I Am Going To Kill You

Last week Vanderbilt basketball coach Kevin Starlings made ESPN Sportscenter for a remark that Stallings wish he would never have yelled. Right after Vanderbilt beat Tennessee , a player made some gestures that could be construed as unsportsmanlike . Stallings yelled at the player after the game " I am going to kill you". It happens all the time . One might make that statement not meaning any harm. However , could Coach Stallings been arrested for that threat ?

Under Tennessee criminal law , one can be charged with a simple assault under three different theories. Tennessee Code Annotated 39-13-101 sets forth the following elements of simple assault.

39-13-101. Assault.

 

(a)  A person commits assault who:

     (1)  Intentionally, knowingly or recklessly causes bodily injury to another;

     (2)  Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or

     (3)  Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.

Under the facts of the Stallings incident , (2) could be applicable .The key wording is did Stallings intend or knowingly cause the player to fear imminent bodily injury. The answer to the inquiry is know. Stallings was upset and said some things he regrets. Let's look at whether threats could get one arrested. You ball up your fist and yell at someone that you are going to punch them in the nose.In this example there are some other facts that may cause the person to fear getting hit . Also , the threats can't be remote like a threat by text or phone. No one is in close proximity .

 

The big takeaway is be careful what you say and yes you can get arrested for making verbal threats in the right situation.

Tennessee's 12 Hour Hold In Domestic Violence Cases

Changes to Tennessee's !2 hour hold in domestic violence cases is set for committee review this afternoon . Current law requires that anyone arrested for a domestic violence charge must be held in custody for 12 hours before one could make a bail bond. A judge has discretion to waive the 12 hour hold . In light of one high profile case , the Tennessee State Legislature is pushing a bill to remove all discretion from judges and magistrates.

Domestic violence is the new crime du jour that is a political football . Just read State Senator Steven Dickerson op-ed piece in yesterday's Tennessean . In Senator Dickerson's article , he speaks of all the problems of the domestic violence problem. It is article with some facts but no solution except bashing the courts . Here is some critical facts to consider;

  • If Metro Nashville Police show up in response to a domestic violence call , someone is going to be arrested no matter what a police investigation reveals.
  • During the change in the domestic violence docket Public defender stated at a meeting that 70 % of the domestic violence cases were dismissed.
  • Some people might be innocent of the charges.

The legislature must trust the courts to use their discretion in setting bond and the conditions of the bond like waiving the 12 hour hold. There can be no cookie cutter approach There used to be a concept of the separation of powers between the branches of government . For example , a person may be arrested days or weeks after the event  is still subject to a 12 hold.

Representative William Lamberth is sponsoring the bill in the house. To his credit , he has sought out discussion on the issue. Here is my solution to the 12 hour hold . If the arrest is made within 6 hours of the event , put the 12 hour hold into effect. After that time , there has been some time for a cooling off period which the statute intended. Better yet trust the judges to use their discretion. The voters trusted them to do their job. Most magistrates will seldom remove the 12 hour but don't take away from the discretion of the courts when they are the ones that hear some facts of each and every case.

 

Here is my question to the members of the Tennessee State Legislature , would you be okay with your son or daughter being held in jail if they are not guilty of domestic violence.

You can check out the debate here via web cam.

New Tactics in Prosecuting Domestic Violence Cases

Earlier this week , I posted on the new changes in the docketing of domestic violence cases in Nashville Davidson County Tennessee. With new concepts in how to process domestic violence cases also comes new strategies in prosecuting the cases. It used to be if a witness did not appear in court after being subpoenaed then a criminal defense attorney would make a motion to dismiss based on the failure of the state to be able to prosecute . The government has gotten creative in trying to make a case where the witness does not show up to court.

First , the District Attorneys Office has hired two folks to go get witnesses and bring them to court if they do not appear. The second new tactic is the use of exceptions to the hearsay rule.

It is a bedrock principle of our criminal justice system is the right to confront and cross-examine witnesses that are called to testify against you. The Supreme Court of the United States affirmed that constitutional protection in Crawford v Washington . The bottom line of the court's holding was that the Confrontation Clause prohibits the admission of testimonial statements unless the defendant has an opportunity to cross-exam the witness. The court went on to allow some exceptions to the rule.

Will Allensworth gave a great presentation on the new ways the government is trying to introduce out of court statements. Here are the ways that the government is attempting to introduce these out of court statements.

  • Forfeiture by Wrongdoing. This is a exception to the hearsay rule and the rule of confrontation in which a person has engaged in wrongdoing to procure the unavailability of the declarant as a witness. An example of this is telling the witness not to come to court. So be careful what you say or text.
  • Excited Utterance Exception to the Hearsay Rule. Rule 803 (2) allows the admission of statements relating to a startling event made while the declarant was under the stress of excitement caused by the event.
  • The statement was not testimonial. The Tennessee Supreme Court laid out a list of nonexclusive factors on whether s statement is testimonial in the Franklin case.

