        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                 Assigned on Briefs November 10, 2009

              STATE OF TENNESSEE v. BRENT R. STEWART

                            Circuit Court for Dyer County
                      Nos. C05-116, C05-424 Lee Moore, Judge


               No. W2009-00980-CCA-R3-CD - Filed August 18, 2010


In this appeal, the defendant claims that his due process rights were violated because the
judge presiding over his probation revocation had previously served as a member of his drug
court team and had received ex parte information regarding the defendant’s conduct at issue
by virtue of his prior involvement. After due consideration, we agree that the Due Process
Clause requires that a defendant’s probation revocation be adjudicated by a judge who has
not previously reviewed the same or related subject matter as part of the defendant’s drug
court team. Accordingly, we reverse the decision below and remand the defendant’s case for
a new hearing in front of a different judge.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                   Remanded

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and J.C. M CL IN , JJ., joined.

Noel H. Riley II., Dyersburg, Tennessee, for the appellant, Brent R. Stewart.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; C. Phillip Bivens, District Attorney General; and Karen Burns, Assistant Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

                                      Background

      In 2003, the Tennessee Legislature passed the Drug Court Treatment Act (DCTA),
T.C.A. §16-22-101 et seq. (2010), in an effort to reduce the incidence of drug use (and
crimes committed as a result of such drug use) in the criminal justice system. The DCTA
generally empowers courts to create drug court treatment programs in order to supervise and
support the efforts of participating individuals to achieve abstinence from drug and alcohol
use. Unfortunately, for such a grand purpose, judges were provided comparatively little
instruction as to how to carry out the numerous functions that this broad task necessarily
entails. We recently confronted some of the many issues attendant to the implementation of
the DCTA in State v. Stewart, No. M2008-00474-CCA-R3-CD, 2008 WL 4467179 (Tenn. Crim.
App., at Nashville, Oct. 6, 2008), and are now called upon to do so again.

       The case at bar arises out of a probation revocation. The defendant pled guilty in
April 2005 to theft of property over $1000, a Class D felony. In September 2005, the trial
court sentenced the defendant to three years in the Tennessee Department of Correction as
a Range I, standard offender. Also in September 2005, the defendant pled guilty to burglary,
a Class D felony, and was again sentenced to three years in the Tennessee Department of
Correction as a Range I, standard offender.

        While the record before this court is not as complete as might be desired, it appears
that after serving six months in confinement, the defendant was released from the
Department of Correction and placed on supervised probation. During his time on
supervised probation, the defendant violated his probation terms, and, on April 3, 2007, he
agreed to a partial revocation of his probation that included an additional six months jail time
and enrollment in a drug court treatment program. This type of program, which has become
increasingly common over the last twenty years, generally represents a commingling of the
traditional criminal law process with the provision of social services, drug addiction
treatment, interdisciplinary education, and community outreach. See generally T.C.A. § 16-
22-104 (elucidating drug court general principles). Unlike the traditional court system, which
focuses on establishing guilt and punishing the defendant’s conduct, drug courts focus on
treating the defendant’s underlying addiction. See Susan Pace Hamill, Essay: An Argument
for Providing Drug Courts in all Alabama Counties Based on Judeo-Christian Ethics, 59
A LA. L. R EV. 1305, 1306 (2008).

       In Tennessee, the legislature intended for drug courts to operate in accordance with
general principles “as established by the National Association of Drug Court Professionals,
Drug Court Standards Committee.” T.C.A. § 16-22-104. Consequently, in Tennessee drug
courts, alcohol and drug treatment services are to be “integrated” with traditional “justice
system case processing.” Id. at § 16-22-104(1). In an overall attempt to reduce the incidence
of drug use and addiction among program participants, in drug courts, the traditional
hallmarks of the criminal justice system – the adversarial role of the prosecutor and
defendant, with the judge acting as a dispassionate arbiter between the two – are reversed.
The prosecutor and defense lawyer are directed to work together using a “nonadversarial
role,” with an eye toward promoting public safety. Id. at § 16-22-104(2). Judges are

                                              -2-
required to engage in “ongoing judicial interaction with each drug court participant,” id. at
§ 16-22-104(7), that “step[s] beyond their traditional independent and objective arbiter roles”
and “communicates to participants–often for the first time – that someone in authority cares
about them and is closely watching what they do.” T HE N ATIONAL A SSOCIATION OF D RUG
C OURT P ROFESSIONALS, D RUG C OURT S TANDARDS C OMMITTEE, D EFINING D RUG C OURTS:
T HE K EY C OMPONENTS 15 (U.S. Dep’t of Justice, Bureau of Justice Assistance 1997)
(hereinafter “D RUG C OURT C OMPONENTS”). In other words, “[t]he judge plays an active role
in the treatment process.” Id. at 2.

