IN THE CRIMINAL COURT OF SHELBY COUNTY, TENNESSEE
STATE OF TENNESSEE,
vs.
No. B 58357
RICHARD HALE AUSTIN,
MOTION TO DISQUALIFY SUPREME COURT AND/OR
STATE ATTORNEY GENERAL=S OFFICE FROM FUTURE
PROCEEDINGS IN THIS CASE
COMES NOW your defendant, Richard Hale Austin, through his undersigned
counsel of record, and moves this Court pursuant to the Sixth, Eighth and Fourteenth
Amendments to the United States Constitution to prevent the State Attorney General=s
Office and/or the Supreme Court of Tennessee from participating in the appeal of this
cause. In support of his motion, Austin would show unto the Court as follows:
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. Specifically, Tennessee Constitution Article VI, Section 5
provides in relevant part as follows:
An Attorney General 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. Knox Walkup, prosecutes
all criminal cases on appeal and before the Supreme Court in the state system.
The Fourteenth Amendment of the United States Constitution, due process
clause is violated by the Supreme Court of the State of Tennessee, hearing
capital cases on the merits, when the State Attorney General, a political appointee
of the Supreme Court, argues before the Court in favor of the death penalty.
.
It is axiomatic that the due process clause of 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.
Bracey v. Gramley, 520 U.S. ____, 117 S.Ct. 1793, 1797 (U.S. 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 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.
.
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.
.
Mr. Austin is before the Court for resentencing, the issue of guilt having
been previously determined. Thus, this case will for certain again be appealed, and at
the least permission to appeal will be sought from the Tennessee Supreme Court. On
appeal, the Supreme Court will be disqualified to hear Mr. Austin=s application for
permission to appeal on the merits, since the Supreme Court employs the prosecutor
who will have prosecuted the case on appeal to the Court of Criminal Appeals and also
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argue against Mr. Austin on the merits before the Supreme Court. Though one could
argue that this motion is not ripe until Mr. Austin=s case is on appeal, once the case is
on appeal, there is no mechanism by which to develop a factual record. Because Mr.
Austin has a right to develop a factual record in order that he may present his issues for
constitutional review, the issue is being raised in the trial court. Furthermore, given the
fact that guilt has already been established by a prior jury, this matter is certain to be on
appeal to the Supreme Court, and thus to avoid taint by the Attorney General=s Office
handling appeal of the case before the Court of Criminal Appeals, the matter should be
addressed at the trial court level.
WHEREFORE, PREMISES CONSIDERED, Mr. Austin prays this Court enter an
order declaring that the Attorney General=s Office and/or the Tennessee Supreme Court
are disqualified from hearing any issues in this case.
Mr. Austin further requests an evidentiary hearing to establish the facts alleged in
this motion.
Respectfully submitted,
GLANKLER BROWN, PLLC
1700 One Commerce Square
Memphis, Tennessee 38103
901/525-1322
By:
By:
DisqSupCt&AG
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