 The take away  point for a person accused is not to create a record of telling someone not to show up in court . For the criminal defense lawyers , better know the rules of evidence and when is a statement testimonial.

 

Changes in Nashville's Domestic Violence Procedure

Last September , there began a shift in the procedure in how domestic violence cases are handled in Nashville Davidson County Tennessee. It has been almost six months  since some major changes have been instituted. It all started with a study from Mayor Karl Dean's office on how to combat domestic violence in Nashville . Here is a summary of the changes.

  • The government has created the Jean Crowe Advocacy Center . It is located on the first floor of the Ben West Building. The purpose of the center is to be a place for alleged victims of domestic violence to go rather than going to court. It is a belief among some criminal defense attorneys that they can no longer speak with witnesses in the hallway to learn more about the case.
  • The General Sessions Judges have created a daily domestic violence docket in Courtroom 4B in the A.A. Birch Building. You get a settlement date within days of your arrest and then a trial date within 30 days of your arrest.
  • The District Attorney's Office have created two positions that they basically go get witnesses if they do not appear in court.
  • There are plans for a special docket to handle jury trials for domestic violence cases . Again , the plan is to expedite these cases.
  • There are more assistant district attorneys staffed to handle these dockets.

Everyone agrees that the effects of domestic violence are detrimental to the person being abused and the children who witness the abuse. However , the police's hands are tied on some cases. It has been a long standing policy that if Metro police respond to a domestic violence call an arrest must be made. What about a fair investigation of what happened ? Does every case need to result in an arrest ? I know the police are fearful of what might happen if an arrest is not made . It is a debate that has gone on for a long time of balancing the safety of the citizens verses the rights of the accused.

 

Changes to Nashville's Domestic Violence Docket

Davidson County District Attorney Glenn Funk recently proposed a change in the procedure for docketing misdemeanor domestic violence cases once the cases are bound over to the grand jury from general sessions court . Currently, misdemeanor domestic violence cases are assigned to the criminal courts based on the date of arrest . General Funk made the proposal to the circuit court judges and criminal court judges last week.

The plan is to assign all misdemeanor domestic violence cases to  Judge Amanda McClendon . The cases will be presented to the grand jury within 30 days of being bound over by the general sessions court judge. It would create a  rocket docket with domestic violence cases getting priority over the DUI cases Judge McClendon is currently assigned.

During his campaign for District Attorney , General Funk proposed cutting the time between when the case is bound over to the arraignment . His office is doing that by actively settling cases on information agreements. The question is whether the government should shorten the time an accused spends in jail to get his or her case back into court. For those charges with a crime in Nashville, Tn. that can't afford a bail bond , a person sits in jail until the cases is settled or tries. It could be months until their next court date. should the District Attorney's office focus on presenting serious felony cases to the grand jury first. The district Attorney's office controls when each case is presented to the grand jury. I took a informal poll today among a few fellow criminal defense lawyers on the turnaround time between general sessions court and ones first appearance in criminal court. The general consensus is the wait is four to five months. Granted , that time is in large part based on the office policy in the prior administration.

Who pays for the cost of housing the accused while waiting for trial or to settle their cases ? The citizens of Davidson County pay the cost . Jail fees are assessed as court costs once the case is concluded. It would be a interesting fact of the amount of jail fees that are actually collected.

Is Ray Rice a Scapegoat for the NFL ?

There is no doubt that the video released by TMZ showed a frightening display of domestic violence by Ray Rice. The question is, why the change in policy by the NFL.  Mr. Rice admitted guilt, entered a plea, and accepted responsibility for his actions. The NFL suspended him for two games. Then, the full video was released and Mr. Rice was fired.  Should NFL players be treated differently?

First , I do not condone domestic  violence.  Domestic violence charges are a serious problem in our country and in our courts.

The criminal process works.  Mr. Rice and Ms. Janay  Palmer were both arrested for simple assault.  Later, the charge against Ms.Palmer was dismissed and more serious charges were brought against Ray Rice. A plea was entered. If the diversionary program is completed, Mr. Rice's criminal record will be expunged.  Connecticut criminal defense lawyer Norm Pattis opined that the criminal court process worked but the NFL made a knee jerk reaction .

Under Tennessee law, Mr. Rice may have had the same result. In Tennessee, Mr. Rice would have been charged with aggravated assault. If he had no prior convictions, he would be eligible for judicial diversion under T.C.A. 40-35-313. Once Mr. Rice completed the terms of probation, which usually include domestic violence classes, he would be eligible to have it expunged from his record.

Was Ray Rice guilty of domestic violence?  Yes. Were his actions despicable? Yes. Did the NFL change position due to a public relations nightmare? Yes.

