Lessons From The Courtroom

I spent part of last week in the Maury County Courthouse in Columbia ,Tennessee. It was built around 1905 and is a reminder of old southern courthouses. It also reminds me of how I hate the modern criminal justice centers that are bland and devoid of any character. The new justice centers remind of a jail. Lessons from the courtroom are important. In this post , I will address one tip and one lesson learned.

I have tried cases all over Middle Tennessee. One tip I have learned is if the courthouse is more than thirty minutes away from Nashville stay in a hotel. I tried this first in a week long murder trial in Gallatin , Tennessee in 2013. No stress with traffic or possible wrecks. Another hour a day you can devote on the case instead of driving. No distractions from your life. The best thing is a total immersion into the case. So for my case in Columbia, an easy drive  after work.Last minute trial preparation. Up early for more case preparation and then a short trip to the courthouse where I was forty minutes early. I highly encourage this approach for trying cases away from home.

The lesson from the courtroom is request the Rule in every case. Rule 615 of the Tennessee Rules of Evidence is the rule that mandates witness sequestration if requested. Basically once the rule is invoked all witnesses must leave the courtroom. Further , no one can communicate what is going on in the trial. There are some exceptions. One exception is a party that is designated by counsel for a party that is not a natural person can remain in the courtroom. Normally in DUI trials , the district attorney asks the arresting officer to sit at counsel table.

The lesson is that f the prosecutor has a police officer at council table that officer must be the first witness to testify. It would be fundamentally unfair to have the main officer hear all the testimony of other witnesses and then let him clean up any problems. It happened in this weeks trial. I anticipated this issue might come up based on the opening statement. so I was ready to make the objection based on the Holding in Mothershed and Collins. However, I made a motion to exclude the arresting officer's testimony based on a violation of the Rule. After a lengthy argument, the court granted a mistrial rather than exclude the witnesses testimony.

The teaching point is always ask for the rule in all trials. Master the rules of evidence. Be alert and ready to make an objection.

Time to Abolish the Tennesseee Habitual Motor Vehicle Offender Laws

Is it time to abolish the habitual motor vehicle offender law in Tennessee. the habitual motor vehicle offender law was enacted to prevent people with qualifying  criminal convictions from driving. A petition to declare one a habitual motor vehicle offender based on the number of DUI convictions as well as other driving offenses such as driving on a revoked driver's license. Once you were declared a habitual motor vehicle offender, it was a Class E charge if you got caught driving. A Class E felony charge carries one to six years in jail.

Why should Tennessee abolish the habitual motor vehicle offender law ? The answer is easy. Require ignition interlock devices. Several years ago the Tennessee state Legislature passed one of their better laws allowing anyone with a revoked license to apply for a restricted driver's license with an ignition interlock device (IID). The benefit is twofold. First, people would be driving legally and with the IID. It would prevent more DUI arrests. It would also promote sober driving. Studies show the use of the IID have a lower recidivism rate than those that don't use the IID. Secondly, It would decrease incarceration rates and save those jail cells for those of convicted of crimes.

I would invite my friends at the state legislature to look into the issue. Would we rather ban someone from driving for three years in Tennessee when we know they are going to drive anyway or should we make the roads safer ? Give me a call. I would be happy to make some suggestions. Some progressive district attorneys are working with defense lawyers to solve the problem. It is time to revisit the habitual motor vehicle offender law.

Texas Police Search Vagina for Marijuana in Gas Station Parking Lot

In Harris County Texas, sheriff's deputies searched a woman's vagina recently. Radley Balko reported the story in the Washington Post. The deputies searched Charnesia Corley's  car for almost an hour then brought a female officer to the scene for a body cavity search. Ms. Corley refused. More backup officers were requested. Backup arrived and they grabbed her legs and spread them apart so the female officer could search her vagina.. No search warrant was obtained nor is it required under Texas law. Ms. Corley did not consent to the search. When I read Mr. Balko's post I was horrified. I am just glad that could not happen in Tennessee.

In order to conduct a body cavity search in Tennessee, one of two things must happen under Tennessee Code Annotated 40-7-121. First , police must apply for a search warrant to be able to conduct a body cavity search or a person can give consent to a body cavity search. One interesting aspect of T.C.A. 40-7-121 is that the consent must be in writing and contain certain language advising the person of their rights. Under Tennessee, consent to search usually does not have to be in writing.

Incredibly, a spokesman for the Harris County Sheriff's office stated  the officers conduct was appropriate. according to the statement police could strip search a suspect if they wanted. It seems to be a sad state of affairs in the Lone Star State. Thanks to Deandre Grant for alerting me to the story.

Texas Police Search Vagina for Marijuana in Gas Station Parking Lot

In Harris County Texas, sheriff's deputies searched a woman's vagina recently. Radley Balko reported the story in the Washington Post. The deputies searched Charnesia Corley's  car for almost an hour then brought a female officer to the scene for a body cavity search. Ms. Corley refused. More backup officers were requested. Backup arrived and they grabbed her legs and spread them apart so the female officer could search her vagina.. No search warrant was obtained nor is it required under Texas law. Ms. Corley did not consent to the search. When I read Mr. Balko's post I was horrified. I am just glad that could not happen in Tennessee.

