                                                                                          05/14/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                January 9, 2019 Session

                    BRICE COOK v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                     No. 08-07496       Lee V. Coffee, Judge
                     ___________________________________

                           No. W2018-00237-CCA-R3-PC
                       ___________________________________


JOHN EVERETT WILLIAMS, P.J., dissenting.

        I respectfully disagree with the majority’s conclusion that the Petitioner is not
entitled to relief based upon his claim of bias by the post-conviction judge. Rather, I
conclude that the post-conviction judge’s comments at the conclusion of the hearing were
so egregious that the judge’s impartiality might reasonably be questioned and, thus,
warranted recusal. See Tenn. Sup. Ct. R. 10, R.J.C. 2.11(A) (“A judge shall disqualify
himself or herself in any proceeding in which the judge’s impartiality might reasonably
be questioned….”). Because the judge presided over the proceedings when disqualified
from doing so, I would reverse the post-conviction court’s order denying the Petitioner
post-conviction relief and remand for a new hearing with a different judge.

        I disagree with the majority’s conclusion that the Petitioner waived the issue by
failing to file a motion to recuse in the post-conviction court. “A motion for recusal
should be filed when the facts forming the basis of that motion become known.” Bean v.
Bailey, 280 S.W.3d 798, 803 (Tenn. 2009); see also Tenn. Sup. Ct. R. 10B, § 1
explanatory cmt. (stating that a motion to recuse “should be made promptly upon the
moving party becoming aware of the alleged ground or grounds for such a motion”). The
basis upon which to seek recusal in the present case did not manifest itself until the post-
conviction judge made the improper comments in issuing his oral rulings. Filing a
motion to recuse after the court has issued its ruling would have been an exercise in
futility.

       Furthermore, this court previously has removed a trial judge from presiding over a
case notwithstanding a party’s failure to file a proper motion to recuse in the trial court.
See Corey Mitchell v. State, No. W2016-01818-CCA-R3-PC, 2018 WL 3005379, at *6-7
(Tenn. Crim. App. June 14, 2018) (holding that the judge must be recused from hearing
further post-conviction proceedings when the judge pre-determined what the testimony of
trial counsel would be, stated that the petitioner was guilty of aggravated perjury,
implicitly encouraged the State to seek an indictment for aggravated perjury, and engaged
in actions that could be seen as vindictive); State v. Jerome Sanders, No. W2014-00989-
CCA-R3-CD, 2016 WL 327277, at *17, 22 (Tenn. Crim. App. Jan. 17, 2016) (reversing
the trial court’s judgments on various grounds and ordering that another judge preside
over the retrial even though the defendant’s motion to recuse filed in the trial court was
untimely); State v. Wallace Jones, No. M2002-00738-CCA-R9-CO, 2003 WL 1562088,
at *5 (Tenn. Crim. App. Mar. 26, 2003) (ordering that the trial judge should be recused
from further proceedings based upon the judge’s comments in improperly denying the
defendant’s petition for writ of certiorari); see also State v. Eric Kizzie, W2015-01977-
CCA-R8-CO (Tenn. Crim. App. Dec. 3, 2015) (order) (reversing the trial judge’s order
regarding the issue of pretrial bond and removing the judge from the case due to the
judge’s comments regarding his disagreement with the law on pretrial bonds and his
threat to revoke the defendant’s bond if the defendant posted bond); State v. Michael
Halliburton, W2015-01630-CCA-R9-CD (Tenn. Crim. App. Sept. 22, 2015) (order)
(holding that the trial judge should have recused herself once she engaged in ex parte
communications with jurors following the trial and obtained information that she
considered in ordering a new trial). I conclude that the conduct of the post-conviction
judge in the present case, like the conduct of the judges in the above-captioned cases,
required disqualification regardless of the Petitioner’s failure to request that the judge be
disqualified.

