Reforms Needed for Davidson County Grand Jury

The Tennessean has recently published two articles on some questionable practices of the Davidson County. TN. grand jury. A grand jury's main role is to determine if probable cause exists in order to return an indictment. The concerns were raised by the grand jurors themselves in their final report. One concern from my point of view is the list of speakers that gave a presentation.

  • District Attorney Glenn Funk gave a overview of the role of the district attorney in grand jury proceedings.
  • Members of the Child Sex Abuse unit including a nurse at Our Kids gave a presentation of on sex abuse victims.
  • Nashville DUI officer Brad Nave gave a presentation on DUI cases. Mr.Nave even talked about the 91% accuracy of the standardized field sobriety tests to determine impairment. At the next presentation , I hope he tells the grand jury about a case I had with him on August,1 where he stated the client failed the field sobriety testing yet had zeros across the board for alcohol and drugs.
  • Members of the gang unit, drug task force, and the warrant division as well as Chief Anderson gave presentations.

In the final report, the grand jury expressed concern on preserving independence and avoiding bias. It seems difficult in light of the numerous presentations given during the term of the grand jury. Here is an excerpt from the report.

"The grand jury should remain impartial and unbiased during its deliberations and the close relationship with police procedure and proceedings put that in jeopardy," the jurors wrote in their end-of-term report, filed this month.

One concern raised by the Tennessean was grand jury foreman Stan Fossick. Since 1993 Mr. Fossick has been appointed grand jury foreman in at least 42 grand juries. it might be time for some new blood in the job of grand jury foreman. My own personal complaint of Mr. Fossick is I requested a client of mine testify to tell his side of a domestic violence case. My request was refused even state law allows one to testify before the grand jury on a vote of its members. Recently, he told his story and the court found him not guilty of domestic violence. I will always wonder what the grand jury would have done if they had listened to his story. The report spoke of the one sided point of view from the state. It was certainly on sided in one case.

The Tennessean called for reforms of the Davidson County Grand jury Here are my suggestions.

  1. End the practice of allowing police officers to speak before the grand jury unless the grand jury on its own initiative requests to investigate some aspect of the criminal justice system.
  2. It might be a good time to let someone else take a turn as grand jury foreman.
  3. While not addressed by the report, it has been a long time practice of allowing others not involved in the case to testify from the grand jury by just reading the arrest report.



Can a Judge Rect a Plea Bargain Agreement ?

Plea bargains are how criminal cases are resolved today. Jed Rakoff wrote an article a few years ago on why innocent people plead guilty. Some statistics indicate that in 2013 97 % of all federal criminal cases were settled by a plea bargain agreement, In his article Mr. Rakoff discusses the evolution of the plea bargain agreement in resolving criminal cases. today's post focuses on what happens if a judge does not accept a plea bargain agreement.

Last week, a Williamson County, Tennessee judge he announced he would no longer be accepting plea bargain agreements once the case was set for a jury trial. First, no criminal judge in Tennessee is bound to accept every plea bargain agreement. Under Rule 11 (c)(3)(A) of the Tennessee Rules of Criminal Procedure a trial court has the authority gives the trial court the authority to accept to accept or reject a plea agreement. In the Williamson County example, the court could be forcing the defendant to plea guilty as charged. However, The Court of Criminal  Appeals has held there was no abuse in discretion to reject a plea bargain agreement that came in after the plea deadline. See State v. Murphy. Here is a link to review the case.

If the court does reject the plea agreement, the court must comply with Rule 11(c)(5) of the Tennessee Rules of Criminal Procedure in advising the defendant of certain ramifications of the court's rejection of the plea.

Next week more on plea bargains.

Rasing Bail Bonds To Keep The Poor In Jail

The Chattanooga Free Times reported on Hamilton County General Sessions Judges raising bail bonds on an those accused of a crime. It seems one of the General Sessions Judges raises a bail bond more than a one-third of the time.

First, we need to know the basics.

  • Once someone is arrested, a bail bond is set by a magistrate. A bail bond is set on a monetary amount to ensure an accused will appear in court for their court appearances and protect the safety of the public.
  • A person can pay the amount of bail bond into the clerk of the court or hire a professional bail bond's man or women, The court is guided by factors in setting the bond set by the state legislature. Here is a link to a video on the subject.
  • In the Chattanooga cases, it appears the courts are routinely raising a bail bond if the accused has a preliminary hearing.
  • A preliminary hearing is one of the most basic building blocks in preparing a effective defense in a criminal case.

Here are a couple of statements from the article.

"Frequently, when we're at the end of a preliminary hearing, I'll ask the prosecutor, 'Is there a problem with the bond set to go to the grand jury?'" said General Sessions Court Judge Gary Starnes.

This is a sign to prosecutors that judges are open to raising the bonds — specific judges, defense attorneys say.


Though defense attorneys like preliminary hearings, they say prosecutors use them as leverage in a case.

"They will tell you, 'I will bind your case over on the same bond," said defense attorney Jason Fisher. "'But, if you make me have a preliminary hearing, I'm going to ask for a higher bond.'"

Based on these comments it appears that the local district attorney's office is using the bail bond system to keep those unable to post a bond in jail. The net result is it may force a plea bargain to get out of jail. It is unclear from the article if the district attorney's office is filing a motion to increase bond or merely following the tone of the court. It is a disturbing trend to keep the bond excessive to prevent one to having a trial on the merits.

It seems that setting high bail bonds is a tool to prevent one's day in court. keep someone in jail until they plead out.


Why Tennessee District Attorneys Should Provide Discovery In general Sessions Court

Under Tennessee law, one accused of a crime is entitled to request discovery if your case is in circuit or criminal court . Rule 16 of the Tennessee Rules of Criminal Procedure only apply in circuit or criminal courts . The rule requires the state to provide certain types of evidence to the defense if requested. A request for discovery does not apply in the general sessions courts where most cases begin.

I don't know why the Tennessee Supreme Court limited the scope of discovery in Tennessee courts. Here is a recent case study of a aggravated assault case that I recently handled in Rutherford County ,Tennessee . It illustrates the need for discovery in all courts.

I head down to General Sessions Court in Smyrna , Tennessee ready for a preliminary hearing. Based upon my early investigation ,it was a case of credibility of who do you believe . Luckily , a seasoned assistant district attorney was assigned to the case. In discussing the case prior to the hearing , I learned there were some third party witnesses .The assistant district attorney provided a copy of all statements including the Jencks statement of the complaining witnesses. The ADA was not required to give me these statements by rule. I was able to review the statements which changed my mind about the case.

What happened next ? The aggravated assault charge was amended to simple assault. No felony.No  jail. The State of Tennessee resolved a case without months of needless litigation because the ADA  realized that disclosure of the evidence might be the best route to take.

The takeaway is the state should disclose discovery in any criminal proceeding. I am not suggesting a wholesale discovery request but statements , reports , and videotapes would streamline the process .It probably would lead to a fair criminal justice system.

Abolishing the Grand Jury Part II

In a follow up to last week's post on abolishing the grand jury process in Tennessee , Grits for Breakfast reported on a proposed bill  in Texas on abolishing the grand jury in Texas. The grand jury process may be in jeopardy .

Should Tennessee Abolish the Grand Jury ?

Over the last two weeks , there has been more stories on the grand jury process due to two high profile cases. It got me thinking about the grand jury process in Tennessee . Should it be abolished ?

The grand jury was established to be another check to determine if there was sufficient probable cause to charge a citizen of a crime. There are two checks on that currently without the grand jury . First , a magistrate determines probable cause when the arrest warrant is issued. Secondly , the general sessions judge makes a determination of probable cause after a preliminary hearing.

Presenting the case to the grand jury is a unnecessary step. Once the general sessions judge finds probable cause just set the case on the docket in circuit or criminal court. No delays. In Davidson County , a case can languish for months until the case is presented to the grand jury. From my perspective the grand jury is a rubber stamp for the district attorney . It's secret. The defense cant present it's case . In some cases the witnesses don't even testify.

Abolishing the grand jury would avoid direct presentments . A direct presentment is where the district attorney takes a case directly to the grand jury bypassing a arrest warrant and a preliminary hearing. It is routine in some cases for the district attorney to take a case to the grand jury. Sex crimes are the most common example. Here is an example of a grand jury report from Nashville. Maybe it's time to take a fresh look to determine if the grand jury process is really needed.

The Duties of a District Attorney in a Tennessee Grand Jury

The grand jury process is but one of the checks and balances on the power of the government to make sure a criminal prosecution is fair. By now , everyone is familiar with the grand jury in Ferguson , Mo. This week, I watched some of the press conference by the prosecuting attorney. Practicing in Tennessee much of what happened is foreign under Tennessee jurisprudence.

NPR reported  that sixty witnesses testified over seventy hours. In a rare move , the prosecuting attorney Robert McCulloch released all the evidence including the transcripts. He even presented exculpatory evidence to the grand jury. The result was that the grand jury failed to return an indictment. He even questioned the witnesses.

Rule 6 of the Tennessee Rules of Criminal Procedure sets out the powers and duties of the district attorney and the members of the grand jury. Here are some key differences between the Ferguson grand jury and the grand jury process in Tennessee ;

  1. In Tennessee , the district attorney has no authority to subpoena witnesses to appear before him for investigative purposes. See Graves v. State.
  2. The district attorney has no power to call witnesses before the grand jury. See Warner v. State.
  3. The district attorney's sole role is to give legal advice .See Rule 6(h) of the Tennessee Rules of Criminal Procedure.
  4. The grand jury may refuse to hear testimony of witnesses brought before it by the district attorney. In fact , a witnesses may testify from hearsay evidence. A longtime practice of the Davidson County District is to have the district attorney's investigators testify rather than the live witnesses.
  5. It is proper for the grand jury to record the testimony but not the district attorney.

The bottom line is that the grand jury process differs from state to state. What happened in Ferguson , Mo. would never happen in Nashville , Tn.



Is a Subpoena Served Outside the State of Tennessee Valid ?

In yesterday's post , I discussed whether an subpoena served via telephone was valid . In reading the rule , something else caught my attention. Is a subpoena served outside the of Tennessee valid ? Nashville is a great city to visit. Some folks might have a little too much fun on lower Broad and get into a little misunderstanding with the police. Does a witness have to come back to Tennessee if they get a letter from the District Attorney or a subpoena from the clerk ?

There are two different rules that govern the subject. First interstate subpoenas are covered under the Uniform Law To Secure Attendance of Witnesses. Here are a couple of points. Under T.C.A. 40-17-203 ,only a judge of a court of record can issue the subpoena. So the statute does not apply in General Sessions Courts. Secondly , the court must hold a hearing to determine if the witness is material and necessary. The bottom line is this rule is only applicable in Circuit Court or criminal Court. We are back to Rule 17 of the Tennessee Rules of Criminal Procedure . Here is what part of the rule states:

(2) Service Within State. A subpoena requiring the attendance of a witness at a hearing or trial may be served any place within Tennessee.

From the plain reading of the statute , it appears that Rule 17 does not trigger the attendance of a out of state witness unless there is a application pursuant to T.C.A 40-17-201.

I have enjoyed this topic of getting back to the basics of evidence and procedure . Lawyers sometimes take the rules for granted . In this spirit , I hope to write weekly on evidence and procedure issues


Is a Subpoena Valid If It Was Served by Telephone ?

Last week a question was posted on a consumer website that allows lawyers to answer  questions posted by people looking for information. First , please do not rely on answers from attorneys on websites as legal advice. The lawyers might not know all the facts or could be lawyers from another state. The question asked  was " Is a subpoena valid if it is served by telephone." Subpoenas are a order directing a person to come to court or to come to court with certain things such as records or other tangible evidence.

Subpoenas are issued by telephone routinely in Nashville Davidson County Tennessee General Sessions Courts . Once I read the question ,  I realized that I did not know the answer. Rule 17 of the Tennessee Rules of Criminal Procedure . The rule does not speak to  service of a subpoena by telephone , however  it does address manner of service. Here is an excerpt from the rule;

(f) Service.

