Lessons From the Courtroom

Malcolm Gladwell wrote a great book titled Outliers. The book covered the careers of The Beatles , Bill Gates , and others. The premise of the book is that one does not become an expert until they do something over 10,000 hours. After 22 years of practicing criminal defense law, I still learn something new each week. Here are three lessons from the courtroom from Sumner County General Sessions Court last week;

  • File motions.

The charge was child abuse. One of the elements was that the neglect adversely affected the child's health and welfare. No proof was stated in the arrest affidavit. I filed a motion to dismiss based on a lack of evidence of any real harm. The motion caused the assistant district attorney to look more closely to the case. The case was retired for 90 days on condition of attending a parenting class.

  • Never agree to be interviewed by the police without a lawyer.

The Sixth Amendment of the U.S. Constitution sets forth one of the fundamental rights of speaking to a lawyer before being questioned by police. An interview was given. Police have extensive training on interrogations. It can lead to false confessions or deception to avoid any problems. Statements taken out of context lead to a arrest for theft. Case was prepared for trial. Case was later retired.

  • Be a sentencing advocate.

Family did not make a bail bond for a loved one. Let him stay in jail to teach a tough love lesson.  Screened in jail for recovery court. Bonded out. Recovery court recommended intensive outpatient treatment. Burglary case reduced to a misdemeanor. Felony and more jail avoided. Used the jail time he served and the treatment option to avoid a felony and a harsher sentence. Sometimes people are guilty. Be a sentencing advocate to help save a life.

Those were last week's lessons from the courtroom. I am thinking this might be a new category of the blog. To my fellow criminal defense lawyers, what are your lessons from the court room ?

 

 

 

Reforms Needed for Davidson County Grand Jury

The Tennessean has recently published two articles on some questionable practices of the Davidson County. TN. grand jury. A grand jury's main role is to determine if probable cause exists in order to return an indictment. The concerns were raised by the grand jurors themselves in their final report. One concern from my point of view is the list of speakers that gave a presentation.

  • District Attorney Glenn Funk gave a overview of the role of the district attorney in grand jury proceedings.
  • Members of the Child Sex Abuse unit including a nurse at Our Kids gave a presentation of on sex abuse victims.
  • Nashville DUI officer Brad Nave gave a presentation on DUI cases. Mr.Nave even talked about the 91% accuracy of the standardized field sobriety tests to determine impairment. At the next presentation , I hope he tells the grand jury about a case I had with him on August,1 where he stated the client failed the field sobriety testing yet had zeros across the board for alcohol and drugs.
  • Members of the gang unit, drug task force, and the warrant division as well as Chief Anderson gave presentations.

In the final report, the grand jury expressed concern on preserving independence and avoiding bias. It seems difficult in light of the numerous presentations given during the term of the grand jury. Here is an excerpt from the report.

"The grand jury should remain impartial and unbiased during its deliberations and the close relationship with police procedure and proceedings put that in jeopardy," the jurors wrote in their end-of-term report, filed this month.

One concern raised by the Tennessean was grand jury foreman Stan Fossick. Since 1993 Mr. Fossick has been appointed grand jury foreman in at least 42 grand juries. it might be time for some new blood in the job of grand jury foreman. My own personal complaint of Mr. Fossick is I requested a client of mine testify to tell his side of a domestic violence case. My request was refused even state law allows one to testify before the grand jury on a vote of its members. Recently, he told his story and the court found him not guilty of domestic violence. I will always wonder what the grand jury would have done if they had listened to his story. The report spoke of the one sided point of view from the state. It was certainly on sided in one case.

The Tennessean called for reforms of the Davidson County Grand jury Here are my suggestions.

  1. End the practice of allowing police officers to speak before the grand jury unless the grand jury on its own initiative requests to investigate some aspect of the criminal justice system.
  2. It might be a good time to let someone else take a turn as grand jury foreman.
  3. While not addressed by the report, it has been a long time practice of allowing others not involved in the case to testify from the grand jury by just reading the arrest report.

 

 

Want 30 Days Jail Credit ? Get a Vasectomy.

Nashville's News Chanel Five reported yesterday of one Tennessee judge's unusual method to reduce one's jail sentence. White County Tennessee General Sessions Judge Sam Benningfield entered a standing court order granting 30 days of jail credit to those serving jail sentences. The catch to getting the jail credit is to agree to have a vasectomy or the have a birth control device implanted.

It strikes me as an extreme abuse of judicial power. Judges in Tennessee determine the jail sentence if no plea bargain is entered into. The court holds the keys to the jail cell once a sentence is imposed. It puts the court in an unfair bargaining position. Everybody in jail wants out of jail. To force one to have themselves robbed of their ability to reproduce is a practice that should not be tolerated. To his credit, the local District Attorney General Bryant Dunaway agrees. Here is his statement from the report.

