Tennessee Sex Offenders and Halloween

It may be Halloween , but the Tennessee Department of Corrections will be conducting Operation Blackout on those on the Tennessee Sex Offender Registry. It has been recently reported about the increased scrutiny that Tennessee Sex Offenders will be facing on  Halloween. For example,  here is a partial list of prohibited activities;

  • No decorations may be displayed. Not even a pumpkin is allowed.
  • A curfew from 6:00 P.M. to 6:00 A.M.
  • No attendance at any haunted houses, corn mazes or other Halloween events.
  • No porch lights are allowed and the door cannot be answered.

A violation of these rules could result in a violation of Tennessee's sex offender laws and land you in jail. The legal issue is whether these severe rules related to preventing sex abuse cases. It appears there is always some relationship between a sex offender and the victim. Family, social or school relationships are the most common. Civil libertarians are concerned about the loss of civil liberties. In Delaware, a sex offender must post a sign that tells trick or treaters that no candy is here. Sex offender laws have their place but are we driving those on the Tennessee Sex Offenders underground.


Tennessee Sex Offenders and Halloween

It may be Halloween , but the Tennessee Department of Corrections will be conducting Operation Blackout on those on the Tennessee Sex Offender Registry. It has been recently reported about the increased scrutiny that Tennessee Sex Offenders will be facing on  Halloween. For example,  here is a partial list of prohibited activities;

  • No decorations may be displayed. Not even a pumpkin is allowed.
  • A curfew from 6:00 P.M. to 6:00 A.M.
  • No attendance at any haunted houses, corn mazes or other Halloween events.
  • No porch lights are allowed and the door cannot be answered.

A violation of these rules could result in a violation of Tennessee's sex offender laws and land you in jail. The legal issue is whether these severe rules related to preventing sex abuse cases. It appears there is always some relationship between a sex offender and the victim. Family, social or school relationships are the most common. Civil libertarians are concerned about the loss of civil liberties. In Delaware, a sex offender must post a sign that tells trick or treaters that no candy is here. Sex offender laws have their place but are we driving those on the Tennessee Sex Offenders underground.


Is Unwanted Groping a Sex Crime in Tennessee ?


One of the 2016 presidential candidates has been in the news regarding allegations of groping women and sexual misconduct. Under Tennessee sex crimes laws, is it unlawful to grope or kiss a woman without their permission ?

The American Bar Association published an article on the topic. It caused me to think whether groping would be illegal in Tennessee. First, lets discuss unwanted kissing. Unwanted kissing is not a sex crime under Tennessee law. However, it could be considered a simple assault. Here is the legal definition of simple assault in Tennessee



(a)  A person commits assault who:

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

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

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

Unwanted kissing could be considered provocative conduct.


Let's turn to whether unwanted groping is a sex crime. From reading Tennessee's law on sexual battery it seems to fit. Here is the definition of sexual battery in Tennessee.

39-13-505. Sexual battery.


(a)  Sexual battery is unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the following circumstances:

     (1)  Force or coercion is used to accomplish the act;

     (2)  The sexual contact is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the contact that the victim did not consent;

     (3)  The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or

     (4)  The sexual contact is accomplished by fraud. 

Next we have to look at the key definitions of the statute.

39-13-501. Definitions.


As used in §§ 39-13-501 39-13-511, except as specifically provided in § 39-13-505, unless the context otherwise requires:

     (1)  “Coercion” means threat of kidnapping, extortion, force or violence to be performed immediately or in the future or the use of parental, custodial, or official authority over a child less than fifteen (15) years of age;

     (2)  “Intimate parts” includes the primary genital area, groin, inner thigh, buttock or breast of a human being;

     (3)  “Mentally defective” means that a person suffers from a mental disease or defect which renders that person temporarily or permanently incapable of appraising the nature of the person's conduct;

     (4)  “Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling the person's conduct due to the influence of a narcotic, anesthetic or other substance administered to that person without the person's consent, or due to any other act committed upon that person without the person's consent;

     (5)  “Physically helpless” means that a person is unconscious, asleep or for any other reason physically or verbally unable to communicate unwillingness to do an act;

     (6)  “Sexual contact” includes the intentional touching of the victim's, the defendant's, or any other person's intimate parts, or the intentional touching of the clothing covering the immediate area of the victim's, the defendant's, or any other person's intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification;

     (7)  “Sexual penetration” means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of the victim's, the defendant's, or any other person's body, but emission of semen is not required; and

     (8)  “Victim” means the person alleged to have been subjected to criminal sexual conduct and includes the spouse of the defendant.



