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IN THE TENNESSEE COURT OF CRIMINAL APPEALS
AT JACKSON
STATE OF TENNESSEE,
vs.
Cause No. W1999-00281-CCA-R3-DD
RICHARD HALE AUSTIN
CAPITAL CASE APPEAL
Defendant-Appellant.
BRIEF OF THE APPELLANT
ON APPEAL AS OF RIGHT FROM DIVISION VI OF
THE CRIMINAL COURT OF SHELBY COUNTY, TENNESSEE,
C. CREED McGINLEY PRESIDING BY DESIGNATION
Frank J. Glankler, Jr., Esquire
Robert L. Hutton, Esquire
GLANKLER BROWN, PLLC
1700 One Commerce Square
Memphis, Tennessee 38103
901/525-1322
Counsel for Appellant
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ORAL ARGUMENT REQUESTED
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THE COURT ERRED IN ENTERING ITS AORDER DENYING DEFENDANT=S MOTION
TO DISQUALIFY THE TENNESSEE SUPREME COURT AND/OR STATE ATTORNEY
GENERAL FROM FUTURE PROCEEDINGS IN THIS CASE.@
On September 11, 1998, the defendant filed his AMotion to Disqualify Supreme Court
and/or State Attorney General=s Office from Future Proceedings in This Case.@ (Vol. 1, pp. 72-
75). The defendant then subpoenaed the Justices of the Supreme Court, Judge Paul Summers,
Mr. Charles Ferrell, and the Attorney General Knox Walkup to give testimony at the October 9,
1998, hearing date to demonstrate the political interconnectedness of the Supreme Court and the
Attorney General. (Vol. 1, pp. 30-65). The Court heard oral argument on the motion on October
9, 1998. The trial court quashed the subpoenas. (Vol. 3, pp. 380-381, 418). On October 27,
1998, the Court entered its AOrder Denying Defendant=s Motion to Disqualify the Tennessee
Supreme Court and/or State Attorney General From Future Proceedings in this Case.@ (Vol. 3, p.
383).
.
The Tennessee Attorney General And Reporter Is A Political
Appointee Of The Supreme Court Of The State Of Tennessee.
Tennessee is the only state in the union wherein the Supreme Court of the state
decides who will be Attorney General, and consequently who will prosecute criminal appeals
before it.¹ Specifically, Tennessee Constitution Article VI, Section 5 provides in relevant part as
follows:
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All other states either elect the State Attorney General, or the position is filled by
executive appointment:
Alabama (general election), Ala. Const. Art. V, ' 114; Arizona (general election), A.R.S. Const.
Art. 5 ' 1; Arkansas (general election), AR. Const. Sched. ' 3; California (general election), CA.
Const. 1849 Art. 5, ' 18; Colorado (general election), CO. Const. Art. 4 ' 1; Connecticut (general
election), CT. ST s 3-124; Delaware (general election), DE. Const., Art. 3 ' 21; Florida (general
election), FL. Const. Art. 4 ' 5; Georgia (general election), GA. Const. Art. 5 ' 3, PI; Idaho
(general election), ID ST s 34-612; Illinois (general election), IL ST. CH 10 ' 5/2A-5; Indiana
(general election), IN ST 4-6-1-2; Iowa (general election), IA Const. Art. 5, ' 12; Kansas (general
election), KS ST ' 25-101a; Kentucky (general election), KY Const. ' 95; Louisiana (general
election), LA Const. Art. 4 ' 3; Maine (general election), ME ST T. 5 ' 191-A; Maryland (general
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An Attorney General and Reporter for the State shall be appointed
by the Judges of the Supreme Court and shall hold office for a term
of eight years . . .
(See also T.C.A. ' 8-6-101).
Furthermore, the Attorney General is paid a salary equivalent to that of an Associate Justice of
the Supreme Court. (See T.C.A. ' 8-6-104).