(1) Method of Service. A subpoena may be served by any person authorized to serve process, or the witness may acknowledge service in writing on the subpoena. The server shall deliver or offer to deliver a copy of the subpoena to the person to whom it is directed or leave a copy with an adult occupant of the person's usual residence

The rule sets forth that the server shall deliver a copy of the subpoena or offer to deliver a subpoena . In using a telephone to serve a subpoena , it is common sense that the person subpoenaed does not get a copy. The question is does the person on the phone offer to deliver a copy. There is no clear answer to the question. It appears that if the server did not offer to deliver a copy of the subpoena , the service of the subpoena may be invalid .

Tomorrow, Is a subpoena served out of state valid ?

Kenny Britt Records Police Officers

Troubled Titan's wide receiver Kenny Britt now uses his smart phone to record the police when they question him. USA Today reported that a number of NFL players are now video recording their encounters with police officers. Britt is no stranger to the law having been arrested or facing charges since 2010. Britt now reports that police let him go after they find out he is video taping them.

The question is whether  all citizens should  video tape their interactions with police. I would submit it is a great idea. Most police officers in Nashville, Tennessee do not have video cameras. Only , the DUI enforcement unit , aggressive driving unit , and the drug interdiction unit has video cameras installed in their police cruisers. In some cases , it boils down to your word against the police officers. A video tape is great proof of what happened. Whether you consent to a search of your car , made a confession , or did field sobriety tests. A impartial showing of the video tape can be critical.

This summer a citizen video taped a Murfreesboro, Tennessee police officer at a DUI roadblock that went viral. It is not against the law to video tape any police action . Buy a smartphone and hit the record button.

Sycamore Row's Evidence Problem

I have a confession. I love to read John Grisham's books. I just finished Sycamore Row. It was a great story. Many of the characters were from Grisham's first book . Jake  Brigance returns  to try a will contest case. The trial revisits emotions from a time long ago. I  highly recommend the book.

During the trial ,  one critical evidence issue comes up. One of the heirs disappears . .Ancil Hubbard is found in Alaska on the eve of the trial. A videotape statement made under oath is taken in Alaska and is rushed to Jake to save the trial. The judge lets the video in and it changes the trial. The question is in fiction anything can happen, but how would it play out under the Tennessee Rules of Evidence.

The video statement is clearly hearsay. Hearsay is one of the bedrock rules of evidence. The basic rule is hearsay testimony is excluded unless it falls under some exception of which there are many. In reviewing the Tennessee Rules of Evidence Rule 804 may be the best argument Mr.Brigance can use to get the video admitted into evidence.

First some background , Ancil was the brother of the decedent Seth Hubbard. The video explains why he made his holographic will which disinherited his family. To complicate the matter , Ancil can't attend trial because he is facing a cocaine charge and is now in jail. Ancil is unavailable for trial.

Rule 804 of the Tennessee Rules of Evidence allows certain exceptions to the ban on hearsay evidence if the declarant is unavailable . The rule allows a statement of personal and family history. Part (B) of the rule could allow Ancil to testify to the past family history which lead Seth Hubbard to change his will.

 Jake didn't argue this rule with the judge , but the judge let in the video. The takeaway for lawyers is know the rules of evidence when you want to get critical evidence admitted. For readers , enjoy the book.

A Fair Trial Verses Open Records

A battle is being fought in the Vanderbilt football players rape trial. However , the battle is not between the accused verses the government. It is The Tennessean verses Metro Police. The Tennessean issued a request pursuant to the Tennessee Open Records Act . Metro Police issued a denial of the records request based upon the fact that the records are part of a open/pending criminal investigation. The main issue is the right to have a fair trial verses the presses rights to open record

 Already the court has issued a gag order prohibiting speech about the case. Now the newspaper wants access to records including test messages and surveillance videos for the case. Will providing those texts and videos deny these men the right to a fair trial . What is the public's need to know about a criminal investigation. Will surveillance videos of the victim then be blasted out over the newspapers website ?

David Raybin has long argued that criminal discovery should not be placed in the case file for various reasons. I agree. Disclosure of sensitive evidence can harm ones right to a fair trial or make it more difficult to get one. The newspaper wants to find out if the quarterback was one of the players that helped move the victim. Let the government prosecute the case. Let the attorneys defend the case. Let justice be done for both sides. What good does it do to reveal video tapes or text messages ? Let the jury see then the paper can report from the courtroom.

New Tennessee Bail Bond Law Creates Chaos

Walter Roche wrote a nice article in the Tennessean yesterday on the new bail bond law. The first version of the bill limited the bail bond company's exposure to one year on a misdemeanor and two years on a felony. If the case was not concluded , the accused had to make a new bond. Now, most folks think one year is enough time to settle a case. However , blood tests for drugged driving cases take up to forty weeks and sometimes longer to get a result. The bill that was passed let a bail bond company off the hook once a defendant pleaded guilty .The effect is that a person has to make a new bond or go to jail until the sentencing hearing. Folks that made a bond before the law went into effect probably were not told what would happen.

I am proud that the Davidson County Criminal Court Judges stepped up to the plate to create some fairness in the system.The court order requires the bail bondsmen to notify their clients if they intend to go off a person's bond at plea. I should also state that most bail bond companies in Nashville are remaining on the bail bond after plea. I do understand the bail bondsmen position.Maybe a little communication is in order . My proposal is just to notify the bail bondsmen or bonds women that a plea was entered and a sentencing date is set. For those not in the criminal justice system , a plea of guilty to certain crimes carries a automatic revocation of bond like rape. Most folks at a sentencing hearing are eligible for some type of alternative sentencing.

Continue Reading...

What is the Purpose of Bail Bonds ?

The purpose of a  bail bond is to release a person charged with a crime from jail. In exchange , the accused promises to make all their court dates subject to the bail bond being forfeited upon a failure to appear. What happens when the courts set an excessive or punitive bond to punish those charged with certain offenses ?


A person charged with a misdemeanor is normally given a small bond of a couple of thousand dollars. Last week , I discovered that bail bonds were being set in Sumner County , Tennessee for $75,000.00. for DUI Second offenses. A person charged with a DUI second offense would have to write a check for the $75,000.00 or pay a bail bondsman a fee to get out of jail. A magistrate or a judge is given some discretion to use certain measures on a person charged with a multiple DUI offense such as ignition interlock and a scram device to name a few.

The question then is whether the amount of bail is punitive. How is the bail bond on a DUI offense compared to other crimes ? Is the same amount being set on all multiple DUI case ? Should one just pay the bond or file a motion to reduce bond. Here is a link to a short video on the factors for a bond reduction.

So fight the bail bond and you might get hammered on the conditions of bond or you can pay a excessive bail bond to get out out of jail. Not much of a choice when you are presumed innocent.



Why Does The Prosecuting Attorney Not Want To Be Called The Government ?

Recently , there has been some discussions among Tennessee criminal defense lawyers about a motion that has been filed by a Tennessee prosecutor. An Assistant District Attorney has filed a motion in limine to preclude the defense attorney from referring to the state's attorney as " The Government' during trial. The motion asserts that referring to the Assistant District Attorney as the government is derogatory , oppressive , and will inflame the jury. So the government does not want to be called the government . No statute or any authority was cited in the motion.

I find this motion a little hard to swallow. District Attorneys use words to paint their picture . Words like defendant , victim , and even criminal defense attorneys strike some reaction among juries.

What does the Assistant District Attorney want to be called ? General , Assistant District Attorney General , by their last name , or simply the State of Tennessee are their suggestions. Interestingly , Tennessee has a tradition of calling Assistant District Attorney  "Generals" for some historical reason tha tis unknown to myself. Surely , this inflames a jury to give them more credibility by giving them a army rank.

Here is my suggestion for truth in labeling during a criminal trial;

  • Victim =  Mr. or Ms._____
  • Defendant =  Mr. or Ms.____
  • State's Attorney = Mr. or Ms.______
  • Criminal Defense Attorney = Mr. or Ms. _____

Once we put labels on people such as Republican or Democrat , folks already start judging. I have to admit that I call the state the government during trial because the assistant district attorney represents the state which is the government.

Here is my final suggestion let's just call the state the evil empire.


Supreme Court Docket For Criminal Lawyers

It is October 1, and the U.S.Supreme Court is back in session after the summer break. Now if only Justice Thomas will ask a question during arguments. It is a full docket for the court on issues that effect criminal defense lawyers. Here is a brief list of the cases that might impact you in the future ;

  • Florida v. Jardines   In Jardines , the issue is whether the police violated the Constitution by using a trained drug dog to sniff at the threshold of a house where they suspected marijuana was being grown. Apparently, there was no hard evidence of marijuana being grown so they ran a drug dog around the outside of the house. So , is it a search if the drug dog was just around the house. The Florida Supreme Court ruled is was a constitutional violation.
  • Missouri v. McNeeley    In McNeeley , The issue is whether the police can take a blood sample of an accused DUI driver without a search warrant based upon exigent circumstances. Tennessee has a law on the books that allows a forced blood draw of those that have had a prior DUI conviction. The Missouri Supreme Court ruled that since there was no accident to investigate and because there was plenty of time to get a warrant that the police needed to obtain a warrant.
  • Chaidez  v. United States , In Chaidez , the issue whether the ruling in Padilla applies to someone whose conviction became final before that ruling was announced. Padilla requires a criminal defense attorney to advise non-citizens that a guilty plea may carry the risk of deportation.
  • Ryan v. Gonzales  In Ryan , the issue is whether a defendant needs to be mentally capable in assisting his own attorney in challenging a death penalty conviction.

The Court has a full slate. The first two cases are important in the application of the Fourth Amendment. The power of the protection of the Fourth Amendment has waned over the last couple of terms of court. Are we going to allow the police to take bodily fluids without a search warrant then run drug dogs around our house.



Should the Government Take a DNA Sample From Arrestees ?

The United States Court of Appeals for the Ninth Circuit is scheduled to reconsider today whether California violates the Fourth Amendment's prohibition against searches and seizures by requiring police to take DNA samples from those arrested but not yet convicted. California's law is designed to accurately identify those arrested , solve crimes , and exonerate the innocent.

Earlier in the year, the court ruled it was constitutional. The law should be ruled unconstitutional. Unless there is a search warrant or reasonable suspicion that a different crime was committed , the taking of a DNA sample violates the Fourth Amendment. Does citizens invasion of privacy outweigh the benefits to law enforcement ? The stated purpose of the law is identification. Most law enforcement agencies use fingerprints to make sure they have the right person. Even the citation docket here in Nashville uses fingerprints to identify a person cited for a crime. The real purpose of the California law is investigation. Seize some DNA and whenever you collect some DNA you run it to see if you get a match in your database.When the state seizes the DNA sample , it enters the sample into CODIS which links the DNA database from state , federal , and local databases.

Taking DNA from someone merely arrested violates the Fourth Amendment. Once you are convicted of a felony in Tennessee , you are required to submit to a sample. The constitution permits that sample. Tennessee also allows the taking of a DNA sample as a condition of bond on certain types of felonies. However , California and other sates seizure of DNA solely on the basis of a arrest violates the spirit of the Fourth Amendment. I expect the U.S.Supreme Court to take up the issue in a similar case from Maryland.Currently more than half the states have DNA sampling at the time of arrest.

What is an Arraignment ?

One of the routine questions I am asked is" what is an arraignment ."  An arraignment  is that stage of the criminal proceedings where a defendant is called upon by name to enter a plea. It is at this stage of the case where the defendant is to provide notice to the defendant that a plea must be entered . In most cases a plea of not guilty is entered. The plea can always be changed to guilty at a later time.

The Tennessee Rules of Criminal Procedure provides that before any defendant is tried , they must be brought into court and arraigned. At arraignment , a copy of the indictment , presentment , or information. The arraignment is not a critical stage of the trial so long as the judge requires no plea. In fact , a defendant can waive his presence at the arraignment as long as his or her attorney is present with a written waiver and enters a plea of not guilty.

The arraignment is the first step in the criminal court process under Tennessee criminal procedure.

Can You DeleteYour Facebook Page ?

Lawyers and Judges are struggling with the explosion of social media in the courtroom. Recently , a Virginia judge sanctioned a lawyer over $500,000.00 for advising a client to delete a facebook account in a civil case. Most states have a theory of law in civil cases called spoliation of the evidence. Basically , one side is punished if it is discovered they destroyed evidence in a civil case.

