Want 30 Days Jail Credit ? Get a Vasectomy.

Nashville's News Chanel Five reported yesterday of one Tennessee judge's unusual method to reduce one's jail sentence. White County Tennessee General Sessions Judge Sam Benningfield entered a standing court order granting 30 days of jail credit to those serving jail sentences. The catch to getting the jail credit is to agree to have a vasectomy or the have a birth control device implanted.

It strikes me as an extreme abuse of judicial power. Judges in Tennessee determine the jail sentence if no plea bargain is entered into. The court holds the keys to the jail cell once a sentence is imposed. It puts the court in an unfair bargaining position. Everybody in jail wants out of jail. To force one to have themselves robbed of their ability to reproduce is a practice that should not be tolerated. To his credit, the local District Attorney General Bryant Dunaway agrees. Here is his statement from the report.

 

District Attorney Bryant Dunaway, who oversees prosecution of cases in White County is worried the program may be unethical and possibly illegal.

“It’s concerning to me, my office doesn’t support this order,” Dunaway said.

“It’s comprehensible that an 18-year-old gets this done, it can’t get reversed and then that impacts the rest of their life,” he added.

The American Civil Liberties Union also took a position.

"Offering a so-called 'choice' between jail time and coerced contraception or sterilization is unconstitutional. Such a choice violates the fundamental constitutional right to reproductive autonomy and bodily integrity by interfering with the intimate decision of whether and when to have a child, imposing an intrusive medical procedure on individuals who are not in a position to reject it. Judges play an important role in our community – overseeing individuals’ childbearing capacity should not be part of that role."

In Davidson County Tennessee, it is common to work out a probation violation case on the condition that the defendant will enter a drug or alcohol program and be released upon the condition that they complete the program. This is completely different than court sanctioned sterilization. While the court's actions may be well intended, it is simply wrong. No Tennessee law sanctions this type of conduct by the courts to reduce jail time.

I suggest we watch this story and see how it develops.

Major Issues in Nashville's Criminal Justice System

Last night, I attended a panel discussion on criminal justice issues in Nashville, TN. The panel was hosted by the Davidson County Democratic Party. Judge Steve Dozier, District Attorney Glenn Funk, Sheriff Daron Hall, and Davidson County Juvenile Court Magistrate Carlton Lewis were a few of the panelists. Here is a few of the most pressing issues that were discussed.

  • Gun Violence and Youth

Everyday the news reports some episode of youths involved in gun violence. Is there a solution to the problem ? The Tennessee Legislature must accept some of the responsibility in the rise of gun violence. Every year the laws are modified to allow firearms in more places. There is no quick fix to stem the tide of gun violence according to the panelists. It is easier to obtain firearms. A general consensus is that all those under 30 have some type of firearm. Even those under 18 have firearms.

One proposal advocated by General Funk is to speed up the prosecution of felons possessing weapons. In the past, a firearm prosecution might be deferred to determine whether the Feds would take over the prosecution. Here is my proposal. Stop the source. Maybe we should crackdown on the sellers. Do an underage stings to see if a gun dealer will sell to a minor.

  • Bail Bond Reform

Bail bond reform should be addressed. Why ? Our current bail bond system is just another form of punishment imposed on those less fortunate. One problem preventing bail bond reform is the private bail bond system is firmly entrenched with supporters in the state legislature.

What's the solution ?

Sheriff Hall spoke on expanding the scope of pretrial release. Pretrial release is a program run by the Davidson County to release citizens on their own recognizance. A fee of $35.00 is paid and they have to call in once a week. I would urge the pretrial release program to take all misdemeanor cases and Class e felony cases where the citizen lives in Middle Tennessee. General Funk discussed a proposal where bonds would be reviewed in certain cases where a person might be released without making bond.. My big complaint is the excessive  amount of the bail bond and the source hearing for nondrug offenses.

  • The Opioid Crisis.

The General Sessions Courts and the Criminal Courts in Davidson County have embraced drug treatment. Judge Norman is a pioneer in the creation of drug courts. The opioid epidemic is more problematic. While I was waiting for my hearing at the Tennessee Board of Nursing, one doctor testified it took at least 12 months to rewire the brain from opioid addiction. There is a glaring need for a dedicated half way house for those struggling with opioid addiction. One measure that needs to be reviewed is how courts deal with probation violations on a failed drug screen. There needs to be more alternatives rather than jail.

 

Nashville is facing problems in our criminal justice system. I am proud of our leaders for appearing at a public forum for a frank discussion of these very important issues.

Major Issues in Nashville's Criminal Justice System

Last night, I attended a panel discussion on criminal justice issues in Nashville, TN. The panel was hosted by the Davidson County Democratic Party. Judge Steve Dozier, District Attorney Glenn Funk, Sheriff Daron Hall, and Davidson County Juvenile Court Magistrate Carlton Lewis were a few of the panelists. Here is a few of the most pressing issues that were discussed.

  • Gun Violence and Youth

Everyday the news reports some episode of youths involved in gun violence. Is there a solution to the problem ? The Tennessee Legislature must accept some of the responsibility in the rise of gun violence. Every year the laws are modified to allow firearms in more places. There is no quick fix to stem the tide of gun violence according to the panelists. It is easier to obtain firearms. A general consensus is that all those under 30 have some type of firearm. Even those under 18 have firearms.

One proposal advocated by General Funk is to speed up the prosecution of felons possessing weapons. In the past, a firearm prosecution might be deferred to determine whether the Feds would take over the prosecution. Here is my proposal. Stop the source. Maybe we should crackdown on the sellers. Do an underage stings to see if a gun dealer will sell to a minor.

  • Bail Bond Reform

Bail bond reform should be addressed. Why ? Our current bail bond system is just another form of punishment imposed on those less fortunate. One problem preventing bail bond reform is the private bail bond system is firmly entrenched with supporters in the state legislature.

What's the solution ?

Sheriff Hall spoke on expanding the scope of pretrial release. Pretrial release is a program run by the Davidson County to release citizens on their own recognizance. A fee of $35.00 is paid and they have to call in once a week. I would urge the pretrial release program to take all misdemeanor cases and Class e felony cases where the citizen lives in Middle Tennessee. General Funk discussed a proposal where bonds would be reviewed in certain cases where a person might be released without making bond.. My big complaint is the excessive  amount of the bail bond and the source hearing for nondrug offenses.

  • The Opioid Crisis.

The General Sessions Courts and the Criminal Courts in Davidson County have embraced drug treatment. Judge Norman is a pioneer in the creation of drug courts. The opioid epidemic is more problematic. While I was waiting for my hearing at the Tennessee Board of Nursing, one doctor testified it took at least 12 months to rewire the brain from opioid addiction. There is a glaring need for a dedicated half way house for those struggling with opioid addiction. One measure that needs to be reviewed is how courts deal with probation violations on a failed drug screen. There needs to be more alternatives rather than jail.

 

Nashville is facing problems in our criminal justice system. I am proud of our leaders for appearing at a public forum for a frank discussion of these very important issues.

Ramifications of Jeff Session's Untruthful Testimony

It appears from the news accounts that U.S. Attorney General Jeff Sessions may have given untruthful testimony under oath before the U.S. Senate. What are the ramifications ? Let's look what could happen to Mr. Sessions under Tennessee law.