 

Observations of Nashville's Domestic Violence Docket

Last week I posted on Nashville's domestic violence docket . I had a chance today to go observe the docket. Here are a couple of my observations:

  • The first court appearance is an initial appearance. No witnesses are subpoenaed. The purpose is to ascertain if you have a lawyer and to reschedule the court date. The time is too soon to determine if you have an attorney .I am hopeful the court gives more time for the citizen accused to hire an attorney.
  • A representative from the mayor's office was in the courtroom. Why ? Mayor Dean announced a domestic violence report last year . One of the goals was to reduce the time between arrest and the first court date.
  •  Nashville Bar Association failed the members of the criminal defense bar.  It was my understanding that the NBA was contacted by the court to send a representative . No input was sought from the private criminal defense bar . Further there were no reports from the Nashville Bar association about what was being planned. It may be appropriate that another group be asked to have a seat at the table on criminal justice issues such as the Tennessee Association of Criminal Lawyers .
  • The courts may be open to change or tweak the system after a couple of docket cycles.

No one likes change , but change is good .However , change should be evolving . The new domestic violence docket just needs some fine tuning.

One last thought. The Nashville Criminal Law Report is journalism . It collects , edits news and sometimes gives commentary on the news .  It is protected  by the First Amendment

 

Times They Are a Changing For Nashville's Domestic Violence Docket

Starting on September 2 , 2014 , the domestic violence docket in Nashville General Sessions Courts  are undergoing some drastic changes. Mayor Dean issued a press release on some of the changes in August. Last night , I attended a meeting on the changes . Unfortunately , there is not a written protocol of the new process only some colored graph that will make your head spin. As I understand it , a person who is arrested for a domestic violence charge that makes bond will have a court date within days of their release. It was explained to me this is an appearance date to see if you have a lawyer. The case will be reset with the goal to have a court date within 30 days from arrest.

Here are some of my issues ;

  • There is not enough time for an accused citizen to research , interview , and hire a lawyer in that time frame.
  • Once the lawyer gets hired , there is not that much time to prepare for a preliminary hearing or trial.
  • The criminal justice system seems to be unfair to the citizen in having his or her day in court. It seems to me to be a rush to judgment.

Since ,  I am venting here are some other observations ;

  • The powers that be who set these wheels in motion had little input from the private criminal defense bar. In the future , I would hope the General Sessions Judges would include more folks at the table than the Mayor's office , the Public Defender , and the District Attorney.
  • I am all in favor of having a place for the assistant district attorney generals to meet and interview witnesses , however the advocacy room might be a place to just park the witnesses. I know in past cases that I introduce myself to the complaining witness and they tell me what happened from their point of view.

 I may be chicken little and I hope that I am . People don't like change but if it comes at diminishing the rights of the citizen accused of a crime with limited time to defend themselves I am against the new changes.

I will be in court on Monday and look forward to reporting on my experiences.

Follow Up on the 12 Hour Hold

Chas Sisk and Walter F. Roche Jr. reported today that Governor  Haslam is in favor of making the 12 hour hold before a person can be released on bond mandatory. My prediction is that state legislators will be fighting each other over the chance to sponsor the proposed change . Kathy Walsh executive director of the Tennessee Coalition To End Domestic  Violence and Sexual Assault  added these comments;

“We certainly want to protect victims,” Walsh said, “but we also have to consider the rights of the accused.”

The story reported that the Nashville Davidson County General Sessions judges approved a measure that only the three judges that are currently assigned to hear domestic violence cases can waive the 12 hour hold . It appears that the magistrates will no longer be making this decision.

Here is a follow up to yesterday's post.

  • In Nashville domestic violence cases , I have been advised that the time entered is when the complaint number  is generated by emergency dispatch. So the time is before the actual arrest.
  • My statement on the 12 hour hold being waived is based on my personal experience . In the past , I have been contacted by an accused ,taken them to booking , and present my case as to the amount of bond and why the 12 hour should be waived due to the time of the alleged crime and time of surrender. I have discovered the magistrates in Nashville do not unilaterally waive the 12 hour hold.
  • Here is a link to a copy of the order setting bond in domestic abuse cases. It is a form order. The court makes no written specific findings of whether the court believes the threat of domestic violence is imminent .

Tomorrow , I will answer some questions that have been commented on here on the blog. Have a question ? Please feel free to post a comment.

One last note. I consider all my blog posts to be journalism. It is my commentary of news.

 

 

The 12 Hour Hold in Tennessee Domestic Violence Cases

Recently, there has been extensive news coverage of a Nashville judge waiving the 12 hour hold in domestic violence cases. . Under T.C.A. 40-11-150(h)(1) a person arrested for stalking , aggravated stalking , especially aggravated stalking , or any criminal offense under title 39 chapter 13 may be held for 12 hours after arrest until they can be released from  jail.