 

District Attorney Bryant Dunaway, who oversees prosecution of cases in White County is worried the program may be unethical and possibly illegal.

“It’s concerning to me, my office doesn’t support this order,” Dunaway said.

“It’s comprehensible that an 18-year-old gets this done, it can’t get reversed and then that impacts the rest of their life,” he added.

The American Civil Liberties Union also took a position.

"Offering a so-called 'choice' between jail time and coerced contraception or sterilization is unconstitutional. Such a choice violates the fundamental constitutional right to reproductive autonomy and bodily integrity by interfering with the intimate decision of whether and when to have a child, imposing an intrusive medical procedure on individuals who are not in a position to reject it. Judges play an important role in our community – overseeing individuals’ childbearing capacity should not be part of that role."

In Davidson County Tennessee, it is common to work out a probation violation case on the condition that the defendant will enter a drug or alcohol program and be released upon the condition that they complete the program. This is completely different than court sanctioned sterilization. While the court's actions may be well intended, it is simply wrong. No Tennessee law sanctions this type of conduct by the courts to reduce jail time.

I suggest we watch this story and see how it develops.

Tiger Woods Charged with Driving Under Presciption Drugs

I waited a few days before commenting on Tiger Woods recent arrest for driving under the influence of prescription drugs. The police recently released photos of the car and a audio tape from the arrest. I predict this trend of arrests while driving under the influence of prescription drugs will increase as the population ages.

Mr. Woods issues with his  back is well documented. It appears he uses prescription drugs to cope with his pain. The big question is whether his use of prescription drugs impaiedr his ability to operate a car.

Under Tennessee's driving under the influence laws, it is illegal to drive or be in control of a car while under the influence of a prescription drug that affects your central nervous system. Mr. Woods was taking Vicodin which does affect the central nervous system. Here is a link on how Vicodin works.

Here are a couple of takeaways.

  • There is no per se limit of the amount of prescription drugs that can be in your blood unlike alcohol.
  • Was the medication being used as prescribed ?
  • Were there warnings on the label ? I am most concerned with the warning labels. Due to my job, I take high blood pressure medicine. The warning indicates that I should not operate machinery when I first take the medication until I get used to it.
  • What were the doctor's warnings ?

 

 

The government must prove that the prescription medication impaired the driver's ability to safely operate a motor vehicle by depriving the driver the clearness of mind and control of oneself that the driver would otherwise possess. See T.C.A. 55-10-401(1). Defending driving under the influence of prescription medications requires some basic knowledge of pharmacokinetics and pharmacodynamics effects. If you need more information on defending driving under the influence of prescription medications please feel free to contact our office.

How to Stop the Evidence Dump

One of the common issues that happens to me shortly before a criminal trial is the evidence dump. The assistant district attorney starts working their case and discovers evidence that was known or should have been known. In some cases, new evidence is turned over to the defense days before trial. It happens all the time. In my first murder case, my theory was that the decedent committed suicide. On the Friday before the trial at 4:00 P.M. the prosecutors disclosed the presence of suicidal ideations. The court refused to continue the case so I could review the medical records.

 

How to prevent the evidence dump ? File a motion. Under Rule 12(D)4 of the Tennessee Rules of Criminal Procedure , the court can order to disclose what evidence it intends to introduce during the trial. I have put in the order they must disclose the list of evidence 90 days prior to trial. The reason for the disclosure is to litigate it's admissibility prior to trial. Just referencing what is provided in discovery is insufficient under State of Tennessee v. Giannini. I am now filing this motion when I file my request for discovery. all evidence should be disclosed in a timely fashion. The state must be held accountable. Here is the essence of the rule;

d) Notice by the State of the Intention to Use Evidence.

(1) At the State’s Discretion. At the arraignment or as soon afterward as practicable, the state may notify the defendant of its intent to use specified evidence at trial in order to afford the defendant an opportunity to object before trial under Rule 12(b)(2)(C).

(2) At the Defendant’s Request. At the arraignment or as soon afterward as practicable, in order to afford an opportunity to move to suppress evidence the defendant may request notice of the state's intent to use (in its evidence in chief at trial) any evidence that the defendant may be entitled to discover under Rule 16, subject to any relevant limitations prescribed in Rule 16

I am putting a sample motion on my website www.RobMcKinneyLaw.com in the next few days.