The Tennessee Supreme Court is given no constitutional or statutory guidelines as
to how to select who should be Attorney General for the State of Tennessee. Thus, the
appointment is purely a political appointment, for which the recipient of the highly lucrative
position is awarded to the attorney the Supreme Court Justices Alike.@ As such an appointment to
be the Tennessee Attorney General is not a judicial function per se wherein the Court is applying
law to resolve a particular issue, and it is also not a routine administrative function. Rather, the
Tennessee Constitution grants a power to the Court to make a political appointment of an
attorney to be Attorney General.
The Tennessee Attorney General, currently Mr. Paul Summers, prosecutes all
criminal cases on appeal and before the Supreme Court in the state system.
election), MD Const. Art. 5 ' 1; Massachusetts (general election), MA Const. Amend. Art. 64 ' 3;
Michigan (general election), MI ST 168.76; Minnesota (general election), MN Const. Art. 5 ' 1;
Mississippi (general election), MS Const. Art. 6 ' 173; Missouri (general election), MO ST
27.010; Montana (general election), MT Const. Art. 6 ' 2; Nebraska (general election), NE ST '
32-507; Nevada (general election), NV ST 228.020; New Mexico (general election), NM Const.
Art. 5 ' 1; New Jersey ( appointed by Governor), NJ Const. Art. 5 ' 4; New York (general
election), NY Const. Art. 5 ' 1; North Carolina (general election), NC Const. Art. 3 ' 7; North
Dakota (general election), ND Const. Art. 5 ' 2; Ohio (general election), OH ST ' 109.01;
Oklahoma (general election), OK Const. Art. 6 ' 4; Oregon (general election), OR ST ' 180.020;
Pennsylvania (general election), PA Const. Art. 4 ' 4.1; Rhode Island (general election), RI ST '
17-2-1; South Carolina (general election), SC Const. Art. VI ' 7; South Dakota (general election),
SD Const. Art. 4 ' 7; Texas (general election), TX Const. Art. 4 ' 22; Utah (general election), UT
Const. Art. 7 ' 1; Vermont (general election), VT ST T. 3 ' 151; Virginia (general election), VA
Const. Art. 5 ' 15; Washington (general election), WA ST 43.10.010; West Virginia (general
election), WV Const. Art. 7 ' 2; Wisconsin (general election), WI Const. Art. 6 ' 1.
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Mr. Austin alleged in his motion that the Tennessee court=s appointment of the
Attorney General violated due process two ways:
The fact that the State Attorney General, who prosecutes and seeks
the death penalty on appeal before the Tennessee Supreme Court is
a political appointee of the Tennessee Supreme Court violates due
process. The Attorney General, being appointed politically,
unquestionably raises an appearance of favoritism by the Supreme
Court. After all, out the thousands of qualified lawyers in the State
who could serve as Attorney General, no statutory or legislative
criteria is given to the Supreme Court to determine who should be
Attorney General, other than merely who the Justices of the Court
want for the job. Thus, the Supreme Court would appear to be
biased in favor of the arguments of the Attorney General, since he
was selected by the Supreme Court to hold the office.
7. Additionally, because the Attorney General is dependent upon
the Supreme Court for reappointment, the Attorney General is
beholden to the Tennessee Supreme Court and is thus a defacto
employee of the Court. After all, just as trial judges wish to get re-
elected by the public at large, and consequently campaign for re-
election, the Attorney General depends on the good graces of the
Supreme Court for reappointment. In essence, the Attorney
General of the State is an employee of the Supreme Court, and
since the Court=s employee will take a position contrary to Mr.
Austin=s interest, the Court is not unbiased and impartial, and due
process will not allow the Supreme Court and/or the Attorney
General=s Office to handle the case on appeal.
(See AMotion to Disqualify Supreme Court and/or State Attorney General=s Office from Future
Proceedings in this Case@ Vol. 1, pp. 72-75).
