Ep. 57 Tennessee Court of Criminal Appeals-Part 1

The Tennessee Court of Criminal Appeals (CCA) serves as a vital intermediary between trial courts and the Tennessee Supreme Court. The CCA hears cases in Jackson, Nashville, and Knoxville in panels of judges from across the state, ensuring diverse perspective in the judicial process.

In this episode we explore the history and key milestones that have shaped the Tennessee CCA into what it is today through the voices of four of its twelve members: Judge Robert Wedemeyer, Judge Ross Dyer, Judge Camille McMullen and Judge Jill Bartee Ayers. 

Transcript

00;00;00;16 - 00;00;24;16

Host

Welcome to Tennessee Court Talk. I'm your host, Nick Morgan. Today we're talking about the Tennessee Court of Criminal Appeals. The court was created by the Tennessee legislature back in 1967, and it plays a unique role in our judicial system. Unlike trial courts, you won't find witnesses, juries or live testimony here. Instead, cases are decided based on written briefs and oral arguments from attorneys.

00;00;24;17 - 00;00;47;01

Host

In 1996, the Tennessee General Assembly expanded the court from nine judges to 12 to help manage a growing caseload. Today, those 12 judges represent all three grand divisions of the state. On this episode, we're taking a closer look at the court's history, its background, and how it really works behind the scenes. I'm joined by Judge Robert Wedemeyer, Judge Ross Dyer.

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Host

Judge Camille McMullen and Judge Jill Ayers. Judges, welcome to Tennessee Court Talk.

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Judge McMullen

We’re happy to be here.

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Host

All right. First, we're going to get into why the court exists and how it developed. For listeners who may not know, why does Tennessee have a separate Court of Criminal Appeals and what problem was it created to solve?

00;01;05;15 - 00;01;38;29

Judge Wedemeyer

We have a Court of Criminal Appeals and a Court of Appeals. Obviously, the Court of Criminal Appeals handles all the direct appeals and post convictions and things like that. And our cases, we have three divisions Eastern Tennessee, Middle Tennessee, West Tennessee, four judges serving in each of those divisions. We sit in panels of three, and every almost every criminal case, in the state.

00;01;39;01 - 00;02;04;19

Judge Wedemeyer

If someone is convicted of a crime, they have the right to at least one appeal. It comes to our court. Back in the early 60s. A lot more of those. A lot of more constitutional rights were being recognized. And therefore, the, appeal claims became a lot more numerous. And so to deal with those, the Court of Criminal Appeals was created.

00;02;04;21 - 00;02;07;25

Judge Wedemeyer

And, I yield to my colleagues on that issue.

00;02;07;25 - 00;02;34;26

Judge McMullen

I'll just add to that. We were created from my understanding, primarily to alleviate a lot of the caseload from the from the Supreme Court of the criminal cases that were being handled when the CCA was created there. There were initially three judges, and again, due to the enormous criminal caseload, the CCA was expanded, I think, to seven, 6 or 7.

00;02;34;28 - 00;02;49;26

Judge McMullen

And so we continue to expand based on the need. And again, that was because of it began with all of the newly created constitutional rights that were being recognized by the United States Supreme Court.

00;02;49;29 - 00;03;15;25

Judge Dyer

Yeah. And matter of fact, yeah. When the US Supreme Court in the 60s started expanding protections for criminal defendants, they were all filing in District Courts. And so the US Attorney's Office said, hey, states, you better figure this out or we're going to just start dismissing cases. And our Supreme Court heard all the criminal cases, plus whatever else they were hearing, and they created the Court of Criminal Appeals.

00;03;15;25 - 00;03;24;29

Judge Dyer

And within a year, they expanded it to 5 or 6 because the first three were already so overwhelmed. So that's kind of how we came into being.

00;03;25;02 - 00;03;38;04

Judge Ayers

Yeah. I think it's interesting that the, criminal cases at that point went directly to the Supreme Court and not to the Court of Appeals. So I, I think the Supreme Court was just overwhelmed as well.

