Nine years ago, a Criminal Court judge stunned the public by declaring a mistrial in the middle of a notorious first-degree murder case, citing misconduct on the part of a defense attorney.
The jury had endured a week's worth of testimony about the death of little Eddie Brown, on whose tiny corpse were found skull fractures, bruises old and new, cigarette burns, an untreated broken arm, brain swelling, vomit in his lungs, contrecoup (shaken baby) injuries, hemorrhaging in his belly, an old brain stem injury, ears ripped nearly off his head.
Seldom had a crime so affected the public. Seldom has a defendant been as reviled as Evajean Brown, the mother accused of failing to protect her son from her husband, Mack Brown, while he committed this affront to human decency.
The prosecutor, Bob Jolley, put a detective on the stand to testify that Evajean knew her husband was abusing little Eddie. The defense attorney set about to prove that she had never used the word "abuse" to describe the punishment meted out to the boy. The judge sustained an objection to the line of questioning, and the defense attorney asked the same question--slightly rephrased--again.
And that's when the whole thing jumped the tracks.
Judge Ray Lee Jenkins excused the jury and announced that the defense attorney's misconduct had created the "manifest necessity" to end the trial. Stunned by the ruling, the offending lawyer stood and addressed the judge:
"May I be heard?" he asked.
Came the famous response:
"Mr. Moncier, I hear you in my sleep."
Jenkins is not the first judge to have been driven almost crazy by Knoxville's highest profile and most controversial lawyer. Whether Herbert S. Moncier is being praised for his brilliance, damned for his manners, dreaded for his persistence, envied for his success, or excoriated for his tactics, he won't be ignored.
At 50, he is a pudgy perpetual motion machine of a millionaire lawyer who drives a silver blue Jaguar, but frequently shows up in court with the seat of his pants split or ink stains on his shirt. His dark hair is peppered with silver, but still he thunders and paces, buries the opposition in avalanches of paper, pushes judges past the limits.
Ralph Harwell, a lawyer who was a mentor to Moncier when they were both prosecutors in the early '70s, says one underlying principle is key to understanding his old friend:
"Herb's modus operandi is he goes from the premise that you challenge everything. Herb has a very fertile mind. He can think of issues to raise that others would reject, and he argues each issue in a criminal case with the same vehemence, and that irritates the living piss out of prosecutors, especially the self-righteous ones for whom the only issue is 'did he do it.'
"They're motivated by wanting to make the world safe for democracy and getting the scumbag off the street. For them, defense lawyers are just a necessary evil and impede progress. And Herb does a lot of impeding.
"Most prosecutors don't appreciate somebody who raises 50 issues before they even get to 'did he do it...'"
Ron Smith was a party to the astonishing turn of events in the trial of Evajean Brown. Just a couple of years out of law school when he was appointed to defend Brown, he knew he needed help, so he enlisted the biggest gun he could find--Herb Moncier.
"All of us were devastated," Smith says. "We were shaken, devastated, pissed. And I include the judge in that number."
Smith rejects long-circulated speculation that Moncier calculated Jenkins' breaking point and intentionally nudged him ever so slightly over the edge.
"We believed strongly that we had a client who was entitled to a favorable verdict. I don't ever want to believe the strategy was to enrage the judge. We had a case; a beautiful one that Herb developed...just a work of art. Unfortunately, no one will ever get the chance to appreciate it."
"Herb's not devious in that way. He does have a personality trait that raises that kind of speculation--his tremendous powers of concentration, some would call it tunnel vision. And he will not be deflected."
Jenkins put down an order charging Moncier with bringing improper evidence before the jury, refusing to follow repeated rulings, deliberately trying to influence the jury, and being rude and abusive toward the judge, prosecutor Bob Jolley, and witnesses.
Evajean Brown was freed when the appeals court ruled that Jenkins erred in declaring a mistrial and that a retrial would amount to double jeopardy.
The case is remembered as a debacle, and some, in off-the-record comments, condemn Moncier's behavior as far beyond the pale. The public was outraged over the law's impotence to punish those who torture and murder children.
Moncier, however, is still defending her.
"Evajean Brown was reduced to a concept, and as a concept, she was despised. But Evajean Brown, human being, was kind, caring, grateful, and one of the most dependent humans I've ever seen. She was shattered when the judge showed displeasure. She was a gentle, sweet lady..."
He is fiercely unapologetic.
"All through history, when humans band together, the first order of business is to create a government. The second order of business is to protect ourselves from that government.
"Nothing in the Constitution guarantees the state a fair trial. The state doesn't have any damn rights. The people have rights. And when those rights work to the benefit of someone they don't like, that's tough. "
John Gill, a former US. Attorney who is special counsel to the Knox County District Attorney General, says it is perfectly natural for Moncier to be at the epicenter of a legal maelstrom.
