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Smith v. Board of Professional Responsibility of Supreme Court of Tennessee

Supreme Court of Tennessee, Jackson

June 26, 2018


          Session November 8, 2017

          Appeal from the Chancery Court for Shelby County No. CH-16-0528-I William B. Acree, Jr., Special Judge

         Drayton Beecher Smith, II ("Attorney") pled guilty in 2007 to federal charges of receipt and possession of images depicting child pornography and was sentenced to five years of imprisonment. In conjunction with these charges, Attorney consented to his disbarment, which was ordered in 2008. In August 2014, after being discharged from prison and while on probation, Attorney petitioned to be reinstated to the practice of law in Tennessee. The Board of Professional Responsibility ("BPR") opposed Attorney's petition, and a hearing panel was appointed ("the Panel"). After an evidentiary hearing, the Panel denied Attorney's petition. Attorney sought review in chancery court, and the chancery court reversed the Panel's decision and ordered Attorney reinstated. The BPR sought review in this Court. Initially, we hold that the chancery court had subject-matter jurisdiction of Attorney's petition in spite of the BPR's untimely filing of its application for costs. We further hold that the chancery court misapplied the applicable standard of review and thereby committed reversible error. Accordingly, we reverse the chancery court's ruling and reinstate the Panel's decision.

         Tenn. Sup. Ct. R. 9, § 33.1(d); Judgment of the Chancery Court Reversed; Decision of the Hearing Panel Reinstated

          A. Russell Willis, Brentwood, Tennessee, for the appellant, Board of Professional Responsibility.

          Lucian T. Pera and J. Bennett Fox, Jr., Memphis, Tennessee, for the appellee, Drayton Beecher Smith, II.

          Jeffrey S. Bivins, C.J., delivered the opinion of the Court, in which Cornelia A. Clark, Sharon G. Lee, Holly Kirby, and Roger A. Page, JJ., joined.



         Factual and Procedural Background

         Attorney originally was admitted to the practice of law in Tennessee in 1974 and established himself in the practice area of trusts and estates. As of 2007, Attorney had not been disciplined by the BPR. In November 2006, Attorney was arrested on a seven-count federal indictment related to the receipt and possession of child pornography, based on images discovered on Attorney's laptop computer. In June 2007, Attorney pled guilty in federal court to three of these counts. In conjunction with these charges, Attorney executed a Consent to Disbarment Affidavit in August 2007, and an Order of Disbarment was entered in May 2008. After serving a portion of his five-year sentence of imprisonment, on October 4, 2011, Attorney was transferred to a Memphis halfway house. Attorney was discharged on March 16, 2012, after completing his sentence of incarceration.

         Attorney's sentence included ten years of supervised probation following his release from imprisonment. The conditions and restrictions of Attorney's probation include: (1) answering truthfully all inquiries by his probation officer, (2) registering with the sexual offender registration agency for Tennessee, (3) participating in a specialized sex offender treatment program that may include the use of a polygraph, (4) refraining from direct or indirect contact with any child under eighteen (18) years of age, (5) not possessing any pornography, (6) not using sexually oriented telephone numbers or services, (7) participating in mental health treatment as directed by his probation officer, and (8) refraining from excessive use of alcohol. Additionally, Attorney's conditions of probation provide that he "shall not possess, or use, a computer with access to any 'online computer service' at any location (including employment) without prior approval of the Probation Officer."

         Attorney filed his petition for reinstatement on August 11, 2014. At the ensuing evidentiary hearing before the Panel, Attorney called several character witnesses, two of his treating physicians, the deputy director of the Tennessee Lawyers Assistance Program ("TLAP"), and a medical expert.[1] Attorney also testified on his own behalf. The BPR adduced a written report prepared in May 2013 by Dr. A. J. Reid Finlayson, the Medical Director of the Vanderbilt Comprehensive Assessment Program ("VCAP"), following Attorney's participation in an evaluation conducted through VCAP ("the VCAP Evaluation"). Attorney participated in the VCAP Evaluation at the suggestion of TLAP in conjunction with Attorney's effort to be reinstated.