       Prior to enrolling in a drug court program, the participants, while represented by
counsel, usually sign an agreement forfeiting certain of their legal rights. See id. at 4; see
also Hon. Peggy Fulton Hora, Drug Treatment Courts in the Twenty-First Century: the
Evolution of the Revolution in Problem-Solving Courts, 42 G A. L. R EV. 717, 746 (2008). The
participants usually agree to comply with the terms of the drug court program and are
informed that, as a result of the waiver of their legal rights, any violation of program
obligations may result in punishment. See Hora, 42 G A. L. R EV. at 4. Participants are
typically informed that program obligations include “frequent alcohol and drug testing” for
purposes of monitoring abstinence, see T.C.A. § 16-22-104(5), and frequent “judicial
interaction” including meetings and status hearings, see id. at §16-22-104(7).

        When participating as a member of a drug court team, judges are directed to be
intimately involved in each step of the participant’s treatment process. When judges see
“positive signs” (i.e., signs of abstinence and program compliance), judges are instructed to
issue “encouragement and praise from the bench,” reduce supervision, reduce incarceration,
provide “tokens of progress,” and oversee ceremonies advancing the participant to more
advanced treatment stages. D RUG C OURT C OMPONENTS at 14. When faced with signs of
noncompliance, judges are directed to use a wide panoply of sanctions, including
admonishment from the bench, increased monitoring, “[c]onfinement in the courtroom or
jury box,” fines, and “escalating periods of jail confinement.” Id. The overall goal is to have
program participants graduate after a prolonged period of abstinence, cured of their addiction
at a rate that far exceeds that of the traditional criminal justice system. See Hora, 42 G A. L.
R EV. at 719 (noting that absent drug court intervention, in the traditional criminal system,
“[n]early seven in ten convicted drug offenders reoffends [sic] within three years of release
from incarceration.”).

        Drug court programs often do valuable work and serve an increasingly important role
in our society. Transcending their humble beginnings as an experiment in Miami, Florida,
there are more than two thousand drug courts in operation today, with many more on the way.
See C. West Huddleston et al., P AINTING THE C URRENT P ICTURE: A N ATIONAL R EPORT C ARD
ON D RUG C OURTS AND O THER P ROBLEM-S OLVING C OURT P ROGRAMS IN THE U NITED S TATES


                                              -3-
2 (U.S. Dept. of Justice, Bureau of Justice Assistance 2008) (hereinafter “D RUG C OURT
R EPORTS”). Research and focus groups have found that the “drug courts are increasingly
reaching populations of individuals with very serious problems and needs.” John S.
Goldkamp, The Drug Court Response: Issues and Implications for Justice Change, 63 A LB.
L. R EV. 923, 960 (2000). Several scientific studies have concluded that drug courts reduce
crime rates, anywhere from an average of seven to fourteen percentage points. See D RUG
C OURT R EPORTS at 6. Numerous studies have also shown that drug court graduates are
significantly less likely to be re-arrested following their release from the justice system than
drug offenders who have not participated in the program. See id. By lowering crime rates,
reducing the number drug offenders that are hospitalized or incarcerated, and reducing the
number of babies that are born after prolonged prenatal drug exposure, drug court programs
have had the salutary effect of saving taxpayers a significant amount of money in the
jurisdictions where they operate. See id. at 6-7, 15. Many program graduates credit the drug
courts with giving them, for the first time, a sense of self-esteem and hope for the future –
in addition to curing their addictions. See id. at 3-4, 14-15.

        The case before us today, however, is not a shining example of a successful drug court
program intervention. During his tenure in the program, the defendant had ongoing issues
with marijuana usage and repeatedly failed to comply with basic program requirements. As
a result of his behavior, the defendant was “sanctioned” five or six times and sentenced to
significant jail terms wholly outside of those envisioned by his original sentence or probation.
On June 18 or 19, 2007, the drug court team found that the defendant was using drugs and
alcohol and sanctioned him to jail for either fourteen days (according to the hearing
transcript) or forty-five days (according to the “offender violation report” contained in the
technical record) in jail. On August 7, 2007, the drug court team found that the defendant
missed a meeting and ordered him taken into custody. On August 7 or 28, 2007, the drug
court team determined that the defendant had failed a drug test and, combined with the earlier
missed meeting, sentenced him to either ninety days (according to the hearing transcript) or
forty-five days (according to the violation report) of incarceration. On December 11, 2007,
the drug court determined that the defendant had violated a house arrest rule, had consorted
with known felons, and had failed to report to his probation officer, and he was given another
sixty-day sanction. On February 26, 2008, the drug court determined that the defendant
failed a drug screen, and it imposed a fourteen-day sanction. Finally, on July 15, 2008, the
drug court found that the defendant failed to report for drug testing and missed a weekly
meeting, and it imposed a one-week jail sanction. Altogether, during his tenure in the drug
court program, the defendant was sentenced to around six months additional jail time as
sanctions for his repeated failures to comply with his drug court obligations. In the end,
sometime in August of 2008, the drug court team found that the defendant had failed another
drug screening and voted to expel him from the program. Notwithstanding the difficulties
he experienced during his tenure in the program, the defendant credited the Tennessee drug

                                              -4-
court program with saving his life.