Major Issues in Nashville's Criminal Justice System

Last night, I attended a panel discussion on criminal justice issues in Nashville, TN. The panel was hosted by the Davidson County Democratic Party. Judge Steve Dozier, District Attorney Glenn Funk, Sheriff Daron Hall, and Davidson County Juvenile Court Magistrate Carlton Lewis were a few of the panelists. Here is a few of the most pressing issues that were discussed.

  • Gun Violence and Youth

Everyday the news reports some episode of youths involved in gun violence. Is there a solution to the problem ? The Tennessee Legislature must accept some of the responsibility in the rise of gun violence. Every year the laws are modified to allow firearms in more places. There is no quick fix to stem the tide of gun violence according to the panelists. It is easier to obtain firearms. A general consensus is that all those under 30 have some type of firearm. Even those under 18 have firearms.

One proposal advocated by General Funk is to speed up the prosecution of felons possessing weapons. In the past, a firearm prosecution might be deferred to determine whether the Feds would take over the prosecution. Here is my proposal. Stop the source. Maybe we should crackdown on the sellers. Do an underage stings to see if a gun dealer will sell to a minor.

  • Bail Bond Reform

Bail bond reform should be addressed. Why ? Our current bail bond system is just another form of punishment imposed on those less fortunate. One problem preventing bail bond reform is the private bail bond system is firmly entrenched with supporters in the state legislature.

What's the solution ?

Sheriff Hall spoke on expanding the scope of pretrial release. Pretrial release is a program run by the Davidson County to release citizens on their own recognizance. A fee of $35.00 is paid and they have to call in once a week. I would urge the pretrial release program to take all misdemeanor cases and Class e felony cases where the citizen lives in Middle Tennessee. General Funk discussed a proposal where bonds would be reviewed in certain cases where a person might be released without making bond.. My big complaint is the excessive  amount of the bail bond and the source hearing for nondrug offenses.

  • The Opioid Crisis.

The General Sessions Courts and the Criminal Courts in Davidson County have embraced drug treatment. Judge Norman is a pioneer in the creation of drug courts. The opioid epidemic is more problematic. While I was waiting for my hearing at the Tennessee Board of Nursing, one doctor testified it took at least 12 months to rewire the brain from opioid addiction. There is a glaring need for a dedicated half way house for those struggling with opioid addiction. One measure that needs to be reviewed is how courts deal with probation violations on a failed drug screen. There needs to be more alternatives rather than jail.

 

Nashville is facing problems in our criminal justice system. I am proud of our leaders for appearing at a public forum for a frank discussion of these very important issues.

Major Issues in Nashville's Criminal Justice System

Last night, I attended a panel discussion on criminal justice issues in Nashville, TN. The panel was hosted by the Davidson County Democratic Party. Judge Steve Dozier, District Attorney Glenn Funk, Sheriff Daron Hall, and Davidson County Juvenile Court Magistrate Carlton Lewis were a few of the panelists. Here is a few of the most pressing issues that were discussed.

  • Gun Violence and Youth

Everyday the news reports some episode of youths involved in gun violence. Is there a solution to the problem ? The Tennessee Legislature must accept some of the responsibility in the rise of gun violence. Every year the laws are modified to allow firearms in more places. There is no quick fix to stem the tide of gun violence according to the panelists. It is easier to obtain firearms. A general consensus is that all those under 30 have some type of firearm. Even those under 18 have firearms.

One proposal advocated by General Funk is to speed up the prosecution of felons possessing weapons. In the past, a firearm prosecution might be deferred to determine whether the Feds would take over the prosecution. Here is my proposal. Stop the source. Maybe we should crackdown on the sellers. Do an underage stings to see if a gun dealer will sell to a minor.

  • Bail Bond Reform

Bail bond reform should be addressed. Why ? Our current bail bond system is just another form of punishment imposed on those less fortunate. One problem preventing bail bond reform is the private bail bond system is firmly entrenched with supporters in the state legislature.

What's the solution ?

Sheriff Hall spoke on expanding the scope of pretrial release. Pretrial release is a program run by the Davidson County to release citizens on their own recognizance. A fee of $35.00 is paid and they have to call in once a week. I would urge the pretrial release program to take all misdemeanor cases and Class e felony cases where the citizen lives in Middle Tennessee. General Funk discussed a proposal where bonds would be reviewed in certain cases where a person might be released without making bond.. My big complaint is the excessive  amount of the bail bond and the source hearing for nondrug offenses.

  • The Opioid Crisis.

The General Sessions Courts and the Criminal Courts in Davidson County have embraced drug treatment. Judge Norman is a pioneer in the creation of drug courts. The opioid epidemic is more problematic. While I was waiting for my hearing at the Tennessee Board of Nursing, one doctor testified it took at least 12 months to rewire the brain from opioid addiction. There is a glaring need for a dedicated half way house for those struggling with opioid addiction. One measure that needs to be reviewed is how courts deal with probation violations on a failed drug screen. There needs to be more alternatives rather than jail.