First, Mr. Sessions committed aggravated perjury under Tennessee's criminal laws. Perjury is defined in Tennessee as a false statement under oath during or in connection with an official proceeding. It is a Class D felony. After it was discovered that Mr. Sessions made a false statement under oath, he tried to fix it. Retraction is a defense to perjury under Tennessee law. However, the retraction must be made before the completion of the testimony at the official proceeding.

Let's turn to his law license next. To be an attorney general one must be licensed to practice law. Recently, I appeared at the Tennessee Board of Law Examiners on whether a law school application contained an omission. Here, Mr. Sessions made a false statement to the U.S. Senate under oath. Under Tennessee's rules of professional conduct, Mr. Sessions appears to have violated the rule that a lawyer shall not offer evidence the lawyer knows to be false.

The country's top lawyer has now been caught red handed being untruthful. Can the country tolerate this type of behavior ? I think not. This reminds me of the old TV show " I Love Lucy" when Desi tells Lucy you got some explaining too do.

Are Nashville Public Defenders Overworked ?

Steven Hale wrote an article in last week's Nashville Scene on the Nashville Public Defenders Office overwhelming caseload. One visit to any of the criminal courtrooms in Nashville supports that conclusion. The article does a great job setting out the facts and the money issues. A hearing was held last year arguing a case should be dismissed based upon a denial of a speedy trial. The main focus of the motion was that public defenders were over worked and could not prepare the defense.The Nashville Public Defender was represented by three attorneys at the hearing. Ms. Deaner's attorneys assert that the office should have 67 full time lawyers rather than the 44.5 full time attorneys on staff.

What should we do to solve the problem ? First, taxpayers are not thrilled that their tax dollars are being used to defend alleged criminals. The only real solution is to increase funding for the public defenders office. The Constitution demands us to fund indigent defense. I do not predict any relief from the state. It does appears that Nashville receives less per case that the state average. Since the government is not willing to step up to the plate, what else can be done ?

Effective January 1, 2017, the Nashville Public Defenders Office will not be accepting  misdemeanor criminal cases where the accused makes bond. Now the next question is what does that mean to the folks who don't get a public defender ?

Misdemeanor cases are just as important as a felony charge. Collateral consequences occur with most convictions especially a DUI or domestic violence charge. So what happens when the public defenders refuse to accept a misdemeanor bond case ?

You get a court appointed lawyer. According to the article, it will be a crap shoot. The judge or the judge's assistant will appoint a lawyer to your case. Here is an example in one case. Accused is screened by the public defender. A judge's secretary hands the accused a card to call lawyer.  Remember every judge is different and each will have a different policy.

 The lawyer may be experienced or  fresh out of law school. May have never handled a case like yours before. No formal training on handling the defense of a DUI case. Once the case is over, the court appointed lawyer will not expunge your record if the case is dismissed. Just because you"re a lawyer does not automatically make you a criminal defense lawyer. The people who may suffer is the folks who can get out of jail but not able to get a lawyer. Also, folks might even decide to go without a lawyer and waive their right to a lawyer. Let's see what happens in a couple of months.

The Sorry State of Wages for an Appointed Counsel

Henry Martin is the federal public defender for the Middle District of Tennessee. In today's Tennessean, Mr. Martin wrote a very thoughtful letter to the editor about the duty of a public defender. One of his comments was about the pay of new lawyers. One New York law firm recently announced that new hires would get $180,000.00. The starting pay is way above the salary of public defenders and Tennessee state court judges. The bigger issue is the pay scale to appointed counsel for indigent defendants.

In some cases, the courts must appoint counsel to represent indigent defendants in criminal cases. The Constitution demands that all folks are entitled to a lawyer. Conflicts arise where a lawyer must be appointed to represent one accused of a crime.

The problem is the pay is lousy. Currently, an attorney for an appointed counsel gets paid $40.00 per hour in court and $50.00 for in court time. There is a cap on the amount of time one can charge on each case. Some folks reading this will think $40.00 per hour is great pay. Let's look at it a little tighter.

What needs to be deducted from that number ?

  • Health Insurance
  • Office Rent
  • Saving for Retirement
  • Taxes
  • Office Expenses.

The list can go on.

The Tennessee Supreme Court has set up a series of listening tours on the subject. Get involved. Reach out to the folks that make a difference. The question is should we provide adequate compensation for those who represent folks charged with a crime.

 

The Sorry State of Wages for an Appointed Counsel

Henry Martin is the federal public defender for the Middle District of Tennessee. In today's Tennessean, Mr. Martin wrote a very thoughtful letter to the editor about the duty of a public defender. One of his comments was about the pay of new lawyers. One New York law firm recently announced that new hires would get $180,000.00. The starting pay is way above the salary of public defenders and Tennessee state court judges. The bigger issue is the pay scale to appointed counsel for indigent defendants.

In some cases, the courts must appoint counsel to represent indigent defendants in criminal cases. The Constitution demands that all folks are entitled to a lawyer. Conflicts arise where a lawyer must be appointed to represent one accused of a crime.

The problem is the pay is lousy. Currently, an attorney for an appointed counsel gets paid $40.00 per hour in court and $50.00 for in court time. There is a cap on the amount of time one can charge on each case. Some folks reading this will think $40.00 per hour is great pay. Let's look at it a little tighter.

What needs to be deducted from that number ?

  • Health Insurance
  • Office Rent
  • Saving for Retirement
  • Taxes
  • Office Expenses.

The list can go on.

The Tennessee Supreme Court has set up a series of listening tours on the subject. Get involved. Reach out to the folks that make a difference. The question is should we provide adequate compensation for those who represent folks charged with a crime.

 

Durham's Trespassing Complaint

The Tennessean's follow up story to the Nashville Scene reporter being arrested for trespass had an interesting side story. The Tennessean complained in the story about not getting a copy of the complaint after multiple requests by the paper. It is standard procedure that no information is released in Nashville Davidson County until the warrant or indictment is served.

Attorneys for the accused cannot even get a copy of the arrest warrant. Inside the four corners of the arrest warrant, the affidavit of complaint is listed. It is a short summary of the evidence which supports the probable cause for the arrest. One cannot get a copy under the guidelines established by the booking office. Think you have an arrest warrant against you ? You can't just call in and check. The folks at the booking office want you to come on down to check in person. If you have an active warrant, surprise you are now under arrest. The Tennessean complains they did not get a copy after requests are made. Sorry but you are not entitled to get a copy at this juncture.

 

Here is the problem. according to the article, the Davidson County Sheriff's office released a copy of the complaint to the newspaper. The reporter, Carrie Wade Gervin was not served with the criminal citation until the next morning.

 It was a clear violation of long established policy by the Davidson County Sheriff's Office. No information is provided on cases where the accused has not been served with process. Was the policy violated solely for the Tennessean ?

Questions About the Criminal Justice System We Can't Answer

The Marshall Project provides excellent commentary regarding the criminal justice system. A recent post was titled 13 Important Questions About  Criminal Justice We Can't Answer. Today's post focuses on one question. How many criminal cases are referred to prosecutors and how do they decide which to pursue.

