Nashville Criminal Law Report : Nashville DUI Lawyer & Attorney : Rob McKinney Law Firm : TN Criminal Defense, Domestic Violence : Cheatham, Davidson, Montgomery Counties

Unlike some of the criminal law commentators on the Internet , I actually try cases , represent clients , and go to court . The next series of posts are some important issues that  came up  while in the courtroom last week .

The use of jailhouse telephone calls continue to be used as evidence against the accused.  The Nashville Davidson County Sheriff's Office contracts with Global Tell Link for telephone calls for those housed in the Davidson County Jail. Once an inmate makes a call using Global Tell Link , the call is recorded and downloaded to a server . A warning is played that the calls are recorded , but no warning is given that anybody can have access to the phone calls.

As the case moves forward , the Assistant District Attorney that is handling the case may listen in on the taped recordings looking for confessions , the location of evidence , or other evidence that may help convict the defendant. I have seen these jailhouse recordings used in bond hearings as well as trial.

Does the State of Tennessee have to turn over these recordings ?  I was unable to find any authority that the government must turn over the recordings. However , Rule 16 of the Tennessee Rules of Criminal Procedure requires the state to furnish any written or recorded statement of the accused.The rule encompasses the following ;

1. Written , recorded and transcribed verbatim statements.
2. Audio tape recordings between a defendant and a confidential informant.,
3. Verbatim and contemporaneous statements,
4.  A memorandum which includes the substance of the statements even though not signed .
5. Interpretations of the statements.
6. Statements obtained by means of electronic surveillance.

Under this framework , it is my position the recordings of jailhouse recordings must be provided by the state.

The bottom line is never ever say anything on a phone call from or to jail unless you want to hear it at your trial later . The U.S. Supreme Court recently ruled the First Admendment protects vile speech by protesters at a soldiers funeral but it does no extend to those in the Davidson County Jail.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Mastering the Tennessee Rules of Evidence is one of the most crucial requirements of becoming a successful criminal trial attorney. Hearsay is one of the most difficult rules to grasp.  The definition of hearsay is it is a statement , other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted. Tennessee's hearsay rule is riddled with exceptions.One interesting rule of evidence I am dealing with now is an exception to the hearsay rule.

Conspirators' admissions are usually an exception to the hearsay rule. The reason for the hearsay exception is that each conspirator is bound by the actions and statements made by the other conspirators. For example , one co-defendant states 'me and dude went to go shoot another dude" that statement comes into evidence. The question of the admissibility of the statement is did the statement occur during the course of the conspiracy. It must have occurred during the course of the conspiracy to be admissible.

So the evidence tip of the day to exclude co-defendant statements is to investigate when the statement is made. Statement made during the course of the conspiracy it is admitted.Statement made after the conspiracy ended. Excluded.

Statements of the accused or the co-defendants often come back to haunt the person at trial. Remember " silence is golden , handcuffs are silver". 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Cheatham County Commission recently approved Sheriff Holder's request to hire a new police officer to patrol Interstate 40 in search for drug traffickers. The officer will work in conjunction with the Drug Interdiction Crime Enforcement (DICE) unit . The drug interdiction unit is made up of officers from the Dickson County Sheriff''s Office and  Humphrey's County Sheriff's Office. As part of the deal , all the agencies will share in the amount of confiscated funds or property.

My concern about drug interdiction units is it's all about the money.It is like the phrase from the movie ' Jerry Maguire ' " Show me the money ".

Drug Interdiction units are about seizing money . Who suffers ? Drug dealers suffer if their caught. However , traffic stops are focused on cars from Texas or suspicious looking people by that  I mean blacks and Hispanics . The war on drugs has been a dismal failure since being declared by President Nixon. Now , average citizens pay the price by bending our constitutional protection against unreasonable search and seizures.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I started reading James McElhaney's Trial Notebook. Mr McElhaney has written over the years on litigation for the American Bar Association. Here is his list  for the essential qualities of winning attorneys ;

• Want to help others.
• Need to right a wrong.
• Must maintain high ethical standards.
• A need to know everything.
• Need to communicate.
• Winners must have goals.
• Be imaginative
• Be energetic and persistent.
• Be realistic.
• Not afraid to fight.

