Varlan Sworn in as Eastern District's Chief Federal Judge

U.S. District Judge Tom Varlan yesterday accepted the gavel as chief judge for the Eastern District of Tennessee in a ceremony packed with fellow judges, politicians, lawyers and prosecutors, reports Knoxnews.com. Varlan is the first Greek-American to be appointed to a federal judgeship in the district and, now, as chief judge of that same district. Former Knoxville Mayor Victor Ashe served as master of ceremonies. Varlan was Knoxville's law director from 1988 to 1998 during Ashe's tenure and served as a legislative intern for Ashe. U.S. Rep. John J. Duncan Jr., R-Knoxville, spoke and said he played a "small role" in pushing for Varlan's appointment to the federal bench in 2003. He called Varlan "a man of integrity" with "the heart of a servant."

24 APPLY FOR OPEN SEAT ON JUDICIAL NOMINATING COMMISSION

The Administrative Office of the Courts has received 24 applications for the seat on Judicial Nominating Commission created by the retirement of commission member Theresa Lee.

The comment period is now open and the Administrative Office of the Courts invites public comment regarding the applicants. Comments will be open until 4:30 p.m. CST Friday, January 18. The public may submit comments via email to jnc@tncourts.gov or via mail to:

AOC/Judicial Nominating Commission
Attn: Debbie Hayes
511 Union St Suite 600
Nashville, TN 37219

After the comment period, the Lieutenant Governor will have 14 days to fill the vacancy on the commission. The newly appointed commissioner will serve out the remainder of commission member Lee’s term, which expires June 30, 2015

The applicants are:

William J. Carver, Attorney, Blount County
Carl E. Colloms, Retired, Bradley County
Duncan V. Crawford, Attorney, Blount County
John P. Dreiser, Attorney, Knox County
John E. Eldridge, Attorney, Knox County
David A. Golden, Senior Vice President, Chief Legal Officer and Corporate Secretary, Hawkins County
Ray H. Jenkins, Attorney, Knox County
Roger E. Jenne, Attorney, Bradley County
Edward L. Kershaw, Attorney, Greene County*
John K. King, Attorney, Knox County
McKinley S. Lundy, Jr., Associate Attorney at Patrick, Beard, Schulman & Jacoway, P.C., Hamilton County
Sean W. Martin, Attorney, Hamilton County
William E. Mason, Attorney, Knox County
Dale J. Montpelier, Sr., Attorney, Knox County
Carrie O'Rear, Partner at Norton, Spangler & Cramer, P. C., Knox County
Martin L. Pierce, Attorney, Hamilton County
Rick L. Powers, Senior Attorney, Arnett, Draper and Hagood, Loudon County
Robert E. Pryor, Sr. Attorney, Pryor, Flynn, Priest & Harber, Knox County
John T. Rice, Attorney, Hamilton County
Charles Riggs, UTC Police Department/Private Process Server, Rhea County
J. Randall Shelton, Attorney, Hamblen County
William Arthur Simms, Civil Trial Lawyer, Knox County
Wanda G. Sobieski, Attorney, Knox County
Douglas C. Weinstein, Attorney, Knox County
*Application received after deadline

An End to the Baumgartner Saga as Jury Convicts Disgraced Judge

A federal jury in Knoxville, Tennessee voted to convict former Knox County criminal court judge Richard Baumgartner, who was charged with lying to cover up a scheme that provided him with painkillers and sex.

The verdict meant that the former judge was found guilty on five counts of misprision of a felony and acquitted of one charge. Prosecutors were successfully able to convince the jury that Baumgartner had lied to cover up a conspiracy involving a defendant from his court supplying him with pills and sex. Baumgartner’s defense conceded he was an addict and adulterer, but unsuccessfully argued that his actions were not a federal crime.

The jury foreperson later spoke about the deliberations and said that jurors were never deadlocked on any of the counts as they debated their verdict, despite a few questions that led some observers to believe they were.
Deliberations lasted nearly 20 hours and many observers wondered what was taking the jury so long. The jury led some to believe they were going to end up deadlocked given a few of the questions they had for the judge. One question asked what they should write on the verdict form if they did not agree. The foreperson said that the question was not asked because of any actual deadlock, but instead asked preemptively, so that she could plan ahead in the event that unanimity was not possible.