I have never been a prosecutor so I know little of the internal workings of case evaluation in various district attorney's offices. My insight is solely from a criminal defense lawyer's perspective. Most cases are referred to the district attorney's office by law enforcement.

The most common method for case going to the district attorney's office for prosecution is an arrest warrant. After an arrest warrant is taken out, the case is docketed. An assistant district attorney will review the facts contained in the arrest warrant.The assistant district attorney (ADA) will then make a decision to prosecute the case, offer a plea bargain, or dismiss the case. I am not aware of any readily available data of the percentage of the cases they actually pursue.

In criminal cases in Nashville, Tennessee, the court may be reset to have police officers subpoenaed or private witnesses present. At the trial date, the ADA will interview any potential witnesses to further evaluate the case. if the case can't be resolved a preliminary hearing should be conducted by the defense lawyer. It is a great opportunity to demonstrate some potential weaknesses in the case.

The case is also reviewed by the district attorney during the grand jury process. Again, there is no raw data available if the case is screened and who decides on whether to present the case to the grand jury. On rare occasions, the local grand jury can find there is sufficient evidence and refuse to return an indictment. Interestingly, the prosecutors in Cheatham County will sometimes allow the defendant to testify at the grand jury proceeding.

In some cases, law enforcement can present the cases directly to the grand jury for a sealed indictment. It is most commonly used in sex crimes , rape of a child, and aggravated sexual battery. The district attorney's office reviews child sex cases with a team approach with the use of police, an ADA, and an investigator of the Department of Children's Services.

In answering the question posed by the post, there is insufficient data to answer the question. The main takeaway is the power of the local district attorney's Office in deciding which cases to pursue and which cases to drop.

Willaimson County Public defenders Take a Hiatus

I was in the Circuit Court for Williamson County , Tennessee recently. The court announced that the public defenders had requested not to be appointed to any new cases for a short period of time. The judges agreed and started to appoint local attorneys to represent indigent defendants. The District attorney objected and requested to file an objection. The Tennessean reported on the story this week.

Caseloads for the public defender's office is exploding across our country. Paying for indigent defense is not a popular subject for most of our citizens, but it is a constitutional requirement to provide effective representation. Can representation be effective when a criminal defense attorney does not have sufficient time to work on a case ? The complaint by the Williamson County, Tennessee Public Defenders is caseload volume.

The National Association of Criminal  Defense Lawyers ran an article in The Champion several months. It urged it was time to update the American Bar Association's ten principles  of a public defense delivery system. One of the principles is declaring the unavailability of the public defender. One of the guidelines set forth is  to advise the court when their workloads become excessive. The report does not require the public defender to file any motion with the court. I applaud the trial judges in Williamson County in issuing the memorandum regarding the excessive workload of public defenders.

In reviewing the ABA principles for public defense, there is no procedure for prosecution objections. Lawyers have an ethical duty to not take on more cases than they can provide competent legal services. It is even more critical when a person's fate is going to prison. In some discussions, some people say the assistant district attorneys have a bigger caseload than the public defenders. Let's take a look at that issue.

The district attorneys have a fleet of investigators called police officers or detectives. They have access to a crime laboratory with folks with specialized knowledge. Some Tennessee district attorney's offices have dedication victim witness coordinators whose job it is to help with the witnesses in the case. Most public defenders or court appointed lawyers do not have access to those resources. true, a public defender or appointed counsel can file a motion for funds for an expert or investigator but the purse strings are held by the Tennessee Administrative Office of the Courts.

Who knows better about how many cases the Public Defenders can ethically accept....the public defenders and the Judges or the District Attorney? it is not popular to support funding for indigent defendants. it takes courage to make tough decisions. the trial judges in Williamson County took a stand for ethical , effective , and high quality representation for those that simply can't afford a criminal defense lawyer.

Tennessee Alcohol Beverage Commission Citations

The Tennessee Alcohol Beverage Commission regulates the sale of wine and liquor in Tennessee. It also has an enforcement division. The Tennessee Alcohol Beverage Commission (ABC) has over thirty investigators. Besides granting licenses, they also look for violations of the law. Underage drinking and the sale of alcohol to those that are already intoxicated are the primary focus of their investigations.

The ABC is given grant money from the Governors Highway Safety Office to conduct stings. A sting is usually accomplished by using someone under 21 to try to purchase a beer or a drink. An agent is in tow and often these stings are video recorded. If a violation occurs, a criminal citation or an arrest of the server or bartender will take place. Later, the ABC will issue a citation to appear before the ABC on the issue of a revocation of their ABC license. It may even include a referral to the local beer board. It is serious business to the owner of the bar or restaurant. A couple of citations may lead to a revocation of your ABC permit or your beer permit.

Once the ABC has learned of a violation, they must go back to the permit holder's business to conduct another sting pursuant to the grant. The bottom line is once you violate the law you begin a target for a follow up visit.

In Nashville, the criminal offense of selling alcohol to a minor can often times be handled successfully. The bigger issue is the Nashville Davidson County Beer Permit Board and the Tennessee Alcohol Beverage Commission. A business owner must be prepared to face these charges. Our office has handled both the criminal aspect and the civil side of the permit for some time. For more information, you can visit our website on Tennessee alcohol beverage law.

Greene's Fall From Councilman to Accused

Former Nashville Metro Councilman had a rapid fall. Loniel Greene won a recent election as a Metro Councilman. Greene later resigned to avoid any criminal charges but he was not so lucky. Greene was indicted last week for coercion of a witness in an on going domestic violence case.

Greene made some phone calls to his cousin while he was in the Nashville Metro jail. All jail phone calls are recorded. Both Greene and his cousin knew of this fact. Yet, Greene promised to "work on" the woman. Greene appeared in court on a bail bond source hearing. The Nashville criminal courts have adopted a procedure that requires a hearing to determine the source of the money for any bail bond set over $75,000.00. Mr. Greene admitted he lied at the source hearing. After the source hearing, assistant district attorneys combed over the jail house telephone calls. You can listen to the jailhouse calls here. They discovered Mr. Greene was lying at the source hearing which triggered his downfall.

A motion to revoke his cousin Tavares Buchanan bond was filed. A deal was cut. Mr. Greene would resign his post as councilman and he would testify against Mr. Buchanan. In exchange, Mr. Greene would get immunity. It did not go as planned.

With lighting speed, the Davidson County Grand Jury returned a true bill charging him with coercion of a witness.

39-16-507. Coercion of witness.

 

(a)  A person commits an offense who, by means of coercion, influences or attempts to influence a witness or prospective witness in an official proceeding with intent to influence the witness to:

     (1)  Testify falsely;

     (2)  Withhold any truthful testimony, truthful information, document or thing; or

     (3)  Elude legal process summoning the witness to testify or supply evidence, or to be absent from an official proceeding to which the witness has been legally summoned.

The lesson learned is never talk on a telephone where you know it is recorded.

