Tennessee Judge Allowed To Remain On Bench After Conditioning The Right To Counsel On Work And Donating To His Chosen Charities

gavel2Judge Reese Holley of Dickson, Tennessee has agreed to stop conditioning representation of counsel on making donations to his favorite charities or performing public service. What is most astonishing is not that Holley did not know what any first-year law student could tell him but that he has only been reprimanded and will be allowed to continue to serve as a judge in Tennessee after doggedly maintaining such facially unconstitutional and abusive rule. He only received a public reprimand.

Holley only agreed (well, he had to agree) to the cease and desist order after the public defender was forced to bring a formal complaint against him. He maintained that he followed what he thought was established law. That alone should have created a fair question of competency. Indeed, it may be worse that he thought that he could condition a guaranteed right on service or donations than if he disagreed with the long established law in the area. In order to maintain these practices, he had to avoid even the slightest legal research or picking up virtually any law case book.

The right to counsel is different in cases of felonies and misdemeanors. However, the standard is laid out clearly in the state rules that counsel is guaranteed in “Cases in which an adult is charged with a felony or a misdemeanor and is in jeopardy of incarceration.” More importantly, even in misdemeanor cases where incarceration is not a possible outcome, judges are not allowed license to play little Caesars and start to force citizens to donate to their chosen charities or do public works. He also violated clear statutory rules on the issuance of bonds.

According to the Tennessee Board of Judicial Conduct, Holley required that defendants waive their right to counsel and a jury trial as a condition for a continuance. He also reportedly insisted that defendants donate money to his chosen charities to get either counsel or a jury trial. He even make such donations a condition of probation. When defendants did not comply, he held them in contempt. So he denied them a basic right and then punished them for not complying with his abusive and unconstitutional orders. Other charges included refusing to appoint counsel and demanding cash only bonds.

While Holley insisted that he “had fashioned these practices from the procedures followed by other courts and thought them to be moral and lawful,” it is not clear what court in this country he went to for such unconstitutional practices.

He misconduct will now force the review of over 1,000 pending cases.

The investigation surrounding Holley could affect 1,000 pending cases. Jake Lockert, the public defender for the 23rd Judicial District, correctly a motion against Holley and asked the judge to disqualify or recuse himself from hundreds of pending cases represented by the public defender’s office. Lockert reportedly stated that he believed some of the defendants used their food stamps to help “pay” for counsel.

Just consider one example of what Holley considers to be an honest mistake. A woman, 22, was accused of shoplifting and wanted a public defender. Holley agreed but only after she completed his mandated 80 hours of community service work. A month later, she returned to explain that she did not do the community service because the prosecutor dropped the charges. Holley responded by throwing her into jail: “I find you in contempt. You haven’t done any public service work. You haven’t done an hour. I am going to give you 10 days of incarceration so you are in custody.”

In fairness to Holley, his statement to the public is below. While saying that he has decided to comply with the order, he added “Not all courts interpret these statutes the same.” That is news to most of us and appears that Holley has a particularly steep learning curve.

The question is how the Tennessee bar and courts can maintain a judge who shows so a poor understanding of the law and such poor judgment as a jurist. At least they could have “conditioned” his right to serve on reading a few legal casebooks.

Here is the letter from the Board: Holley Reprimand

Here is his statement:

The Disciplinary Counsel for The Tennessee Board Of Judicial Conduct and I agreed that I would cease and desist in certain practices of ordering public service work as it relates to court appointed counsel for defendants. I agreed not to enforce those orders presently existing as well to not allow anyone to donate items to the Help Center or the Dickson County Pound as an additional option to the list of already approved places to complete the public service. Although I had fashioned these practices from the procedures followed by other courts and thought them to be moral and lawful, they were deemed to provide or could have provided an appearance of impropriety. I respect the decision of Disciplinary Counsel and I agreed to not continue these practices.

The Disciplinary Counsel advised me that after they had conducted their extensive investigation, with which I completely cooperated, that there was no evidence that I had ever advanced the personal or economic interests of myself as judge or any others, or allow others to do so. The Disciplinary Counsel advised me that there was no evidence of criminal wrongdoing that warranted any further investigation or referral.

I have had people come by the law office or stop me on the street and convey to me that they appreciated this practice and thought it was the right thing to do and to these folks I encourage you to support this agreement and to respect the decision of Disciplinary Counsel. Part of treating people fairly is treating all people equally. Not all courts interpret these statutes the same. With this public reprimand all judges should now treat these matters the same and equally.