How does that apply in a Tennessee criminal case ?  Tennessee does not have any brightline tests for deleting a facebook page. However , Tennessee does have a Tampering with Evidence law. It usually deals with someone who tries to throw away the drugs or destroy the object of the crime. I am unaware of any Tennessee cases that have dealt with a destruction of a facebook page.

Facing a criminal charge and you have a facebook page. First , change the privacy settings . Second , contact your attorney about what you should do before you take any action . There is one guiding rule of what you should or should not post on facebook. Would you want your mother or grandmother seeing the post or the picture.

The Use of Criminal Convictions as Impeachment Evidence

Certain criminal convictions can be used to attack the credibility of witnesses during trial. It is commonly referred to a impeachment evidence. In some trials , it is who the judge or jury believes that makes the difference. In many cases such as a domestic violence charge, no one witnesses the alleged charge except the parties.

Last week , I tried a domestic violence case in Davidson County General Sessions Court where the entire case was based on the credibility of the witnesses. One of the key witnesses for the government had a criminal conviction for thief which is a crime of dishonesty . A theft conviction can be used to attack the credibility of a witness.

The procedure is governed by Rule 609 of the Tennessee Rules of Evidence. The general rule is the crime must be punishable by death or imprisonment in excess of on year (felony) under the law which the witness was convicted or , if not so punishable , the crime must have involved a dishonesty or a false statement.

The lesson is to  run a criminal background check on all witnesses.  it is great trial theater when the witness either admits to thief or denies it when you have a certified copy of the conviction if they deny the conviction.

In this case , the witness admitted the theft . Credibility was on the table . Result not guilty. So the teaching point is to run the records of both side's witnesses . Have the rule ready .  Be prepared to win and be prepared to argue the rule.

Zimmerman's Bond Reduced

Last week , George Zimmerman had a hearing to reduce his bail bond . It was anticipated Mr. Zimmerman would make the request .The way in which he made the request was a terrific move on his lawyer's part. In most cases , I do not put the accused on the stand at a bond hearing . Under Tennessee criminal law , one of the factors for reducing the bail bond is the likelihood of the conviction. So , the client should not testify in most cases since the assistant district attorney can make an inquiry about the facts of the criminal offense.

In the Zimmerman case , Mr. Zimmerman took the stand and made a public apology to the family . Great move. It appeared to be heartfelt and may have turned the public opinion of him in this tragic case. In most cases , it would be unwise to take this path. Due to the unique facts of this case , it was the right choice . Now everyone in America knows he is remorseful including prospective jurors. I think the public apology was a very strategic move by his lawyer. One thing was missing. Why did not the prosecutors cross examine Zimmerman on the facts. In Tennessee , this would have been fair game.

Reducing a bail bond in Tennessee is base upon several factors like the likelihood of conviction. I have previously written about all the factors the court will consider in lower bail bond.


Murfreesboro Judge Issues Gag Order In MTSU Murder Trial

Rutherford County Tennessee Circuit Judge Don Ash issued two key rulings in the murder trial of Shanterrica Madden . First , the court issued a gag order . The Government moved the court for the gag order which would prohibit the attorneys from publicly discussing the case. The state asked for the gag order to "ensure the jury pool is not tainted " . It is unusual for a court to issue a gag order in most criminal cases.

The court had already granted a motion for a change of venue . A request for a change in venue is a written motion seeking to have the jury pool made up of folks from another county . It is most common in high profile capital murder cases where there has been intense pretrial publicity. Rule 21 of the Tennessee Rules of Criminal Procedure sets out the procedure. The court may change venue on the defendant's motion or on its own initiative with the defendant's consent. The key point that the court must consider when deciding the motion for a change of venue is when a fair trial is unlikely because of undue excitement against the defendant in the county where the offense was committed.

The Tennessee Criminal  Court of Appeals has adopted several factors the court can consider when granting a motion for a change of venue ;




1. The nature, extent, and timing of pretrial publicity.

2. The nature of publicity as fair or inflammatory.

3. The particular content of the publicity.

4. The degree to which the publicity complained of has permeated the area

from which the venire is drawn.

5. The degree to which the publicity circulated outside the area from

which the venire is drawn.

6. The time elapsed from the release of the publicity until the trial.

7. The participation by police or by prosecution in the release of publicity.

8. The severity of the offense charged.

9. The absence or presence of threats, demonstrations, or other hostility

against the defendant.

10. Size of the area from which the venire is drawn.

11. Affidavits, hearsay or opinion testimony of witnesses.

Continue Reading...

Does A Criminal Conviction Impact Your Immigration Status.

 Several weeks ago , I had the chance to work with Nashville immigration lawyer Sean Lewis . Since Padillia v. Kentucky , it is critical that a criminal defense lawyer consult with a immigration lawyer before entering a plea bargain. Now under Rule 11 of the Tennessee Rules of Criminal Procedure , it is mandatory for the court to make an inquiry.In the case Sean and I worked on , we were able to hammer out a plea agreement that would not have any immigration consequences.

I asked Sean to do an interview on these important issue. This is the first of a three part series of interviews. The first is cases involving those under a temporary protected status . I hope you find the interviews helpful.

Use of Cell Phones Pose New Problems for Police

The ABA posted an article on the explosion of the use of cellphones that are being used to video police. It seems that average citizens are now video taping police officers in the performance of their duties.  A Boston man was arrested for video taping an incident where he thought police were using excessive force. Simon Glik was arrested for violating a state wiretap law. Later, the case was dismissed. In a civil rights case, Mr Glik brought the 1st U.S.Circuit Court of Appeals in Boston held that Mr. Glik had a constitutional right to video-record the police performing their duties.

“Our recognition that the First Amendment protects the filming of government officials in public spaces accords with the decisions of numerous circuit and district courts,” the panel wrote. The case went back to the federal district court and the parties are in discovery

Smart phones such as the iPhone have both video and audio recording abilities. So, can you record your conversations with police or video tape a police officer conducting an investigation? From the ruling in the Glik case, it appears so.

A police officer stops your car, should you record what he says? Often in most DUI cases, a police officer will assert that you are slurring your words. What evidence can you get or provide to counter that testimony? The answer is a recording.  What about the field sobriety tests?  Can a passenger video tape you walking the line?  One solution that would be an easy fix is for the Metro Nashville Police Department to install working video recorders on all patrol cars, not just the DUI officers' cars.

Technology is changing our legal landscape in ways unimagined just years ago.The image below is a Maryland State Trooper whose image was captured on the stopped motorcyclist's camera, which was on the motorcyclist's helmet. The video was later posted on you tube.



Criminal Defense Lawyer Goes To Jail Over Drug Test

Drug Testing in the criminal justice system is currently a hot topic . My last post was on drug testing for Tennessee judges.  Last week Michigan criminal defense lawyer Scott Millard was jailed when he stood up to a judge about asking his client to take a drug test .  I learned about the show down last week from Keeley Heath who practices with Mr. Millard . Mr. Millard spend four hours in lockup defending his client. Simple Justice posted part of the transcript of the hearing right before the hammer went down.Here is the exchange :


JUDGE POST: (to the defendant) When they give you a drug test today, are you going to be clean or dirty?

MILLARD: (My client) is going to stand mute to that question, your honor.

POST:  He's not going to stand mute. He's either going to answer the question or I'm going to remand him to jail.

MILLARD: Your honor -

POST: You can have a seat.

MILLARD: Your honor, I'm -

POST: Sit down.

MILLARD: I'm Counsel, your honor.

POST: I'm encouraged. Both of you sit down.

MILLARD: I'm his attorney, your honor.

POST: I'm encouraged.

MILLARD: (My client) has a 5th Amendment right.

POST: Counsel, I'm setting bond. There's two ways we can do this. I can give him 30 days from the date that he last used to be clean, or I'll remand him to jail until such time as he's clean and then we'll go from there.


POST: Would you please be quiet? I really appreciate that. Thank you.

MILLARD: I apologize.

POST: (to the defendant) When was the last time that you used controlled substances? Let me have the date please.

MILLARD: Your honor, (my client) has a 5th Amendment -

POST: I'm not charging him with using controlled substance, Counsel. He's not charged with that charge. I'm interested in getting a clean, honest bond response. Now, if you don't want to do that, you can leave. Your call.

MILLARD: (My client) has a 6th Amendment right to assist, effective assistance of counsel.

POST: That's right. And that's not what he's getting at the moment.

MILLARD: Your honor, I strongly disagree with that.

POST: I'm glad.

MILLARD: I've been nothing but respectful and I will always be respectful to the bench.

POST: Then would you please let him answer my questions?

MILLARD: (My client) has a 5th Amendment right not to make admissions, and, your honor, the manner in which this proceeding is being conducted, strongly has the, at least I'm getting the sense that it threatens to tread on that 5th Amendment right.

The judge and the attorney went back and forth for a bit on the 5th Amendment, the court's ability to order drug testing and the attorney's suggestion to set a date for his client to take a drug test. Then —

POST:  I'm not interested in what you think. Haven't you gotten that yet?

MILLARD: I have gotten that, and I... understand that, and your honor, the court fully, certainly has the right to not care what I say. How —

POST: Thank you. Then be quiet. ... (Then, to the defendant) When was the last time that you, the date that you last used controlled substances, sir?

Millard interrupted and stopped his client from answering.

POST: One more word, and I'm going to hold you in contempt 

 When  I read the first post of Mr. Millard predicament up to the judge , I was proud that a criminal defense lawyer would stand up to the judge ordering a drug test on someone.Tennessee State Legislators spoke about requiring judges to take them in Tennessee . Now , the wholesale practice of the use of drug tests are startling. Now , once one is on probation your constitutional rights are limited. Taking a drug test before a sentencing hearing to help make your case for probation is fine by me. Other than that " Just say no to drug testing". Stand up for justice and the rule of law. Way to go Scott.

Should Tennessee Judges Be Required to Take A Drug Test ?

The fallout from former Knox County Criminal Court Judge Richard Baumgartner continues. Judge Baumgartner presided over some of the most highly publicized murder trials in Knoxville , Tennessee . The only problem was that he was under the influence of painkillers during the trial . Special Judge Kerry Blackwood granted a motion for a new trial in some those cases recently . Judge Baumgartner got the trifecta due to his actions a  resignation , a felony conviction , and disbarment. The family of the victims are now facing another trial after they thought they had closure. The defendants now get another trial due to the court's misdeeds.


Now Tennessee State Legislators are on the attack. At a luncheon this week , State Senator Stacey Campfield suggested that judges should be drug tested . Then , another state legislator suggested that criminal defense lawyers should be drug tested . I wish the state legislators would venture into a Tennessee courtroom and do a little research before they starting popping off about drug testing for judges. Wait a minute . State Representative Curry Todd has been inside the courtroom. I am against any drug testing unless a defendant is on probation.

First , state legislators want the judges drug tested . Then , it is on to the criminal defense lawyers .Why not the police and the district attorneys. I guess we should drug test the jurors. There is one group the state legislators did not want drug tested ; themselves. My suggestion is to drug test the state legislators every day they are on Capital Hill proposing some insane law for some special interest group. The proposal to require drug testing for lawyers is just plain wrong.

Supreme Court Hears Arguments in Plea Bargain Cases

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

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

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

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

Nashville Magistrate Denies Arrest Warrants in Occupy Nashville Case

A Nashville , Tennessee magistrate denied arrest warrants that charged Occupy Nashville protesters were trespassing.

 Tennessee Highway Patrol Officers enforced a last minute trespassing ban at Legislative Plaza this past weekend. Protesters were charged with trespassing and hauled off to visit with the magistrate. After hearing some proof and considering the law , the magistrate denied the arrest warrants and set the protesters free.  The separation of powers was on display. The judiciary upheld the integrity of the law and kept the executive branch from exercising their will on the people. I applaud the actions of the court in enforcing the rule of law. Some magistrates would merely act as a rubber stamp and condone this offensive action by whoever that ordered the arrests.

The teaching point that is important is the role of a magistrate in Tennessee criminal law cases. Rule 5 of the Tennessee Rules of Criminal Procedure provides that a person under arrest shall be taken without unnecessary delay to a magistrate. The magistrate usually makes a finding of probable cause to issue the warrant.

Other duties of the magistrate included ;

  • Setting bond.
  • Advising the defendant of their constitutional rights.
  • Setting the preliminary examination.