My Christmas Wish List for Criminal Justice in Tennessee

It is the Christmas season. Christmas brings dreams of presents under the tree and goodies to eat. Since , I no longer get a toy. I was making a wish list for the criminal justice system in Tennessee. Here they are in no particular order:

  • Dash cams for all patrol cars in Nashville Davidson County, Tennessee.
  • Open discovery. It is a concept where the district attorneys open their file to let you look at the evidence.
  • Abolishing the Jenck's Act. The Jencks Act codified under Rule 26.2 of the Tennessee Rules of Criminal Procedure. An attorney only gets to read a witnesses statement after they testify. How can you make an effective decision on whether to plea guilty.
  • The right to take a deposition of the primary police officer in charge of the case.
  • The rates for those representing indigent defendants be increased.
  • For the return to an independent judiciary.
  • District Attorneys who present the correct charge rather than indicting a more serious charge to force a plea bargain.
  • A Tennessee legislature that makes solid judgments rather than make a knee jerk reaction to curry favor to certain segments of the voters.
  • End mass incarceration.
  • Protect the Fourth Amendment.
  • Allow partial expungements.

My associate has two Christmas wishes.

  • A database of all negative alcohol screens.
  • A database of all false positive drug dog hits.

I bet I don't get anything in my Christmas stocking.

 

Tis the Season for IdentityTheft

It is Cyber Monday. All through the house goes the click of a mouse buying presents to be placed under the tree. While Santa is shopping the evil Grinch is trolling for your credit card information. I just read a news release by Cybersecurity expert Tony Perez. Here are some of the takeaways.

1.What are some of the most important things to protect you from Identity theft ?

  • Don't answer texts or emails from unknown sources.
  • Don't answer emails from the IRS because they don't send emails.
  • Don't answer emails from Nigeria or other strange countries.
  • Remove your personal information from your computer.
  • Create passwords with numbers, characters and do not use your account name.

2. is it okay to have a website store your credit card information ?

It depends if they have a green URL certificate .

3.Should you have your social security number on medical documents ?

  • You should try to avoid doing so if possible. If they require it, ask about how they protect your information.

Tennessee's identity theft laws are lengthy. Here is a link to Tennessee's law on identity theft.

The bottom line is to protect your online identity just like you would your wallet or your purse.

 

Tennessee Alcohol Beverage Commission Underage Stings

 The Tennessee Alcohol Beverage Commission (ABC) have been busy conducting underage alcohol stings in Nashville Davidson County Tennessee this summer.. The ABC and the Davidson County Beer Board have concurrent jurisdiction on enforcement of underage sales to minors. It is also a criminal offense to sale beer or alcohol to minors under T.C.A. 57-5-301 .Here is how the sting works and the consequences of the sale.

First, a ABC agent goes into a bar or restaurant with someone that is under 21. The confidential informant asks to buy a beer. The server or clerk does not ask for a identification or makes a mistake in reading the date of birth. If the sale is made, the officer will issue a criminal citation to the server or clerk for the sale to a minor. It is a Class A misdemeanor which carries a fine up to $2500.00 plus up to 11 months and 29 days in jail.

The permit holder then faces some punishment. You will get a citation from the ABC. The punishment can be a fine or it it lead to a revocation of your ABC permit. Then, one will get a citation from the Davidson County Beer Board. A first offense carries up to a $2500.00 civil penalty.

There are three separate punishments for the sale of one beer to a minor. The criminal citation is usually the easiest to handle successfully. The ABC and beer board are a different ballgame. I was a member of the Davidson County Beer B. since , my term was not renewed by an incoming mayor, I have been handling cases before the beer board and the ABC. It is a maze of administrative laws that is sometimes hard to navigate especially the appeal process. The bottom line is to hire good folks and make sure they are rained to ask for identification from everyone.

Time to Abolish the Tennesseee Habitual Motor Vehicle Offender Laws

Is it time to abolish the habitual motor vehicle offender law in Tennessee. the habitual motor vehicle offender law was enacted to prevent people with qualifying  criminal convictions from driving. A petition to declare one a habitual motor vehicle offender based on the number of DUI convictions as well as other driving offenses such as driving on a revoked driver's license. Once you were declared a habitual motor vehicle offender, it was a Class E charge if you got caught driving. A Class E felony charge carries one to six years in jail.

Why should Tennessee abolish the habitual motor vehicle offender law ? The answer is easy. Require ignition interlock devices. Several years ago the Tennessee state Legislature passed one of their better laws allowing anyone with a revoked license to apply for a restricted driver's license with an ignition interlock device (IID). The benefit is twofold. First, people would be driving legally and with the IID. It would prevent more DUI arrests. It would also promote sober driving. Studies show the use of the IID have a lower recidivism rate than those that don't use the IID. Secondly, It would decrease incarceration rates and save those jail cells for those of convicted of crimes.

I would invite my friends at the state legislature to look into the issue. Would we rather ban someone from driving for three years in Tennessee when we know they are going to drive anyway or should we make the roads safer ? Give me a call. I would be happy to make some suggestions. Some progressive district attorneys are working with defense lawyers to solve the problem. It is time to revisit the habitual motor vehicle offender law.

The Sad and Tragic Case of Sandra Bland

Sandra Bland was laid to rest this past weekend . Ms. Bland's arrest and death has been widely reported in the media. Questions linger on why she was arrested and the circumstances leading to her death. Coming back from court her story was featured on the radio program On Point . CNN ran a  video on a citizen's rights during a traffic stop. What are a citizen's rights during a traffic stop in Tennessee ?

Once stopped for a traffic violation a citizen must display the following;

  • A driver's license.
  • Proof of vehicle registration.
  • Proof of automobile insurance.

Can the police order you out of your car ?

Under the U.S. Supreme Court case of Pennsylvania v. Mimms,  the court embraced the concept that a officer could order a citizen out of a car . The Tennessee Supreme Court in Donaldson ruled that a police officer could order a citizen out of their car during a traffic stop.

Can a Tennessee police officer arrest you for a traffic offense ?

The quick answer is yes. All state traffic citations are Class C misdemeanors . Class C misdemeanors are punishable by up to 30 days in jail. In reality , most police officers in Tennessee will issue a criminal citation in lieu of an arrest. Criminal cases may be dismissed if a police officer issued an arrest warrant instead of a criminal citation.

Here is the teaching point. Don't fight your case in the street. Police have an advantage on the street. No pesky criminal defense lawyers are present. No judges are present. The police have weapons, tasers, and handcuffs. police are always worried about their safety. Treat police officers with respect. Most of the police officers will treat you with respect if you do likewise.

Rest in peace Ms. Bland.

New California Law Allows Illegal Residents To Get License

 

After California enacted a new law earlier this year, illegal residents became eligible to obtain a driver's license. The California Department of Motor Vehicles reported over 397,000 drivers licenses were issued to illegal residents for the first six months of this year. In Tennessee , a illegal resident is prohibited from obtaining a Tennessee driver's license.

Tennessee needs to follow California's example. Thousands of illegal residents live and work in Tennessee. There exists a double standard. Businesses hire illegal residents to work. Yet, it is not acceptable to allow them to apply for a license. Take a visit to Court Room 1A in the A. A. Birch Building in Nashville where the criminal citations are handled.. You will see the courtroom flooded with folks. Their only crime is driving without a valid Tennessee license. Police officers issue criminal citations. Judges, public defenders , prosecutors , and translators work to process the cases. Resources wasted.

Supporters of the California law argue that allowing illegal residents to apply for a driver's license makes the roads safer. One has to pass a test and take a driving test. Now, folks drive without any testing. If one had a license , maybe the streets would be safer.

