predicated, or which are closely interwoven therewith.

State v. Phillips, 672 S.W.2d 427, 430-31(Tenn. Crim. App. 1984); (quoting Autry v. State,

430 S.W. 808, 809 (Tenn. Crim. App. 1967); State v. Tate, 925 S.W. 2d 548, 553 (Tenn.

Crim. App.1995).

Mr. Ortwein represented Cortez Sims in a jury trial in the same district and the

same courthouse in which the case before the Court is being litigated. The key witness

in that case is the victim in six of the counts in the Presentment. After conviction, Mr.

Ortwein was relieved of his representation of Sims, and attorney Joshua Weiss was

appointed to represent Mr. Sims in further proceedings.

Given the foregoing examination of Tenn. Sup. Ct. R. 8, RPC 1.9, 1.11 and the

applicable case law, it seems clear that attorney Lee Ortwein has an actual conflict of

interest for the following reasons:

1. Mr. Ortwein represented Cortez Sims in a prior murder case wherein the

testimony of Bianca Horton was used to convict Mr. Sims.

2. Mr. Sims conviction is currently being appealed.

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3. Mr. Ortwein would have knowledge of facts upon which the prosecution of

Mr. Sims and his codefendants might be predicated in the case before the

Court.

4. Cortez Sims is charged along with Courtney High and 53 other codefendants

in the Presentment. Presentment pp. 1-3

5. Six of the counts against codefendants in the Presentment relate to the murder

of Bianca Horton, and the District Attorney has noticed his intent to seek the

death penalty as to those codefendants charged with her murder and related

crimes.

Given these premises, there can be no doubt that Mr. Ortwein has an actual conflict of

interest in prosecuting this case and should be disqualified. Tenn. Sup. Ct. R. 8, RPC, 1.9,

1.11 (2017); See Clinard v. Blackwood, 46 S.W.3d 177 (Tenn. 2001); State v. Tate, 925 S.W.2d

548 (Tenn. Crim. App. 1995) State v. Orrick, No. M2017-01856-CCA-R9-CD (Tenn. Crim.

App., October 15, 2018).

RPC 1.9, 1.10 and 1.11, the Tennessee Supreme Court's definitions and comments

thereto, and the applicable case law require Mr. Ortwein's disqualification from

prosecuting the case at bar. The following section analyzes why Mr. Ortwein's

disqualification must be imputed to the entire office of the District Attorney.

III. Vicarious Disqualification

In State v. Orrick, the Tennessee Court of Criminal Appeals held that RPC 1.11, "the

specialized rule regarding public service attorneys, applies to whether a disqualified

pl'oseculol·'s conflict of interests should be imputed upon a district attorney general's

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office." State v. Orrick, No. M2017-01856-CCA-R9-CD at 15 (Tenn. Crim. App., October

15, 2018). The Orrick court also held that the provisions for screening, notice and other

protections found in RPC 1.1l(b), those where the text of the rule explicitly state, "[w]hen

a lawyer is disqualified from representation under paragraph (a)," also apply in

situations where a prosecutor must be disqualified pursuant to RPC 1.11(d) and are the

same requirements found in RPC 1.10(c). See State v. Orrick, No. M2017-01856-CCA-R9-

CD at 17 (Tenn. Crim. App., October 15, 2018). This is in keeping with the Tennessee

Supreme Court's comment [2] to RPC 1.11:

Paragraphs (a)(1), (a)(2), and (d)(1) restate the obligations of an individual lawyer who has served or is currently serving as an officer or employee of the government toward a private client. Although RPC 1.10 is not applicable to the conflicts of interest addressed by this Rule, paragraph (b) of this Rule permits screening and notice to avoid imputation for lawyers moving into, or out of, positions as government officers or employees in the same manner as set forth for other lawyers in RPC 1.10(c). Requirements for screening procedures are stated in RPC 1.0(k) and RPC 1.0, Comments [8]­[10]. Because of the problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.

