The Brawling Barrister

Attorney Herb Moncier believes the best defense is a good offense

It was on a Monday evening in mid-November, 2006, when notorious local defense attorney Herb Moncier found himself in the not-unfamiliar position of defending his own actions. Only this time it was for his antics in the drive-through line of a local McDonald's franchise rather than any theatrics in a court of law.

Accounts differ as to exactly what happened. McDonald's employees say Moncier grew cantankerous, honking, yelling, and cursing at an employee because he felt his order was taking too long. (Moncier insists it was the employee who cursed at him.) Finally, he stormed inside, bristling and ranting, and absconded with an important piece of the restaurant's scheduling paperwork, purportedly because he wanted to write down a phone number.

A Knox County Sheriff's deputy's report claims Moncier may have assaulted a McDonald's employee in an ensuing struggle over the piece of paper. A report filed by a Knoxville Police officer lists Moncier as the potential victim of an assault, rather than being guilty of one himself.

For what it's worth, surveillance video from inside the restaurant bears out that Moncier was at the very least in rare form, barging up to the service counter, raising his arms several times and appearing to yell at the employees on the other side.

What seems indisputable from the video, as well as reports from all concerned, is that the drive-thru service at the McDonald's on that particular day was abysmally slow, and that Moncier, genetically hard-wired for proactive resistance to injustices both real and imagined, wasn't about to sit meekly in his silver Jaguar without giving a good account of himself.

"I didn't do anything wrong," Moncier insists. It's a familiar preamble, lodged at the beginning of nearly all of his most infamous courtroom stories.

"This particular time, I had paid out, and I'm sitting in my car for 35 minutes from the pay window to the pickup window," says Moncier, adding that McDonald's cheeseburgers are a regular Monday night treat for his son Nicholas, who at 27 is severely disabled.

"I was ready to go somewhere else, but I couldn't go anywhere else, because I was blocked in," he continues. "I finally went in to get my money back and get the customer-relations phone number, and no one would speak to me. I said, ‘If you don't give me my money back, I'll come back there and get it.'

"I picked up a piece of paper to write down the customer-service number and left. The next thing I know, the manager and another employee come out screaming and trying to grab the piece of paper. I'm in the car, holding the paper over the passenger's side as they are trying to reach in the car. At one point, the other employee grabbed my shoulder. So I said, ‘I'm leaving,' and I pulled around the block and called the police."

The result: nearly 10 patrol cars from two police agencies responded (eight of them from the Knox County Sheriff's Office, who came even though Moncier called Knoxville Police), Moncier was charged with assault by the KCSO (soon dropped), and was the subject of considerable negative attention on the front page of the next day's News Sentinel.

"I was on the front page, accused of being an assaulter and a madman," he says. "In retrospect, when I got my $4.11 back, I should have just moved on. It was the beginning of a bad week."

An especially bad week, because four days later, Moncier was jailed in Greene County when Greeneville Judge Ronnie Greer found him in criminal contempt of court after a long, contentious session in which Moncier took issue with Greer's questioning of his client.

"The judge instructed me to stand there and not say another word," Moncier remembers. "I asked ‘May I speak to my client?' and I went to jail. If I'm not supposed to say anything, I'm not sure what I'm doing there. Send me home, I guess."

Those sorts of misadventures have prompted many observers to call Moncier a troublemaker, a self-serving publicity hound and a pill and a gadfly and various things unprintable in a newspaper read by women, small children, and pets. They say he loves attention, and that his sometimes outrageous actions are calculated to reap it in spades.

But the truth is much less complicated; the truth is that Moncier loves to fight.

And most especially, he loves those conflicts that appear unwinnable. Those seemingly hopeless clashes with the immutable status quo that most of us just sigh and step away from, fecklessly consigned to our fate, Moncier engages with relish. As local defense attorney Don Bosch puts it, "If you have your head down and have to break through a brick wall, Herb's the man you want. I have always been amazed at his comfort level in combative situations."

Of late, Moncier's name has been ubiquitous in local news reports, often as the "David" in a seemingly unending series of David-and-Goliath courtroom epics, and most notably for his role as self-appointed people's champion in the decision that enforced term limits on Knox County officials as per a previously unrecognized Charter amendment from 1994. As an encore, Moncier was the attorney of record in September when a jury found that county commissioners violated open meetings law when they seemingly conspired behind closed doors before replacing term-limited commissioners by appointing relatives and cronies in their stead.

Needless to say, Moncier has plenty of enemies, though most of them are, at the moment, ill-disposed toward saying anything disparaging about their least favorite attorney on the record. "Perhaps they're afraid of getting sued," suggests Dwight Van de Vate, once the right-hand man of former Knox County Sheriff Tim Hutchison, arguably Moncier's number-one nemesis.