The foreperson said that the reason for the delay was the complexity of each count that they had to decide on. For each charge, the jury of 12 people had to come to an agreement on four distinct elements: First there was a drug conspiracy. Second, Baumgartner had full knowledge of it. Third, he failed to report it. Fourth, he then worked to conceal the felony.

Some of the counts were easier for the jury to agree on than others and they ultimately acquitted Baumgartner on Count Two. The foreperson said the reason for that decision was because the crime of misprision deals with lying to federal officials and Count Two involved an incident at St. Mary’s hospital. The jury decided that there were not any federal officials present at the hospital and thus cleared Baumgartner on Count Two.

Read: “Richard Baumgartner Guilty: Jury Convicts Ex-judge In Drug Conspiracy Cover-up,” by The Associated Press, published at HuffingtonPost.com.

See Our Related Blog Posts:
Baumgartner’s Attorneys Get Three Months to Prepare
The Baumgartner Debacle Continues

The Baumgartner Debacle Continues

former judge Ricard Baumgartner
photo knoxnews.com

Special Judge Jon Kerry Blackwood affirmed his earlier decision, recently reviewed by the Tennessee Supreme Court, and ordered new trials for a second time for the defendants in the Christian/Newsom murder case.

The state Attorney General’s Office earlier appealed Blackwood’s first retrial order, and on May 24 the Supreme Court issued an opinion saying that former judge Baumgartner’s misconduct off the bench was not reason enough to justify new trials. The high court said that the defense would have to show that actual error or bias had occurred. The justices further questioned Judge Blackwood’s ruling that Baumgartner’s inability to serve as the 13^th juror was justification for new trials. The Court did leave open the possibility that if witness credibility were essential, Baumgartner’s behavior could be used as support. 

Blackwood took the opportunity to revisit his ruling and quickly decided he had been right the first time. The Supreme Court never overruled him and did not bar him from again granting new trials. The justices simply asked that he review his initial order using their opinion as a guide.

Blackwood did base his second retrial order on language contained the Supreme Court’s opinion, specifically mentioning the importance of witness credibility to the ultimate outcome of the trials. Blackwood said because witness credibility was such an “overriding and important issue" at trial he did not feel he was able to step into the role of the 13^th juror left open thanks to Baumgartner’s resignation. 

The order came just a few days after Knox County District Attorney General Randy Nichols filed a motion asking that Blackwood recuse himself from the case. Prosecutors argued that Blackwood was biased against them, having planned to grant new trials before allowing the state to make its case. It is hard to understand their position, given that they are arguably the only ones who could have had knowledge or power to do anything about Baumgartner's misbehavior.

Current law in the state is vague about what is to happen when a motion to recuse is before a judge. The current Rule 10 of the state’s Code of Judicial Conduct states only that: 

“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding; [or] (b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it.”

The Supreme Court recently adopted a new Rule 10 that is set to go into effect on July 1 of this year. The new rule would prevent a judge whose recusal is being sought from issuing any orders or rules until the motion to recuse has been dealt with. The new rule also gives the petitioning party a right to automatic emergency appeal should the judge deny the motion. Because the rule is not yet in effect Blackwood is permitted to issue his second order despite the current motion for him to recuse himself. 

Read: “Blackwood reasserts order: New trials in Christian-Newsom killings,” by Jamie Satterfield, published at KnoxNews.com.

Earlier:

Judge Baumgartner Saga Continues

Prosecutor’s Note Questioning Witnesses’ Credibility Leads to a Murderer’s Appeal

Shocking Allegations Concerning Behavior of Knoxville Judge in Christian/Newsom Slaying

by Lee Davis

A Knoxville Criminal Court judge was so addicted to pain drugs during his last several years serving on the bench that he was having sex and buying prescription drugs on the street during courtroom breaks.

As we discussed here previously, Criminal Court Judge Richard Baumgartner unbelievably purchased drugs from people he had sentenced to prison.  Despite the nature of his acts while in office, most people around him did not know that Judge Baumgartner had a problem until months after he stepped down from the bench in March 2011 for a single count of official misconduct. As new allegations continue to surface about his behavior, others question whether he was sober enough to have effectively performed his job.