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Judge McMullen

And just, you think about that. I mean, I haven't read this anywhere, but I'm assuming that they were still just our Supreme Court was made up of five members.

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Judge McMullen

Yeah. Can you imagine handling the number of cases with just five members? I mean, we have, you know, a challenge before us with 12. So I can only imagine what, you know, how the cases were handled or managed at that time.

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Judge Dyer

Yeah. And not to not include their civil cases. They were taken in.

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Judge McMullen

Absolutely.

00;04;08;17 - 00;04;18;08

Host

The court has grown significantly over time. What has remained consistent about the court's mission since its creation, even as the law or even as Tennessee has evolved?

00;04;18;13 - 00;04;44;22

Judge Wedemeyer

My response to that is what is remained consistent is we are an error correcting court in that we review what happened at a at a trial, a criminal trial, we review what alleged errors occurred. If they are serious errors, we correct them by giving someone a new trial or what other other relief they are harmless errors.

00;04;44;24 - 00;05;08;20

Judge Wedemeyer

We will affirm what the trial judge has done in the case, but consistently, our job is to review, to be sure, both sides, received a fair trial. And if not, we can and we can correct it so that that to me, that's the consistent thing. That's no matter how many cases we have, no matter how many judges.

00;05;08;22 - 00;05;20;02

Judge Wedemeyer

The growth, it's pretty much always been let's let's achieve fairness, and be sure, that all the constitutional rights of every citizen are protected.

00;05;20;05 - 00;05;41;25

Judge McMullen

And I think, just to explain to lay people who might be listening to the podcast, the difference between what we do as an Appellate Court and what maybe the Supreme Court does as an Appellate Court. The Supreme Court's concerned, or part of their mission is policymaking and policy driven. And so we are we don't we don't do that.

00;05;41;26 - 00;06;02;03

Judge McMullen

Our challenge is just simply to apply the law as we see it. A lot of people compare it to referees calling balls and strikes. We don't we're not engaged in policymaking at all. And also, I'll say this, you know, one of the things that's unique about the Court of Criminal Appeals is, you know, we travel across the state.

00;06;02;04 - 00;06;15;28

Judge McMullen

We, you know, everybody sits in one of each of the three grand divisions Jackson, Nashville or Knoxville. You know, so the lawyers get a chance to interact with each of the judges on the court.

00;06;15;28 - 00;06;39;07

Judge Dyer

The fact that we travel and we mix with one another as far as panels are concerned, we try to keep consistency consistent. You know, we try to have the court be consistent on its positions to, to to allow the lawyers to understand, like, here's what the law is. We're not trying to issue 17 different opinions that say 17 different things.

00;06;39;09 - 00;06;47;12

Judge Wedemeyer

We've really strived very hard to be consistent as a court as to what we think or how the law should be, should be interpreted or followed.

00;06;47;18 - 00;07;00;11

Judge Ayers

And as probably the newest person on the court from this group of folks, when did that start? I mean, has our court always traveled and mixed up? The docket from the very beginning?

00;07;00;14 - 00;07;24;22

Judge McMullen

It actually goes back to when Judge Daughtrey was on the court. I know that there was a push to get to know other members, in the other, grand divisions and, see how the other members, you know, handle their cases and caseloads and opinions as well as interact as what Judge Dyer was saying, interact with the lawyers in the other divisions.

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Judge Ayers

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Judge McMullen

At least since 1975. Our members travel to the other grand divisions.

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Judge Ayers

And I really like that part of what we do because again, it it has. I think that's what part of what makes our court so special. And the fact that we get along so well is that, you know, we all spend time with each other in different groups and in different locations.

00;07;46;11 - 00;07;51;26

Judge Ayers

And I think that just makes us a stronger court. And as Judge Dyer said, more consistent.

00;07;51;28 - 00;08;02;08

Host

When you look at the court's history, there are many trailblazers and judges who later rose to leadership roles. Who stands out and what does that say about leadership in the court system?