It appears to be clear that unwanted groping is a crime under Tennessee law. One key thing is the context of the contact. In a dating relationship, one may be under the impression they have consent while the other did not feel that way. It may be a slippery slope in future cases in what is consent. Can it be implied based on the circumstances ? That is a question for another day.

Charlie Sheen's Revelation

Charlie Sheen disclosed last week on the Today show that he was infected with the AIDS virus. During the interview, Mr. Sheen denied knowingly having unprotected sex without the other persons knowledge.

Under Tennessee criminal law,  person is person commits the offense of criminal exposure of another to HIV, hepatitis B (HBV) and hepatitis C (HCV) when knowing that the person is infected with HIV, HBV or with HCV, the person knowingly engages in intimate contact with another. It is not a defense that the sexual contact was protected. It is a defense that the person consented to the sexual act with knowledge that the person was infected. See T.C.A. 39-19-109

it is a Class C felony for exposure to HIV. A Class C felony carries a full range of punishment from 3-15 years. Exposure to hepatitis is a misdemeanor.

Why Corey Batey Had To Testify

One of the bedrock principles of our criminal justice system is the defendant does not have to testify in his defense. Corey Batey had to testify for two reasons

  1. Batey had to say the two magic words. I'm sorry.
  2. Batey had to advance the defense theory of his intoxication.

One of the elements of aggravated rape in Tennessee is that the government has to prove that the defendant knows or has reason to know that the victim is mentally defective ,mentally incapacitated or physically helpless. Batey testified that he was" drunk out of his mind ".

The rest of the closing arguments will start in minutes. We will soon see if the jury believes him.

Why Corey Batey Had To Testify

One of the bedrock principles of our criminal justice system is the defendant does not have to testify in his defense. Corey Batey had to testify for two reasons

  1. Batey had to say the two magic words. I'm sorry.
  2. Batey had to advance the defense theory of his intoxication.

One of the elements of aggravated rape in Tennessee is that the government has to prove that the defendant knows or has reason to know that the victim is mentally defective ,mentally incapacitated or physically helpless. Batey testified that he was" drunk out of his mind ".

The rest of the closing arguments will start in minutes. We will soon see if the jury believes him.

What Can We Learn From The Vandy Trial ?

The Vandy trial is now well into its second week of testimony. It is a story of college students , alcohol ,  sexual assault and rape on a young student who was passed out. You look at the photo of the defendants and they look like young college kids. They were football players at a top ranked school . So what can we learn from this case.

Maybe we should use this trial to encourage a frank discussion with our children about sexual assault and alcohol. It is not morally acceptable to commit a sexual assault a person who was passed out. This behavior seems to be rampant from the Vandy case to the high school football players in Steubenville , Ohio. Maybe we should talk to our kids. Use this case as a teaching tool to show that this type of behavior cannot be tolerated. Would you rather have this talk or visit your child in prison.

When Should a Lawyer Request a Change of Venue ?

Stacey Barchenger  reported on last Friday's hearing in the Vanderbilt rape case. One defendant asked for a continuance in order to obtain an expert witness and one defendant requested the jury to be sequestered. Both motions were denied. The case is set for November 3rd ,2014. I watched a little bit of the hearing on Friday waiting on my case. It made be think of a motion that should have been filed. I don't know if the defense filed a motion for a change of venue.

The Vanderbilt case has been in the news since the story broke. The case had all the ingredients for a high publicity case. Big university , horrible rape, football players, and a popular head coach were mentioned in the press .Can a criminal defense lawyer request a change of venue ?

The short answer is yes. Rule 21 of the Tennessee Rules of Criminal Procedure allows a person accused of a crime to request the court to change the venue of the case . venue is simply where the case will be tried. One must prove the accused it is unlikely to get a fair trial because of undue excitement against the defense . Getting a fair jury may be difficult due to the news reports.

Tennessee courts have set out 17 factors that the court must consider when granting a motion for a change of venue . In my career , I have only filed one motion for a change of venue which was granted .

The trial starts today.

Intoxication as a Defense to Rape

One of the former Vanderbilt Football players accused of rape appears to be ready to put on a defense of  intoxication as a defense. The defense for Brandon Vadenburg has filed a report of an expert where they assert that alcohol  effected his mental state.