       On September 29, 2008, the Westate Corrections network charged the defendant with
violating the special conditions of his drug court sentence and sought to have his probation
revoked. The alleged violations included his testing positive for marijuana on August 25,
2008, missing four required weekly meetings on August 11, 2008; August 18, 2008; August
25, 2008; and September 1, 2008, and being away from his home during home visits on July
26, 2008; August 18, 2008; and August 24, 2008.

        A probation revocation hearing was held on February 10, 2009, before a trial judge
who had participated in a significant amount of the defendant’s drug court treatment,
including his expulsion from the program. The defendant urged the trial judge to recuse
himself because of his prior participation on the drug court team, arguing that the judge
would already be familiar with the materials that would comprise most of the State’s proof
at the probation revocation by virtue of his involvement. However, the trial judge declined
to recuse himself, citing the practical difficulties of bringing in a new judge every time
someone violates their drug court contract. However, the judge concluded that the defendant
had raised a valid issue regarding his level of involvement with the subject matter and stated
that he would not mind getting further guidance from the Court of Criminal Appeals on the
issue as it was likely to arise again in other cases.

       At the hearing, the defendant’s case officer testified that the defendant tested positive
for marijuana on August 25, 2008, and that the defendant missed the four weekly meetings
and three in-home visits discussed above. In response, the defendant admitted on the stand
to having difficulty quitting marijuana but claimed he had only missed one weekly meeting
and that he had missed only one in-home visit after obtaining prior permission. After
reviewing the evidence, the trial court judge found that the defendant had violated the terms
of his probation and reinstated his original six-year sentence, with credit for time served
during earlier probation revocations but not for time served as a sanction for violating the
drug court program rules. This appeal followed.

                                           Analysis

       The defendant claims that the Due Process Clause and the Tennessee Code of Judicial
Conduct both compel the conclusion that a trial judge who has participated as a member of
a defendant’s drug court team cannot subsequently preside over the defendant’s probation
revocation hearing after the defendant has been discharged from the program. After
reviewing precedent, we conclude that the Due Process Clause does indeed bar any member
of the defendant’s drug court from adjudicating a subsequent parole revocation when the
violations or conduct at issue in both forums involves the same or related subject matter.

                                              -5-
Consequently, we find it unnecessary to address whether the Code of Judicial Conduct
contained in the Tennessee Supreme Court Rules would also generally require recusal under
these circumstances.

                                                  I.

       It is by now firmly established that a probationer is entitled to due process when a
State attempts to remove his probationary status and have him incarcerated. See Gagnon v.
Scarpelli, 411 U.S. 778, 785-86 (1973). That process includes, at a minimum:

       (a) written notice of the claimed violations of [probation or] parole; (b)
       disclosure to the [probationer or] parolee of evidence against him; (c)
       opportunity to be heard in person and to present witnesses and documentary
       evidence; (d) the right to confront and cross-examine adverse witnesses (unless
       the hearing officer specifically finds good cause for not allowing
       confrontation); (e) a “neutral and detached” hearing body such as a traditional
       parole board, members of which need not be judicial officers or lawyers; and
       (f) a written statement by the factfinders as to the evidence relied on and
       reasons for revoking [probation or] parole.

Id. at 786 (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)) (bracketed changes in
original); see also Stewart, 2008 WL 4467179, at *4 (holding a trial judge violated the
defendant’s due process rights when it allowed the defendant’s drug court team to effectively
decide a matter that was vested by statute in the trial judge’s authority). One of the most
fundamental of these due process rights is the right to a neutral hearing body; a defendant’s
rights are plainly violated when his probation revocation case is reviewed by something other
than a “neutral and detached” arbiter.1

       Yet, the role of a judge in the drug courts program is, by its very nature, almost the
polar opposite of “neutral and detached.” The Tennessee Drug Court Treatment Act of 2003
specifically states that drug court programs are to operate according to the principles
established by the Drug Courts Standards Committee of the National Association of Drug
Court Professionals. See T.C.A. § 16-22-104. Because the legislature has not expounded



       1
         In this state, trial judges are the statutorily-prescribed probation revocation hearing body,
see Stewart, 2008 WL 4467179 at *4, and their nature as neutral and detached arbiters is ensured by
the Tennessee Code of Judicial Conduct, which requires disqualification of a judge “in a proceeding
in which the judge’s impartiality might reasonably be questioned.” Tenn. R. Sup. Ct. 10, Canon
3E(1).