I have read Mr. McElhaney's columns for years and I have always learned something . Chapter one of his book was a great start.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I attended an advanced sentencing guidelines training course today sponsored by the Federal Public Defender here in Nashville . It was a great program and thanks to the office for hosting the program. Here is a video on firearms sentencing that may be helpful. It was produced by the U.S. Sentencing Commission. I hope the video is helpful.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Would you buy a new car without a owner's manual ?  Would you fly in a plane without the pilot knowing something about the plane ? Here is one reason you should not take the test . There is no owner's manual for the breath test machine . Members of the Tennessee Bureau of Investigation (TBI) have testified there is no owner's manual or operators manual for the EC/IR II which is the breath test machine used in Tennessee DUI cases. Wonder why ? So do I.

Forensic science does not pick sides.Science is absolute.Science should be an open book on the methodology and how we get the result. Why am I ranting about science when the title is another reason not to take the breath test. It's simple the TBI does not want to face any attack on the unreliability of the or the problems with the breath alcohol test.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

One of the most basic ethical rules for lawyers is the attorney client privilege . It can not be violated by a any lawyer . Yet , the U.S. Attorney's  in Nashville  office broke that rule while prosecuting a sex trafficking ring . It appears the U.S. Attorney's Office  intercepted over 300 private phone calls from inmates or those accused of a crime to their criminal defense attorney.

One tactic that prosecutors both in federal court and state court here in Nashville love to use is to listen in on calls from jail. They are hoping to get more evidence or catch some confessing to the crime .Note to those that might end in in jail or their families . Don't discuss your case on a jailhouse telephone

Judge William Haynes ruled that the jail's recording of attorney-inmate calls is "a serious threat to constitutional rights". U.S. Attorneys had turned over 300 client telephone calls of criminal defense attorney Patrick Frogge.

The Davidson County Sheriff's Office did not comment on the court's order or their phone recording policy .

The court found that since the sheriff''s office has a policy of blocking some telephone calls from being recorded or listened in on if they knew the the phone number belonged to an attorney .

U.S. Attorney has not commented yet if his office intends to appeal Judge Haynes' decision.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The standardized field sobriety tests established by The National Highway Safety and Traffic Administration contains three tests. On this video , I am discussing the walk and turn test. Almost all police officers in Nashville,Tn. , Franklin , Tn. and all Tennessee Counties utilize this test in DUI investigations.

The police are looking for the following clues or indicators :

• Cannot keep balance while listening to the instructions.
• Starts before the instructions are finished.
• Stops while walking.
• Does not touch heel-to-toe.
• Steps off line.
• Uses arms to balance.
• Improper turn.
• Incorrect number of steps.

If you exhibit two are more clues , the original research provides there is a 685 chance you are over the legal limit of alcohol in your system.

Remember field sobriety tests are optional in Tennessee and you do not have to submit to them.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The State of Tennessee must prove identity in every criminal case. A defendant may be identified in a number of ways from eyewitness identification , photographic identification , voice identification , and by forensic science such as DNA evidence .One of the least trustworthy methods is eyewitness identification . Eyewitness identification has been the number one cause of false convictions in the United States .

There are three types of eyewitness identification used by police here in Tennessee :

1. Lineups
2. Show Ups
3. Photographic Identification

A lineup is different from a show up in that a lineup requires the witness to identify the suspect from a group of people while a show up is a one on one identification. A photographic identification or commonly known as a photo array is the least reliable forms of identification . A photograph is two dimensional . The photo array procedure is where a detective places the suspect's photo among other similar photos. The lead detective usually conducts the photo array and knows  the suspect 's identity. Sometimes , the identification procedure can be influenced by the nonverbal clues given by the officer. Some experts suggest a double blind procedure be used . A double blind is where the police officer showing the photographs does not know who is the suspect.

