Scott County General Sessions Judge James Cotton Jr. instructs Public Defender Mark Strange, right, to check with Howard Barnett about an ankle bracelet for his client (at the podium) Wednesday, Sept. 14, 2016. (MICHAEL PATRICK/NEWS SENTINEL)

SHARE Scott County General Sessions Judge James Cotton Jr. in his courtroom Wednesday, Sept. 14, 2016. (MICHAEL PATRICK/NEWS SENTINEL) Howard Barnett, owner of D-Trax Home Incarnation Company, sits in the courtroom of Scott County General Sessions Judge James Cotton Jr. on Wednesday, Sept. 14, 2016. (MICHAEL PATRICK/NEWS SENTINEL) Scott County General Sessions Judge James Cotton Jr. in his courtroom Wednesday, Sept. 14, 2016. (MICHAEL PATRICK/NEWS SENTINEL) Attorney Max Huff talks to his client, Ashlee Strunk, about the ankle bracelet program in Scott County General Sessions court before Judge James Cotton Jr. on Wednesday, Sept.14, 2016. (MICHAEL PATRICK/NEWS SENTINEL) Related Coverage Scott County judge: Ankle monitoring firm booted

By Jamie Satterfield of the Knoxville News Sentinel

HUNTSVILLE, Tenn. — A Scott County judge ordered a 60-year-old poverty-stricken disabled man jailed because he fell short $215 in fees owed a man whose background the judge has never examined and who denies asking the judge to do so.

Ronald Ray Brummitt is not alone. The News Sentinel has documented more than a half-dozen instances in the past few months in which General Sessions Judge James Cotton Jr. has sent poor people to jail solely because they fell behind in paying fees to a private company that a Kentucky man, Howard Barnett, concedes he "runs out of his vehicle."

Interviews with legal authorities, observations of Cotton in court and a review of records and state law over the past few months also found:

Cotton revoked defendants' bonds even though the defendants showed up for court as required. He then offered them freedom through Barnett's electronic monitoring services.

The judge routinely places defendants facing minor charges who are poor and unemployed on electronic monitoring without any findings — as required by law — that the practice is necessary.

At least 73 people were on Barnett's monitoring client list in August in a county with a population of 30,000. By comparison, only five defendants are on ankle monitoring in Knox County (population 451,324) — a murder defendant, three child rape defendants and a domestic assault defendant.

Barnett has no contract with Scott County to provide the services.

The money — $130 for the ankle bracelet and $70 in weekly fees — that the accused pay goes into Barnett's pocket, not county coffers.

Cotton admitted in an interview that he did not vet Barnett or his firm before allowing Barnett to set up shop there. The judge conceded he's not sure that his practices in the use of electronic monitoring are constitutional.

The News Sentinel reviewed more than 30 cases in which ankle monitoring was ordered. In each case, the accused was considered too poor to pay for a lawyer. Many defendants were unemployed. Most faced minor charges, including driving offenses, possession of small quantities of drugs, public intoxication and petty theft.

Among those who suffered extra financial punches was a steel mill worker from Huntsville charged with driving on a suspended license and walking away after wrecking his vehicle in a ditch. He paid $300 to a bondsman to go free. Days later, Cotton revoked the man's bond and put him on electronic monitoring.

An unemployed Oneida, Tenn., woman charged with possession of a handful of pills and a soda can with methamphetamine residue posted a $6,000 bond, which Cotton revoked. He then put her on electronic monitoring.

In nearly every case, the defendants racked up hundreds of dollars in monitoring fees over a period of months while their cases remained pending. In as many as a dozen cases the newspaper reviewed, the defendants wound up receiving probation.

Patrick Frogge, a former public defender who now heads a state conference for attorneys paid to represent the poor, found the goings-on in Scott County disturbing but not surprising.

"I'm not aware of any regulation on those companies," Frogge said. "A lot of our clients find themselves at the mercy of whoever is providing the service."

Two men meet

Cotton is a 63-year-old native of Scott County. He graduated from the University of Memphis Law School in 1980 and returned to his home county to open a law practice. Like most new lawyers, Cotton paid the bills by accepting court-appointed criminal cases but eventually expanded into areas of civil law, including real estate, labor issues, government law and banking.

He was appointed as Scott County's general sessions and juvenile court judge on a part-time basis in 1990. The post later became a full-time one, and Cotton has held the elected position ever since. Interviews with attorneys showed Cotton to be well respected for his personable demeanor.

