Strange Crime of the Week

It's Friday the Thirteenth so I thought the strange crime of the week would be a good topic.  A L.A .County Sheriff's deputy was arrested for smuggling drugs into the county jail. How is why it's strange. The deputy put heroin into a burrito and brought into the jail. Evidently , he was already under investigation . The deputy was arrested and dismissed from the department. It is illegal under Tennessee to bring contraband such as drugs into a penal facility in Tennessee . It carries 3 to 6 years in jail. I wonder if he got the burrito at Taco Bell.

New Reckless Endangerment Law Goes Into Effect

Nashville's WLPN radio has been reporting on some of the new criminal laws that went into effect at the start of the New Year . Tennessee has created a new class of reckless endangerment charges. Senator Mark Norris spearheaded the new law based upon the drive by shootings that occur in Memphis, Tn. The new law makes it a Class D felony when a firearm is discharged into an unoccupied home and it is a Class C felony if the home is occupied. The price tag for the new law is just $59,000.00 per case. This is just one more example of passing laws for political capital.

A Nashville assistant district  attorney commented in the story that he did not think it would make a difference in gang related drive by shootings. Tennessee does not need to put a new criminal law on the books. Just use the ones we have. If someone shoots into a occupied house , it is called attempted first or second degree murder. It appears Tennessee tries to solve every problem by creating a new criminal law . Tennessee is fast becoming overcriminalized .The Wall Street Journal reports that there are over 4500 federal criminal laws and over 300,000 regulations that carry criminal penalties. The article further reports that the law is eroding the criminal intent element that is required in most crimes . What new criminal laws are on the horizon in Tennessee ?

What Criminal Court Judges Want Lawyers to Know ?

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.

Child Abuse or Negligence in Clarksville , Tn. ?

A babysitter in Clarksville , Tn. was arrested on child abuse this week . The allegation is that one of the children she was watching wandered off from her care. . From the news report , it does not appear to be any intentional act of abuse , but merely neglect.  It was reported that the babysitter thought the boy was outside playing and did not check on him for over an hour. Is this a criminal offense ?

Under Tennessee criminal law , punishment is different based upon the age of the child . In this case , the child was 7. The government must prove that the babysitter " knowingly " abuses the child under 18 years of age in such a manner as to inflict injury commits a Class A misdemeanor . However if the abused child is eight (8) years of age or less , the penalty is a Class D felony. A lessor charge of child abuse exists where a person knowingly abuses or neglects a child as to adversely affect the child's health or welfare. The key point the government has to prove is did the defendant know what he or she is doing.

So , the first analysis in this case or any other child abuse case in Tennessee is to assess whether the conduct was accidental . Second , was the child injured. In this case , no injuries were mentioned in the report. What was the conduct ? Accident or an intentional act. Is the mother who lets her kids play outside guilty of child abuse if they get hit by a car playing a game ?

What's the Difference Between Casey Anthony v. Amanda Knox ?

I must admit I don't follow high publicity criminal trials.Once you walk in the trenches of the criminal justice system , you don't want to spend your free time following another case.In 2011 , there are been two high profile criminal trials with different outcomes. First , the Casey Anthony case which almost caused Nancy Grace's head to explode . Second , Amanda Knox's verdict was shown on The Today show this morning where she received a welcome celebration. Why the difference ?Both were accused of murder.

Casey Anthony was accused of murdering her own child then concealing her death. Any criminal charge where a child is the victim of sex abuse , child abuse , or  murder , the case is treated differently. A jury wants to protect children. So , the presumption of innocence does not exist in the real world . Strike one against Ms. Anthony. Secondly,  Ms. Anthony was far from sympathetic . Stories of parties and her lifestyle disturbed the general public. Casey Anthony was cast by the media as a monster. However , the jury heard the evidence and found her not guilty. The American system of justice prevails .

Contrast the Anthony verdict with that of Amanda Knox. Ms. Knox was convicted at her first trial. Honestly , I don't understand the Italian criminal justice system. Knox was convicted but an appeal court heard new evidence. Ms Knox's fate would have been entirely different under American law. It was shown at the appeal that the DNA evidence was highly suspect. Also , Ms. Knox was convicted by a foreign court and most Americans didn't trust the outcome. Ms. Knox's defense organized a effective public relations campaign. Later , Ms. Knox was acquitted.

Both charged with murder. One is despicable. One is a returning heroine. It is not always about the facts , but the public perception of the reality. Is there unequal justice in the two cases ?

Rise of Weapon Cases In Nashville , Tennessee

 

 

 

Brian Haas of The Tennessean reported that only Washington D.C. has a higher rate of gun violence. Those in Tennessee were more likely to be victims of violent gun crime than any other state in the nation. Tennessee leads the nation  at which its citizens are the victims of aggravated assault and fifth highest among robbery cases. No one seems to have the answer to this critical question.

There were three possible answers to the question but one commentator suggested Tennessee's high rate of gun ownership. Also , Tennesseans are free to have a handgun permit and there is always a move in the Tennessee Sate Legislature to expand the list where folks can take a hand gun. Heck , Tennessee even has a law that the police can sell back the guns they confiscate instead of destroying them.

Aggravated assault under Tennessee law is found at T.c.A. 39-13-102.Basically it consists of ;

  1. The defendant intentionally or knowingly caused bodily injury to another.
  2. The defendant caused serious bodily injury or ;
  3. That the defendant used or displayed a deadly weapon.

A deadly weapon does not have to be exclusively a hand gun.

Tennessee had over 13,132 gun-related crimes in 2010.Hard choices need to be made . Do we decrease the amount of guns on the street of send people to jail for aggravated assault convictions ?

 

Filling Out A Job Application When You Have a Criminal Record

One advantage of hiring a criminal defense attorney is that the attorney may discover ways to have your case dismissed or some type of plea bargain where the case may be expunged. One issue that comes up is how to answer a job application. My short answer is truthfully.  Two  potential lawyers who were denied admission to the Georgia bar  found out the hard way.

It appears they denied any criminal convictions on their law school admission application. However , they admitted the convictions on their applications to take the bar exam.  The State of Georgia denied them a law license.

The lesson is to always disclose a criminal conviction anytime the application asks for that information . In the age of the Internet , a few keystrokes can reveal your entire background in minutes. For college students , fight the case from the start. Don't go to court alone . The government has a lawyer . You should too.One word of advice from my grandmother , " The truth never blushes'.

Another Tip On Surviving Your Tennessee Criminal Case

Last week , I wrote a post on some tips for surviving your criminal case in Tennessee . I am going to add another tip today . Do not use your work computer to send email to your lawyer . It may not be protected communication under the attorney-client privilege .