The high profile Christian/Newsom case was thrown out by a special judge who ordered new trials after revelations of Baumgartner’s illegal acts while on the bench. Many other defendants are lining up for a similar attempt to get their convictions overturned. The requests for new trials could overwhelm the Knox County justice system, as Baumgartner had a prolific caseload, being one of three judges in the county who heard felony criminal cases.

“We’re getting pleadings almost daily now from people in the penitentiary filing habeas corpus saying, ‘Let me out too.’ It’s raining over here,” said Knox County District Attorney General Randy Nichols.

Baumgartner got away from all of misdeeds relatively unscathed, leaving the bench to enter rehab and then having a judge give him a sentence which permitted him to erase his felony conviction if he stayed out of trouble. The sentence also allowed Baumgartner to avoid jail and keep his full pension. The judge has since said he would have meted out a tougher sentence had he known the full picture.

Nichols now says that he went to speak to Baumgartner in 2010 because he was concerned about the man’s health, never suspecting narcotics could be involved. Little did Nichols know just how bad his former friend had fallen into his addiction. The judge doctor shopped to get his hands on oxycodone, hydrocodone, Xanax and Valium. When he ran out of doctors he turned to ex-convicts, some of whom he sentenced himself.

One large supplier, AP reports, was a woman who graduated from the drug court that Baumgartner created and presided over. The woman regularly provided both pills and sex to the married judge, sometimes during breaks from court in the judge’s chambers. The woman also discusses instances where Baumgartner paid her for drugs and sex as well as provided bail money after an arrest. He went even further and falsified a drug test after she tested positive while on parole.

Another dealer was sold the judge pills during court breaks as well. He says that he gave Baumgartner extra pills when he had to travel to Nashville where the Christian/Newsom jury was being chosen. 

Prosecutors are currently appealing the decision to retry the four people convicted in the 2007 slayings of the young couple. Whether the appeal will be successful remains to be seen but it’s clear that Baumgartner’s behavior has damaged the criminal justice in Knox County and that damage will take years to repair.

Read: “Investigators: Tenn. judge high on pills in court; had sex, bought drugs on breaks,” by The Associated Press, published at JacksonSun.com.

Earlier:

New Tennessee Campus Crime Report Released

Tennessee Legislature takes on Judicial Misconduct

Public Reprimand of Judge Zachary

• The Honorable Ronnie Zachary Public Reprimand

The complaint alleges an act or acts by you that violated the Code
of Judicial Conduct, in that the complaint asserts that you had  imposed a
punishment in a case that  involved  handcuffing a father to  a son as  a
punishment.

TN Supreme Court Examines the Constitutionality of Two Murder Convictions and the Subsequent Death Sentence

• Leonard Edward Smith v. State of Tennessee

The TN Supreme Court recently decided the case of Leonard Smith, convicted murderer on death row. The long case with a complicated procedural history began in 1985. He was convicted of murdering John Pierce in 1985 and of murdering Novella Webb in 1989, both occurring in the process of an armed robbery.

There were four issues on appeal. The first, and arguably the most interesting, is whether Smith was denied his Constitutional right to a fair trial at his 1995 re-sentencing hearing when his counsel failed to investigate and present evidence in support of his motion to recuse the presiding judge. Judge Brown, presiding judge over Smith's case, also served as a Prosecutor in Carter County. In May of 1984, Smith was indicted in Carter County for simple robbery and DUI. Prosecutor Brown (now Judge Brown) was assigned to prosecute him. Therefore, Smith was being prosecuted at the same time in two different counties for four crimes: the two murders and the robbery and DUI in Carter County. Smith appealed his convictions for the simple robbery and DUI but was denied relief. Meanwhile, Prosecutor Brown later became Judge Brown and presided over Smith's 1995 re-sentencing hearing.

When presented with these facts, Smith's attorneys neglected to investigate further into Judge Brown's involvement in the prior convictions to determine whether he had an obligation to recuse himself.