                                                 -6-
further on these general principles, courts are presumably to seek clarification from the drug
court program guidelines promulgated by that same body, which expressly “require judges
to step beyond their traditionally independent and objective arbiter roles. . . .” D RUG C OURT
C OMPONENTS at 15 (emphasis added). On one hand, pursuant to the guidelines, a drug court
judge is often directed to appear to be in the defendant’s corner during the drug court
process. Drug court guidelines require a participating judge to “communicate[] to
participants – often for the first time – that someone in authority cares about them.” Id. The
guidelines explain that a drug court judge should issue praise for regular attendance or a
period of clean drug tests, offer encouragement, and even award the participants tokens of
accomplishment during open court ceremonies for completing particular phases of treatment.
See D RUG C OURT C OMPONENTS at 13. This type of activity will almost inevitably lead to
situations in which, at a later probation revocation, the prosecution can rightfully complain
that a judge’s appearance of neutrality has been compromised. For example, in situations in
which a drug court judge has repeatedly praised the defendant for reaching program
milestones, including pining medals on him or her in open court for various program
accomplishments, the prosecution might reasonably question a judge’s impartiality when
reviewing a probation revocation motion based on program failures that occurred during the
same time period.

        On the other hand, the drug court guidelines also require a judge to simultaneously
engage in behavior that communicates to participants that “someone in authority . . . is
closely watching what they do.” See D RUG C OURT C OMPONENTS at 15. Judges are to have
frequent status hearings and maintain regular communication with other program staff in
order to uncover noncompliance “immediately.” See id. at 14. In response, the drug court
is supposed to adopt measured responses with special emphasis on “the predictability,
certainty, and swiftness of their application.” Id. In essence, far from remaining neutral, the
drug court judge is sometimes supposed to instill in the participant the fear that big brother
is always watching him, ready to pounce upon each and every infraction, and immediately
address it with responses ranging from disparaging remarks to jail time. When acting in this
role, judges will often have to take steps that could cause the defendant to reasonably
question the judge’s impartiality when reviewing the same subject matter in a different forum
later. For example, after a drug court team has determined that a defendant missed several
meetings, and the judge, in response, has castigated the defendant in an invective-laden tirade
about the severity of his behavior, a defendant might reasonably be concerned about that
same judge’s impartiality at a later parole revocation hearing at which he intends to argue
that his infractions were, in fact, not all that serious. This concern is even greater in
situations in which the judge has sentenced the defendant to jail time for a series of
infractions because, once having found a given set of infractions severe enough to merit jail
time during the drug court process, a defendant might reasonably be concerned that a judge
would look with disfavor on any argument that he should reach the precise opposite

                                              -7-
conclusion when examining the exact same conduct in a different forum.

        Even laying aside the concern that forcing a drug court judge to adopt these opposing
“mentor” and “big-brother” roles necessarily compromise his appearance of neutrality when
reviewing the same conduct at a probation revocation, due process also guarantees that the
arbiter of a defendant’s parole revocation will be “detached.” A trial judge will necessarily
find it difficult, if not impossible, to reach the constitutionally-required level of detachment
when dealing with a course of conduct he has previously reviewed as a member of a drug
court team. Rather than being “detached” when participating in a drug court, a judge is
expected to “play an active role in the [participant’s] drug treatment process.” D RUG C OURT
C OMPONENTS at 2. The drug court judge is supposed to be an integral part of the defendant’s
“therapeutic team.” See id. at 7. The drug court judge is instructed to praise each success
and criticize each failure. See id. In short, the drug court judge is compelled by the very
nature of the program to become closely involved with the participant and his activities.

        Perhaps more importantly, in conjunction with other team members, the drug court
judge is charged with making the highly personal decision of which drug-related treatments
and other services will best serve the participant’s needs. See id. Having made that decision,
the judge and other team members cannot help but develop a stake in the success or failure
of the chosen program. If the participant succeeds in a particular treatment program, their
good judgment will be affirmed, but, if the participant fails at program after program that
they have chosen for him, it may reflect poorly on their judgment as treatment professionals.
Consequently, far from being detached, by the time he or she approaches any probation
revocation hearing involving the same subject matter, any active drug court team member
will already be firmly tied to the defendant’s successes or failures.

        In addition, as part of the “therapeutic process,” the drug court team is directed to
consider and address the many problems that may occur with drug addition, including other
medical problems, family difficulties, financial difficulties, and childhood sexual abuse. See
id. Successfully addressing these related issues require members of the drug court team to
identify with and bond with the participant, at least to some degree. For example, drug court
team members may have to temporarily act as de facto marriage counselors for a short time
if a participant “falls off the wagon” when his or her spouse leaves. But, after having gotten
so intimately familiar with the participant’s personal heartache and provided counseling and
advice in way of treatment, it would seem difficult, if not impossible, for a trial judge to
completely detach himself when reviewing a probation revocation based on the defendant’s
substance abuse or other violations during that same time period. In short, effective
participation as the leader of the defendant’s therapeutic team will, in many cases, require
a degree of involvement in the defendant’s personal issues that is inconsistent with the
detachment that due process requires for adjudication of a parole revocation.