Here are a couple of points;

  • The time of the 12 hour hold begins at the time of arrest. The arresting officer shall make an official note of the time of arrest in order to establish the 12 hold. See T.C.A.40-11-150(h)(2). Practice tip. I have never seen the time of arrest noted in any warrant that I have reviewed alleging domestic violence.
  • The magistrate must make written findings of that the offender is a threat to the alleged victim. Practice note. I have never seen any written findings by the magistrate other than a form order where they check the boxes.
  • The  official may release the accused if it is determined that there has been sufficient time for the alleged victim for the victim to be protected. practice note. If the incident happens on one day and the next day the alleged offender is arrested , the magistrates will waive the 12 hour rule.

 

Before  folks start jumping to conclusions about waiving the 12 hour hold , we should examine the law. One last thought is if this statute on the 12 hour hold constitutional ?  More to come tomorrow.

Are Female Stalkers as Violent as Male Stalkers ?

The Jury Room Blog ran a great post today on  whether female stalkers are less likely to be violent than male stalkers. it is always assumed in domestic violence cases across Tennessee and elsewhere it is always the male that is the violent one. According to a study by Strand and McEwen that appeared in Psychological Medicine , that is a false assumption. According to the study , women stalkers are just as likely as male stalkers to be violent.If one is being stalked by a female who is a former romantic partner , there is a high risk of violence if you are the one perceived as ending the relationship.

Stalking should be taken seriously between both male and female stalkers.Could stalking by females make men more vulnerable to domestic violence charges when they try to deal with the issue without calling the police. Educating the jury could be difficult in the South when faced with convincing the jury that a man is just as much risk to be a victim of domestic violence as a women.

Florida Judge Orders Man to Take Wife to Red Lobster

A  Florida Judge ordered a man accused of a domestic violence charge to take his wife out to Red Lobster as a condition of his bail bond. Judge John Hurley ordered the defendant who was accused of assaulting his wife to get her some flowers , dress up , take her to Red Lobster , and then to take her bowling. Also , the court ordered counseling . It appears the judge took a little heat for his unusual conditions of bail bond.

The story is important because in Tennessee domestic violence cases there are statutory conditions of bond in a domestic violence case. Tennessee Code Annotated 40-11-150 sets at those conditions ;

(1) An order enjoining the defendant from threatening to commit or committing specified offenses against the
alleged victim or other family or household member;
(2) An order prohibiting the defendant from harassing, annoying, telephoning, contacting or otherwise
communicating with the alleged victim, either directly or indirectly;
(3) An order directing the defendant to vacate or stay away from the home of the alleged victim and to stay
away from any other location where the victim is likely to be;
(4) An order prohibiting the defendant from using or possessing a firearm or other weapon specified by the
magistrate;
(5) An order prohibiting the defendant from possession or consumption of alcohol or controlled substances;
and
(6) Any other order required to protect the safety of the alleged victim and to ensure the appearance of the defendant in court.

Luckily , the Tennessee statue does not require eating at Red Lobster together or going bowling.

New Domestic Violence Laws Proposed For Tennessee

Tennessee Governor Bill Haslam announced a new plan to increase punishment for certain crimes . One of these proposals is to increase jail time for those convicted of domestic violence.Gov. Haslam based his plan on a recent study that ranked Tennessee fifth in the nation in the  rate its women are murdered by men. The plan seeks mandatory minimum sentences of 45 days in jail for a second domestic violence conviction and a minimum 120 days in jail for a third or more conviction.

Society needs to address the domestic violence issue . However mandatory minimum sentencing is not the answer. Most politicians want to be tough on crime and enact tough laws to make them look good to the public. Two things happen when the government enacts mandatory minimum punishment. First , it takes discretion out of the judges hands in sentencing. By that , most judges want to make a difference and try to be creative with sentencing alternatives like domestic violence counseling. Mandatory minimum punishment takes that away from the court. Secondly , mandatory punishment gives the district attorneys took much power to cram down plea bargains to those accused of a crime . Take a deal avoid jail or go to trial and if you lose visit the jail. There is to much potential for abuse  in making mandatory minimums the answer to all that's wrong in the criminal justice system.

Hawaii Allows Parental Disciple Defense

The State Supreme Court of Hawaii ruled that a man convicted of punching his stepson should have been allowed to raise parental discipline as a defense in his trial. The trial court rejected that defense because the boy's nose was broke by the defendant who wanted him to clean a carpet stain. The case is remanded back to the trial court for a new trial.

The defense requested a jury instruction on parental discipline defense . In Hawaii , the law provides such a defense.

In order to invoke the parental discipline defense, a defendant is required to make a showing that the record contained some evidence supporting the following elements:

(1) [the defendant] was a parent, guardian, or other person as described in HRS § 703-309(1); (2) [the defendant] used force against a minor for whose care and supervision he was responsible; (3) his [or her] use of force was with due regard to the age and size of the recipient and reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of misconduct; and (4) the force used was not designed to cause, or known to create a risk of causing, substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage.
Tennessee has no such defense that is contained in the Tennessee Pattern Jury Instructions.

