In the wake of allegations that two former arena employees installed a hidden camera inside a cheerleaders’ dressing room, Davidson County District Attorney Torry Johnson is on the hot seat.
Not only is he being criticized for authorizing destruction of the evidencenamely, the videotapes of Nashville Kats cheerleadershe appears to be backpedaling from his earlier decision not to press criminal charges. “With all the recent interest, I can’t say that this case is positively closed,” Johnson tells the Scene.
But that poses a crucial question: How do you prosecute in the absence of evidence?
“I thought it was a little bit unusual to destroy any product that might be considered useful,” says Nashville attorney Cecil Branstetter. “If you’re going to prosecute [a murder], you need the dead body.”
Another prominent local attorney, who asked not to be identified, is even more critical. “The idea that a man in that position would acquiesce in destroying those tapes is outrageous. If he didn’t have immunity, he ought to be sued.”
The arena scandalwith such classic elements as sex, secret surveillance and a hint of a classic cover-upbegan in earnest last Wednesday afternoon when Russ Simons, the general manager for the Gaylord Entertainment Center, announced under media pressure that a hidden camera had been discovered inside an arena dressing room used by Nashville Kats cheerleaders. Simons had hired former U.S. Attorney Hal Hardin weeks earlier to conduct an independent investigation. Hardin relayed those findings to Johnson, who decided not to prosecute. Hardin’s investigators then destroyed the tapes, and the two employees were reportedly asked to leave.
Clearly, arena officials and the district attorney’s office hoped that would be the end of it. But the rumor mill grabbed hold of the scandal two weeks ago, and when the media picked up on it, a public relations disaster was in the making.
But in fairness to the district attorney, it was a complicated call. Basically, Johnson says he balanced the evils. He concedes that Hardin uncovered the misdemeanor criminal offense of unlawful photography. But if the district attorney’s office had pressed charges, Johnson says, that would have meant the ultimate public release of the tapes.
“Every day you make decisions on what cases are worth pursuing,” he says. “In this case, the downsides outweighed anything that could be accomplished by prosecuting the case. If criminal charges were filed, the tapes could become public record.”
That’s because evidence in a criminal trial is public. “The district attorney was telling it straight that had he chosen to prosecute the two individuals, it would have been public record,” says Richard Hollow, general counsel for the Tennessee Press Association. “Once that material is introduced into evidence in court or once the criminal proceedings are closed, then the material becomes public record.”
Also weighing in Johnson’s original decision was the apparent fact that there were no copies of the tapes and, therefore, no risk that they were in anyone else’s hands, all of which Hardin confirms. “It did appear like we had a violation of the law, but from all the evidence that was gathered, it was a misdemeanor violation,” Johnson says. “There was no evidence the tape was disseminated to anybody.”
Johnson says, though, that if he ultimately decides to press charges, he can still make the case, even without the tapes. Security staffers at the arena viewed the tapes, and they could be called to testify. (Johnson says that he did not view the tapes; Simons would not comment.) In addition, Johnson says that one of the two former employees admitted to placing the secret surveillance, claiming it was intended to capture theft of audiovisual equipment inside the locker room.
“One of the individuals involved gave an explanation that seemed to indicate that there was a bona fide reason for the installation of the camera,” Johnson says. The employee’s excuse is mostly irrelevant. What matters, Johnson says, is that he affirms the existence of the tapes.
In the meantime, Jimmy Corn, the other former employee, says without qualification that he had nothing to do with the installation of the camera. “I was questioned about it, and I cooperated fully,” says Corn, who had been working as the director of operations for the Predators broadcast team. Corn won’t provide specifics as to why he left. “I didn’t appreciate how I was asked about the situation,” he says.
To make matters more interesting, Corn formerly operated a video duplication company in Lebanon, Tenn. He says that the company closed its doors in the ’80s, but a state database of film-related companies listed Corn’s business as recently as March 2000.
“My client denied involvement in this, and we’re as anxious to find out about what happened as anyone else,” says Corn’s lawyer Jim Higgins.
For Kats cheerleaders, the criminal issue is not the only one at hand. The tapes might hold more value in a civil case in which the plaintiffs would have to prove that they were harmed by the secret surveillance. “Not only do we change our clothes in there, we’re incredibly close as a team,” Laura Cording, the director of the Nashville Kats cheerleading squad, told The Tennessean. Cording pointed out that her cheerleaders had some “very special bonding moments you don’t want others to see.... Fun stuff. Girl stuff. Bonding.”
Depending on just exactly what was caught on tape, the cheerleaders could claim that the clandestine filming psychologically damaged them. Under that scenario, the destroyed tapes would prove invaluable to them.
If Johnson’s legal judgment has come into question, what might be even more suspect are his and arena officials’ public relation skills. The fiasco could have been avoided if arena officials and the district attorney had met with the cheerleaders before media scrutiny made the episode public. Why not give the cheerleaders the option to prosecute, while informing them of the very tangible risk of having the tapes aired on the evening news? Instead, officials waited until the story was out, and contacted the cheerleaders belatedly.
“Certainly that could have been done,” Johnson says. “But we did not consider contacting them and asking them to come to some kind of meeting.”
He might wish now that he had.
“We would have absolutely liked to have been contacted,” Cording tells the Scene, confirming that the cheerleaders have hired an attorney.
Last Thursday afternoon, Simons and Johnson finally met with members of the Nashville Kats cheerleading squad. Simons described the meeting as “personal and private.”
That’s in stark contrast to the cheerleader’s dressing room.
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