Tenn. Sup. Ct. R. 8, RPC 1.11, Cmt. [2] (2017).

While the Rules of Professional Conduct do not ordinarily require the conflicts of

an assistant district attorney to be vicariously imputed to the entire office in which the

attorney is employed, notice and screening procedures are required to avoid vicarious

disqualification. See Tenn. Sup. Ct. R. 8, RPC, 1.11(b)(1-4), 1.10(c)(1-4) (2017); See State v.

Orrick, No. M2017-01856-CCA-R9-CD, 14 (Tenn. Crim. App., October 15, 2018).

When a prosecutor has an actual conflict of interests, adequate screening procedures will prevent the disclosure of a defendant's confidential

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.·

information. Furthermore, the same screening and notice procedures provided in Rule 1.10(c) are permitted in Rule 1.11 to prevent the vicarious disqualification of a firm in which a disqualified public attorney is employed, and this court's reliance on the procedures stated in Rule 1.10(c) was not improper.

State v. Orrick, No. M2017-01856-CCA-R9-CD, 14 (Tenn. Crim. App., October 15, 2018).

The Orrick court's analysis and ruling along with the text and commentary to RPC

1.9, 1.10 and 1.11 require Lee Ortwein and the District Attorney to adhere to the following

notice and screening procedures:

(1) identify that the personally disqualified lawyer is prohibited from participating in the representation of the current client; and

(2) determine that no lawyer representing the current client has acquired any information from the personally disqualified lawyer that is material to the current matter and is protected by RPC 1.9(c);

(3) promptly implement screening procedures to effectively prevent the flow of information about the matter between the personally disqualified lawyer and the other lawyers in the firm; and

(4) advise the former client in writing of the circumstances that warranted the implementation of the screening procedures required by this Rule and of the actions that have been taken to comply with this Rule.

Tenn. Sup. Ct. R. 8, RPC, 1.10(c) (2017).

Upon information and belief, Mr. Sims has not received any type of notice in

compliance with Tennessee Rules of Professional Conduct. Without the proper notice

and screening procedures in place, it is likely that Mr. Sims' confidential information has

been shared with other attorneys in the District Attorney's office violating his

constitutional rights and those of his codefendants. Because the District Attorney failed

to follow the procedures promulgated by the Tennessee Supreme Court to prevent the

disqualification of his entire office as a result of the vicarious imputation of the actual

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conflict of interest of attorney Lee Ortwein, his office must be disqualified from further

prosecuting Cortez Sims and his codefendants.

When an accused's attorney joins the prosecution, the appearance of impropriety is not the central concern. Primarily, it is a matter of unacceptable risk of harm or disclosure which is at issue. In focusing on the risk of harm or disclosure, as opposed to requiring proof of actual harm or disclosure, we acknowledge that, generally, an accused has no means to determine if a breach has occurred or if prejudice has resulted within a prosecutor's office.

In this vein, once a defendant has shown a substantial relationship existing between the pending case and the matter in which the challenged attorney was previously representing the defendant, there should be a presumption that the challenged attorney shared information with his new associates in the attorney general's office. Further to avoid disqualification, it should be incumbent upon the state to prove by clear and convincing evidence that the challenged attorney has been sufficiently screened from the remainder of the staff and its work on the pending case.

State v. Tate, 925 S.W.2d 548,557-558 (Tenn. Crim. App. 1995).

The Tate court went on to say the more "cautious approach is to disqualify the

office ... [T]hat preserves the integrity of the criminal justice system." I d. at 558. "The

perception of a fair trial is just as important as the reality." I d.

Counsel submits to this Honorable Court that even if the District Attorney's office

had followed the proper procedures as promulgated by the Tennessee Supreme Court in

RPC 1.11, or was ordered to follow them now, those procedures do not, and could not

possibly contemplate the complexity or provide proper protections from the dangers of

violating the constitutional rights of Cortez Sims and the codefendants in the case at bar.