00;08;02;10 - 00;08;13;17

Judge Ayers

Well, you just talked about the I guess we talked about the first one with, Justice Martha Daughtrey as the first woman appointed in 1975. That was a big deal at that time, I’m sure.

00;08;13;18 - 00;08;34;06

Judge Dyer

It was more than that in, you know, she didn't stop there, right? So, to your question, to kind of part of your question was, you know, they've gone on to other things. I mean, she clearly went on to to much greater, higher ranks, whatever you want to say that then serving on our court.

00;08;34;07 - 00;08;37;15

Judge Wedemeyer

Al Birch is one, who went on to do that.

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Judge Wedemeyer

Well, I think we've had maybe I want to say 7 or 8 judges on this court go on to the Tennessee Supreme Court. Yeah.

00;08;45;08 - 00;09;08;27

Judge McMullen

For the listeners who don't know, we're talking about Martha Craig Daughtrey, who was on this court for for some time, then went on to be on the Tennessee Supreme Court. Right. And then she went on to be on the Sixth Circuit. So just to track her path there, then we're talking about, justice, Adolphus Birch, he was the first African-American to be on this court.

00;09;08;29 - 00;09;26;25

Judge McMullen

And the Tennessee Supreme Court. And, and one thing that's notable about Justice Birch is that he was a judge at every level of the court system in the state of Tennessee. And I don't think that that has ever been done before. And what I mean by that is to say he was a judge at the General Sessions level.

00;09;26;25 - 00;09;41;21

Judge McMullen

He was a judge at the trial court level. He was a judge at the Appellate court level or at our level, and he was a judge at the Tennessee Supreme Court. So that speaks volumes for the type of leadership that we have coming through the CCA.

00;09;41;26 - 00;09;47;03

Judge Ayers

When our current Chief Justice of the Supreme Court, Jeff Bivins, was one of our members as well.

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Judge Ayers

So, yeah, as was Roger Page.

00;09;50;18 - 00;10;08;29

Host

And I would be remiss if I didn't also mention that one of those trailblazing judges is here with us today, as Judge Camille McMullen was the first African American woman to serve on an Appellate Court in Tennessee when she was voted to the Court of Criminal Appeals in 2008 and served as its Presiding Judge from 2023 to 2025.

00;10;09;01 - 00;10;13;23

Host

Judge Wedemeyer, you've known Judge McMullen a long time. Would you like to say a few words?

00;10;13;26 - 00;10;42;03

Judge Wedemeyer

She has been an outstanding, person to work with. We are in general, our court through the years has been very, congenial. We get along great. Most of us, most of the time. And I can say, without hesitation that, Camille and I have gotten along great. And she's gotten along great with the other members of the court, whether it's just who has been on the court or.

00;10;42;03 - 00;11;08;19

Judge Wedemeyer

I like to think it's a lot to do with her leadership skills. We have had the most congenial, friendly work together, get along, have fun at times group. It's, Camille was the Presiding Judge. In the last few years, she's spoken at the UT Law School commencement, and she just has represented our court in a lot of public ways in a very, very great way.

00;11;08;20 - 00;11;09;10

Host

Judge McMullen.

00;11;09;15 - 00;11;30;11

Judge McMullen

I, I truly believe that the court system, it should be reflective of the community that it serves. And I am honored to serve on the court. I was honored to be appointed by Governor Bredesen back in 2008. I think we have, you know, just as with women, we need to increase the amount of women that are on the court.

00;11;30;12 - 00;11;55;24

Judge McMullen

We need to increase the amount of African Americans that are on the court. But I, I believe that, you know, everyone is going to bring their own set of experiences to the bench. And I think the variety that we have on the court only enhances the product that we produce in terms of our opinions and in terms of how we interact with the public and how we interact with the lawyers.

00;11;56;00 - 00;11;57;11

Judge McMullen

I just think that's important.

00;11;57;15 - 00;12;12;08

Host

So let's move on to how the court actually works day to day, where we get into the meat and potatoes of the court when a criminal appeal arrives at the Court of Criminal Appeals, what are the major steps from filing to a final decision? In the simplest terms? Judge Dyer, you kick us off.