"Herb is a vindictive S.O.B.," says one political observer who prefers to remain nameless. "He portrays himself as a man of the people, but most of the things he does have an ulterior motive."

The truth lies somewhere between Moncier's own vision of himself as a self-styled Zorro of the courtroom, and his enemies' depiction of Fat Herbie, vengeful and self-interested enemy of decency and law-abiding public officials everywhere. It's not difficult to discern the truth about Moncier—read between the lines of his personal history, the personal history of a man who's never backed down from impossible odds, no matter the crux of the fight.

Moncier was the youngest of four children in an upper-middle-class Sequoyah Hills family; his father was a strict, austere man, a merchant and a farmer. His mother Frances was a kind-hearted, community-minded woman who helped found the Knoxville Teen Center, and was recognized around town by the nickname Mama Mon.

By his own telling, the turning point in his childhood came in 1957 when his older sister Marty was killed in a car accident. Moncier and Marty were close; he was only 11. "That pretty well changed our family," he says. "It was a very dysfunctional time for us."

Moncier's mother responded by growing ever more involved in her community outreach. Moncier and his brothers dealt with the loss less productively. By the time he entered Knoxville's Tyson High, Herbert Moncier was admittedly a bit of a troublemaker.

"I was very rebellious, and I caused some trouble," Moncier remembers. "I did not do well with rules. My hair was long, I slipped in some alcohol from time to time."

Most notably, perhaps in anticipation of his career as a professional burr in the side of the status quo: "I organized a lunchroom protest over the quality of the food."

His brother Ben, three years his senior, had likewise been a first-class instigator during his high school years at West, so Herbert's father took matters in hand and sent his youngest son away to Columbia Military Academy in Middle Tennessee. "My father believed I needed tighter and closer structure than Ben had had," he says. "And there, in military school, I continued to be rebellious. Lots of unshined shoes. Not saluting. Once again, I snuck in a little alcohol from time to time."

Yet he graduated, eventually, even ranking in the top five in his class in Berry Military academy in Georgia, where he finished after two years at Columbia. It was in military school that Moncier met his fiance, Rachel Hufstedler, whom he married in 1969. The couple would go on to have two sons, Adam and Nicholas, before Rachel's death by her own hand in 1980.

So why would an ex-military school hardcase gravitate towards law school? "That's a fascinating story," Moncier chuckles, remembering his college freshman year at the University of Tennessee at Martin (he would transfer to UT-Knoxville as a sophomore). During an orientation class at Martin, Moncier was offered a chance to enter the school's three and three program—"a blue-light special," he says, "sign me up!"—a course of study whereby students could enter law school in lieu of their fourth year of undergraduate work. But law school eventually became more than just a convenient selection in an orientation class; it became a battle of will in which Moncier tested his own mettle against the insatiable demands of an especially rigorous program of study.

"More than being interested in it, I was committed to it; it was what I was going to do, period," he remembers. "I thought it was an endurance contest, sitting there every single night and disciplining yourself for three to five hours, reading and briefing cases so you wouldn't be embarrassed when you were called on the next day. It was brutal. But there's something in my DNA that makes me seek out challenges."

Newly married to Rachel, Moncier took a position with a local law firm on finishing school, and settled down for a year of practice, until the United States Army came calling via the draft in 1971. Bypassing combat for the legal corps, he spent his first months prosecuting servicemen in general courts martial at Fort Meade, Md., then spent the remainder of his service as a defense attorney.

During the latter part of his time in the army, Moncier says he had a minor epiphany about serving as counsel for the defense. "It struck me there were two ways to do the job," he says. "One was be part of the army over here, do the best you could to defend the servicemen but don't ever cross the line where you're in opposition to the army. The other is you represent your client regardless of how the army likes you to do it, and I chose that path."

By Moncier's own account, he made plenty of waves at Fort Meade, especially through his defense of Robert Preston, a serviceman who commandeered a Huey helicopter and flew it up and down the Washington Maryland Parkway, buzzing the Nixon White House. Facing a slew of terrible charges, Preston watched as Moncier whittled away at the prosecution's case such that the verdict was reduced to nothing more than misappropriation of army property.

In another instance, a military judge who disliked Moncier's hyper-aggressive style of defending servicemen threatened to have him reassigned to Cambodia. "I remember how violated I felt by that, that a judge would do something that might get me killed because I'm not doing my job the way he wants me to. I made a promise to myself there that I would never let a judge threaten me again. And here I am today."

Moncier returned to Knoxville in 1974, took a position with his former law firm before accepting a more lucrative offer from the local district attorney's office, where he spent two years prosecuting major crimes.

But prosecutions were not Moncier's calling. In 1976, he left the district attorney's office—spurred by a quote from the book of Matthew, he says—and set up his own private practice, which at the time consisted of a desk, a phone and an answering machine in his garage.

