I Am Going To Kill You

Last week Vanderbilt basketball coach Kevin Starlings made ESPN Sportscenter for a remark that Stallings wish he would never have yelled. Right after Vanderbilt beat Tennessee , a player made some gestures that could be construed as unsportsmanlike . Stallings yelled at the player after the game " I am going to kill you". It happens all the time . One might make that statement not meaning any harm. However , could Coach Stallings been arrested for that threat ?

Under Tennessee criminal law , one can be charged with a simple assault under three different theories. Tennessee Code Annotated 39-13-101 sets forth the following elements of simple assault.

39-13-101. Assault.


(a)  A person commits assault who:

     (1)  Intentionally, knowingly or recklessly causes bodily injury to another;

     (2)  Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or

     (3)  Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.

Under the facts of the Stallings incident , (2) could be applicable .The key wording is did Stallings intend or knowingly cause the player to fear imminent bodily injury. The answer to the inquiry is know. Stallings was upset and said some things he regrets. Let's look at whether threats could get one arrested. You ball up your fist and yell at someone that you are going to punch them in the nose.In this example there are some other facts that may cause the person to fear getting hit . Also , the threats can't be remote like a threat by text or phone. No one is in close proximity .


The big takeaway is be careful what you say and yes you can get arrested for making verbal threats in the right situation.

Tennessee's 12 Hour Hold In Domestic Violence Cases

Changes to Tennessee's !2 hour hold in domestic violence cases is set for committee review this afternoon . Current law requires that anyone arrested for a domestic violence charge must be held in custody for 12 hours before one could make a bail bond. A judge has discretion to waive the 12 hour hold . In light of one high profile case , the Tennessee State Legislature is pushing a bill to remove all discretion from judges and magistrates.

Domestic violence is the new crime du jour that is a political football . Just read State Senator Steven Dickerson op-ed piece in yesterday's Tennessean . In Senator Dickerson's article , he speaks of all the problems of the domestic violence problem. It is article with some facts but no solution except bashing the courts . Here is some critical facts to consider;

  • If Metro Nashville Police show up in response to a domestic violence call , someone is going to be arrested no matter what a police investigation reveals.
  • During the change in the domestic violence docket Public defender stated at a meeting that 70 % of the domestic violence cases were dismissed.
  • Some people might be innocent of the charges.

The legislature must trust the courts to use their discretion in setting bond and the conditions of the bond like waiving the 12 hour hold. There can be no cookie cutter approach There used to be a concept of the separation of powers between the branches of government . For example , a person may be arrested days or weeks after the event  is still subject to a 12 hold.

Representative William Lamberth is sponsoring the bill in the house. To his credit , he has sought out discussion on the issue. Here is my solution to the 12 hour hold . If the arrest is made within 6 hours of the event , put the 12 hour hold into effect. After that time , there has been some time for a cooling off period which the statute intended. Better yet trust the judges to use their discretion. The voters trusted them to do their job. Most magistrates will seldom remove the 12 hour but don't take away from the discretion of the courts when they are the ones that hear some facts of each and every case.


Here is my question to the members of the Tennessee State Legislature , would you be okay with your son or daughter being held in jail if they are not guilty of domestic violence.

You can check out the debate here via web cam.

New Tactics in Prosecuting Domestic Violence Cases

Earlier this week , I posted on the new changes in the docketing of domestic violence cases in Nashville Davidson County Tennessee. With new concepts in how to process domestic violence cases also comes new strategies in prosecuting the cases. It used to be if a witness did not appear in court after being subpoenaed then a criminal defense attorney would make a motion to dismiss based on the failure of the state to be able to prosecute . The government has gotten creative in trying to make a case where the witness does not show up to court.

First , the District Attorneys Office has hired two folks to go get witnesses and bring them to court if they do not appear. The second new tactic is the use of exceptions to the hearsay rule.

It is a bedrock principle of our criminal justice system is the right to confront and cross-examine witnesses that are called to testify against you. The Supreme Court of the United States affirmed that constitutional protection in Crawford v Washington . The bottom line of the court's holding was that the Confrontation Clause prohibits the admission of testimonial statements unless the defendant has an opportunity to cross-exam the witness. The court went on to allow some exceptions to the rule.