25 thoughts on “Tennessee Judge Allowed To Remain On Bench After Conditioning The Right To Counsel On Work And Donating To His Chosen Charities”

  1. @PaulCS

    They aren’t giving up the right to counsel. They just aren’t getting “free” counsel. It’s probably good that they have some skin in the game. I wonder how many of them magically find the money to pay for a lawyer when faced with 80 hours of work? Plus, how many of these people are involved in cash businesses, like drugs and theft and prostitution, where they have more money than they let on that they do.

    Squeeky Fromm
    Girl Reporter

  2. Maybe we have this all wrong. I mean, the Constitution does allow a Court to decide whether or not to assign free counsel, based on a Defendant’s financial status. It is not as if there is a free-floating cosmic right to legal representation for everybody.

    Sooo, the Court is allowing certain poor persons to give a little something back in return for a lawyer. 80 hours community service, at minimum wage is about $600. My goodness, but the fines and court costs on a hot check charge can run up to that amount. It’s far less than a DWI. what does the Obamacare penalty cost?

    My question would be, does this work. Do Defendants have a little more respect for the system after this.

    Squeeky Fromm
    Girl Reporter

  3. Paul C

    Defendants are usually free to chose any not-for-profit agency in which to complete required community service hours. There is quite a lot of freedom to choose with whom one wants to work to satisfy said hours. The required donation, however, must be made to a specific organization, which benefits the families of slain police officers. Seems like a good idea to me in exchange for the benefit of not receiving a conviction on one’s record. Sweat equity, in the form of community service, and a monetary donation, to a worthy cause.

    1. bam bam – my wife’s employer has a list of charities that she can donate to and they will match the donation. They have been pre-screened for actually giving the proceeds to the poor. I do not see a problem with having a list of pre-screened 401c3s that they can do their work at.

  4. Paul C

    In the cases that mentioned, there is an important distinction. The contribution, to the charity, is included along with the other conditions of probation or is included as a requirement to obtain the proposed recommendation offered by the Prosecutor. The judge, in this article, seems to have taken it a few steps farther.

    1. bam bam – I do not agree with giving up the right to counsel, etc.

  5. You can buy your way out of jail. You can pay for OJ’s legal team. You can bribe a judge. Well, you can bribe a judge.

  6. And as we have heard from St. Louis, he was right when he said other did it.

  7. I can see the point of what he was doing, just not the specified charities. I think he could get away with it with a range of charities.

  8. We are all homo sapiens, but some have yet to evolve into intelligent beings (e.g., Holley, Scalia, Thomas, Alito).

  9. BarkinDog

    This occurs in a couple of municipalities located in West St. Louis County. It has been going on for years. I assume that the judges and prosecutors view the required contributions along the lines as requiring community service. The required contributions are usually mandated along with community service hours. Again, there is no requirement that defendants make these contributions as a condition of obtaining counsel, but, then, local municipal courts rarely, if ever, appoint counsel for indigent defendants appearing before them, anyway, even though some of the charges potentially carry a penalty of incarceration.

  10. In one of the municipal courts, here in St. Louis, both the prosecutor and the judge often require a contribution to a not-for-profit organization benefiting the families of police officers who are killed in the line of duty. The contribution, including the minimum amount expected to be paid, is, in fact, listed as a condition of probation. The defendant is not offered a chance to donate to any charity of his choice; rather, this one very specific charity is named as the mandated recipient. Granted, the contribution is not required in order to obtain counsel, but it is required in order to obtain the recommendation, offered by the court, which amends the original charge. No one bats an eye. The contribution to the charity, benefiting families of officers, is often accompanied by a request, by the court, that the defendant also perform community service. Those who are unable, or unwilling, to perform community service, are usually offered the option of donating an additional amount to the charity in exchange for that chance to forego community service.

  11. Regardless of which route one takes it all ends up at the ego. One wants to do good to feel good, important, stroking the ego. Feeling good by performing one of the most important tasks in society, as illustrated here, risks going off the beam into some peculiar areas of the ego. The judge should be doing something else, perhaps a counsellor to wayward youth or something else where people could use some cause and effect lessons. There is a big difference between an idea to be taught and this perverting of the law.

    This says more about the people in Tennessee. Not too far from tarring and feathering, although in some cases that is appropriate. They are going to leave him there, judging people, even though he doesn’t agree that he was off the beam by a mile.

  12. I don’t see anything wrong with requiring 80 hours of community service or a donation to the local animal shelter in exchange for a free attorney. It’s not that different from the work requirement that Bill Clinton implemented for welfare recipients. Yes, they could continue to receive welfare benefits but the new legislation required that they perform a minimal amount of work for it. So long as the person is physically and mentally fit, he/she should be expected to work in exchange for public benefits and not just feel entitled to a handout.

  13. Hopefully those who appointed or elected Judge Holley will consider a qualified replacement sooner rather than later.

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