"Most good trial lawyers have an ability to make themselves the center of attention," says Gill. "And Herb will go much farther than any other lawyer to grab the center stage."
Other prosecutors put it differently, derisively calling him "Try 'Em Twice Herbie," a reference to Moncier's propensity to appeal losing cases.
Gill calls Moncier "a genius at stretching the criminal justice system to its limits. Human beings can't create a perfect system, and Herb's a master at finding the imperfections. You may not see it at the time, but he's always got a reason for what he does. He knows exactly where he's going, and he will push judges, law enforcement officers, and witnesses to their limits. He is intimidated by nobody, and he's amazingly inventive. When you think you've seen it all, Herb comes up with something new. He has amazing willpower and stamina. He's not going to give up."
Or, in the indelicate declaration of a criminal defense lawyer:
"That son-of-a-bitch will keep going until everyone else is past the point of exhaustion. That's what he did to Judge Jenkins. You just can't wear Herb down."
Something that did surprise many who know both Moncier and Jenkins occurred when it came time for Jenkins to appoint a lawyer to represent another notorious client, accused serial killer Thomas D. "Zoo Man" Huskey.
He called Herb Moncier.
(Cynics are quick to point out that Jenkins soon thereafter removed himself from the case, citing a potential conflict of interest. They suggest that Jenkins, being a man who takes his responsibilities seriously, wanted Huskey, against whom the state is seeking the death penalty, to have the best defense available. But, this line of reasoning goes, Jenkins, also being a highly intelligent man not unacquainted with playing the percentages, chose to bail out of the case, dumping it into the lap of his junior colleague, Richard Baumgartner. None who frame this theory are critical of Jenkins.)
Jenkins wouldn't be the first judge to have had his fill of Moncier.
There's an older courthouse tale that Judge George Balitsaris got so fed up that he barred Moncier from his courtroom. Not so, says Moncier, who maintains he requested to have his cases reassigned to other judges.
Harwell says it was maybe a little of both.
"We need to define our terms," he says. "There was a disagreement, and, as a result, Herb asked for his cases to be transferred. I think both of them were pleased..."
Before Moncier can concentrate on the Huskey case, he must conclude the matter of Tex Hill, the Blount County video poker operator accused of concocting a scheme to defraud the federal government. Presiding over that trial is US. District Judge James Jarvis. He grins warily when asked if he's prepared to spend the next couple of weeks keeping Moncier in check.
"My doctor tells me that Herb Moncier is hazardous to my health."
One of the longest-running current courthouse legends is the rumored animosity between Moncier and Assistant District Attorney General Bob Jolley, nicknamed "Dr. Death" and known as the toughest prosecutor around. Although neither will own up to harboring hard feelings toward the other, nobody believes them.
Jolley is stone-faced when asked to comment on Moncier.
"The record speaks for itself," he says.
Harwell has his own ideas about this issue, too.
"Herb and Bob are good lawyers; they each see it just their way, and each sees the other as an impediment."
Moncier says he believes Jolley is hiding his true feelings:
"Down deep, Bob Jolley admires me. If he got in trouble, he'd probably call on me."
He is everywhere at once.
Endless and sometimes bizarre motions in the Huskey case? Look for Moncier. The over-hyped drunk driving trial and ensuing belch defense of Old City restaurateur Hugh Ray Wilson? Moncier. The federal court tax fraud trial of gambling kingpin Tex Hill? Moncier again.
He chose Greg Isaacs, a popular young lawyer who has had a good deal of early success and notoriety, as his co-counsel in the Huskey case. Courthouse observers worry that some of the Moncier bombast is rubbing off on him.
Isaacs isn't concerned.
"People tell me that Herb's a prima donna. People tell me he's an egomaniac. I don't see it. He's a true believer in what he does. And trying a case with him is pure, raw energy. How can people criticize a lawyer for doing his job too well?"
Isaacs says he and Moncier "are the guys who keep the police from coming through your door. Not the judges; not the prosecutors. We are the last line of defense. If you were someone's champion, fighting for his life, his freedom, how hard would you try? Herb fights as if he's the one going to jail."
Margaret Corum never jokes about Herb Moncier. In June 1991, her daughter Connie Lynn Martin died at the hands of her husband, David Paul Martin, who knocked her to the floor, pinned down her arms with his knees and strangled her. His two children were in the house.
He hired Moncier to represent him against a charge of first degree murder and was convicted in 1994 of voluntary manslaughter after a trial during which Moncier said, in essence, that Connie Martin had provoked her own death. Voluntary manslaughter carries a penalty of up to six years imprisonment--Martin got five.