Will Allensworth gave a great presentation on the new ways the government is trying to introduce out of court statements. Here are the ways that the government is attempting to introduce these out of court statements.

  • Forfeiture by Wrongdoing. This is a exception to the hearsay rule and the rule of confrontation in which a person has engaged in wrongdoing to procure the unavailability of the declarant as a witness. An example of this is telling the witness not to come to court. So be careful what you say or text.
  • Excited Utterance Exception to the Hearsay Rule. Rule 803 (2) allows the admission of statements relating to a startling event made while the declarant was under the stress of excitement caused by the event.
  • The statement was not testimonial. The Tennessee Supreme Court laid out a list of nonexclusive factors on whether s statement is testimonial in the Franklin case.

 The take away  point for a person accused is not to create a record of telling someone not to show up in court . For the criminal defense lawyers , better know the rules of evidence and when is a statement testimonial.


Changes in Nashville's Domestic Violence Procedure

Last September , there began a shift in the procedure in how domestic violence cases are handled in Nashville Davidson County Tennessee. It has been almost six months  since some major changes have been instituted. It all started with a study from Mayor Karl Dean's office on how to combat domestic violence in Nashville . Here is a summary of the changes.

  • The government has created the Jean Crowe Advocacy Center . It is located on the first floor of the Ben West Building. The purpose of the center is to be a place for alleged victims of domestic violence to go rather than going to court. It is a belief among some criminal defense attorneys that they can no longer speak with witnesses in the hallway to learn more about the case.
  • The General Sessions Judges have created a daily domestic violence docket in Courtroom 4B in the A.A. Birch Building. You get a settlement date within days of your arrest and then a trial date within 30 days of your arrest.
  • The District Attorney's Office have created two positions that they basically go get witnesses if they do not appear in court.
  • There are plans for a special docket to handle jury trials for domestic violence cases . Again , the plan is to expedite these cases.
  • There are more assistant district attorneys staffed to handle these dockets.

Everyone agrees that the effects of domestic violence are detrimental to the person being abused and the children who witness the abuse. However , the police's hands are tied on some cases. It has been a long standing policy that if Metro police respond to a domestic violence call an arrest must be made. What about a fair investigation of what happened ? Does every case need to result in an arrest ? I know the police are fearful of what might happen if an arrest is not made . It is a debate that has gone on for a long time of balancing the safety of the citizens verses the rights of the accused.


Should You Watch Judge Judy Before You Go To Court ?

Last week , I had to buy a new cell phone. It took a long time at the store and they had a TV with a couch . So , I sat down for the wait. Judge Judy was on TV. I have to admit I don't watch the TV judge shows. I see enough of judges during the workday. . Most people that I represent in criminal cases have never been to a criminal court. As I was watching Judge Judy , I was thinking that there were some important lessons for people going to court for the first time to consider.

Here are a few takeaways you should consider when appearing in court ;

  • Don't make faces or and expressions when the other party or policeman are testifying. Judges hate this display of non verbal communication. Don't shake your head or make any expressions.
  • Don't speak when the judge is speaking. this is a cardinal rule you should follow. The judge will be polite and let you talk ,but when the judge is speaking be quiet  and wait your turn.
  • Don't speak when the other side is speaking.
  • Dress like you are going to church , a job interview ,or a funeral. Don't dress like you are going to a night club.
  • When the judge asks you a question , answer the question. Don't ramble .

One key to winning in the courtroom is how you conduct yourself. Common courtesy goes a long way. Putting your best foot forward is the first step towards success in the courtroom.

Why Corey Batey Had To Testify

One of the bedrock principles of our criminal justice system is the defendant does not have to testify in his defense. Corey Batey had to testify for two reasons

  1. Batey had to say the two magic words. I'm sorry.
  2. Batey had to advance the defense theory of his intoxication.

One of the elements of aggravated rape in Tennessee is that the government has to prove that the defendant knows or has reason to know that the victim is mentally defective ,mentally incapacitated or physically helpless. Batey testified that he was" drunk out of his mind ".

The rest of the closing arguments will start in minutes. We will soon see if the jury believes him.