Tennessee Code Annotated 39-11-503 spells out the defense of intoxication It is divided into voluntary intoxication and involuntary intoxication .Voluntary intoxication does negate the mental element of intentional conduct. Only involuntary intoxication is a defense to assert that a person lacked substantial capacity either to appreciate the wrongfulness of the person's conduct or the conform that conduct to the requirements of the law.

The intoxication defense may be used to negate one of the elements in the aggravated rape counts. The state must prove that force or coercion was used or the defendant knows or has reason to know that the victim is mentally defective , mentally incapacitated or physically helpless.





 I have used this defense in a first degree murder case to negate intent. However , you must own the fact that it did occur. In my case , the jury returned a verdict of reckless homicide .

The trial starts on November 3rd. Let's see what happens.





Ceelo's Defintion of Rape Is Just Wrong

Ceelo Green suffered an extreme public relations backlash when he tweeted his understanding of what is rape. After his plea to a charge of giving a women ecstasy , he aired his case on Twitter . Here is a couple of his  tweets;

In posts that were later deleted from his account, Green addressed the case, tweeting, “People who have really been raped REMEMBER!!!”

“If someone is passed out they’re not even WITH you consciously! so WITH Implies consent,” he added.

It seems Ceelo is under the impression that if someone passes out that implies consent. Law enforcement in Los Angeles did not charge him with rape based upon insufficient evidence.

Tennessee's rape law covers when someone is passed out. Here is the statutory definition of rape in Tennessee:

39-13-503.  Rape.

  (a) Rape is unlawful sexual penetration of a victim by the defendant or of the defendant by a victim accompanied by any of the following circumstances:

   (1) Force or coercion is used to accomplish the act;

   (2) The sexual penetration is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the penetration that the victim did not consent;

   (3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or

   (4) The sexual penetration is accomplished by fraud.

Here are the pertinent definitions :

 "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling the person's conduct due to the influence of a narcotic, anesthetic or other substance administered to that person without the person's consent, or due to any other act committed upon that person without the person's consent;

   (5) "Physically helpless" means that a person is unconscious, asleep or for any other reason physically or verbally unable to communicate unwillingness to do an act;


 If a person knows or has reason to know a person is helpless and there is sexual penetration , it is rape. A person passed out from drugs and  or alcohol cannot give consent to have sexual relations . Ceelo  has a complete misunderstanding of what is consent.

Do Residency Bans Drive Sex Offenders Underground ?

Steven Yoder recently wrote a article of the  same title as this blog post. The central question is do residency bans drive sex offenders underground. Mr. Yoder gives on example where a city in California created a park to drive out 33 registered sex offenders from there homes .Currently , there have been legal challenges to the residency rules under several states sex offender registry laws.

One judge relied on a report conducted by the State of Colorado Sex Offender Management Board on residency bans. The basic findings were that residency bans does not lower recidivism rates and could actually increase the risks to the public.


Let's take a look at Tennessee's sex offender registry laws on residences. Tennessee Code Annotated 40-39-211 spells out the residency ban. Tennessee prohibits a sex offender from residing or working  within a 1000 feet of schools child care facilities , public parks playgrounds , recreation centers or public athletic fields available for use by the public at large.

Here is one example where a person could drive a sex offender from their neighborhood. A person puts a small playground in the backyard. Then allows the public to use the playground . It is possible that this playground could be covered under the statute.


Some states have moved to prevent local governments from enacting tougher residency requirements. Here is a statement from a New Hampshire Representative :

“My first term, I was pretty much a hard-liner,” said Republican representative Larry Gagne during a January committee hearing.

“I said, ‘Put [sex offenders] in outer space; put them all on an island.’ But I changed my mind after a [police] sergeant came in and said, ‘If they go underground, we can’t find them.’”

Mr. Yoder's article is worth reading on this tough issue.


Ex-Vanderbilt Football Players Indicted

Four former Vanderbilt football players were indicted for five counts of aggravated rape and two counts of aggravated sexual battery by a Davidson County Tennessee Grand Jury. Aggravated Rape is a Class A felony in Tennessee which carries punishment in the range on 15 to 25 years in prison. The definition of aggravated rape in Tennessee can be found here .

The case illustrates how some sex crime cases are handled by the District Attorney's Office . A person can be charged with a crime in Tennessee by four different charging instruments. The most common are the warrant and an indictment. One primary difference is that a direct indictment commonly referred to as a sealed indictment takes the case directly to the grand jury. It eliminates a couple of steps in the process. One of those steps is the preliminary hearing.

