Is It Mandatory To Have Nine U.S.Supreme Court Justices ?

Just the other day someone asked me if the U.S. Constitution requires nine Supreme Court Justices. I did not know the answer so I looked it up. The short answer is the U.S. Constitution does not state the precise number of justices. The constitution gave Congress the power to decide the number of justice. Since The Judiciary Act of 1869, the number has been set at nine with no change. Is the Senate violating the Judiciary Act of 1869 by not acting on the vacancy created by Justice Scalia's passing ? Is there a time limit or can the senate refuse to act on the vacancy ? I guess I will read the act in the next few days.

DUI, Ignition Interlock, and The State Legislature

An ignition interlock is required to obtain a restricted driver's license if you have been convicted of a DUI charge in Tennessee. In the initial implementation of the ignition interlock device, I was in favor of it's use. It allowed those with multiple DUI convictions to get a restricted license rather than drive under the radar. It also removed the geographical and time restrictions of driving. It also encouraged those who submit to the test to be more aware of their drinking habits.

 

As of July 2016, the use of the ignition interlock has amped up. In part due to the work of the industry and the Tennessee State Legislature.

Three big changes happened. First. you must have an ignition interlock installed even if you elect not to get a restricted driver's license. Some folks who live in downtown Nashville may use alternative transportation during the one year suspension. Now, they will have to install an ignition interlock device(IID) when then get their regular license. Secondly, one has to have 120 days of negative tests before the IID device can be removed from their car. One positive test starts the clock back to day one. It is possible you could have the device on your car. I think the IID folks want to keep a IID on your car for as long as possible at $90.00 per month. Finally, one was allowed to drive a company owned vehicle without an interlock device if the company knew of his conviction. Now folks lose their jobs because they can't drive the parts truck or the company van.

Who monitors the IID ? The provider who is making $90.00 a month. How do you double check or contest their work ? Who knows ? You get bogged down by the bureaucracy of the Tennessee Department of Safety. Take a look at Tennessee Code annotated 55-10-425.Here is a link to the new statute. I wonder who drafted it.

Maybe it is too much of a good thing.

Tennessee Sex Offenders and Halloween

It may be Halloween , but the Tennessee Department of Corrections will be conducting Operation Blackout on those on the Tennessee Sex Offender Registry. It has been recently reported about the increased scrutiny that Tennessee Sex Offenders will be facing on  Halloween. For example,  here is a partial list of prohibited activities;

  • No decorations may be displayed. Not even a pumpkin is allowed.
  • A curfew from 6:00 P.M. to 6:00 A.M.
  • No attendance at any haunted houses, corn mazes or other Halloween events.
  • No porch lights are allowed and the door cannot be answered.

A violation of these rules could result in a violation of Tennessee's sex offender laws and land you in jail. The legal issue is whether these severe rules related to preventing sex abuse cases. It appears there is always some relationship between a sex offender and the victim. Family, social or school relationships are the most common. Civil libertarians are concerned about the loss of civil liberties. In Delaware, a sex offender must post a sign that tells trick or treaters that no candy is here. Sex offender laws have their place but are we driving those on the Tennessee Sex Offenders underground.

 

Tennessee Sex Offenders and Halloween

It may be Halloween , but the Tennessee Department of Corrections will be conducting Operation Blackout on those on the Tennessee Sex Offender Registry. It has been recently reported about the increased scrutiny that Tennessee Sex Offenders will be facing on  Halloween. For example,  here is a partial list of prohibited activities;

  • No decorations may be displayed. Not even a pumpkin is allowed.
  • A curfew from 6:00 P.M. to 6:00 A.M.
  • No attendance at any haunted houses, corn mazes or other Halloween events.
  • No porch lights are allowed and the door cannot be answered.

A violation of these rules could result in a violation of Tennessee's sex offender laws and land you in jail. The legal issue is whether these severe rules related to preventing sex abuse cases. It appears there is always some relationship between a sex offender and the victim. Family, social or school relationships are the most common. Civil libertarians are concerned about the loss of civil liberties. In Delaware, a sex offender must post a sign that tells trick or treaters that no candy is here. Sex offender laws have their place but are we driving those on the Tennessee Sex Offenders underground.

 

Is Unwanted Groping a Sex Crime in Tennessee ?

 

One of the 2016 presidential candidates has been in the news regarding allegations of groping women and sexual misconduct. Under Tennessee sex crimes laws, is it unlawful to grope or kiss a woman without their permission ?

The American Bar Association published an article on the topic. It caused me to think whether groping would be illegal in Tennessee. First, lets discuss unwanted kissing. Unwanted kissing is not a sex crime under Tennessee law. However, it could be considered a simple assault. Here is the legal definition of simple assault in Tennessee

 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.

Unwanted kissing could be considered provocative conduct.

 

Let's turn to whether unwanted groping is a sex crime. From reading Tennessee's law on sexual battery it seems to fit. Here is the definition of sexual battery in Tennessee.

39-13-505. Sexual battery.

 

(a)  Sexual battery is unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the following circumstances:

     (1)  Force or coercion is used to accomplish the act;

     (2)  The sexual contact is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the contact that the victim did not consent;

     (3)  The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or

     (4)  The sexual contact is accomplished by fraud. 