If Mr. Austin would have been allowed to develop
proof at the October 9, 1998 hearing, Austin would have been able
to demonstrate that the Supreme Court instructed Mr. Knox
Walkup, who at the time was Attorney General, to resign, telling
him that he would not be reappointed. Furthermore, the proof
would have demonstrated that the Court had previously made a
private agreement to appoint Mr. Paul Summers as the next
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Attorney General, notwithstanding the fact that the Supreme Court
publicly asserted it had a purportedly neutral selection process to
select a new Attorney General. All of these facts demonstrate the
political interconnectedness of the Supreme Court and the Attorney
General.
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The Fourteenth Amendment grants the defendant a right to an unbiased and
impartial judiciary.
The due process clause clearly requires a fair trial
and a fair tribunal . . . before a judge with no actual bias against the
defendant or interest in the outcome of the case.
Bracy v. Gramley, 520 U.S. 899 (1997).
The fact that the State Attorney General, who prosecutes and seeks the death
penalty on appeal before the Tennessee Supreme Court is a political appointee of the Tennessee
Supreme Court violates due process. The Attorney General, being appointed politically,
unquestionably raises an appearance of favoritism by the Supreme Court. After all, out of the
thousands of qualified lawyers in the State who could serve as Attorney General, no statutory or
legislative criteria is given to the Supreme Court to determine who should be Attorney General,
other than merely who the Justices of the Court want for the job. Austin in fact sought to prove
through subpoena power that the Supreme Court told Knox Walkup he had to leave because the
Court wanted Paul Summers to be Attorney General. Thus, the Supreme Court would appear to
be biased in favor of the arguments of their hand-picked Attorney General, Mr. Paul Summers,
since he was selected by the Supreme Court to hold the office. Austin could have demonstrated
through witnesses if his subpoenas were not quashed that the Court created a fictitious neutral
selection process to select an Attorney General when the Justices had already promised the
position to Paul Summers, and got rid of Walkup so Summers could take the position. The
subpoenaed witnesses would further have developed that Mr. Paul Summers has been more
adamantly in favor of the death penalty, demonstrating that the Court=s motive to appoint
Summers is in part related to his tougher stance on the death penalty.
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Additionally, because the Attorney General is dependent upon the Supreme Court
for reappointment, the Attorney General is beholden to the Tennessee Supreme Court and is thus
a defacto employee of the Court. After all, just as trial judges wish to get re-elected by the
public at large, and consequently campaign for re-election, the Attorney General depends on the
good graces of the Supreme Court for reappointment. If the subpoenas had not been quashed,
Mr. Knox Walkup would have testified he was told by the Court he would not be reappointed,
proving he fell out of the good graces of the Court. In essence, the Attorney General of the State
is an employee of the Supreme Court, and since the Court=s employee will take a position
contrary to Mr. Austin=s interest, the Court is not unbiased and impartial, and due process will
not allow the Supreme Court and/or the Attorney General=s Office to handle the case on appeal.
An important opinion decided by the Judicial Ethics Committee should also be
noted. Judge John Peay, Criminal Court Judge, is also Chairperson of the Judicial Ethics
Committee. On November 13, 1998, Judge Peay entered Judicial Ethics Advisory Opinion
Number 98-5. (A copy of which is attached hereto as Exhibit 3). (Furthermore, the Ethics
Committee opinions are published on the Tennessee Supreme Court website found at
www.tsc.state.tn.us). Judge Peay=s opinion addressed the propriety of juvenile court judges and
their employees supervising probation and other programs for juveniles. Critically, Judge Peay
noted that probation officers appear as witnesses in proceedings before the judge who appoints
and supervise them, and that such creates a risk of impropriety:
Also, youth service officers appear as witnesses in proceedings
before the judge who appoints and supervises them. By appointing
a youth service officer to perform these functions in the judge=s
courtroom, a juvenile court judge risks the appearance of
impropriety. For instance, if a youth services officer makes
recommendations concerning the disposition of a juvenile=s case to
the juvenile court judge who employs and supervises the officer, it
could be argued that the ultimate decision to adjudicate the
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juvenile delinquent was not neutrally and impartially made. It
could also be argued that the juvenile court judge gives great or
greater deference to any recommendation of a youth services
officer he or she has appointed and/or supervises.