                                              -8-
        The collaborative nature of the decision-making involved in the drug court process
poses an additional threat to the impartiality of any judge who would later adjudicate a
defendant’s probation revocation involving the same or related conduct. While participating
in the drug court program, a judge is expected to engage in a shared decision-making process.
See D RUG C OURT C OMPONENTS at 2. In making decisions, he or she is instructed to solicit
advice from the prosecutor, case managers, and the staff of various programs. See id. at 7.
At times, the drug court judge may rightfully elect to defer or subordinate his or her own
individual judgment to that of one or more knowledgeable team members regarding the best
steps to take to further the defendant’s treatment or the proper sanctions for particular acts
of noncompliance. As part of the collaborative process, the drug court might even put certain
issues to a vote and follow the will of the majority rather than his own.2 But, once the drug
court team has found that certain violations have occurred and responded to them using this
collaborative process, the judge, as a team member, will necessarily become invested in those
decisions. The judge’s status as a member of the drug court team suggests, at the very least,
that the judge will be partial to that body and look favorably on the decisions it has made.
When reviewing the same or related conduct at a subsequent probation revocation hearing,
the judge’s investment in those prior collaborative team decisions may well cloud the
exercise or his or her own individualized, detached, and impartial review of the evidence and
weighing of potential punishments.

        Finally, even if this court were to ignore all these concerns, we would find that due
process requires a different judge to adjudicate a probation revocation hearing involving the
same subject matter because of the considerable amount of ex parte information received by
the drug court judge as a necessary component of the drug court process. It is fundamental
to the concept of a fair hearing that a judge not receive information relevant to the disposition
of a case outside the adjudicatory process and outside the presence of one or both parties.
It is for this very reason that the Tennessee Code of Judicial Conduct requires judges to
refrain from communications made outside the presence of the parties concerning a pending
proceeding. See Tenn. R. Sup. Ct. 10, Canon 3B(7).

       Participation on a drug court team, however, necessarily exposes the judge to
considerable information in a manner considered ex parte in more traditional judicial fora.
The drug court judge and treatment providers are directed to “maintain ongoing
communication, including frequent exchanges of timely and accurate information about the
individual’s program performance.” D RUG C OURT C OMPONENTS at 2. This communication
will sometimes, if not frequently, occur outside the presence of the defendant. This type of
information exchange poses obvious concerns if a judge later sits on a probation revocation

       2
         If a judge were to engage in similar activity at a probation revocation hearing, it would be
unconstitutional. See Stewart, 2008 WL 4467179, at *4.

                                                 -9-
hearing involving the same subject matter. Consider the case of a judge who has, during his
or her time on the drug court, received numerous phone calls from a defendant’s Alcoholics
Anonymous supervisor or sponsor relaying concerns such as the defendant “met with me and
told me he is slipping,” or the defendant “met with me and had alcohol on his breath,” or the
defendant “told me he thinks about drinking all the time.” In some such cases, the defendant
may not even be aware that these phone calls occurred, as the drug court team might deem
keeping this information (and its source) confidential from the defendant to be important to
the defendant’s treatment process. In this type of situation, the defendant cannot possibly
mount an effective rebuttal of these allegations; he is unaware that they exist. Yet, it simply
strains credulity to believe that judges could or would consistently set aside all of the
considerable amount of information they receive in this ex parte manner at a later probation
revocation.

        In addition, the drug court program envisions that there will be frequent interactions
between the participants and drug court judges, in which the participants will not be
represented by counsel. In order to assist the drug court team in providing participants with
the most effective level of addiction treatment, the guidelines encourage program participants
to “admit[] to [alcohol or drug] use in open court,” reasoning that participants will do so
“because criminal prosecution for admitting to [such] use will not be invoked.” D RUG
C OURT C OMPONENTS at 4. As a result of these frequent interactions, in the normal course
of participating on a drug court team, the drug court judge will necessarily receive what is
tantamount to numerous confessions of behavior that violates the terms of the defendant’s
probation, all made while the defendant does not have access to counsel. It will be extremely
difficult for a judge to appear impartial if, after hearing such a confession (and presumably
having acted upon it), he or she confronts the same issue at a probation hearing. Likewise,
in many of these one-on-one meetings, the defendant may make exculpatory claims or
provide the judge with exculpatory evidence outside the presence of the prosecutor or
correctional representative. The prosecution may rightfully question whether it is receiving
a fair bite at the apple when it has no idea what exculpatory information the judge may have
received and, therefore, has had no opportunity to challenge it.

       Finally, participation in a drug court program necessarily exposes any judge to a
considerable amount of information about the defendant’s conduct that would not normally
be relevant to adjudicating a probation revocation, through methods that leave its credibility
suspect for traditional legal purposes. As we have noted above, the guidelines provide that
“the drug court team also needs to consider co-occurring problems” in the course of treating
the defendant. D RUG C OURT C OMPONENTS at 7. Such problems include the participant’s
mental illnesses, sexually transmitted diseases, domestic violence, unemployment, and
homelessness. See id. Consequently, in the course of the drug court program, a judge might
find himself or herself in situations such as receiving a letter from the participant’s friend,

                                             -10-
a physician, claiming that the defendant’s recent marijuana use is likely the result of his or
her undiagnosed clinical depression, or the judge might hear the defendant’s spouse claim
in a meeting that the defendant came home drunk last Thursday and was so angry that he
broke their television set. Due consideration of these unsworn ex parte allegations may be
extremely valuable in considering the defendant’s course of treatment, which might then be
amended to include psychological evaluation and therapy in the former case or anger
management evaluation and treatment in the latter. However, at a defendant’s subsequent
probation revocation hearing, questionable evidence of these and other irrelevant co-
occurring problems might improperly play a role in aggravating or mitigating the defendant’s
punishment. Serious due process concerns are raised when a judge has received evidence
pertaining to these co-occurring problems outside the presence of the defendant and/or his
counsel (not to mention the State), because the parties may have no opportunity to challenge
or rebut the allegations.