In the occupy Nashville case , the magistrate held that the State of Tennessee did not have the power to authorize a curfew . Nashville Scene reporter Jonathon Meador was arrested and ultimately tweeted his release from jail.

Here is my two cents . First , I guess the right to assembly granted to us in the Constitution does not apply to the Legislative Plaza. Second , the rule of law was enforced by that great thing called the separation of powers. I wonder if Governor Haslam checked his orders out with the Attorney General.


Should a Criminal Defense Lawyer Allow Parents to Sit in On the First Consultation ?


North Carolina divorce lawyer Lee Rosen wrote a post on should a mother attend the first consultation in a divorce case. I thought the post was worth commenting on from a criminal lawyer's perspective. I represent a lot of Vanderbilt students  as well as those from other local colleges here in Nashville. Most parents want to be involved in the process. As a parent myself , I understand that need to know what is going on with the criminal case for your child. However , when a third-party is in the conference room it breaks the attorney client privilege. So , any communication between the client and the criminal defense attorney is no longer privileged. It comes to be important later at a bond hearing or if the parent is a witness at a later hearing..

What should a criminal defense lawyer do ? First , explain to the parents about the attorney-client privilege. Second , Meet with the parents and give a general overview of the criminal process. Third , excuse the parents while you get the facts about the case . One benefit is your client may really tell you what happened rather than sugarcoat it for their parents. finally , bring the parents back in to discuss the defenses , strategies , and where you go next.


Thanks to Lee Rosen for the idea for today's post.

Video Taped Statements

I watched a portion of a trial today while I was waiting for my case to be called in the Birch Building. I have a case next week withe the same prosecutor and just wanted to watch. One evidence issue came to mind during the trial which sparked a thought. Normally , when a video tape is introduced at trial, the district attorney's office provides a transcript. The stated purpose is to assist the jury. The court gives a curative instruction that the video is evidence not the transcript. During a trial , I never watched the judge or jury during the video. I am concentrating on the video.Funny things happen when you watch.

Even though the judge told them the video was the evidence not the transcript , something happened . The jurors did not watch the video statements at all. They focused in on the transcript. The judge went to the transcript. The demeanor of the detectives and the witness was ignored.

Rule 1001 of the Tennessee Rules of Evidence provides ;

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress or the Tennessee Legislature

From watching the trial today , it appears the transcripts outweigh what is on the evidence. The transcript trumps the video. Now i know why the district attorney provides the transcript.

Nashville's Criminal Citation Docket


What is the booking process if you have been issued a criminal citation in Nashville , Tennessee ?  Metro Nashville Police  in some types of cases like simple possession of drugs , patronizing prostitution , and driving on a revoked driver's license issue a criminal citation in lieu of an arrest warrant . I recently was asked  what is the booking process.

On the criminal citation , you are given a date in which to appear . The booking process starts at 7:00 A.M. and continues until 10:00 a.M. The location is the A.A. Birch Building which is pictured above .  After you enter the building , you go into the booking room where you provide some brief information , a mug shot photograph is taken , and you are fingerprinted . A trip down to Courtroom 1A is next . You sit there until the paperwork is processed . If you don't have an attorney , you sit there until an assistant district attorney calls you to discuss the case .

An attorney can speed up the process , look for any defenses in the case , and possibly  negotiate a plea bargain or set the case for trial if needed .Also , an attorney can continue the court date if you have a conflict with the court date . Most importantly there may be ways to have the case dismissed and later expunged from your criminal record . Representing yourself may result in a criminal conviction that will be on your record for life .

So , that's the basics of the booking process in Nashville.

No Pardons for the West Memphis Three

Arkansas Governor Mike Beebe declared that he did not plan to grant pardons in the West Memphis Three case unless evidence showed that someone else committed the murders. The West Memphis Three were convicted of three murders in 1993 . The case was based in large part on a suspect confession by one of the co-defendants who had a low IQ. It appears that this confession was false.


Last week , a plea bargain deal was cut . In exchange for a plea to murder , the West Memphis Three got a get out jail card along with 10 years of unsupervised probation . Also , The West Memphis Three enter a Alford Plea or best interest plea which allowed them to maintain their innocence .Under Tennessee criminal law , there are three types of pleas that can be made at the plea bargain process ;

  • A guilty plea
  • A Nolo Contendere Plea
  • An Alford plea or best interest plea.

Rule 11 of the Tennessee Rules of Criminal Procedure governs the plea bargain process. There is a whole lot more involved in the plea bargain and the underlying facts of the case. A deal was cut to avoid years of protracted courtroom battles and to take a man off death row.I will just wait for the movie.



Shackled Mom Wins $200,000.00 Verdict

 Yesterday ,   I posted on the trial of a woman who was shackled during labor by members of the Nashville Davidson County Sheriff's Office Ms.Villegas was awarded $2300,000.00 by a Federal jury in less than an hour of deliberations. Brian Hass and Michael Cass of  The Tennessean reported on the trial during the week . My comments were focused on what lessons could be learned from the trial.

One of the post verdict comments focused on the award . Attorney Jerry Gonzalez stated it was his philosophy to not ask for anything in closing argument. I respectfully disagree with that strategy. A trial lawyer must  argue to the jury what Justice they want. In a civil case , the only thing a jury can do is award monetary damages. How will a jury know what the value of a case is unless they  are given a hint  ? In criminal trials each side always ask for the justice they want.

Nashville Judge Criticizes Metro Attorney

A Nashville Federal Judge criticized the lawyer for Metro Nashville for his techniques during a civil rights trial. U.S. District Court Judge William Haynes has already ruled that the Davidson County Sheriff's Office violated Juana Villegas' civil rights when she was shackled during and after her labor during childbirth . The only issue is how much should be awarded in damages.

Two key points in in becoming a better trial lawyer have been demonstrated in this case . The judge got onto Metro's attorney on two occasions . First , the court  admonished Metro's lawyer for "performing to the jury ' and  he later attacked Ms. Villegas in cross- examination. The court commented that the attorney's conduct " mystified this court ' Some lessons I discovered from the Trial Lawyers College were violated in this trial. The story of the case is what is important not the lawyer . I must admit I have been guilty as charged  for doing the same thing before learning what is really important about trying cases. Also , the violent and ruthless cross- examination is sometimes not fruitful. If the lawyer kills the witness on cross examination , the jury may not feel inclined to do the same . Let the jury discover who and what the witness is about .There is an exception to that general statement of the look good cross-examination and that is  police and expert witnesses  are professional witnesses . You may also may be given permission by the jury  to be more aggressive with the witness if that witness gives you permission by being evasive or other similar conduct.

Secondly , the court excluded proof at the trial the witness is in the country illegally. Another lesson learned from the Trial Lawyers college is don't hide from the truth . The jury is already wondering if she is illegal . Why not deal with in jury selection and at trial . A criminal defense lawyer must recognize the danger points of any case and deal with them. I have learned to embrace most aspects of the case and not hide from them.

final argument is today . The case will soon be with the jury.

Does The Client Decide When A Supression Motion Should be Filed ?

Last week at the annual meeting of The Tennessee Association of Criminal Defense Lawyers (TACDL) in Memphis ,  Shelby County Judge Mark Ward presented an update on the law of search and seizure in Tennessee. It was insightful to get a criminal trial judge's perspective on the topic of search and seizure which is a dominant theme in most criminal cases.

One question posed by Judge Ward was the ethics of motion practice. Who controls the decision on whether to file a motion to suppress evidence in a criminal case ?

The decision whether to file a motion to suppress is a strategic decision made by the  criminal defense attorney after consultation with the client where feasible and appropriate.

One thing to point out. A good criminal defense lawyer will make that evaluation early in the case . Most attorneys file a suppression motion where it has a good faith basis . There are several reasons to file a motion to suppress evidence.

One additional comment is worth noting . All Tennessee criminal defense lawyers should be a member of TACDL. There are many benefits but the first one is the information you gain is critical to helping you grow as a criminal defense lawyer and to help your client . For the client looking for a lawyer it is an important question to ask when deciding to hire a criminal defense attorney . If a lawyer does not care about spending a little bit of money to stay up to date on the complex issues in criminal law . Can you afford to place your life in there hands ? Here is a link to the membership directory. I checked the link . Then called the TACDL office when my name wasn't there . I am the President-Elect. So I learned you have to add your name to the directory. It will be up soon.

Would Your Mom Violate Your Miranda Rights ?


New York lawyer Scott Greenfield writes a great blog on criminal issues as well as other interesting topics . I highly recommend his blog Simple Justice.  Greenfield 's topic today was the use of a mother to get  a confession.

Jason Gonzalez was arrested for murder . Mr.Gonzalez refused to give a statement and exercised his constitutional right to remain silent . One key point to remember is your Miranda rights do not attach unless you are placed into custody. In this case , he was clearly in custody since he was taken to jail . The police did not want to give up the hopes of obtaining a confession . So , they enlisted a person Mr. Gonzalez could trust and confide in to tell his story to . The person was his mother . Good old mom wore  video and recording equipment in to visit her son where a full blown confession was made and later made to detectives as well, Attorneys for Mr. Gonzalez are now trying to suppress the confession.

The defense theory was that mom was an agent of the state and used her power of influence to circumvent Mr.Gonzalez 's constitutional protections.

How would this play out in under Tennessee law ?

The main question is whether the behavior of law enforcement officials served to overbear the defendant's will to resist . See State of Tennessee v. Kelly 603 S.W. 2d. 726.

So can a man charged with a crime resist confiding in his mother  . No. Does this apply to jailhouse rats who try to befriend someone in order to get himself a better deal . Maybe..

The Flight Instruction

Sometimes those charged with a crime try to avoid getting arrested . My advice is to hire a criminal defense lawyer and turn yourself in to law enforcement .There are several tactical reasons to so and they can  all help your case.

First , turning yourself in sometimes result in a lower bail bond being set . When I go with a client to turn themselves into jail ,  the magistrate takes that fact  into account.  You turned yourself in and have a lawyer ready to help you  is powerful . In most instances this is a evidence that you will show up to court since you have hired a lawyer.

Secondly , it can help at sentencing It is not a specific mitigating factor but I think district attorneys and judges both consider this fact.

Third , you avoid the flight instruction . In my last two murder trials the state has attempted to have the court issue a flight instruction . Under Tennessee law , the State of Tennessee can ask the court to instruct the jury on the defendant's flight or leaving  the scene of the crime. Under the flight instruction , the defendant must have left the scene and evaded arrest or concealed themselves or left the community.If the court instructs the jury on flight , it allows the jury to consider the defendant's flight as raising an inference of guilt .

So , the bottom line is you should always turn yourself in for these and other reasons.

In my last two trials , the court granted one such request and denied the other . In my last two posts on " Lessons From Trial "  I intend to discuss Rule 803 (23) of the Tennessee rules of evidence and  the use of cell phone towers in proving location..

Jail House Telephone Calls Are Critical Evidence For The State of Tennessee

Unlike some of the criminal law commentators on the Internet , I actually try cases , represent clients , and go to court . The next series of posts are some important issues that  came up  while in the courtroom last week .

The use of jailhouse telephone calls continue to be used as evidence against the accused.  The Nashville Davidson County Sheriff's Office contracts with Global Tell Link for telephone calls for those housed in the Davidson County Jail. Once an inmate makes a call using Global Tell Link , the call is recorded and downloaded to a server . A warning is played that the calls are recorded , but no warning is given that anybody can have access to the phone calls.

As the case moves forward , the Assistant District Attorney that is handling the case may listen in on the taped recordings looking for confessions , the location of evidence , or other evidence that may help convict the defendant. I have seen these jailhouse recordings used in bond hearings as well as trial.


Does the State of Tennessee have to turn over these recordings ?  I was unable to find any authority that the government must turn over the recordings. However , Rule 16 of the Tennessee Rules of Criminal Procedure requires the state to furnish any written or recorded statement of the accused.The rule encompasses the following ;

  1. Written , recorded and transcribed verbatim statements.
  2. Audio tape recordings between a defendant and a confidential informant.,
  3. Verbatim and contemporaneous statements,
  4.  A memorandum which includes the substance of the statements even though not signed .
  5. Interpretations of the statements.
  6. Statements obtained by means of electronic surveillance.