The way Cotton and Barnett tell it, Barnett showed up one day with a demonstration of his gear. Neither could say when. Records suggest Cotton launched the ankle monitoring program late last year. There is no paperwork associated with the two men's agreement.

"He has no contract with us. He's just sort of a service provider," Cotton said. "He presented himself and talked about what he did. I love the technology. … Basically, all of this got started because I was looking for another tool in my judicial toolbox."

Barnett's firm, D-Trax Home Incarceration Company, was registered as a limited liability corporation in Kentucky two years ago. His wife is the registered agent. The company's address is the couple's home in a subdivision in Stearns, Ky. Barnett's wife would not answer questions or allow entry to the home to view the firm's equipment when a reporter showed up at the address earlier this month.

In a phone interview less than an hour later, Barnett said he was a former police officer.

Asked where he served in law enforcement, Barnett responded, "I worked for four or five agencies in Kentucky."

He would not identify the agencies.

Barnett said he provided electronic monitoring in five counties, specifically identifying Scott and Campbell counties in Tennessee. Records show he briefly offered his services in Campbell County last year but has no client list there now, and no one was ever jailed there for failing to pay his fees. The News Sentinel determined D-Trax does limited business in three Kentucky counties — Cumberland, Monroe and Clinton — through either a contract for which he was required to bid or as one of several competing firms vetted by officials there.

Barnett denied he ever asked the judge to jail someone for not paying him.

"Not paying is not a violation," he said. "If I lose money, it's a business thing. I just lose money."

But when informed the News Sentinel had copies of more than a half-dozen arrest warrants he and Cotton signed that cited delinquent fees as the sole basis for jailing, Barnett responded, "I don't know what's a violation and what's not. If they ask me to sign something in court, I sign it."

Barnett also denied sending a weekly report to the court detailing who owes him money and how much — until a reporter produced a copy of one. He then said a "family member" compiles the report. He could not explain why delinquencies — even in cases in which the accused is no longer on ankle monitoring — were listed, given his insistence he did not seek jailing.

Barnett said he was one of "three or four" private companies offering monitoring in Scott County, and the accused have a choice of which firm to use.

Cotton said Barnett's firm was the only one he used. He said Barnett seeks the jailing of defendants who don't pay, and Cotton acquiesces.

There is no form for such a jailing, so the judge uses a probation violation warrant. Barnett signs the document on a signature line reserved for either a prosecutor or a probation officer. The probation violation language in the documents is scribbled through and replaced with handwritten notes that the defendant has failed to pay monitoring fees, listing the amount. There is no proof of nonpayment attached to the documents.

By Cotton's admission, there is no consultation with prosecutors and no hearing held to either prove a defendant hasn't paid or why. Once jailed, the defendant is returned to electronic monitoring after paying Barnett, records show.

A News Sentinel reporter observed that practice in court three times in two days. None of those three cases involved violence, domestic abuse or any of the other standard uses of electronic monitoring in the law. Those standard uses include aggravated stalking cases and issues in which a defendant has a history of violence or prior failures to show up for court.

Eighth Judicial District Attorney General Jared Effler, whose jurisdiction includes Scott County, said his staff has never sought to jail someone for not paying Barnett and would never do so because the law doesn't allow it.

"We're not going to do anything to revoke someone's bail for not paying monitoring fees," Effler said. "It would not be appropriate to violate someone for not paying a private company. (The company) is assuming that risk. That is purely a civil process. It would be analogous to (jailing someone) for not paying fees owed to a bonding company."

Effler's office does not intervene and, records show, his staff isn't notified when such warrants are filed. He said he has no authority to block a judge from issuing warrants.

Cotton acknowledged the U.S. Supreme Court and the Tennessee Supreme Court bar the jailing of defendants simply because they are too poor to pay fees and court costs, absent proof they "willfully" refused to cough up money. But he defended his actions anyway.

"Honestly, I don't know how I could make it financially work any other way," he wrote in a follow-up email to the News Sentinel. "If the service provider is left only to the remedy of civil collection of unpaid monitoring fees that accrue while bail is pending, he'll pack up and leave."

Cotton initially denied another practice documented by the newspaper in which he revokes — without a hearing, a request or legal justification — bond set by a judicial commissioner and paid by the accused through a bonding company, then orders electronic monitoring.

Presented with records bearing his signature that attest to that practice, Cotton said he could not specifically recall those cases but insisted "there must be something" that justified the action. The News Sentinel's sampling of 30 cases netted six instances of that practice. Not one involved violence or serious felony charges.

