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.

Do Residency Bans Drive Sex Offenders Underground ?

Steven Yoder recently wrote a article of the  same title as this blog post. The central question is do residency bans drive sex offenders underground. Mr. Yoder gives on example where a city in California created a park to drive out 33 registered sex offenders from there homes .Currently , there have been legal challenges to the residency rules under several states sex offender registry laws.

One judge relied on a report conducted by the State of Colorado Sex Offender Management Board on residency bans. The basic findings were that residency bans does not lower recidivism rates and could actually increase the risks to the public.


Let's take a look at Tennessee's sex offender registry laws on residences. Tennessee Code Annotated 40-39-211 spells out the residency ban. Tennessee prohibits a sex offender from residing or working  within a 1000 feet of schools child care facilities , public parks playgrounds , recreation centers or public athletic fields available for use by the public at large.

Here is one example where a person could drive a sex offender from their neighborhood. A person puts a small playground in the backyard. Then allows the public to use the playground . It is possible that this playground could be covered under the statute.


Some states have moved to prevent local governments from enacting tougher residency requirements. Here is a statement from a New Hampshire Representative :

“My first term, I was pretty much a hard-liner,” said Republican representative Larry Gagne during a January committee hearing.

“I said, ‘Put [sex offenders] in outer space; put them all on an island.’ But I changed my mind after a [police] sergeant came in and said, ‘If they go underground, we can’t find them.’”

Mr. Yoder's article is worth reading on this tough issue.


Does the Attorney-Client Privilege Extend past Death ?

Recently , I was faced with a question of whether an attorney-client privilege extends past death . First , I would like to thank the folks at the Tennessee Board of Professional Responsibility for helping me on this issue.

Rule of Professional Conduct 1.9(c) prohibits a lawyer from revealing information relating to representation of a former client unless;

  1. The client gives informed consent.
  2. The rules would permit with respect to the former client
  3. The information becomes generally known.

The main question that I had was if the privilege extended past death. The short answer is yes . There is an exception. The Board of Professional Responsibility of the Supreme Court  released Formal Ethics Opinion 2014-F-158 this year. Here is the main  take away from the opinion.


The bottom line is if the lawyer believes that the disclosure is in the client's best interest if the confidence is disclosed  and the client would consent to the waiver of the attorney-client privilege. So , it is the lawyers call based on the circumstances of the case.




A lawyer may disclose information relating to the representation of a deceased

client only if disclosure would further the client’s interests, and only if the lawyer

believes that the client would have consented.

Tennessee Advisory Ethics Opinion 2000-A-727, on the basis of the former Rules of

Professional Responsibility, provided in part:

Assuming that waiver or court order do not apply, we are of the opinion that the

attorney may reveal confidences and secrets if the attorney believes that the

revelation is in the best interests of the client and that the client would consent to

waiver of the attorney-client privilege…



Follow Up on the 12 Hour Hold

Chas Sisk and Walter F. Roche Jr. reported today that Governor  Haslam is in favor of making the 12 hour hold before a person can be released on bond mandatory. My prediction is that state legislators will be fighting each other over the chance to sponsor the proposed change . Kathy Walsh executive director of the Tennessee Coalition To End Domestic  Violence and Sexual Assault  added these comments;

“We certainly want to protect victims,” Walsh said, “but we also have to consider the rights of the accused.”

The story reported that the Nashville Davidson County General Sessions judges approved a measure that only the three judges that are currently assigned to hear domestic violence cases can waive the 12 hour hold . It appears that the magistrates will no longer be making this decision.

Here is a follow up to yesterday's post.

  • In Nashville domestic violence cases , I have been advised that the time entered is when the complaint number  is generated by emergency dispatch. So the time is before the actual arrest.
  • My statement on the 12 hour hold being waived is based on my personal experience . In the past , I have been contacted by an accused ,taken them to booking , and present my case as to the amount of bond and why the 12 hour should be waived due to the time of the alleged crime and time of surrender. I have discovered the magistrates in Nashville do not unilaterally waive the 12 hour hold.
  • Here is a link to a copy of the order setting bond in domestic abuse cases. It is a form order. The court makes no written specific findings of whether the court believes the threat of domestic violence is imminent .

Tomorrow , I will answer some questions that have been commented on here on the blog. Have a question ? Please feel free to post a comment.

One last note. I consider all my blog posts to be journalism. It is my commentary of news.



The 12 Hour Hold in Tennessee Domestic Violence Cases

Recently, there has been extensive news coverage of a Nashville judge waiving the 12 hour hold in domestic violence cases. . Under T.C.A. 40-11-150(h)(1) a person arrested for stalking , aggravated stalking , especially aggravated stalking , or any criminal offense under title 39 chapter 13 may be held for 12 hours after arrest until they can be released from  jail.

Here are a couple of points;

  • The time of the 12 hour hold begins at the time of arrest. The arresting officer shall make an official note of the time of arrest in order to establish the 12 hold. See T.C.A.40-11-150(h)(2). Practice tip. I have never seen the time of arrest noted in any warrant that I have reviewed alleging domestic violence.
  • The magistrate must make written findings of that the offender is a threat to the alleged victim. Practice note. I have never seen any written findings by the magistrate other than a form order where they check the boxes.
  • The  official may release the accused if it is determined that there has been sufficient time for the alleged victim for the victim to be protected. practice note. If the incident happens on one day and the next day the alleged offender is arrested , the magistrates will waive the 12 hour rule.