A preliminary hearing is one step in the criminal court process. If you are arrested by a warrant , you are entitled to have a hearing for the court to determine if there is  probable cause to send your case to the grand jury. In fact , the Rules of Tennessee Criminal Procedure still allows a preliminary hearing if the case is indicted after arrest but before a preliminary hearing can be held. A direct indictment skips this step.

Why would a prosecutor seek a sealed indictment instead of a arrest warrant ? In some sex crimes cases , the district attorney wants to avoid a preliminary hearing. A preliminary hearing is one of the best building blocks of discovering facts about the case.  The state is required to put on some evidence to prove probable cause. It gives a defense attorney a chance to cross-examine the state's witnesses. One reason the state presents a case directly to the grand jury is to avoid placing the alleged victim on the witness stand to protect them from reliving the event. 

In this case , the state did not to arrest these men immediately. The state collected DNA and other forensic evidence that was analyzed by the Tennessee Bureau of Investigation. Based on the charge of unlawful photography charge of one of the former players. It looks like someone took pictures of what went on in that dorm room in June based upon that charge and the statements of police spokesman Don Aaron.

Some times I have wondered whether the sealed indictment is just a way to avoid some aspects of the criminal justice process. Now , I think in some cases  this it may be necessary to investigate rather than prosecute. In these types of cases a quick charge destroys lives and reputations. A solid investigation gathers evidence like the photos and forensic evidence. It is a tough balancing act . I for one favor investigation over confirmation.





























Is Tennessee HB 1293 Unconstitutional ?

Tennessee House of Representatives member Vince Dean has sponsored HB 1293. HB 1293 as introduced creates the continuing offense of sexual abuse of a child which is committing three or more incidents of sexual abuse of a child over more than a 90 period or five incidents involving two or more victims within a 90 day period. It establishes venue and punishment. It was in committee last week and is it for a full vote next Tuesday.

The Tennessee District Attorney's Conference is pushing the bill. I spoke to a ADA yesterday from outside of Davidson County about the bill. " You mean the Jerry Sandusky bill." One way to get a bill passed is to name it after one of the most despicable recent sexual predators. It gives the bill some appeal to be tough on sexual predators.

The bigger question does HB 1293 violate the Tennessee Constitution. Article I Section 9 provides ;

§ 9. Rights of accused

That in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of the County in which the crime shall have been committed, and shall not be compelled to give evidence against himself.

The bottom line is that a trial must occur in the county in which the crime occurred. The purpose of the bill is to try all allegations of a sex crime at the same time. It will create a abuse of the system. In muti-count indictments alleging different dates and different victims of sexual abuse, a lawyer may ask the court to sever the counts of the indictment or try the cases separately. Sometimes that does not lead to a fair trial. You know the old adage "where there is smoke there is fire". If a jury hears evidence of all kinds of victims and several instances of sexual conduct, it may lead to an unfair trial. This bill is an attempt to do an end run around Tennessee's Constitutional protections of one accused of a crime.

One other part of the bill is that it allows , the DA to pick a venue or location of the trial. In a practical sense, the District Attorney can pick where the case will be tried. As any one knows , judges are different from county to county , it may lead to folks picking the venue that might be more favorable to the State of Tennessee. Then , that could lead to motions for change of venue.

All bills must contain a fiscal note or how much more it is going to cost the state. The number for this bill is set at $300,000.00 I would submit that it is just a fraction of the cost. There will be constitutional challenges to the law to determine if it is in fact constitutional, Long delays and motions to determine if the case is a continuing offense crime. Also, the price of incarceration will sky rocket.

Interested in learning more ? Here is a link to the bill. Our legislature is really worried on protecting gun ownership rights but weakens the right of one facing a criminal trial every session.


A Reminder to Keep Your Mouth Shut


One of the most important things to remember when one is facing a criminal charge in Tennessee is to keep your mouth shut. I often refer to this as my "million dollar advice." I represent  good folks who might have made a error in judgment. So , they were raised to cooperate with the police. even some folks blog about that who have no legal degree. They are wrong. You have no legal duty to cooperate with the police in a criminal investigation.

If you are stopped by the police , you do have to show your ID. Once that is complete , you have no legal obligation to say anything. Remember the old Dragnet show . Anything you say can and will be used against you. Here are some illustrations;

Officer: Have you had anything to drink tonight ?