Next we have to look at the key definitions of the statute.

39-13-501. Definitions.

 

As used in §§ 39-13-501 39-13-511, except as specifically provided in § 39-13-505, unless the context otherwise requires:

     (1)  “Coercion” means threat of kidnapping, extortion, force or violence to be performed immediately or in the future or the use of parental, custodial, or official authority over a child less than fifteen (15) years of age;

     (2)  “Intimate parts” includes the primary genital area, groin, inner thigh, buttock or breast of a human being;

     (3)  “Mentally defective” means that a person suffers from a mental disease or defect which renders that person temporarily or permanently incapable of appraising the nature of the person's conduct;

     (4)  “Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling the person's conduct due to the influence of a narcotic, anesthetic or other substance administered to that person without the person's consent, or due to any other act committed upon that person without the person's consent;

     (5)  “Physically helpless” means that a person is unconscious, asleep or for any other reason physically or verbally unable to communicate unwillingness to do an act;

     (6)  “Sexual contact” includes the intentional touching of the victim's, the defendant's, or any other person's intimate parts, or the intentional touching of the clothing covering the immediate area of the victim's, the defendant's, or any other person's intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification;

     (7)  “Sexual penetration” means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of the victim's, the defendant's, or any other person's body, but emission of semen is not required; and

     (8)  “Victim” means the person alleged to have been subjected to criminal sexual conduct and includes the spouse of the defendant.

 

 

It appears to be clear that unwanted groping is a crime under Tennessee law. One key thing is the context of the contact. In a dating relationship, one may be under the impression they have consent while the other did not feel that way. It may be a slippery slope in future cases in what is consent. Can it be implied based on the circumstances ? That is a question for another day.

What Should You Call Your Client ?

Words are powerful tools. Most district attorneys know the power of words. Take a minute to listen to some of the words they use. Victim, defendant, indictment are just a small example of these powerful words. It begs the question of what should a criminal defense lawyer call his client ?

Recently, I was watching a young lawyer conduct a preliminary hearing. He always referred to his client. No other word was used. First, I must commend him for having a preliminary hearing in the first place. Is there a better word to use than client ?

Take a page out of district attorney's playbook. Most district attorneys refer to the person charged with a crime as the defendant. The defendant must defend. A defendant cannot rely on his or her constitutional presumption of innocence. Using the word defendant dehumanizes the person on trial. Most trial courts follow suit. How does the defendant plead is one question that is asked.

Instead of using the word client or defendant, call them by their god given name. Call them John or Ms. Jones. Humanize the person. Give them a name. Don't let them be reduced to the sterile and non feeling word like client or worse the defendant.Judges and jurors need to connect to John Jones. Client is just another word for the defendant. Just look at the power of the  word victim. It elevates Jessica Smith to a preferred status. In the domestic violence courts, I routinely hear the court referring to the victim or the district attorneys refer to my victim.

My suggestion is to use your client's name every time possible. Use it during opening, voir dire, and any chance you get. Warning be aware of any local rules that prohibit an attorney from calling a witness by their first name.

Here is one last idea. Start compiling a list of danger words. Professor Sunwolf wrote an excellent book on Jury Dynamics. It is worth reading. professor Sunwolf talks about angel words and devil words. Use angel words. Avoid devil words like client and defendant.

 

Rasing Bail Bonds To Keep The Poor In Jail

The Chattanooga Free Times reported on Hamilton County General Sessions Judges raising bail bonds on an those accused of a crime. It seems one of the General Sessions Judges raises a bail bond more than a one-third of the time.

First, we need to know the basics.

  • Once someone is arrested, a bail bond is set by a magistrate. A bail bond is set on a monetary amount to ensure an accused will appear in court for their court appearances and protect the safety of the public.
  • A person can pay the amount of bail bond into the clerk of the court or hire a professional bail bond's man or women, The court is guided by factors in setting the bond set by the state legislature. Here is a link to a video on the subject.
  • In the Chattanooga cases, it appears the courts are routinely raising a bail bond if the accused has a preliminary hearing.
  • A preliminary hearing is one of the most basic building blocks in preparing a effective defense in a criminal case.

Here are a couple of statements from the article.

"Frequently, when we're at the end of a preliminary hearing, I'll ask the prosecutor, 'Is there a problem with the bond set to go to the grand jury?'" said General Sessions Court Judge Gary Starnes.

This is a sign to prosecutors that judges are open to raising the bonds — specific judges, defense attorneys say.

 

Though defense attorneys like preliminary hearings, they say prosecutors use them as leverage in a case.

"They will tell you, 'I will bind your case over on the same bond," said defense attorney Jason Fisher. "'But, if you make me have a preliminary hearing, I'm going to ask for a higher bond.'"

Based on these comments it appears that the local district attorney's office is using the bail bond system to keep those unable to post a bond in jail. The net result is it may force a plea bargain to get out of jail. It is unclear from the article if the district attorney's office is filing a motion to increase bond or merely following the tone of the court. It is a disturbing trend to keep the bond excessive to prevent one to having a trial on the merits.