          The conduct for which Attorney was prosecuted consisted of his downloading onto his computer between thirty and forty photographs of girls, between nine and fourteen years of age, appearing either nude or engaged in sex acts. There was no proof, however, that Attorney ever had engaged in sexual physical contact with a child. Following his incarceration, Attorney was diagnosed with pedophilia.

         Attorney testified about the conduct that resulted in his convictions:

At the time I was suffering from chronic clinical depression. I was having trouble sleeping. I was staying up late at night. I was working on researching an appeal for my brother, who was convicted of a felony in California. And I would get tired of research, so then I would go to play games, video games, on the computer, like Spades or Hearts with other people. Online live video games.
After that, if I got tired, I would go to look at other websites and then sometimes I would go to porn sites. I went to a couple of the porn sites, and there were things called pop-ups which said come to this site and see this, and one of them mentioned minors, and I was just curious to see what it was. It was curiosity that got me in trouble. I went there and looked at it, and I guess I downloaded-I did download a few images, not a whole lot, but enough to get me in trouble.
Some people have thousands and thousands and thousands. I think I had less than 40, but they were enough to get me in trouble, and I did download some of those images.

         Attorney added that he "just wanted to see what was going on, what people were doing" and that he was "just curious to see how wild and crazy it could be." Attorney acknowledged that he knew his conduct was wrong at the time and that he "shouldn't have done it." He explained that "at the time [he] thought it was a victimless crime" and that he "did not think [he] was hurting anybody." Since his arrest, he had come to understand through counseling the harm that his actions caused to the persons in the images.

         After his release from prison, Attorney participated in a specialized sex offender treatment program through Counseling Resources of America. The entire program consisted of four phases, all of which he had completed by the time of the hearing. Attorney stated that it took him approximately two and one-half years to complete the program. The first phase consisted of weekly meetings, with the latter phases requiring meetings every other week. Following this program, Attorney completed a ten-week pilot program involving cognitive behavior that was led by his probation officer.

         Attorney stated that he had not had any violations of his probation.

         On cross-examination, Attorney stated that he participated in the VCAP Evaluation "[t]o have professional people assess [him] to see if [he was] mentally and physically fit to practice law." Asked if he was truthful during his evaluation, Attorney responded, "[p]ainfully brutally truthful. They couldn't help me if I wasn't." Attorney confirmed that, as reflected in the VCAP Evaluation, he had used his computer after his release to alter adult comic strip figures in order to make them appear nude for self-gratification.[2] He explained, "I was having trouble adjusting. I was having trouble with my wife's health. I'm not allowed to have pornography. I was taking images on a scanner and changing them to erotic images to help me with my fantasy. I was not saving them. I was making those images for that moment and then erasing them." Attorney stated that he engaged in this behavior for "a couple of months" in late 2012 and/or early 2013 and attributed his conduct to stress. He added, "I stopped doing it because I realized-you talk about stop signs and triggers. I saw what was wrong, and I stopped it. But even after I talked to the people at Vanderbilt about it, I realized that that was what they call a slippery slope, like you don't want to go on doing something like that, so I did stop that, and I have not resumed that practice." Attorney stated that he had not disclosed this conduct to anyone before his VCAP Evaluation. He had never disclosed this use of his computer to produce possibly pornographic images[3] to his probation officer. Attorney explained, "I have not because I just-it was something that I self-remedied. It's not gone on. It's not a problem." Attorney also admitted that he had not disclosed this conduct to his counselor at Counseling Resources of America, explaining that he did not "because it was already passed. Once it was over, it was over."

         Attorney also admitted during cross-examination that, since his release from prison, he had engaged in fantasizing about underage females for self-gratification, conduct that he also reported during his VCAP Evaluation. Based in part on these fantasies, the VCAP Evaluation provides that Attorney

does have some factors that likely elevate his risk of sexual offending. In particular, he clearly has deviant sexual arousal to prepubescent females. Furthermore, he is actively engaging in fantasy and regularly experiencing arousal to sexual images and fantasy of girls, which is clearly not consistent with recommended treatment for sexual offenders[.]

         Attorney testified that he stopped this fantasizing "about six months after" he participated in the VCAP Evaluation. He stated that he no longer fantasized about young girls, adding that he had to take a polygraph every six months and had answered that question truthfully.

