Exclusive: Tennessee Tenth Judicial District Public Defender Speaks with The Post & Email

“A CONSTITUTIONAL RIGHT TO MAKE BOND”

by Sharon Rondeau

(Dec. 24, 2013) — On Monday, Tenth Judicial District Senior Public Defender Richard Hughes contacted The Post & Email regarding George Raudenbush, whose convictions and subsequent incarceration have been reported in detail previously.

Raudenbush was denied his constitutional right to defense counsel by Judge Carroll Lee Ross, who announced this past August that he would retire in August 2014 just before Raudenbush advised The Post & Email in a letter that the convictions were in the process of being reversed.

An opinion by an appeals court judge, Thomas M. Tipton, affirms Raudenbush’s statements.

Hughes explained that Tipton set the bond for Raudenbush at $25,000 but that Hughes was able to argue successfully that it be reduced to $10,000, 10% of which would be required to effect Raudenbush’s release pending the new trial.  Hughes added that at times, a bondsman will accept something less than 10%.

On Friday evening, Hughes asked that “family and friends” of Raudenbush consider raising the bond amount if they are able so that Raudenbush could be released from prison before Christmas.  During our interview, The Post & Email told Hughes that a reader had offered to donate $100 toward the $1,000 needed, after which Hughes explained that on Monday, he spoke with the Tennessee Department of Corrections, which informed him that a “mandate” authorizing Raudenbush’s release had not yet been received.

“He has the constitutional right to make bond,” Hughes said.

When The Post & Email asked Atty. Hughes to explain how the convictions were reversed, he told us:

The trial court had appointed the public defender to represent George.  He had filed for post-conviction relief from his conviction and sentence, and Judge Ross had appointed my office to represent him on appeal, which is called a late appeal because George didn’t know to file a timely appeal because he’s not an attorney.  I got personally involved and did the appellate brief myself.  The basis for the appeal was the violation of George’s Sixth Amendment right to counsel.  He did have a right to appointed counsel, and Judge Ross violated that by not appointing an attorney at trial or even during the sentencing phase of his case.

There is case law where a person can forfeit his right to counsel, and it requires pretty extreme conduct on the part of the defendant.  There are a whole lot of cases where the court has ruled that a person has forfeited his right to a lawyer by his actions, but the conduct has to be pretty egregious.  There are cases where the defendant will not work with his attorney, sometimes even make threats to the attorney, won’t listen to their advice, refuse to meet with them, and then there are cases where that attorney will be relieved and another lawyer appointed, and then the same thing happens and the court ruled that the defendant is trying to delay justice in his case to avoid being tried by not cooperating with counsel.  In those cases, the court can rule that you’ve forfeited your right to a lawyer by your words and actions.

Tipton, in the majority opinion, said that nothing that George did rose to the level where he had forfeited his right to an attorney, so Judge Ross violated his right to counsel.  Basically, the judge should have made a decision as to whether or not George was indigent.  There was never a hearing- I’ve been a public defender a long time, and my understanding is that when a person requests it, the judge has to have a hearing to determine indigence.  Because of George’s religious views, he refused to swear an oath as to the information contained in the affidavit of indigence when he applied for the public defender.  Judge Ross said that because he wouldn’t swear to it, he wouldn’t consider it.

The Post & Email said, “But you can affirm, can’t you?” to which Hughes answered, “You can affirm.”

The court of appeals said that that was not sufficient – that because he didn’t want to swear to the information enclosed in no way forfeited his right to counsel.  The way I understand the posture of George’s case, he has to come back to Monroe County once the mandate is in; he’ll return to the county jail; he’ll appear back before the trial court, and my office would have to be appointed.  There would still have to be again the determination that George is indigent for an appointment of counsel.  So right now, this minute, I don’t represent George Raudenbush for the new trial on those charges.  I represented him on the appeal; we won; so right now, he’s back where he was before he was ever tried.  He doesn’t have a public defender; he obviously can apply for a public defender, and I would imagine that things will be a little different.  If he qualifies, my office will be appointed and George can have a trial.

I know he doesn’t want to be tried again; he doesn’t think he should be tried again.  But the state can try him.  They did not vacate, although there are situations where they vacate and the judge may order that the case is over.  Here, the judge reversed the convictions and remanded the case back to the trial court.

I would think George would be back before Judge Ross, and I would think that with what he has gone through, either the public defender or the counsel of his choice will be making a motion to remove Judge Ross from hearing the case a second time.  I haven’t really thought through all of that, but I’m sure, based on the letters I have received from George, that would be one of his first requests.

“Would Judge Ross have any reason to refuse to recuse himself?”