I know it is just wishful thinking, but it is time the Tennessee Legislature tackles this issue. I know it is unpopular with certain segments of the population. It is the right thing to do.

 

Representing Non-Citizens and Obama's New Proposal

 

 

In November 2014 , President Obama announced that t his administration would not deport certain undocumented persons who are the parents of U.S. citizens or lawful permanent residents if they qualify for Deferred Action for Parental Accountability (DAPA). Since Padilla , it has been extremely important for a criminal defense lawyer to be cognizant of the immigration consequences on the outcome of a criminal case. The Collateral Consequences Resource Center  recently posted on DAPA . The post also contained a link to a practice advisory for criminal defense lawyers in dealing with this issue. I highly recommend downloading the practice advisory prepared by the National Immigration Project.

Without  getting into the who is qualified for DAPA , lets look at what criminal offenses disqualify one from the program.

  • A felony conviction.
  • Three misdemeanor convictions.
  • Conviction of one significant misdemeanor.

The enforcement memo defines a significant misdemeanor as ;

  • Domestic violence
  • Sexual abuse or exploitation
  • Unlawful possession or use of a firearm
  • Drug sales
  • Burglary
  • Driving under the influence of alcohol or drugs
  • Sentences of 90 days or more ,excluding suspended sentences

 Criminal defense lawyers must master criminal law , criminal procedure and evidence . Now , we must know immigration law or consult with immigration lawyers.

Tomorrow , I will be discussing the strategies in dealing with these new problems.

 

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How To Tell Your Parents That You Were Arrested ?

Last Sunday , I was enjoying my early morning routine of French press coffee , reading the Tennessean , New York Times , and Twitter. I came across a tweet from attorney Lee Rosen about a blog post from lawyer Liz  Davies . The topic of the post was " How to tell your parents your getting a divorce". it made me think about that same issue in my practice . Since Nashville is a college town with Vanderbilt , Belmont , David Lipscomb , and Tennessee State , I represent a lot of college students facing DUI and criminal charges . It gave me the idea for today's post. How to tell your parents that you were arrested ?

  • You don't have to tell them and handle it yourself.

If you do , here are some thoughts;

  • Your parents first reaction will be disappointment .Be ready to deal with it .
  • Explain what generally happened .
  • Do not give facts about the case . Precise facts should be shared only with your lawyer.
  • Tell your parents what you learned from the situation.
  • Tell your parents how you are going to avoid it from happening again and mean it.
  • Tell your parents what your thoughts are on resolving the criminal charges.
  • Once you or your parents hire a lawyer , have a telephone conference with you , your lawyer , and your parents to discuss the framework of the case and strategy. Again , do not discuss the details of the case with anyone except your lawyer.

If your in college , keep your parents in the loop about what is going on with the case. Your parents are invested in your education and future.

One last thing ,bored on Sunday morning . Please follow me on twitter https://twitter.com/robmckinney

 

Take Control of Your Schedule

I had posted some suggestions set out by lawyer Nicole Black on how to be a happy lawyer . One of her suggestions is to take control of your calendar . I could not agree more. Criminal defense lawyers in Nashville, Tennessee calendars are set by the court. Settlement dates, arraignments , motion hearings , trials , plea dates are set by the court or the clerk. Lawyers must gain control of their calendar in order to establish a work-life balance. This week a trial court set a murder trial for a defense lawyer on the week of his wedding which might be over the top.

What do we need to do in order to gain control of our calendar and our lives ?

  • When we file a motion in criminal court , put a notice of when you want the motion to be heard rather than filing the motion and getting the notice from the clerk when you have a conflict.
  • Block out some personal time or vacation time for 2015 now.
  • Block out the day after you get back to catch up , return calls ,  and take care of office business rather than launch into a trial on your first day back.
  • Set all of your cases on one day. In the new domestic violence docket , you might be able to set all your cases on one day of the month.
  • Block out time of the week for you. last summer , I left the office at 4:30 every Wednesday to play nine holes of golf in a weekly tournament.

Practicing law is hard enough without placing undue stress on yourself. Lord knows I have been doing it for years I have often had court in different counties at the same time. I just hope I can start practicing what I am preaching.

 

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

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

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

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

 

 

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

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

 

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

Why Tennesseans Need To Retain The Supreme Court Justices

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

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

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

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

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

Does the Attorney-Client Privilege Extend past Death ?

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

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

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

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

 

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

 

 

 

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

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

believes that the client would have consented.

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

Professional Responsibility, provided in part:

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

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

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

waiver of the attorney-client privilege…

 

 

Should Former Prosecutors Be a Judge ?

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

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

RULE 2.2 Impartiality and Fairness

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

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

 

Should Voters Elect The Tennessee Supreme Court ?

The Tennessean's, Frank Daniels, III, wrote a recent opinion piece on The Tennessee Plan for judicial selection. Mr. Daniels urges Tennesseans to push for the right to popularly elect judges. Currently, the Supreme Court, the Court of Appeals, and the Court of Criminal Appeals are not elected by popular vote. I do not know if Mr. Daniels has ever stepped foot in a courtroom or his experience  in the field. However, take it from someone that spends the majority of his days in our Tennessee courtrooms, Mr. Daniels' call for a partisan election is foolish.

First, a little history is in order. In 1971, Tennessee enacted a plan for merit selection for all judges on the Tennessee Supreme Court, Court of Appeals, Court of Criminal Appeals and vacancies at the trial court level. The goal was to remove political influence, money pressure from special interest groups in hopes of  providing better administration of justice. Also, the judges were vetted by a selection committee. For more than forty years, the Tennessee Plan minimized partisan politics and focused on selecting the best judge possible. More than thirty-four states have this plan.

Mr. Daniels' call is based on Article VI, Section 3 of Tennessee's Constitution, which provides that the judges be elected by qualified voters of the state. The spirit of the Constitution is being followed by the retention election. Once a judge is appointed, the judge must be retained for future service. In fact, the voters have voted out a supreme court judge in the past. Here is an excerpt from Mr. Daniels' column:

"We will hear a lot about how bad it will be for our judges to be part of a political process; how corrupting money in campaigns can be; how voters don't take the time to know much about the candidates for judge; and how a merit selection process ensures that our judges will be impartial.

To me, that all sounds like manure."

That is exactly why the current system should remain in place. If we do away with the current plan, it opens up the door for abuse by people like billionaire brothers dumping cash into elections and even some special interest groups buying justice. John Grisham wrote about the possibility of this very issue. Further, there is one election in West Virginia that was bought and paid for by a coal mine operator.

The Tennessee Bar Association has created some information on the subject. You can read the pdf here.

Let's keep money, politics, and special interest groups out of the courtroom and the appellate courts. Let's keep the Tennessee Plan.

Follow Up to The Proposed Open Carry Firearms Law

Here is a follow up to yesterday's post on the proposed law to allow open carry of firearms in Tennessee. Currently, T.C.A 39-17-1307 makes it illegal to carry a handgun at a place open to the public where one or more persons are present. It is currently a Class A  misdemeanor and a punishment of up to 11 months and 29 days in jail. The new law will repeal this law.

