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

Shanterrica Madden is on trial for the murder of MTSU basketball star Tina Stewart . Brandon Gee reported on a recent  hearing in The Tennessean . Circuit Court Judge Don Ash follows a novel procedure that allows jurors to ask questions during the trial. Defense attorney Joe Brandon filed a pre-trial motion hoping to persuade the court from using the procedure. I can understand his position . Mr. Brandon may assert a self-defense argument. So , he does not want the jurors asking questions of his client while she is on the stand.

Basically , the jurors would submit written questions anonymously to the trial court . The court would review the questions and exercise  it's discretion in deciding to submit these questions . Normally , the district attorney and the criminal defense lawyer  ask questions of a witness during a trial.The Tennessee Supreme Court adopted this rule in 2003 , but from my experience this procedure has been seldom used . I am not aware of any Nashville criminal court judge currently using this procedure . Years ago , I tried a case in Williamson County with Judge Harris who tried the process . In my opinion it did not go well because most of the questions tendered were in violation of the rules of evidence. It also slowed the trial down and created too many interruptions of the trial.

I am all in favor of jurors having all the information available to them to decide the case. However , the Tennessee Rules of Evidence gives trial lawyers the rules on questions that can be asked or not. In my experience the questions were not allowed based upon some rule of evidence. What if the juror asks a leading question or did they take a lie detector test .Clearly , the process in this high profile murder case may be bogged down due to juror questioning .It seems to me  the new rules make the courtroom like a reality TV show with the jurors taking a active role.

My opinion is to stay true to the traditional courtroom procedure . Our justice system has a lot of problems , but it's the best one in the world today. I think it is time to abolish this seldom used rule.

I would like to hear your opinion. Should jurors be allowed to ask questions to the witnesses ? Please post your comment .

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The jail house snitch is often used as a key witness in some criminal cases by the District Attorney's Office. The most memorable jail house snitch used in a Nashville , Tn. murder  case  was in the case against Perry March.  The Snitching Blog  reported on the case of Sivak v. Hardison where the 9th Circuit Court of Appeals reversed a death sentence . The court found the two snitches were unreliable , but more importantly that the state offered  testimony  knowing they offered perjured testimony. Here is a link  to the opinion.

Two things are important from this decision.First , a case based mainly on snitch testimony is suspect . The motivation to lie and commit perjury to get out of prison is overwhelming. Secondly , what happened to the prosecutors who offered the perjured testimony ? There was a case in Nashville years ago where the criminal defense attorney offered up known perjured testimony . A jail sentence and disbarment was his fate.  The better question is how to deal with the jail house snitch at trial.

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Can intoxication be a defense to a first degree murder case ?  It can be a defense to one element of the case . In most criminal cases , the State of Tennessee must prove the Mens Rea  or criminal intent of the defendant's mind. In a first degree murder case , the state must prove the murder was the result of a premeditated and intentional killing of another .

Tennessee Code Annotated 39-11-503 provides that intoxication is admissible to negate a culpable mental state . It is not an absolute defense , but it could lesson a first degree murder charge down to a lessor included offense . The intoxication defense does not apply if the mental state is reckless.

In investigating a case , it is important if the person was under the influence of something at the time the crime happened.

In a first degree murder case , I tried a couple of years ago in Gallatin , Tennessee . Our defense was twofold . We admitted the client killed the person since there were several eyewitnesses to the murder , but we presented evidence that he was under strong provocation and he was intoxicated to the degree he did not appreciate the the wrongfulness of his conduct.  The jury agreed with our theory of the case. In this case , not guilty of first degree murder but guilty of reckless homicide. the defense saved my client a life sentence.

Warning. Be careful using this defense. One must admit to being there or committing the murder for this defense to be effective. You must have one central theme to defending the case .

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Adam Liptak  who writes the Sidebar column for the New York Times reported on the case of Robert Rosario . Mr. Rosario was convicted of murder based upon the testimony of two witnesses who picked him out of a lineup. One problem existed . Mr Rosario claims to have been in Florida on the day the murder happened . Mr Rosario has appealed to the U.S. Supreme Court on claims of ineffective assistance of counsel . The Supreme Court is scheduled to decide next week if they are going to accept the case. The critical issue is what is expected of criminal defense lawyers in the performance of their representation.

Mr.Rosario's case hinged on eyewitnesses testimony verses the alibi defense . Mr Rosario had two alibi witnesses appear at trial . However the prosecution convinced the jury they were not credible .The jury convicted Mr. Rosario based on the identification evidence.

Since the Innocence Project has been in existence , it has been determined that eyewitness identification is the most common cause of wrongful convictions. In fact , the first 200 DNA exonerations involved 158 convictions by eyewitness identification .

Here is what one Federal Court thought about eyewitness identification ;

As a federal appeals court put it in 1992, “Eyewitness evidence, uncorroborated by a fingerprint, gun, confession or co-conspirator testimony, is a thin thread to shackle a man.” It is also, the court said, “precisely the sort of evidence that an alibi defense refutes best.”

It appears there were at least seven other witnesses that could confirm Mr.Rosario was in Florida , but the lawyer did not interview or call them to the stand . In eyewitness identification , there should  be some requirement of corroboration such as a co-defendant statement or some type of physical evidence.

In Tennessee , an accused is allowed to introduce expert testimony in the unreliability of eyewitness testimony at trial .

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In most murder cases a firearm is used . After someone is shot , blood is usually present at the crime scene . Can homicide detectives use blood found at the scene to make their case ? The blood left behind may provide some clues as to what happened . One method of bloodstain analysis is blood spatter .

Blood spatter is defined as a dispersion of blood spots of varying size , created when a source of fluid blood is subjected to an external force. Blood spots within the dispersion exhibit characteristics that indicate the location from which they originated . Blood spatter is commonly found at crime scenes where bloodshed has occurred .