This case has engulfed the office of the District Attorney for the Eleventh Judicial District

of Tennessee. There has never been a RICO case in Hamilton County, Tennessee. There

have been few applications of Tennessee's RICO statute statewide. Counsel is unaware

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of a RICO prosecution in the state of Tennessee premised on the defendants' involvement

in a gang. Virtually every lawyer who practices criminal defense in Hamilton County,

Tennessee who did not have a conflict of interest represents a codefendant in this case.

Many of those lawyers are filing motions or joining the motions of others every month.

According to our calculation that is fifty-seven lawyers the State must contend with.

Further, the State has noticed its intent to seek the death penalty of three of the

codefendants including Courtney High. The novelty of this case is unparalleled in

Tennessee, and the stakes for Courtney High and those defendants the District Attorney

seeks to execute could not be greater. The assertion that this case is not being discussed

among the members of the District Attorney's staff seems preposterous. In light of these

facts, the District Attorney should have taken extra care to avoid any appearance of

impropriety, and he should have made certain to follow all of the notice and screening

procedures set out in the Tennessee Rules of Professional Conduct if he was to have any

hope of not being disqualified from prosecuting this case.

The risk to Courtney High of any improper disclosure on the part of Mr. Ortwein

would not only be a violation of his constitutional rights, it could lead to his execution.

Attempting to determine whether Mr. High was prejudiced under these circumstances

would require pure speculation on the part of this Court. Although the Tennessee

Supreme Court decided State v. Tate before the adoption of the most recent version of the

Rules of Professional Conduct, its philosophy in cases such as the one at bar is no less

applicable: "a conviction obtained under these circumstances simply cannot stand

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regardless of prejudice to the accused and regardless of his guilt or innocence." Tate, at

553. State v. Phillips, 672 S.W.2d 427,436 (Tenn. Crim App. 1984).

The only way to properly protect the constitutional rights of Cortez Sims,

Courtney High, and all other codefendants in this case, is for this Court to find and order

as follows:

1. Attorney Lee Ortwein has an actual conflict of interest and is disqualified from

any participation in the prosecution of this case;

2. Due to the failure of the District Attorney to follow the procedures

promulgated by the Tennessee Supreme Court in RPC 1.11 to prevent the

disqualification of his entire office as a result of the vicarious imputation of the

actual conflict of interest of attorney Lee Ortwein, Mr. Ortwein's actual conflict

of interest must be vicariously imputed to the District Attorney and all

members of his office, and the District Attorney and his office must be

disqualified from further prosecuting Cortez Sims and his codefendants.

WHEREFORE, based upon the facts, Tennessee Rules of Professional Conduct,

and controlling case law, Mr. High respectfully moves this Honorable Court to disqualify

attorney Lee Ortwein from any further participation in the prosecution of the case before

the Court, and to prohibit the District Attorney General for the Eleventh Judicial District

of Tennessee from further prosecuting this case due to vicarious imputation of the actual

conflict of interest of attorney Lee Ortwein and failing to abide by the Tennessee Supreme

Court's Rules of Professional Conduct.

Respectfully submitted,

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teven G. Moore (BPR# 014701) 3001 S. Broad Street, Suite 101 Chattanooga, TN 37408 423.777.4061 (tel) steven@smooreassociates.com

LAW OFFICES OF FISHER WISE, PLLC

By:~~--.!::~-....::. _ _ _ ___ _ •isher Wise (BPR# 027832)

3001 S. Broad Street, Suite 101 Chattanooga, TN 37408 423.498.2402 (tel) 866.200.2949 (fax) fisherwiselaw@gmail.com

Attorneys for Courtney High

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a true and correct copy of the foregoing Motion by leaving said copy at the office q.{J!1e District Attorney General, at the Justice Building, Chattanooga, Tennessee, this /~'day o November, 2018.

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