Recently , Florida has enacted identification reform that requires a standardized policy on identification. It is now the rule of law in Florida . The Innocence Project has drafted a proposal for reforms to the eyewitness identification procedure . The Daytona Beach News Journal has written an editorial endorsing the new reform.

One of the easiest, and potentially most effective, fixes involves a simple tweak to a basic police tool: the lineup. This practice — in which police actually line up a row of people, or display a set of photographs and ask a witness to identify one as the criminal — is subject to flaws, particularly when the officer administering the lineup knows who the suspect is. Even though the officer might not intend to taint witness identification, it happens, through subtle "tells" such as fleeting changes of facial expression.

The solution is to remove that officer from the lineup process, substituting another officer — one who has never seen the suspect and doesn't know who the ringers are. This procedure, called a "double-blind" lineup, is the best way to ensure that eyewitness IDs are as accurate as possible. In addition, police should take care to ensure that all subjects in a lineup are as physically similar as possible.

Florida is trying to correct the problems in the criminal justice system. It appears the State of Tennessee does not want to fix the problems and injustices in the system . Tennessee Legislators want to use the criminal; justice system as a political football to gain support with the public . Wipe out the exclusionary rule , put GPS devices on everyone accused of a crime , make jail sentences excessive those are their solutions . Let's copy Florida instead of Arizona.

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As the week winds down  , I think back to a case from this week. My thought is the total abuse of the drug free school zone law here in Nashville ,Tennessee. Nashville's a great place to live with schools and parks in most places in the county . Only problem is just driving by a school zone with drugs puts you up for an enhanced drug charge . Everybody can agree that drugs are part of society's problematic areas for long while . The problems with drug use both illegal and the increasing abuse of prescription drugs needs to be addressed. However , the Metro Nashville Police in my opinion are looking at any way to charge a drug free school zone case .

The use of the school zone enhancement has a chilling effect on fighting your case . For example , a criminal case I handled this week should have been fought but the penalties are so severe that no one can face their accusers . Possession of more than .5 grams of cocaine in a school zone gets you 15 to 25 years in prison at 100%. Facts were no observations of sale by police only some audio with no concrete evidence of a drug sale.Client stopped later with no drugs and $50.00 of the photocopied buy money. He is facing 15-25 on weak evidence . A plea bargain was offered at 1 year on probation. No choice but to take the plea bargain.

No connection to the school other than 1000 feet . However , the hammer of the drug free school zone law in Tennessee is used to prevent a person seeking justice. Now some people might read this and think if I was innocent no way I take a plea deal. Would you gamble 15-25 years on 12 people ? The hammer will be used next week as well to force someone to take a deal.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As I was walking to the criminal courthouse in Gallatin , Tennessee for a motion hearing , I noticed a new sign for a lawyer on the corner . The sign advertised General Sessions Lawyer .  What is a General Sessions lawyer ? Under Tennessee rules of specialization , Tennessee does not recognize such certification. Then , I understood .

See , the sign is hoping to attract those accused of a crime or DUI in Sumner County , Tennessee. A poor soul might walk into his office going to the General Sessions Court . To understand what a General Sessions lawyer is one must understand Tennessee's court system .

Criminal offenses in Tennessee are heard in three trial courts . They are Juvenile court , General Sessions court , and Criminal or Circuit court . A General Sessions Court has jurisdiction of misdemeanors and can only hear preliminary hearings on felony cases . You are not entitled to a trial by jury in General Sessions.

Most criminal  cases start in General Sessions Court  in Tennessee . Some lawyers don't want to venture out of General sessions Court . . Should you hire a General Sessions lawyer ? Probably not

Here's why :

• Are they a Dump Truck Lawyer ? By that , I mean a lawyer that is just going to settle your case with whatever the Assistant District Attorney is offering . Tomorrow , I will post on what is a dump truck lawyer .
• You might not get the best plea bargain offer because the D.A. knows they won't take one to trial.
• Do they give a damn about you or your case or do they just want a quick attorney's fee ?
• Do they try cases or just go to the back room and then tell you I can't help you after their promises ?
• Do they know the basic defenses of a criminal case ?
• Have they ever had pretrial hearing ?
• Have they taken any specialized continuing legal education classes on DUI or criminal law ?
• Are they a  member of any criminal defense lawyers groups ? If they won't pay $175.00 for dues to stay up to date on the law do they deserve your hard earned money to defend you from going to jail ?