Why is this law a terrible idea? Can you imagine the chilling effect to Nashville tourism. People walking the streets of lower Broadway "packing heat." It is not a sight that makes people come to Nashville. How about Memphis in May? Imagine Beale Street  with "a few guns" around?

Gun rights must be balanced with common sense about public safety. All bills must have a fiscal note or how much a bill will cost the State to enact the law. Has the Tennessee Senate thought about lost sales tax revenue from people not visiting Nashville?

I just do not see a problem with the current handgun carry permit law that is now in effect. If it ain't broke, don't fix it. Unless your trying to get campaign donations from the gun lobbyists.

 

The Dumbest Law Ever

Senator Mae Beavers led the passage for one of the dumbest laws ever passed by the Tennessee Senate. The Open Carry Firearms Freedom Act  would allow a person to openly carry a firearm around the streets of Tennessee . No more of those pesky handgun permits where your criminal record is checked . No more of those firearm safety classes. Just strap your Glock on your side and walk around. Beavers stressed the true point was removing the $ 115.00 fee for the carry permit.

The number one goal of government is to ensure the safety of the public. I for one will not be safe knowing that most people will now have a gun in their car , purse or strapped on their side. I am sure the police and law enforcement want everybody to be armed when they stop someone for a speeding ticket.

The days of the wild west is over . Gunfights in the streets belong in a different era. I have not heard one complaint about the handgun carry permit process .The cost is small for some basic checks for the safety of the public. I own firearms , but this bill is insane . Our Legislature is out of control or better yet is controlled by special interest groups like the gun lobby. My only hope is that the House will stop this bill. I have seen what a handgun does. It kills people , lives destroyed ,heartbreak. This bill will create more shootings . The violence must stop.

What Does a District Attorney General Do ?

In Davidson County and Rutherford County , there are contested elections for the office of District Attorney. Some voters just have a vague notion of what the duties are of the District Attorney. I have a confession to make, even though I have been practicing criminal defense law since 1994, I never read what the statutory duties are of the District Attorney are until this year.  I was researching what duties are not delegable. In thinking about the election, I thought I would share what are the duties of the District Attorney General.

The office of District Attorney General was created under Article VI Section 5 of the Tennessee Constitution. The Tennessee Legislature spelled out the duties of the District Attorney General in T.C.A. 8-7-103.

Each district attorney general has the following duties:

(1) Shall prosecute in the courts of the district all violations of the state criminal statutes and perform all prosecutorial functions attendant thereto, including prosecuting cases in a municipal court where the municipality provides sufficient personnel to the district attorney general for that purpose;

(2) Shall prosecute in the federal court all criminal cases removed from a state court in the district to any inferior court;

(3) May cooperate and assist, upon the request or direction of the attorney general and reporter, in the bringing, prosecution, defense, preparation, and trial of all cases in the circuit and chancery courts in which the attorney general and reporter is required to appear for the protection of the state or the public interest;

 

(4) Shall give an opinion, without charge, whenever called upon by any county officer in the district, upon a question of criminal law relating to the duties of the county officer's office;

(5) Shall submit to the office of executive director for the district attorneys general conference within ninety (90) days after the end of each fiscal year, a written report specifying: 
 
(A) Each source from which funds were received by the office of the district attorney general during the fiscal year;
 
(B) The amount of funds received from each source; and
 
(C) The disposition of such funds;
 
(6) Shall have discretion in the performance of duties and responsibilities in the allocation of resources available to such district attorney general, any other provision of law notwithstanding; and
 
(7) Shall have authority to delegate the foregoing duties and responsibilities to an assistant district attorney general.
 

The power to prosecute criminal cases is a great power . I remember the line in Spiderman , "with great powers comes great responsibilities".

Should Tennessee Regulate Mugshots ?

Arrested in Nashville, Tennessee? One of the routine procedures in the booking process is taking a mug shot.  Here in Nashville, your picture appears in a magazine called Busted where all your friends can see your picture.  Some newspapers even publish the mug shots like The Expositor in Sparta, Tennessee. The New York Times ran a story on the the sordid business of posting mugshots for profit. I thought I would share a celebrity mugshot. I think they are different from Joe Citizen since they are in the public eye.

These websites, newspapers and magazines rush out and publish these mugshot photos hoping to make a buck.  Some police departments even publish the mugshots. The Nashville Police Department has, at times, published the photos of those arrested in a prostitution sting. It is my opinion this is done in hopes that publicly shaming the individual will prevent the person from doing it again or sends a message to others that if they do it, they run risk of having picture posted for all to see.

The issue that I have with law enforcement, news publications, magazines and other forms of media is that the individual is branded before they are convicted.  Most minor criminal charges could possibly be dismissed  or in some cases an action like judicial diversion, can be taken to avoid a criminal conviction.  Those that have their case dismissed and expunged from their records still face public embarrassment even though the charges are dismissed. Some employers even Google or search the Internet for a potential hires's name. Guess what might come up? Your mugshot from a case that was dismissed.

Some states are enacting laws to protect those that have their case dismissed. Oregon and Georgia are working on laws that require the website to take a photo down within 30 days if that person's charge was dismissed. Utah is working on a law that would not allow a mugshot to be used on a site that charges a fee to take it down.

News groups are fighting any laws that limit the restriction on mugshots. Why? Mugshots of a famous person sells papers and drives website traffic. They do not want to stop a mugshot from being released because doing so could mean losing money.

The dirty secret is the money that  these websites make. Now, there are companies that charge a fee to remove your mugshot. It reminds me of a three card monty game. Put it up, then charge to take it down.

Should Tennessee regulate mug shots? I believe Tennessee should regulate mug shots.  Release the mugshot after a conviction. My other problem is the double standard. Some records are public, but sometimes the police will not give up police reports to a defense attorney. The trade off is what is real news versus exploitation of a person facing a minor offense?

 

 

 

Should You Theme Your Oral Arguments ?

All good trial lawyers have a theme for a trial. A theme gives a core to build your facts around. A theme gives the jury something to grab and hold. Should you have a theme for you argument at the  Court of Criminal Appeals ?

First , all criminal defense lawyers don't really like appellate work. It means they lost at trial , but everyone has at least one more chance to win their case. In Tennessee , every defendant has a right to appeal to the Tennessee Court of Criminal Appeals. Issues of error are raised in a motion for a new trial.Briefs are written setting out the facts and the legal argument.  Oral argument is set. Then what ?

Last week , I had a appeal set for oral argument. In Tennessee , you get 20 minutes to make your case. I thought why not theme your argument much like a trial. The main issue was that the court failed to grant a severance as to the different counts in the indictment. In this case, two different attempted murder cases was joined with another murder that happened on another date and location. My theme was piling on the defendant.

When I played football in the front yard in Madison ,Tn. , you would get called for piling on when you jumped on the ball carrier after he was down. i thought that was a good theme to argue why the judge erred in denying the severance motion. I used the theme during argument to simplify the concept of why the rules of criminal procedure gives one that right.

I knew the theme worked after listening to the next case. The next case was about a joinder. The lawyer argued that the cases should have been joined. One of the judges asked the lawyer " What it have been piling on if the cases were joined." Once I had the court using my theme , I knew you should always theme your oral argument.

 

 

Why Attorneys Get a Bad Name ?

