Judge declines Yancey grand jury request
KNOXVILLE — A U.S. district judge last week declined to refer claims initially made in a civil lawsuit to a federal grand jury for a criminal probe.
Judge Thomas A. Varlan on Friday entered an order denying a motion by attorneys of Lori Yancey to refer the case for the criminal probe. Attorney Herbert Moncier had requested the grand jury referral soon after an eight-person civil court jury ruled in Yancey’s favor in the civil case.
Yancey argued that her husband, Hubert D. “John John” Yancey, was murdered by his partner, former Scott County Sheriff’s Department Chief Deputy Marty Carson, in November 2003 to stop Yancey’s investigation into alleged methamphetamine trafficking by Carson. Among claims made in the week-long civil trial were that Yancey had been investigating Carson’s alleged drug trade activities since 2001 and that Carson had attempted to hire an Oneida man to kill Yancey.
The federal jury ruled in Yancey’s favor, without it being made clear in the public record whether jurors found that Carson intentionally killed Yancey or that he acted maliciously in the Thanksgiving weekend 2003 incident, and awarded $5 million to Yancey.
In making his motion that the matter be forwarded to a grand jury for investigation, Moncier stated that the civil court jury’s finding “exceeds the probable cause standard for a criminal indictment.”
Such an investigation would likely center on the question of whether Carson violated Yancey’s civil rights under federal law.
Carson’s attorney, John Duffy, had argued that such a referral by the court would violate Article II of the U.S. Constitution as it applies to the executive branch of government.
Judge Varlan’s ruling does not mean that the matter cannot be investigated by a federal grand jury; the usual route for an indictment is for charges to be brought by U.S. prosecutors without the court’s recommendation.
In his two-page opinion, Varlan conceded that federal law provides that alleged offenses can be brought to the attention of a grand jury by the court. However, he cited a 2001 opinion by the Ninth Circuit Court of Appeals that stated the court does not violate its discretion by “failing to represent a proposed complaint to a grand jury, because pursuit of indictments and prosecutions is within the exclusive discretion of the United States Attorney.”
Varlan cited a similar court decision from 1988, which stated “the decision whether to prosecute and what charge to file or bring before a grand jury are decisions that lay within a prosecutor’s discretion.
“For similar reasons,” Varlan wrote, “the court will not exercise its discretion . . . in the present case.”
In keeping with federal policy, the U.S. Attorney’s office in Knoxville has not stated whether it has undertaken a probe of the allegations against Carson. The federal statute of limitations, five years, for violations of the civil rights act expires in November 2008.
In a news release just hours after the court returned its verdict in Yancey v. Carson on November 14, District Attorney General Wm. Paul Phillips said that his office “[has] shared information about our investigation with federal authorities in the past in this case, and we will continue to do so. We will fully cooperate with any federal investigation.”
Meanwhile, a probe into Yancey’s death has been re-opened at the state level. Phillips said in the November 14 news release that the TBI “is investigating the recent allegations that came out of the civil case in federal district court.” Once that investigation is complete, he said, criminal charges will be filed if necessary.
The initial investigation by the TBI, which concluded sometime in early 2004, did not find that Carson was criminally responsible for Yancey’s death.
Carson, who left law enforcement in August 2006 and is now privately employed, has maintained throughout the proceedings that he accidentally shot Yancey as the two investigated a methamphetamine lab at a Williams Creek Road mobile home in West Oneida. He has also denied the drug trafficking allegations. His defense pointed out in last month’s trial in civil court that a 2001 TBI investigation had cleared Carson of drug trafficking allegations. Testifying at the trial, Carson described Yancey as a close friend and “like a brother.”