       In the case at bar, because of his participation on the drug court team, the trial judge
could not help but be aware of information about the defendant’s conduct at issue above and
beyond the evidence that was actually presented by either party at the probation revocation
hearing. In making his ruling, for example, the trial judge noted that, during a meeting
regarding the defendant’s fourth set of sanctions, the defendant did not tell the truth to the
drug court. We do not find any evidence bearing on the defendant’s veracity on this
particular day appearing anywhere else in the record of his revocation hearing.

        Because the defendant, himself, testified in his defense at his probation revocation
hearing, evidence bearing on his veracity would necessarily have been of crucial importance
to his adjudicator’s decision-making process. Yet, because the trial judge was already
intimately familiar with the subject matter at hand and had made a prior determination
regarding the defendant’s untruthfulness on an earlier occasion, the prosecution never had
to raise the issue of the defendant’s prior alleged instance untruthfulness during its cross-
examination of the defendant in order to put this issue bearing on the defendant’s credibility
before the judge. Because it was not necessary for the prosecution to challenge the
defendant’s credibility during cross-examination with any evidence of the prior alleged
incidence of untruthfulness, the defendant was deprived of any meaningful opportunity to
rebut the allegation of untruthfulness during a potential redirect examination in advance of
having his credibility weighed by the trial judge. While this one specific example plainly
illustrates the due process concerns created by having a judge at parole revocation review the
same subject matter that he has previously addressed as a drug court team member, there are
literally countless possible ways in which a judge might rely on information gained during
the collaborative, therapeutic process in his or her subsequent decision-making, all without
affording the defendant the warning necessary to alert him or her of the need to address the
issue during his or her turn to present evidence.

                                             -11-
        In ruling that the due process concerns attending a trial judge’s receipt of ex parte
information during the drug court treatment process prohibits the same judge from
adjudicating a parole revocation based on the same or related subject matter, our decision
today is in accord with our earlier decision in State v. Stewart. See 2008 WL 4467179, at *4-
5. In that case, this court held that it was a violation of due process for a trial judge to rely
exclusively upon the recommendation of a drug court team when deciding whether to revoke
the defendant’s probation, explaining that this method was “outside the statutory procedure.”
Id. at *4. Notably, on remand, this court took the extraordinary step of assigning the case to
a different trial judge. Citing the Tennessee Code of Judicial Conduct provisions prohibiting
ex parte communications and requiring disqualification of judges in cases in which their
impartiality might reasonably be questioned, see Tenn R. Sup. Ct. 10, Cannons 3B(7) &
3E(1), this court expressed concern that “the trial judge received communication outside the
presence of the parties concerning the matter and relied on that communication in disposing
of the case” and ultimately concluded that “on remand the case shall be assigned to another
judge.” Id. at *5. While in Stewart, the ex parte drug court communication addressed
actually occurred while the probation revocation was pending (because the defendant was
not expelled from the drug court program until after his probation revocation), we do not
believe that the due process concerns in the case at bar are any less significant. Participation
on a drug court team necessarily exposes a judge to ex parte contacts with fellow team
members and others concerning the defendant’s activities, and the fact that the participant’s
expulsion from the drug treatment program in this case occurred before the inevitable related
probation revocation, rather than during its pendency, does not sufficiently distance the judge
from the subject matter to the extent necessary to restore the constitutionally-required degree
of impartiality.

        For all these reasons, we hold that a member of the defendant’s drug court team
cannot function as a “neutral and detached” hearing body (as required by Scarpelli) for
alleged probation violations that are based on the same or related subject matter that has been
reviewed by the drug court. In reaching our decision today, we acknowledge that at least two
other jurisdictions have examined this issue and reached the opposite conclusion. We are not
persuaded by their reasoning. In Idaho v. Rogers, 170 P.3d 881, 886 (Idaho 2007), the
Supreme Court of Idaho held that a defendant’s “drug court judge may serve as the
[probation revocation hearing] judge,” based solely on its observation that “information from
the termination proceedings would be admissible in a sentencing hearing.” It is true that
much of the information a judge has acquired as a member of the drug court team might be
properly placed before him as evidence during a probation revocation hearing, but this fact
in no way alleviates all of the due process problems attendant to permitting judges to play
such dual roles with respect to the same subject matter. All of the particular information a
judge might learn by actually witnessing a bank robbery, for example, might be admissible

                                              -12-
as evidence and properly placed before him in a later criminal trial, but the Due Process
Clause doubtlessly prevents any defendant’s case from being reviewed by a judge with such
first hand knowledge of the crime. For due process purposes, the Constitution is concerned
not just with what a judge knows, but how the judge knows it.

