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

Jerry Sandusky's lawyer waived his right to a preliminary hearing in his sex abuse case. As I was leaving for court today , Ann Curry asked Joe Amendola if he was competent to handle these sex abuse allegations. Ms. Curry asked a hard question that most criminal defense attorneys are asking. What is Mr. Amendola thinking in preparing his defense ? Maybe he is thinking that this is his 15 minutes of fame and he wants to appear with Bob Costas and on the Today show. From my perspective it appears every move that has been made is the wrong move.

First , Mr Amendola waived the preliminary hearing.. A preliminary hearing is a great tool to hear what the witnesses are going to say . It might be a criminal defense attorneys only opportunity to question them on the record . The purpose of a preliminary hearing is set out in this video. In the Curry interview , Amendola states he waived it because he did not want his client's bail bond revoked. I understand that tactical decision , but sometimes it is more important to discover the facts in the case . Granted , I am not familiar with Pennsylvania criminal laws , but under Tennessee criminal laws a motion must be file giving the defense written notice at least five days before a bond revocation hearing. In Nashville , Tennessee child sex crime cases the District Attorney's office seeks a direct presentment in order to avoid a preliminary hearing. Waiving the hearing did not make sense to me.

Second , I do not understand Mr. Amendola's decision to allow Mr. Sandusky to give repeated interviews to the press. Years ago in Nashville , Perry March was under investigation for murdering his wife and he gave repeated interviews with the press. Now , Mr. March is behind bars. It appears that Mr. Sandusky is digging himself a hole where he will not be able to climb out. The U.s. Constitution gives you a right to remain silent . I suggest they use it.

For those facing a Tennessee sex crimes case or defending one , here is my thoughts :

• Never let your client speak to anyone about the facts of the case. this means the police , the press or even your family. I would suggest they speak to no one about the case.
• Never waive a preliminary hearing unless you get something concrete in exchange for waiving such a critical part of the case.

I see lawyers everyday waive the preliminary hearing . I still don't understand it. Mr. Amendola waiver just drove the point home in a high profile sex crimes case.

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As I was reading some of the new laws that were passed last session by the Tennessee State Legislature , I became concerned that  Corrections Corporation of America may be housing sex offenders against Tennessee law. A new addition was added to the Tennessee Sex Offender Registry . Under Tennessee Code Annotated 40-39-211(h) , no person , corporation , or other entity shall knowingly permit three (3) or more sexual offenders ........ violent sexual offenders........ or a combination thereof ........ to establish a primary or secondary residence in any house , apartment , or other habitation .

I guess the test is whether jail is a residence . All kidding aside , this law could prohibit sex offenders from going to a halfway house , living in a treatment facility , or any type of place where they can live. There is no question that those convicted of sex crimes need some type of supervision. However , the sex offender laws are becoming more severe in their scope. Tennessee runs the risk of driving those on the sex offender registry underground where they will try to avoid some of these restrictions.

I can see a landlord at an apartment house asking on the rental application if you are on the sex offender registry. This law places too much of a burden on businesses . It allows few places where one can live after being released from prison . I guess the bottom line is that the criminal laws of Tennessee should not be used as a political football. More thought and common sense needs to be applied by the state legislators rather than just slapping a new restriction in place for the sole purpose than getting reelected. I would rather Tennessee take a tougher stand on those who fail to report child sexual abuse.

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The more I read and watch the Penn State Sex abuse case . The more it makes me sick of what happened. The cover up of Jerry Sandusky's illegal abuse of young boys was swept under the rug by the coaches, the Penn Sate administration , and possibly the folks that were supposed to investigate the crimes. Then , we heard Jerry Sandusky's interview with Bob Costas .It made me want to throw up after he talked about showering with young boys .