Accused: I had two beers.

Next thing you are being asked to get out of your car do do some field sobriety tests. The police still don't tell you you don't have to do these tests.Once you admit to drinking, they can ask you to get out of the car.

Officer: Someone tells us that you may have child porn on your computer. What to talk to us about it ? Or  Someone is accusing you of touching someone. Want to tell us your side ? We can help you ?

Accused; Sure I want to talk to you without a lawyer present so I can be tricked into confessing.


Continue Reading...

Lawsuit Filed to Block New California Sex Offender Law

California has over 74,000 people on the sex offender registry. Every year that passes more restrictions are put into place on those on the sex offender registry. California passed a new referendum that would require those on the sex offender registry to  provide authorities their email addresses , user names , screen names , and Internet handles as well as to report any changes to those within 24 hours.

The American Civil Liberties Union has filed suit to prohibit the new law from going into effect on Firs Amendment grounds. Here are some of the comments from Michael Risher who filed the lawsuit;

“This is a problem under the First Amendment,” Mr. Risher said. “Americans have a right under the First Amendment to speak anonymously, and this eviscerated that right. People, for example, would have to turn over the screen names they use to comment on the New York Times Web site.”

“That’s not activity that can be used to commit a crime in any way,” he continued. “It is pure speech, often pure speech about important political issues of the day. It’s an area where there is no reason for the government to be requiring people to identify themselves to the police.”

A federal judge has issued a temporary injunction stopping the new law for now. How does that law apply to those in Tennessee ?  Tennessee requires the disclosure of  certain information. Here is the exact wording as the law is now; 



A complete listing of the offender's electronic mail address information or any instant message, chat or other Internet communication name or identity that the person uses or intends to use




Continue Reading...

A Novel Defense to Patronizing Prostitution Charges


Dominique Strauss-Kahn is back in the news. Strauss-Kahn gave a statement a recent statement about wanting to be "left in peace". Then , his lawyer declared his defense to the prostitution charges.

First , the defense to a prostitution charge via The Jury Room Blawg . It seems Strauss-Kahn's lawyer is advancing the defense  that he did not know they were prostitutes . The  theory is the ladies were naked. How could one know they were prostitutes if they were in a state of undress ? Here is his lawyers comments;

However, Strauss-Kahn’s lawyer, Henri Leclerc, said his client was “totally unaware” the women were being paid. “At these parties, people were not necessarily dressed, and I defy you to tell the difference between a naked prostitute and any other naked woman,” said Mr Leclerc.” 

I get it . Beautiful young ladies want to have sex with an old , fat , white guy. Yeah right. I suspect that defense would work well here in Nashville's bible belt.

The second reason DSK is back in the news is his request to be left in peace. Facing criminal charges is not the time to sound indignant. It is the time to fess up.Admit you're human.  Most folks understand a person can make mistakes. DSK's statement is the perfect example of how not to handle a public relations nightmare. Were are are forgiving group of people. Make a mistake. Own it. Unless the cops can't prove it.


High School Quarterback Charged With Rape



Mt. Pleasant High School quarterback Princeton Harlan has been charged with the rape of a child in Maury County. Also, two of his teammates were charged with raping the same victim. The big difference is how they will be treated by the criminal justice system. Harlan is over 18 and will be tried as an adult . Harlan's teammates are juveniles; their fates have not been decided. The two minors might be tried as juveniles or the State of Tennessee could move the Maury County Juvenile Judge to transfer their cases to adult court.

The big difference is punishment. Harlan faces 25 to 40 years in prison with no possibility of probation or parole. His teammates, if tried as juveniles, will face prison.

Maury County Sheriff's Detective Tony Bailey reported that Harlan and his two teammates had sexual contact with the girl in two separate incidents.

First , rape of a child is one of the worst crimes that are committed. The punishment is severe. It is just wrong both legally and morally. The difference in this case is the age of the defendants and the victim. The key wording in the rape of a child statute is "the unlawful sexual penetration." It appears these acts were not forcible.

On a side note , will this case be used for means other than to protect a young girl and punish those who deserve it ? Let's look at how Mr. Harlan was arrested . The case has been investigated since August. Mr.Harlan was not a flight risk. Yet the Maury County Sheriff's Office chose to arrest him at school. Mr. Harlan had to do the perp walk in front of his classmates. Harlan's arrest was a staged public event in stark contrast to the direct presentment of the charges to the Grand Jury (which avoided a preliminary hearing).