In another instance observed by the newspaper, Criminal Court Judge Shayne Sexton ordered the release of two defendants as part of plea agreements in his court in Scott County but was informed Cotton sought to block their freedom because the pair owed Barnett money.

Sexton said Cotton had no authority over cases in his court and told jailers to free the pair. They went free.

Cotton blamed a "misunderstanding" by jailers and insisted he never sought to block the release of defendants in Sexton's court over fees owed to Barnett.

"(Sexton) was absolutely right," Cotton said. "I have no authority over Criminal Court cases."

But Cotton admitted he did not contact Sheriff Ronnie Phillips or any other jail officials to clear up any confusion. Instead, he said he talked to bailiffs in his court about it.

Sexton, who had a full docket that day in Scott County before traveling the next day to another of the five counties he serves, did not discuss the issue with Cotton.

Cotton admitted he did not know where Barnett's firm was based, did not contact any other counties in which Barnett said he operated, did not seek any background information on Barnett or his firm and never sought approval from the Scott County Commission to do business with Barnett. He and Barnett denied ever having met before Cotton began using his firm. Cotton denied reaping any financial benefit from the arrangement.

Cotton insists his foray into the use of ankle monitoring is grounded in a desire to help the poor.

"I don't want poor people sitting in jail," he said.

The judge considers himself a "trailblazer" in the routine use of monitoring and says the newness of his approach is cause for any missteps or constitutionally suspect actions.

"We're just making this out of whole cloth," he said. "Sometimes, we're paving the road as we're driving down it."

Cotton said he "asked for some guidance" on the law but got none. He could not recall from whom he sought legal advice.

The law speaks

Attorneys interviewed by the News Sentinel say there is nothing new about the law on a citizen's right to freedom once accused but not yet convicted of a crime. It's written in the Constitution.

"The only justification for imposing on a person's liberty before trial is some concern, if released, the person won't show up at trial or, if released, there would be some danger to the community," Knox County Assistant Public Defender Jonathan Harwell said. "Ankle monitoring is both a restriction on someone's liberty and it also imposes financial liability on the person. That's not something courts can do as a matter of routine."

Tennessee law — buttressed by appellate court opinions dating back to 1977 — offers a clear road map on the process a judge should follow in deciding the matter of pretrial release, according to Frogge, who serves as director of the Tennessee Public Defenders Conference.

"The statute demands an individual decision," Frogge said. "Any kind of policy involving bonds is per se a violation."

Under the law, a judge should first presume a defendant is not only innocent but entitled to go free without paying any money, particularly if charged with nonviolent offenses or petty crimes. If a judge decides to require the accused to pay a bond, the judge must set the lowest amount deemed necessary to make sure the person will show up for court. The law requires a judge to consider a set list of factors, including the seriousness of the charge, the person's prior history, risk of fleeing and danger to either a particular person or the community at large.

To place even more restrictions on a defendant's release on bond, the law requires a judge to again make findings of fact justifying those restrictions. Tennessee's appellate courts have ruled any special conditions, such as electronic monitoring, must be the "least onerous" means of ensuring safety and court appearance and be legally justified.

The U.S. Constitution provides the rule book on jailing a person over money, noted Knoxville attorney Stephen Ross Johnson, a board member of the National Association of Criminal Defense Lawyers.

"It violates the 8th Amendment to jail someone based on an inability to pay," he said. "You cannot deny someone the right to bail simply based on an inability to pay a bonding company. What findings is the court making? There's a whole process the court has to go through if they're going to revoke someone's bond."

Cotton made no such findings of either the need for electronic monitoring or justification for jailing someone over fees in any of the 30 cases reviewed by the News Sentinel. He rarely imposed any kind of specific monitoring rules. In all but five cases, all the defendant had to do was list a home address, wear the monitor and pay the fees.

Until the News Sentinel began inquiring about his program, Barnett had never filed a report showing he was actually tracking the movements of the more than 70 people on his client list. He filed one on Sept. 6, the day the News Sentinel interviewed Cotton, with a handwritten note that the accused "went to several different places each day. She is on house arrest and does not have permission to go anywhere."

But the tracking report spanned only two days before Barnett filed it. Cotton did not hold a violation hearing or even ask the woman about her movements when she appeared before him a week later. He instead said she could be freed again under the ankle monitoring program.

Monitoring elsewhere

Knox County Pretrial Release Officer Stoney Gentry contends it would be impossible to monitor as many people as Barnett claims.