In determining whether Smith's counsel was ineffective, the Court looked to the United State Supreme Court's holding in Strickland v. Washington. Specifically, the Court in Strickland stated that the ultimate focus on the effectiveness of an attorney is "whether counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Judicial impartiality is a fundamental requirement in the guarantee for due process. Therefore, the test is an objective one: the Court examines whether the Judge is likely to be "neutral" or whether there is an unconstitutional "potential for bias."

The Court held that Smith's counsel were ineffective when they neglected to investigate or further pursue the motion to recuse. This ineffective counsel resulted in prejudice to Smith in that he was denied his right to a fair trial before an impartial tribunal. Particularly damaging to Smith's case was Judge Brown's involvement in the re-sentencing. As part of justification for a sentence of death, a judge should consider any aggravating factors such as prior violent felony convictions. Not only did Judge Brown know of the prior conviction for robbery, but he was the attorney that prosecuted Smith for that crime. This is clearly a situation that would point to a "potential for bias" by the Judge.

The Court examined three other issues: 1) whether Smith met the definition for "intellectual disability" and would thus be precluded from receiving a death sentence; 2) whether Smith's counsel were ineffective in their voir dire of potential jurors when they neglected to ask the jurors if they or someone close to them had been victims of a crime; and 3) whether the post-conviction claims Smith brought for the Pierce murder were barred by the statute of limitations.

The Court decided the lower courts should be given the opportunity to further examine whether Smith met the definition of "intellectual disability." The case was remanded back to sentencing. If found to have an "intellectual disability," Smith cannot be sentenced to death. Next, the Court decided that his attorneys were ineffective when they neglected to ask the potential jurors if they or anyone close to them had been a victim of a crime. The boyfriend of the daughter of one of the jurors was murdered in the recent years before Smith's trial. When asked if that would impair his ability to be impartial, the juror responded that he could remain impartial throughout his decision. Although counsel was ineffective, since Smith could not prove actual bias, he could not be afforded a remedy. Lastly, the court held that Smith's post-conviction claims were barred by the statute of limitations. The statute of limitations for bringing post-conviction claims is three years from the final action of the highest appellate court. Smith waited twelve years to bring post-conviction claims for the Pierce murder. The Court held this was obviously in violation of the statute of limitations and the claims were barred.

After all of that it might be difficult to tell where exactly Smith stands. Here is the rundown:

• Smith's conviction for the Pierce murder are affirmed.
• Smith's conviction for the Webb murder is affirmed.
• Smith's death sentence was vacated, and the case is remanded to the trial court for hearings on Smith's mental capacity. These hearings are to be conducted by a judge other than Judge Brown.

TN Supreme Court Justice Adolpho Birch Honored & Remembered

Racism Strengthened Birch’s Resolve to Excel in Law

Funeral services for Tennessee Supreme Court Justice Adolpho A. Birch Jr. are Tuesday, Aug. 30, in Nashville.

“The decision to go to law school and become a lawyer was made long ago. I never, never wanted to be anything else. I never recall having wanted to be anything else or do anything else.”

–Adolpho A. Birch Jr.
Late Tennessee Supreme Court Justice

Birch will lie in state at the Metro Courthouse from 2 p.m. to 5 p.m. with a 6 p.m. memorial service at War Memorial Auditorium in the capital.

Birch, Tennessee’s first African-American Tennessee Supreme Court Chief Justice, died Thursday, Aug. 25, in Nashville of cancer. He was 78.

JUDICIARY MOURNS PASSING OF FORMER CHIEF JUSTICE ADOLPHO A. BIRCH, JR.

Statement from Chief Justice Cornelia A. Clark:

“We are extremely saddened to learn of the passing of former Chief Justice Adolpho A. Birch, Jr. Our judicial family has lost a great leader, champion of justice, and dear friend. A true pioneer in many arenas, Justice Birch has left an indelible mark on the Tennessee judiciary and the entire legal system.

“As the only judge who ever served at every level of our legal system, Justice Birch had a keen understanding of the law, the judiciary and the people he served. That perspective served him well on the Supreme Court, especially in his role as chief justice. For his entire judicial career he continued to blaze trails to insure justice and access to the courts for all persons.

