Editor's notebook: Do justice always? Not so much for Nashville's Funk.

Yahoo

07-10-2024

Davidson County District Attorney General Glenn Funk celebrating his Democratic primary victory on May 4, 2022. (Photo: John Partipilo)
Davidson County District Attorney Glenn Funk has as his motto, 'Do Justice Always.'
Staff members are familiar with the phrase. Photos on his campaign Facebook page from 2022 show volunteers wearing shirts emblazoned with the message — but as a report from the Tennessee Comptroller's office report makes clear, Funk plays fast and loose with the concept of justice.
A blistering investigation of the Democrat Funk released Sept. 25 illuminated a host of unethical and illegal activities by Nashville's chief law enforcement officer and demonstrated a jaw dropping level of hubris from him.
As cynical as many of us have become about scandals in local, state and federal government, we should still expect that of all people, those elected to the highest position of law enforcement should at least not break the laws they are charged with upholding.
The most damning findings in the report center on Funk's use of audio and video surveillance equipment in a room in his office set aside for criminal defense attorneys to examine evidence in their clients' cases and where those attorneys might be discussing their case strategy. Defense attorneys who spoke with state investigators said they were unaware they were being recorded and would not have used the room had they known.
Funk told investigators that no one should expect any privacy in a public office. Beyond being disingenuous — Funk was a criminal defense attorney before being elected DA; I find it beyond belief he would be okay in a similar situation as the one he created — the Comptroller's report points out the use of surveillance equipment without providing notice violates not only Tennessee law but the U.S. Constitution.
Nashville District Attorney Funk secretly recorded defense attorneys, state audit finds
State law stipulates that at least one party being recorded must be aware. This wasn't the case in Funk's office, and defense attorneys say they would not have used the room had they been aware they were under surveillance,
The U.S. Constitution offers protections to persons accused of crimes and sets forth prohibitions against self-incrimination, including disclosure of attorney-client communications.
One tenet of Politics 101 is that elected officials cannot, should not and most times do not commingle official business with campaign business, be it via social media or financial accounts. Tennessee Code Annotated specifies that employees of local and county government offices can participate in political activities — as long as it happens on their own time, and not during office hours. The measures is intended as a firewall against coercion of government employees by partisan candidates.
But emails discovered through the investigation show members of Funk's government staff were participating in political activities during regular work hours and submitted requests for paid time off only after they had already completed their political chores.
Funk's behavior is remarkably arrogant and stupid.
Republican members of the Tennessee General Assembly have had their collective sights set on Funk for years. In 2021, the legislature passed a measure enabling the state attorney general to request specially appointed district attorneys to replace any district attorney general who declines to prosecute certain classes of illegal activity.
The legislation followed Funk's statements that he would prosecute neither possession of small amounts of marijuana nor instances in which businesses declined to post signs letting people know a transgender person could be using a restroom marked for men and women.
Never mind that Funk may have held the moral high ground then, as it's at best arguable whether devoting his resources to prosecution of these issues makes sense. But realistically, he was foolish to think that he is above the wrath of the legislature.
Already, as Vivian Jones with the Tennessean reports, Lt. Gov. Randy McNally has expressed support for calls to appoint a special prosecutor to more fully investigate the workings of Funk's office, saying in no uncertain terms he lumps Funk and Mulroy in the same class.
'I would also be in favor of the legislature examining (Funk's) record along with the record of District Attorney Mulroy of Memphis,' said McNally in a statement to the Tennessean.
Finally, but most important, is the cascading effect of Funk's action on local criminal cases.
The same day the Comptroller's report was released, Nashville Public Defender Martesha Johnson Moore fired back that her office will request that the 'District Attorney's Office promptly disclose all cases, both pending and closed, in which this surveillance occurred,' so as to seek 'remedies, including recusals, where appropriate.'
And on Friday, Nashville NewsChannel 5 reporter Phil Williams reported that a judge will allow for a full hearing in a first degree murder case after the defendant's attorney filed a motion to disqualify Funk's team: the lawyer was taped holding confidential meetings in Funk's office.
This all may prove to be a boon to criminal defendants, some of whom are no doubt innocent of the crimes with which they've been charged and others of whom are doubtless guilty, but will now get a second bite at the trial apple.
But Funk's activities have eroded the public trust in the legal process, besmirched the role of district attorneys and endangered his own chances of staying in office.
Justice always? Funk is about to find out whether the phrase applies to him.
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