 

Nashville is facing problems in our criminal justice system. I am proud of our leaders for appearing at a public forum for a frank discussion of these very important issues.

Tennessee Legislature Set To Punish Illegal Aliens Harsher

The Tennessee Legislature passed a new sentencing bill in the last minutes of the legislative session. The proposed new law would establish a new enhancement factor for defendants who are aliens illegally or unlawfully in this country and who have previously been deported for a criminal offense. If the sentence cannot be agreed to by the district attorney and the defense attorney, the trial court will conduct a sentencing hearing to determine the manner and length of the sentence. One of the considerations is enhancements factors. The complete list of sentencing factors can be found here. The new law places an unfair burden on the judges of this state.

The Tennessean has reported  that similar types of laws have been declared unconstitutional. From a common sense perspective the law is a waste of taxpayer money solely in an attempt to make political capital at taxpayer expense. Here is a real life example. A person in this category once arrested would have a ICE hold on them. Meaning that once they got out of jail, they would be deported because they were once deported. Also, the Federal government could prosecute for illegal reentry. Illegal reentry has a maximum punishment up to 20 years.

Now, the Legislature wants to allow Tennessee judges to order the defendant to serve more time in Tennessee prisons before they are deported or prosecuted in the Federal courts. Guess who foots the bill ? Tennessee taxpayers. It is expensive to house inmates.. The bill's fiscal note was for $500,000.00. It can't possibly be this low of an amount.

The Tennessee Legislature passed a bill knowing it may be declared unconstitutional. Additional it costs Tennessee taxpayers. It seems it is okay to fight a gas tax to fix roads but it is fine to spend money to keep people in jail unnecessarily.

 

The bill awaits the Governor's signature.

Can a Judge Rect a Plea Bargain Agreement ?

Plea bargains are how criminal cases are resolved today. Jed Rakoff wrote an article a few years ago on why innocent people plead guilty. Some statistics indicate that in 2013 97 % of all federal criminal cases were settled by a plea bargain agreement, In his article Mr. Rakoff discusses the evolution of the plea bargain agreement in resolving criminal cases. today's post focuses on what happens if a judge does not accept a plea bargain agreement.

Last week, a Williamson County, Tennessee judge he announced he would no longer be accepting plea bargain agreements once the case was set for a jury trial. First, no criminal judge in Tennessee is bound to accept every plea bargain agreement. Under Rule 11 (c)(3)(A) of the Tennessee Rules of Criminal Procedure a trial court has the authority gives the trial court the authority to accept to accept or reject a plea agreement. In the Williamson County example, the court could be forcing the defendant to plea guilty as charged. However, The Court of Criminal  Appeals has held there was no abuse in discretion to reject a plea bargain agreement that came in after the plea deadline. See State v. Murphy. Here is a link to review the case.

If the court does reject the plea agreement, the court must comply with Rule 11(c)(5) of the Tennessee Rules of Criminal Procedure in advising the defendant of certain ramifications of the court's rejection of the plea.

Next week more on plea bargains.

A Bad Proposal In Tennessee's DUI Law

Driving under the influence (DUI) laws are a political football in Tennessee. Every session some state legislator tries to be the driving force to enact new DUI laws. Bills are drafted and proposed without any rhyme or reason. The bad DUI bill of this  session prohibits those of a DUI felony conviction from obtaining a restricted driver's license in Tennessee.

A person can be convicted of a felony DUI if it is their fourth DUI conviction. Several years ago, the Tennessee State Legislature passed a bill allowing those with multiple DUI convictions including those convicted of a felony DUI to be able to get a restricted driver's  license. The comment in the bill's passage state it was for the public's safety. It had a major catch. One had to install an ignition interlock device on one's vehicle for the entire length of the suspension.

A DUI felony conviction carries an eight year loss of driver's license. So a person had to install the ignition interlock for eight years. All lawmakers recognized that folks maybe driving without a license. To protect the public they put forth the requirement of the ignition interlock device had to be installed in order to get the license. From my conversations with prosecutors, the ignition interlock device reduces the recidivism rate of repeat offenders. one gets into the habit of monitoring their alcohol use. The car is unable to start with a blood alcohol concentration of .02 or higher with periodic testing while the vehicle in motion. 

Passage of this bill is a threat to public safety and an increase in spending. I predict folks will be driving without a license or ignition interlock devices.. who is at risk ? Secondly, more trials will take place. Why not take a chance at trial if you have nothing to lose. Tennessee Legislators need to take a hard look at this bill.