         Attorney stated that he had not told his character witnesses about the behavior reported in the VCAP Evaluation, explaining that the witnesses were his friends, not his doctors.

         On questioning by the Panel about the VCAP Evaluation, Attorney acknowledged that "[s]ome of [his] actions [since his release from prison] could be construed to violate [his] probation." Attorney emphasized that, long before the hearing, he had stopped engaging in both the fantasizing and the cartoon alterations. One of the Panel members expressed concern with Attorney's status as a sex offender and, if Attorney were reinstated, the impact of that status on the integrity of the bar. Attorney acknowledged that people were going to "hate [him] just because they know [he is] a sex offender."

         Attorney was evaluated again in May 2015 by Dr. Gene G. Abel, Medical Director for the Behavioral Medicine Institute of Atlanta. Dr. Abel is a psychiatrist specializing in the field of sexual misconduct. Dr. Abel testified that Attorney had disclosed to him his previous fantasies about underage females and his use of a computer to alter cartoon characters. Attorney told Dr. Abel that he had stopped this behavior. Dr. Abel explained that the cartoon-altering behavior was "an indirect measure of interest in children." Dr. Abel also explained that he did not expect persons in therapy for pedophilia to reveal all of their inappropriate thoughts or behavior immediately but that, if therapy were effective, the person would reveal more of "those things" over time as the therapeutic relationship evolved.

         Dr. Abel concluded that Attorney had made progress in his treatment since the VCAP Evaluation. In his written report, which was admitted into evidence, Dr. Abel supported Attorney's reinstatement, subject to a number of strict conditions including ongoing treatment and polygraphs.

         Dr. Jeffery Warren, Attorney's primary care physician, testified by deposition. Dr. Warren testified that he diagnosed Attorney with depression in December 1998, many years prior to Attorney's conviction. When Dr. Warren saw Attorney after his release from incarceration, Attorney "did not seem actively depressed at that point." Dr. Warren also "saw no evidence" of an alcohol problem since Attorney's release. In Dr. Warren's opinion, Attorney's current mental health indicated that he was fit to resume the practice of law. Dr. Warren also opined that Attorney "is an ethical man." Dr. Warren last saw Attorney in October 2014.

         Dr. Allen O. Battle, a psychologist, first saw Attorney in 1996 for a session of clinical hypnosis aimed at helping Attorney remember a specific event. Dr. Battle next saw Attorney in 1999 for acute stress related to matters involving Attorney's twin brother. Dr. Battle continued to see Attorney until 2002, by which point Attorney had improved. Attorney returned to Dr. Battle in 2005 due to the stress he was experiencing as a result of the criminal investigation against him related to the child pornography found on his computer.

         Dr. Battle was aware that Attorney was later convicted of possessing child pornography, which Dr. Battle understood to consist of photographs of children, some of them consisting of "nude single photos" and some of them depicting the subjects engaged in sexual activity.

         Dr. Battle saw Attorney in 2012 for "an anxiety disorder." Attorney improved over the course of his treatment. Dr. Battle also saw Attorney in January 2015 to evaluate his "present psychological function" in preparation for Attorney's quest to be reinstated. Dr. Battle testified that, in 2015, Attorney was handling the stresses in his life much better than he had previously.

         Attorney discussed with Dr. Battle the conduct that led to his conviction. In Dr. Battle's opinion, Attorney felt remorse for his conduct. Dr. Battle further testified that he had no reason to suspect that Attorney would re-offend. Dr. Battle elaborated: "[Attorney] has been burned so thoroughly by all of this that has happened to him over the last six or seven years that I don't think he would touch it with a barge pole."

         Dr. Battle had reviewed the VCAP Evaluation and described it as the "most comprehensive" evaluation he had ever read in his fifty-seven years of practice. Dr. Battle did not agree with all of the VCAP Evaluation's recommendations or conclusions.

         Dr. Battle opined that Attorney was fit to resume the practice of law. He also stated that he would not hesitate to recommend Attorney to friends or family.

         On cross-examination, Dr. Battle stated that Attorney disclosed to him Attorney's use of the computer to alter cartoon images. Dr. Battle also stated that he was concerned that Attorney had masturbated to imaginary images of children "because they are not socially acceptable libidinal objects." Dr. Battle also ...

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