It is impossible to understand Herbert Moncier, the man and the attorney, without understanding the tragic events that befell his personal life in 1980. That was the year that Rachel gave birth to the couple's second son, Nicholas, who was born under unfathomably difficult circumstances. At birth, Nick wasn't breathing; doctors revived him, but he was diagnosed with cerebral palsy soon thereafter. Other medical issues eventually came to light.

Rachel grew profoundly depressed, a depression that only seemed to worsen as the months wore on, and it was discovered that little Nicholas was allergic to her breast milk. One day, Moncier drove his wife out to stay with her parents. Hours later, he learned that his wife had shot herself, leaving him alone as the single father of two small sons, ages three years and five months, and one of them severely handicapped.

"I remember being utterly and absolutely lost, devastated," Moncier remembers. "Having a lovely wife one day, and her being dead the next. I can't even go back and realistically recreate the devastation that that was."

Moncier says the experience also led him to a new understanding of faith. Unsurprisingly, Moncier had come to rebel against the relatively strict religious upbringing of his family, devout members of Knoxville's First Christian Church.

But when brother Ben forced the grieving Herbert to go to the funeral home and view the body of his deceased wife, Moncier had another epiphany.

"I have a remembrance of looking in that casket and suddenly realizing Rachel was not in there," Moncier remembers. "What I had loved, warmth, discussion, love of the children, sharing our lives, kissing, sex, eating, all of those things we shared together, when I looked in that casket I knew they weren't there. So I got to thinking, how do I explain that? I came to the conclusion that the spirit was what was gone, and that the spirit is something that doesn't exist in a form of property or physics. And that's what faith is to me."

Moncier also worked through his grief by building up his practice. It was in the years following Rachel's death that his reputation as a courtroom troublemaker solidified, partly due to his exhaustive—and exhausting—take-no-prisoners courtroom method. Says longtime associate John Gill, now the special assistant to Knox County District Attorney Randy Nichols: "Herb thinks of every single conceivable theory and approach, and he works them. He's extremely smart. Of course, some of those theories aren't well-founded, and don't go over so well. But he fights to the bitter end."

Gill adds that Moncier's full-throttle approach doesn't always bode well for warm relations outside the courtroom. "Sometimes it's not easy with Herb, unless you agree with everything he's pushing, which isn't easy to do," Gill says. "If he doesn't agree with you, sometimes he takes it personally."

For his part, Moncier believes his reputation for courtroom shenanigans—mostly a bad rap, by his telling—really began with an early-'80s run-in with now-retired criminal court Judge George Balitsaris. After a protracted war over the disposition of a case in which Moncier says Balitsaris backed down from a plea agreement hashed out in the judge's own chambers, Moncier never saw the inside of Balitsaris' courtroom again.

"The prosecutors who couldn't get my cases before Balitsaris, they started a rumor that I was prohibited from having my cases before him," says Moncier. "Which was an absolute lie. I asked that all my cases be transferred out of his court, and he agreed. But that reputation, that I was chased out, has gone on for years."

But if any single case or courtroom incident were chosen to represent the whole of Moncier's long and often contentious career, it would have to be taken from his epic decade-plus-long defense of Thomas "Zoo Man" Huskey, a former Knoxville Zoo employee accused of a handful of murders and rapes—Tennessee's first documented serial killer.

"Everyone thought, ‘Let's appoint the best attorney in Knoxville and then put him to death,'" Moncier remembers. "But something went wrong on the way to the electric chair, and what went wrong was that Mr. Huskey was provided a real defense."

When Moncier accepted the case in 1993, he chose as his assistant counsel a green, young attorney by the name of Greg Isaacs—a name which now carries nearly as much weight as Moncier's in the fraternity of Knoxville defense lawyers.

Their defense of Huskey through multiple capital cases was epic, and included countless motions and interlocutory appeals—"truly monolithic in terms of work," says Isaacs—and a defense that held that Huskey suffered from multiple personality disorder. In the final analysis, Huskey avoided a death sentence, which going into the trial seemed a foregone conclusion.

"He drove everybody completely and utterly batshit crazy in that case," says one local attorney, on the condition of anonymity. "But sometimes that's what you have to do."

"Herb was ferocious," says Isaacs. "He worked and he believed and he uncovered. When Herb took me aside at the beginning of that trial, he told me, ‘We're going to save Tom's life.' And you could feel the passion in his voice."

True to form, Moncier made no friends among the judiciary with his handling of the Huskey case; through the early going, he kicked off the beginning of every session by asking presiding Judge Richard Baumgartner to recuse himself from the case.

"At the end of the day, Herb would always ask me, ‘Why does he like you better than me?'" Isaacs says. "And I'd look at him and say, ‘Because I don't ask him to leave every morning.'"

Of the millions of dollars spent by the state on the Huskey defense, Moncier claims he has thus far received only a little more than $150,000 in personal recompense, a sum he says is tantamount to about $10 per hour.