"My daughter was on trial," Corum says. "I've never claimed she was an angel--she and I went round and round about a lot of things she did, but it's just not fair. Herb knew he strangled my daughter with his bare hands. How could he get up there in court and paint David as a saint and degrade my daughter so?
"My daughter didn't kill anybody. David did."
Corum says her family was "devastated" by the trial, but has been driven almost beyond their endurance by watching Martin go unpunished while his case is on appeal. On October 7, the state Supreme Court agreed to consider psychiatric issues in the Martin case and join it with the Huskey case, as well.
David Martin has been charged three times and convicted once of drunken driving in the meantime. The Corums say he has shown no signs of remorse.
"In the beginning, I was not bitter," says Margaret Corum, "Because I believed God had a plan for everything. Now, it is hard to see. I can't sleep in my bed anymore. This is my bed right here," she says, as she pats the couch in her den.
She says Connie's daughter Tiffany is haunted by dreams where she sees her mother at the far end of an aisle in the grocery store, forever out of reach.
"It has changed us all; it has changed us forever," she says.
Intellectually, she knows somebody had to defend Martin, but she believes Moncier went too far in the service of his client.
"Connie Lynn is gone; she's never coming back. But I would just love to be able to do something so there would never be a Connie Lynn Corum whose name is dragged through mud, so her mamma and her daddy and her two children don't have to go through what we went through...and something I'd like to do before I die is have 30 minutes with Herb Moncier. I'd ask him how he could paint David as such a saint when he knew it wasn't true. Do we not live under the same constitution David does? I'd ask him how he would feel if he were in our shoes..."
Moncier has short and immediate answer for Corum's question:
"My heart would be broken."
He has strong views concerning the issues of victims' rights, in general.
"I think victims have a right to go into court and sue, but to separately consider that the victim has independent rights is to bastardize the entire system. I have yet to see a victim satisfied."
He is emphatic, even harsh.
But outside the courtroom, he is jovial, kind, and engaging; a pillar of Church Street United Methodist Church who headed up fund-raising for the church annex presided over by a statue of the Teaching Jesus, and he is proud that this is where Knoxville's homeless are fed on a weekly basis. He is a devoted father to two motherless boys, a lover of animals whose pet pig Theodore used to sit up in bed with him watching CNN, a spell-binding spinner of yarns.
"He has a huge, generous heart," says Ann Short, an attorney who has been Moncier's associate for 13 years. Short, past president of the Tennessee Association of Criminal Defense Lawyers, works behind the scenes, researching the issues Moncier will use at trial. Contrary to the belief of some, Short says Moncier always shares the credit for success.
He is a civic-minded Knoxville blue blood whose mother, Frances Sanford Moncier, was a human dynamo known as "Mamma Mon" to the thousands of teenagers with whom she worked at the Knoxville Teen Center, which she founded to give young people a place to socialize and learn to contribute to their communities. She threw herself into her project after her daughter Marty was killed in a 1957 traffic accident.
"Marty was like a second mother to me," Moncier remembers. I remember her telling me that night she never wanted to grow up. I took a hose and sprayed her. She said 'I love you,' and walked away and got into the car, all those crinolines billowing...she was on her way to a fraternity party in Gatlinburg. I never saw her again..."
The Monciers didn't push for prosecution.
"The criminal justice system had no salve for our grief," Moncier says. "My mother's reaction was to create a wholesome atmosphere for young people to get together..."
Old friends say Moncier is a lot like his mother, and he says there's some truth to the contention:
"Saying no to mother was just an invitation to do it another way."
He married his high school sweetheart, Rachel Hufstedler, in 1969, a year before he graduated from the University of Tennessee College of Law. Drafted in 1971, he served in the Judge Advocate General Corps in Washington, D.C., as a captain. Rachel taught school. He was first a prosecutor and later a defense attorney. By and by, he noticed a phenomenon that would follow him through his career.
"The brass liked me as a prosecutor, but when I became a defense attorney, they didn't like me. After about a year, I noticed that when the brass got into trouble, I was the one they'd come to. I am very proud of that."
Predictably, Moncier was in hot water before his tour of duty ended. An enlisted man, Robert K. Preston, stole a helicopter and flew it into the White House, which was then occupied by Richard Nixon.
"The Joint Chiefs of Staff were considerably upset," Moncier says. "And they denied me the right to represent Preston. He was facing 105 years and a dishonorable discharge on an attempted murder charge."
Moncier sued and won the right to defend Preston, and during the trial, he charged his superiors with the crime of command influence, a violation of the Code of Uniform Justice.