Mr. Harlan was wrong and the girl was victimized. The Tennessean's headline in an article by Brian Hass stated " Child Rape Case A Challenge." It certainly will be.

What If Jerry Sandusky Was Sentenced In Tennessee ?


Jerry Sandusky is going to prison to serve between 30 to 60 years for being convicted of over 40 counts of abusing children. I am not sure of his convictions. The news reports just refer to molesting children or sex abuse. Under Tennessee law, it could be rape of a child or aggravated child abuse. Those crimes carry tough sentences. Rape of a child carries 25 to 40 years to serve at 100%. Aggravated sexual battery carries 8 to 12 years as a Range I offender at 100%.

If Sandusky was sentenced in Nashville, my prediction is that he would have gotten a sentence into the triple digits due to consecutive sentencing. Why? Tennessee allows consecutive sentencing if a defendant has been convicted of two or more statutory offenses involving sexual abuse. Tennessee Code Annotated 40-35-115 sets out when consecutive sentencing applies.

40-35-115. Multiple convictions

(a) If a defendant is convicted of more than one (1) criminal offense, the court shall order sentences to run consecutively or concurrently as provided by the criteria in this section.

(b) The court may order sentences to run consecutively if the court finds by a preponderance of the evidence that:

(1) The defendant is a professional criminal who has knowingly devoted the defendant's life to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is extensive;

(3) The defendant is a dangerous mentally abnormal person so declared by a competent psychiatrist who concludes as a result of an investigation prior to sentencing that the defendant's criminal conduct has been characterized by a pattern of repetitive or compulsive behavior with heedless indifference to consequences;

(4) The defendant is a dangerous offender whose behavior indicates little or no regard for human life and no hesitation about committing a crime in which the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims;

(6) The defendant is sentenced for an offense committed while on probation; or

(7) The defendant is sentenced for criminal contempt.

(c) The finding concerning the imposition of consecutive or concurrent sentences is appealable by either party.

(d) Sentences shall be ordered to run concurrently if the criteria noted in subsection (b) are not met, unless consecutive sentences are specifically required by statute or the Tennessee Rules of Criminal Procedure.

A Tennessee judge imposing a sentence could have given Sandusky time in the triple digits at 100%.

That is why it is important to file a motion for a severance of counts in a Tennessee sex crimes case. More on a motion to sever later...

Sandusky Gets 30-60 Years

Jerry Sandusky appeared in court today for his sentencing hearing. Pennsylvania is like Tennessee in where the judge sentences a person after the jury determines guilt or innocence. A sentencing hearing is a very important stage of the case.It went poorly for Sandusky and it is likely he will die in prison. Sandusky did two things wrong at his sentencing hearing.

First , a tape was leaked where it is alleged that he made a statement about the case. The Patriot News published the full statement. Here is just a portion ;

“I'm responding to the worst loss of my life. First, I looked at myself. Over and over, I asked why? Why didn't we have a fair opportunity to prepare for trial? Why have so many people suffered as a result of false allegations? What's the purpose? Maybe it will help others; some vulnerable children who could be abused, might not be because of all the publicity. That would be nice, but I'm not sure about it.

“I would cherish the opportunity to become a candle for others, as they have been a light for me. They could take away my life, they could make me out as a monster, they could treat me as a monster, but they can't take away my heart. In my heart, I know I did not do these alleged disgusting acts.

“My wife has been my only sex partner that was after marriage. Our love continues.

“A young man who was dramatic, a veteran accuser, and always sought attention, started everything. He was joined by a well-orchestrated effort of the media, investigators, the system, Penn State, psychologists, civil attorneys and other accusers. They won. I've wondered what they really won: Attention, financial gain, prestige will all be temporary.”

It is not a good idea to give a taped statement on the eve of a sentencing hearing when you are asking the court to impose a light sentence.

Secondly , it appears his statement in court again claimed his evidence against enormous evidence of his guilt. Testimony before a judge must include remorse and feelings for the victims rather than they made it all up. Judges expect you to fight the case , but once you are convicted all judges want to hear that you are truly sorry for the conduct that lead to the criminal behavior.