Moncier believes you can't discuss his recent moment of public triumph in the County Commission open-meetings trial without harkening back to 1999, and his legal actions on behalf of former County Commissioner Wanda Moody, actions that had as their target former longtime Knox County Sheriff Tim Hutchison.

"Wanda Moody, I believe, wanted the best for the people of Knox County," says Moncier. "She had a feeling that Knox County, regardless of whether officials thought it was a good thing or a bad thing, should operate within the requirements of the law."

It began with Moody's opposition to the sheriff's oversight of a proposed new $250 million-plus justice center, a grand hall that as envisioned would encompass a new jail, new sheriff's administrative offices, new courtrooms, and other justice related facilities. The justice center was never built, although the county did wind up with a new sheriff's office, a new detention facility, and a handful of new courtrooms.

It is Moncier's contention that Hutchison, with his storied political machine and his alleged de facto control of a supermajority of 13 County Commission seats, ran the operation as if it were his own personal construction project.

Hutchison was eventually convicted of criminal contempt of court, allegedly for withholding records that Moncier had subpoenaed in his pursuit of the case, an offense for which he was fined $300.

Was there a vendetta on the part of Moncier where Hutchison was concerned? Hutchison thought so, and said as much on blogs he published on the KCSO website. Former Hutchison protege Van de Vate notes, diplomatically, that "both [men] are strong and fairly opinionated individuals, firm in their convictions. I don't think it's particularly surprising they didn't mix well.

"But I do think that when someone is that single-minded and focused in their pursuit of a single public institution, it's not necessarily productive."

Observes Isaacs, in keeping with the Moncier M.O.: "I don't think it was a personal vendetta. It was just a vendetta. It was, ‘Here's someone doing something wrong, and I'm going to prove it.'"

Questions over the sheriff's actions in the justice center brouhaha eventually bled into questions over term limits—and most especially, whether they would apply to the sheriff himself—when a chancellor in Memphis upheld them in Shelby County in a case brought by two county commissioners in 2005. (As was the case in a handful of other counties, Knox County voters had overwhelmingly supported a Charter amendment establishing term limits back in 1994, but the issue was shelved when a state attorney general's opinion held the certification of the election to be procedurally flawed.)

After a labyrinthine series of lawsuits and counter-claims, Moncier finally joined in pressing the issue of term limits to the Tennessee Supreme Court, where justices held unanimously in 2006 that the '94 Charter amendment did indeed hold legal sway, forcing County Commission to hold appointments for 12 office holders.

That happened in the now-infamous Jan. 31 Commission session, in which standing commissioners selected new appointees that appeared to have been predetermined behind closed doors. To much of the voting public, the selection process was a travesty. To Moncier, it was a long-overdue dose of reality for an electorate that had languished too long in willful ignorance of its leadership's glad-handing method of governance.

"Jan. 31 was a joyous occasion for my people, because all of Knox County saw what had really been going on for years," he says. "Nothing happened that hadn't been going on before. All of a sudden, it just happened to be on television."

Eight months later, Moncier was the attorney of record representing nine Knox County citizens in the trial in Chancellor Daryl Fansler's court, wherein jurors held that 14 county commissioners had indeed been in violation of the open-meetings act by signing off on a secret letter, an agreement as to how they would make new appointments.

"What the jury did was essentially find Knox County guilty of what Wanda Moody had been saying back in 1999," Moncier says. "Those earlier lawsuits laid the groundwork for term limits and the open-meetings decision. People talk about the expense of those Moody cases; well, I, for one, think the county got its money's worth."

Isaacs speaks admiringly of his colleague in the wake of the term-limits war. "He's been preaching these things about county government for 10 years," Isaacs says. "Now, suddenly, maybe people think he's not so crazy."

Moncier's longtime friend, attorney Jim Bell labeled his September open-meetings case performance, "Vintage Herb—well-prepared, knowledgeable, with a tremendous knowledge of the case." Even Gill, a county employee, grants that throughout that closing stanza, "Herb was as focused as I've ever seen him."

Still others question his motives. "Herb makes a big deal out of ‘representing the people,'" notes the aforementioned political observer. "But I don't know that the people ever asked for his help."

And so the question remains: Is Herbert Moncier really the selfless man of the people he would have us believe? The barrister with the heart of gold who reveres Matthew and goes to church on Sunday and who single-handedly raised a handicapped son? And who almost as single-handedly has shown Knox Countians the long-standing folly of their leaders' ways?

Or is he the vengeful, vendetta-driven enemy of law and order, liberator of scourges like Tom Huskey? The publicity-mad hothead who can't brook a long line at a fast-food window without raising a ruckus?

The smart money still says he's a rebellious, military school renegade turned top-notch trial attorney, a scrappy lawyer with a knockout punch looking for another good fight.