The American Bar Association recently issued an ethics opinion advising clients that their emails from a work computer may not be protected by the attorney client privilege.NPR interviewed ethics attorney Diane Karpman on this issue. You can listen to the interview here.

My thoughts on the subject is that email is never fully protected even from a smart phone or your home computer . A work computer has even less security. An old fashioned meeting or letter may be the better route to take.

The explosion of electronic communication via email or social media is now something to be very aware today. It may sink your case.

Is the Rise in Child Abuse Cases Linked to the Recession ?

An increase in child abuse is linked with the recent recession according to new research in the field. Dr. Rachel Berger of Children's Hospital of Pittsburgh said the results of her research confirmed reports from pediatricians who have seen an increase in shaken baby cases and other forms of brain-injuring child abuse .

Combine the stress of raising a young child with wage cuts or lost jobs and you get "a sort of toxic brew in terms of thinking about possible physical violence," said Mark Rank, a social welfare professor at Washington University in St. Louis. He said the study echoes sociological research linking violence with declines in economic well-being.

It is interesting to note that violent crimes have decreased in 2010.  The question is whether these parents are equipped to handle a newborn and the stark reality of this economy.

 

Tips on Surviving Your Criminal Case In Tennessee

Here is a tweet from one of my favorite criminals on her failed court ordered drug test . The tweet is perfect for today's post. Several weeks ago , Nashville lawyer David Raybin spoke at a meeting before the Tennessee Association of Criminal Defense Lawyers in Memphis, Tennessee. Mr. Raybin spoke about some common sense tips for those facing criminal charges in Tennessee . I did add one topic to this list

Here they are with my comments;

  • Change your email password and make it hard.

In these days of electronic media and the use of email. One needs to protect any electronic communication they send. One example might be in domestic violence cases where one spouse or significant other still has access to your email account. Also , wiretaps and other forms of electronic surveillance look to capture emails or texts.When you change your email password. , it might be a good idea to put characters in the password.

  • Get off Face Book , My space , and all forms of social media.

One of the first things some investigators do is search to see if you have a facebook account. I am sure you have seen crazy pictures posted. Let's take it all down till the case is over. Don't leave any trace of what you do on FaceBook.

  • Be aware that you may be subjected to court ordered drug testing.

In some counties such as Sumner County Tennessee and Williamson County, Tennessee you may be subjected to court ordered drug tests . For example , those that enter a plea to simple possession of drugs in the General Sessions Court for Sumner County are routinely subjected to drug tests at the plea. If they fail the test , 48 hours in jail may be in their future. Want a delayed report date in Williamson County on a DUI case ? You take a drug test. Fail .It's off to jail for you .Once you are facing criminal charges be aware that you may be asked to take a drug screen at any time . Also , this applies to prescribed drugs . You have a ache and mom gives you a Lora-tab to help. You might be going to jail for a failed drug screen.

  • Don't talk about your case from a jailhouse phone or a cell phone

I have written on this issue before so I rest my case.

These are some common sense tips to help you avoid any more problems other than being charged with a criminal offense in Tennessee . I am open to hearing about any more tips . Please let me know by posting them in the comment section.

 

 

Warning To Citizens Facing Criminal Charges In Williamson County

Here is a warning to all those who are accused of a criminal offense in Williamson County , Tennessee. Be ready to be drug tested at any of your court appearances.. Hold on you say. I am innocent . One of my constitutional rights is that I am presumed innocent of all charges until I am convicted by a jury or I plead guilty. I am sorry to report that you must be ready to take a drug test any time when a citizen is accused of a crime in Williamson County.

Ask for a continuance to apply for judicial diversion. Drug test. Delayed report date to jail for a DUI conviction. Drug test . the list goes on. Bottom line is once your arrested be ready to take a drug test. Currently, there are no laws concerning prejudgment drug tests. Drug tests are required once a citizen is placed on probation . The concept is that you are no longer presumed innocent at that time.

 

This is just a friendly warning . Best course is to stop smoking weed while your case is pending.

Why Some Lawyers Choose to Be a Criminal Lawyer

Today's post is was written by Thomas Hutto ,a third year law student at the Nashville School of Law . Thomas and I met when he started following the www.Nashvillecriminallawreport.com . This is his first guest post and I hope you enjoy it . He has a couple of more that will be appearing .

 

What happens when I say I'm thinking about criminal law?

"Really? But, you'd have to defend criminals!" That's the first thing I usually hear.

"How could you defend someone accused of X?" is a close second.

I'm not so young and naïve as to believe that everyone is innocent until proven guilty. I am idealistic enough to think that we must force the government to prove them guilty.

Some people commit crimes, some people are accused of a crime. These two groups overlap. There are police officers and prosecutors who try to make the crime fit the facts and then make those facts fit the accused. They have their jobs, I'll have mine. Everyone has constitutional rights. The state should not violate them, but they do. If the government is willing to violate and suppress the rights of people accused of a crime, they are more than willing to violate yours. In defending the rights of the accused, criminal lawyers defend you too.

Thomas is a third year law student at the Nashville School of Law.


Am I Trouble If I Missed My Criminal Court Date ?

Sometimes people miss their court date in Tennessee . One question that comes up is what can I do about it and am I in trouble . Missing your court date can trigger an additional charge of  Failure to Appear . I recently wrote an article on the issue . You can click here  to the read the article . If you missed your court date please contact your lawyer immediately or hire one to take care of the problem before it gets out of hand .

How Long Does It Take for an Expungement to Come Off Your Record

Yes, Tre I do check the comments . Tre posted a question on what is the amount of time that passes before an expungement order is processed . In Nashville , Tn. , an expungement order will take somewhere between 30-60 days to be processed . Tre's question is how long does it take for the Tennessee Bureau of Investigation to remove the charge . I don't know the answer to that question , but I try to find the answer .

Normally , the Tennessee Bureau of Investigation  (TBI)  is not the official record for a conviction. It is simply a clearinghouse to store all convictions.  . I would suspect that the TBI may be reporting a case plead under judicial diversion.

I try to answer all questions . So please post any questions in the comment section .

Alcohol Offenses in Tennessee

High School students over 18 or college students can face criminal charges under Tennessee law for alcohol offenses.There are two laws which may be charged with different penalties..

Possession of alcohol or purchasing alcohol by someone under 21 is a Class A misdemeanor . The kicker is pursuant to Tennessee Code Annotated 57-3-412 (C)(i) a conviction for possession of alcohol carries a loss of your driver's license .