Under this framework , it is my position the recordings of jailhouse recordings must be provided by the state.

The bottom line is never ever say anything on a phone call from or to jail unless you want to hear it at your trial later . The U.S. Supreme Court recently ruled the First Admendment protects vile speech by protesters at a soldiers funeral but it does no extend to those in the Davidson County Jail.


Can the Co-defendants Statement Sink Your Case

Mastering the Tennessee Rules of Evidence is one of the most crucial requirements of becoming a successful criminal trial attorney. Hearsay is one of the most difficult rules to grasp.  The definition of hearsay is it is a statement , other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted. Tennessee's hearsay rule is riddled with exceptions.One interesting rule of evidence I am dealing with now is an exception to the hearsay rule.

Conspirators' admissions are usually an exception to the hearsay rule. The reason for the hearsay exception is that each conspirator is bound by the actions and statements made by the other conspirators. For example , one co-defendant states 'me and dude went to go shoot another dude" that statement comes into evidence. The question of the admissibility of the statement is did the statement occur during the course of the conspiracy. It must have occurred during the course of the conspiracy to be admissible.

So the evidence tip of the day to exclude co-defendant statements is to investigate when the statement is made. Statement made during the course of the conspiracy it is admitted.Statement made after the conspiracy ended. Excluded.

Statements of the accused or the co-defendants often come back to haunt the person at trial. Remember " silence is golden , handcuffs are silver". 



Showup vs. Line Up What's the Problem


The State of Tennessee must prove identity in every criminal case. A defendant may be identified in a number of ways from eyewitness identification , photographic identification , voice identification , and by forensic science such as DNA evidence .One of the least trustworthy methods is eyewitness identification . Eyewitness identification has been the number one cause of false convictions in the United States .

There are three types of eyewitness identification used by police here in Tennessee :

  1. Lineups
  2. Show Ups
  3. Photographic Identification

A lineup is different from a show up in that a lineup requires the witness to identify the suspect from a group of people while a show up is a one on one identification. A photographic identification or commonly known as a photo array is the least reliable forms of identification . A photograph is two dimensional . The photo array procedure is where a detective places the suspect's photo among other similar photos. The lead detective usually conducts the photo array and knows  the suspect 's identity. Sometimes , the identification procedure can be influenced by the nonverbal clues given by the officer. Some experts suggest a double blind procedure be used . A double blind is where the police officer showing the photographs does not know who is the suspect.

Recently , Florida has enacted identification reform that requires a standardized policy on identification. It is now the rule of law in Florida . The Innocence Project has drafted a proposal for reforms to the eyewitness identification procedure . The Daytona Beach News Journal has written an editorial endorsing the new reform.

One of the easiest, and potentially most effective, fixes involves a simple tweak to a basic police tool: the lineup. This practice — in which police actually line up a row of people, or display a set of photographs and ask a witness to identify one as the criminal — is subject to flaws, particularly when the officer administering the lineup knows who the suspect is. Even though the officer might not intend to taint witness identification, it happens, through subtle "tells" such as fleeting changes of facial expression.

The solution is to remove that officer from the lineup process, substituting another officer — one who has never seen the suspect and doesn't know who the ringers are. This procedure, called a "double-blind" lineup, is the best way to ensure that eyewitness IDs are as accurate as possible. In addition, police should take care to ensure that all subjects in a lineup are as physically similar as possible.

Florida is trying to correct the problems in the criminal justice system. It appears the State of Tennessee does not want to fix the problems and injustices in the system . Tennessee Legislators want to use the criminal; justice system as a political football to gain support with the public . Wipe out the exclusionary rule , put GPS devices on everyone accused of a crime , make jail sentences excessive those are their solutions . Let's copy Florida instead of Arizona.



What is a Warrant ?

An arrest warrant is a written order which is made on behalf of the State of Tennessee and is based upon a affidavit of complaint issued pursuant to a statute which commands a police officer to arrest that person and bring them before a magistrate .  This is one way to start a criminal case in Tennessee .

There are some formal requirements of the arrest warrant.

  • The warrant must be signed by the magistrate .
  • It must contain the name of the defendant .
  • It must indicate the county in which the warrant was issued .
  • The warrant must describe the offense charged in the affidavit of complaint .

There must be some evidence that is probable cause  to believe a crime occurred. It can be based on hearsay evidence . The issuance of a warrant does not require proof beyond a reasonable doubt.

The Criminal Court Clerk in Nashville , Tennessee provides Internet access of warrants issued in Davidson County . Click here for the link to the clerk's office for access to review your warrant .

Criminal Discovery Part II


Lack of discovery sometimes leads to the image we see above. One of my major gripes with the criminal justice system is the limited discovery that is granted in criminal cases . In Part II of Criminal Discovery in Tennessee criminal law cases , we will cover Reports of Examinations and Tests  covered under Rule 16 of the Tennessee Rules of Criminal Procedure .

In today's criminal trials ,  forensic evidence is taking center stage in the courtroom . From  DNA , tool mark evidence ,  blood alcohol reports , forensic evidence is critical to preparing a defense .

The government shall permit a defendant to inspect and copy or photograph the results or reports of physical or mental examinations , and of scientific tests or experiments .if :

  1. the item is within the state's possession , custody , or control ;
  2. the district attorney knows or though due diligence could know the item exists ; and
  3. the item is material to preparing the defense or the state intends to use the item in it's case in chief at trial.


Here is one common problem in drunk driving (DUI) cases . A defendant only gets the report . You get nada, zilch , and nothing on the tests and the procedure in how the sample was tested . You get a vanilla report without and supporting proof .The second out for the state is the claim is that is not in the posses ion , custody and control of the state . It's in possession of law enforcement or some other agency .

Criminal defendants just want a level playing field .One area of reform is broadening the scope of discovery in Tennessee criminal cases .

Discovery in Tennessee Criminal Cases

I have a fundamental problem with discovery in Tennessee criminal cases. Discovery is the process in which each side of the lawsuit or criminal case learns what evidence each side has available. In Tennessee civil cases , one can use all types of discovery tools to learn what the other side has to defend or prosecute the case.Criminal defendants are very limited in what they can learn.

Here's an example . I tried   impersonation of a licensed professional charge recently. I called the main witness to speak with her about the case. I was very nice and explained why I wanted to speak with her.She refused.In a civil case , I could have taken her deposition and she would have had to answer my questions. In Tennessee , civil cases you can ask about anything .When your freedom is at stake , a criminal defendant is limited in scope of what they are entitled to receive.

Rule 16 of the Tennessee Rules of Criminal Procedure provides what the Government has to provide:

  1. The Defendant's Oral Statement.
  2. Defendant's Written or Recorded Statement.
  3. The Codefendants Discovery.
  4. Defendant's Prior Record.
  5. Certain Documents and Objects
  6. Reports of Examinations and Tests.

Here's my problem.  Discovery does not apply in General Sessions Court by Tennessee case law. Most  driving under the influence cases are handled in General Sessions court without discovery. Secondly , criminal defense lawyers should at least be able to interview law enforcement officers. Money verses the rights of the criminally accused . When your talking about money , you get more information.

 In the next couple of posts , I will cover documents and tests during discovery.

Nashville Jail Calls to Attorneys Recorded


Big brother is alive and well at the Davidson County Sheriff's office and the U.S.Attorney's office. Nashville criminal defense lawyer Patrick Frogge discovered some of his phone calls to clients were recorded and turned over to the U.S. attorney's office in a sex crimes case. The disclosure prompted a hearing in Federal Court on whether the recorded phone calls should be turned over.Some criminal defense attorneys didn't want to give them back for tactical reasons.Judge Haynes has ordered that no one shall listen to the tapes pending his ruling on the issue. U.S.Attorney Jerry Martin maintains his office does not listen to attorney-client telephone calls. Yeah ,right.

I have posted before on the use of jail house recordings by Davidson County Assistant District Attorneys. However , this case strikes at  the heart of the attorney-client privilege.Again my advice for those charged of a crime and in jail is similar as my father's when I first started at the Nashville courthouse.'Don''t say anything on a jailhouse phone that you wouldn't mind reading in The Tennessean." Hey , I was just a law clerk and he still warned me to keep my mouth shut which sometimes I forget his sage advice.

Here's my last question ? Jailhouse phone calls are recorded for security reasons for the jail or prison.Once they are ruled out for that purpose.Why does the sheriff give out those recordings ?

The Right To A Speedy Trial In Tennessee


Article I Section 9 of the Tennessee Constitution guarantees a person accused of a criminal charge the right to a speedy trial.I recently filed a motion to dismiss in a cold case first degree murder case based upon a denial of his right to a speedy trial.There are four  factors that the criminal courts in Tennessee review in evaluating a speedy trial claim.

  1. the length of the delay;
  2. the reason for the delay;
  3. whether the defendant asserted a claim to the right of a trial;
  4. whether the defendant was prejudiced by the delay.

There is no magic amount of time in the length of delay analysis. A delay of one year triggers a more through review by the trial court.

Reason for the delay usually falls into one of these categories;

  • delay to obtain a tactical advantage ;
  • bureaucratic indifference or neglect ;
  • delay necessary to the fair and effective prosecution of the case ;
  • delay caused or acquiesced by the defense .

The most critical factor of the four is what prejudice did the defendant suffer.Loss of memory and witnesses are just two elements to present to the court.  Impairment to the defense is sometimes hard to prove.

The denial of a right to a speedy trial is just one right that the U.S. or Tennessee Constitution still affords the citizen accused.


Maryland Judge Takes the Breath Alcohol Test Daily

Tennesseans who are convicted of drunk driving (DUI) or implied consent must use the ignition interlock device before starting their car.How would you like to have to blow into a breath alcohol machine before you start your job.The American Bar Association reports that a Maryland judge who was recently convicted of DUI blows into a breathalyzer before court and after he returns from lunch.The test is overseen by law enforcement. It's a sad commentary that your judge takes a breath before ruling on your case..Should you ask the judge what did you blow before the ruling.Only in America.

A Fair Trial and an Independent Judges

Two stories from the news bears commenting on today.One of the guiding principles of our court system is a fair trial , an unbiased judge , and a right to appeal. Those principles were addressed in two separate reports today.

First , a  Nashville Circuit  Court Judge has ruled in favor of a defendant in a medical malpractice case. The problem is that the judge sits on the board of the defendant. One of the major ethical rules is to avoid any appearance of impropriety.For example , a person on trial for a DUI in Nashville would not want the judge to be a member of Mothers Against Drunk Driving (MADD).

Secondly , three Iowa Supreme Court Judges  were removed by voters after they ruled on the constitutionally of same sex marriages.We need an independent judiciary to decide tough cases. The founding fathers recognized that when the U.S. Supreme Court Justices and federal judges were given a lifetime appointment. The question raised in this story is will there be a chilling effect on judges to make the right call when public sentiment is otherwise. For example , a tough stance on crime equals going to jail rather than a shot at probation.

It will be interesting to watch the fall out from the Iowa elections as it deals with issues on the independence of the court.

Theft and Aggravated Burglary Case Dismissed

The Tennessee Court of Criminal Appeals dismissed a theft case where the amount stolen was over $10,000. Mr.Sisk was originally convicted of aggravated burglary and theft of property and based upon his prior record received 27 years in prison.The evidence at trial consisted only of a cigarette butt that was inside the house. One problem for the defense was the cigarette butt had Mr.Sisk's DNA evidence. No other evidence of a burglary or theft were present. No stolen goods were on his person No fingerprints or eyewitness identification was presented.

The Court of Criminal Appeals found the evidence was insufficient and dismissed the case.The Court found the mere presence of of a single cigarette partially smoked by the defendant is neither sufficient to weave inescapable web of guilt around Mr.Sisk to exclude every other reasonable theory.

The point here is that sufficiency of the evidence argument  seldom work at the appellate level. Secondly , DNA won't get a conviction every time.

Case Reset in Nashville. Reason Lack of Jurors

A  trial in the Criminal Courts of Nashville Davidson County had an interesting outcome Monday. Four individuals were on trial for aggravated kidnapping as well as some other charges. During jury selection , it became apparent to defense counsel that there might not be enough jurors left to finish  the jury selection process . .The defense attorneys excused an entire round of 12 jurors. The court was left with no alternative but to reset the case due to the fact there was not enough jurors to finish the process.


