Should Your Client Testify at a Sentencing Hearing ?

Being a criminal defense attorney requires you to use many types of advocacy. You have preliminary hearings , motion hearings , jury trials ,and sentencing hearings. Each area requires different skills of persuasion. Today , I want to discuss one aspect of  sentencing hearings.

Sometimes your client is found guilty after trial or agrees to a sentencing hearing for the judge to decide the sentence. A sentencing hearing is basically a mini-trial where the judge decides the manner of service meaning should your client get jail, probation , or some other sentence. The court also decides the length of service . The topic today is whether your client takes the stand.

The attorney and the client must make the decision on whether to testify. Bear in mind a old post on the two most important words your client must say at a sentencing hearing. You client has three choices:

  • Say nothing.
  • Testify and be subject to cross examination.
  • Make an allocution .

If your client says nothing , the court can't hear him say I am sorry and show he is remorseful. If he testifies , the client opens himself up from the rants of the prosecutor that are often rambling and borders on abuse. then, the judge may have some questions.

My suggestion is the allocution. A  allocution is simply a statement made to by the client to the court. No help from the defense attorney. No cross examination by the prosecutor. It needs to express remorse if there is someone hurt .It needs to deal with the issues that the court may have concerns about such as alcohol and drug use. remember it is your story to tell on why the court should not send you to jail.

 

Should Your Client Testify at a Sentencing Hearing ?

Being a criminal defense attorney requires you to use many types of advocacy. You have preliminary hearings , motion hearings , jury trials ,and sentencing hearings. Each area requires different skills of persuasion. Today , I want to discuss one aspect of  sentencing hearings.

Sometimes your client is found guilty after trial or agrees to a sentencing hearing for the judge to decide the sentence. A sentencing hearing is basically a mini-trial where the judge decides the manner of service meaning should your client get jail, probation , or some other sentence. The court also decides the length of service . The topic today is whether your client takes the stand.

The attorney and the client must make the decision on whether to testify. Bear in mind a old post on the two most important words your client must say at a sentencing hearing. You client has three choices:

  • Say nothing.
  • Testify and be subject to cross examination.
  • Make an allocution .

If your client says nothing , the court can't hear him say I am sorry and show he is remorseful. If he testifies , the client opens himself up from the rants of the prosecutor that are often rambling and borders on abuse. then, the judge may have some questions.

My suggestion is the allocution. A  allocution is simply a statement made to by the client to the court. No help from the defense attorney. No cross examination by the prosecutor. It needs to express remorse if there is someone hurt .It needs to deal with the issues that the court may have concerns about such as alcohol and drug use. remember it is your story to tell on why the court should not send you to jail.

 

Why the Tennessee Rules of Procedure Need to Apply to General Sessions Courts ?

Over the last few days , I have been thinking about the inequalities in the Tennessee criminal justice system . Most cases are misdemeanor cases and can be resolved in General Sessions Court. However , you are not entitled to receive information about your case which is commonly known as discovery . Since the vast majority of criminal cases are resolved in General Sessions , folks are settling their cases without knowing what the state has or doesn't have to prove you guilty .

If your case is in criminal court or circuit court , you can request the state to provide you discovery under Rule 16 of the Tennessee Rules of Criminal Procedure . Once you make your request you are entitled to the following;

  • The defendant's oral statements
  • The defendant's written or recorded statements.
  • The defendant's prior record.
  • Documents and objects in the state's possession,
  • Reports of examinations and tests.

 

 

In General Sessions Court, the state does not have to provide you with;

  • The video of the DUI arrest.
  • Your statements.
  • Any tests on drug cases.

 

A person has to make a decision that impacts their life forever. Everyday in General Sessions Courts plea bargain agreements are made without the information that is provided if you took your cased to the criminal court level. It is incumbent of the Tennessee Supreme Court to modify the rules of procedure to make the discovery rule applicable in general Sessions Court. If not , how can a citizen accused obtain effective assistance of counsel ?

Is Ray Rice a Scapegoat for the NFL ?

There is no doubt that the video released by TMZ showed a frightening display of domestic violence by Ray Rice. The question is, why the change in policy by the NFL.  Mr. Rice admitted guilt, entered a plea, and accepted responsibility for his actions. The NFL suspended him for two games. Then, the full video was released and Mr. Rice was fired.  Should NFL players be treated differently?