It seems that setting high bail bonds is a tool to prevent one's day in court. keep someone in jail until they plead out.

 

Tennessee Expungement Alert

A lawyer will always learn something when they read the law. A great friend asked me a question about expunging an old criminal charge. It forced me into brushing up on  the Tennessee state code. Years ago, Tennessee had a DWI law on the books. It was a lessor charge of Tennessee's DUI law. it was titled Adult Driving While Impaired. It was under code section T.C.A. 55-10-418. It was repealed in 2003 The punishment was a $500.00 fine.

The question was whether the DWI conviction be expunged. Remember DWI not DUI. A DUI charge under Tennessee law can never be expunged. Ordinarily, one cannot expunge a conviction. Several years ago the Legislature passed T.C.A. 40-32-101(g). In the law, it specifically excludes certain convictions from being expunged. The old DWI law was one of those not excluded. Probably because the law was repealed at the time. If you want to clear a old DWI charge, here is a link to the procedure.. If you think you qualify, contact us.

Nashville Decriminalizes Marijuana What's Next

The Metro Nashville Davidson County City Council passed a law to decriminalize marijuana  on final reading. Now , several questions will have to be answered.

1. How will the Metro Nashville Police Department enforce the new law ?

I expect Chief Anderson to issue a new general order on how the Metro police should respond to the new law. A general order will provide a bright line rule on whether a to issue a municipal citation, a criminal citation, or an arrest warrant. Without a general order being put down, there is too much discretion in the hands of law enforcement.

2. Will the Tennessee Legislature step in to contest the new law on decriminalizing marijuana ?

There is no doubt that the Tennessee Legislature will intervene in this controversy. It will be on the front burner in the next legislative session. Representative William Lamberth was recently quoted on the subject in the Tennessean. He mentioned cutting off road funds to Davidson County.

3. Can a civil violation be expunged ?

Davidson County General Sessions Judge bill Higgins raised the issue on expunging a violation of the marijuana ordinance. A criminal marijuana charge can be expunged from your record if it is dismissed or you were granted judicial diversion. The new marijuana ordinance will always be on your record. but not your criminal record. Most major companies run criminal background checks. Normally, Tennessee criminal convictions are reported to the Tennessee Bureau of investigation. Since , the new law is a civil fine. I doubt it will be reported. No one ever checks the civil docket, but it will be there lurking in your past.

4. Can you be cited for the civil violation and also be arrested ?

The short answer is yes. The police could cite you for a violation of the ordinance and also arrest you. Double jeopardy does not prohibit both a criminal and civil charge. What goes hand in hand with marijuana ? Drug paraphernalia. You have a little weed and a bowl or a grinder. You get a double whammy. A civil penalty for the weed then a criminal charge for the paraphernalia.

 

5. How will the district attorney's office prosecute simple possession cases ?

No word or statement from the district attorney's office. My guess if the police charge the drug possession as a crime, they will prosecute.

There will be more questions on the new law in the upcoming weeks. Stay tuned.

Should Tennessee's Bail Bond Laws Be Reviewed ?

Recently, the bail bond system has been in the news  due to the perceived inequality of the bail  bond system. The most common complaint is the bail bond system unfairly treats the poor. Some bonds are set so high that the accused cannot afford to make the bail bond. The result is people set in jail until the case is resolved. It can lead to people pleading guilty just to get out of jail.

Under the Tennessee Constitution , everyone accused of a crime is entitled  to a bail bond with one notable exception. The only exception is if you are charged with a capital offense. A capital offense is where the death penalty is sought. The primary purpose of the bail bond is to ensure the defendant comes to court and to protect the public.

 

The big question is how to make the bail bond system fair. Will only the 1% of the people be able to afford a bail bond ? One of the critical issues is how should the bond amount be determined. In Tennessee, most of the bail bonds are being set by the judicial magistrate. There is some guidance given to the courts in setting the bail bond pursuant to Tennessee Code Annotated 40-11-118. Personally, I have seen multiple offense DUI bonds in Sumner County Tennessee range from $50,000. to $100,000. The Tennessean reported today on a Metro school teacher had a bond set at $100,000 on a child pornography case in Davidson County.

in years past, some Tennessee counties established a fixed schedule in setting bail bonds. San Francisco used a fixed bond schedule until they were recently sued. San Francisco and 30 other cities or counties have adopted a scoring system established by the Laura and John Arnold Foundation which uses nine factors to establish the bail bond amount.

Being in jail awaiting to face your charges harms those accused of a crime. Low income defendants are even more at risk at losing their jobs. Low income jobs are not as secure and they can be replaced more easily. In an effort to get out of jail and return to their family, some people plead guilty of a crime just to get out of jail if they cannot afford to pay the bail bond. The offer of immediate freedom may cause people to plead guilty even when they are innocent or have viable defenses.

My father was a lawyer. One of his sayings that I remember quite well  is " Those with the capital don't get the punishment." Now, it is those without the capital don't get out of jail. maybe it is time to overhaul the bail bond system.

In closing, I know some folks around the state read my blog. I would invite your comments on  your local bail bond system operates.