In order to conduct a body cavity search in Tennessee, one of two things must happen under Tennessee Code Annotated 40-7-121. First , police must apply for a search warrant to be able to conduct a body cavity search or a person can give consent to a body cavity search. One interesting aspect of T.C.A. 40-7-121 is that the consent must be in writing and contain certain language advising the person of their rights. Under Tennessee, consent to search usually does not have to be in writing.

Incredibly, a spokesman for the Harris County Sheriff's office stated  the officers conduct was appropriate. according to the statement police could strip search a suspect if they wanted. It seems to be a sad state of affairs in the Lone Star State. Thanks to Deandre Grant for alerting me to the story.

The Explosion of Cell Phone Evidence

Two recent cases in the news confirms the role that cell phone evidence is playing in cases around the country. First , Tom Brady destroyed his cellphone in March of this year right after the folks investigating asked for the cell phone. Mr.Brady claimed it was his routine practice to destroy his old cell phone even though two of his old phones were still around.It appears there were a high amount of texts between Mr.Brady and equipment manager John Jastremski days after deflategate was discovered. Mr.Brady was lucky it was just a NFL investigation. Under Tennessee criminal law. Mr. Brady would be facing a felony tampering with evidence charge. The second case is an opinion for the 6th Circuit Court of the U.S. Court of Appeals. a man inadvertently  pocket dialed a person. The court held there was no expectation of privacy during an accidental cell phone call.

Folks use cell phones for a variety of purposes. texts messages come up in all types of cases from drug cases to domestic violence cases. If you put incriminating evidence on your cell phone , expect the police to get a search warrant for your phone.

Here is some tips;

  • Don't store anything on your phone you would not want your mother to see.
  • Password protect your phone.
  • Don't text message threats of violence.
  • Just because you delete the text , it is still there.

One last thing , just because Tom Brady destroyed his phone does not mean the evidence is gone. The chips might still be around. I think I am going back to a rotary phone.

The Sad and Tragic Case of Sandra Bland

Sandra Bland was laid to rest this past weekend . Ms. Bland's arrest and death has been widely reported in the media. Questions linger on why she was arrested and the circumstances leading to her death. Coming back from court her story was featured on the radio program On Point . CNN ran a  video on a citizen's rights during a traffic stop. What are a citizen's rights during a traffic stop in Tennessee ?

Once stopped for a traffic violation a citizen must display the following;

  • A driver's license.
  • Proof of vehicle registration.
  • Proof of automobile insurance.

Can the police order you out of your car ?

Under the U.S. Supreme Court case of Pennsylvania v. Mimms,  the court embraced the concept that a officer could order a citizen out of a car . The Tennessee Supreme Court in Donaldson ruled that a police officer could order a citizen out of their car during a traffic stop.

Can a Tennessee police officer arrest you for a traffic offense ?

The quick answer is yes. All state traffic citations are Class C misdemeanors . Class C misdemeanors are punishable by up to 30 days in jail. In reality , most police officers in Tennessee will issue a criminal citation in lieu of an arrest. Criminal cases may be dismissed if a police officer issued an arrest warrant instead of a criminal citation.

Here is the teaching point. Don't fight your case in the street. Police have an advantage on the street. No pesky criminal defense lawyers are present. No judges are present. The police have weapons, tasers, and handcuffs. police are always worried about their safety. Treat police officers with respect. Most of the police officers will treat you with respect if you do likewise.

Rest in peace Ms. Bland.

New California Law Allows Illegal Residents To Get License

 

After California enacted a new law earlier this year, illegal residents became eligible to obtain a driver's license. The California Department of Motor Vehicles reported over 397,000 drivers licenses were issued to illegal residents for the first six months of this year. In Tennessee , a illegal resident is prohibited from obtaining a Tennessee driver's license.

Tennessee needs to follow California's example. Thousands of illegal residents live and work in Tennessee. There exists a double standard. Businesses hire illegal residents to work. Yet, it is not acceptable to allow them to apply for a license. Take a visit to Court Room 1A in the A. A. Birch Building in Nashville where the criminal citations are handled.. You will see the courtroom flooded with folks. Their only crime is driving without a valid Tennessee license. Police officers issue criminal citations. Judges, public defenders , prosecutors , and translators work to process the cases. Resources wasted.

Supporters of the California law argue that allowing illegal residents to apply for a driver's license makes the roads safer. One has to pass a test and take a driving test. Now, folks drive without any testing. If one had a license , maybe the streets would be safer.

I know it is just wishful thinking, but it is time the Tennessee Legislature tackles this issue. I know it is unpopular with certain segments of the population. It is the right thing to do.

 

Continuing Legal Education for DUI Lawyers

Last week , I was returning from Chicago where I gave a presentation to the folks that attended the DUIDLA summer session. Here is a short listing of some of the  topics that were presented.

