NASHVILLE, Tenn. (WTVF) — A Nashville murder case scheduled to go to trial next week has been placed on hold amid concerns that District Attorney General Glenn Funk's office illegally eavesdropped on the defense team as they reviewed evidence in the case.
Criminal Court Judge Cynthia Chappell agreed Wednesday to delay the trial of Calvin Atchison after the defense filed a motion to disqualify Funk's team following the recent revelation of the eavesdropping scheme inside the DA's offices. Atchison's attorney and investigator are the individuals shown reviewing evidence in a photo included in an investigative report just released by the Tennessee Comptroller's Office, the motion said.
Atchison is charged with the first-degree murder of Velma Tharpe in a North Nashville alley in June 2000 — a case that attracted national attention after a wrongfully convicted man was exonerated. That innocent man, Paul Garrett, later received a $1.2 million settlement.
"It is a somewhat awkward position that the conduct of the DA's Office has placed me in," defense attorney Ben Powers wrote in a motion filed Monday.
"However, any personal discomfort is far outweighed by my sworn duty to ethically represent my client, Mr. Atchison, and safeguard that he is fairly prosecuted within the bounds of the law and the rules of professional conduct.
"And the only way to do so is to hold my colleagues across the aisle accountable for the impropriety of their unethical tactics deployed against Mr. Atchison."
The motion concluded, "The appearance of impropriety is so glaring, so organized and so far-reaching that the only cure is for the DA's Office to be disqualified from prosecuting Calvin Atchison's case so that his rights remain intact and so that the public's trust may be restored."
Atchison's case appears to be the first to be impacted by the scathing investigative report released last week.
The eavesdropping scheme was first exposed by NewsChannel 5 Investigates in February 2023. In late March 2023 that led to a raid by Tennessee Bureau of Investigation agents.
According to Powers' motion, he and investigator Seth Carelli were required to come to the DA's offices in February 2023 to review evidence in the Atchison case, and they "were directed by assistant district attorneys to a specific room within their offices located on the third floor of the DA's office."
Related: Damning report confirms secret recordings of defense attorneys, others inside Nashville DA's office
It was there that they noticed a video camera, but determined that the camera did not have audio capability.
"After this conversation and inspection of the video camera," the motion states, "Attorney Powers and Mr. Carelli remained in the room reviewing the various banker's boxes of discovery documents for several hours, identified 'hot documents' that appeared useful in the defense of Mr. Atchison, discussed pertinent witnesses gleaned from the pages of the discovery documents, discussed plans for locating, interviewing and evaluating the respective witnesses identified, and carried on other defense strategy-oriented conversations."
Powers said that investigators from the Tennessee Comptroller's Office and the Tennessee Bureau of Investigation approached him and Carelli in June 2024 to ask if they knew that their conversations had been recorded by a "conspicuously placed audio recording device separate from the video system" in the room where they had inspected the evidence.
"Neither Attorney Powers nor Mr. Carelli were aware they were being audio recorded in the DA's Office when they reviewed discovery related to preparing and building Mr. Atchison's defense on February 6, 2023," the motion continues.
According to the investigative report issued by the Comptroller's Office, investigators learned that "it was common practice to use office equipment to audio and video record criminal defense attorneys in the viewing room without disclosure and for office personnel to subsequently provide the captured audio and video recordings of the criminal defense attorneys to office staff handling the criminal case."
DA Glenn Funk was aware of the scheme, but insisted that defense attorneys had no expectation of privacy inside his offices, the investigative report concluded.
"Unfortunately, the DA's Office has conducted itself in an unethically deceptive, disingenuous manner that strikes foul," Powers' motion continues.
So far, prosecutors have not responded to the defense motion.
In granting the defense motion for a continuance, Judge Chappell indicated that she would set a new court date at Atchison's next court appearance.
Following release of the investigative report, Tennessee Attorney General Jonathan Skrmetti said he did not see enough evidence to guarantee a successful criminal prosecution of Funk or anyone on his team.
Still, the Comptroller's Office has forwarded the findings of its investigation to the Tennessee Board of Responsibility, the state agency that regulates the ethical conduct of attorneys.
Below is a summary of NewsChannel 5’s recent investigations of the DA's Office:
Nov. 8, 2022: He's a $75,000-a-year government employee who gets paid with little evidence of what he's doing for the money. Week after week, he bills taxpayers for almost 20 hours a week, hours frequently listed in the middle of the night when no one else is around.
