Judge acquits man charged in Rachel Clawson death

By Abby Morris
Star Staff
amorris@starhq.com

   In what he called a "tough decision," Circuit Court Judge Robert Cupp gave Michael Burrow a judgment acquittal in the case charging him with reckless homicide in the June 2002 death of Rachel Clawson.
   After Assistant District Attorney Ken Baldwin completed presenting the state's case, Burrow's attorney, Jim Bowman, submitted a motion seeking judgment acquittal for his client stating that there was not enough evidence to convict Burrow of the offense he was charged with. Bowman also provided Cupp with a reference case that had somewhat similar circumstances.
   In that case, the State of Tennessee vs. Timothy Gose, the defendant was convicted of vehicular homicide and the conviction was later overturned and the Court of Appeals issued a ruling that "an accused is not guilty of vehicular homicide if the evidence establishes that the accused's conduct merely constitutes a lack of due care, inadvertence or inattention."
   Though Burrow was charged with reckless homicide and not vehicular homicide, Cupp said the ruling of the Court of Appeals was such to warrant an acquittal in this case.
   "If the law says I cannot let this case go to that jury then I can't do that," Cupp told those present in the courtroom. "This court has no choice but to render a judgment acquittal. If I were to let this case go to the jury, and Mr. Bowman chooses, he can appeal my decision and the Court of Appeals will overturn my decision.
   "It's a tough decision, but I have to do it," he said.
   According to Cupp, his decision was based on the lack of evidence presented by the prosecution. "The state has proved nothing more than the defendant's actions were nothing more than a lack of due care," Cupp said.
   By rendering judgment acquittal, Cupp took the case out of the hands of the jury.
   During the testimony from witnesses for the prosecution, jurors heard from accident reconstruction specialists with the Tennessee Highway Patrol, emergency medical personnel who responded to the scene and others, including two of Clawson's co-workers who were nearby at the time she was struck by the truck. Witnesses who were driving behind and in front of the truck driven by Burrow also testified.
   Despite the evidence provided by eye witness accounts and the depictions of the accident provided by law enforcement officers and the accident reconstruction investigators, Cupp ruled that there was not enough evidence to sustain the case.
   Cupp encouraged Baldwin to take the case to the Court of Appeals to see if they agreed with the lower court's ruling, or if they felt there was enough evidence to warrant a trial. "It's very conceivable that another jury at another time will hear this case," Cupp said.
   Baldwin stated that he intended to contact the Attorney General's office in Nashville to see if they wanted to appeal the decision. According to Baldwin, the Attorney General's office handles all of the cases that are appealed from the District Attorneys.
   In the first day of the trial, Cupp disallowed testimony from Clawson's mother and boyfriend stating that Clawson and Burrow had known each other. According to Baldwin, Clawson told her mother during the summer of 2001 while she was working as a flagger for the construction crew, that Burrow had initiated contact with her on different occasions and had asked her out on dates, but that she had no desire to go out with him. Clawson had asked her mother what she should do in the situation, Baldwin said.
   The next year, during the Summer of 2002 when Clawson again worked as a flagger for the construction crew, Clawson told her boyfriend that Burrow reportedly began initiating contact with her again and had, in one incident, allegedly veered his vehicle towards her while she was working.
   Cupp ruled that testimony from Clawson's mother and boyfriend as to the past history of Clawson and Burrow was inadmissible in court because it was hearsay due to the fact that it was told to witnesses by another individual and not information they had first-hand knowledge of.
   Baldwin said he felt that the judge's decision not to allow that testimony in open court had an impact on the case because it took away part of the evidence showing that Burrow's behavior was not a lack of due care, but was a reckless activity that had occurred before.
   Because the testimony was not allowed, jurors in the matter would not have known that Burrow and Clawson had known each other if the case had been allowed to be sent to them for a verdict.