"It would drive you nuts," Gentry said.

If a defendant is actually being monitored, Gentry and fellow Pretrial Officer David Whaley said the monitoring firm sends all manner of alerts, ranging from spotty cell service — a rampant problem in Scott County — to a defendant's location in a building or home with a metal roof that blocks the signal to a low battery alert. With each alert, action is required to ensure the defendant is not, in fact, violating any conditions set, the pair said.

Knox County Pretrial Services Director Todd Cook said the county's purchasing department solicited bids for monitoring service, vetted the applying firms and entered a contract with a national provider that offered the best service for the lowest price.

Anderson County Pretrial Services Director Heidi Miller said her county likewise vetted the private firm — PSI Probation — it chose.

In Knox County, the fee for the monitor itself is $50, compared to Barnett's rate of $130. Cook and Miller say judges rarely even order monitoring, and no one goes to jail because they can't pay.

"We don't violate them," Cook said. "We don't do anything without a court order. We notify the court that they're behind. We do our best to collect the fee, but if (the private company) wants its money, they can sue in civil court."

Miller said Anderson County has a fund to pay monitoring fees for the poor. Chad McNabb, whose company provides the monitoring service, says even those with an ability to pay are charged on a sliding scale. If someone doesn't pay, McNabb said he alerts prosecutors but does nothing more to collect.

"I don't think we have the authority to do that," he said. "I don't think it's legal, and I don't think it's the right thing to do."

The county has only a handful of people on electronic monitoring.

"I think right now we have eight," he said.

Lawyers acquiesce

In Scott County, defense attorneys have not questioned Cotton's practices or challenged his decisions. Veteran attorney Max Huff, whose client list includes the poor, was candid in his belief the judge has no legal basis for ordering monitoring in many of his cases. But he admits he doesn't raise a fuss because his clients simply want freedom.

"I sign off on it because most of these people cannot afford bond," he said. "For 130 bucks, they can go free."

But he conceded defendants can wind up paying thousands of dollars in fees awaiting resolution of their cases. A bond would have been cheaper in many cases. Huff also said he does not believe Cotton has legal justification to jail people who fall behind in their fees.

Eighth Judicial District Public Defender Leif Jeffers, whose district includes Scott County, said Cotton relies heavily on private attorneys to represent the poor, so many of the cases reviewed by the News Sentinel were not his staff's clients.

But Jeffers said he and his staff have watched Cotton's practices with growing alarm and noted Cotton recently refused to accept a plea deal in one of the public defender's cases until the defendant paid Barnett's outstanding fees. He said Cotton's overall policy of using ankle monitoring not as a condition of bond as allowed by law but as the default method of freeing defendants is legally wrong in his view.

"Instead of it being an alternative to bail, it would be effective and appropriate as a condition of bail, but not as a stand-alone," Jeffers said.

But, he said, the decision to agree to ankle monitoring rests with the client, and those clients are desperate to get out of jail.

"I don't feel it's a voluntary decision at all if you've got to make whatever arrangements you can to get out of jail," he said. "They make poor decisions. They make impulse decisions. They'll say, 'Yeah, I'll sign that.' "

Since the News Sentinel began its probe, Cotton has tried to shore up his process. He has crafted a new order that gives a defendant the choice between bond and monitoring and specifically says any case sent to Sexton's court is no longer subject to monitoring.

But Jeffers said the order doesn't fix the problem. He said it creates a blanket policy instead of the individual assessment the law says a judge must make. The order also contradicts the law, he noted, by making monitoring an alternative to bail instead of an added condition.

His office is taking a wait-and-see approach before deciding upon further action.

Cotton said he would stop using Barnett's firm and do away with his blanket policy on ankle monitoring if the newspaper could convince him he's wrong.

"I would love to have some authoritative guidance on how I'm approaching the process," he said.

Brummitt still faced that driving on a revoked license charge as of Sept. 7. He paid a $300 fee to a bondsman immediately after arrest to go free, but, two days later, Cotton revoked it and put him on monitoring.

Brummitt paid $130 for the ankle monitor and has been paying $70 each week for more than 20 weeks — five months. The minimum sentence he faces on what would be a third-offense driving on a revoked license charge is 45 days in jail. A note on the back of his warrant says the court is waiting to see whether he gets his license back. That process costs thousands of dollars.

Brummitt's only income is disability.

Follow Jamie Satterfield on Twitter: @jamiescoop