Alleged Stalkers In Tennessee May Have To Wear a GPS

The Tennessee State Senate passed a bill ( SB 567/HB 685) that would authorize a magistrate to order any defendant who is arrested for stalking or a domestic violence charge to carry or wear a GPS device. The device would notify the alleged victim if the defendant is at or near a location the defendant has been ordered to stay away from .

Currently , Tennessee law has in place conditions of release on bond . Those bond conditions have been on the books for years. It appears those measures have been adequate to protect an alleged victim until the court decides the case . In Davidson County , Tennessee , the cost of GPS monitoring is $10.00 per day . Now , it appears the state of Tennessee wants to put everyone accused of a crime on GPS or sometime of electronic surveillance. Gang members , those accused of DUI , and now  those accused of domestic violence  are subject to the GPS device .

Big brother now has an eye in the sky and they want to look at everyone . Forget about the process of getting a warrant , the presumption of innocence , and the cost to the defendant . Heaven forbid they are innocent of the charges .

What's next GPS on all those that have an an order of protection against them ?

Williamson County Domestic Violence Cases On The Rise

Jill Cecil Wiersma  reported on the rise of domestic violence cases in Williamson County , Tennessee.Here's the data;

  • Spring Hill , Tn. Police report over 189 verbal or physical assaults this year.Domestic violence charges are the number one crime surpassing auto burglary.
  • Brentwood ,Tn Police report 45 domestic violence charges.
  • Franklin , Tn. Police department report 202 year to date domestic violence  reports.

Spring Hill Police Lt. Justin Hill states that neighbors report loud noise that police then investigate.Brentwood,Tn. Police Captain Tommy Walsh advised that the larger yards preclude neighbors from hearing any domestic fights and the calls come from inside the home.

Do the police have a right to come into your home based solely on a neighbors complaint of loud noise ? Probably not.

Article I, Section 7 of the Tennessee Constitution provides ;

 

 

That the people shall be secure in their persons, houses, papers

and possessions, from unreasonable searches and seizures; and that general

warrants, whereby an officer may be commanded to search suspected places,

without evidence of the fact committed, or to seize any person or persons not

named, whose offenses are not particularly described and supported by evidence,

are dangerous to liberty and ought not be granted.

 

.

 

 

 

 

 

 

 

 

 

 

Violations of Orders of Protection in Tennessee

In Tennessee , it is unlawful to violate an order of protection issued by a court. A violation of  an order of protection is governed under Tennessee Code Annotated 39-13-114.A violation of this section is a Class A misdemeanor. The legal twist with this law is it requires it to be served consecutively to to the sentence for any other offense that is based upon the same factual allegation.

The teaching points are ;

  • Contest the order of protection.
  • Obey the order if the court grants it.

Who is a Domestic Violence Victim?

Just who is a domestic violence victim?  Well, the Tennessee State Legislature defines who is a domestic violence victim by statute.  I am glad it is defined because it eliminates any debate. Here's the definition straight from the Tennessee Code.


     
 
 

39-13-111. Domestic assault. —

 
 
 

     
 
 

(a)  As used in this section, “domestic abuse victim” means any person who falls within the following categories:

 
 
 
     
 
 

     (1)  Adults or minors who are current or former spouses;

 
 
 
     
 
 

     (2)  Adults or minors who live together or who have lived together;

 
 
 
     
 
 

     (3)  Adults or minors who are dating or who have dated or who have or had a sexual relationship, but does not include fraternization between two (2) individuals in a business or social context;

 
 
 
     
 
 

     (4)  Adults or minors related by blood or adoption;

 
 
 
     
 
 

     (5)  Adults or minors who are related or were formerly related by marriage; or

 
 
 
     
 
 

     (6)  Adult or minor children of a person in a relationship that is described in subdivisions (a)(1)-(5).

 
 
 
     
 
 

(b)  A person commits domestic assault who commits an assault as defined in § 39-13-101 against a domestic abuse victim.

 
 
 
     
 
 

(c)  (1)  Domestic assault is punishable the same as assault in § 39-13-101.

 
 
 
     
 
 

     (2)  In addition to any other punishment that may be imposed for a violation of this section, if, as determined by the court, the defendant possesses the ability to pay a fine in an amount not in excess of two hundred dollars ($200), then the court shall impose a fine at the level of the defendant's ability to pay, but not in excess of two hundred dollars ($200). The additional fine shall be paid to the clerk of the court imposing sentence, who shall transfer it to the state treasurer, who shall credit the fine to the general fund. All fines so credited to the general fund shall be subject to appropriation by the general assembly for the exclusive purpose of funding family violence shelters and shelter services. This appropriation shall be in addition to any amount appropriated pursuant to § 67-4-411.

 
 
 
     
 
 

     (3)  A person convicted of a violation of this section shall be required to terminate, upon conviction, possession of all firearms that the person possesses as required by § 36-3-625.