First , I do not condone domestic  violence.  Domestic violence charges are a serious problem in our country and in our courts.

The criminal process works.  Mr. Rice and Ms. Janay  Palmer were both arrested for simple assault.  Later, the charge against Ms.Palmer was dismissed and more serious charges were brought against Ray Rice. A plea was entered. If the diversionary program is completed, Mr. Rice's criminal record will be expunged.  Connecticut criminal defense lawyer Norm Pattis opined that the criminal court process worked but the NFL made a knee jerk reaction .

Under Tennessee law, Mr. Rice may have had the same result. In Tennessee, Mr. Rice would have been charged with aggravated assault. If he had no prior convictions, he would be eligible for judicial diversion under T.C.A. 40-35-313. Once Mr. Rice completed the terms of probation, which usually include domestic violence classes, he would be eligible to have it expunged from his record.

Was Ray Rice guilty of domestic violence?  Yes. Were his actions despicable? Yes. Did the NFL change position due to a public relations nightmare? Yes.

 

Observations of Nashville's Domestic Violence Docket

Last week I posted on Nashville's domestic violence docket . I had a chance today to go observe the docket. Here are a couple of my observations:

  • The first court appearance is an initial appearance. No witnesses are subpoenaed. The purpose is to ascertain if you have a lawyer and to reschedule the court date. The time is too soon to determine if you have an attorney .I am hopeful the court gives more time for the citizen accused to hire an attorney.
  • A representative from the mayor's office was in the courtroom. Why ? Mayor Dean announced a domestic violence report last year . One of the goals was to reduce the time between arrest and the first court date.
  •  Nashville Bar Association failed the members of the criminal defense bar.  It was my understanding that the NBA was contacted by the court to send a representative . No input was sought from the private criminal defense bar . Further there were no reports from the Nashville Bar association about what was being planned. It may be appropriate that another group be asked to have a seat at the table on criminal justice issues such as the Tennessee Association of Criminal Lawyers .
  • The courts may be open to change or tweak the system after a couple of docket cycles.

No one likes change , but change is good .However , change should be evolving . The new domestic violence docket just needs some fine tuning.

One last thought. The Nashville Criminal Law Report is journalism . It collects , edits news and sometimes gives commentary on the news .  It is protected  by the First Amendment

 

Times They Are a Changing For Nashville's Domestic Violence Docket

Starting on September 2 , 2014 , the domestic violence docket in Nashville General Sessions Courts  are undergoing some drastic changes. Mayor Dean issued a press release on some of the changes in August. Last night , I attended a meeting on the changes . Unfortunately , there is not a written protocol of the new process only some colored graph that will make your head spin. As I understand it , a person who is arrested for a domestic violence charge that makes bond will have a court date within days of their release. It was explained to me this is an appearance date to see if you have a lawyer. The case will be reset with the goal to have a court date within 30 days from arrest.

Here are some of my issues ;

  • There is not enough time for an accused citizen to research , interview , and hire a lawyer in that time frame.
  • Once the lawyer gets hired , there is not that much time to prepare for a preliminary hearing or trial.
  • The criminal justice system seems to be unfair to the citizen in having his or her day in court. It seems to me to be a rush to judgment.

Since ,  I am venting here are some other observations ;

  • The powers that be who set these wheels in motion had little input from the private criminal defense bar. In the future , I would hope the General Sessions Judges would include more folks at the table than the Mayor's office , the Public Defender , and the District Attorney.
  • I am all in favor of having a place for the assistant district attorney generals to meet and interview witnesses , however the advocacy room might be a place to just park the witnesses. I know in past cases that I introduce myself to the complaining witness and they tell me what happened from their point of view.

 I may be chicken little and I hope that I am . People don't like change but if it comes at diminishing the rights of the citizen accused of a crime with limited time to defend themselves I am against the new changes.

I will be in court on Monday and look forward to reporting on my experiences.

Ceelo's Defintion of Rape Is Just Wrong

Ceelo Green suffered an extreme public relations backlash when he tweeted his understanding of what is rape. After his plea to a charge of giving a women ecstasy , he aired his case on Twitter . Here is a couple of his  tweets;

In posts that were later deleted from his account, Green addressed the case, tweeting, “People who have really been raped REMEMBER!!!”