As a criminal defense attorney , I strongly believe in the presumption of innocence and the right to a fair and impartial trial . How could Sandusky's criminal lawyer allow him to comment  to Bob Costas . I guess he just wanted to get some press coverage . Allowing Sandusky to answer Costas questions was the nail on his coffin . It sealed the public's opinion that he was a sexual predator and needs to be punished . If I was a prosecutor , a motion to revoke his bond may be in order. Mr. Costas interview  appeared to be a confession by Sandusky.

After the interview , I predict Mr Sandusky gets a fair trial and then spends the rest of his life in prison and Penn State will write a big check to his victims for not doing a damn thing to stop it or tell the police.

Two lessons are to be learned from Mr. Sandusky's interviews for those accused of a sex crime. First , don't give a statement to police. Second , don't give a statement to the media.

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Sexual molestation charges against former Penn state football coach Jerry Sandusky has rocked Penn State University . From news reports , it appears a graduate assistant discovered former coach Sandusky molesting a young boy in a shower in 2002. Coach Paterno was notified and he passed the information along to the administration . Here is the problem , the administration did nothing with the information until it was recently revealed that a cover up might have taken place. Now these administrators have resigned and are now facing criminal charges in alleged perjury scheme.The fallout from these allegations will test the foundation of the Penn State football program and the reputation and legacy of Joe Paterno.

The question is how would this scandal play out under Tennessee law . Tennessee Code Annotated  37-1-605 sets forth a list of those that have a legal duty to disclose child sexual abuse ;

a) Any person including, but not limited to, any:

(1) Physician, osteopathic physician, medical examiner, chiropractor, nurse or hospital personnel engaged in the admission, examination, care or treatment of persons;

(2) Health or mental health professional other than one listed in subdivision (1);

(3) Practitioner who relies solely on spiritual means for healing;

(4) School teacher or other school official or personnel;

(5) Judge of any court of the state;

(6) Social worker, day care center worker, or other professional child care, foster care, residential or institutional worker;

(7) Law enforcement officer; or

(8) Neighbor, relative, friend or any other person who knows or has reasonable cause to suspect that a child has been sexually abused;

shall report such knowledge or suspicion to the department in the manner prescribed in subsection (b).

Under Tennessee law , Coach Paterno would have had a duty to report the act since he was a school official or personal. I am not aware of what Pennsylvania's 's laws are but the result may be different under Tennessee law as to any charges that could  have been filed against Coach Paterno.

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A Gallatin , Tennessee band teacher was charged with statutory rape by an authority figure .  From news reports , a female teacher had sexual relations over 20 times with a student . The case is set for hearing in the General Sessions Court of Sumner County , Tennessee in December. There are two points about the case worth discussing.

Under Tennessee criminal law , the punishment for statutory rape is increased if the defendant was in a position of authority over the alleged victim.Here is the definition of what is an authority figure in Tennessee;

     (3)  The defendant was, at the time of the offense, in a position of trust, or had supervisory or disciplinary power over the victim by virtue of the defendant's legal, professional, or occupational status and used the position of trust or power to accomplish the sexual penetration; or

     (4)  The defendant had, at the time of the offense, parental or custodial authority over the victim and used the authority to accomplish the sexual penetration.

Clearly , a teacher is in a position of authority over a student. However ,  when can a charge be brought under this criminal law ? Sometimes , there have been charges of statutory rape of an authority figure without any basis. There must be some special relationship for this charge to be brought. I would submit this charge can't be brought when one is merely a social guest in a person's home. A analysis must be made in defending these cases if this charge should be brought. Why would a defendant be overcharged by the government ? It brings more punishment and force a plea bargain agreement.

The second point is the use of a police technique  in this case. Gallatin police Sgt. Chris Shockley set a reverse telephone call between the defendant and the alleged victim. . A reverse telephone call is a police tactic to have a person call the suspect to gain an admission or a confession that something occurred. The telephone call was recorded and it will be admissible into evidence. Most police departments look for some type of corroboration of the crime to make the case stronger.