 
 
 

[Acts 2000, ch. 824, § 1; 2002, ch. 649, § 3; 2008, ch. 744, § 1; 2009, ch. 455, § 4.]

Change at the Court House

Several days ago , I read a post by Scott Greenfield  on his blog Simple Justice . The theme of the post is that the courthouse has changed from a place where the average citizen could seek a fair trial to one dominated by the government. For example , Greenfield noted that the presence of policeman from manning the metal detectors to the display of firearms has changed the fabric of the courthouse from one of justice to that of a place of  law enforcement. I read the article and agreed with the conclusions then I had court in Murfreesboro , Tn. which drove the point home.

Domestic violence cases in Rutherford County are handled differently from most places in Tennessee. Here's the deal:

  • As the court calls the docket , it refers the alleged victim to a domestic violence coordinator who is not affiliated with the District Attorney's office.
  • The alleges victim is interviewed by the domestic violence coordinator who I have been advised may make recommendations to the Assistant District attorney that is handling the case.
  • Then the Assistant District Attorney interviews the alleged victim.

The whole point is the process where the court refers the witness to be interviewed. Is the court now a referee of the law or an active participant in the enforcement of the laws.Secondly , guess who funds these domestic violence coordinators in Rutherford County , Tennessee ? The defendants who pay court costs in criminal cases in General Sessions Courts in Rutherford county. I have been advised that a fee is assessed as court costs for all criminal cases except driving offenses to pay for these domestic violence coordinators. So , a MTSU student is convicted of simple possession of marijuana , he or she pays a fee to support this program. Is that court costs assessment fair or constitutional ?

 

Residual Effects of Domestic Violence

As I was leaving the Criminal Court in Nashville last Friday, I noticed a program being presented by the Nashville Coalition Against Domestic Violence.  Curious, I went inside, made a donation, and sat down.  The topic was "Children and Domestic Violence".  Lani Ramos presented on the "Effects of Trauma on Children" . Here's an excerpt from her presentation on the impact from birth to toddler.

The National Child Traumatic Stress Network has defined domestic violence as follows:

The term domestic violence is commonly defined as a behavior, or pattern of behaviors, that occurs between intimate partners with the aim of one partner exerting control over the other. Domestic violence may include psychological threats, emotional abuse, sexual abuse, and/or physical violence. This clinical definition is broader than the legal definition, which may be restricted to acts of physical harm. In the past twenty-five years, public awareness of the issue of domestic violence has grown tremendously. As the scope of the problem has become understood, domestic violence is now acknowledged as a significant legal and public health issue, not only a private family problem. There are laws in every state that make domestic violence illegal.

Studies by the National Child Traumatic Stress Network note : exposure to domestic  violence during the first 33 months of life puts a child in serious risk of cognitive and developmental impairments that may last a lifetime.  A child develops the ability to think, feel, and relate to others.  So, the template for development may be skewed.

Bottom line is that domestic violence effects all those around you.

Is Cyber Stalking Legal In Tennessee?

In yesterday's post, I posted Tennessee's law on stalking.  That provides a backdrop for today's blog post.  Cyber stalking is accomplished by text messaging or other means of electronic communication.  I spoke with an Assistant District Attorney here in Nashville,TN who handles domestic violence cases, and he reported that he recently prosecuted a case in which cyber stalking was done via Facebook messages.

An article in the Washington Post  illustrates the growing problem in dating violence.  The Post reported that one women received over 758 texts in one day.  Cyber stalking may also be involved in the Virginia lacrosse player's murder.  The defendant in her murder case removed the computer when he fled the scene of the crime.

"What technology offers is irrefutable evidence of the abuse," says Cindy Southworth, founder of the Safety Net Project on technology at the National Network to End Domestic Violence, who says it helps in court and is hoping for an increase in conviction rates.

Most electronic communication leaves digital evidence of the contact.  Unconsented contact is defined in T.C.A. 39-17-315

   (5)  “Unconsented contact” means any contact with another person that is initiated or continued without that person's consent, or in disregard of that person's expressed desire that the contact be avoided or discontinued. Unconsented contact includes, but is not limited to, any of the following:

It includes sending mail or any electronic communications to that person.

So be careful what you say and how often you say it.

 

What is the Crime of Stalking in Tennessee ?

Stalking is a crime that is usually grouped in the various crimes that are classified as a domestic violence charge. So , I thought that providing a copy of Tennessee's stalking law may be helpful in discussing this topic.