 The Nashville Tennessean  has been running a series of articles on the request for legal fees by the public guardian of Nashville . Jeanan Mills Stuart has billed her wards more than $1.1 million dollars from 2009 to 2011. Ms. Stuart bills $225 per hour for such tasks as going to a concert or lunch. The reason I mention this story is to highlight the contrast to those lawyers in the criminal justice system.  

Prosecutors do not get paid $225.00 per hour to prosecute violent criminals. In fact, one story about a prosecutor several years ago described her part time job on the weekends to pay her law school debt while she fought crime Monday thru Friday.. Same thing for the public defenders who defend those charged with crimes. Heck, they don't even get to go to a concert at the symphony. Public defenders get to spend their time visiting folks in jail.

My biggest problem is those lawyers that are appointed by the court to represent people that are indigent. Compared to Ms. Stuart's pay, they get $40.00 per hour out of court and $50.00 per hour in court. Sounds like great pay? WRONG. Overhead, an office, and a phone are basic office expenses that must be paid. The rate has not increased in years and there is a cap on fees in most cases with the exception of a death penalty case. Then once they submit a bill , the court reviews the bill and as well as the Administrative Office of the Courts.

Thanks Ms. Stuart for giving lawyers a bad name. Lawyers who work in the criminal justice system and truly care about what happens are not compensated for the value they bring. Here is my suggestion:

1. Increase the pay of those in the criminal justice system including assistant district attorneys and public defenders.

2. Increase the hourly rate for those lawyers appointed by the court.

The Tennessee Association for Criminal Defense Lawyers have filed a petition to increase rates for lawyers with the Supreme Court. It appears to be headed nowhere. Despite this, we read about a public guardian charging legal fees for routine tasks . I wonder what she would charge for a first degree murder charge? It is just a little tougher than going to the symphony.

 

Breaking Criminal Law Update in Nashville

It appears that  hundreds of criminal indictments may be defective in Nashville. It appears that a Grand Jury Foreman had a felony record. The felony conviction made him ineligible to serve as a Grand Jury Foreman. It is possible that those convicted during that time frame may have their cases set aside. If you had a case with the docket number 2011-C-___ , you may have rights to get the case reopened.Her is a report on the story here.

Be careful. You might get what you wish for and start your case over. Check in tomorrow for a complete update.

 

Did You Pleaded Guilty or Pled Guilty ?

I read a blog post from Byran Garner who is the self appointed guru of legal writing. I enjoy Mr. Garner's comments on writing style and word usage even though I might end a sentence with a preposition. In his post today , he commented on whether you should use pleaded guilty or pled guilty .

First, I wonder if Mr. Garner is ever stepped in front criminal jury or appeared in a criminal court room. according to Mr. Garner the correct usage is pleaded guilty. I beg to differ . In the criminal courts of Nashville Davidson County Tennessee you pled guilty. Modern usage trumps proper usage in Nashville. However , I spell checked the piece and it did not recognize the word pled. Mr. Garner is probably correct . But in the South ,  I think I will use pled. I will save pleaded for some stuffy brief. I intend to post a comment. I expect to get a grammar lesson.

Should the Tennessee Supreme Court Be For Sale ?

One of the biggest issues before the Tennessee Legislature is the issue of electing our appellate and Supreme Court judges. Should Tennesseans elect their Supreme Court by popular vote? Years ago, Tennessee adopted the modified Missouri Plan. Appellate judges and the members of the Tennessee Supreme Court are appointed by the Governor and are retained by a yes or no vote. This plan also applies to the Tennessee Court of Appeals and the Tennessee Court of Criminal Appeals. General Sessions judges and Circuit Court judges are elected by popular vote. A big push is on to elect all judges.

Changing our method of selecting Supreme Court judges would be a disaster. Look around the country at the spending in these judicial races. In Michigan's Supreme Court race, the candidates raised 3.2 million dollars to run. However, 15 million was spent on TV ads with 75% to undisclosed special interest groups. One ad attacked a respected judge for work she did as a lawyer.

As a result of the United States Supreme Court's ruling in Citizens United, the floodgates are wide open on special interest groups buying an election. We have already witnessed it in a House race where the NRA did not like a Republican representative's view on a gun law. Elections can be bought and sold. Should it also apply to the courthouse? A courthouse is where any citizen should have equal footing against the government in a criminal case or a big corporation that has done wrong (like BP Oil in the Gulf Oil Spill).

The system now in place has its problems. It will only spiral out of control and a loss of public trust if a popular election of Supreme Court judges is put in place. So if the judge is supported by some organization in his or her election, should that judge recuse themselves?

 

 

The justice system is too important to our stability as a nation. It should be protected. The rule of law sets our country apart from others. Do we want justice like China? Do we as Americans want our day in court with a fair playing ground?

Aisha

On Nov 20, 2012, at 4:38 PM, "Rob McKinney" <rob@robmckinneylaw.com<mailto:rob@robmckinneylaw.com>> wrote:

 

One of the biggest issues before the Tennessee Legislature is the issue of electing our appellate and Supreme Court judges. Should Tennesseans elect their Supreme Court by popular vote ? Years ago , Tennessee adopted the modified Missouri Plan. Appellate judges and the members of the Tennessee Supreme Court are appointed by the Governor and are retained by a yes or no vote. This plan also applies to the Tennessee court of Appeals and the Tennessee Court of Criminal Appeals. General Sessions Judges and Circuit Court Judges are elected by popular vote. A big push is on to elect all judges.

Changing our method of selecting Supreme Court Judges would be a disaster. look around the country on spending in these judicial races.In Michigan's Supreme Court race , the candidates raised 3.2 million dollars to run. However , 15 million was spent on TV ads with 75% to undisclosed special interest groups. One ad attacked a respected judge for work she did as a lawyer.

As a result of the United States Supreme Court's ruling in Citizens United , the floodgates are wide open on special interest groups buying an election. We have already witnessed it in a House race where the NRA did not like a Republican representative's view on a gun law. elections can be bought and sold . Should it also apply to the courthouse. a courthouse is where any citizen should have equal footing against the government in a criminal case or a big corporation that has done wrong like BP Oil in the Gulf Oil Spill.

The system now in place has its problems. It will only spiral out of control and a loss of public trust if a popular election of Supreme Court Judges is put in place. So if the Judge is supported by some organization in his or her election , should that judge recuse themselves

 

 

The justice system is too important to our stability as a nation. It should be protected. The rule of law sets our country apart from others. Do we want justice like China ? Do we as Americans want our day in court with a fair playing ground.

 

Teen Convicted of Vehicular Homicide While Texting

A 18 year old Massachusetts teen was sentenced to one year in prison after being convicted of vehicular homicide in a texting while driving case. Aaron Deveau crossed over the center line and hit a car killing the driver . Deveau initially stated he was thinking about his homework when he veered suddenly to avoid rear ending a car . As he tried to avoid a crash , he ran into another driver. Prosecutors argued that Deveau was texting and driving. There was evidence of 193 texts that day including one minutes before the deadly crash.