You might ask yourself why would the lawyers bring the case to a halt. First , the move appears to be tactical. It was my understanding that there were no plea bargain offers extended. So , why not delay the trial. Delay is the oldest defense . Sometimes things happen with a case over time. Both sides of the case are given 8 peremptory challenges that can be used to strike jurors for any reason.The purpose of the challenges is to let each side pick a jury that will be fair and unbiased.If there aren't enough jurors , the case stops and your client can't be convicted.

What happens next in this case ? Well does the right to a speedy trial now at issue? Can the bond be revisited ? Has double jeopardy attached ? As to the double jeopardy argument probably not since the jurors were not sworn in yet.

The case was reset for discussion.  Only time will tell if it was the right call.

Immigration Issues Continue to Impact Criminal Lawyers

Criminal defense lawyers across the country continue to struggle with the ramification of the Padillia v Kentucky. I ran ac cross  the federal public defender's  web site and found this great form. it is a form to help criminal defense attorneys to determine a clients immigration status. Since Padillia made us immigration attorneys , it is imperative to get the facts.

Federal Court Rules on Cellphone Tracking

The United States Court of Appeals for the Third Circuit ruled on whether cellphone  tracking required the level of proof needed for wiretaps. The Court held that judges can require the government to meet the standards of wiretaps when requesting cellphone data to track alleged suspects in drug activity.The lower court demanded that law enforcement seek a search warrant for the cellphone records and the Justice Department was fighting the search warrant requirement. The attack on the Fourth Amendment continues to be waged by the government.

How to Use the Erased Nashville DUI Tapes

The fall out from the erased DUI video tapes by the Nashville, Tennessee police department continue.  Attorney David Brandon was the first attorney to discover the erased tapes.  I congratulate him for discovering what had happened.  However, I think everyone needs to be aware that the erased DUI tapes are not a get out of jail free card.  It is merely one key piece of evidence that is not available.  In court this week, I saw how not to use the loss of evidence.

Here is the key. Destruction of evidence may not require an automatic dismissal unless a criminal defendant can show bad faith on the part of police.  Failure to preserve potentially useful evidence does not constitute a denial of due process of law.  See Arizona v. Youngblood.

A number of states have not followed Youngblood because of the unfairness or requiring the accused to prove bad faith or that the evidence would in fact be favorable.  Tennessee rejects the Youngblood "bad faith" analysis.  Instead Tennessee adopted a "fair trial" analysis. See State v. Ferguson jury instruction.

So, my advice is to use the loss of the video tape to drive favorable plea discussions.  When the facts are great anyway, then ask the court for the Ferguson jury instruction at trial.

Factors to Reduce a Bail Bond in Tennessee

Last week  I spoke at a webcast for the Tennessee Bar Association on bail bond issues in Tennessee criminal cases.There  were two main topics that were addressed. First , the new bail bond laws on DUI cases in which the defendant is charged with a second offense or greater. Secondly , factors the court must consider when setting or reducing an excessive bail bond. Tennessee Code Annotated 40-11-118 sets forth the factors . I created a short video on reducing an excessive bail bond.

Identification Issues in Criminal Trials

Identifying who committed the crime is one element of proof in most criminal cases. There are several different methods of identification. First , the person knows the accused. Second , the police may use a lineup or show up to identify a defendant, Third , the defendant may be identified in open court by the alleged victim. Recent statistics from the Innocence Project illustrate this problem.

Eyewitness Misidentification

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.

While eyewitness testimony can be persuasive evidence before a judge or jury, 30 years of strong social science research has proven that eyewitness identification is often unreliable. Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.


How do Tennessee court's instruct on identification problems at trial ? The following is from the Tennessee Pattern Jury Instructions on identification;

One of the issues in this case is the identification of the defendant as the person who committed the crime. The state has the burden of proving identity beyond a reasonable doubt. Identification testimony is an expression of belief or impression by the witness, and its value may depend upon your consideration of several factors. Some of the factors which you may consider are:
(1) The witness' capacity and opportunity to observe the offender. This includes, among other things, the length of time available for observation, the distance from which the witness observed, the lighting, and whether the person who committed the crime was a prior acquaintance of the witness;
(2) The degree of certainty expressed by the witness regarding the identification and the circumstances under which it was made, including whether it is the product of the witness' own recollection;
(3) The occasions, if any, on which the witness failed to make an identification of the defendant, or made an identification that was inconsistent with the identification at trial; and
(4) The occasions, if any, on which the witness made an identification that was consistent with the identification at trial, and the circumstances surrounding such identifications.
So , apply the facts to the jury instructions.


Does Nashville Really Need A Crime Lab

Brian Haas of The Tennessean wrote a story about the proposed  $15 million dollar crime lab project may have to be scaled back. The real question he should answer is why does The Nashville Metropolitan Police Department need a crime lab.  First, the cost is $15 million when the Tennessee Bureau Of Investigation has a forensic lab right here in Davidson County.  Second, I would suggest reading the National Academy Of Sciences Report  " Strengthening Forensic Sciences, A Path Forward". The report is a detailed study into many complex problems with forensic science labs.

A major problem noted in the National Academy of Sciences report is that crime labs are often part of the law enforcement agencies, as opposed to independent agencies. The implication is that the possibility exists for bias, no matter how unintentional, toward the prosecution.  In Nashville, the crime lab was strongly supported by former Chief of Police Serpas who is now being audited for alleged false crime statistics.  Nashville has already had some problems when they created a ballistics department.  For good science Nashville needs an independent forensic crime lab, not merely a rubber stamp. Plus, the city saves $15 million.

Who shall guard the guardians comes to mind.


Telephone Calls from Nashville, TN Jails

Warning: all telephone calls made from the Nashville Davidson County Jail are recorded.  This is a friendly reminder that all calls in most jail and prisons are recorded and will be used against you.  The District Attorney's Office in Nashville,TN is well schooled in the use of jail house recordings.  In a recent drug case I handled there were thousands of jailhouse recordings between some of the defendants and their family members.  In fact, a Florida sheriff has announced that even telephone calls made from jail to their attorneys will be recorded and given to the prosecutors office.

So, my criminal law tip of today is don't say anything to the police, exercise your right to remain silent, and don't talk on the phone to your family about your case unless you want the whole world to know the details of your case.

Does a Defendant on Trial in a Tennessee Criminal Court Have a Right to Present a Defense ?

I ran across " The Right to Present a Defense" by Mark Mahoney. You can download the article on the link. It's a great resource for criminal defense lawyers in Tennessee. Thanks to the law criminal defense of  for the tip.

 I thought the book cover of " To Kill a Mockingbird" was a great image in the right to present a defense post.

False Identification and The Line Up

One of the most basic police techniques is the photo line up.However , the photo line up can be unfair and biased. New York has established a set of guidelines for the use of the photo line up.You can read the guidelineshere..Thanks to The Crime Report for the information. New York has implemented these guidelines in order to avoid false identification in criminal cases.

How To Pick a Jury by Clarence Darrow

I just started reading Clarence Darrow Attorney for the Damned.  I ran across this article he wrote on selecting a jury.  I thought his insights were worth repeating.

Clarence Darrow, "How to Pick A Jury" (1936)

Whether a jury is a good one or a bad one depends on the point of view. I have always been an attorney for the defense. I can think of nothing, not even war, that has brought so much misery to the human race as prisons. And all of it so futile!

The audience that storms the box-office of the theater to gain entrance to a sensational show is small and sleepy compared with the throng that crashes the courthouse door when something concerning real life and death is to be laid bare to the public.

Everyone knows that the best portrayals of life are tame and sickly when matched with the realities. For this reason, the sophisticated Romans were wont to gather at the Colosseum to feast their eyes on fountains of real blood and await breathlessly the final thrust. The courtroom is a modern arena in which the greatest thrills follow closely on each other. If the combat concerns human life, it presents an atmosphere and setting not unlike those cruel and bloody scenes of ancient Rome. The judge wears the same flowing robe with all the dignity and superiority he can command. This sets him apart from his fellow-men, and is designed to awe and intimidate and to impress the audience with seeming wisdom oftener than with kindliness and compassion.

One cannot help wondering what happens to the pomp and pretense of the wearer while the cloak is in the wash, or while changing into a maturer, more monarchial mantle, as his bench becomes a throne, or when he strolls along the street in file with the "plain clothes" people.

When court opens, the bailiff intones some voodoo singsong words in an ominous voice that carries fear and respect at the opening of the rite. The courtroom is full of staring men and women shut within closed doors, guarded by officials wearing uniforms to confound the simple inside the sacred precinct. This dispels all hope of mercy to the unlettered, the poor and helpless, who scarcely dare express themselves above a whisper in any such forbidding place.

The stage, the arena, the court are alike in that each has its audience thirsting to drink deeply of the passing show. Those playing the parts vie for success and use whatever skill and talent they possess. An actor may fumble his lines, but a lawyer needs to be letter-perfect; at least, he has to use his wits, and he may forget himself, and often does, but never for a moment can he lose sight of his client.

Small wonder that ambitious, imaginative youths crowd the profession of law. Here, they feel, they themselves will find the opportunity to play a real part in the comedies as well as the tragedies of life. Everyone, no matter how small his chance may be, tries to hold the center of some stage where the multitudes will scan his every move. To most lads it seems as though the courts were organized to furnish them a chance to bask in the public eye. In this field the adventure of life will never pall, but prove interesting, exciting and changeful to the end. Not only will he have the destinies of men to protect and preserve, but his own standing and success to create.

If it is a real case, criminal or civil, it usually is tried by a jury with the assistance and direction of the judge. In that event, every moment counts, and neither the lawyers nor the audience, or even the court, goes to sleep. If it is a criminal case, or even a civil one, it is not the law alone or the facts that determine the results. Always the element of luck and chance looms large. A jury of twelve men is watching not only the evidence but the attitude of each lawyer, and the parties involved, in all their moves. Every step is fraught with doubt, if not mystery.

Selecting a jury is of the utmost importance. So far as possible, the lawyer should know both sides of the case. If the client is a landlord, a banker, or a manufacturer, or one of that type, then jurors sympathetic to that class will be wanted in the box; a man who looks neat and -trim and smug. He will be sure to guard your interests as he would his own. His entire environment has taught him that all real values are measured in cash, and he knows no other worth. Every knowing lawyer seeks for a jury of the same sort of men as his client; men who will be able to imagine themselves in the same situation and realize what verdict the client wants.

Lawyers are just as carefully concerned about the likes and dislikes, the opinions and fads of judges as of jurors. All property rights are much safer in the hands of courts than of jurors. Every lawyer who represents the poor avoids a trial by the court.

Choosing jurors is always a delicate task. The more a lawyer knows of life, human nature, psychology, and the reactions of the human emotions, the better he is equipped for the subtle selection of his so-called "twelve men, good and true." In this undertaking, everything pertaining to the prospective juror needs to be questioned and weighed: his nationality, his business, religion, politics, social standing, family ties, friends, habits of life and thought; the books and newspapers he likes and reads, and many more matters that combine to make a man; all of these qualities and experiences have left their effect on ideas, beliefs and fancies that inhabit his mind. Understanding of all this cannot be obtained too bluntly. It usually requires finesse, subtlety and guesswork. Involved in it all is the juror's method of speech, the kind of clothes he wears, the style of haircut, and, above all, his business associates, residence and origin.

To the ordinary observer, a man is just a man. To the student of life and human beings, every pose and movement is a part of the personality and the man. There is no sure rule by which one can gauge any person. A man may seem to be of a certain mold, but a wife, a friend, or an enemy, entering into his life, may change his views, desires and attitudes, so that he will hardly recognize himself as the man he once seemed to be.

It is obvious that if a litigant discovered one of his dearest friends in the jury panel he could make a close guess as to how certain facts, surrounding circumstances, and suppositions would affect his mind and action; but as he has no such acquaintance with the stranger before him, he must weigh the prospective juror's words and manner of speech and, in fact, hastily and cautiously "size him up" as best he can. The litigants and their lawyers are supposed to want justice, but in reality there is no such thing as justice, either in or out of court. In fact, the word cannot be defined. So, for lack of proof, let us assume that the word "justice" has a meaning, and that the common idea of the definition is correct, without even seeking to find out what is the common meaning. Then how do we reach justice through the courts? The lawyer's idea of justice is a verdict for his client, and really this is the sole end for which he aims.

