UPDATED: Judge Moon responds to reprimand by state court
(WRCB) -- The Tennessee Court of the Judiciary has issued a public reprimand against Hamilton County General Sessions Court Judge Bob Moon in response to three separate complaints filed against the judge. The court was responding to complaints filed by Judge Rebecca Stern, attorney Hank Hill and attorney Benjamin L. McGowan.
In a letter sent to Judge Moon, Presiding Judge Chris Craft wrote that the pertinent portion of the complaint filed by Judge Stern concerned a preliminary hearing, over which he presided, in which he threatened to have a young woman, who was a reluctant victim/witness of a domestic assault, handcuffed and arrested if she did not testify in a manner which he considered to be truthful.
In response, Judge Moon tells Channel 3 that the prosecutor repeatedly demanded that he require the witness to testify, and she repeatedly refused.
"Unless there is some privilege or impropriety in the question, every witness is required to answer the questions asked," Moon said. "Here there was no privilege nor objection to the question. If judges do not appropriately require witnesses to testify, then many serious cases, especially domestic violence cases, will be dismissed and victims will remain at risk. Justice can only prevail when witnesses testify truthfully."
Mr. Hill's complaint alleged that a defendant was sentenced in front of Judge Moon on a number of traffic violations to a sentence of 6 months suspended after having waived his rights to an attorney. The remaining traffic offenses were dismissed. At the time of the court cases (August 3, 2010), Moon asked the defendant if he could pass a drug screen and he answered that he could.
Moon then continued the case to August 24,2010, indicating on the complaint that if the defendant passed the drug screen he would have 30 days to get his drivers license, but otherwise he would be sentenced to two years (a legal impossibility unless all of the traffic offenses were ordered to run consecutively).
The defendant did not pass the drug screen and upon returning to court, was asked whether he wished to serve his time for the driving charges or for the possession of marijuana. When the defendant indicated he needed an attorney, he was told that there were five attorneys in the front row and to ask one of them.
One of the attorneys, not formally appointed, told him to take the marijuana charge. The defendant was then sentenced to six months incarceration and Moon then amended the original charge of driving on a revoked license to possession of marijuana which was inscribed upon the judgment document without any initial charging document having been presented that charged the defendant with possession of marijuana.
"The defendant spoke to and clearly received the benefit of counsel although I failed to formally appoint an attorney for him and sign the order," Judge Moon explained to Channel 3. "Many times when a defendant is punished and loses his or her license and job, the spouse and kids suffer more. I was attempting to find a resolution that would allow him to straighten up, obtain a driver's license, work and support his family upon his release."
The complaint of Mr. McGowan relates to a case that took place in Moon's court in October of 2008 in which three people, a victim and two witnesses were testifying under subpoena. Although not initially known, it turned out that all of these individuals were apparently on judicial diversion from another court for theft charges, and after hearing their testimony, Moon revoked their probation and ordered their arrest and incarceration, without having given them the opportunity for counsel, a hearing, or advice of any rights.
"While state and federal courts have ruled that a defendant is not constitutionally entitled to appointment of counsel in a revocation hearing, the courts have indicated that it is preferred," Judge Moon explained. "Due to this inquiry, I, my four colleagues, and many judges across the state will now begin appointing counsel to indigent defendants in all revocation and diversion hearings.
Judge Craft confirmed that upon receiving notice from Disciplinary Counsel that Judge Moon promptly responded admitting the factual basis for the complaints. Since the filing of the complaints, Craft noted that Moon has taken remedial steps to try to insure that all indigent defendants in the Generals Sessions Courts in Hamilton County are appointed counsel to represent them at probation or diversion revocation hearings, and have communicated the necessity of this procedure by memorandum to the other General Sessions Judges and Municipal Court Judges with whom he serves and who might have also failed to appoint counsel in these type of cases."
During subsequent discussions with Disciplinary Counsel, Judge moon further expressed his intention to make sure that appropriate charging documents are filed before taking action on any charge in his court, and to make sure that to the extent possible any witness is not only appropriately treated but advised of the legal ramifications of their testimony.
"Although, there is a respectful, but definitive, difference of opinion in the interpretation and applicability of the law and legal opinions relevant to these issues, the Court of the Judiciary is there to assist us and to make us better judges," Moon concluded.
Judge Craft, speaking on behalf of the entire Court of the Judiciary, concluded that the actions in the above cases were a violation of Canon 2A which requires that "A Judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary."