Questions About the Criminal Justice System We Can't Answer

The Marshall Project provides excellent commentary regarding the criminal justice system. A recent post was titled 13 Important Questions About  Criminal Justice We Can't Answer. Today's post focuses on one question. How many criminal cases are referred to prosecutors and how do they decide which to pursue.

I have never been a prosecutor so I know little of the internal workings of case evaluation in various district attorney's offices. My insight is solely from a criminal defense lawyer's perspective. Most cases are referred to the district attorney's office by law enforcement.

The most common method for case going to the district attorney's office for prosecution is an arrest warrant. After an arrest warrant is taken out, the case is docketed. An assistant district attorney will review the facts contained in the arrest warrant.The assistant district attorney (ADA) will then make a decision to prosecute the case, offer a plea bargain, or dismiss the case. I am not aware of any readily available data of the percentage of the cases they actually pursue.

In criminal cases in Nashville, Tennessee, the court may be reset to have police officers subpoenaed or private witnesses present. At the trial date, the ADA will interview any potential witnesses to further evaluate the case. if the case can't be resolved a preliminary hearing should be conducted by the defense lawyer. It is a great opportunity to demonstrate some potential weaknesses in the case.

The case is also reviewed by the district attorney during the grand jury process. Again, there is no raw data available if the case is screened and who decides on whether to present the case to the grand jury. On rare occasions, the local grand jury can find there is sufficient evidence and refuse to return an indictment. Interestingly, the prosecutors in Cheatham County will sometimes allow the defendant to testify at the grand jury proceeding.

In some cases, law enforcement can present the cases directly to the grand jury for a sealed indictment. It is most commonly used in sex crimes , rape of a child, and aggravated sexual battery. The district attorney's office reviews child sex cases with a team approach with the use of police, an ADA, and an investigator of the Department of Children's Services.

In answering the question posed by the post, there is insufficient data to answer the question. The main takeaway is the power of the local district attorney's Office in deciding which cases to pursue and which cases to drop.

Willaimson County Public defenders Take a Hiatus

I was in the Circuit Court for Williamson County , Tennessee recently. The court announced that the public defenders had requested not to be appointed to any new cases for a short period of time. The judges agreed and started to appoint local attorneys to represent indigent defendants. The District attorney objected and requested to file an objection. The Tennessean reported on the story this week.

Caseloads for the public defender's office is exploding across our country. Paying for indigent defense is not a popular subject for most of our citizens, but it is a constitutional requirement to provide effective representation. Can representation be effective when a criminal defense attorney does not have sufficient time to work on a case ? The complaint by the Williamson County, Tennessee Public Defenders is caseload volume.

The National Association of Criminal  Defense Lawyers ran an article in The Champion several months. It urged it was time to update the American Bar Association's ten principles  of a public defense delivery system. One of the principles is declaring the unavailability of the public defender. One of the guidelines set forth is  to advise the court when their workloads become excessive. The report does not require the public defender to file any motion with the court. I applaud the trial judges in Williamson County in issuing the memorandum regarding the excessive workload of public defenders.

In reviewing the ABA principles for public defense, there is no procedure for prosecution objections. Lawyers have an ethical duty to not take on more cases than they can provide competent legal services. It is even more critical when a person's fate is going to prison. In some discussions, some people say the assistant district attorneys have a bigger caseload than the public defenders. Let's take a look at that issue.

The district attorneys have a fleet of investigators called police officers or detectives. They have access to a crime laboratory with folks with specialized knowledge. Some Tennessee district attorney's offices have dedication victim witness coordinators whose job it is to help with the witnesses in the case. Most public defenders or court appointed lawyers do not have access to those resources. true, a public defender or appointed counsel can file a motion for funds for an expert or investigator but the purse strings are held by the Tennessee Administrative Office of the Courts.

Who knows better about how many cases the Public Defenders can ethically accept....the public defenders and the Judges or the District Attorney? it is not popular to support funding for indigent defendants. it takes courage to make tough decisions. the trial judges in Williamson County took a stand for ethical , effective , and high quality representation for those that simply can't afford a criminal defense lawyer.

I Want You To Step Outside of the Car and Do Some Tests

Last month, I posted an article on "Have you been drinking tonight."The next question that DUI police officers ask is I want you to step outside of the car and do some tests. Should a citizen under suspicion of drinking and driving agree to do the field sobriety tests ? Your answer should be a polite no thank you. Here are a few reasons why you should say no thank you.

  • The field sobriety tests are one of the main building blocks of a DUI prosecution.
  • The field sobriety tests are patently unfair. They are used on all types of folks from 18 to 80. Weight and physical problems are not factored into the equation.
  • The original data from the studies which lead to the creation of the field sobriety tests have never been peer reviewed.
  • Under Tennessee law, the field sobriety tests are not scientific tests.
  • Under Tennessee law, a defense attorney cannot cross examine an officer using their training materials.
  • it is simply based on the police officer's opinion.
  • The scoring is unfair. On the walk and turn test there are eight clues. if you have only two clues present, you fail.
  • The horizontal gaze and nystagmus  is inadmissible under current Tennessee law.
  • The Tennessee Supreme Court has ruled that even if you pass the field sobriety tests you can still be arrested for driving under the influence.

These are just the highlights of why you should saw no thank you when requested to do some field sobriety tests. as I was writing the post, I was reminded by a saying my father used to say. " I might cut my own throat but I am not going to supply the razor." Don't supply the razor


Nashville Judge Orders New Trial Based on Jury Selection

Last week, a Nashville juror raised a question to the judge. The fallout from that question led to the court ordering a new trial. The Tennessean reported one juror questioned why there were not any black jurors when the men accused of the crime were black. Once the juror voiced their concerns about the lack of diversity, the court dismissed the jurors for discussing the case before the case was concluded.

The critical issue is whether there was any Batson violations. In Batson v. Kentucky, The U.S. Supreme Court ruled that using peremptory challenges to exclude jurors based on race violates the Fourteenth Amendment of the U.S. Constitution. Here, the prosecutors used six peremptory challenges to exclude six potential jurors. five of which were black. The prosecutors expressed a race neutral reason why they excluded the black jurors. If the prosecutors can state a race neutral reason for the challenge, the challenge passes constitutional scrutiny. From the article, it appears there were race neutral reasons for the strikes. All the reasons that the prosecutors listed seems reasonable. Jury selection is not an exact science. It is sometimes based on instincts on whether someone can be fair. The court must accept the race neutral explanation so long as it is not itself discriminatory.

The Tennessee Supreme Court set the procedural rules in making and determining Batson challenges in this case.


Here is my practice tip. Write down your reasons during the jury selection process. It helps to have been thoughtful during the jury selection process. a criminal defense attorney should write down the challenges as well. You might be subject to a reverse Batson challenge. Always remember a short pencil is better than a long memory.

Attack on the Sequestration Rule in Tennessee

Shortly after the trial begins, one or both of the parties request the Rule. The sequestration rule is simply that the witnesses are excluded from the courtroom until it is their turn to testify. the sequestration rule is a bedrock principle of the criminal justice system to insure a fair trial. The sequestration rule was Incorporated by the Tennessee Rules of Evidence years ago. Here is Rule 615 of the Tennessee Rules of Evidence:

Rule 615: Exclusion of witnesses.


At the request of a party the court shall order witnesses, including rebuttal witnesses, excluded at trial or other adjudicatory hearing. In the court's discretion, the requested sequestration may be effective before voir dire, but in any event shall be effective before opening statements. The court shall order all persons not to disclose by any means to excluded witnesses any live trial testimony or exhibits created in the courtroom by a witness. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) a person designated by counsel for a party that is not a natural person, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause. This rule does not forbid testimony of a witness called at the rebuttal stage of a hearing if, in the court's discretion, counsel is genuinely surprised and demonstrates a need for rebuttal testimony from an unsequestered witness.

Tennessee's sequestration rule does allow some exceptions to the general rule of exclusion of the witnesses. One key exception is that a person can be present if  that person is essential to the preparation of the case. Normally experts are allowed to sit in the trial.

The Tennessee District Attorney's conference is seeking to dramatically change the question rule in Tennessee. The District Attorney's Conference is seeking to allow the chief law enforcement officer to sit in the trial. and listen to all the testimony before being called, It is similar to looking at all the answers on a test then being allowed to take the test.

The government's goal should be to ensure a fair playing field. Rule 615 of the Tennessee Rules of Evidence has been the law of the land for decades. It should not be tinkered with lightly. It makes the district Attorney's job easier and gives the prosecutor a distinct advantage.

Please let your voice be heard and contact a member of the Senate Judiciary Committee to protect one's right to a fair trial. Here is a link to the members of the committee if you wish to contact them.

Have You Had Anything to Drink Tonight ?

Almost  all Tennessee DUI investigations start out with that simple question once you have been stopped. Most folks don't know their rights. So they admit to a couple of drinks or wine with dinner. Here are some ideas on how to respond to a police officers questions about drinking.

  • Do not lie to the police officer. For example, do not deny drinking. A police officer might get a search warrant for your blood alcohol level. A positive blood alcohol test makes you look like a liar.
  • Do not admit to having a couple of beers or wine. The admission creates probable cause for a DUI investigation. A recent case before the Tennessee Court of Criminal Appeals held that an admission of drinking creates probable cause for an arrest even though the accused passed all the field sobriety tests.

You are damned if you admit to drinking and damned if you deny drinking. What should you do ?

Exercise your constitutional rights. Here is an idea of what to say.

Officer Your question makes me think I am under an investigation for driving under the influence of alcohol. I will not make any statements and assert my constitutional right to remain silent. I will not answer any questions other than my name and address.

You cannot talk your way out of a DUI arrest. You cant perform field sobriety tests and go home. You are going to be arrested one way or another. Protect yourself and remain silent

There was a saying during World War II. Loose lips sink ships. Don't sink your DUI case before it leaves the dock.


Tennessee Alcohol Beverage Commission Citations

The Tennessee Alcohol Beverage Commission regulates the sale of wine and liquor in Tennessee. It also has an enforcement division. The Tennessee Alcohol Beverage Commission (ABC) has over thirty investigators. Besides granting licenses, they also look for violations of the law. Underage drinking and the sale of alcohol to those that are already intoxicated are the primary focus of their investigations.

The ABC is given grant money from the Governors Highway Safety Office to conduct stings. A sting is usually accomplished by using someone under 21 to try to purchase a beer or a drink. An agent is in tow and often these stings are video recorded. If a violation occurs, a criminal citation or an arrest of the server or bartender will take place. Later, the ABC will issue a citation to appear before the ABC on the issue of a revocation of their ABC license. It may even include a referral to the local beer board. It is serious business to the owner of the bar or restaurant. A couple of citations may lead to a revocation of your ABC permit or your beer permit.

Once the ABC has learned of a violation, they must go back to the permit holder's business to conduct another sting pursuant to the grant. The bottom line is once you violate the law you begin a target for a follow up visit.

In Nashville, the criminal offense of selling alcohol to a minor can often times be handled successfully. The bigger issue is the Nashville Davidson County Beer Permit Board and the Tennessee Alcohol Beverage Commission. A business owner must be prepared to face these charges. Our office has handled both the criminal aspect and the civil side of the permit for some time. For more information, you can visit our website on Tennessee alcohol beverage law.