Judicial Ethics Opinion 98-5, pp. 1-2 (Exhibit 3).
Furthermore, Judge Peay found:
There is also a glaring problem of a violation of the
constitutionally mandated separation of powers. We leave this
issue for the proper legal authorities.
(See Ethics Opinion 98-5, n.1 (Ex. 3)).
The violation of constitutionally mandated separation of powers discussed by
Judge Peay in the context of the juvenile court appointing a probation officer is more starkly
present with the appointment of the attorney general. After all, Mr. Austin is litigating for his
very life. Having the Attorney General, Mr. Paul Summers, be appointed by the court creates the
same problem with separation of powers, the same due process problems with an appearance of
greater deference to the court appointed attorney general that occurred with the juvenile court
selection of the probation officer.
Mr. Austin has been sentenced to death. Thus, this case will for certain again be
appealed by either the State or defendant to the Tennessee Supreme Court. If Mr. Austin=s death
sentence is affirmed, Supreme Court Rule 12(2) requires the Supreme Court to review the case.
On the other hand, if this Court reverses, the Attorney General will surely seek to appeal the
action of this Court to the Supreme Court.
The Supreme Court has already considered matters arising out of Mr. Austin=s
resentencing proceeding. Mr. Austin sought an extraordinary appeal to the Tennessee Supreme
Court of the trial court=s quashing of subpoenas, which was denied. State v. Austin, 02S01-
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9811-CR-00112. The Supreme Court considered Mr. Austin=s appeal of the trial court=s refusing
to allow Mr. Austin to employ a jury consultant to assist in picking a jury; which was also
denied. State v. Austin, 02S01-9810-CR-00105. Finally, an application for permission to appeal
the order of the trial court denying Mr Austin=s motion to reopen his post-conviction proceedings
was presented to the Supreme Court, which was denied. Austin v. State, 02C01-9909-CR-
00288.
Paul Summers, the Attorney General, has also already made an appearance in Mr.
Austin=s case, arguing against allowing Mr. Austin to reopen his post-conviction proceedings.
(See State v. Womack, 591 S.W.2d 437, 443 (Tenn. Cr. App. 1979). In Amendments VI and
Article I, Sections 8 and State v. Womack, 591 S.W.2d at 443 (emphasis supplied).
Thus, Tennessee law places the burden upon the subpoenaed party to demonstrate by acceptable
evidence that the issuance of a subpoena was an abuse of process because the witness is without
information as to any material issue in the case.
It is undisputed that only Paul Summers filed an affidavit in support of his motion to quash; and
Paul Summers= Affidavit did not deny the very facts sought to be developed from him; namely,
that the Justices of the Supreme Court had determined that Judge Summers would be the next
Attorney General of the State of Tennessee. (Vol. 1, pp. 86-87). None of the Justices, nor Mr.
Walkup, Mr. Ferrell or former Justice Reid, filed any affidavits, and hence did not deny that Mr.
Walkup was informed by the Justices he would not be reappointed by the Court and was given
the option to resign. Consequently, the dictates of Bracy v. Gramley, 520 U.S. 899 (1997).
Mr. Austin could have developed proof through witnesses he sought to subpoena
that publicly Mr. Knox Walkup stated he was resigning from the Attorney General position to
pursue other employment opportunities. In fact, Mr. Walkup was told by the Tennessee
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Supreme Court Justices he had to resign because he would not be reappointed. Mr. Walkup
asked the Justices for time to find other employment.
The subpoenaed witnesses would have demonstrated that even though the
Supreme Court publicly pretended to establish a neutral selection process for the next Attorney
General, the Justices had promised the position to Paul Summers who at the time was a judge on
the Tennessee Court of Criminal Appeals. In fact so well known among state officials was this
promise to Paul Summers that people did not bother to apply as Attorney General. It would have
also been developed that Paul Summers is much more adamantly in support of the death penalty.