Show Full Chapter Email This Page Print This Page

     
 
 

39-17-315. Stalking, aggravated stalking, and especially aggravated stalking. —

 
 
 

     
 
 

(a)  As used in this section, unless the context otherwise requires:

 
 
 
     
 
 

     (1)  “Course of conduct” means a pattern of conduct composed of a series of two (2) or more separate noncontinuous acts evidencing a continuity of purpose;

 
 
 
     
 
 

     (2)  “Emotional distress” means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling;

 
 
 
     
 
 

     (3)  “Harassment” means conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable person to suffer emotional distress, and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose;

 
 
 
     
 
 

     (4)  “Stalking” means a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested;

 
 
 
     
 
 

     (5)  “Unconsented contact” means any contact with another person that is initiated or continued without that person's consent, or in disregard of that person's expressed desire that the contact be avoided or discontinued. Unconsented contact includes, but is not limited to, any of the following:

 
 
 
     
 
 

          (A)  Following or appearing within the sight of that person;

 
 
 
     
 
 

          (B)  Approaching or confronting that person in a public place or on private property;

 
 
 
     
 
 

          (C)  Appearing at that person's workplace or residence;

 
 
 
     
 
 

          (D)  Entering onto or remaining on property owned, leased, or occupied by that person;

 
 
 
     
 
 

          (E)  Contacting that person by telephone;

 
 
 
     
 
 

          (F)  Sending mail or electronic communications to that person; or

 
 
 
     
 
 

          (G)  Placing an object on, or delivering an object to, property owned, leased, or occupied by that person; and

 
 
 
     
 
 

     (6)  “Victim” means an individual who is the target of a willful course of conduct involving repeated or continuing harassment.

 
 
 
     
 
 

(b)  (1)  A person commits an offense who intentionally engages in stalking.

 
 
 
     
 
 

     (2)  Stalking is a Class A misdemeanor.

 
 
 
     
 
 

(c)  (1)  A person commits aggravated stalking who commits the offense of stalking as prohibited by subsection (b), and:

 
 
 
     
 
 

          (A)  In the course and furtherance of stalking, displays a deadly weapon;

 
 
 
     
 
 

          (B)  The victim of the offense was less than eighteen (18) years of age at any time during the person's course of conduct, and the person is five (5) or more years older than the victim;

 
 
 
     
 
 

          (C)  Has previously been convicted of stalking within seven (7) years of the instant offense;

 
 
 
     
 
 

          (D)  Makes a credible threat to the victim, the victim's child, sibling, spouse, parent or dependents with the intent to place any such person in reasonable fear of death or bodily injury; or

 
 
 
     
 
 

          (E)  At the time of the offense, was prohibited from making contact with the victim under a restraining order or injunction for protection, an order of protection, or any other court-imposed prohibition of conduct toward the victim or the victim's property, and the person knowingly violates the injunction, order or court-imposed prohibition.

 
 
 
     
 
 

     (2)  Aggravated stalking is a Class E felony.

 
 
 
     
 
 

(d)  (1)  A person commits especially aggravated stalking who:

 
 
 
     
 
 

          (A)  Commits the offense of stalking or aggravated stalking, and has previously been convicted of stalking or aggravated stalking involving the same victim of the instant offense; or

 
 
 
     
 
 

          (B)  Commits the offense of aggravated stalking, and intentionally or recklessly causes serious bodily injury to the victim of the offense or to the victim's child, sibling, spouse, parent or dependent.

 
 
 
     
 
 

     (2)  Especially aggravated stalking is a Class C felony.

 
 
 
     
 
 

(e)  Notwithstanding any other provision of law, if the court grants probation to a person convicted of stalking, aggravated stalking or especially aggravated stalking, the court may keep the person on probation for a period not to exceed the maximum punishment for the appropriate classification of offense. Regardless of whether a term of probation is ordered, the court may, in addition to any other punishment otherwise authorized by law, order the defendant to do the following:

 
 
 
     
 
 

     (1)  Refrain from stalking any individual during the term of probation;

 
 
 
     
 
 

     (2)  Refrain from having any contact with the victim of the offense or the victim's child, sibling, spouse, parent or dependent;

 
 
 
     
 
 

     (3)  Be evaluated to determine the need for psychiatric, psychological, or social counseling, and, if determined appropriate by the court, to receive psychiatric, psychological or social counseling at the defendant's own expense;

 
 
 
     
 
 

     (4)  If, as the result of such treatment or otherwise, the defendant is required to take medication, order that the defendant submit to drug testing or some other method by which the court can monitor whether the defendant is taking the required medication; and

 
 
 
     
 
 

     (5)  Submit to the use of an electronic tracking device, with the cost of the device and monitoring the defendant's whereabouts, to be paid by the defendant.

 
 
 
     
 
 

(f)  In a prosecution for a violation of this section, evidence that the defendant continued to engage in a course of conduct involving repeated unconsented contact with the victim after having been requested by the victim to discontinue the conduct or a different form of unconsented contact, and to refrain from any further unconsented contact with the victim, is prima facie evidence that the continuation of the course of conduct caused the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

 
 
 
     
 
 

(g)  (1)  If a person is convicted of aggravated or especially aggravated stalking, or another felony offense arising out of a charge based on this section, the court may order an independent professional mental health assessment of the defendant's need for mental health treatment. The court may waive the assessment, if an adequate assessment was conducted prior to the conviction.

