TN Court of Criminal Appeals judge can work despite DUI arrest

10:17 AM, Apr 25, 2012   |    comments
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A state Court of Criminal Appeals judge can continue hearing cases, including those related to driving under the influence, despite his own arrest Monday night on a DUI charge, court officials said.

Although the Tennessee Supreme Court's Code of Judicial Conduct states that judges "shall respect and comply with the law," nothing in the rules precludes them from hearing cases when facing a misdemeanor charge.

Court of Criminal Appeals Judge Jerry L. Smith was arrested Monday night while in Knoxville and now faces two misdemeanor charges related to driving under the influence.

Casey Mahoney, a spokeswoman for the Tennessee Administrative Office of the Courts, said the court learned of Smith's arrest Tuesday and it was too early to comment.

Tim Discenza, the Court of the Judiciary's disciplinary counsel, said it would be inappropriate for him to comment on whether the panel that disciplines judges would address Smith's arrest.

He said nothing in the court rules would preclude Smith from hearing cases while facing the misdemeanors. Discenza said any recusal would be up to Court of Criminal Appeals Presiding Judge Joseph M. Tipton.

The Tennessee Supreme Court's Code of Judicial Conduct says judges "shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

In commentary to the rule, the court said the prohibition against acting with impropriety or the appearance of impropriety applies to professional and personal conduct.

Actual improprieties would include violations of law or court rules and the test for an appearance of impropriety is whether conduct creates the perception that a "judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired."

Smith, 58, was on Cumberland Avenue in Knoxville about 11:40 p.m. when a Knoxville police sergeant spotted his car with its rear hatch open, court records show.

A piece of luggage was on the verge of falling out of the 2010 silver Subaru Forester and the officer made a traffic stop, court records show.

Smith had a strong odor of alcohol, slurred speech and was unable to perform standard field sobriety tests. He refused a blood alcohol test, according to court records.

Smith faces first-offense driving under the influence and implied consent violation charges, both misdemeanors.

The judge was ordered released on his own recognizance once sober, court records show. Smith was booked into a Knox County jail at 2:19 a.m. Tuesday and released at 5:47 a.m., Knox County Sheriff's spokeswoman Hillary Coward said by email.

The judge did not immediately return a message Tuesday left at his office. There was no phone listing for his home address.

Smith has been on the Court of Criminal Appeals since 1995 when former Gov. Don Sundquist appointed him to the post.

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