“I was very privileged to serve with Justice Birch on the Court during the last year of his tenure and to have my office around the corner from his. I often sought his advice and counsel. He never hesitated to stop what he was doing and answer my questions, and I benefitted greatly from his wisdom and patience. I was proud to call him my colleague and my friend.

"Justice Birch served the state of Tennessee with extraordinary dignity and integrity and we will miss him dearly.

Bart Quinn Named to Judicial Nominating Committee

Lt. Governor Ron Ramsey today announced the appointment of J. Barlett Quinn of Chattanooga to the Judicial Nominating Commission. Mr. Quinn will fill the vacancy left by the resignation of Commissioner Bill Young, who will step down on Sept. 1 to become Tennessee Solicitor General.

“The health of the judicial branch of state government is crucial to the long term health of Tennessee,” said Lt. Governor Ramsey. “Bart Quinn is an outstanding lawyer committed to an exemplary judiciary. I’m proud to appoint him and have every expectation that he will strengthen Tennessee’s judiciary.”


Here is a link to Bart Quinn. Quinn works for the Chattanooga law firm of Chambliss, Bahner & Stophel.


Bart Quinn practices primarily in the areas of employment law and workers' compensation. He has represented several large corporations in the defense of various employment discrimination lawsuits and other related litigation.  He counsels clients on employment decisions, including hiring, termination, reduction in force, disciplinary actions, separation agreements, wage and hour issues and unemployment compensation claims.

What's Next for the U.S. Supreme Court?

An interesting article in the New York Times last week focuses on what lies ahead for the U.S. Supreme Court. Specifically, it focuses on the future of the four left-wing justices individually and as a whole. After a relatively quiet season, these justices may face some tough times over the next few seasons.

The article first discusses the roles of the two newest members of the Court, Justices Sonya Sotomayor and Elena Kagan. The two female justices have voted the same way in 96% of the cases they have heard. With three female justices on the bench, the question becomes whether we will see more gender discrimination cases. If so, the three justices will need to persuade one of the male right-wing justices to strengthen the standard needed to restrict gender discrimination from its current position at the bottom of the spectrum. This task may prove difficult and will likely require heavy debate.

Next, the article discusses the role of the swing-vote, Justice Anthony Kennedy. The author takes language from some recent opinions written by Kennedy, and speculates as to which way he may vote on some of the upcoming issues. For instance, in Kennedy's opinion for the case involving the release of thousands of inmates from California prisons due to inadequate medical care, he states that the health care system in prisons was "incompatible with the concept of human dignity." This may be a hint on how he might rule on President Obama's Health Care Reform Act. To quote the author of the article, "So if prisoners are entitled to adequate care, you'd think the rest of us would be too."

There is also speculation as to whether Justice Kennedy might one day support same-sex marriage because of his opinion in the 2003 case which threw out the sodomy prosecution of two homosexual males.

The last topic of the article deals with President Obama and his ability to appoint federal appellate judges. Since he took office, Obama has yet to appoint any democratic federal appellate judges. This is odd to some liberals because of Obama's strong stance on constitutional rights. Many thought he would load the federal appellate bench with left-wing liberals. Instead, he has left the federal bench with at least 80 vacancies for more than two years.

It will be interesting to see how the Court will progress with the next season. It is sure to be an interesting one with hot-button topics such as the Health Care Reform Act, same-sex marriage, and abortion rights.

*Photo courtesy of Alex Wong/Getty Images North America.*

JUDICIAL NOMINATING COMMISSION RECOMMENDS THREE CANDIDATES FOR KNOX COUNTY CRIMINAL COURT

The Judicial Nominating Commission interviewed eight applicants for the judicial vacancy in the 6th Judicial District created by the retirement of Judge Richard Baumgartner

The Judicial Nominating Commission has recommended the following three candidates to Governor Bill Haslam:

Charles Burks

Attorney

Justice, Noel & Burks

Scott Green
Attorney
Valliant, Harrison, Schwartz, & Green, P.A.


Steven Sword
Assistant District Attorney General
Knox County District Attorney General’s Office, 6th Judicial District


Governor Haslam may now appoint one of these candidates.