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

 I did not realize an iphone had a voice recorder until this summer. If your questioned by police , should you record your conversation with the police. I did a quick check and there does not appear to be any laws in Tennessee  prohibiting a citizen from tape recording their conversations with police officers . However , some states have laws on the books that make it illegal to record or videotape police officers.

Recently , two different courts have ruled that a citizen has a First Amendment right to record their conversations with police officers . I recently tried a case where the video camera was not able to record the arrest and the field sobriety tests. It boiled down to ones word against another. Video or audio recordings are solid evidence. So , feel free to record the conversations of the police officer during a traffic stop or DUI investigations .

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

Shanterrica Madden is on trial for the murder of MTSU basketball star Tina Stewart . Brandon Gee reported on a recent  hearing in The Tennessean . Circuit Court Judge Don Ash follows a novel procedure that allows jurors to ask questions during the trial. Defense attorney Joe Brandon filed a pre-trial motion hoping to persuade the court from using the procedure. I can understand his position . Mr. Brandon may assert a self-defense argument. So , he does not want the jurors asking questions of his client while she is on the stand.

Basically , the jurors would submit written questions anonymously to the trial court . The court would review the questions and exercise  it's discretion in deciding to submit these questions . Normally , the district attorney and the criminal defense lawyer  ask questions of a witness during a trial.The Tennessee Supreme Court adopted this rule in 2003 , but from my experience this procedure has been seldom used . I am not aware of any Nashville criminal court judge currently using this procedure . Years ago , I tried a case in Williamson County with Judge Harris who tried the process . In my opinion it did not go well because most of the questions tendered were in violation of the rules of evidence. It also slowed the trial down and created too many interruptions of the trial.

I am all in favor of jurors having all the information available to them to decide the case. However , the Tennessee Rules of Evidence gives trial lawyers the rules on questions that can be asked or not. In my experience the questions were not allowed based upon some rule of evidence. What if the juror asks a leading question or did they take a lie detector test .Clearly , the process in this high profile murder case may be bogged down due to juror questioning .It seems to me  the new rules make the courtroom like a reality TV show with the jurors taking a active role.

My opinion is to stay true to the traditional courtroom procedure . Our justice system has a lot of problems , but it's the best one in the world today. I think it is time to abolish this seldom used rule.

I would like to hear your opinion. Should jurors be allowed to ask questions to the witnesses ? Please post your comment .

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

On December 2 2011 , I am moderating a panel discussion of  the following criminal court judges .They are ;

• Judge Steve Dozier , Nashville , Tn.
• Judge Dee Gay , Gallatin , Tn.
• Judge Monte Watkins , Nashville , Tn.

The seminar outline covers some good topics like ;

• Criminal Court Trial Tips
• Motions For Discovery
• Pretrial motions

Here is my request. If you want some topic covered in the seminar , please feel free to post a comment . I will add your comment to the agenda. For example , Judge Gay has a reputation for handing down some tough sentences . So , I am going to get some feedback on some tips for a successful sentencing hearing . One question is should a criminal defense attorney file a sentencing memorandum.

I look forward to your suggestions.

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

The more I read and watch the Penn State Sex abuse case . The more it makes me sick of what happened. The cover up of Jerry Sandusky's illegal abuse of young boys was swept under the rug by the coaches, the Penn Sate administration , and possibly the folks that were supposed to investigate the crimes. Then , we heard Jerry Sandusky's interview with Bob Costas .It made me want to throw up after he talked about showering with young boys .

As a criminal defense attorney , I strongly believe in the presumption of innocence and the right to a fair and impartial trial . How could Sandusky's criminal lawyer allow him to comment  to Bob Costas . I guess he just wanted to get some press coverage . Allowing Sandusky to answer Costas questions was the nail on his coffin . It sealed the public's opinion that he was a sexual predator and needs to be punished . If I was a prosecutor , a motion to revoke his bond may be in order. Mr. Costas interview  appeared to be a confession by Sandusky.

After the interview , I predict Mr Sandusky gets a fair trial and then spends the rest of his life in prison and Penn State will write a big check to his victims for not doing a damn thing to stop it or tell the police.

Two lessons are to be learned from Mr. Sandusky's interviews for those accused of a sex crime. First , don't give a statement to police. Second , don't give a statement to the media.

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

Once you see blue lights on a police car come on , you know someone is in trouble. The Tennessee Court of Criminal appeals reversed a lower court and dismissed a DUI conviction based  on a illegal  traffic stop. The court held that once the blue lights come on the driver is seized for Fourth Amendment purposes.Here is a portion of the court's ruling ;

the defendant’s encounter with the officer was not voluntary, but rather

occurred under a show of authority—the activation of the blue emergency

lights—from which a reasonable person would not have felt free to leave.

“Few, if any, reasonable citizens, while parked, would simply drive away and

assume that the police, in turning on the emergency flashers, would be

communicating something other than for them to remain.”

This case is a reminder that the primary defense in most drunk driving cases in Tennessee is to examine the reason the police pulled you over .Also , blue lights equal a seizure under the Fourth Amendment.

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

Florida DUI lawyer Mike Kessler wrote a nice piece recently on why your medical records aren't so private . Under Tennessee law , your medical records aren't  private  at all. Most people have the belief that your medical records are private and can't be disclosed without your permission. Wrong . A federal law commonly known as HIPPA  establishes some federal laws about disclosure. However , there is an exception for law enforcement purposes . So , the District Attorney's office can issue subpoenas for your medical records for a grand jury proceeding or maybe at trial. Also , there is no doctor-patient privilege currently under Tennessee law.