Consumption of alcohol is a Class A misdemeanor as well , but it does not carry a loss of your driver's license. Also , you can get the conviction expunged after six months .

Bottom line be careful what you are charged with and the potential consequences.

Injustice In South Carolina

South Carolina criminal defense attorney Bobby Frederick recently reported of Horry County ,  South Carolina public defenders who don't go to preliminary hearings . It appears the public defenders refuse to go to court on preliminary hearings . The court refuses to hear their case because they have a court appointed attorney and the hearing is waived . Injustice to those pool souls they represent .

I created a video of the importance of a preliminary hearing in a prior post . A preliminary hearing is the first major building block in preparing your defense in a criminal case . A preliminary hearing has no downside in most cases . You have a hearing , cross examine some cops or witnesses , learn some key facts , and the case is bound over to the grand jury . Best case is you might win and have the case dismissed which is unlikely due to a lessor burden of proof at the preliminary hearing . One should only waive a hearing in certain circumstances . First , where the Assistant District Attorney agrees to a bail bond reduction . Secondly , you want to avoid having the state preserve testimony of a witness .

 

Here is Mr. Frederick's thoughts on why some lawyers waive a hearing which I wholeheartedly agree ;

Which tells me there are two reasons why attorneys waive preliminary hearings - 1) they are lazy; and/or 2) they have no intention of taking their client's case to trial. Who cares what the officer's testimony is going to be if I know I am never going to try the case.

 

 

A great defense to a criminal case starts with an effective and well thought out preliminary hearing . Why are the South Carolina public defenders for whatever reason are giving up the fight to raise a defense for their clients ?  Budget cuts or manpower shortages is no excuse for not protecting your clients . Shame on them . One last thing  worth mentioning . If your lawyer suggests you waive your preliminary hearing , ask them what tactical advantage they hope to gain by waiving the hearing . If they don't have an answer , they may be from the South Carolina P.D.'s office or really don't care about your case .

Can Beyond Reasonable Doubt Be defined ?

Shaun Martin and Scott Greenfield have recently commented on most criminal courts' problem in explaining what is beyond a reasonable doubt . Proof " Beyond A Reasonable Doubt " is the most important protections that a citizen is given in facing criminal charges .Yet , it is  the hardest to explain to jurors and even to other lawyers . I am not aware of any jury instruction that adequately explains the concept.

The current debate of the definition of " Beyond A Reasonable doubt " was sparked by a recent case in the great state of California . California's a  hotbed of traditional criminal jurisprudence . A temporary judge began with a series of examples of what beyond a reasonable doubt  means . The defendant was convicted and appealed . At the appellate level , the defendant argued that the trial court's examples lowered the state's burden of proof by his examples . The California Court of Appeals upheld the conviction . They cited some persuasive authority . In the opinion , the court reminds the trial court to be careful in giving examples . They cite the legal scholars John Lennon and Paul McCartney . The California Court's suggestion is " To Let It Be" .Here's Tennessee's instruction on reasonable doubt .Notice the omission of the term beyond.

T.P.I. -- CRIM. 2.03

REASONABLE DOUBT

            Reasonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability, after such investigation, to let the mind rest easily as to the certainty of guilt.  Reasonable doubt does not mean a doubt that may arise from possibility.  Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required, and this certainty is required as to every proposition of proof requisite to constitute the offense.

 

Continue Reading...

One Way To Win Your Case

                                 

Clients always ask what can they do to help their case . It's simple write. Once your arrested start writing notes . Immediately write detailed notes about the case . Don't leave anything out . Witnesses , weather conditions , potential alibi witnesses are just some examples of what to write down . Notes are important to you as well as your criminal defense attorney. Make sure you provide these notes to your attorney along with any other documentation such as restaurant receipts for a drunk driving case . I would suggest also creating a time-line of events .

Why is note taking important to your case ?

 Sometimes , it can be months or years before you go to court . A witnesses who recalls the events is more likely to be a better witness. Why do you think the police make arrest reports and case narratives  ?  You should do the same.

Innocent Until Proven Guilty

As I leave the office on a Sunday afternoon preparing for a child abuse trial on Monday. I watched a short video from the San Francisco Public Defenders office. With images alone , it gets right to the point of what beyond reasonable doubt and innocent until proven guilty is all about . It reminds me of those two bedrock principles of our criminal justice system. Thanks to Jamison Koehler for the heads up on the video.

 

What Makes Evading Arrest a Felony in Tennessee ?

                              

One of the worst decisions you can make is to try to outrun the police.My tip for the day on how to get along with police on the roadway is to pull over immediately once you see the blue lights.However, some folks get scared and confused and don't stop as directed. Evading arrest in Tennessee can be a felony.What's the difference ?

 Felony evading arrest is when one evades arrest using a motor vehicle.Misdemeanor evading arrest is when you just try to intentionally run away by any means of locomotion.The use of a car to flee makes evading arrest a Class E felony.There is one more little kicker.If during the felony evading arrest the flight creates a risk of death or injury to innocent bystanders or other third parties increases the charge to a Class D felony.Also, it carries a loss of your driver's license.

The takeaway is you can't win your case on the roadway.Obey the police when they have all the cards.Fight your criminal case where it counts.The courtroom is where you are on equal ground with the police.

 

 

The Defense of Entrapment in Tennessee

                              

Sometimes police or law enforcement are mush like the spider.The spider creates the web and hopes it's prey stumbles into the web where it can't escape.Some of my clients in drug and patronizing prostitution cases assert they were entrapped into their criminal conduct.However, the defense of entrapment seldom applies.

The Entrapment Defense was first recognized by the U.S.Supreme Court in 1932.It  was not recognized by Tennessee law until 1980.

Here is Tennessee's jury pattern instruction on entrapment.It is the legal definition of when it is a valid defense.

 

T.P.I. -- CRIM. 40.04

DEFENSE:  ENTRAPMENT

            It is a defense to this prosecution that the defendant was the victim of entrapment as to the offense charged.1

            As used in the law, "entrapment" means that law enforcement officials, acting either directly or through an agent, induced or persuaded an otherwise unwilling person to commit an unlawful act.  On the other hand, where a person is predisposed to commit an offense, that is, ready and willing to violate the law, the fact that state officials or their agents merely afforded opportunities for him or her to do so does not constitute entrapment.