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Congressman Anthony Weiner is all over the news with his Twitter postings . Now , it appears he is under investigation for sexting with a 17 year old girl in Delaware . Is sexting with a minor illegal  under Tennessee criminal law ? Are there consequences in Tennessee for an adult to sext with a minor .

What is sexting ? Sexting is a term coined by the media which generally refers to the sending , receiving , or forwarding of sexually suggestive nude photos or nearly nude photos .

Is sexting illegal in Tennessee ? Not yet for consenting adults . The problem is when one sends nude images to a minor or receives nude images of a minor . According to one study , 8 out of 10 sexters are under 18 .

 Two potential criminal charges could be possible for the act of sexting with a minor . First , one could be charged with contributing with the delinquency of a minor. Secondly , one could be charged with sexual exploitation of minor which is a serious charge.

Warning , sexting may be dangerous to your health or your freedom.

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What is the punishment for aggravated sexual battery under Tennessee criminal law ?

 Aggravated sexual battery is a Class B felony in Tennessee . The full range of punishment is 8 to 30 years in jail . The true length of the prison sentence depends on the number of felony convictions that one has on their record.The standard Range I sentence for aggravated sexual battery is 8 to 12 years . A standard Range I offender has less than two convictions. You are not eligible for probation if convicted of aggravated sexual battery. You  must serve at least 85% of the sentence before you are eligible for parole .

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The image represents computer code. Today 's post deals with  forensic issues in child pornography cases or sexual exploitation of a minor under Tennessee state law. Once law enforcement seizes one's computer ,the police send it for a forensic review to search it's memory and files.

What can a forensic computer investigation recover ?

• hidden files ;
• damaged or corrupted files ;
• password protected files ; some encrypted files ;
• email and web correspondence
• evidence of web browsing ;
• Internet chat data ;
• Or anything else that is present on the computer or media .

Once your computer is seized and searched what should you do if charged with a sex crime ? Hire your own expert .

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In the recent edition of The Champion , Dr . Demosthenes Lorandos wrote a fascinating article summarizing the integration of science and law in the defense of Tonya Craft . Ms. Craft was charged in 22 counts of sexually abusing three different little girls . The cost of her defense was over $ 500,000.00. A jury found her not guilty of all 22 counts. Money well spent .

Dr. Lorandos identified six  scientific areas of Ms.Craft's defense that had to be addressed. One of the questions that must be answered in all child sex abuse cases is "How did the child know about certain areas of sexuality" ? It can be explained by normal child sexuality . This was the first field of science that had to be tackled head on. The defense concentrated on educating the jury of various studies that dealt with child sexuality.

Some of the findings are as followed ;

1. Research studies showed that 65 % of of preschool educators found that direct sexual behavior of body exploration and genital manipulation occurred often or very often .
2. Another study related that at least a third indicated genital fondling.
3. 37 % of the girls reported sexual activity with other children involving exposure to or manual or oral stimulation of the genitals .

All of the studies mentioned were peer reviewed. From these studies , it appears sexual touching is present in some children which explains their basis of knowledge for sexual activity .

The defense used sound science to explain one of the threshold issues in defending child sex cases .

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Here is a Tennessee sex crime frequently asked question.What is Aggravated Statutory Rape ?

Aggravated Statutory Rape is the unlawful sexual penetration of a victim by the defendant , or of the defendant by the victim when the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant is at least ten (10) years older than the victim.

Aggravated statutory rape is a Class D felony which carries a full range of punishment of 2-12 years in jail.If one is convicted of aggravated statutory rape , it requires you to be place on the Tennessee sex offender registry.A complete version of the Tennessee sex offender laws can be found here.

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A Utah man took some nude pictures of his baby.Some of the photos had him kissing the nude infant.A trip to Walgreen's brought the police back to his home.Mr. Diaz-Palomino was later cleared of the charges but now faces deportation.Child pornography allegations can't be ignored even if it was so innocent. If someone posts a nude photo of a baby on Facebook , look out you might be under investigation.

