published Saturday, March 19th, 2011

Sessions court judge responds to local attorneys’ complaints

  • photo
    Judge Bob Moon listens to a defendant speak Friday in his courtroom. Staff Photo by Tim Barber/Chattanooga Times Free Press

Local attorneys Ben McGowan and Hank Hill have filed separate complaints alleging that Hamilton County General Sessions Court Judge Bob Moon violated defendants’ constitutional rights.

The complaints, filed with the Tennessee Court of the Judiciary, contend Moon stepped outside his position as judge and into a police role from the bench.

Hill confirmed that the complaint he filed claims that, in 2010, Moon charged a defendant with drug possession after the man failed a drug test that Moon suggested he take. Police had arrested the man on traffic offenses with no drug charges.

The other complaint, filed by McGowan, states that, in 2008, Moon jailed two prosecution witnesses during a hearing when he said their testimony revealed the pair had violated terms of their conditional sentencing on unrelated shoplifting charges.

Two University of Tennessee law professors said the complaints, if true, are “appalling” breaches of justice.

The Court of the Judiciary does not confirm complaints. The 16-member panel may recommend removal, suspension or other discipline of a judge following an investigation, according to the court’s website.

Moon said Friday the complaints are a difference of opinion on law and that the alleged actions do not violate judicial ethics. He said he will respond to the Court of the Judiciary about both complaints.

In an e-mail to the Times Free Press, Moon said the lawyers’ complaints would be better handled under a direct appeal on his decision in each case and not a filing with the Court of the Judiciary.

“The attorneys assert legal arguments that are usually briefed and filed in the Tennessee Appellate Courts and not the Tennessee Court of the Judiciary,” Moon wrote.

JAILED DURING TESTIMONY

In October 2008, cousins Destiny and Keyata Bush were asked to testify in Moon’s courtroom as prosecution witnesses in an assault case. At the time of the hearing, the pair were on a judicial diversion for unrelated shoplifting charges.

In a telephone interview this week, Keyata Bush said neither she nor Destiny Bush were warned they might face arrest because of their testimony. Moon ordered the cousins arrested and jailed after learning through their testimony that they had violated terms of their diversions.

Judicial diversions usually run for a set length of time. If defendants don’t violate the terms of their diversions, they will not have to serve jail time. McGowan said even if a judge has reason to believe that a person might have violated court-ordered judicial diversion or probation, the person is entitled to a separate hearing, to legal counsel and to be informed of their rights against self-incrimination.

Hamilton County Criminal Court Judge Don Poole later ruled that Moon had violated the womens’ constitutional rights by failing to inform them of their rights to legal counsel, rights against self-incrimination or holding a separate hearing to determine how the pair had violated their diversion.

Moon noted that McGowan’s complaint referred to a case more than two years old that it had been resolved on appeal.

McGowan said he filed the complaint last week after learning that Moon’s conduct in the case was not isolated.

His complaint states that in the alleged incident Moon “disregards basic constitutional rights of citizens who are willingly assisting the prosecution.” He worried that Moon’s actions would have a “chilling effect” and make witnesses less likely to cooperate with the court.

CHARGES CHANGED

Hill confirmed that he’d filed his complaint on behalf of the Chattanooga Association of Criminal Defense Lawyers. He said he’d only recently learned of Moon’s actions in the 2010 drug case and had obtained copies of related documents, which he forwarded to the Court of the Judiciary.

“Mr. Hill’s complaint does not reflect the total record, complete facts or the logistical disposition of the case,” Moon wrote.

The Times Free Press obtained copies of documents related to Troy Standifer’s case; the typed charge of driving on a revoked license had been marked through and “Poss of Marijuana” written above.

Standifer said he didn’t know what was happening when he came to Sessions Court in April 2010, ready to pay traffic fines and ended up handcuffed and jailed on a drug possession charge.

The 48-year-old man said in a recent jail interview — he is in jail on unrelated charges — that he’d agreed to take a drug test offered by Moon when the judge told him that, if it came back clean, he’d give Standifer a month in jail rather than face fines and lose his driver’s license on the traffic charges.

Standifer said Moon previously had offered the drug test to him and others in the court but that this was the first time he agreed to take it. He said he was shocked when he failed.

He asked to resolve the traffic fines and said Moon gave him the choice of taking the drug possession charge or the two traffic charges. With no lawyer representing him, Standifer said he turned to a group of lawyers seated in the room and asked what to do.

An attorney told him to take the drug charge, which he did, and then served three months in the Hamilton County Jail, he said.

LEGAL PROBLEMS

Two legal experts at the University of Tennessee School of Law said allegations that a judge would jail witnesses without informing them of their rights or amend a criminal charge wholly unrelated to the arrest are “appalling.”

“This sounds like ‘Let’s Make a Deal,’” said Penny White, UT law professor and former state Supreme Court justice.

Both White and law professor Ben Barton commented in general on the law regarding the allegations. Neither knew the names of any party involved in the complaints.

White said allegations that a judge offered a plea deal to a defendant are unacceptable.

“That is just completely prohibited by all standards of the criminal justice system; it’s just inappropriate,” she said. The judge is supposed to act as a supervisor and either accept or reject pleas offered by attorneys, she said.

White said that drug testing is sometimes used by judges when original charges involved drugs, but since Standifer’s arrest was for traffic offenses, amending a traffic offense to a drug charge means the judge is acting as a police officer.

“What one would hope is that this conduct is accidental, that this particular judge did this based on a lack of understanding,” White said.

Reluctance by lawyers to file complaints against judges is common, both Barton and White said, even though lawyers are ethically obligated to report judicial misconduct. Barton said lawyers in local courts must appear before judges repeatedly, making it difficult to file complaints for fear that it could affect their clients.

“It’s hard to report a judge,” White said. “You’d rather stick your head in the sand.”

Staff writer Dan Whisenhunt contributed to this story.

about Todd South...

Todd South covers courts, poverty, technology, military and veterans for the Times Free Press. He has worked at the paper since 2008 and previously covered crime and safety in Southeast Tennessee and North Georgia. Todd’s hometown is Dodge City, Kan. He served five years in the U.S. Marine Corps and deployed to Iraq before returning to school for his journalism degree from the University of Georgia. Todd previously worked at the Anniston (Ala.) Star. Contact ...

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harrystatel said...

As to ignoring the Constitution, who do the local judges think they are—Federal judges?

March 19, 2011 at 7:38 p.m.
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