00;12;12;15 - 00;12;31;19

Judge Dyer

There's a lot of steps, but I think you can you can simplify it. I mean, so once the case is filed and I'm just going to kind of throw in, you know, the record is filed and the briefs are filed, then it's either set for argument or to be heard on brief one of the two, depending on the request of the parties.

00;12;31;21 - 00;13;02;05

Judge Dyer

Those cases. And then Judge Wedemeyer, in his infinite wisdom, takes the cases in each grand divisions and sets a docket each month of X number of cases depending on trying to keep the backlog, trying to not have a backlog of trying to get cases heard as soon as possible. And he assigns those cases to a docket. And then the three judges who have been assigned to that docket, divy those cases up.

00;13;02;08 - 00;13;22;08

Judge Dyer

And if they're on brief, they handle them within their chambers and then circulate into their colleagues. And if they're argument cases, you have argument. And you we discuss kind of what we think after arguments over with. And someone gets assigned a case and writes an opinion, and you circulate among your colleagues and you kind of go from there.

00;13;22;14 - 00;13;34;06

Judge Dyer

That's really simple, I admit. But a thing that just gives you kind of, a very broad understanding, I think then everybody else can kind of fill in maybe the holes there a little bit.

00;13;34;08 - 00;13;56;22

Judge McMullen

Let me, let me, let me just take a step back. Because when I talk to people and I assume that there will be people who are non-lawyers that are listening to us during this podcast, what they need to understand is that we are an Appellate Court, okay? And it's somewhat similar to I like to like, you know, compare it to an oreo cookie.

00;13;56;24 - 00;14;24;02

Judge McMullen

You know, the first tier of the court system are the trial courts. And that's where a lot of the, you know, the nitty gritty happens. Those judges, really are the workhorses of the judiciary. They interact with, jurors, they interact with litigant, they interact with defendants, they interact with victims, they interact. And this is what they do on a daily basis.

00;14;24;04 - 00;14;52;03

Judge McMullen

And whatever happens at that level, if a person is aggrieved by what that particular judge does, then they have the opportunity to appeal. And for the Court of Criminal Appeals, I like to say we're the good, sweet, sugary middle part of the Oreo cookie. Once they decide that something they feel like something was done wrong at that first tier level, their lawyers can bring it up to us.

00;14;52;06 - 00;15;13;20

Judge McMullen

And, you know, I like to point out to the public that 99% of the time, that's where a criminal case is going to stop. You know, everyone has a right to appeal their case to us as the Court of Criminal Appeals. And we take we take those cases, because we're constitutionally required to. So we take we listen to them.

00;15;13;20 - 00;15;47;19

Judge McMullen

And as Judge Dyer explained, you know, their lawyers write briefs, we read those briefs. And, you know, depending on whether there's oral argument or not, will issue an opinion based on that. Now, once we issue that opinion, we have the Supreme Court, who is another layer of that oreo cookie. And if the lawyers feel like we as a court, in our opinion, did something wrong or made an error, they have, you know, the opportunity because the Supreme Court doesn't necessarily have to take those cases to appeal to the Supreme Court.

00;15;47;25 - 00;15;56;07

Host

So what happens behind the scenes after an oral argument, once the judges recess, the courtroom lights go off in the public leaves. Explain that process a little bit.

00;15;56;11 - 00;16;15;01

Judge Ayers

Following up on what Judge Dyer said, if it's oral argument, then we're going to sit back in chambers after the argument and discuss the case and get a general idea of of where we think it's going to go and who's going to write it. I think one thing that has not been talked about yet is that there's a lot of record reviewing involved.

00;16;15;03 - 00;16;36;18

Judge Ayers

You know, we're going to read the briefs before argument and be prepared for that. If it's not oral argument, then we're just going to get the record and we're going to go through the record and look at everything in that record as far. And the record includes transcripts from what Judge McMullen talked about, happens at trial, all of the all of the trial, pleadings and the trial court's rulings.