MSNBC.com quotes New York University law professor Amy Adler, who says the days of photographing your kids running naked through the lawn sprinkler may be over.

“What [parents] might think are normal pictures could be seen the wrong way,” she said. “As a legal matter parents should be extremely cautious. I hate that. I think it is a shame.”

Everyone agrees child pornography is a bad thing , but where do we draw the line in what is against the law and merely taking a picture of your baby playing in the tub.I think my mom took some pictures of me like that as a child. The bottom line be careful with these photos.

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It appears there will be new efforts to pass a sex offender registry for juveniles in the coming session of the Tennessee State Legislature. The reason for the new law is Washington money.Loss of Federal money is at the heart of the  juvenile sex offender registry. Last session , Tennessee's version of the juvenile sex offender law did not come up for a vote.Some juvenile judges spoke in opposition to the bill.However , Washington's money often forces state government to act.If Tennessee does not pass the juvenile sex offender statute, Tennessee would stand to lose 10% of the 11.5 million dollar grant from the federal government. The choice is clear do we brand a child forever as a sex offender who might get treatment or do Tennesseans want a million or two from Uncle Sam.Shouldn't Tennesseans pass the law they believe helps the most .My bet is we take the money.

Debra Maggart who is sponsoring the bill states it's not about the money.

"One of the excuses people kept using last year was that we still had time to fix this. Not anymore," said Maggart, who also said she doesn't think the loss of federal money should be the primary reason for passing the law. "What's really important is not the money. The most important reason is that it helps Tennessee be a safe place for children and not a haven for sex offenders."

My one fundamental thought is the Tennessee State Legislature should consider the proof element in all sex crimes in Tennessee.Right now anyone can allege a rape.Sex offenses are brought without any corroborating evidence in many Tennessee counties.It then becomes a credibility contest between the accuser and the accused. The state should require some sort of corroborative evidence to support a conviction.

Rehabilitation , lifetime punishment or adding another level of proof to prevent wrongful convictions are some of the options the state legislature should consider.

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Cyber crime continues to be a huge issue issue in criminal defense work. I ran across this link to the manual on computer searches , " Searching and Seizure of Computers and Obtaining Electronic Evidence." The manual can be found here.

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One of the most frightening things a citizen experiences is when the police come to your door.It is worse when the alleged charges is some type of sex crime from child abuse. aggravated sexual battery,child pornography,and sexual exploitation of a minor.I created a short video to explain your rights at the initial investigation.Here Is a short list of your basic constitutional rights.

1.You have a right not to consent to a search of your home or your computer without a valid search warrant.

2.You have a right not to speak to a police officer unless your attorney is present.Never speak to the police alone.

Follow Ben Roethlisberger in how he handled hisalleged sexual assault charges.Don't do or say anything unless you consult with your attorney.

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Pittsburgh Steeler quarterback Ben Roethhlisberger is under investigation in Georgia .The charge is sexual assault.The quarterback is also involved in a similar allegation in Lake Tahoe. Roethlisberger is being represented by Georgia lawyer Ed Garland. Mr.Garland has denied the charges.

"The facts show that there was no criminal activity. No sexual assault occurred," attorney Ed Garland said in a statement Monday. "Ben is completely innocent of any crime."

The local District Attorney General is investigating the young lady"s allegations.

"The investigation is ongoing. It would be premature to make any announcement at this time," said Fred Bright, district attorney for the Ocmulgee Judicial Circuit. "When the facts are in and a decision is made, we will let you know."

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The United States Supreme Court is considering granting a writ of certiorari  in Kentucky v. Baker.Baker is challenging the constitutionality of a component of Kentucky's sex offender registration laws on ex post facto grounds.The court may decide soon on whether to grant the writ.You can follow the update on the Scotus Blog which is an excellent resource to stay up to date on major criminal constitutionally issues that impact the criminal justice system.

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