By Tate Davis
“Your motion is granted.” With those words from Criminal Court Judge Lisa Rice, the long-delayed case of State of Tennessee vs. Barry L. Bishop abruptly ended in dismissal. Bishop clasped his eyeglasses in one hand and wiped tears of relief with the other as Judge Rice explained her reasons for entering a Judgment of Acquittal.
The State, she said, had not proven former School Transportation Supervisor Barry Bishop stole anything and had failed to fix a value on commercial driver’s license (CDL) testing fees it claimed had been inappropriately collected.
“It’s just not here,” Rice said. After jurors were brought back into the courtroom, the judge told them she had only granted one such motion for acquittal in seven years on the Criminal Court bench.
Several jurors appeared to nod in approval as Judge Rice explained she had dismissed the case and granted Bishop’s request for an expungement.
The acquittal followed the State, resting its case after presenting just over two hours of testimony from five witnesses.
The first witness was Robert Anderson, an auditor for the Tennessee Comptroller. Anderson described learning that Bishop was collecting fees for CDL testing at the school bus garage and how his agency entered a formal “finding” of deficiencies in the way Johnson County Schools handled the funds. He said the funds should have been turned over to Director of Schools Mischelle Simcox and then, in turn, to the County Trustee.
On cross-examination, Anderson admitted other deficiencies had been noted during his audit of Johnson County. Anderson said School Director Simcox knew CDL tests were being administered at the bus garage and that Bishop was collecting those fees. He also conceded that Bishop complied with a Corrective Action Plan changing procedures to
have fees deposited by the school’s finance department, which, in turn, deposited
the money with the County Trustee. Anderson said Bishop was paid for test administration after employment taxes were withheld by the county.
The State’s second witness was Marie Tidwell, a senior auditor for the Comptroller’s office. She explained how investigators decided to use 658 road tests administered by Bishop at the rate of $75 per test as the basis for charging him with theft of property in excess of $10,000. Though she claimed, “We took a conservative approach” to estimate the alleged theft, on cross-examination, Tidwell was forced to admit she didn’t know how many of the 658 tests may have been given to Johnson County school or government employees, and she didn’t know how much money Bishop had personally collected.
Special Agent Brian Fraley from the Tennessee Bureau of Investigation said a CDL test applicant was at the garage when he arrived to interview Barry Bishop on September 11, 2018. Agent Fraley said test applicants paid Bishop directly for their examinations. On cross, Fraley testified that Bishop complied with new protocols after the audit and that the fee for the tests was “raised to $100 so [Bishop] could make the same” after employment taxes were withheld by the county.
Before lunch, Fraley said the criminal investigation into Bishop was initiated by the District Attorney’s office at the request of former County Mayor Larry Potter in May 2018. Fraley conceded the Comptroller’s office had not originally requested his agency’s investigation. Exiting the courthouse for
lunch, Bishop said, “I don’t think I’ve been treated very fairly.”
When testimony resumed, the defense repeatedly questioned Agent Fraley about the delay between Potter’s May 2018 request for investigation and the case being formally opened in November. Fraley said there were several undocumented “talks” between his agency, the Comptroller, and the District Attorney’s office between May and November.
Although he said formal interviews are typically recorded, Fraley admitted his interviews with Bishop and School Director Mischelle Simcox were not. In Bishop’s case, Fraley said he experienced a problem with the recorder. “Both Mr. Bishop and Ms. Simcox were cooperative.” In fact, Agent Fraley testified Bishop “100 percent” cooperated with his investigation.
In brief testimony, Johnson County Director of Accounts and Budgets Russell Robinson described how test fee collection changed once he was promoted out of his position as School Finance Director. Employment taxes were deducted from the money collected before paying Bishop the balance of the testing fees through payroll.
The State’s final witness was April Stout. Like Bishop, Stout collected fees for administering CDL tests. Stout said she administered tests during her break from driving a bus and sometimes on Saturday mornings. Stout testified Bishop gave tests throughout the week “usually in the evenings,” including on “some Sundays.”
Before Judge Rice, both prosecution and defense agreed that most test fees were legally owed to Bishop. It was unclear what had been diverted by not having the county withhold employment tax.
Assistant District Attorney General Leon Marshall argued the jury could find evidence to convict Bishop on a lesser offense, even if it didn’t find him guilty of the Class C felony he had been charged with. To that, Judge Rice responded, “It has been substantiated that Lion’s share would have gone to Mr. Bishop. This is criminal court. We don’t deal in the hypothetical.”
Her decision to acquit soon followed.
Bishop and his family were emotional leaving the courthouse.
“I have been through Hell,” Bishop said before declining further comment.
Defense attorney Caleb McDaniel said, “Justice has been served.” On the advice of its attorney, Chris McCarty, the Johnson County School Board allowed Barry Bishop to retire on November 1, 2019.
At the time, McCarty warned, “If we don’t put
this to bed, Mr. Bishop can file a suit.” That decision
appears to have been vindicated.