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

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.

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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 .

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  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.

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   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.

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 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

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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

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  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.

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 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.

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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. 

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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.

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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 23^rd, 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 7^th. 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. 

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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.

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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.

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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.

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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.

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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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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 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

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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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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.

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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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 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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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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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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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. 

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