 
 
 
     
 
 

     (2)  If the assessment indicates that the defendant is in need of and amenable to mental health treatment, the court may include in the sentence a requirement that the offender undergo treatment, and that the drug intake of the defendant be monitored in the manner best suited to the particular situation. Monitoring may include periodic determinations as to whether the defendant is ingesting any illegal controlled substances, as well as determinations as to whether the defendant is complying with any required or recommended course of treatment that includes the taking of medications.

 
 
 
     
 
 

     (3)  The court shall order the offender to pay the costs of assessment under this subsection (g), unless the offender is indigent under § 40-14-202.

 
 
 
     
 
 

(h)  Any person who reasonably believes they are a victim of an offense under this section, regardless of whether the alleged perpetrator has been arrested, charged or convicted of a stalking-related offense, shall be entitled to seek and obtain an order of protection in the same manner, and under the same circumstances, as is provided for victims of domestic abuse by the provisions of title 36, chapter 3, part 6.

 
 
 
     
 
 

(i)  When a person is charged and arrested for the offense of stalking, aggravated stalking or especially aggravated stalking, the arresting law enforcement officer shall inform the victim that the person arrested may be eligible to post bail for the offense and to be released until the date of trial for the offense.

 
 
 
     
 
 

(j)  If a law enforcement officer or district attorney general believes that the life of a possible victim of stalking is in immediate danger, unless and until sufficient evidence can be processed linking a particular person to the offense, the district attorney general may petition the judge of a court of record having criminal jurisdiction in that district to enter an order expediting the processing of any evidence in a particular stalking case. If, after hearing the petition, the court is of the opinion that the life of the victim may be in immediate danger if the alleged perpetrator is not apprehended, the court may enter such an order, directed to the Tennessee bureau of investigation, or any other agency or laboratory that may be in the process of analyzing evidence for that particular investigation.

 
 
 
     
 
 

(k)  (1)  For purposes of determining if a course of conduct amounting to stalking is a single offense or multiple offenses, the occurrence of any of the following events breaks the continuous course of conduct, with respect to the same victim, that constitutes the offense:

 
 
 
     
 
 

          (A)  The defendant is arrested and charged with stalking, aggravated stalking or especially aggravated stalking;

 
 
 
     
 
 

          (B)  The defendant is found by a court of competent jurisdiction to have violated an order of protection issued to prohibit the defendant from engaging in the conduct of stalking; or

 
 
 
     
 
 

          (C)  The defendant is convicted of the offense of stalking, aggravated stalking or especially aggravated stalking.

 
 
 
     
 
 

     (2)  If a continuing course of conduct amounting to stalking engaged in by a defendant against the same victim is broken by any of the events set out in subdivision (k)(1), any such conduct that occurs after that event commences a new and separate offense.

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Should The Sword of Justice Cut Both Ways ?

 Normally , I don't discuss my cases for the this blog  for  many reasons .However , this story bears mentioning. Yesterday , I was in General Sessions Court in Gallatin, Tennessee representing someone  on a domestic  violence charge.The alleged victim did not show up as well as the police officer who took out the warrant. I moved for a dismissal for failure to prosecute the criminal charges.The court continued the case on the state's motion.I had to appear , my client had to appear and we had to prepare for court. If she did not show up , a failure to appear charge would be filed and the bond could be increased or revoked. Different result for my client verses the state.

Therefore , the question is "Should the sword of justice cut both ways." Yes it should , but it's not the reality.

What is a Domestic Violence Charge ?

Domestic Violence or domestic assault charges are different from simple assault charges in Tennessee. In fact ,The General Sessions Courts in Nashville even have specialized courts established to handle these sorts of cases.Judge Gale Robinson and Judge Gloria Dumas are the two judges that are assigned to hear these cases at the General Sessions Court level.

I thought it might be helpful to set forth the definition of Domestic assault.The definition can be found at Tennessee Code annotated Section 39-13-111.

 


A " domestic abuse victim" means any person who falls within the following categories:


 

(1) Adults or minors who are current or former spouses;

(2) Adults or minors who live together or who have lived together;

(3) Adults or minors who are dating or who have dated or who have or had a sexual relationship, but does not include fraternization between two (2) individuals in a business or social context;

(4) Adults or minors related by blood or adoption;

(5) Adults or minors who are related or were formerly related by marriage; or

(6) Adult or minor children of a person in a relationship that is described in subdivisions (a)(1)-(5).

(b) A person commits domestic assault who commits an assault as defined in § 39-13-101 against a domestic abuse victim.

(c)(1) Domestic assault is punishable the same as assault in § 39-13-101.

One consequence of a domestic violence conviction is the loss of owning a firearm.See T.C.A. 39-19-111 (3)

(3) A person convicted of a violation of this section shall be required to terminate, upon conviction, possession of all firearms that the person possesses as required by § 36-3-625.