@racpi Tennessee Association of Criminal Defense Lawyers .wherever justice demands 530 Church Street, Suite 300 BOARD OF DIRECTORS ‘SemuclL. Perkins, President Sara Comipher-Rice, 7 Joseph Ozment, Seerctary ‘Mike Whalen, Past President ‘Haat Temmessos: Marvos Gara. Knoxville Jonathan Holcomb, Morristown Jonathan Cooper. Knoxville Troy Bowlin, Morisiown Keith Davis, Dunlap Jessica Greene, Knosville Middle Tennessee: Godel Chery, Lebanon ‘Mary-Kathryn Harcombe, Nashville ana Ausbrooks, Franklin erie McEvoy, Nashille aura Dykes, Neshville Frank Lannom, Lebanon ‘West Tennessee: Kamila Turner, Merl Michael Working. Memphis Cisibomne H. Ferguson, Memphis Tauren Fuchs, Memphis ‘en Dempsey, Huntingdon [Ene Elms. Memphis Committee Chars ‘Amicus Curse: Jet DeVasher CLE: Paul J. Bruno Death Penalty’ Jim Simmons Finanoe: Patrick Newsom Forensic Experts: George Maitair Indigent Defense Funding: Collier Goodlett Joseph $. Orient Innocence: Stephen Ross Johnson Savenile Defense: Chris Kleiser Lepsatve: “Melanie R, Bean Gel Chetry Long-Range Planning: John G. Oliva ‘Membership: Liss Naylor Past Presidents” Ann C, Short Personael: Laura C. Dykes Publications” Sere Compher Rice Sitike Foree: Rich McGee EXECUTIVE DIRECTOR M, Sune Bone Nashville, TN 37219 Phone: 615-329-1338 Fas: 615-329-1339 June 18, 2015 ‘Web: www tacdl.com Email: office@tacdl.com ‘Timothy R. Discenza, Esquire Disciplinary Counsel Board of Judicial Conduct P.O. Box 50356 Nashville, TN 37205 RE: The Honorable Allegra Walker Davidson County General Sessions Court Division IV Hello Mr. Discenza, I write to you on behalf of the eighteen members of the Board of Directors and five members of the Executive Committee of the Tennessee Association of Criminal Defense Lawyers (“TACDL”). TACDL is a non-profit organization including nearly one thousand active members of the legal community engaged in both private and public criminal defense in state and federal court. TACDL is entering its forty-second year of existence and to my knowledge, a letter of this nature has never been written on behalf of our organization to the Board of Judicial Conduct. At a recent meeting of the Board of Directors, our organization voted unanimously to contact the Board of Judicial Conduct about recent actions taken by Judge Allegra Walker of the Davidson County General Sessions Court. Although they could not cast a vote as a member of our board of directors, several former presidents of our organization also attended the meeting, and expressed support for the action TACDL takes in this letter.A recent email sent by Judge Walker to the office of the Davidson County District Attomey General is of great concer to TACDL, all its members, and the tens of thousands of clients that our members represent in Davidson County. We believe that this email undermines the legal process, the fairness of that process, and public perceptions of fairness and the presumption of innocence, We ask that the Board of Judicial Conduct take immediate action to sanction Judge Walker and to safeguard the integrity of the legal process in Davidson County General Sessions Court Division IV. Statement of Facts On or about Friday, June 5, 2015, Allegra Walker, General Sessions Judge Division IV, sent an email to members of the District Atlorney General’s Office concerning “rules...as it relates to dispositions,” and indicating they would become effective Monday, June 8, 2015. See Attachment A (hereinafter referred to as “the memo”). The Offfice of the District Attorney General in Davidson County publically confirmed receipt of the email to news outlets that reported on the email. The email from the Judge to the Offfice of the District Attorney reads as follows: Subject: DV Court Updates Prior to taking the bench for my dy rotation, 1 met with cach office, probation as well as clerks outlying my general rules forthe court and asking for input, us immediate apparent afier a month of my rotation, that my rules are often ignored as it relates to dispositions. This is obviously problematic because atthe end of the day, the Courts primary focus should be victim safely. Additionally, { must feel comfortable when placing my name on a plea petition In effort to achieve this goal, please advise your stafT ofthe following dispositions that | will no longer accept as of June 8, 2015. UAP with less that 26 weeks of BIP. No AMC, parenting classes or CSW will be accepted as a substitution, NO agreed Orders on Domestics, While | am sensitive tothe issues of immigration, the cours responsibility is safety ‘NO multiple probation offers. ‘This includes General Sessions and Criminal Court probation, Please refer offenders to DRC or hetter yet, jail NO reducing domestics down to simple assaults. Hope you all have a wonderful weekend and look forward to seeing you all on Monday. Let me know ifyou or the other ADA’s have any questions, thoughts or concerns. 'm open. Judge Allegra Walker‘The abbreviated terms used above have the meanings described below: AMC- Anger Management Class is typically 4-8 hours at a cost to defendants CSW- Community Service Work hours BIP - Batterers Intervention Program which is 26 or 56 weeks long DRC- Day Reporting Center which is run by the sheriff and is an alternative to probation, UAP - Under Advisement Plea Judge Walker currently presides over the “domestic violence docket”, meaning that all General Sessions domestic violence-related charges are set in her court. Her transmission of this email, and its contents: 1) reasonably call into question Judge Walker's impartiality and independence; 2) reflect her bias or prejudice concerning certain defendants in her court; 3) constitute a public statement that commits or appears to commit her to reach a particular result or rule in a particular way