You owe it to yourself to educate yourself on getting the best  criminal defense lawyer in Sumner County , Tennessee for your case .

Hiring a General Sessions lawyer is like hiring a doctor who is only going to take your temperature and give you an aspirin . They don't have the cure or will they even try .

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Adam Liptak  who writes the Sidebar column for the New York Times reported on the case of Robert Rosario . Mr. Rosario was convicted of murder based upon the testimony of two witnesses who picked him out of a lineup. One problem existed . Mr Rosario claims to have been in Florida on the day the murder happened . Mr Rosario has appealed to the U.S. Supreme Court on claims of ineffective assistance of counsel . The Supreme Court is scheduled to decide next week if they are going to accept the case. The critical issue is what is expected of criminal defense lawyers in the performance of their representation.

Mr.Rosario's case hinged on eyewitnesses testimony verses the alibi defense . Mr Rosario had two alibi witnesses appear at trial . However the prosecution convinced the jury they were not credible .The jury convicted Mr. Rosario based on the identification evidence.

Since the Innocence Project has been in existence , it has been determined that eyewitness identification is the most common cause of wrongful convictions. In fact , the first 200 DNA exonerations involved 158 convictions by eyewitness identification .

Here is what one Federal Court thought about eyewitness identification ;

As a federal appeals court put it in 1992, “Eyewitness evidence, uncorroborated by a fingerprint, gun, confession or co-conspirator testimony, is a thin thread to shackle a man.” It is also, the court said, “precisely the sort of evidence that an alibi defense refutes best.”

It appears there were at least seven other witnesses that could confirm Mr.Rosario was in Florida , but the lawyer did not interview or call them to the stand . In eyewitness identification , there should  be some requirement of corroboration such as a co-defendant statement or some type of physical evidence.

In Tennessee , an accused is allowed to introduce expert testimony in the unreliability of eyewitness testimony at trial .

• Email This
• Print
• Comments
• Trackbacks
• Share Link

An arrest warrant is a written order which is made on behalf of the State of Tennessee and is based upon a affidavit of complaint issued pursuant to a statute which commands a police officer to arrest that person and bring them before a magistrate .  This is one way to start a criminal case in Tennessee .

There are some formal requirements of the arrest warrant.

• The warrant must be signed by the magistrate .
• It must contain the name of the defendant .
• It must indicate the county in which the warrant was issued .
• The warrant must describe the offense charged in the affidavit of complaint .

There must be some evidence that is probable cause  to believe a crime occurred. It can be based on hearsay evidence . The issuance of a warrant does not require proof beyond a reasonable doubt.

The Criminal Court Clerk in Nashville , Tennessee provides Internet access of warrants issued in Davidson County . Click here for the link to the clerk's office for access to review your warrant .

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It appears the exclusionary rule days may be numbered in Tennessee .The Tennessee House Judiciary Committee recommended a bill that would guarantee that evidence seized after the execution of a search warrant issued pursuant to Tennessee Code Annotated 40-6-101 or  under Rule 41 of The Tennessee Rules of Criminal Procedure would not be subject to suppression on account of a "good faith mistake or technical violation made by a law enforcement officer , court official , or the issuing magistrate . " The attorney general has found the bill constitutional . However , their opinion is not binding on the courts .

Under the exclusionary rule rule , evidence obtained in violation of the Fourth , Fifth , and Sixth amendment may not be introduced at trial to prove a defendant's guilt . The purpose of the exclusionary rule is to deter constitutional violations .

If the bill passes , it will be sad day in Tennessee for constitutional freedoms . Some members of the legislature speak about Tennessee 's Constitution and the need to strictly follow it . Yet , they intend to strike down years of Tennessee case law which holds that the Tennessee Constitution gives Tennesseans more rights than the U.S. Constitution .

• Email This
• Print
• Comments
• Trackbacks
• Share Link