       We are similarly unpersuaded by New Hampshire v. Belyea, No. 90-345, 2010 N.H.
Lexis 49 (N.H. Sup. Ct., May 20, 2010), in which the Supreme Court of New Hampshire held
that a trial judge’s presiding over a defendant’s drug court program did not create an
appearance of impropriety that would necessitate recusal from a subsequent probation
revocation under the state constitution. That court’s decision was based, in part, on the
defendant’s failure to adequately brief the issue, see id. at *19, and on the fact that the
evidentiary facts of that case were not in dispute, see id. at *17-*18. Setting these case-
specific concerns aside, the court’s reasoning appears primarily to be the fact that “[i]t is not
uncommon for judges to acquire information about a case while sitting in their judicial
capacity in one judicial setting and later to adjudicate the case without significantly casting
doubt on their ability to render a fair and impartial decision.” Id. at 14 (emphasis added).

        While we do not take issue with the foregoing statement, it far from alleviates our
constitutional concerns. Drug court programs contain numerous aspects that differentiate
them from traditional judicial settings. Drug court judges are required to “step beyond” their
roles as independent and objective arbiters and “play an active role” in the treatment process.
D RUG C OURT C OMPONENTS at 2, 15. Drug court judges are directed to remain in ongoing
ex parte contact with other members of the drug court therapeutic team. See id. at 7. The
outcomes reached and any sanctions imposed by the drug court team are supposed to be the
result of a shared, collaborative process. See id. at 1, 14. Drug courts should have a
“nonadversarial atmosphere.” Id. at 3. None of these practices would pass constitutional
muster in a traditional judicial setting. A judge’s participation in these practices in the drug
court context consequently raises grave due process concerns about his or her appearance of
neutrality that simply do not arise when the judge has previously addressed subject matter
in other judicial settings.

       Our point is well illustrated when the case at bar is placed in contrast with the sole
case cited by the New Hampshire Supreme Court in reaching its opposite conclusion, State
v. Bader, 808 A.2d 12, 19-21 (N.H. 2002). In that case, the New Hampshire Supreme Court
upheld, against a due process challenge, a judge’s decision to preside over the defendant’s
criminal trial after presiding over portions of a tort proceeding involving the same subject
matter. See id. at 19-21. Both civil and criminal trials are traditional judicial settings, and
a single judge shifting from one to another poses far fewer concerns than the situation we
face today. Neither setting forces the judge to shed his neutral and detached role as the drug
court program does. In both contexts, all of the information the judge has obtained regarding

                                              -13-
the subject matter has been placed before him or her pursuant to evidentiary rules. The judge
has received no ex parte information concerning the case in either setting. Finally, the
outcome reached in both cases is the result of the judge’s solitary consideration of the fruits
of the adversary process. In short, adjudicating two traditional judicial proceedings involving
the same subject matter simply does not raise the same due process concerns as adjudicating
a traditional judicial proceeding after having participated in a quasi-judicial, collaborative
drug rehabilitation program.

        We recognize and regret that our holding today may impose significant hardship on
jurisdictions, such as the one in which this cases arises, in which there are a limited number
of judges. However, any acrimony over today’s decision in these jurisdictions should be
tempered by the fact that judicial rules governing recusal motions in Tennessee appear to be
changing in a way that renders the use of additional judges in these situations almost
inevitable. Proposed Rule 2.11(D) of the Tennessee Code of Judicial Conduct governing
judicial disqualification provides that judges, after the filing of a motion seeking their
disqualification, must promptly issue a written order either: (1) granting the motion, (2)
denying the motion as frivolous, or (3) requesting that the presiding judge of the judicial
district assign another judge to hear and decide the recusal motion. See T ENNESSEE B AR
A SSOCIATION, R EPORT OF THE T ENNESSEE B AR A SSOCIATION T ASK F ORCE ON J UDICIAL
C ONDUCT R ULES 24 (2010). Given that most defendants whose probation revocation is
being adjudicated by a former drug court team member could seemingly file a motion for
disqualification that is, at least, non-frivolous, most motions that are filed may well soon
require the intervention of a different judge in any event. If these proposed changes were
to pass, it would not take long for trial judges to realize that they may as well grant most non-
frivolous recusal motions, for it would often be about as easy for a new trial judge to
adjudicate the probation revocation itself as the related recusal motion. Consequently, the
practical effect of this decision in Tennessee may simply be to accomplish de jure through
the Due Process Clause the same outcome as would have been obtained de facto through the
proposed changes to the Code of Judicial Conduct.