in cases that are pending or impending in her court on and after June 8, 2015; and 4) violates various constitutional and statutory provisions. Further, her transmission of this email and its contents amounted to improper judicial interference with the constitutional rights to due process of law and a fair trial before a neutral and impartial court, and violated the following Rules of Judicial Conduct: Statement of the Impropriety Requiring Attention of the Board of Judici Conduct 1. “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Tenn. Sup. Ct. R. 10, RIC 1.2. ‘A. Judge Walker's memo calls her independence into question because she invites one party, the District Attorney's Office, to collaborate with her. Given Judge Walker's most recent employment as an Assistant District Auorney handling domestic violence cases, this invitation to collaborate reflects particularly poorly on her independence as a judge.2 The memo casts significant doubt on Judge Walker's impartiality, as discussed further below. ‘The memo gives the appearance of impropriety. It suggests that she sees herself as working with the assistant district attorneys and as being an advocate against domestic violence rather than a neutral magistrate without bias toward either party. The statements contained in the email publicly undermine basic tenets about the fairness of our justice system and the judiciary. The email violates the constitutional presumption of innocence by not only presuming that defendants are guilty but should be sentenced to jail above all other alternatives to incarceration preferred by the legislature. It should be noted that the Judge continues to fail to retract this email since its public release nearly two weeks ago. To the contrary, the email indicates that the Judge is consistently resolute in implementing her rules rather than the law of each individual case. The email refers to previous attempts to implement heavy-handed plea negotiation tactics sua sponte that were not properly appreciated or implemented by the District Attorney's office. The doctrine of Separation of Powers also bars the court from participating in plea negotiations: It is well established law that it is within the district attorney general's discretion, and not the trial court’s, to decide if and when a prosecution is to be instituted, the precise character of the offense to be charged, and, once ituted, whether the prosecution should go forward, enter into a plea bargain agreement, or dismiss the prosecution. Because plea-bargaining is a matter entirely within the district attorney general’s discretion, the trial court may not require the State to make a particular plea bargain offer. State v. Head, 971 S.W.2d 49, 51 (Tenn, Crim. App. 1997) (citations omitted). ~A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.” Tenn. Sup. Ct. R. 10, RIC 2.2. A ‘The Judge’s statement that there shall be no multiple probation sentences ignores the statutory considerations for determining the appropriate sentence. The Judge indicates a willingness to disregard the law that governs our society. “A judgeshall comply with the law...” Tenn. Sup. Ct. R. 10, RJC 1.1. The Tennessee Code is very clear that “a defendant shall be eligible for probation under this chapter if the sentence actually imposed upon the defendant is ten (10) years or less...”. Tenn. Code Ann. § 40-35-303(a) (emphasis added). Furthermore, the proposed policy against a second chance probation contravenes the Sentencing Act’s clear intent that judges impose the least restrictive sentence and utilize incarceration only when necessary. Tenn. Code Ann. § 40-35-103. . Although Judge Walker does not preside over a court of record bound by the Rules of Criminal Procedure, the judge’s email violates notions of appropriate judicial conduct contained in those rules. Rule 11(c) of the Tennessee Rules of Criminal Procedures requires that “the court shall not participate in” plea negotiation discussions. Tenn, R. Crim. Pro. 11(c)(1). Furthermore, if the court does decide to reject a plea agreement, the court must do so “on the record and in open court”, not ex parte in advance via in a private email to the District Attorney's Office. Tenn. R. Crim. Pro. 11(c)(5). The Judge’s memo gives the appearance that she is not fair and impartial. As is made clear in Comment 1 “a judge must be objective and open-minded”. The memo as a whole contradicts this requirement. . In her memo, the Judge states that the court's “primary focus should be victim safety.” This indicates that the Judge is not functioning as an unbiased, neutral magistrate. Her statement demonstrates a concern for the welfare of the “victim” above all else, including the Constitutional rights of the defendant. This is a clear statement of bias toward the “victim”. The Judge’s comment that a defendant with prior probation would be “better yet [sent to] jail” reinforces the appearance of bias against every defendant appearing before her. In other words, the Judge places her personal bias above the societal need for a fair and impartial tribunal. . Courts at all levels are publicly presumed to be governed by the law and rules of court, not rules created by individual judges. ‘The need for an impartial tribunal is especially necessary in the case of domestic violence when complainants are often motivated to gain leverage in pending divorce litigation or other custody proceedings by initiating criminal charges.3, “A judge shall not initiate, permit, or consider ex parte communications concerning a pending or impending matter.” Tenn. Sup. Ct. R. 10, RIC 2.9(A).. 