One thing can be argued is that there is a common law duty that may apply. Right now there is no protection of the government from getting your medical records are using them against you. Maybe the Tennessee State Legislature will act to enforce a citizen's right of privacy rather than allowing guns in bars.

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

Sexual molestation charges against former Penn state football coach Jerry Sandusky has rocked Penn State University . From news reports , it appears a graduate assistant discovered former coach Sandusky molesting a young boy in a shower in 2002. Coach Paterno was notified and he passed the information along to the administration . Here is the problem , the administration did nothing with the information until it was recently revealed that a cover up might have taken place. Now these administrators have resigned and are now facing criminal charges in alleged perjury scheme.The fallout from these allegations will test the foundation of the Penn State football program and the reputation and legacy of Joe Paterno.

The question is how would this scandal play out under Tennessee law . Tennessee Code Annotated  37-1-605 sets forth a list of those that have a legal duty to disclose child sexual abuse ;

a) Any person including, but not limited to, any:

(1) Physician, osteopathic physician, medical examiner, chiropractor, nurse or hospital personnel engaged in the admission, examination, care or treatment of persons;

(2) Health or mental health professional other than one listed in subdivision (1);

(3) Practitioner who relies solely on spiritual means for healing;

(4) School teacher or other school official or personnel;

(5) Judge of any court of the state;

(6) Social worker, day care center worker, or other professional child care, foster care, residential or institutional worker;

(7) Law enforcement officer; or

(8) Neighbor, relative, friend or any other person who knows or has reasonable cause to suspect that a child has been sexually abused;

shall report such knowledge or suspicion to the department in the manner prescribed in subsection (b).

Under Tennessee law , Coach Paterno would have had a duty to report the act since he was a school official or personal. I am not aware of what Pennsylvania's 's laws are but the result may be different under Tennessee law as to any charges that could  have been filed against Coach Paterno.

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

Tennessee State Representative Curry Todd made his first appearance in a Nashville court room yesterday. Nothing happened and the case was reset.  Representative Todd was charged with driving under the influence , possession of a handgun under the influence of alcohol , and a violation of the implied consent law.

The reason I am commenting on his court appearance is to explain what happens at the initial appearance on a criminal charge in Nashville. After someone is released on a bail bond or pre-trial release , a court date is set on a docket. Most court dates are set at 1:00 P.M. The purpose of this docket is to determine if some criminal cases can be settled with the issuing of any subpoenas. Your attorney and the assistant district attorney meet to discus the case. If the case can't be settled the case is reset to a trial docket . At the trial docket , the witnesses will be subpoenaed . Plea bargain discussions will continue in efforts to try to come to some agreement on the case. If the case can't be settled , a trial or preliminary hearing will be held in most cases .

The bottom line is the initial court appearance in Nashville is not that big a deal. You should have a lawyer by that time . Usually , the good attorneys try to speak with the assistant district attorney beforehand to discuss the case. Sometimes , the attorney will continue the case beforehand . However , one judge does require you to be present at the afternoon docket. One key thing to remember . Don't get disappointed if nothing happens that day. Sometimes the assistant district attorney may not have all the information they need in the case to make a decision.

My question is how did Mr. Todd vote on the harsher implied consent charge ? It appears he exercised his right not to take the breath or blood alcohol test.

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

The U.S. Supreme Court  recently heard  oral arguments in Cooper  and Frye. The links will take you to a transcript of the oral argument. The pivotal issue is  the performance of the lawyers during the plea bargaining process.. In the Frye case , Mr. Frye's lawyer did not advise him of a plea bargain offer where Frye could have plead guilty to a misdemeanor and serve 90 days in jail. Instead , Frye took a thee year sentence to serve with a felony now on his record. In Cooper , the criminal defense lawyer gave the defendant some really bad advice on the issue of intent to commit murder. During oral argument , the court struggled with the proper remedy. The court has held that plea bargaining is a critical stage of the litigation for Sixth Amendment purposes.

A more interesting side note is that of the low price lawyer who writes letters to those accused of a crime and offers to provide a legal service for the sum of $400.00.  Simple Justice addressed the issue of lawyers whose business model is take the bucks and plead them or force them to plead guilty . I witnessed one such event today. Cheap lawyer says to assistant district attorney " It's a DUI first offense right and I want to move the case for plea". No negotiation . No discussion with the assistant district attorney. Probably no review of the warrant or video. Nothing . NADA. Zilch. The lawyer took the bucks and made a rapid plea bargain at the client's expense..What regulates lawyers when they have no intention of giving an accused  a defense. Those issues will not be addressed and will be the dirty little secret in the underworld of criminal justice. Yet the problem exists. I guess it is the old adage " you get what you pay for".

Justice Scalia said trying to solve either problem would leave the courts “in the soup,” as Mr. Cooper had received a fair trial and Mr. Frye had entered a valid guilty plea. Justice Scalia is dead wrong in his comments. First , Frye did not enter a knowing plea of guilt and Cooper did not have a lawyer that knew the basics of an attempt to commit murder. Scalia concluded the trial was fair. Not hardly.

Now what will the Supreme Court do when the lawyers blew it ?

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