 Judge Ross can say, “I’m not going to recuse myself.  The Court of Appeals reversed the conviction; I respect the Court of Appeals; whether I agree or do not agree with them, they’ve acted, and I have to honor the decision they’ve made, but there’s no basis for me to step aside.”  Or Judge Ross may decide, in the interest of justice based on what happened, from the perspective of George Raudenbush, that he should recuse himself.  There are situations where the judge is supposed to look at the case from the perspective of the defendant and whether or not the defendant thinks he can get a fair trial.  The judge in his own mind might say, “Well, of course I can be fair; there’s not the appearance of impropriety and I’ve done nothing inappropriate.” but he will recuse himself just as a precaution and say, “From the standpoint of the defendant, I understand that he may feel that the court can’t be fair, and I’m going to step aside.”

“It would certainly remove any doubts about Judge Ross’s intentions or feelings about the case.  He recused himself from one of CDR Fitzpatrick’s cases.”

The Post & Email then asked, “Are you able to speak at all to any corruption going on in the Monroe County criminal court or any of the Tenth Judicial District courts?

I know what you know, which is there has been a TBI investigation of the district attorney’s office, and the TBI released a report which I have not seen.  I’m not authorized to review that, but my understanding is that they’ve reached a determination that there was no crime committed.  There was a five-part series in The Chattanooga Times Free Press in which Judy Walton on the district attorney’s office and Drug Task Force.  TBI decided that there was no crime committed, but there’s still the open question as to whether or not there was any unethical conduct.

“Members of the both the Tennessee General Assembly’s House and Senate Judicial Committees are trying to remove Bebb from office.”

Yes, the first of the year, there’s a committee formed to determine whether or not to proceed with an ouster of the district attorney general.  When the General Assembly of Tennessee goes back into session in January, that committee is formed to make a determination. Obviously, I don’t know when that decision will be made or what the outcome will be, but I would imagine it will be made pretty quickly as to whether or not they are going to proceed.  My understanding is that that committee has had the chance to review the entire TBI investigative file.  All I know is what I’ve read, although I’m aware of certain things that have occurred.  Most of what I know is based on what was reported in The Chattanooga Times.

I know Mr. Fitzpatrick feels passionately that the grand jury system in east Tennessee is unethical.  I don’t know.  Some states don’t have a grand jury system to charge people.

“There are no grand juries here in Connecticut, where they were legislated away in 1983.”

I don’t know…they say that the grand jury is a buffer between the powers of the state, the district attorney and law enforcement; and other people say, “It’s just a rubber stamp for the district attorney’s office.”  I know there are differences of opinion on the necessity of a grand jury system.  I know Walt feels as if there’s wrongdoing in the grand jury, unethical conduct…To be honest with you, I haven’t really followed that issue.  I know what happened to Walter; I remember the charges, and I know he went through a trial.  I know it’s on appeal.  I talked to him and had a good conversation last week.  I know he feels strongly that the system that’s in effect in east Tennessee and in Monroe County is illegal, a violation of the law.  I know he feels strongly about that.  Obviously, there’s no case law at the present time to support that.  I don’t know how often that issue has been litigated.

The Post & Email then shared some of the experiences and research carried out by both Fitzpatrick and The Post & Email on Tennessee codes governing jury selection, including the District Attorneys General Conference website which says that a grand jury consists of 13 members of the community chosen randomly, from which the foreman is then chosen.  In Tennessee, judges have been choosing their own foreman and hiring him or her as a court employee by an unknown vetting process.

The Post & Email then extended an offer to set up a complimentary account for Atty. Hughes and invited him to read and refute any of our contentions either on or off the record, which Hughes accepted.

Regarding the bond for Raudenbush, Hughes said that he could not handle the money himself.  “A concerned friend or family member would have to be the one to collect and handle that,” he said.  He affirmed that until the written mandate is received by the Department of Corrections, Raudenbush could not be released even to a county jail.  “That mandate must be received before he can post bond,” Hughes said.

The Post & Email asked Hughes what his motivation was to put out the word about Raudenbush’s bond beginning on Friday evening given that he is technically not yet retained to handle the case, to which he responded:

I’ve been a public defender ever since I’ve been an attorney.  Since 1989, I’ve been in this office.  I feel strongly in the right to counsel.  I feel that I have a good office.  I certainly support my office and public defenders throughout the country.  It’s a tough job, it’s an important job, and it’s important to the administration of justice.  The Court of Appeals said that George’s right to counsel was violated, that he should have had an attorney through all proceedings that occurred in his case.  I don’t know George. We’ve corresponded by letter; I know he’d like to see me in person.  But I feel that based on what’s heard and the fact that the determination has been reversed, I would like to see him make bond.  He’s been in custody for two years; the Court of Appeals says it was an erroneous conviction, and I would hate to see him in jail for many more months when his case has been set aside.

It’s not every day you get a conviction reversed.  It’s very difficult, in my estimation.  I’ve appealed quite a few cases, and the large majority of convictions are affirmed on appeal, so when you have a reversal, it catches your attention, and certainly, anybody in George’s situation in which his convictions are reversed, I’d like for him to have the opportunity to be able to make bond.  He has a constitutional right to make bond, and that’s why I filed the motion.