He's almost never recorded swiping through the office security system, logging into the computer system or sending an email.
Click here to read the story that kicked off this investigation.
Nov. 10, 2022: An exclusive NewsChannel 5 investigation has uncovered new questions about whether employees in Nashville DA Glenn Funk's office crossed the line, using your tax dollars during last spring's campaign to help get the boss reelected.
That months-long investigation would eventually lead to damaging emails showing campaign work being done using office computers, as well as evidence of an attempt to recreate vacation requests for one employee who was volunteering for Funk's campaign.
Dec. 19, 2022: New photos and emails from inside Nashville District Attorney General Glenn Funk's office are renewing questions about whether government resources were used to help get the boss re-elected. The photos of assistant DA Sunny Eaton's desk show a stack of domestic violence dockets for cases that had been handled by Funk's challenger.
Read more about what our investigation uncovered here.
Feb. 9, 2023: District Attorney Glenn Funk's team installed listening devices in areas around the DA's office capable of picking up conversations of employees and visitors who are not warned about the audio monitoring, NewsChannel 5 has learned.
In a written statement, Funk's office insisted "there is no reasonable expectation of privacy for conversations in public places."
There’s more to the story that can be found here.
Feb. 20, 2023: How many listening devices were placed in and around Nashville DA Glenn Funk's office? New emails obtained by NewsChannel 5 Investigates are raising that question — even as Tennessee's attorney general opens a criminal investigation into Funk's office. The newly obtained emails raise the possibility that the eavesdropping could have been even more pervasive.
Click here to read more about those emails.
March 24, 2023: Tennessee Bureau of Investigation agents and technicians descended upon the offices of District Attorney General Glenn Funk as part of an on-going criminal investigation into the operations of the DA's office. About a dozen TBI personnel were seen going in and out of Funk's offices in downtown Nashville.
The full story can be found here.
May 2, 2023: When Tennessee Bureau of Investigation agents descended upon the offices of Nashville District Attorney General Glenn Funk back in March, the DA issued a statement saying they were there following his "invitation." Now, NewsChannel 5 Investigates has learned agents were executing a search warrant issued by a Davidson County judge, authorizing them to look for evidence of criminal activity — meaning it was not a friendly visit as much as it was a raid.
You can read more about this development by clicking here.
June 28, 2023: So who's funding the political campaigns that affect you and your family? That's the question raised by our latest NewsChannel 5 investigation. That investigation discovered a number of questionable contributions that helped fuel Nashville District Attorney General Glenn Funk's re-election campaign. Funk's campaign says those discrepancies were all innocent mistakes.
Click here to read more about those questionable contributions.
Aug. 17, 2023: The Tennessee Registry of Election Finance voted to take no action regarding a series of questionable contributions to Nashville District Attorney General Glenn Funk's 2022 re-election campaign. Board members argued that there was nothing else for them to do since no one has filed a sworn complaint alleging any violations of campaign finance laws.
There’s more to the story here.
Sept. 19, 2023: An unprecedented raid of the Nashville District Attorney's Office in March included a search of DA Glenn Funk's own office — including his laptop, briefcase and other electronics — as TBI agents sought evidence of possible illegal wiretapping, according to newly unsealed court documents. Davidson County Criminal Court Judge Jennifer Smith ordered the release of documents in response to a motion filed by NewsChannel 5.
This is what agents were seeking.
Feb. 23, 2024: Documents that Nashville District Attorney General Glenn Funk fought to keep secret raise new questions about eavesdropping in and around the DA's offices. Those documents, produced as a result of a months-long legal battle waged by NewsChannel 5, reveal there were more microphones — and more concern about conversations being monitored — than the DA admitted.
Click here to see what was in those documents.
Sept. 25, 2024: A damning state investigation concludes that Nashville District Attorney Glenn Funk’s office operated an extensive surveillance system that secretly recorded conversations of criminal defense attorneys, members of the DA’s own staff and visitors without their knowledge.
Read more about the report's findings here.
Sept. 25, 2024: Tennessee's lead government watchdog is calling for the appointment of a special prosecutor for a second opinion on whether Nashville District Attorney General Glenn Funk or anyone in his office violated any laws.
You can watch that interview here.
Do you have information for our investigation? Email us: investigate@newschannel5.com
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