KNOXVILLE, Tenn. — Update (10/15 at 10 a.m.): The Knox County District Attorney General's Office said an assistant district attorney accused of perjury has resigned.
Deputy District Attorney Sean McDermott said DA Charme Allen accepted Robert DeBusk's resignation Monday.
"This matter will be referred to the Tennessee Board of Professional Responsibility. Investigators with that board will determine whether further action is warranted," McDermott said.
According to a motion filed with Knox County Criminal Court, DeBusk got ahold of an email he should not have read between a man he was prosecuting and that man's lawyer. When questioned about it, the lawyer said DeBusk perjured himself.
Original Story:
A Knox County assistant district attorney has been suspended and is accused of perjury following a hearing on Thursday. This comes after a local attorney alleged an attorney in the DA's office read privileged communications.
10News obtained a copy of the motion and a response filed with Knox County Criminal Court. The documents lay out the claim that Assistant District Attorney Robert DeBusk got ahold of an email that he should not have read between a man he was prosecuting and that man's lawyer, Mike Whalen. When questioned about this during that hearing, Whalen said DeBusk perjured himself.
Whalen is representing Stephen Hildreth who is in jail right now for drug charges awaiting prosecution by the DA’s office. Whalen said a deputy district attorney told him that DeBusk inadvertently got an email sent from Hildreth to Whalen.
“He recognized immediately it had my address on it,” Whalen said about DeBusk. “So that's improper. He shouldn't have looked at it. He shouldn't have had it. Whether or not it's important to the case, he shouldn't have it.”
Whalen said jail inmates’ written electronic communication is recorded, as are phone calls.
“I've been uncomfortable for years with this idea that they have unfettered access to all communications of pre-trial detainees who just unfortunately can't make bond,” Whalen said. “Everything they say to anyone outside that building is recorded. Every channel of communication is recorded.”
Whalen said in the hearing, witnesses testified that the recordings are intended to monitor and stop threats to the institution, the inmates or the staff.
“It is not intended to be a discovery tool for the state or for investigators,” Whalen said.
Whalen tells 10News that “all the law enforcement in Knox County Sheriff's Department, Police Department, TBI have access to all these recordings.”
In a motion filed on Sept. 26, Whalen called for the DA's office to be disqualified from Hildreth's case. Whalen said in discussion with other lawyers, he wrote, “This is not the first or only time" DeBusk has "dipped into attorney/client communications in his work for the Knox County District Attorney's Office."
In its response to that motion, the DA said DeBusk was the only person from its office who read the letter, which he didn't realize was supposed to be for Whalen until after reading it. The office also cited different warnings that appear on the messaging platform and in a handbook letting the inmate know their message would not be confidential. According to the court document filed by the DA, that message said, “By using this service, you are waiving attorney/client privilege to any message posted herein. Your message will not be confidential.”
The DA’s response said inmates “are told that email communications are subject to review.”
Whalen said that based on what was said during the hearing, the DA said attorneys are supposed to open an account to register phone numbers and email addresses that should not be recorded in order to ensure confidentiality.
“Last time I read the Constitution, it did not say anything about me making bargains with corporations I have no relationship with,” Whalen said. “That privilege does not belong to me. That privilege belongs to my client. So if they are going to respect the privilege, it's pretty easy to do. I have the same numbers I've had for 30 years. I've had the same email address.”
Whalen called for an evidentiary hearing where he questioned DeBusk about instances where he'd used information gathered from privileged communications.
Ultimately, the judge decided there wasn't enough evidence to disqualify the DA's office, although he did say Deputy District Attorney Sean McDermott would take the case from DeBusk.
In that hearing, however, Whalen said DeBusk committed perjury.
“Not the first time I've seen people choose to lie,” Whalen said. “It's the first time I've seen a prosecutor on the stand who chose to lie.”
Whalen said he questioned DeBusk about another instance where DeBusk allegedly asked a supervisor if he could use information from a privileged phone call in a trial.
“Counsel avers, on good faith belief, that DeBusk came into possession of a phone call between an attorney and that attorney’s client and attempted to use it at trial,” Whalen said in the motion. “That when he was confronted with the ethical violation involved in such an act DeBusk claimed that his immediate supervisor told him it was allowed.”
When Whalen questioned DeBusk about that instance during the hearing, he said DeBusk responded that he “could not recall” the conversation.
Soon after, Whalen said another lawyer approached him and said that DeBusk had been recounting that detail shortly before the hearing started in the hallway. Upon learning that information, Whalen said the DA’s office questioned DeBusk.
Under that questioning, Whalen said DeBusk changed his answer and thus admitted to false testimony.
“The state got up, asked [DeBusk] the same question I had, ‘Did you tell a different story to the lawyer outside?'” Whalen said. “He answered it and said, ‘Yes. Upon further reflection I did.'”
Whalen asked the judge to issue an arrest warrant for DeBusk. Instead, Whalen said the judge removed DeBusk from Hildreth’s case and assigned it to ADA McDermott.
Whalen said he is in the process of filing a complaint with the Board of Professional Responsibility.
“He should be held accountable for his actions,” Whalen said. “I'm obligated to do that. The ethics rules require me to report improper unethical behavior by another attorney. And it also requires the judge, the DA, to file a complaint. So I may not be the only one filing a complaint, but I will be filing a complaint.”
While Whalen said he's no longer concerned about this case now that DeBusk isn’t involved, he’s worried about others.
“I know that people are accessing material they shouldn't have access to and using it in ways they shouldn't use it,” Whalen said. “And that's enough to all of it into question, call the entire system into question as to whether it's working fairly for everyone.”
10News reached out to the DA's office, which said, "Ethical rules prohibit the District Attorney’s Office from commenting on pending cases. We are limited to our written filings and oral arguments made in court.”
A spokesperson for the office did, however, confirm that DeBusk was suspended on Friday.
“If all he ends up with is some suspension out of that and back on the job, then the criminal justice system is just irreparably broken,” Whalen said. “If the laws don't apply to everybody, they don't apply to anybody.”
According to information on the Knox County District Attorney General’s website, DeBusk graduated from the Duncan School of Law in 2016, which was the same year he passed the bar. DeBusk focused on criminal defense, juvenile law, and appellate court work before coming to the DA’s office, the website said.
A post from the District Attorney General’s Facebook shows DeBusk was sworn into his current role on Oct. 1, 2021.