Paul Summers was then selected as Attorney General.
The facts Mr. Austin sought to develop from the subpoenaed parties demonstrate
the Abeholdeness@ of the Attorney General to the Supreme Court. If Mr. Austin develops in
sworn testimony that the Supreme Court in essence terminated General Knox Walkup to get
someone they liked better (Paul Summers) for the job as prosecutor before the court, the
Attorney General is much more interconnected with the court than if it were true that the
Attorney General acted purely autonomously. Also, if Mr. Austin develops through sworn
testimony that the court has terminated Mr. Walkup in order to give the position to Mr.
Summers, these facts strengthen the argument of the appearance of bias since the prosecutor
before the Supreme Court is a Afavorite son@ of the court, hand picked from all the attorneys in
Tennessee. Mr. Austin could also demonstrate that Paul Summers more aggressively and
publicly supported the death penalty than Knox Walkup; and Mr. Austin had the right to explore
whether the Court terminated Walkup to replace him with an attorney general that would
prosecute capital cases more vigorously. All of these facts support Mr. Austin=s claim that the
Tennessee Supreme Court is not impartial and detached from the office of the Attorney General.
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Failure to Allow Testimony At The Trial Court Frustrated Mr. Austin=s Right ToCompulsory
Process As Guaranteed By The Rule 13(c) of the Tennessee Rules of Appellate
Procedure governs what facts may be considered on appeal by an appellate court.
Rule 13(c) provides as follows:
Facts that may be considered on appeal -- the Supreme Court,
Court of Appeals, and Court of Criminal Appeals may consider
those facts established by the evidence in the trial court and set
forth in the record and any additional facts that may be judicially
noticed, or are considered pursuant to Rule 14.
Tenn. R. App. P. 13(c).
Rule 14 of the Tennessee Rules of Appellate Procedure allows for the Court to
consider post-judgment facts in the appellate court. Specifically, Tenn. R. App. P. 14(a).
Taken together, 14 of the Tennessee Rules of Appellate Procedure limit those
facts which an appellate court may consider to (1) those facts already in the record, (2) those
facts of which a court may take judicial notice, and (3) those facts which occur after the entry of
the judgment. As previously stated, Mr. Austin issued subpoenas to Judge Paul Summers,
Attorney General Knox Walkup, and the Tennessee Supreme Court Justices in order to develop
testimony in the record, pertaining to the decision of the Justices of the Supreme Court not to
reappoint General Walkup and the decision of the Supreme Court to appoint Judge Paul
Summers as the next Attorney General. Mr. Knox Walkup was forced to resign and Mr.
Summers was appointed as Attorney General in November 1998. Because a final judgment was
entered on March 5, 1999, all of the facts which need to be elicited have occurred prior to the
entry of final judgment. Thus, there is no available means under the Tennessee Rules of
Appellate Procedure to develop a factual record on appeal as to these highly material facts to Mr.
Austin=s Sixth Amendment guarantees a defendant the right Ato have compulsory process for
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obtaining witnesses in his favor.@ Chambers v. Mississippi, 410 U.S. 284 (1973)Washington v.
Texas, 388 U.S. 14 (1967)Washington v. Texas, 388 U.S. at 19.
It is a violation of a defendant=s Sixth Amendment rights to quash a subpoena to a
prospective witness, when the defendant demonstrates that the witness would provide testimony
that is material and favorable to his defense. See U.S. v. Valenzuela-Bernol, 458 U.S. 858, 867
(1982). Austin has shown supra. how the subpoenaed parties would have developed factual
support for a serious due process violation, thus quashing the subpoenas was constitutional error.
The Sixth Amendment to the United States Constitution guarantees the defendant
the right to compulsory process to secure witnesses to testify at trial. The trial court’s quashing
of the subpoenas effectively prevented Mr. Austin from compelling the Justices, Judge Paul
Summers and General Walkup from testifying and developing critical proof as to a due process
violation, and thus violate Austin’s Sixth Amendment right.