IN THE CRIMINAL COURT FOR KNOX COUNTY, TENNESSEE DIVISION III STATE OF TENNESSEE, v. JAYSON M. BAILEY, Defendant. ) ) ) ) ) ) ) No. 92793 RESPONSE TO MOTION TO QUASH SUBPOENA DUCES TECUM Comes the Defendant, Jayson M. Bailey, by and through counsel, and hereby moves this Honorable Court for an Order denying the State's Motion to Quash Subpoena Duces Tecum, in support of which Mr. Bailey would show as follows: 1. That a hearing on Jayson Bailey's Motion for New Trial is scheduled to occur on January 5, 2012. 2. That in preparation for the above-referenced hearing, Jayson Bailey caused to be issued a subpoena duces tecum for Knox County Criminal Court Clerk Joy McCroskey to produce relevant portions of the court file in the matter of State v. Letalvis Darnell Cobbins, Lemaricus Davidson, George Thomas, and Vanessa Coleman, Knox County Criminal Court Docket No. 86216 (A)-(D). 3. That the records requested are public records as defined by the Tennessee Public Records Act. See Tenn. Code Ann. ? 10-7-101, et seq. 4. That there is no legal basis to quash a subpoena for public records and the State has cited none. 5. That the records requested are relevant to the issues raised in Jayson Bailey's Motion for New Trial in that these records constitute the primary documentary evidence of Judge Richard Baumgartner's misconduct during the period of the trial and sentencing in the instant case and go to the heart of the structural error and thirteenth juror issues raised in Mr. Bailey's motion. See Smith v. State, E2007-00719-SC-R11PD, 2011 WL 6318946 (Tenn. Dec. 19, 2011) ("Tennessee courts have on several occasions recognized the denial of the right to an impartial tribunal as a structural constitutional error--one that "compromise[s] the integrity of the judicial process itself" and therefore is "not amenable to harmless error review, and ... require[s] automatic reversal.") (citing State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn.2008)). 6. That quashing Mr. Bailey's subpoena duces tecum for these records would deny Mr. Bailey his rights to procedural and substantive due process pursuant to the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 8 of the Tennessee Constitution. WHEREFORE, Defendant Bailey respectfully requests that this Honorable Court enter an Order denying the State's Motion to Quash the Subpoena Duces Tecum issued to Knox County Criminal Court Clerk Joy McCroskey. RESPECTFULLY SUBMITTED this 3rd day of January, 2012. GREGORY P. ISAACS, BPR# 013282 ___________________________ ANDREA B. MOHR, BPR #028232 THE ISAACS LAW FIRM 618 South Gay Street, Suite 300 2 Post Office Box 2448 Knoxville, Tennessee 37901-2448 (865) 673-4953 gpi@isaacslawfirm.com andrea@isaacslawfirm.com CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing pleading has been served on counsel set forth below, by hand-delivery or by placing a true and correct copy of the same in the United States Mail with sufficient postage to carry the same to its destination. Randall Eugene Nichols ADA Charme Knight ADA Phil Morton Knox County District Attorney General 400 W. Main Avenue, Suite 168 Knoxville, Tennessee 37902 DATED this 2nd day of December, 2011. Gregory P. Isaacs 3