         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

               STATE OF TENNESSEE v. THOMAS DEE HUSKEY

                                  Criminal Court for Knox County
                                            No. 51903


                                  No. E-2002-00030-CCA-R10-CD
                                         March 26, 2002


Gary R. Wade, P.J., dissenting.

         As acknowledged by the majority in its carefully considered opinion, trial judges are vested
with broad discretionary powers in the conduct of a trial. Courts must monitor all attorney conduct
and may direct a remedy if the performance impedes the orderly administration of justice. United
States v. Dinitz, 538 F. 2d 1214, 1219 (5th Cir. 1976). That authority necessarily includes the
supervision of appointed counsel for indigent defendants. Moncier v. Ferrell, 990 S.W.2d 710
(Tenn. 1998). An extraordinary appeal to this court on any issue relative to the supervision of the
trial which requires immediate appellate review may be granted only in limited circumstances: (1)
when the trial court has so far departed from the accepted and usual course of judicial proceedings
as to require intervention; or (2) if necessary for a complete determination of the case. Tenn. R. App.
P. 10.

         In this instance, the majority concludes that the trial judge has so far departed from the usual
course, by disqualifying one of the two defense attorneys, that our intervention is necessary. I
disagree. By disqualifying defense counsel, the trial judge has chosen an unusual, perhaps risky,
course of action. The disqualification issue is well documented in this record and may serve as a
basis for reversal on direct appeal and the grant of a new trial. While I strongly advocate the right
to counsel and, in circumstances such as this, a qualified entitlement to the continued service of
counsel, I also believe that the trial judge, vested with the duty and responsibility of supervision of
the trial, must be afforded broad discretion in the conduct of the trial:

        The right "cannot be insisted upon in a manner that will obstruct an orderly procedure
        in courts of justice, and deprive such courts of the exercise of their inherent powers
        to control the same." The public has a strong interest in the prompt, effective, and
        efficient administration of justice; the public's interest in the dispensation of justice
        that is not unreasonably delayed has great force.

State v. Zyla, 628 S.W.2d 39, 41-42 (Tenn. Crim. App. 1981) (quoting United States v. Burton, 584
F. 2d 485, 489-90 (D.C. Cir. 1978)). Someone must be in charge . . . and held accountable for
arbitrary decisions. This court should not, however, interfere at any time before the verdict absent
overwhelming evidence that the trial judge has abused its discretionary authority. Any right to a
continuation of counsel of choice "must be balanced against the requirements of the fair and proper
administration of justice." United States v. Micke, 859 F. 2d 473, 480 (7th Cir. 1988).

        As acknowledged by the majority, there is some evidence of contumacious conduct on the
part of defense counsel. For example, defense counsel typically begins each proceeding by lodging
a renewal of a motion to disqualify the trial judge, often restating the basis for the claim. That issue
is preserved for posterity. Repeated renewals are unnecessary and wasteful of the resources already
scarce in cases of this magnitude. So is the tedious re-assertion of requests for other relief, already
either granted or denied, and well documented for purposes of appeal.

        The indictment was issued nine years ago. There is already a voluminous record. The
defendant is entitled to a speedy trial. The public is entitled to an accountable judiciary. The trial
judge has made a threshold showing of counsel misconduct. I fear that the remedy fashioned by the
majority may further delay the trial and render the trial judge powerless to conduct the trial in an
authoritative and expedient manner. In summary, I would have ruled that the extraordinary appeal
should not have been granted and would have delayed consideration of the disqualification issue
until the conclusion of the case. In the event of an acquittal or a negotiated plea agreement, an
appeal is unlikely. It is only in the event of a conviction and direct appeal that the disqualification
issue is mature for resolution.


                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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