### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE STATE OF TENN ESSEE v. THOMAS D EE 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 caref

ully considered opinion, trial judges are vested withbroad discretionary

powers in the conduct

of a tria l. 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 (5 th Cir. 1976). That authority nec essarily includes the su pervision o f appointed counsel for indigent defendants. Moncier v. Ferr ell , 990 S.W.2d 710 (Tenn. 1 998). An e

xtraordina

ry appeal t o this court on any

issue relative to the supervision of the trial which requires immediate appella te review may

be granted only

in limited circumstances: (1) when the trial

court ha s so far departed from the acce pted and usual course of judicialprocee dings 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 tha t the trial judge has so far departed fr om the usual course, by d

is quali fying one

of the two defense attorney s, that our intervention is necessary . I disagree. By disqualify

ing defense counsel, the trial judge has chosen an unusual, p erhap s r is ky, course of action. The disqualif ication is sue is well documen ted in this r

ecord a nd may serve a s a basis for reversal on direct appeal a nd the gra nt 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 judg e, vested with the duty and r esponsibility of supervision of the trial , must be a

fforde d broad d

iscretio n in the co nduct of t he 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 sam e ." The public has a strong interest in the prompt, eff ective, and efficient administration of justice; the public's interest in the dispensation of justice that is not unreasonably dela yed has g reat force. Statev. Zy

la , 628 S.W.2d 39, 41-42 (Tenn. Crim. App. 1981) (quot ing United States v. Burton , 584 F. 2d 485, 489-90 (D.C. Cir. 1978)). Someone m ust be in charge . . . and held acc ountable for arbitrary decision s. This cou

rt should n ot, howev er, inte rfere at any time before the verdict absent-2-

overwhelming evidenc e that the trial judge has abused its discretionary authority. Any

right to a continuation of counsel of choice "must be balanced ag ainst the requirements of the fair and proper administ ration of ju stice." United States v. Micke , 859 F. 2d 473, 480 (7 th Cir. 1988). As acknowledged by

the majority, there is some e vidence 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 preser ved for p osterity . Repeat

ed renewals are unnecessary and wasteful of

the resources already scarcein cases of this magnitude. So is the tedious re-assertion of requests for other relief, alrea dy either granted or denied, and we ll documented for purposes of appeal. The indictment was issued nine yea rs ago. There is already a voluminous record. The defenda nt is entitled to a speedy t rial. The public is en ti tl ed to an ac co un ta bl e j ud ic ia ry. The trial judge has made

a thresh oldshowing of

counsel misconduct. I fear that the remedy f

ashioned by the majority may further

delay the trial a

nd rende r the trial judge powerless to conduct the trial in an authoritative and expedient manner. In summary , I would have ruled that the e xtraordinary appea

l should not have been granted and would have delayed c onsideration of the disqualification issue until the conclusion of the case. I n the event of an acquittal or a negotiated plea agreement, an appeal is unlikely. I

t is only in the event of a conviction and direct appeal that the disqualification issue is mature for resolution.

___________________________________ GARY R. WADE, PRESIDING JUDGE