Church Supervisor on Trial for Sex Abuse by Priests

Monsignor William Lynn is on trial in Philadelphia over felony charges of endangering children and conspiracy that he shielded sex abusers . It is thought to be one of the first trials in the nation on this theory of prosecution. The central theory of the state's case is that Monsignor Lynn knowingly allowed priests who had sexually abused minors to be reassigned  to positions where teachers or parents would not know about the charges. Lynn's defense is that he notified his supervisors and he should be found not guilty. One problem with that defense is that it did not work in the Nazi war crimes trials or any other trial that I am aware of where blame is shifted up the chain of command.

Under Tennessee criminal law , it appears that Monsignor Lynn could be convicted on these charges. Tennessee has a provision under it's criminal code called criminal responsibility . Basically , the law provides that you responsible for the conduct of another if you assist in the crime . Criminal responsibility also provides that you are liable if one has a duty to prevent the commission of a crime or promotes or assists in its commission. Clearly , Mr. Lynn knew of the sex abuse and transferred these priests where they could resume their abuse.

Criminal responsibility could even be brought in other types of cases . In the past several weeks ,  a women was charged with vehicular homicide. Reports from the news indicate she may have been over served at a bar. Under the doctrine of criminal responsibility the bartender or the bar could be charged .


One thing that makes it an easier case for the state is that they are trying one of the priests for an attempted rape of a young boy. The evidence may show up to 20 other cases where Lynn swept these allegations under the rug.

New Tactic in Patronizing Prostitution Cases In Nashville

It is not official but there may be a new tactic in how Metro Nashville police are handling patronizing prostitution cases in Nashville, Tennessee. Over the weekend , a prominent high school football coach was arrested for patronizing prostitution. What makes this case different is how the police start the process. Tennessee police officers have a option to issue a criminal citation in lieu of a arrest warrant . For years Metro police have issued criminal citations in lieu of arresting someone.It appears the police are now issuing arrest warrants in Nashville prostitution cases .

It appears there is a new trend to issue an arrest warrant . Why the change ?  It could be there is a public record of the arrest while the case is working its way in the criminal justice system . Or, the letters one gets in the mail from lawyers who prey on the arrest information to send you a letter to your home soliciting your business. So you make a mistake then your mailbox gets flooded with letters and postcards .


It is more important now than ever to get this type of case handled quickly and efficiently.

Allleged Rapist Busted by Facebook

What people put on Facebook never ceases to amaze me . Now , the police are using Facebook to track down fugitive criminals .  A police department in Alabama recently posted a wanted poster on Facebook. In the Old West , the sheriff would post a wanted poster in the post office.  In this century ,we go to the Internet.They hoped to get some information of where the alleged rapist was hiding.

Guess who responded to the post first ? The man accused of the rape responded first Mr. Dustin McCombs. Jefferson County officials engaged Mr. McCombs about turning himself in to authorities. Mr. McCombs responded to the Facebook post after he was named "creep of the Week" on the Jefferson County Sheriff's Facebook page. After a couple of days they caught up with Mr. McCombs in Ohio and arrested him for the rape charge . You can check out Buzzfeed for the screen shots of the conversation.

One interesting comment. Once formal charges are made,  a defendant has a right to remain silent and he or she can request a lawyer. Do Facebook messages count as police interrogation ? Should he have been Mirandized over the Facebook comments ?  The digital world is hard to keep up with in context of  the rights of the defendant.

McKinney's Rules:

  •  Don't give voluntary statements to police.
  • Don't give statements on Facebook to police.
  • Don't put your business on Facebook

Remember the whole world now has access. This case is now in the running for dumbest criminal of the year.


Sandusky Waives Preliminary Hearing


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.



Is CCA Housing Sex Offenders In Violation of Tennessee Law ?

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.


Penn State Sex Abuse Scandal Takes Off With Sandusky Interview

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.


Sex Molestation Charges Rock Penn State

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.


Statutory Rape By An Authority Figure

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.


The Consequences of Sexting With Minors In Tennessee


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.

Tennessee Sex Crimes FAQ

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 .

What Can a Forensic Investigation of a Computer Recover ?


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 .



Lessons from The Trial of Tonya Craft Part I

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 .





What is the Crime of Aggravated Statutory Rape ?

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.

Nude Photos Land Man in Hot Water

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.


New Push To Establish A Juvenile Sex Offender Law

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.

Search and Seizure of Computers

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.

Handling a Sex Crimes Investigation

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.



Steeler Quarterback Questioned in Sexual Assault

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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Sex Offender Registry Case May Be Reviewed

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.

Duke Lacrosse Rape Case Update

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