In Tennessee , it is illegal to text and drive . It carries a $50.00 fine. However , law enforcement officials state it is hard to enforce since cell phone use is not banned. Yet the question remains , could someone be charged with vehicular homicide in Tennessee if they we texting and driving. The answer is they could. One could be found guilty if the reckless killing was the proximate result of conduct creating a substantial risk of death or serious bodily injury to a person. From all the data and reports , everyone knows it is dangerous to text and drive. If the state can prove you were texting and driving , it appears they can make their case. However , other factors could be present to avoid a conviction. Remember , the conduct of texting and driving has to be the proximate result of the accident

Continue Reading...

UT Students Charged With Butt-Chugging Wine

College students alcohol consumption has taken a new low. Several members of the Pi Kappa Alpha were cited for underage consumption of alcohol at UT Knoxville. It seems several members of the fraternity engaged in butt-chugging . Butt-chugging is where a tube is inserted into the anus and then alcohol is funneled rectally. Knoxville police report that the fraternity had been giving wine enemas. One member was hospitalized for alcohol poisoning. What happened to a old fashioned keg party ? It seems butt-chugging gets you drunk quicker and does not leave a odor of alcohol on your breath.

Underage alcohol consumption is a crime in Tennessee . With Nashville being a college town with Vanderbilt and several other colleges , underage alcohol consumption is enforced. Underage alcohol consumption is a misdemeanor and carries punishment up to 11 months and 29 days in jail as well as a fine of up to $2500.00. In most Nashville underage alcohol consumption charges , a person is given a criminal citation and ordered to appear at a future court date. If you have any questions about defending a Nashville underage alcohol consumption case give us a call.

Metro Nashville Police Department Has A Facebook Page

I just discovered that the Metro Nashville Davidson County Police Department has a Facebook page . Everybody including police departments are into social media. Often , it is the police checking out your Facebook page looking for evidence or to find out information on folks.

Here is what I learned from the Facebook page ;

  1. Two police officers have gotten into trouble with the law and have been arrested themselves.
  2. Metro Police and the Tennessee Highway Patrol are planning a DUI checkpoint for this weekend

Here is part of the press release;

Officers from the police department’s DUI Unit will be joined by troopers from the Tennessee Highway Patrol in staffing a sobriety checkpoint Friday night, August 17, into the early morning hours of Saturday, August 18, on West End Avenue east of I-440.

So it appears the police will be targeting all driving on West End east of I-440.  Want to learn more about your rights at a Nashville DUI sobriety checkpoint ? Here is a short video on the topic.

As always please do not drink and drive.

 

Tennessee Expungement Law Alert

Effective July 1, 2012 , the legal standard for expunging a criminal conviction changed in Tennessee. Before July 1 ,  a person could only expunge their record under the following types of dispositions;

  1. The case was dismissed.
  2. You were found not guilty.
  3. The case was retired.
  4. The case was Nolle prosequi.
  5. You were granted either pretrial diversion or judicial diversion.

Now , certain low level felonies and certain types of misdemeanors can be expunged. You can click this link to an article that lists the felonies and misdemeanors that may be eligible . Also , the article lists the eligibility requirements.

The new process is complex. So, I am giving a free seminar every Tuesday for the month of July at my office here in Nashville, Tennessee to explain the process . Space is limited. Email info@robmckinneylaw.com to reserve your space.

 

 

The Trayvon Martin Case Under Tennessee Law

Since Trayvon Martin's death much has been written and spoken on the news. It is a daily topic of discussion in the media. What would be different about the case if it happened in Tennessee rather than Florida. My first thought would be that Mr. Zimmerman would be under arrest. Tennessee criminal laws on self defense are completely different than Florida as well as the Grand Jury process.

Under Florida law, they have a wacky law on self defense called the " Stand Your Ground Law ". I am surprised we do not have the same law in Tennessee with the State Legislature's fascination with gun laws. The stand your ground law sets forth that anyone who perceives that their life is threatened is not required to retreat and has a right to use a weapon . Tennessee has no such law today. It also has a component that law enforcement must prove that the accused did not act in self defense and requires a pre-trial hearing to determine immunity. Under Tennessee criminal law , a jury decides if self defense is a viable defense. There is no pre-trial hearing to avoid a trial. Here is Tennessee's jury instruction on self defense ;

DEFENSE:  SELF-DEFENSE

            Included in the defendant's plea of not guilty is [his] [her] plea of self-defense.

            When a person is assaulted, by the [use of force] [attempted use of force], in such a way as to create in his or her mind a reasonable belief that he or she is in imminent and actual danger of [death] [serious bodily injury], he or she will be justified in [threatening] [using] force to defend himself or herself even to the extent of killing another human being.  The [threat] [use] of force can only be to the degree reasonably believed to be immediately necessary to protect against the other's [use] [attempted use] of unlawful force.  The danger creating the belief of imminent [death] [serious bodily injury] must be real, or honestly believed to be real at the time, and must be founded upon reasonable grounds.1

            A person may have been mistaken, based on his or her  perception of the circumstances, as to the extent of the actual danger, but if he or she acts in self-defense from honest, even though mistaken, convictions as to the extent of danger he or she will not be held criminally liable for his or her action.

            In determining whether the defendant's [threat] [use] of force in defending [himself] [herself] was reasonable, you may consider not only [his] [her] [threat] [use] of force but also all the facts and circumstances surrounding and leading up to it.  Factors to consider in deciding whether there were reasonable grounds for the defendant to fear [death] [serious bodily injury] from the [deceased] [alleged victim] include but are not limited to any previous threats of the [deceased] [alleged victim] made known to the defendant; the character of the [deceased] [alleged victim] for violence, when known to the defendant; the animosity of the [deceased] [alleged victim] for the defendant, as revealed to the defendant by previous acts and words of the [deceased] [alleged victim]; and the manner in which the parties were armed and their relative strengths and sizes.

            If you find that the defendant's fears of [death] [serious bodily injury] were genuine and reasonable under the circumstances, then [he] [she] would have had the right to [threaten] [use] as much force as was apparently necessary in [his] [her] own self-defense.  If, on the other hand, you find that the defendant was not genuinely or reasonably fearful of [death] [serious bodily injury], or that [he] [she] [threatened] [used] force going beyond the real or apparent necessity for [his] [her] own defense, then [his] [her] [threat] [use] of force would not have been justified

 

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Tennessee Judge Takes the Fifth

Since I have  been a criminal defense lawyer , I still don't understand why people accused of a crime talk to police officers or do not exercise their Fifth Amendment rights against self-incrimination. We should all follow the actions of a sitting Tennessee judge. Hawkins County Tennessee Judge James Taylor recently invoked his rights of self incrimination several times in a judicial complaint. Judge Taylor is alleged of committing theft.

First , the Fifth Amendment does not cover most police interactions. So , you don't have to give a statement to police at the scene of a traffic stop or consent to an interview by a police officer . The Fifth Amendments protects a person.... against being incriminated by his own compelled testimonial communications. To receive Fifth Amendment protection , a person's statement or act must (1) be compelled (2) be testimonial ; (3) incriminate the person in a criminal proceeding.The protection enables a defendant to refuse to testify at a criminal trial or answer official questions put to him in any other  proceeding, civil or criminal, formal or informal where the answers might incriminate him in future proceedings.

So take a lesson from the judge and keep your mouth shut.

 

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.

 

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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.