       Rule of Judicial Conduct 2.11 provides that “[a] judge shall disqualify himself or
herself in any proceeding in which the judge’s impartiality might reasonably be
questioned.” Tenn. Sup. Ct. R. 10, R.J.C. 2.11(A). A judge is further required to
perform his or her duties “without bias or prejudice.” Tenn. Sup. Ct. R. 10, R.J.C.
2.3(A). Because the appearance of bias is injurious to the integrity of the legal system
whether or not bias actually exists, a judge should disqualify himself or herself “‘when a
person of ordinary prudence in the judge’s position, knowing all of the facts known to the
judge, would find a reasonable basis for questioning the judge’s impartiality.’” Davis v.
Liberty Mut. Ins. Co., 38 S.W.3d 560, 564-65 (Tenn. 2001) (quoting Alley v. State, 882
S.W.2d 810, 820 (Tenn. Crim. App. 1994)). The test is an objective one. Bd. of Prof'l
Responsibility v. Slavin, 145 S.W.3d 538, 548 (Tenn. 2004). Bias is present when a judge
has expressed an opinion on the merits of a case prior to hearing evidence, has taken a
position favorable or unfavorable to a party prior to a hearing, or has prejudged factual
issues. Alley, 882 S.W.2d at 822.

       A judge presiding at a trial “must be sufficiently neutral and free of
preconceptions about the factual issues to be able to render a fair decision.” Id. at 820
(quoting Charles W. Wolfram, Modern Legal Ethics 980, 988 (1986)). However, “[n]ot
every bias, partiality, or prejudice merits recusal. To disqualify, prejudice must be of a
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personal character, directed at the litigant, ‘must stem from an extrajudicial source and
result in an opinion on the merits on some basis other than what the judge learned from ...
participation in the case.’” Id. at 821 (quoting State ex rel. Wesolich v. Goeke, 794
S.W.2d 692, 697 (Mo. Ct. App. 1990)). Bias based on actual observation of witnesses
and evidence during trial does not disqualify the judge unless it is so pervasive that it is
sufficient to deny the litigant a fair trial. Id.

        The post-conviction judge made comments indicating that his decision to deny the
Petitioner post-conviction relief was based in part upon his belief that trial counsel could
never be ineffective in any case and based in part on the judge’s disagreement with the
law on post-conviction proceedings in general. With regard to trial counsel, the judge
stated:

       I’ve known [lead counsel] the 27 years I’ve been in Shelby County. [Lead
       counsel] has been practicing law one year less than I have, which kind of
       surprises me because I thought [lead counsel] had been practicing law
       longer than I have. I’ve known [co-counsel] for all of her legal career.

              I’ve tried cases, multiple cases, as a trial lawyer against [co-counsel]
       and [lead counsel]. I tried death penalty cases against [co-counsel] and
       [lead counsel]. Those are two of the most preeminent lawyers in Memphis,
       in Shelby County, Tennessee. Two of the most preeminent lawyers in the
       United States of America. Two of the most preeminent lawyers in the
       world.

               As [co-counsel] has testified, she’s a fellow in an organization that
       will not admit more than one percent of all trial lawyers in the world.
       [Lead counsel] is one of the leading lawyers in criminal defense practice.
       President—past president of the Tennessee Association of Criminal
       Defense Lawyers. A board member of the National [A]ssociation of
       Criminal Defense Lawyers. These are two very, very talented, very good
       lawyers, very aggressive lawyers that will fight tooth and nail for their
       client.

              And it’s almost absolutely laughable that a lawyer can come to court
       and say I believe [co-counsel] and [lead counsel] ineffectively represented
       [the Petitioner] and these are some of the things that maybe they should
       have done differently, sitting back as a Monday morning quarterback and
       evaluating their performance [in] hindsight.



                                            -3-
        While a post-conviction court may consider an attorney’s experience in
determining whether the attorney’s representation was ineffective, the judge’s comments
went beyond merely consideration of trial counsel’s experience and indicated an extreme
bias in favor of trial counsel. Much of the testimony regarding trial counsel’s experience,
particularly co-counsel’s experience, was not elicited by either the State or the Petitioner
but by the judge. The judge questioned co-counsel extensively regarding her experience
and accolades, often through leading questions.1 The judge’s questioning was to such an
extreme that the judge essentially abandoned his role as neutral fact-finder and stepped
into the role of advocate in order to support his conclusion that the Petitioner’s claims of
ineffective assistance of trial counsel were “almost absolutely laughable.”

