KNOXVILLE (WATE) - Special Prosecutor Al Schmutzer broke his silence Monday about why former Knox County Judge Richard Baumgartner seemed to get a slap on the wrist for misconduct on the bench.
Schmutzer has been criticized because he didn't fight for the toughest punishment possible.
"I went after him. I got a felony," said Schmutzer. "The only concession I made was not to fight the judicial diversion."
Schmutzer says he did not agree to judicial diversion or probation instead of jail time for Baumgartner, but instead left the decision to Judge Jon Kerry Blackwood.
"I did fight," said Schmutzer. "I did want him to serve time. I asked for him to serve time. I did not fight, would not agree to, but did not fight the pre-trial diversion."
Schmutzer says he had two motivators for the decision not to oppose judicial diversion.
"Number one, I thought, and I still do think it was very important that we get a conviction and get him off the bench and look into what extent he had done damage to the criminal justice system in Knox County."
As for only going after one felony charge of misconduct, Schmutzer explained that any drug charges would be misdemeanors and the statue of limitations on most of those is two years, which had already expired.
Baumgartner could have been charged with two felonies, one related to his relationship with convicted drug dealer Chris Gibson and the other in regards to his relationship with Deena Castleman.
"We worked out a plea agreement to where he was to plead guilty to a felony, one felony of official misconduct. That official misconduct dealt with Chris Gibson," explained Schmutzer. "That was my choice. I chose Chris Gibson because I felt like I had a stronger case legally because he was on probation at the time that the judge was buying drugs from him, and as such the judge had his thumb on him."
Schmutzer added that each felony only carries a two-year maximum, and if Baumgartner had been charged and convicted on both, they could not have been served consecutively. That means the time for one could not be tacked onto the end of the other.
The plea agreement essentially wipes the slate clean after two years. If Baumgartner has not had other criminal charges during his probation, he can ask that his record be cleared. The state cannot pursue other charges either.
The federal government is the only agency that could decide to get involved at this point. "If they see that he's committed a federal crime, they can prosecute that independently of the state and vice versa," Schmutzer explained.
When asked if he's been contacted by the U.S. Attorney General's Office, or if he's aware of an investigation by the federal government, Schmutzer replied, "I was contacted early. I haven't been since then."
One of the biggest questions is, how much did Judge Blackwood know when he agreed to allow Baumgartner judicial diversion?
Judge Blackwood did not have access to the entire Tennessee Bureau of Investigation probe of Baumgartner.
"He's not allowed to have it," explained Schmutzer. "If he has to try it, he can't have already looked at what the state has done and try him on that. He would be unable to try it at that point."
It appears now the only agency that can change Baumgartner's fate is the U.S. Attorney General's Office.
6 News contacted federal officials Monday who said they could not "confirm nor deny" whether the office was investigating Baumgartner.
Chuck MacLean, visiting professor of law at LMU's Duncan School of Law, weighed in. "If there is a federal investigation and charges, then if he gets a conviction in federal court that will resolve some of the concerns I've heard expressed in the community, for example, that he's eligible for his judicial pension. If he is convicted of a felony for behavior in office, he will lose the right to that pension."
6 News has also learned that Judge Blackwood did not order a pre-sentence investigation. That is required in a felony case if all parties do not agree to the term of sentencing.
We contacted Judge Blackwood Monday, but could not get a comment from him.