            Inducement by law enforcement officials may take many forms including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.  A solicitation, request or approach by law enforcement officials to engage in criminal activity, standing alone is not an inducement.  Law enforcement officials are not precluded from utilizing artifice, stealth and stratagem, such as the use of decoys and undercover agents, in order to apprehend persons engaged in criminal activities, provided that they merely afford opportunities or facilities for the commission of the offense(s) by one predisposed or ready to commit it.  [They may properly make use of undercover operations, in which they assume false names and false appearances.  They may properly assume the roles of members of criminal organizations.  They may properly offer to give to the defendant the money which is involved in the commission of the crime itself.  And they may properly instigate the offer of money to the defendant.]

            If you should find from the evidence in this case that before the alleged offense(s) occurred, state officers or their agents did no more than offer the defendant the opportunity to engage in criminal conduct, there is no entrapment.  On the other hand, if you find evidence in this case that the defendant was induced to commit the offense(s) charged, you must go on to consider whether or not the defendant was predisposed to commit the offense(s); that is, whether [he] [she] was ready and willing to commit crimes such as are alleged in the indictment, whenever an opportunity was afforded.

            In determining whether the defendant had a predisposition to commit the crimes charged, you need not find that [he] [she] was involved in any prior offenses or criminal conduct.  Predisposition may be shown in many ways.  The defendant's predisposition or willingness to commit the crimes charged may be shown by evidence of [his] [her] prior conduct of a similar character or by evidence, direct or circumstantial, that [he] [she] was ready and willing to engage in the illegal conduct in question.  It may be shown by evidence of the defendant's reputation or character.  In evaluating this matter of predisposition, you should look to the totality of the circumstances involved in the alleged offense(s) with which the defendant is charged.


 

            [If evidence of prior conduct of the defendant which may be criminal is introduced to show [his] [her] predisposition or willingness to commit the alleged offense, you may consider such evidence only in connection with your determination of the defendant's predisposition or readiness to commit that offense.  It is not evidence that [he] [she] actually committed the crime(s) for which [he] [she] is now on trial.  Moreover, the fact, if it is a fact, that the defendant may have committed prior offenses of a similar character does not by itself require you to conclude that [he] [she] had the predisposition or readiness to commit the offenses with which [he] [she] is now charged.]

            In summary then, if you find no evidence that the state induced the defendant to commit the crime(s) with which [he] [she] is charged here, there can be no entrapment.  On the other hand, if you find some evidence that the defendant was induced to commit the offense(s) with which [he] [she] is charged, you must then go on to consider if the defendant was predisposed to commit such (an) offense(s).  If you find beyond a reasonable doubt that the defendant was predisposed to commit such (an) offense(s), then you should find that the defendant was not a victim of entrapment.  If the evidence in the case leaves you with a reasonable doubt whether the defendant was predisposed to commit the offense(s), then you must find [him] [her] not guilty.

Here is the key point.If there is no inducement, there can be no entrapment.

Evidence in Reckless Endangerment Cases

Recently ,we had a comment posted on Nashville Criminal Law Report on  whether a phone call was enough evidence to support a charge of reckless endangerment in Tennessee.It depends. One element of reckless endangerment is whether the conduct places a person in imminent danger.

 

In the example of a phone call , there can be several different factors.

  • Where was the phone call made ?
  • Distance from the caller to the person.
  • What were the comments made on the call ?
  • Was a weapon used or mentioned in the phone call ?

For the threat of bodily injury to be imminent, the person must be placed in a reasonable probability of danger as opposed to a mere possibility of danger.

To support a conviction for felony reckless endangerment  , there must be proof of of the use of a deadly weapon.

I would like the thank the commenter for his question and I welcome all comments.I will try to answer the comments if possible.Remember this is not legal advice but merely commentary.If you have more questions please consult your lawyer. If you need a consultation for a case in Nashville or the Middle Tennessee area you can contact our office.

 

Court in Mount Pleasant , Tennessee

                                            

Today , I had a case in the General Sessions Court for Maury County Tennessee at Mount Pleasant. I had a client that was charged  by the Spring Hill , Tennessee Police Department for theft , shoplifting , simple possession of marijuana , and felony evading arrest.As I was driving down , I was thinking did the court have jurisdiction of the case since it happened in Spring Hill,Tn.?

After I got to the court house and spoke with the Assistant District Attorney and the police officer.I  asked the question of venue.Venue is simply where the crime occurred.Spring Hill , Tennessee straddles the county lines of Maury and Williamson County.If the crime happens on the Williamson County side, the defendant is taken to Franklin, Tennessee for prosecution.Now here is the tricky part. The Spring Hill Police Department brings all of there cases to the General sessions Court in Mount Pleasant , Tennessee if the crime occurred in Maury County. Why ? First , it is a smaller court and the police officers get out earlier.Secondly , it is the position of the state that the court has concurrent jurisdiction of any case that happens in Maury County.

I can't say I blame the Spring Hill Police.The court was friendly .The clerks and the probation officers were helpful and my client got a favorable plea bargain.

Tampering With Evidence

                                      

After a little holiday break , The McKinney Law Offices  is  back to work. Today's post  is based upon  The Tennessee Supreme Court's  clarification of the crime of tampering with evidence. Under Tennessee criminal law , tampering with evidence is a felony.

Here's what the State of Tennessee has to prove in a tampering with evidence case ;

  1. It must be an ongoing investigation that the defendant knows about.
  2. The accused must alter , destroy or conceal a record , documents or thing.
  3. The accused tampered with the record , document , or thing in order to impair it's use as evidence in order to impair it's use of evidence in the investigation.

In  State of Tennessee v. Majors , The Tennessee Supreme Court  ruled  the government is not required to prove beyond a reasonable doubt the specific identity of the thing that the accused has altered , destroyed, or concealed.The state must establish beyond a reasonable doubt that the accused tampered with some "thing."

One recent development in tampering with evidence charges is it is being included during the presentment to the Grand Jury phase of the case in Williamson County drunk driving (DUI) cases. It is my theory that the felony is being added in some cases in an attempt to force a plea bargain to the DUI charge in order to avoid a felony conviction..

If you have any questions about tampering with evidence charges, please post your question in the comment section. I will answer your questions directly to your posted comment..

When Does Your Miranda Rights Start

                                             

When does your Miranda rights become effective ?.The general rule is that once you are placed into custody you Miranda rights against self incrimination  begin.Custody is usually defined as once you have been placed under formal arrest. However , custody is not always a black and white issue.

The Tennessee Supreme Court has listed a non-exclusive set of factors to determine if a suspect is in custody.