“If someone is passed out they’re not even WITH you consciously! so WITH Implies consent,” he added.

It seems Ceelo is under the impression that if someone passes out that implies consent. Law enforcement in Los Angeles did not charge him with rape based upon insufficient evidence.

Tennessee's rape law covers when someone is passed out. Here is the statutory definition of rape in Tennessee:

39-13-503.  Rape.

  (a) Rape is unlawful sexual penetration of a victim by the defendant or of 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 penetration is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the penetration 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 penetration is accomplished by fraud.

Here are the pertinent definitions :

 "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;

 

 If a person knows or has reason to know a person is helpless and there is sexual penetration , it is rape. A person passed out from drugs and  or alcohol cannot give consent to have sexual relations . Ceelo  has a complete misunderstanding of what is consent.

Questions About Driving Under the Influence of Marijuana

The topic of legalized marijuana has been a area of discussion since Colorado and Washington became the first states to legalize marijuana. Some questions have cropped about about driving under the influence of marijuana. in fact , one Pittsburgh Steeler player did not know it was against the law to drive stoned . Z San Diego TV ran a story on this subject recently on five things you need to know about driving under the influence of marijuana. Here are a few of my observations.

The effects of marijuana

According to the National Highway Traffic Safety Administration , marijuana contains THC which produces alterations in motor behavior , perception ,memory and other bodily functions.

Effects of Crash Risk

There is no data on risk of crashes with marijuana use.

How high is too high

it is difficult to establish a relationship between a person's THC blood or plasma concentration and performance impairing effects according to the National Highway Traffic Administration. Performance impairments are noted within 1-2 hours following marijuana use .

The bottom line is there is not enough research on the effects of marijuana and driving. The source I used from NHSTA is from a 2004 study. It appears a new study will be out soon.

The bottom line is in defending driving under the influence charges in Tennessee there must be some evidence of delta-9-THC in the blood test. delta-9 is  the chemical responsible for most of the psychoactive effects of marijuana. More to come.

Don't Be Late To Court

Yesterday , I posted a criminal law tip of the day on my office's facebook page . I thought my next tip should be on the blog because it gives those facing criminal charges some advice on how to survive the criminal court process.

Today's tip is to be early for court. If court starts at 9:00 A.M., plan to get there thirty minute before the docket call. The reason is some judges treat those that come to court late a little tougher. Some judges in Nashville call the docket at different times even though you are told to be there at nine. The reason to come early is to take away a little stress. Traffic jams or the line at the elevator in the A.A. Birch Building are good reasons to get to court early. Another thing is you may get your case settled early. I know I like to get to court early if possible to talk to the assistant district attorney to discuss possible plea bargains on the case. the bottom line is to make a good impression. You don't want the court yelling at you for being late while your case is under discussion.

 

Why Tennesseans Need To Retain The Supreme Court Justices

In the upcoming August election  , the most important election is whether to retain the Tennessee Supreme Court Justices . Why is the retention election important ? The battle over the current members of the Supreme Court is really an attack on our system of judicial fairness. Lt. Governor Ron Ramsey has declared war on the judicial system. Along with Mr. Ramsey and the obscene amounts of cash from radical special interest groups , deceptive ads fill the airways.

Mr. Ramsey paints them as liberals even when they support the death penalty 90 % of the time. I have read the opinions written by Justice Clark , Justice Lee , and Justice Wade . I would not even consider them remotely liberal.

The real issue is the power and influence that Lt. Governor wants to wield in this state. Ramsey hates the court because their role is a check on the power of the legislature . Guess what happens if the Justices are not retained. Some lawyers will be appointed. not elected. then we are stuck with them for eight years.

 Ramsey is dissatisfied as to the appointment of the State's attorney general Bob Cooper who has done a fine job as Tennessee's lawyer . Ramsey wants to con Tennessee voters with deceptive ads much like senator Joe McCarthy did when he claimed certain folks were communists. In Tennessee , calling a person a liberal is akin to calling them a communist or worse .

I am not happy with every decision  made by the Tennessee Supreme Court  especially the erosion of the Fourth Amendment . However , the need for an independent judicial system trumps Mr. Ramsey's power grab. The Tennessean endorsed that the Justices be retained along with most lawyers. Maybe they know something about the fairness of the court.