Former Knox County Judge Richard Baumgartner's federal trial has been placed on hold until October 23 after a judge granted a 90-day continuance.
Baumgartner and his attorneys, Don Bosch and Ann Short, arrived at the Federal Courthouse Thursday afternoon for the 3:30 p.m. hearing. A team of federal prosecutors, including David Lewen, were in court representing the government.
U.S. Magistrate Judge Clifford Shirley granted a delay after hearing from both the defense and the prosecution. He said he did not want to "deny the defense reasonable time to prepare their case" and look at the volume of evidence. That includes thousands of pages of records and dozens of digital interviews, they need to review trial.
Judge Shirley's decision came after Bosch made an oral request in court for the continuance. Lewen told the judge the government agreed with the request to delay the trial, but not on the basis that is is a "complex' case as Bosch had previously stated in a motion filed with the court last week. Bosch withdrew the defense its request to have the case deemed "complex".
Baumgartner's trial is now set to begin on October 23, 2012. That is just a few days past the 90-day continuance period. The defense has until August 6 to submit motions, and the prosecution has until August 20 to submit responses. A motions hearing is set for August 27, with a pre-trial conference set for October 9. Judge Shirley said the cut-off date for a plea deal is also October 9.
United States District Judge Ronnie Greer has been assigned to preside over the trial. District Judge Thomas Phillips had been assigned to the trial; he recused himself from it earlier this week. He did not indicate why he wanted off the trial in papers filed with the court.
Former Knox County Criminal Court Judge Richard Baumgartner wants to postpone his federal trial so his attorneys have enough time to prepare the case against him. Federal prosecutors oppose the request.
Baumgartner's defense attorneys, Don Bosch and Ann Short, will appear before U.S. Magistrate Judge Clifford Shirley on Thursday afternoon to delay Baumgartner's trial and have it declared "complex." If Judge Shirley approves, that would mean a delay in Baumgartner's July 18 trial. Baumgartner was indicted on May 15, 2012 on seven counts of misprision of a felony, meaning he allegedly knew about and concealed felony crimes. That essentially means "improper performance of a duty."
Bosch filed a motion late last week to delay the trial that reads, "the speedy trial time limits make it unreasonable to expect adequate preparation for pretrial proceedings and for the trial itself." Baumgartner is asking the court to exclude him from the guarantee of a "speedy trial" within 70-days that is granted to all defendants.
"The defense has only scratched the surface of the complex and voluminous government discovery and clearly cannot be in position to formulate and file meaningful motions by June 12, 2012," Bosch wrote.
In question are 272 items of evidence, including 46 CDs & DVDs that contain TBI files, telephone records for multiple land lines and cellular phones, recorded phone calls and jail recordings. Bosch wrote that the discs contain thousands of pages to review; the defense was first notified of the evidence at Baumgartner's initial court appearance last month. The defense indicates they are also waiting for "draft transcripts" of the recordings that are not yet "trial ready," and that they could not inspect seized items in the government's possession until Tuesday of this week.
On Monday, Federal prosecutors filed a response to Baumgartner's motion opposing the delay. They believe the case is "straightforward" and the trial will not be "lengthy".
U.S. attorney David Lewen wrote, "For the reasons discussed below, the history of this case, including defense counsels past representation of defendant, cut against his claim that this case -- a single defendant case involving violations of a straightforward statute -- qualifies as "complex" such that a continuance is required."
Prosecutors allege that Bosch received 203 of the items of evidence in 2011 when Baumgartner was charged in state court with official misconduct. The TBI started investigating the former judge in the fall of 2010 for buying prescription painkillers from a felon convicted in his court who was on probation. He resigned and pleaded guilty to one count of official misconduct in March 2011. He was given judicial diversion in that case.
They also write Baumgartner's attorneys have "represented...on more than one occasion" that they are "familiar with the contents of the TBI file." Lewen also wrote that they told Baumgartner's attorneys on March 23 to call TBI to set up a time to inspect evidence, but they waited "two weeks" before making that call.
"Put simply, if this case is 'complex' then so is almost every other federal prosecution. The government will be ready and willing to try this case on July 18," Lewen wrote.
Baumgartner's attorneys filed a response to prosecutors' opposition on Tuesday. Bosch writes they did not call to set up the inspection of evidence with the TBI until June 5 because they were instructed to make the call right before the Memorial Day weekend, when government offices are closed, and that "TBI was unavailable during the week of June 4, 2012."
"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 removing Mr. Baumgartner form the bench. He has retired from his judicial position and has forfeited his license to practice law. Mr. Baumgartner voluntarily and willingly 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," Bosch wrote.
Court documents related to Thursday's hearing also include a TBI evidence list and an investigation report. Defense attorney's filed those in support of Baumgartner's request to declare the case "complex."
On Wednesday, U.S. District Judge Thomas Phillips, the judge named to preside over Baumgartner's trial, recused himself. Court filings don't say why.
Baumgartner's trial is scheduled to begin July 18, pending the outcome of Thursday's hearing.
10News will have a crew at Thursday's hearing and we will provide more information in this developing story as it becomes available.