  1. The time and location of the interrogation;
  2. The duration and character of the questioning;
  3. The officers tone of voice and demeanor;
  4. The number of police officers present;
  5. The manner of transportation to the place of questioning;
  6. Any limitation of movement or other form of restraint;
  7. Any interactions between the officer and the suspect:
  8. The extent to which the suspect is confronted with guilt or evidence of guilt;
  9. The extent that the defendant is made aware of the fact the defendant is free to refrain from answering questions;

Today , we used a violation of my client's Miranda rights in a suppression motion .Client facing 25-40 years as a Range II offender in a drug free school zone case.Case plea bargained to 5 years probation.Be on the lookout for any Miranda violation. I just hope the U.S. Supreme Court does not erode the bedrock constitutional protections that Miranda provides.

 

Kenny Britt Update

I wrote this morning on the Kenny Britt bar fight  before I walked over to the A.A. Birch Building for DUI court. The courthouse is always a great place to discover what is really going on in  Nashville . I might be wrong that the Kenny Britt case is dead in the water.  It appears Nashville Metro Police are still actively working the case. I am a little shocked by the delay in making an arrest if there is proof of an assault.Here is one interesting twist to the case , it appears Mr.Britt came to a friend"s aid.It is a defense to  a simple assault to come to the aid of a third person. I will discuss that defense in my next post. The big question is will Kenny be arrested.

Kenny Britt Bar Fight

It appears Kenny Britt  may avoid any criminal charges from a bar fight that happened on Second Avenue in Nashville a couple of weeks ago.No reports have surfaced from the news media. Lack of comment probably means the case is not going to be prosecuted. In most of these downtown bar fights , someone is going to be arrested on the spot.Since there was a delay in bringing a charge it appears Mr.Britt may skate on this simple assault. The police don't waste a lot of time investigating an alleged bar fight. I do wonder what happened with the security video from the bar. Was there video and if so what did it show ? If there have been no arrests since October , it's pretty safe to bet the over and under that no charges will be filed against Mr.Britt.

Nashville Criminal Law Report is Blog of the Day

I have been writing The Nashville Criminal Law report for ten months. In April of this year the Nashville Criminal Law Report was the blog of the week by Techno lawyer.This month the Nashville Criminal Law Report was named the blog of the day by Tom Mighell of Inter Alia.

When I started writing , I just thought my observations would just go to cyberspace. I would like to thank Tom for his recognition.

How to Save Money on Nashville's Convention Center

In today's Nashville Tennessean , Nate Rau and Michael Case reported that legal fees for the Nashville Convention Center have surpassed $1.1 million. Some firms have charged between $250.00 and $600.00 per hour. Here is my suggestion to solve this problem. Hire criminal defense attorneys to do the work.Here's why.

  1. Court appointed criminal defense lawyers get paid by the State of Tennessee $40 to $50 per hour to defend citizens lives and freedom.It is a bargain rather than paying someone $600.00 per hour.
  2. Criminal Defense Lawyers are a scrappy bunch.

Miller and Martin made almost $900,000 in fees. Metro also First Tennessee lawyer's $60,000.

The point is it's high time to reevaluate the money paid to attorneys who are appointed to represent indigent criminal defendants. TACDL has filed a petition before the Tennessee Supreme Court to increase the fees. Tennessee criminal defense lawyers who are appointed to a case get paid squat with a cap on the total amount of fees.These high priced lawyers wouldn't take off their silk stockings for $40.00 per hour. For now maybe Metro Nashville should hire criminal defense lawyers to do the job or use Metro Legal.

 

Petty Crimes in the News

   Rudy Giuliani's daughter Caroline appeared in a New York courtroom Tuesday.She was charged with shoplifting some cosmetics from a store. Ms Giuliani received a plea under an Adjournment in Contemplation of Dismissal (ACD). Once she performs some public service work likely to be at a sanitation garage ,her criminal case will be dismissed.

In the General Sessions Courts for Nashville Davidson County Tennessee , there are similar procedures to handle some petty crimes.Shoplifting , simple possession of drugs and various other criminal charges can be disposed of like Ms.Giuliani's case. The disposition in Nashville courts is referred to as an under advisement plea. Usually a plea bargain is reached to do public service work or some other type of project , a plea is entered but disposition is reserved if you do what you are supposed to do case dismissed. You fail to do it .Jail and a permanent criminal conviction will be on your record. These types of dispositions are not just for the rich and famous , but are available to the average citizen. Ask your attorney if you are eligible for this type of plea bargain.

How Do You Pay A Criminal Defense Attorney

Lawyers usually get paid by three different ways. Criminal defense attorneys get paid in two ways because it is unethical to charge a contingency fee or a results oriented fee in criminal cases. Most criminal defense attorneys charge by the hour or a flat fee. A flat fee is one set price for the entire case. In some circumstances the fee can be divided between the different stages of the case. For example , A lawyer may break the flat fee into segments of representation in General Sessions Court and Circuit Court. Here's an article on the difference between a retainer and a flat fee.

 

One tip for the consumer . Always have the fee agreement in writing.

Always Go To The Scene Of The Crime

In the July 2, 2010 Trial Tips Newsletter published by Elliott Wilcox, Mr. Wilcox discusses the importance of going to the crime scene.  From DUI cases to First Degree Murder cases, going to the scene gives you a real feel for the case.  Here are a few takeaways from the article;

  1. The attorney will give better opening statements.  You can see the scene in your mind.  It lets you bring the scene to life.
  2. The attorney will be able to give more detail during direct examination.
  3. The cross examination will be more detailed.

Here is a perfect example of the benefits of going to the crime scene for the criminal defense attorney and the client.  I went to the scene of a DUI case here in Nashville.  The grade of the pavement where the field sobriety tests were performed were on a 20 degree slope.  The police officer was trained to administer these tests on a level surface.  According to the National Highway Traffic and Safety Administration the sobriety tests can't be reliable in these circumstances.  Result- The DUI charge was reduced.

For those of who are accused of a DUI in Nashville ,Tn. you will get a ton of letters offering to represent you.  At the client interview, if they do one, one question you should ask is do you go to the scene of the crime.

One last thing, I encourage all criminal defense attorneys to sign up for the free trial tips newsletter.  I have been reading them for over a year and I pick up something in every issue.

One word of warning. My law clerk was shot while working at the Davidson County Public Defender's Office. Her advice is to take someone with you in certain parts of town .

One of the Greatest Novels on Criminal Trials

  This year marks the Fiftieth Anniversary of " To Kill A Mockingbird" by Harper Lee.National Public Radio did a great  interview recently. I just bought the Fiftieth Anniversary edition and plan to start reading it this weekend.