Before  folks start jumping to conclusions about waiving the 12 hour hold , we should examine the law. One last thought is if this statute on the 12 hour hold constitutional ?  More to come tomorrow.

Tennessee DUI Law Has a Loophole ?

The Memphis Commercial Appeal has done some great investigative reporting about a loophole in Tennessee's DUI law. The only problem is the loophole has been around since 1989 and is not really a loophole under Tennessee's DUI laws. In reviewing three Shelby County convictions for vehicular homicide , the paper found that in those three cases  the defendant received probation for the offense. It is not a loophole . It is merely the law.

Vehicular homicide and vehicular assault are different laws from the DUI statute. The sentencing considerations are completely different and are governed under the Sentencing Reform Act of 1989. Most Class B felonies are eligible for alternative sentencing. Alternative sentencing is where the court can consider probation or split confinement.  Involuntary manslaughter and reckless homicide are eligible for probation as well.

Reporter Beth Warren should be ashamed for using the word loophole when in fact it is the basic principle of Tennessee's sentencing laws. Her goal is to use inaccurate headlines to sell news. Florida attorney Flem  Whited was quoted in the article and I agree with his comments.

"I think Tennessee has it right," Whited said. "The judge ought to be able to make a valued determination of the sentence that is appropriate for the person in front of him."

Normally , the process is the defendant is convicted or pleads guilty to some range of punishment. The court conducts a sentencing hearing. The court receives evidence such as a presentence report, victim impact statements from the family , testimony of the family , and evidence of from the defendant. it should be left to the court to decide the punishment for these serious crimes rather that mandatory sentencing.

In most vehicular homicide cases , the defendant did not intend the consequences of their actions. It is far better for the court to hear from the parties before deciding the punishment than just sending folks off to jail.

Contrast that to the DUI sentences . In all Tennessee DUI cases , there is mandatory jail time from a first offense to a felony DUI. I could sell one hundred pounds of marijuana and get less jail time than a first offense DUI conviction. I might even get it expunged if I had no criminal record. maybe it is time to abolish mandatory jail time for DUI first offenders and give them a chance of expunging a DUI from their record.


Should Former Prosecutors Be a Judge ?

I know the headline is provocative in that it questions whether prosecutors should be a criminal court judge. I appear before several judges who are former prosecutors . I believe most are fair and impartial. However , some former prosecutors appear to have difficulty in being a impartial judge. Let's face it . It is a natural human emotion to have a bias. I have been an advocate so long it would  take some time to wear the hat of a judge.

Rule 10 Canon 2 Rule 2.2 of the Rules of the Supreme Court provides as follows;

RULE 2.2 Impartiality and Fairness

A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.

Prosecutors take the job because they want to prosecute crimes. It is the first hat they wear. If they become judges , they need to remove that hat and replace it with the hat of a judge. For some , it is hard to due. A mindset of  prosecuting crimes and being familiar with former colleagues makes the task difficult. I find some judges are firmly entrenched in the District Attorney's corner. Every one in the courtroom knows it even the district attorneys. I have experienced rulings from pro law enforcement judges . It is always hard to swallow. You know the judge is a good person. It is just hard sometimes to remove the prosecutor's hat.


Collateral Consequences of a DUI Conviction NFL Style

 DUI arrests and convictions have collateral consequences on your job, your freedom , your driver's license and several other areas of your life. The NFL has proposed some consequences of a DUI charge for its players. The NFL is pushing for a mandatory suspension of any NFL player convicted of a DUI . Some reports indicate that a one game suspension is being discussed between the NFL and the players union.

Is there a double standard in how the NFL treats its owners verses the players ? Colt's owner Jim Irsay was arrested on drugged driving charges where he had prescription bottles in his car along with $29,000.00 in cash. The NFL has taken no action .NFLPA President DeMaurice Smith has criticized  the NFL's handing of Irsay's arrest . What is good for the goose is good for the gander . The NFL should adopt the same standards for the owners and team employees as the players. Suspend them one game of revenue just like the players. If you have $29,00.00 in your car you should be able to afford a cab or maybe he should have Uber on his phone.

Boating Under The Influence Question

Yesterday , I posted a link to a article on social media about boating under the influence cases. Here is a link to the article . I got a question that I thought was worth sharing . The question was does a boating under the influence charge effect your Tennessee driver's license.

The short answer is no. A boating under the influence charge has zero impact on your Tennessee driver's license . A conviction of a BUI does come with some consequences like loss of your boating privileges .

Have a safe summer. Also , you can follow me on Twitter  https://twitter.com/robmckinney or visit our facebook page .


Tips For Hiring A DUI Lawyer

This scene happens all too often . No court today because I was finishing up a brief that is due soon. I get a phone call from a family law attorney.

Attorney: Can a client avoid jail under Tennessee law ?

Me: No

Attorney: What about public service or the DUI Education Center ?

Me: No Public service. No DUI Education Center because the judge in your case will not allow it.

Attorney: How did you know who the judge was ?

Me: I looked it up and read the warrant of your client. Did you think about the traffic stop ? The community caretaker exception may not apply.

Attorney: What is the community care taking function ? I just wanted to plead them guilty .

Bottom line was that a family law attorney got a DUI case . The attorney wanted a quick fee. The family lawyer knows jack about a DUI case. No thought about the case. No knowledge of the law. No advice on how a DUI conviction impacts a person's life.

The take away is to hire a experienced  DUI Defense Lawyer.

Do not hire a divorce lawyer, a civil lawyer , or any other type of lawyer. DUI law is specialized. Hire a professional