Why Corey Batey Had To Testify

One of the bedrock principles of our criminal justice system is the defendant does not have to testify in his defense. Corey Batey had to testify for two reasons

  1. Batey had to say the two magic words. I'm sorry.
  2. Batey had to advance the defense theory of his intoxication.

One of the elements of aggravated rape in Tennessee is that the government has to prove that the defendant knows or has reason to know that the victim is mentally defective ,mentally incapacitated or physically helpless. Batey testified that he was" drunk out of his mind ".

The rest of the closing arguments will start in minutes. We will soon see if the jury believes him.

Changes to Nashville's Domestic Violence Docket

Davidson County District Attorney Glenn Funk recently proposed a change in the procedure for docketing misdemeanor domestic violence cases once the cases are bound over to the grand jury from general sessions court . Currently, misdemeanor domestic violence cases are assigned to the criminal courts based on the date of arrest . General Funk made the proposal to the circuit court judges and criminal court judges last week.

The plan is to assign all misdemeanor domestic violence cases to  Judge Amanda McClendon . The cases will be presented to the grand jury within 30 days of being bound over by the general sessions court judge. It would create a  rocket docket with domestic violence cases getting priority over the DUI cases Judge McClendon is currently assigned.

During his campaign for District Attorney , General Funk proposed cutting the time between when the case is bound over to the arraignment . His office is doing that by actively settling cases on information agreements. The question is whether the government should shorten the time an accused spends in jail to get his or her case back into court. For those charges with a crime in Nashville, Tn. that can't afford a bail bond , a person sits in jail until the cases is settled or tries. It could be months until their next court date. should the District Attorney's office focus on presenting serious felony cases to the grand jury first. The district Attorney's office controls when each case is presented to the grand jury. I took a informal poll today among a few fellow criminal defense lawyers on the turnaround time between general sessions court and ones first appearance in criminal court. The general consensus is the wait is four to five months. Granted , that time is in large part based on the office policy in the prior administration.

Who pays for the cost of housing the accused while waiting for trial or to settle their cases ? The citizens of Davidson County pay the cost . Jail fees are assessed as court costs once the case is concluded. It would be a interesting fact of the amount of jail fees that are actually collected.

What Can We Learn From The Vandy Trial ?

The Vandy trial is now well into its second week of testimony. It is a story of college students , alcohol ,  sexual assault and rape on a young student who was passed out. You look at the photo of the defendants and they look like young college kids. They were football players at a top ranked school . So what can we learn from this case.

Maybe we should use this trial to encourage a frank discussion with our children about sexual assault and alcohol. It is not morally acceptable to commit a sexual assault a person who was passed out. This behavior seems to be rampant from the Vandy case to the high school football players in Steubenville , Ohio. Maybe we should talk to our kids. Use this case as a teaching tool to show that this type of behavior cannot be tolerated. Would you rather have this talk or visit your child in prison.

Fair DUI Flyer and Tennessee DUI Roadblocks

The Fair DUI Flyer created quite a stir recently. A copy of the image is at the top of the post.  Recently , someone used the flyer and entered  a DUI checkpoint using the information in the flyer. The basic concept is that you put your driver's license in a bag and stick it on the outside of your window. When you roll up to the DUI check point , you don't roll your wind down so the police can't smell alcohol.  The video of this tactic went viral.Cute trick. I imagine they got the idea from a DUI checkpoint video from Murfreesboro, Tn which was videoed and the citizen did everything a lawyer would suggest.

The Fair DUI Flyer takes it a step further by putting the documents on the outside of the window. In theory , the police have access to the required documents therefore no interaction is required. How would the Fair DUI  Flyer play out under Tennessee law ?

Tennessee Code Annotated 55-50-351 requires a driver's license shall display the license on demand when operating a motor vehicle . It appears the Fair  DUI Flyer complies with Tennessee law depending on your definition of display.  Tennessee motorists also has to display proof of insurance and valid registration.. One could put the documents in a bag displaying the information. My guess is it would be dropped in the plastic baggie and the police office would ask you to get it out.

Here is my thought on the Fair DUI Flyer . I wouldn't try it out on the road .  It is cute for a video trick but in the real world putting your license taped to your window is asking for a trip to the jail. One takeaway is to have your registration and proof of insurance in a clear plastic envelope so you can easily give it to police. remember, don't photo copy your driver's license and put it in the bag too. It is a crime to display a photo copy of your license in Tennessee.