I am interested in what is your favorite scene or quote from the book. Please post your response in the comment section if you wish.

I wish you peace this weekend.

Issues in Probation Violation Hearings

   In Tennessee Criminal courtrooms, probation violation hearings are sometimes difficult to win.  However, I ran across some good case law to help win these cases.

Often, a probation violation warrant is taken out due to a new criminal charge.  In State of Tennessee v. James Butler, the Court of Criminal Appeals of Tennessee  held that a trial court may not rely on the mere fact of an arrest or indictment to revoke a defendant's probation.  The state must produce some evidence in the usual form of testimony in order to establish the probationer's commission of another offense while on probation.  Therefore, the state must put on proof rather than just relying on the testimony of the probation officer.

So, be mindful that the state must prove the new offense by a preponderance of the evidence. I hope you find this case useful.

Strange Crime of the Month

 Since May 1st Nashville has experienced some of the worst flooding in the city's history.  Downtown, Bellevue, and Antioch have been hard hit.  The criminal courts have closed for the week.  Everybody has been affected in some way.  Folks have lost their houses, cars, possibly their jobs, and some have lost their lives.  My thoughts and prayers go out to all.

So, I thought a report of the strange crime of the month might lighten the mood.  A New Jersey man was recently arrested at a Phillies game for intentionally vomiting on a off-duty police captain.  Matthew Clemmens made himself vomit on a police officer and his daughter after his friend was kicked out of the game for unruly conduct.  Clemmens faces criminal charges of assault, reckless endangerment and assorted other charges.

Good Luck and Best Wishes to all those who experienced a loss during the great Nashville flood.

God Bless

More on Padillia v Kentucky

I ran across some great information from www.immigrationdefenselproject.org on the Padillia case. Here' is the main points

Some Key Padilla Take-Away Points for Criminal Defense Lawyers

• Deportation is a “penalty,” not a “collateral consequence,” of the criminal proceeding. The Court held that deportation is a “particularly severe ‘penalty’” and made clear that the “direct vs. collateral” distinction does not apply to immigration consequences and does not preclude ineffective assistance of counsel (IAC) claims based upon failure to provide correct advice about immigration consequences.

• Professional standards for defense lawyers provide the guiding principles for what constitutes effective assistance of counsel. In support of its decision, the Court relied on professional standards that generally require counsel to determine citizenship/immigration status of their clients and to investigate and advise a noncitizen client about the immigration consequences of alternative dispositions of the criminal case.

• The Sixth Amendment requires affirmative, competent advice regarding immigration consequences; non-advice (silence) is insufficient (ineffective). In reaching its holding, the Court expressly rejected limiting immigration-related IAC claims to cases involving misadvice. It thus made clear that a defense lawyer’s silence regarding immigration consequences of a guilty plea constitutes IAC. Even where the deportation consequences of a particular plea are unclear or uncertain, a criminal defense attorney must still advise a noncitizen client regarding the possibility of adverse immigration consequences.

• The Court endorsed “informed consideration” of deportation consequences by both the defense and the prosecution during plea-bargaining. The Court specifically highlighted the benefits and appropriateness of the defense and the prosecution factoring immigration consequences into plea negotiations in order to craft a conviction and sentence that reduce the likelihood of deportation while promoting the interests of justice.

Also , thanks to www.lawofcriminaldefense.com

Does Craigslist Promote Prostitution ?

  Brad Stone of the New York Times wrote an article on Crraigslist and law enforcements efforts to curtail it's sex ads.Craigslist is the Internet site to go find prostitutes. Craigslist has collected over 36 million dollars in ad revenue recently on sex ads. Even , the mob has gotten into Craigslist. Members of the Gambino crime mob has recently been arrested by the Federal Bureau of Investigation for soliciting prostitution with minor girls on the popular Internet classified site.

Metro Nashville Police use Craigslist as well as the Backpages to post prostitution ads. The police post an ad and hope someone answers the ad and  the police set up an undercover reverse sting to arrest those who are engaging in patronizing prostitution.Metro Nashville Police even take photographs of those given a criminal citation and post their picture on the police website. It appears everyone is using Craigslist.

Tips for Criminal Defense Lawyers Representing Non-Citizens

 Criminal defense lawyers in Tennessee and across the country are struggling with the fallout from the recent case from the U.S. Supreme Court.In Padilla v. Kentucky , a copy of the opinion is attached to the link, the court held the conviction was invalid based upon the criminal defense attorney's representation of the effects of the plea bargain on his immigration status.Years ago, I learned of the collateral effects of a criminal conviction on one's  immigration status.Here is a  few  suggestions ;

1. For attorneys, place in bold print in your fee agreement that you will not give any advice on immigration issues.Divorce attorneys do this all the time on tax advice during representation in a divorce.

2. For clients and criminal defense attorneys , consult with your immigration lawyer or hire one for an opinion letter advising on the immigration consequences of a plea bargain agreement or guilty plea.

3. In the plea petition , write a sentence in the agreement that you are not making any representations of any collateral effect on the client's immigration status as a result of the plea.

The Padilla case may have  a more widespread impact on plea agreements that just immigration cases.My prediction is that the failure to advise of any collateral consequence of a plea bargain agreement or a trial may result in a finding of ineffective assistance of counsel. Criminal cases may impact numerous areas of one''s life from professional licenses such as a nurse or doctor to out of state driver's licenses.Careful planning at the plea agreement may prevent a pound of cure.

I would like to invite any comments on how to deal with this issue.

 

Davidson County Crime Map

 

Criminal records are public record, and now thanks to the Davidson County Criminal Court Clerk it’s a little easier for residents to check up on their neighbors. Their website features an interactive map providing arrest details for all crimes that have occurred in the last seven days. You can check it out here ; http://ccc.nashville.gov/portal/page/portal/ccc/crimeMap/  The map is searchable by zip code and provides arrest data by the address of the defendant, so you can check up on your neighbors without having to peek through the blinds. Once you’ve chosen someone on the map to get more information on, you can click on their name to get details of the alleged crime, including a copy of the warrant, their bond amount, court dates, attorneys name, along with their entire arrest history in Davidson County.  

A quick, unscientific review seems to show that most alleged crimes are not occurring at the address of the defendant. This leads one to wonder if it may have been more practical to provide the data by the address where the alleged crime actually occurred. TheTennessean online provides a searchable database of reports made to Metro Police all the way back to November 2007. There, you can get a list of calls dispatched within up to a five mile radius of an address in any given date range. The log doesn’t provide names though, only the type of call, date, and address. 

