         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          August 14, 2013

           STATE OF TENNESSEE v. JEFFREY M. FORGUSON
                   Appeal from the Circuit Court for Stewart County
                   No. 4-2101-CR-09         George C. Sexton, Judge




                No. M2013-00257-CCA-R3-CD - Filed February 18, 2014




J AMES C URWOOD W ITT, J R., J., concurring.

               I concur in the majority opinion in this case and only write separately to
respectfully comment about the issue of the trial judge’s Facebook “friendship” with the
confidential informant in this case.

                I agree that the issue is of no avail to the defendant. First of all, the matter of
recusal of the trial court was not properly raised according to Tennessee Supreme Court Rule
10B, section 1. See Tenn. Sup. Ct. R. 10B § 1.01 (“The motion [to disqualify] shall be
supported by an affidavit under oath or a declaration under penalty of perjury on personal
knowledge and by other appropriate materials.”). In the present case, the issue was raised
via an unsworn claim made in the amended motion for new trial filed on December 12, 2012.
This rule became effective on July 1, 2012, and the issue was not presented to the trial court
until December 14, 2012. Second, the defendant did not establish with specificity the factual
grounds for disqualification as required by section 1.01. See id. (“The motion shall state,
with specificity, all factual and legal grounds supporting disqualification of the judge and
shall affirmatively state that it is not being presented for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost of litigation.”).
Although the trial judge admitted he and the confidential informant were Facebook “friends,”
this latter flaw is significant because the State challenged the supporting factual grounds by
claiming that the details and timing of the Facebook relationship were not shown by the
defendant. Given the requirements of the rule and the method in which the issue was raised,
I conclude that the issue was not properly postured for review by this court.
                That said, however, the opinion in my view should not stand for the proposition
that a judge’s Facebook relationship with a litigant or a key witness for a litigant poses no
ground for disqualification. I accept and agree with the trial judge’s commentary that one
cannot reasonably expect a trial judge living in a small community to recuse himself or
herself because he or she is acquainted with a litigant or a key witness. When a judge shares
a Facebook “friendship” with such a person, however, the aggrieved party may be able to
show that this “social media” relationship is more active, regular, or intimate than mere
incidental community propinquity might suggest. For instance, how intentional is the
relationship? Who initiated it and when? How do the participants use the medium? What
type of information is shared? What is the frequency of the communications? Certainly, I
could envision a properly presented Rule 10B motion that, upon proof, evinces at least an
appearance of impropriety. See Tenn. Sup. Ct. R. 10 §1.2 (“A judge shall act at all times in
a manner that promotes public confidence in the independence, integrity, and impartiality of
the judiciary, and shall avoid impropriety and the appearance of impropriety.”). For instance,
as in the present case, the judge’s familiarity with the Facebook “friend” may indicate his or
her awareness of the “friend’s” conflict with the criminal justice system.

              Strides in technology present various unprecedented challenges to the
procedures and methods of the justice system. This case may well suggest another such
challenge, and the perils should be heeded.




                                                    JAMES CURWOOD WITT, JR., JUDGE




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