"I stepped outside that little courtroom at Ft. Meade, and NBC, CBS, and ABC were all there, asking me to explain my motion. I ran home to watch it on TV, and the crawler came across the screen 'Army captain accuses Joint Chiefs of Staff of crimes.'"
It was heady stuff. Morley Safer interviewed him on 60 Minutes, and Moncier rubbed the Joint Chiefs' noses into the case by making Preston his clerk and having him ride around in Moncier's Army car.
Preston ended up being sentenced to two months retraining and an honorable discharge. He was convicted only of misuse of a helicopter.
Discharged in the middle of the trial, Moncier's commanding officer, whom he says "could do nothing less than hate me," wrote him a commendation for meritorious service that he still cherishes.
He and Rachel returned to Knoxville, and Herb, who had earned a master's degree in law while in Washington, became a prosecutor in the district attorney general's office. Rachel continued teaching until their son Adam was born in 1977. Their second son, Nick, came along in 1980 and was born blue and not breathing. The diagnosis was cerebral palsy, and his first few months of life were tough. The vivacious, active Rachel fell into a depression she couldn't pull out of. It deepened when the family was hit by flu, and grew deeper still when Nick had an allergic reaction to her breast milk. As Rachel's state of mind worsened, her family rallied around her. But there was nothing she, or anyone, could do.
"I have always hoped Rachel's story could help other women who suffer from post partum depression somehow," Moncier says. "It was a tragic thing to happen to a beautiful, gentle lady. We had made arrangements for her not to be alone; had taken precautions. But she shot herself..."
He was in Ralph Harwell's office when the call came in, and Harwell will never forget it.
"He and I went to the hospital together, and I stayed with him for days afterward. He was totally devastated. Probably the worst thing that ever happened to me didn't happen to me.
"We'd sit and talk for hours, and he'd tell me, 'Ralph, I can't imagine ever laughing again'...God or bad, things happen big to Herb."
Moncier was left with a 3-year-old and a severely handicapped 5-month-old, whom he calls "the most precious things in my life. I view them as my strength. They gave me something that needed me, and I found strength and warmth and love and comfort in the children. I was blessed."
He seems prouder of the fact that Nick had his first job this summer --greeting and seating customers at Pete's, a downtown restaurant--than of any legal victory he mentions.
And he will probably never fully understand why the tragedy happened. He remembers the funeral of another suicide victim years later:
"A young priest gave the eulogy and asked the question 'Why?'
"Why? Why? Why?" Moncier repeats. "It just bounced off the walls."
It is late in the day, and Moncier is tired. Margaret Corum's comments have worked their way under his skin. He buries his face in his hands and says he understands the feelings of the Corum family.
He gets up and paces once across his office.
But it is a momentary lapse, and he resumes his customary bravado. If he were to talk with the Corums, he says, he'd remind them that they had the services of Bob Jolley, "the most vigorous prosecutor ever known in Knox County."
(This may be a rare case of Moncier modesty. Some 20 years ago, he and Harwell were a prosecution team that never lost a case.)
He calls the issue on appeal in the Martin case "huge" and says it will make new law regarding compelled mental evaluations.
"I defended David Martin based on facts and the law of the state of Tennessee. The tragedy that the Corum family suffered is real. But those emotions have no place in a trial..."
He calls this "a case I can't make go away...I'm sorry they didn't like the facts they heard. I'm sorry."
The tension is palpable, lurking just beneath the surface of studied tedium of courtroom civility on what must be the zillionth day of motions before the murder trial of Tom Huskey.
Judge Richard Baumgartner is considering the mechanics of the death penalty, and Moncier asserts that District Attorney General Randy Nichols, personally trying the case of the man he has declared "the personification of evil," has not given Huskey adequate notice of the reasons the state is seeking to put him to death.
Nichols, who has known Moncier since they were both prosecutors so long ago, is a ruddy-complexioned man prone to bright flushes when provoked. He does a slow burn as Moncier lectures Baumgartner.
Moncier continues to push, and Nichols, by now fireplug red, raises vigorous objections.
Moncier rocks in his chair. He demands to know if there have been promises of immunity.
"Be careful," he growls when Nichols denies any such.
Seconds later, he's calling Nichols a liar. The judge asks him not to yell.
Heedless, Moncier thunders "Make him follow the rules!"
Baumgartner has had all he can take. He hurls his pen across the courtroom, calls a recess, and stalks toward his chambers. Halfway there, he whirls around, black robe swirling, and addresses the defense attorney:
"This is on the record," he shouts. "You're showboating, Mr. Moncier. You're showboating because you've got a person here who is writing a story about you."
Impervious, Moncier readies himself for the next round.