According to Nielsen Online, approximately 75% of North Americans have internet service and usage has grown by 140% over the last decade. The internet provides a wealth of information at our fingertips. And now, calling the police or getting arrested in Nashville gives the entire community a chance to be Big Brother. 

Criminal Defense Lawyers Must Advise Clients of Deportation Risks

The United States Supreme Court ruled that criminal defense lawyers have a Sixth Amendment obligation to warn their clients when their guilty pleas can result in deportation.Justice Stevens wrote the majority opinion that held that the criminal lawyer representing Jose Padilla should have advised him that a guilty plea to transporting marijuana would make him subject to automatic deportation.

"When the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear," Stevens wrote.

“We now hold that counsel must inform her client whether his plea carries a risk of deportation,” Stevens said. “Our long-standing Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.”

The bottom line of the opinion is that a criminal defense lawyer provides ineffective assistance of counsel if he or she misleads a non-citizen about the collateral consequences of a criminal conviction.

Justice Scalia dissented from the majority.

“In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised,” Scalia said. “The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed.”

The lesson from this case for criminal defense attorneys and clients is a consultation with a immigration lawyer to determine the ramifications of any plea bargain and their immigration status. Don't enter into a plea until you know how it might effect your legal residency status.

 

 

Pre-Trial Diversion is Still Alive in Tennessee

 

Proposed House Bill 3283/Senate Bill 3347 which would have eliminated Pre-trial Diversion was before both the Tennessee House and Senate Judiciary Committees on March 30th.  Both committees heard testimony from all sides, including the Public Defenders Conference, the District Attorneys Conference, and the Tennessee Association of Criminal Defense Lawyers. Only the House Committee voted, and the bill was defeated 7-5. Pretrial diversion is used for first-time offenders accused of misdemeanors or minor felonies. It was created in 1974 to help people who have made a mistake in judgment avoid a trial or guilty plea by agreeing to serve an immediate term of probation, and if they stay out of trouble for the duration of that term the charges are dropped and they can have their records wiped clean again. Over the last 10 years, approximately 250 people have completed a pretrial diversion program in Nashville alone. Pretrial diversion is not as popular or commonly used as judicial diversion though. Judicial diversion works similarly, yet is at the discretion of the judge and occurs only after a conviction at trial or a conditional guilty plea. 

Along the same lines, House Bill 3538/Senate Bill 2901 which would increase the mandatory drug testing fee from $100 to $250 and impose fines on granting of pretrial or judicial diversion has also been on the calendars in the House and Senate Judiciary Committees. On March 23rd, the House voted 5-3 to recommend the bill for passage and the bill is on the Senate Judiciary Committee calendar for hearing on April 7th. The fines are to be deposited in a new state fund called the TBI Drug Chemistry Unit Drug Testing Fund. Monies deposited in this fund are earmarked to fund forensic scientist positions, maintain and upgrade equipment and supplies, provide training for employees, and other uses determined to improve the efficiency of the TBI. 

Braves Pitcher Caught in Prostitution Sting

Atlanta Braves pitcher Deunte Heath has been charged with two prostitution related  misdemeanors during spring training. It appears he was arrested during a sting operation.The Braves suspended him indefinitely.The reason this report caught my attention is that the Metro Nashville Police also operate prostitution stings.

Metro Nashville Police also use prostitution stings to arrest those who may be engaged in patronizing prostitution.The tactics usually involve placing an Internet ad, arranging a meeting with an unsuspecting  person., and then an arrest or criminal citation will be issued. A criminal citation is issued in most cases. Beware of  answering these ads and remember what happened to Tiger Woods.

How to Expunge Your Record In Tennessee

One of the main concerns of those charged with a crime in Tennessee is can my criminal record be expunged.Maybe.I created a video on "How to Expunge Your Record." In most cases, you can do it yourself. As part of my legal services for criminal cases, I do the expungement for you if you are eligible.A conviction can not be expunged.Here is a list of dispositions when you can get your record cleared.

1.Dismissal

2. A Retirement

3. A Nolle Prosequi

4. Successful completion of either Pre-Trial Diversion or Judicial Diversion

5.When you hear the words "Not Guilty"

If you need a expungement form, leave your contact information in the comment section and we will contact you.If you live out of state we can handle it for you for a small charge.

Protecting your record is critical.Avoid a conviction if possible.It is better to find a criminal defense lawyer  to investigate your case before you plead guilty.

How to Handle a Shoplifting Case In Nashville

I get a lot of questions about shoplifting cases in Nashville.Should you get an attorney ? Can I keep it off my record ? What happens if your convicted ? I created a short video to help answer some of your questions.If you have any further questions please feel free to leave a question in the comment section of the blog. Remember these tips on shoplifting charges only apply in Davidson County,Tn.Shoplifting cases in Williamson County and Sumner County are completely different.

Mortgage Fraud Cases on the Rise

Mortgage fraud cases are on the rise across the country.The FBI is holding a mortgage fraud task force meeting in Miami ,Fl. In Florida , the mortgage fraud problem has reached epidemic proportions. Mortgage fraud cases have even popped up in the Federal District Courts here in Tennessee.The Wall Street Journal has recently published stories on the topic.

As long as criminals are out to make a quick buck by preying on homeowners and lenders, we will continue to work side-by-side with our partners to protect the American dream for years to come and ensure that criminals who try to enrich themselves through mortgage fraud schemes are brought to justice,” said FBI Deputy Assistant Director for the Criminal Investigative Division Karen Spangenberg

 

There was no oversight when all the bankers were making the obscene profits.Now the FBI wants to crackdown.Where were they when we needed them the most.

 

Justice Texas Style



Charles Dean Hood sits on death row in Texas. After the trial , it was discovered that Judge Verla Sue Hood and the prosecutor Thomas S. O'Connell were having an extramarital love affair during the trial.Recently, Texas's highest court for criminal matters rejected Mr.Dean's appeal.The court held Mr.Hood waited too long to raise the issue  of whether a love affair between the judge and the prosecutor could create a conflict of interest.

 “A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself,” the brief from the ethics experts said. “Of all the courts to have considered the issue, only the Texas Court of Criminal Appeals in this case failed to recognize this imperative.” Reported Adam Liptak of the New York Times.

A former governor, former FBI director,U.S. Attorney, and a host of other judges and prosecutors have filed a brief in support of Mr. Hood's appeal to the United Supreme Court.

 

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North Carolina Frees Inmate

A North Carolina special state innocence commission recommended that a man convicted of murdering a prostitute be set free.A three judge panel found by "clear and convincing evidence" that Gregory F.Taylor was innocent and had been convicted with questionable evidence and untrustworthy testimony.Mr.Taylor is free today.