4. A. The Judge sent her memo only to prosecutors. The memo concems both pending and impending matters. Under the current rotation, all domestic violence cases in Davidson County General Sessions Court will be heard by Judge Walker until the n shifts at the end of August. B. The memo requests input in the form of “any questions, thoughts or concerns,” from the District Attomey’s office regarding what dispositions shall be acceptable in Judge Walker’s court. No similar request was made of defense attorneys or the Public Defender’s office. Thus, Judge Walker is inviting the District Attorney's office to collaborate with her in determining the resolutions of pending and impending cases. ~A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing,” Tenn. Sup. Ct. R. 10, RIC 2.10(A). ‘A. The Judge’s statement that the court’s “primary focus should be victim safety” suggests that she misunderstands the central role of the judiciary, which is to “interpret and apply the law that governs our society.” Preamble, Rule 10. B. Furthermore, the statement regarding “victim safety” demonstrates an assumption that every case involves an actual. rather than alleged victim. It gives the appearance that Judge Walker has pre-judged every allegation as meritorious and every defendant as guilty. Her refusal to allow cases to be reduced to simple assault further deepens the appearance that Judge Walker has pre-judged the guilt of all domestic violence defendants. C. The Judge’s prohibition on repeat probation and limitations on “acceptable” dispositions indicates an unwillingness to judge each case by its own merits. By laying out blanket rules regarding dispositions and probation, the Judge fails to recognize that different sentences may be appropriate in different situations. She is, effectively, determining the sentence before hearing the details of the case, thusabrogating her responsibility to sentence defendants in a fair and just manner. The judge also indicates a willingness to reject without consideration Anger management classes, batterer’s intervention programs, and matters to be disposed “under advisement.” Her rules for disposition would make it impossible for any defendant to receive a fair sentencing hearing in her court. 5. “A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.” Tenn. Sup. Ct. R. 10, RIC 2.10(B). A. The memo’s blanket rules regarding acceptable dispositions, the reduction of charges, and probation prohibitions are inconsistent with the impartial performance of Judge Walker's adjudicative duties and sentencing laws. The memo gives the appearance that the Judge not only pre-determines all domestic violence defendants to be guilty and has pre-determined what sentences are appropriate. 6. It is further understood that the Judge is a member of the TN Coalition to End Domestic and Sexual Assault (TNCEDSA), and the Nashville Coalition to End Domestic Violence (NCEDV). While the Rules of Judicial Conduct do not preclude membership in such an organization, when combined with the memo’s statements complained of above, such membership would call into question the Judge’s compliance with RIC 1.2 comment | that avoiding the appearance of impropriety applies to both public and personal conduct of a judge. Additional judicial canons violated are likely implicated include Rule 2.2 relating to Impartiality and Fairness, Rule 2.3 addressing Bias and Prejudice and Rule 2.4 relating to External Influences on Judicial Conduct. The Judge’s Participation in groups so closely related to the subject matter of the Judge’s jurisdiction also violates RIC 3.1(C), which forbids “participating in activities that would appear to a reasonable person to undermine the judge's independence, integrity or impartiality.” 7, The United States Supreme Court recently recognized that effective assistance of counsel is required even at the plea negotiation stage of a criminal case. Missouri v. Frye, 132 S. Ct. 1399 (2012). Because the Judge’s email indicates that nearly all forms of plea will be rejected other than a jail sentence for the defendant, the Judges emailcreates ethical obligations for defense attorneys to move to disqualify the court in the vast majority of its pending domestic violence cases that would result in a plea bargain. This necessary and required act of advocacy by effective defense counsel will grind the docket in Division IV (o a halt and cause havoc and overcrowded dockets in the other Divisions of General Sessions Court that will receive transferred cases. Based on the biased statement of the Judge, the procedural safeguards that must be taken in response by responsible defense counsel will result in the continued unnecessary detention of domestic violence defendants who are unable to make bond but are otherwise eligible for release or alternatives to incarceration that the Court is rejected. These incarcerated defendants will face needless extended incarceration to be transferred to another Court willing to enforce the laws that encourage their release. ‘The trickle down effect of overly crowded dockets in other Divisions of General Sessions Court will also have a direct impact and delay justice for clients with pending cases in those other Divisions that do not involve domestic violence. In conclusion, 1 would like to again express to both Disciplinary Counsel and members of any convening Investigative Panel that this action by TACDL as an organization is both unprecedented and unanimously approved by our Leadership. Faith in the judiciary is the cornerstone of our legal system, and the actions of Judge Walker use that foundation of our society to crumble. As the president of this State's preeminent legal organization dedicated to criminal defense and the idea that citizens are entitled to a fair hearing, we ask the Board of Judicial Conduct to take appropriate action. Yours Very Truly a - ‘Samuel Perkins, President of TACDL On behalf of the Board of Directors