00;16;36;18 - 00;16;59;00

Judge Ayers

We're going to we're going to review all of that record. And then whoever is assigned to author that opinion is going to work with their staff in chambers to, get a draft prepared once that's edited multiple times, then it's going to, be circulated to the panel. We usually do that one judge at a time. Sometimes it's strategic about who you send it to first.

00;16;59;00 - 00;17;16;11

Judge Ayers

Depending on panels, I think we can all agree that may or may not be the case, but, send it to one judge as the second reviewer. That judge reviews weighs in, makes suggestions says, yeah, I agree with this or or no, I don't. And I think we're going to talk about the sense later so that can be covered.

00;17;16;14 - 00;17;41;09

Judge Ayers

But assuming everyone agrees, with just some edits, then, then the authoring judge is going to make those edits and, get the final opinion filed, with the clerk's office. And then from that point, that's where the whoever, loses the appeal decides if they want to, file a rule 11 to ask the Supreme Court to review what we've done.

00;17;41;13 - 00;18;13;23

Judge Dyer

I would just add the discussions with in a judge's particular chambers. And then also the circulating process can either be very simplistic or it can be a lot of emails and phone calls and things just to kind of get, can we get everybody on the same page, or is this something that you know you missed? I think you need to add this because there's a new case out there that maybe you missed or I don't read that case exact same way.

00;18;13;23 - 00;18;26;19

Judge Dyer

So, you know, or it can be, hey, we all agree. And it goes on. You know what you think is a case that should come out pretty quickly, takes, you know, a long time to get everybody on the same page to sign off on.

00;18;26;21 - 00;18;52;29

Judge Ayers

I think that's what makes good opinions with our court. I mean, I don't know how everybody feels. I'm generally an offended by anybody's comments. I mean, I don't mind if somebody is going to even show me something nitpicky because I want what comes out with my name, want it to be the best product it can be. I know that regardless of which panel I'm on, I've got some really smart, great judges here that are going to help me make sure this opinion is correct.

00;18;52;29 - 00;19;08;02

Judge McMullen

And so whether, as Judge Dyer mentioned it, somebody saying, hey, have you thought about this case, you might want to add it or maybe hey, yeah, I don't read this case the same way. Let's talk about it. I think all of that is what helps make our opinions better.

00;19;08;09 - 00;19;16;04

Host

Okay, so let's move on to dissents then. How does the dissent come to be and how does it make it into the final opinion, etc..

00;19;16;07 - 00;19;48;24

Judge McMullen

This goes into that strategy about where are you going to send your opinion first? And I think Judge Ayers was saying that it a little like, jokingly, but in all seriousness, it does it it matters. The second judge who are the reviewing judge, has a big a big role in determining, you know, how the opinion is going to go, whether they agree with the draft as it is circulated or not.

00;19;48;26 - 00;20;18;13

Judge McMullen

So the second reviewing judge is is very important and their review will dictate, you know, how the third reviewing judge will approach the case, knowing that, you know, if they don't agree with the first two, they will be in the minority, and have to work backwards, to either convince the author to come their way if they're disagree on a certain issue, or or not.

00;20;18;13 - 00;20;41;27

Judge McMullen

So it's, it's it's an interesting it's an interesting dynamic. But I will say, you know, it's it's not difficult when you have a good relationship with your colleagues. You know, sometimes it's just a matter of picking up the phone and saying, hey, you know, how strongly are you tied to X issue? Would you mind, you know, adding, you know, this or whatever.

00;20;41;29 - 00;21;13;06

Judge McMullen

And sometimes it's a matter of saying, hey, is there any way we can come to, consensus on this? And if it's not, then, you know, there's a draft sort of kind of. Here are my thoughts. That's the way I approach. Here are my thoughts. What do you think? Sort of kind of thing. And if there's a, absolute no, I'm not, you know, feeling that that's when, at least for me, I, I go into drafting a dissent or a, you know, concurring opinion.