Greene's Fall From Councilman to Accused

Former Nashville Metro Councilman had a rapid fall. Loniel Greene won a recent election as a Metro Councilman. Greene later resigned to avoid any criminal charges but he was not so lucky. Greene was indicted last week for coercion of a witness in an on going domestic violence case.

Greene made some phone calls to his cousin while he was in the Nashville Metro jail. All jail phone calls are recorded. Both Greene and his cousin knew of this fact. Yet, Greene promised to "work on" the woman. Greene appeared in court on a bail bond source hearing. The Nashville criminal courts have adopted a procedure that requires a hearing to determine the source of the money for any bail bond set over $75,000.00. Mr. Greene admitted he lied at the source hearing. After the source hearing, assistant district attorneys combed over the jail house telephone calls. You can listen to the jailhouse calls here. They discovered Mr. Greene was lying at the source hearing which triggered his downfall.

A motion to revoke his cousin Tavares Buchanan bond was filed. A deal was cut. Mr. Greene would resign his post as councilman and he would testify against Mr. Buchanan. In exchange, Mr. Greene would get immunity. It did not go as planned.

With lighting speed, the Davidson County Grand Jury returned a true bill charging him with coercion of a witness.

39-16-507. Coercion of witness.


(a)  A person commits an offense who, by means of coercion, influences or attempts to influence a witness or prospective witness in an official proceeding with intent to influence the witness to:

     (1)  Testify falsely;

     (2)  Withhold any truthful testimony, truthful information, document or thing; or

     (3)  Elude legal process summoning the witness to testify or supply evidence, or to be absent from an official proceeding to which the witness has been legally summoned.

The lesson learned is never talk on a telephone where you know it is recorded.

An Effort to Decriminalize Some Marijuana Crimes

Tennessee State Legislator William Lamberth has proposed a bill in this year's legislative session to modify one aspect of Tennessee's marijuana laws.  Under current Tennessee law, a third conviction of simple possession of marijuana is a felony. Representative Lamberth's proposal would strike the increased punishment for possession of marijuana.

Sentencing reform needs to be addressed in Tennessee. You get two convictions for misdemeanor possession of marijuana. The next conviction is a felony. It is even more troublesome with the doctrine of constructive possession where one could be charged with possession of  marijuana simply by being around the drug. This change is long overdue and even comes with some cost savings.

The next step is to increase the amount of marijuana possessed to make it a felony. Possession of over one half ounce of marijuana is a felony. I would propose increasing that amount to at least one ounce. It is time for the legislature to examine the sentencing scheme in Tennessee. We simply cant afford to send everybody to jail for minor offenses. Fix problems rather than lock people away.

One Critical Aspect on Handling Repeat DUI Offenses

It saddens me the way some DUI cases are handled in the State of Tennessee. Some lawyers think these are easy cases. They take a client's money. No investigation is done. Then a plea of guilty as charged. A recent case illustrated this point.

The charge was a felony DUI. In Tennessee, it requires three prior DUI convictions. If convicted, a minimum jail sentence of 150 days and a loss of license for at least eight years. This individual's first lawyer wanted them to plea guilty as charged to the felony DUI. I took over the case. I reviewed the prior criminal record. One of the prior convictions was invalid and could not be used to enhance the punishment to a felony DUI. Just reviewing the record saved someone from a felony. Then it got worst.

On another charge, a plea was entered to two DUI seconds with a jail sentence. The prior charge was invalid in the like in the felony case. A person did a jail sentence without an investigation of the prior record. I wonder how many lawyers in Tennessee do not review the prior criminal convictions.

If your charged with a second, third, or felony DUI in Tennessee, you must get a copy of the prior convictions. The same holds true if you are an attorney handling these cases. Over the years of defending DUI cases, I have seen judgments not signed by the judge. One clerk's office in Alabama destroys the convictions after five years. On occasion, a waiver of counsel has not been signed. All of which could make a prior conviction invalid. It is critical to review the record before pleading guilty to any enhanced DUI.