  • Cross-examination
  • Canadian Travel When One has A DUI Conviction
  • FAA Reporting and Pilot Medical Clearance Issues
  • Crime Lab Discovery
  • Blood Alcohol Defenses
  • Challenging Breath Test Results

These were just a sampling of the topics presented. The point is does it matter what continuing education courses (CLE) that your DUI lawyer takes. All lawyers in Tennessee are required to take 15 hours of CLE each year.  Some lawyers take what ever course is the cheapest. It does not make any difference what course they take. It could be divorce law , probate law or any other course. Another method of taking classes is to take any class in order to meet the deadline. I knew of one lawyer who took an Admiralty course just to comply with the deadline. Some lawyers take CLE courses strictly in their field of practice in order to keep abreast of the changes in their field.

Hiring the right DUI lawyer is an important decision. One of the questions you might ask is what course do you take to satisfy your CLE. Do you want a DUI lawyer that takes courses that keep them up to date on the new trends in DUI defense or do you want a lawyer who takes courses in some random area of the law. One thing is certain , the assistant district attorneys who are prosecuting DUI cases across Middle Tennessee are being trained in DUI prosecution. Maybe you should hire a well trained lawyer as well.

 

Books Law Students Should Read

I came across an article in the Washington  Post by law professor Michael Krauss. The article is simply a list of books to read before you enter law school. It might also cover practicing lawyers since I have only read two of the books on the list. Lawyers get trapped into how they think about a case. Mr. Krauss opines this list is an overview of the values and challenges of the legal profession. Here is the list. You can go to the link to get a summary of each book.

  1. Truman Capote." In Cold Blood."
  2. Brooke Goldstein and Aaron Eitan Meyer. "Lawfare:The War Against Free Speech."
  3. Harper Lee. "To Kill a Mockingbird."
  4. Karl N.Llewellyn , "The Bramble Bush."
  5. Herman Melville, "Billy Budd,Sailor."
  6. Publius ,"The Federalist Papers."
  7. Patrick J.Schiltz,"On Being a Happy , Healthy and Ethical Member of an Unhappy , .Unhealthy , and Unethical Profession
  8. B. F. Skinner , "Walden Two ."
  9. Barry Werth , "Damages."

 

Confession . I have only read two books on the list. I read Billy Budd my junior year at Castle Heights Military Academy . I finally got around to reading To Kill a Mockingbird on it's 50th anniversary .It looks like I might visit Amazon later today .

 

 

 

My Day at the Rocky Mountain Laboratory

I spend last week at a continuing legal education conference in Ft .Collins , Colorado. The conference was the brainchild of Wisconsin DUI lawyer Andrew Mishlove and sponsored by the National College of DUI Defense. The conference had two components . First , it taught some basic science skills on blood alcohol testing. Secondly , it taught trial skills on how to communicate the science during trial. During the training , I had the opportunity to visit the Rocky Mountain laboratory . The Rocky Mountain Laboratory is a working forensic laboratory in Ft. Collins. I thought I would share my observations from my visit.

The tour was broken down into five stages with instructors at each stage to explain what was going into each critical step in analyzing a blood alcohol sample.

  • Receiving the Blood Alcohol Sample.

The first step in the forensic toxicology lab is to properly document the sample when it arrives at the lab. A blood alcohol sample can be dropped off at the lab or mailed into the lab. The receiving clerk takes in the sample. The clerk must create a paper trail to maintain the chain of custody, assign the blood sample a unique lab number and takes steps to make sure the sample belongs to the right person. At the Rocky Mountain Lab , the receiving clerk makes a visual inspection of the sample to make sure the seal was properly in place and to ascertain if the blood had clotted.

  • Pipetting  

The next step is the blood must be pi petted into a vial for testing. A pipette is simply a tool to measure exact portions of a blood sample to be placed into a vial. Only a portion of the blood sample is used for testing.

  • Preparing the Sample

Once the sample is pi petted, it is ready to be prepared. You are probably asking yourself why does it need to be prepared ? All blood alcohol samples usually have propane added to the vial as a n internal standard. Also,  a salt solution is added.The sample was placed into ma numbered slot to make ascertain the lab tested the right sample.

  • Running the Sample.

After the sample is prepared , it is ready to be tested using a head space gas chromatography with flame ionization detection. The machine will test numerous samples. The first step is to place all the samples , controls , calibrators , and blanks onto a tray or carousel. The samples are then tested by the gas chromatography. The samples are reported using a computer software program. The machine does all the testing.

  • Maintenance.

The gas chromatography machines don't run forever without some maintenance .Before the sample is vaporized by the flame ionization, the sample is run though capillary columns. The capillary columns need to be clipped and replaced on a periodic basis.

This is just a brief overview of my day at the Rocky Mountain Laboratory  allowing some folks to visit the lab. For some reason , the Tennessee Bureau of Investigation does want to give me a tour. I would highly recommend this course for all DUI defense lawyers