00;21;13;08 - 00;21;38;02

Judge Dyer

I agree with, with all of that. And the one thing I would add to it is I think you don't see one thing I think is really great about this court, I guess, is you don't see tons of dissents. Not because we're not independent thinkers, but because of the collegiality, so to speak, and the openness using, you know, as Jill said a second ago, she wants people to even nitpick and get you to think.

00;21;38;02 - 00;22;03;15

Judge Dyer

And I think we as a court are very good. No one gets really offended of, hey, look at this. And it's much easier to reach common ground. And which goes back to then we're up. Then therefore we're putting out consistent opinions and not a bunch of, you know, two one decisions with the dissent or concurring opinion over here, we've reached common ground, on what we believe the law for how the case should be resolved.

00;22;03;17 - 00;22;26;05

Judge Wedemeyer

We we really don't have very many dissents. And and the reason there a couple reasons for that. The primary reason is, in my opinion, the that the, the issues that come before this court are, very, you know, it's a lot of the same issues. And the law with regard to those issues is pretty much the same law.

00;22;26;05 - 00;22;56;25

Judge Wedemeyer

I mean, you know, they're they're new, new laws are enacted. Of course, we follow those. But the types of issues in the, in the law we're dealing with are pretty set. And a lot of times it's just something that, like I said, unless there is a serious error involved in the way the trial judge handled things or, the jury was mis instructed or something, the vast majority of our cases, we're going to affirm what happened at the trial level.

00;22;56;25 - 00;23;21;27

Judge Wedemeyer

And another factor there is we as we an Appellate Court, it's not our job, to substitute our judgment for what should have happened at the trial. You know, we might have a have a case in front of us where, a defendant was sent to prison, and that the panel might think, gosh, if I were the trial judge there, I would have given that person probation.

00;23;21;29 - 00;23;47;06

Judge Wedemeyer

But as long as the trial judge followed the principles of sentencing, you know, we're it's not our job to substitute our judgment for the trial judge. There there aren't a lot of dissents, on our court for that reason. Now, what these colleagues have pointed out is I totally agree with if there is one, if if we have a disagreement, we resolve it in a nice, healthy discussion.

00;23;47;12 - 00;24;27;19

Judge McMullen

And the only other thing that I'll say, because I, I don't mind saying I've written a lot of this. And part of that is you are signaling to the higher court, that you believe that there is a problem that they need to take up. And quite frankly, we I've written so many cases at this point in my career, I if I don't write my position down, I might forget or, you know, where we are in the total scheme of things, what's going on in East Tennessee on an issue versus what's going on in West Tennessee on an issue and just to make sure that we know, you know, that there's a disagreement or split

00;24;27;27 - 00;24;49;28

Judge McMullen

in the court, on an issue, it's important that a dissent be written and that, you know, judges don't just ignore issues that are bubbling up across the state. So that's that's one reason, for me at least, that I think it's important to put your position down in a dissent. If you can't agree with your colleagues.

00;24;50;00 - 00;25;04;07

Judge Dyer

And I will, and then I'll let you move on to your next question. But I want to echo just what Mullen just said, because I I've had a case where I've been on a panel and I've been the author and someone has said, you know, I just don't know that I can agree with you. I'm thinking of writing a dissent.

00;25;04;07 - 00;25;23;19

Judge Dyer

And I'm like, please do like it. It needs to be signal to the Supreme Court that there is a differing opinion down here. And they need they need to take this. We need them to take this and resolve it. So, you know, yeah. Write a dissent. I'm I've encouraged people to write a dissent in my cases just for that reason.

00;25;23;24 - 00;25;38;05

Judge McMullen

It is a wonderful feeling when you write a dissent or a separate opinion and you convince one of your colleagues to change their position based on that writing, it's an incredible feeling when that happens as well.

00;25;38;07 - 00;25;46;25

Host

This concludes the first half of my conversation on the history and inner workings of the Court of Criminal Appeals. Part two will follow in the next episode of Tennessee Court Talk.