Analysis of blood spatter may do the following :

1. Where did the spatter events occur ?
2. Link the accused's clothing to the location of  a blood spatter producing event .
3. Link the accused to the murder.
4. Allow for the determination of the mechanism by which the spatter was created .
5. Be used to corroborate or refute an accused's statement of how the blood was deposited on their clothing .
6. Link an item of evidence to a blood spatter-producing event .

 Blood stain analysis is one piece of the puzzle in a murder investigation . Here is a link  to a presentation of blood spatter evidence that may be helpful .

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No time for blog posts for awhile .  I was  in a first degree murder trial last week . I learned a few time honored lessons in the courtroom . Dress for success still applies in a criminal jury trial .

Here are a few tips :

• Get a haircut . My client refused to get a haircut on one of the most important weeks of his life . Jurors like nerds . Get a nerd haircut .
• Shave . No facial hair period .
• Wear a dark colored suit . Think Brooks Brothers type clothing . Be conservative . At the least  , wear tan pants , white dress shirt , and a striped tie.
• For women , no short skirts . Don't show too much skin . You know what I mean .
• Wear you pants at waist level . I know it's the style to wear your pants low . Heck even my son wears his pants low . Jurors might not care for your fashion sense .
• No jewelry .
• No tattoos showing . Cover them if possible .
• If you wear contacts , wear glasses for trial .

New York attorney Carol Schlitt wrote a article on what not to wear to court that is worth reading . Dress and demeanor are critical in the courtroom . Jurors judge you by what you wear and how you act . During those stupid bench conferences on whether some evidence should be admitted , the jurors are sizing you up . I know the judge will tell them about the presumption of innocence , but that doesn't stop them from judging you on your appearance .

Here is my suggestion . Choose your outfits . Take a picture of them or take them to your lawyer's office to see what they think . Think church or funeral attire .

.

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 Lawrence Buser of The Memphis Commercial Appeal recently added up the costs of the death penalty trial of Jessie Dotson.Jury selection took place in Nashville,Tn. and the jurors were taken to Memphis for the trial.Mr.Dotson was convicted in the first degree murder of six men , women , and children . The trial is believed to be the most expensive trial in Shelby County history totaling over $ 450,000.00 so far.Years of appeals and related proceedings lay ahead.So what is the cost of the death penalty ?

Shelby County Sheriffs Office's part of the tab was $167,310 which included security , overtime , and expenses of the sequestered jury. Over $250,000.00 was paid for defense counsel , a private investigator , a mitigation expert , and another expert witness.Also , the District Attorney , Judge , and court personnel were employees of the state and not included in the dollar amount.The cost will climb after appeals , post conviction hearings, and numerous trips to the federal courts and maybe even the U.S. Supreme Court.

Does the expense of a death penalty trial make economic sense ? One option is to offer a plea to murder with life without parole in lieu of the death penalty.Knowing you are going to die in prison has to be a powerful punishment.I understand from the family's perspective that a horrific crime deserves big punishment. How do we balance justice with cost effective punishment.Mr. Dotson's bill is close to a half a million and the other mass murderer on death row Paul Dennis Reid bill is at $ 420,000.00 and counting.

Some people might think that we just need to eliminate the lawyers and the appeals.The ultimate penalty deserves the ultimate defense as mandated by the U.S. Constitution.

"People will say there was an eyewitness, why have a trial, but what if the guy'd been found innocent?" said Criminal Court Judge James Beasley Jr. "Do we put a price tag on the freedoms we have in our country? Is there a price tag for the justice system? When do we say that's too much?"

I think Judge Beasley's commentary bears some discussion . However , it's still cheaper than the lawyers charged the City of Nashville  for the convention center.

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NPR featured a story on Betty Ann Waters  . Ms. Water's  brother was wrongfully convicted of a murder he didn't commit. DNA evidence proved he did not do it 18 years later. In an effort to exonerate her brother , Ms. Waters goes to law school , gets her degree and later frees her brother. I hope to get to see the movie soon. It's a great story of a sister fighting against all odds to prove her brother innocent. It is also another example of the rush to judgment to convict citizens with the slimmest of evidence.

The movie " Conviction" is based upon here story. Read the review here.

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A Gallatin , Tennessee man was released from the Sumner County jail based upon DNA evidence.Chris Cannon of Nashville's News Channel 5 reported that District Attorney Ray Whitley nolled the murder charge against. Joshua Singletary was accused of murdering Lydia Gutierrez.However ,it appears that Mr.Singletary remains a suspect.

This case is but another example that DNA evidence is becoming the gold standard in criminal cases.

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The verdict came in on Raynetta Dossett Leath's murder trial in Knoxville.Ms.Leath was found guilty of First Degree Murder.She will receive an automatic life sentence.

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A murder mystery is unfolding in a Knoxville Criminal Courtroom on the retrial of Ms. Raynella Dossett Leath. Ms. Leath's first murder trial ended with a hung jury when the jury could not reach a decision.Day Eight of the trial starts today.

David Leath was found dead of a gunshot wound in his bed. Ms. Leath's defense is that her husband committed suicide.However, a firearm's expert for the State of Tennessee testified at the first trial that the firearm was fired three times the day of Mr.Leath's death and it was the second shot that killed Mr. Leath.Knoxville criminal defense attorney James A.H.Bell offered proof that Mr. Leath was depressed and his health was poor.

The jury could not reach a verdict in her first murder trial in 2007.In closing Mr. Bell argued " If you believe Ms. Raynella murdered her husband you have to believe she is nothing but a serpent of Satan". This line did two things. It personalized his client by the use of her first name.Second, it used biblical imagery which works well in the South without violating the rules against quoting the bible in court.

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