Thousands of defendants overlook right of appeal for ‘trial de novo’

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Basil Marceaux stands in the Hamilton County, Tenn., court building as he challenges the use of police by municipal corporations despite high court rulings stating city authority is civil. (Photo David Tulis)

Basil Marceaux stands in the Hamilton County, Tenn., court building as he challenges the use of police by municipal corporations despite high court rulings stating city authority is civil. (Photo David Tulis)

By David Tulis / Noogradio 1240 AM 92.7 FM

The court system so intimidates Americans that thousands of people in Hamilton County and Chattanooga are failing to take advantage of a remarkable right of appeal written into the Tennessee code.

That right of appeal is called trial de novo in circuit court. It is a right of parties who have a negative ruling in either sessions court or city court. In the statute it applies to negative rulings in civil cases. In practice it should apply to criminal verdicts in cases handled in criminal jurisdiction by these judges. Soddy-Daisy city court judge Marty Lasley tells his court audience they have an “absolute right” to a jury trial in their criminal matter.

But an apparent problem has emerged in core practice across Tennessee as sessions and city courts handle criminal matters. A petition by defendant and notable perennial candidate Basil Marceaux is raising questions about this practice.

In a hearing for motions made the first Mr. Marceaux will be challenging current practice across the state in which criminal matters are heard by these two inferior courts, which he says are allowed only to deal with civil cases pursuant to the notable supreme court ruling in City of Chattanooga v. Davis.

Odd quest

Mr. Marceaux says that circuit court judge Neil Thomas has directed him to propose how a trial de novo case would be heard, given orders by the courts of appeal that say a trial de novo in a criminal matter has to be held by Circuit Judge but using sessions protocols.

Why it is been given to Mr. Marceau, a non-lawyer and businessman, to propose is not clear.

“No, he’s never talked to me,” says circuit court clerk Larry Henry prior to a meeting with Mr. Marceaux on May 18. “He’s talked with some of my clerks out here about it. He left me a transcript and some things written down on it.”

“To be quite honest with you, I don’t even understand what he’s talking about. He has talked to several of our judges about it. He’s brought it up here to me with a Tennessee Code Annotated on jurisdiction, and to be quite honest with you, I don’t really understand what he’s talking about. But I can tell you this. As far as the creation of a court would go, that would not be my decision to do that. That would be up the legislature to establish that court. I couldn’t do that.”

But Mr. Henry had not granted Mr. Marceaux an interview at the time of an April 3 phone interview about Mr. Marceaux.

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“We’ve never had a conversation about that. We have a brief conversation last summer on an elevator about five minutes, He’s been up here several times. We’ve not been able to set down and talk about it. Everybody that I’ve talked to that he’s talked to about it, they don’t really understand what he’s talking about, so, you know, I am going to make a point to talk to him about it.

Court clerk couldn’t create the court as proposed by Mr. Marceaux, of Soddy-Daisy. “It wouldn’t be in my purview to do that,” Mr. Henry says.

No trials de novo in circuit

This reporter asks about trials de novo.

“I’m not aware that we have any,” Mr. Henry says. “I don’t think we’ve had a one since I’ve been the clerk up here” starting in 2014.

Are people ignorant about this right? “That could be. I don’t think we’ve had a one. That would really come under an order by a judge, I would think, rather than my office to begin with. *** Our role and job here is to do the filing, to take care of the orders as they come through, and to keep records.”

Mr. Henry understands Mr. Marceaux is trying to start another court, but it’s a legislative goal. Only a judge could say for sure.

I point out that a trial de novo is not an appeal. It starts fresh, it “starts new.” I tell him about these rulings flashed about by Mr. Marceaux and orders from courts of appeal.

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Marceaux ‘pretty intelligent’

“He’s pretty intelligent when it comes to [legal issues], but it’s really hard to know what he’s talking about.  I don’t discount his intellect,” Mr. Henry says, nor does he think Mr. Marceau is “a nutcase or anything like that. He’s intelligent. He’s smart. He knows what he is talking about.” But “he doesn’t express himself well.”

“I think he knows what he is talking about, but it is just so hard to understand what he is talking about.” Mr. Marceaux’ paperwork adds up to 10 pages, some he has written himself. “But you can’t understand it. You don’t know what he is talking about. I’ve looked these cases up. I know these trial de novos you are talking about. I’ve looked at that.”

But action on the matter is in the hands of others.

Attorney Jim McKoon said he has not heard of any criminal matters tried in sessions or city being appealed for trial de novo — and such an appeal would be in criminal court, he said.

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Basic provisions for appeal

TCA 27-3-131.  Appeals in misdemeanor cases — Trial de novo — Jury trial.

 (a) Notwithstanding Rule 5(c)(2) of the Tennessee Rules of Criminal Procedure to the contrary, the defendant may in any case covered by such rule appeal a verdict of guilty or the sentence imposed or both to the circuit or criminal court for a trial de novo with or without a jury.

(b) Demand for a jury trial shall be made at the time of filing an appeal under § 27-5-108, to the circuit or criminal court. If such demand is not made at the time of filing the appeal, the right to a trial by jury is waived.

HISTORY: Acts 1984, ch. 879, §§ 1, 2; 1985, ch. 397, § 1.

27-4-101.  Appeal to circuit court.

 Any party dissatisfied with the sentence, judgment, or decree of the county court, may pray an appeal to the circuit court of the county, unless it is otherwise expressly provided.

HISTORY: Code 1858, § 3147 (deriv. Acts 1843-1844, ch. 99); Shan., § 4879; mod. Code 1932, § 9028; T.C.A. (orig. ed.), § 27-401.

27-4-102.  Appeal to appellate court.

 In all cases in which the jurisdiction of the county court is concurrent with the circuit or chancery courts, or in which both parties consent, the appeal lies direct to the court of appeals or supreme court, as the case may be.

HISTORY: Code 1858, § 3148 (deriv. Acts 1813, ch. 78, § 2; 1855-1856, ch. 116, § 5); Shan., § 4880; Code 1932, § 9029; T.C.A. (orig. ed.), § 27-402.

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