        Regardless, in jurisdictions with limited judicial resources, judges will often continue
to need to wear multiple hats in order to fulfill their various responsibilities, and we do not
intend to call the majority of those practices into question today. But, judicial resource
limitations notwithstanding, in the interest of justice, a different judge needs to sit to hear a
probation revocation when the subject matter of the probation violation is the same or related
to subject matter that has been reviewed by the judge during a drug court program. In many
cases, the outcome of the proceedings will no doubt be the same, but the task placed before
us today is to opine on the strictures of the Due Process Clause, and, where due process is
concerned, it is the process, not the particular outcome, that matters. It is imperative that
defendants subjected to probation revocation receive a hearing before a neutral adjudicator,

                                              -14-
and a judge that has previously dealt with the same or related subject matter as a member of
a drug court team simply cannot fulfill this role.

                                                     II.

        Having reviewed the record, we are additionally troubled by the four or five occasions
where the defendant in this case was “sanctioned” to significant jail time by the drug court
team during the two years he participated in the program. It is true that the drug courts
program specifically envisions that a participant’s noncompliance may be sanctioned by
escalating periods of jail confinement.3 See D RUG C OURT C OMPONENTS at 14. Regardless,
the net effect of these sanctions appears to be that approximately a half-year has been tacked
onto the overall defendant’s sentence. In other words, as things stand now, the defendant is
appreciably worse off from a punitive perspective than if he had chosen not to participate in
the drug court program at all and had simply elected to serve his suspended sentence in full
from the outset.

       Leaving aside (as we must) the obvious due process concerns attendant to any
additional deprivation of the defendant’s liberty that has been imposed through a
collaborative, non-adversarial, and at times ex parte process rather than through a traditional
adversarial evidentiary hearing,4 there is considerable tension between this outcome and the
general guidelines under which drug courts should operate. The drug court program
explicitly recognizes that alcohol and drug addition “is a chronic, relapsing condition,” that
“many participants [will] exhibit a pattern of positive urine tests,” and expressly
contemplates that many participants will experience periods of relapse “[e]ven after a period


        3
            The Drug Court Standard’s Committee does not explain whether this jail time is considered a
partial probation revocation (and thus constitutes only a deprivation of the participant’s “conditional” right
to liberty for due process purposes) or an entirely separate punishment (which by virtue of depriving the
defendant of time he would otherwise presumably have spent as a free member of society, may constitute
a more constitutionally-suspect deprivation of the participant’s “absolute” right to liberty). The trial court,
by virtue of denying the defendant credit towards his sentence for the time served, appears to have adopted
the latter view.
        4
           Drug court participants typically sign an agreement waiving certain of their constitutional rights
as a condition of entering the program. The record before us references the fact that the defendant signed
such an agreement, but does not contain a copy, and consequently we do not know the extent of the rights
he purportedly waived prior to his program participation. But whether or not the defendant’s waiver
expressly included deprivations of his absolute right to liberty such as those that may have occurred here,
and whether or not the defendant had the power to waive these rights (even prior to committing any
potentially sanctionable conduct) consistent with the Supreme Court’s decision in Morrissey and related
precedent concerning the Due Process Clause, we may not address the constitutionality of these sanctions
because there is no challenge to them before this Court.

                                                     -15-
of sustained abstinence.” D RUG C OURT C OMPONENTS at 13. A participant’s relapsing drug
or alcohol use will almost necessarily entail failed drug or alcohol screenings, missed
meetings and appointments, and dishonest behavior designed to hide the relapse from the
drug court and insulate the participant from the consequences of his antisocial behavior.
Given the program’s therapeutic focus, it is difficult to imagine that the Drug Courts
Standards Committee envisioned that significant amounts of jail time would be added to the
sentences of program participants as sanctions for behavior that the Committee expressly
contemplated would be engaged in by “many” of those same participants.

       Drug courts are directed to “impose appropriate responses for continuing [alcohol and
drug] use.” Id. In the pursuit of achieving a participant’s program compliance, drug court
judges should consider the full panoply of positive and negative reinforcement steps and
implement a “continuum of responses” to “noncompliant behavior.” Id. at 14. The record
below does not reveal to us whether the drug court in this case tried some of the more
measured sanctions provided for in the guidelines – viz., admonishment from the bench,
program demotion, increased testing and court appearances, courtroom confinement,
increased monitoring, fines, and community service – without success prior to incarcerating
the defendant for significant periods. See id. Even assuming it did so, however, the
approximately six months, in all, imposed in this case would appear to be in plain tension
with the idea that drug courts should adopt a therapeutic, collaborative, and measured
response to a participant’s noncompliant behavior. In the future, we trust that judges will do
their best to ease this tension by ensuring that the drug court program focuses on drug
addiction therapy and treatment, and recognizing that, for good reason, punishment with
substantial periods of incarceration is bailiwick of the traditional criminal justice system.
When necessary, truly recalcitrant participants may be swiftly returned to the traditional
system via the drug court expulsion process.




                                                    _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




                                             -16-