In spite of the power that the courts exercise over the verdict of the jury, still the finding of the twelve men is very important, sometimes conclusive. It goes without saying that lawyers always do their utmost to get men on the jury who are apt to decide in favor of their clients. It is not the experience of jurors, neither is it their brain power that is the potent influence in their decisions. A skillful lawyer does not tire himself hunting for learning or intelligence in the box; if he knows much about man and his malting, he knows that all beings act from emotions and instincts, and that reason is not a motive factor. If deliberation counts for anything, it is to retard decision. The nature of the man himself is the element that determines the juror's bias for or against his fellow-man. Assuming that a juror is not a half-wit, his intellect can always furnish fairly good reasons for following his instincts and emotions. Many irrelevant issues in choosing jurors are not so silly as they seem. Matters that apparently have nothing to do of the personality and the man. There is no sure rule by which one can gauge any person. A man may seem to be of a certain mold, but a wife, a friend, or an enemy, entering into his life, may change his most vital views, desires and attitudes, so that he will hardly recognize himself as the man he once seemed to be.

It is obvious that if a litigant discovered one of his dearest friends in the jury panel he could make a close guess as to how certain facts, surrounding circumstances, and suppositions would affect his mind and action; but as he has no such acquaintance with the stranger before him, he must weigh the prospective juror's words and manner of speech and, in fact, hastily and cautiously "size him up" as best he can. The litigants and their lawyers are supposed to want justice, but in reality there is no such thing as justice, either in or out of court. In fact, the word cannot be defined. So, for lack of proof, let us assume that the word "justice" has a meaning, and that the common idea of the definition is correct, without even seeking to find out what is the common meaning. Then how do we reach justice through the courts? The lawyer's idea of justice is a verdict for his client, and really this is the sole end for which he aims.

In spite of the power that the courts exercise over the verdict of the jury, still the finding of the twelve men is very important, sometimes conclusive. It goes without saying that lawyers always do their utmost to get men on the jury who are apt to decide in favor of their clients. It is not the experience of jurors, neither is it their brain power that is the potent influence in their decisions. A skillful lawyer does not tire himself hunting for learning or intelligence in the box; if he knows much about man and his making, he knows that all beings act from emotions and instincts, and that reason is not a motive factor. If deliberation counts for anything, it is to retard decision. The nature of the man himself is the element that determines the juror's bias for or against his fellow-man. Assuming that a juror is not a half-wit, his intellect can always furnish fairly good reasons for following his instincts and emotions. Many irrelevant issues in choosing jurors are not so silly as they seem. Matters that apparently have nothing to do with the discussion of a case often are of the greatest significance.

In the last analysis, most jury trials are contests between the rich and poor. If the case concerns money, it is apt to be a case of damages for injuries of some sort claimed to have been inflicted by someone. These cases are usually defended by insurance companies, railroads, or factories. If a criminal case, it is practically always the poor who are on trial. The most important point to learn is whether the prospective juror is humane. This must be discovered in more or less devious ways. As soon as "the court" sees what you want, he almost always blocks the game. Next to this, in having more or less bearing on the question, is the nationality, politics, and religion of the person examined for the jury. If you do not discover this, all your plans may go awry. Whether you are handling a damage suit, or your client is charged with the violation of law, his attorney will try to get the same sort of juror.

Let us assume that we represent one of "the underdogs" because of injuries received, or because of an indictment brought by what the prosecutors name themselves, "the state." Then what sort of men will we, seek? An Irishman is called into the box for examination. There is no reason for asking about his religion; he is Irish; that is enough. We may not agree with his religion, but it matters not, his feelings go deeper than any religion. You should be aware that he is emotional, kindly and sympathetic. If he is chosen as a juror, his imagination will place him in the dock; really, he is trying himself. You would be guilty of malpractice if you got rid of him, except for the strongest reasons.

An Englishman is not so good as an Irishman, but still, he has come through a long tradition of individual rights, and is not afraid to stand alone; in fact, he is never sure that he is right unless the great majority is against him. The German is not so keen about individual rights except where they concern his own way of life; liberty is not a theory, it is a way of living. Still, he wants to do what is right, and he is not afraid. He has not been among us long, his ways are fixed by his race, his habits are still in the making. We need inquire no further. If he is a Catholic, then he loves music and art; he must be emotional, and will want to help you; give him a chance.

If a Presbyterian enters the jury box and carefully rolls up his umbrella, and calmly and critically sits down, let him go. He is cold as the grave; he knows right from wrong, although he seldom finds anything right. He believes in John Calvin and eternal punishment. Get rid of him with the fewest possible words before he contaminates the others; unless you and your clients are Presbyterians you probably are a bad lot, and even though you may be a Presbyterian, your client most likely is guilty.

If possible, the Baptists are more hopeless than the Presbyterians. They, too, are apt to think that the real home of all outsiders is Sheol, and you do not want them on the jury, and the sooner they leave the better. The Methodists are worth considering; they are nearer the soil. Their religious emotions can be transmuted into love and charity. They are not half bad; even though they will not take a drink, they really do not need it so much as some of their competitors for the seat next to the throne. If chance sets you down between a Methodist and a Baptist, you will move toward the Methodist to keep warm.

Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty and go down the docket. He learns about sinning and punishing from the preacher, and dares not doubt. A person who disobeys must be sent to hell; he has God's word for that.

As to Unitarians, Universalists, Congregationalists, Jews and other agnostics, don't ask them too many questions; keep them anyhow, especially Jews and agnostics. It is best to inspect a Unitarian, or a Universalist, or a Congregationalist with some care, for they may be prohibitionists; but never the Jews and the real agnostics! And do not, please, accept a prohibitionist; he is too solemn and holy and dyspeptic. He knows your client would not have been indicted unless he were a drinking man, and anyone who drinks is guilty of something, probably much worse than he is charged with, although it is not set out in the indictment. Neither would he have employed you as his lawyer had he not been guilty.

I have never experimented with Christian Scientists; they are much too serious for me. Somehow, solemn people seem to think that pleasure is wicked. Only the gloomy and dyspeptic can be trusted to convict. Shakespeare knew: "Yon Cassius has a lean and hungry look; he thinks too much; such men are dangerous." You may defy all the rest of the rules if you can get a man who laughs. Few things in this world are of enough importance to warrant considering them seriously. So, by all means, choose a man who laughs. A juror who laughs hates to find anyone guilty. Never take a wealthy man on a jury. He will convict, unless the defendant is accused of violating the anti-trust law, selling worthless stocks or bonds, or something of that kind. Next to the Board of Trade, for him, the penitentiary is the most important of all public buildings. These imposing structures stand for capitalism. Civilization could not possibly exist without them. Don't take a man because he is a "good" man; this means nothing. You should find out what he is good for. Neither should a man be accepted because he is a bad sort. There are too many ways of being good or bad. If you are defending, you want imaginative individuals. You are not interested in the morals of the juror. If a man is instinctively kind and sympathetic, take him.

Then, too, there are the women. These are now in the jury box. A new broom sweeps clean. It leaves no speck on the floor or under the bed, or in the darkest comers of life. To these new jurors, the welfare of the state depends on the verdict. It will be so for many years to come. The chances are that it would not have made the slightest difference to the state if all cases had been decided the other way. It might, however, make a vast difference to the unfortunates facing cruel, narrow-minded jurors who pass judgment on their fellow-men. To the defendants it might have meant the fate of life rather than death.

But what is one life more or less in the general spawning? It may float away on the tide, or drop to the depths of oblivion, broken, crushed and dead. The great sea is full of embryo lives ready to take the places of those who have gone before. One more unfortunate lives and dies as the endless stream flows on, and little it matters to the wise judges who coldly pronounce long strings of words in droning cadence; the victims are removed, they come and go, and the judges keep on chanting senseless phrases laden with doom upon the bowed heads of those before them. The judge is as unconcerned about the actual meaning of it all as the soughing wind rustling the leaves of a tree just outside the courthouse door.

Women still take their new privilege seriously. They are all puffed up with the importance of the part they feel they play, and are sure they represent a great step forward in the world. They believe that the sex is co-operating in a great cause. Like the rest of us, they do not know which way is forward and which is backward, or whether either one is any way at all. Luckily, as I feel, my services were almost over when women invaded the jury box.

A few years ago I became interested in a man charged with selling some brand of intoxicant in a denatured land that needed cheering. I do not know whether he sold it or not. I forgot to ask him. I viewed the case with mixed feelings of pity and contempt, for as Omar philosophized, I wonder often what the vintners buy one-half so precious as the stuff they sell." When I arrived on the scene, the courtroom looked ominous with women jurors. I managed to get rid of all but two, while the dismissed women lingered around in the big room waiting for the victory, wearing solemn faces and white ribbons. The jury disagreed. In the second trial there were four women who would not budge from their seats or their verdict. Once more I went back to the case with distrust and apprehension. The number of women in the jury box had grown to six. All of them were unprejudiced. They said so. But everyone connected with the case was growing tired and skeptical, so we concluded to call it a draw. This was my last experience with women jurors. I formed a fixed opinion that they were absolutely dependable, but I did not want them.

Whether a jury is a good one or a bad one depends on the point of view. I have always been an attorney for the defense. I can think of nothing, not even war, that has brought so much misery to the human race as prisons. And all of it so futile!

I once spent a winter on the shores of the Mediterranean Sea. In front of my windows, four fishermen were often wearily trudging back and forth, and slowly dragging a long net across the sand. When it was safely landed, a few small flopping fish disclosed the results of their labors. These were scattered dying on the beach, while the really worth-while fishes were left in the sea. It somehow reminded me of our courts and juries, and other aims and efforts of optimistic men, and their idle undertakings and disheartening results.

Judges and jurors are like the rest of humans. Now and then some outstanding figures will roll up their sleeves, as it were, and vigorously set to work to reform the courts and get an efficient administration of justice. This will be ably seconded by the newspapers, lashing courts and jurors, past, present and prospective, into a spasm of virtue that brings down the innocent and guilty together, assuming always that there are innocent and guilty. Then, for a time, every defendant is convicted; and soon the campaign reaches the courts; after ruining a few lives and reputations, the frenzy is over, and life goes on smoothly and tranquilly as before.

When I was a boy in the country, one of the standard occupations was whittling. It became as mechanical as breathing. Since then I have decided that this is as good a way to live as any other. Life depends on the automatic taking in and letting out of breath, but in no way is it lengthened or made happier by deep thinking or wise acting. The one big word that stands over courts and other human activities is FUTILITY.

The courts may be unavailing, lawyers stupid, and both as dry as dust, but the combination makes for something interesting and exciting, and it opens avenues that seem to lead somewhere. Liberty, lives, fortunes often are at stake, and appeals for assistance and mercy rend the air for those who care to hear. In an effort to help, often a casual remark may determine a seemingly vital situation, when perhaps the remark, of all the palaver, was the least important one breathed forth. In all questions men are frequently influenced by some statement which, spoken at the eventful time, determines fate. The most unforeseen, accidental meetings sometimes result in seemingly new and strangely fateful family lines. In fact, all that occurs in life is an endless sequence of events resulting from the wildest chance.

Amongst the twelve in a jury box are all degrees of alertness, all sorts of ideas, and a variety of emotions; and the lawyers, too, are important factors in the outcome. They are closely observed by the jurors. They are liked or disliked; mayhap because of what they say, or how they speak, or pronounce their words, or part their hair. It may be that a lawyer is disliked because he talks too little or too much, more often the latter. But a lawyer of subtlety should know when to stop, and when to go on, and how far to go. As a rule, he must not seem to be above the juror, nor below him. He must not too obviously strive for effect. He often meets baffling situations not easily explained. Sometimes it is better for him to talk of something else. Explanations must not be too fantastic or ridiculous. It does no harm to admit the difficulty of the situation, to acknowledge that this circumstance or that seems against him. Many facts point to guilt, but in another light these facts may appear harmless.