       In addition to attacking post-conviction counsel as a “Monday morning
quarterback,” the judge continued:

              It reminds me of what Judge Axley used to say when I first got
       licensed in my first court in Criminal Court when I stopped three years
       practicing with the Public Defender’s Office and was first assigned to
       Judge Axley’s court.

               And Judge Axley used to tell me, “… it’s kind of like generals at a
       war. They sit up on a hill on their white horses, beautiful white steed
       horses, don’t do anything. And after the battle is over, they ride down into
       the middle of the conflict when people have lost their lives and … they try
       to tell those folks how they should have fought that battle differently, how
       they could have fought that battle better, when all they did was stand up on
       a hill on[] a white steed and look down at the action when these folks in the
       trenches are fighting this war and people are dying all around them.”

       ….

             And it is almost painful when lawyers start attacking other lawyers
       and saying—my goodness.

       We note that this court admonished the trial judge from whom the post-conviction
court quoted for using similar language regarding this court. See Alley, 882 S.W.2d at
819 (noting the trial judge’s comments regarding a judge court that “those are the guys
that come down off the mountain after the battle and shoot the wounded”). Yet, the post-
conviction judge chose to use such language in describing the Petitioner’s post-

       1
         The questioning of both co-counsel and lead counsel by the post-conviction judge are
attached as an appendix to this dissent.
                                            -4-
conviction counsel, as well as all attorneys who represent petitioners in post-conviction
proceedings.

          With regard to post-conviction proceedings in general, the post-conviction judge
stated:

                 And it is something that bothers this Court and it’s something that’s
          unique to Tennessee. I practiced law in Houston for eight years. 23 felony
          courts. Not courts, 23 felony courts that dealt with felony cases.

                 In the eight years in the State of Texas, Harris County, Texas, I may
          have seen three or four post-conviction petitions in 23 felony courts in eight
          years. But it’s part of the game—and I do use the word game—that goes
          on in Tennessee, goes on in Shelby County, Tennessee.

                 A person is tried. A person is tried and convicted by a jury, receives
          excellent representation from his lawyers, and will turn around on a post-
          conviction and sue a lawyer, in essence, and say, “My lawyers did a bad
          job. They did an absolutely horrible job for me and, therefore, I should be
          given a third trial.”

        It is completely inappropriate for a judge to refer to a procedure enacted by the
legislature to ensure that a defendant’s constitutional right to effective assistance of
counsel is protected as a “game.” Even though the judge disagrees with the law in
Tennessee and preferred to follow the law in Texas, he swore an oath to follow the law in
Tennessee and not Texas. These statements are made even more egregious by the fact
that this court previously admonished the judge for employing a similar rant regarding his
disagreement with the law on pretrial bonds in Tennessee and his wishes that the law in
Tennessee would mirror the law in Texas. See State v. Eric Kizzie, No. W2015-01977-
CCA-R8-CO (Tenn. Crim. App. Dec. 3, 2015) (order).

       “[T]he preservation of the public’s confidence in judicial neutrality requires not
only that the judge be impartial in fact, but also that the judge be perceived to be
impartial.” Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998). I conclude
that based upon the judge’s comments, when viewed in their totality, “‘a person of
ordinary prudence in the judge’s position, knowing all of the facts known to the judge,
would find a reasonable basis for questioning the judge’s impartiality.’” Davis, 38
S.W.3d at 564-65 (quoting Alley, 882 S.W.2d at 820). The judge was disqualified from
presiding over the Petitioner’s post-conviction proceedings, and the judge’s presiding
over the proceedings violated the Petitioner’s due process rights. See id. (“‘[I]t goes

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without saying that a trial before a biased or prejudiced fact finder is a denial of due
process.’”) (quoting Wilson v. Wilson, 987 S.W.2d 555, 562 (Tenn. Ct. App. 1998)).

       I conclude that the post-conviction court’s denial of post-conviction relief should
be reversed and that the case should be remanded for a new evidentiary hearing with a
different judge. Accordingly, I dissent from the majority’s opinion affirming the post-
conviction court’s judgment.



                                 _____________________________________________
                                  JOHN EVERETT WILLIAMS, PRESIDING JUDGE




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