North Carolina is the only state that has established an Innocence Inquiry Commission.A eight member panel reviews claims of innocence by inmates.After a review of the claim, the case may be sent to a three judge panel if the first panel finds the claim has merit.

"North Carolina's commission is an important model for the adjudication of innocence claims"' said Barry Scheck of the New York Innocence Project.The Innocence Project uses DNA evidence to overturn wrongful convictions.However, over 90% of criminal cases  does not involve DNA evidence reports Robbie Brown of the New York Times.

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The Truth About Crime

The John Jay College of Criminal Justice  has announced a special showing of the BBC documentary "The Truth About Crime". The documentary is a fascinating study of the effects of crime and law enforcement in a town in England.It will be shown on the web and you can register here to watch the program.After the showing , a panel discussion will be held to discuss law enforcement issues and community services. It's a must see for those in the criminal justice system

Gun Charges in Nashville

Gun charges in Nashville ,Tennessee are serious business especially if you have a felony record.Rule 1,if you have a record please do not carry a weapon.You may wind up charged in federal court.There may be some new laws in Tennessee this term in the state legislature like the guns in bars bill.

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The American Legal System

Dahlia Lithwick covers the U.S.Supreme Court for Slate.Ms Lithwick reviewed  the book "Autobiography of an an Execution' by David Dow. Mr. Dow wrote an autobiography of his work in defending those who got the death sentence.NPR interviewed Mr. Dow about his book and his work in the field of capital punishment.It was an excellant interview that I happened to catch.

In the "Upfront "section of the New York Times Book Review, Ms. Lithwick is asked the question of what Americans don't know about the legal system.She replied :"That the legal system might be the single worst place to seek closure."  whatever closure is.Nobody is happy after a trip to  court.Nobody  ever feels vindicated or truly heard.."

I agree in some of her comments especially in the area of divorce or civil law.However, the criminal justice system provides closure.You enter a plea bargain ,the state may dismiss or you set it for trial.At trial, you will hear guilty of not guilty by the jury foreman . Case closed except for the appeals.

Witness Problems

It happens to every criminal lawyer both prosecutor and defense attorney. What to you do when your witness is missing ? Florida trial lawyer Elliott Wilcox, who writes the publication Trial Theater , wrote an article on his weekly newsletter on tips when your witness flies the coop or  is late to court. I highly recommend signing up for his free report Here's his tips plus my take.

1. Avoid the situation. Use your support staff as your witness coordinator. The District Attorney's Office in Nashville , Tn.uses victim witness coordinators to coordinate witnesses. Use your legal assistant or paralegal to do the same thing.Written directions are helpful to give the witness as well as telling them to be present 30 minute early. I would also suggest your witness coordinator sit at counsel table during the trial.Be mindful to instruct them regarding the sequestration rule .

2.Have a filler witness ready to go.I don't know about this tip. I want to keep my witnesses  short so some D.A  doesn't hammer an unsuspecting witness.

3.Take the heat. I like this one best.You have the law license.You take responsibility. A judge I clerked for gave me this advice and I still use it today.Most judges will give an attorney a little room if a witness is not there on time.

4.Ask for a break. If your staff has done their job they will pass a note that the alibi witness just got arrested. Ask for a break.Collect your thoughts and blow up the witnesses cell phone .

 

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Tips From "Making Your Case"

 A criminal defense attorney's work is not limited to jury trials.Most of the day to day work a criminal defense lawyer performs is trying to persuade a judge to embrace their legal position.From sentencing hearings , probation violation hearings , bond reduction hearings , and motions to suppress evidence , an attorney has to be able to make their case to the judge.

I have been rereading parts of Justice Antonin Scalia and Bryan Garner's book , Making Your Case The Art of Persuading Judges.There are three main points that bears mentioning for my fellow attorneys.

 

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Arrested in White Couny, Tn

My wife is  from Sparta ,Tn.Several years ago , her father purchased her a subscription to the local paper, The Expositor ,to keep up with local news. I often read the paper because I enjoy reading about small town life and the fabric it adds to being a Tennessean.However , I was shocked at a new feature the paper has added.

The Expositor has chosen to publish " Arrested in White County ".The Sparta, Tn.Newspaper publishes the names, photographs , and criminal charges of all those folks that have been arrested in White County. from January 1st to January 25th.  The Sparta paper does include a disclaimer that all those in this piece of journalism is innocent until they are convicted.However, once their picture is in print the damage is done.From reading the eight page report , the most popular crimes are promotion of methamphetamine  manufacture and domestic assaults. 

 

 

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Why The Criminal Justice System is Broke in Tennessee

Dwight Lewis of the Nashville Tennessean recently wrote about the need for a complete overhaul of the criminal justice system.Mr Lewis was addressing the federal system. However , the criminal justice system is in a shambles on the state level. You only have to look at the Tennessee State Legislature to find the problem.

The goal of a state legislator is not to help the public ,but to get reelected.So, everybody jumps on the get tough with crime agenda without any thoughts on how it effects the system.Two recent stories in The Tennessean illustrate the problem.

First, Gary Odom , a State Legislator from Nashville is proposing a new bill to revamp the sentencing laws that would require violent criminals to serve longer sentences.No copy of the bill has been provided .No details of funding were provided.When the sentencing laws were reformed in 1989 a commission was appointed and great detail and work was performed when The Sentencing Reform Act of 1989 was enacted.

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How to Get Criminal Charges Expunged in Tennessee

One of the primary questions I get in my practice is, "can I get my criminal charges expunged?" And once you plead guilty to a criminal offense, you cannot get your criminal record expunged at a later date. This is why it's important to avoid a conviction in the first place. 

However, under certain situations, you can have your record expunged IF your case was dismissed, retired, or if the District Attorney General moved for a Nolle Prosequi. There are also certain types of plea bargains that you can enter into that may allow you to have your record expunged at a later time.

These pleas are referred to as diverison plea agreements, and there are two types of diversions. 

  1. A pre-trial diversion: This is where a defendant enters into a memorandum of understanding to do certain things during a period of time. One condition is not to be rearrested.
  2. A Judicial diversion: This is when you enter into a plea, in which you enter into a conditional plea of guilt. If you violate the terms and conditions of your probation, the plea goes onto your criminal record. If you're successful, the conviction will go away after the period of probation.

In Clay Carey's recent The Tennessean article, Tennessee filings to erase arrest records rise with unemployment, I talk a little bit more about expungement as related to the current job market.