Lawyers are apt to interpret deeds and motives as they wish them to appear. As a matter of fact, most actions are subject to various inferences, sometimes quite improbable, but nonetheless true. Identifications show common examples of mistakes. Many men are in prison and some are sent to death through mistaken identifications. One needs but recall the countless errors he himself has made. How many have met some person whom they believed to be an old-time friend, and have found themselves greeting a total stranger? This is a common mistake made in restaurants and other public places. Many identifications in court are made from having seen a person but once, and under conditions not critical. Many are made from descriptions and photographs, and urged on by detectives, lawyers, and others vitally interested in the results. From all of this it is easy to see that many are convicted who are guiltless of crime. In situations of strong agitation, acquittals are rare, and sentences made long and barbarous and inhuman.

The judge is, of course, an important part of the machinery and administration of the court. Like carpenters and lawyers, brick-layers and saloon-keepers, they are not all alike. No two of them have the same fitness for their positions. No two have the same education; no two have the same natural understanding of themselves and their fellow-man, or are gifted with the same discernment and balance.

Not that judges are lacking in knowledge of law. The ordinary rules for the administration of law are rather simple and not difficult to follow. But judges should be students of life, even more than of law. Biology and psychology, which form the basis of understanding human conduct, should be taken into account. Without a fair knowledge of the mechanism of man, and the motives and urges that govern his life, it is idle to venture to fathom a situation; but with some knowledge, officers and the public can be most useful in preserving and protecting those who most need such help. The life of almost any unfortunate, if rightly understood, can be readjusted to some plan of order and system, instead of left to drift on to ruin, the victim of ignorance, hatred and chance.

If the physician so completely ignored natural causes as the lawyers and judges, the treatment of disease would be relegated to witchcraft and magic, and the dungeon and rack would once more hold high carnival in driving devils out of the sick and afflicted. Many of the incurable victims of crime are like those who once were incurable victims of disease; they are the product of vicious and incompetent soothsayers who control their destinies.

Every human being, whether parent, teacher, physician, or prosecutor, should make the comfort and happiness of their dependents their first concern. Now and then some learned courts take a big view of life, but scarcely do they make an impression until some public brainstorm drives them back in their treatment of crime to the methods of sorcery and conjury.

No scientific attitude toward crime can be adopted until lawyers, like physicians and scientists, recognize that cause and effect determine the conduct of men.

When lawyers and courts, and laymen, accept the scientific theory which the physicians forced upon the world long years ago, then men will examine each so-called delinquency until they discover its cause, and then learn how to remove the cause. This requires sympathy, humanity, love of one's fellow-man, and a strong faith in the power of knowledge and experience to conquer the maladies of men. The forum of the lawyers may then grow smaller, the courthouse may lose its spell, but the world will profit a thousandfold by a kindlier and more understanding relation toward all humankind. ( Esquire Magazine, May, 1936.)


Continue Reading...

Kagan Nominated for The Supreme Court

   Elena Kagan has been selected as the next nominee to the United States Supreme Court.  SCOTUS Blog wrote a insightful piece of who Elena Kagan is in 9750 words.  Ms. Kagan appears to be a wonderful person, but has gained most of her experience working for elected officials or law schools.  The people of the United states deserve someone on the court that has lived a real life in the law.

Most of the appointees to the Supreme Court from various aadministrations have been from Harvard, Yale, or some other Ivy League law school.  I don't assume all folks believe someone that went to a law school other than Harvard is incapable of any legal thought.  I was excited when a Federal Judge from Montana was under consideration.  He must have fished too much.

Ms. Kagan's extensive legal career consists of the following:

1. Two years experience at The Washington D.C. firm of Williams and Connolly.

2. Ms.Kagan has argued a total of six cases before the U.S. Supreme Court

Not one jury trial was listed.  However, she is like most of her fellow judges.  They go to law school at the ivory tower law schools and pretend they can interpret the law for the citizens.

Here are some of my qualifications for being a judge:

  1. Visit a client in jail.
  2. Try a jury trial before 12 citizens.
  3. Have a law practice.
  4. Know how the court's decisions affect the general public.
  5. Listen.
  6. Compassion.
  7. Treat litigants and their counsel with dignity.
  8. Defend the Constitution of the United States.

This is my short list.  My wish for the President and all future Presidents is to think outside the box.


What is a Preliminary Hearing?

The Chinese strategist Sun Tzu has written on the five factors from which victory can be obtained. One principle is "One who, fully prepared, awaits the unprepared will be victorious."

One of the best tools to achieve that teaching of being prepared is the preliminary hearing.

Everyday I see criminal lawyers in various counties waving a preliminary hearing for no obvious reason.  I can see waiving a hearing for a bond reduction or some sort of concession, but to waive it costs a lawyer preparation.  One question to ask a lawyer when you are interviewing is "Will you do a preliminary hearing in my case if we cannot settle it in General Sessions Court?"  I frequently see the hearings waived in Williamson and Sumner County General Sessions Court.

Here are my reasons for never waiving the hearing unless you get some quid pro quo.

  1. It is you chance to obtain information about the case to prepare for trial.
  2. It is your first chance at early discovery other than just reading the arrest warrant.
  3. You can test your legal defenses.
  4. It is the earliest forum to test factual defenses.  It is the first opportunity to lock police officers into their testimony.
  5. A new rule of evidence now makes this testimony substantive evidence if they change their testimony.
  6. It is the forum where pretrial motions are developed such as a motion to suppress the search warrant, traffic stop, or statements.

Rule 5.1 of the Tennessee Rules of Criminal Procedure gives this check and balance on the police officers allegations.  As the old maxim states "Use it or lose it."


Jury Selection In Criminal Trials

Scott Greenfield writer of Simple Justice posted about an issue on jury selection which is the most crucial part of a trial. The Ohio Supreme Court reversed a homicide conviction because the trial judge refused to dismiss a deaf juror from the panel for cause in State v. Speer.The basic facts were that the trial judge refused to excuse a juror due to her hearing disability.The juror advised the court she would have problems understanding testimony if she could not look at the lips of the speaker.A right to a fair trial equals a jury that is able to see and hear all the evidence presented.

Under Tennessee Law , I don't this issue would have been a problem at trial.Tennessee Code Annotate 22-1-103  allows a juror to be excused if that juror has a condition that renders that person incapable of performing jury service.


How FaceBook and Other Social Media Impacts Your Case

Facebook , Twitter and other forms of social media are exploding. I am constantly amazed at what people put on their Facebook or MySpace. Police and District Attorneys are looking at you.My advice is if you are facing criminal charges in Tennessee is to take down all social media.Live without it until your case is over. The video illustrates this point when I ran a witness in a case and look what showed up on MySpace

.The witness had images of himself with a whole lot of marijuana. After  the court looks at these images, what do you think the credibility of this witness is going to be ? 

A Change of Venue In Murfreesboro Murder Case

Nashville ,Tn. television station WSMV is running gavel to gavel coverage of the trial of Ron Killings this week. Killings is on trial for the homicide of a young girl.It is alleged that Killings was driving his car at twice the legal speed when he struck and killed the young girl.  Killings was on duty as a law enforcement officer in Rutherford County.The District Attorney's theory was that it was a reckless homicide.A jury was brought in from Chattanooga,Tn to decide the case.Mr. Killings attorney moved for a change of venue due to pretrial publicity.

Rule 21 of The Tennessee Rules of Criminal Procedure provides for a change of venue under certain conditions.The court may change venue of a criminal case on the defendant's motion or on it's own initiative with the defendant's consent.The court should order a venue change when a fair trial is unlikely because of undue excitement against the defendant in the county where the offense was committed or for  other cause.


Continue Reading...

The Use of Facebook to Gather Evidence Takes Off

Nicole Young and Clay Carey of The Tennessean reported about the use of social media by Detective Dean Haney of the Metro Nashville Police Department to combat crime.The use of social media such as Facebook,Twitter , and My Space is growing at a tremendous rate. I even have a Facebook page.Using Facebook and other social media in criminal and personal injury cases have been used since it's inception, but now it's use is exploding.

Detective Haney searches the photos he retrieves from MySpace and Facebook to post on the wall at Nashville's North Precinct.It amazes me what people post on Facebook.Haney reports that he has seen AK-47 rifles , weapons, and stacks of cash.In under age consumption of alcohol cases , The Franklin Police Department and the Brentwood Police Department routinely search social media sites to corroborate the charges.Police in Chattanooga,Tn discovered an on line forum of people planning illegal drag races.

Continue Reading...

The U.S. Supreme Court Dodges The Confrontation Clause Issue

The Sentencing Law Blog reported on the U.S.Supreme Court's Order in Briscoe v. Virginia which I have discussed in previous posts. In Briscoe , The Court heard arguments in January of this year on the application of The Confrontation Clause as it relates to forensic evidence reports specifically in drug and DUI cases..It was anticipated that the Court may reverse itself from the opinion released in Melendez-Diaz v,. Massachusetts. A recap of the oral argument illustrated the problems and the issues within the Court. In a one paragraph Order , the Court vacated the decision in Briscoe v. Virginia without further comment.

My take is that the U.S. Supreme Court is a dysfunctional mess.

Bail Bond Crisis in the U.S.

Laura Sullivan of NPR  just finished a three part report on the bail bond crisis in America. As a criminal defense attorney , I could not agree more with her conclusions.Ms. Sullivan reports in her article that Nashville Davidson County's jail is one of America's most overstuffed jails . The average daily jail population is 3,528 and it is at 107 % of capacity.

How does the bail bond system work in Nashville,Tn ? Once a defendant is arrested , a night court commissioner sets a bail bond. It is based in part on the nature of the crime and the defendant's prior criminal record as well as several other factors. Once the bond is set, the accused can pay the cash amount , obtain a property bond , get pretrial release, or hire a professional bail bondsman.

The Davidson County Sheriff's Office has a pretrial release program.If you qualify , one can be released without paying any of the bond amount.However, there are some fees that apply.A professional bail bondsman charges 10 % of the total bond plus an administrative fee.For example , the night court commissioner sets a bond of $10,000. You must pay a fee of $1000.00 to be released from the  Davidson County Jail plus a fee for the service.

Continue Reading...

Update on Confrontation Clause Case

I would like to thank Justin McShane for his comment on the case before the U.S. Supreme Court today.I think he is dead on in his prediction. However , Richard Friedman is arguing on behalf of Mr. Briscoe . Mr Friedman is a law professor and writes a blog on the Confrontation Clause. Check his blog for updates on the case as well as the briefs.

U.S. Supreme Court May Reverse Melendez-Diaz

On Monday January 11,2010, The United States Supreme Court hears arguments in Briscoe v. Virginia. The Court takes up the issue of confrontation rights of a defendant less than seven months after the Court  further expanded the defendant's  rights under the Sixth Amendment's Confrontation Clause in Melendez-Diaz v. Massachusetts. Lyle Denniston of The SCOTUS Blog reported that prosecutors claim the Melendez-Diaz ruling has caused a severe disruption in the criminal justice system especially in prosecuting illegal drugs and drunk driving cases.It appears the Court is poised to reverse Melendez-Diaz.

Melendez-Diaz held that a defendant's right guaranteed by the Sixth Amendment's Confrontation Clause required the government to allow the defendant to face his accusers.The case further held that forensic reports from crime labs could not be used at trial unless the lab technician or forensic scientist who prepared the report was available for trial.

Continue Reading...

Boating Under the Influence at Nashville Area Lakes

Brother O'Mara Tennessee BoatingEarlier this year, in Nicole Young's The Tennessean article,  Alcohol abuse rises on Tennessee waters, she wrote about the rise in boating under the influence cases (BUI) in Tennessee. 

In 2008, there were over 152 arrests for boating under the influence. It's no surprise to me, considering the number of lakes we have around Nashville, such as Old Hickory Lake, and Percy Priest Lake.

However, there is a major difference in a boating case verses a DUI case.

The main difference is that a wildlife officer has a right to board your boat under Tennessee laws to inspect boats for registration and safety requirements. A wildlife officer does not have to have probable cause to stop your boat. They simply ask for the safety equipment and soon start a criminal investigation. There are no constitutional safeguards in place regarding illegal search and seizures. Why are there less constitutional safeguards on the lake?

One other distinction is that you can get pretrial or judicial diversion on a boating under the influence case. Also, all counties surrounding the lake have concurrent jurisdiction. So, the police can arrest you and you can be tried in Gallatin, Nashville, Lebanon, or any county that touches the lake.

Image: Brother O'Mara