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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A Nashville , Tn. couple was arrested this week on charges of manufacturing marijuana and possession of marijuana within a 1000 feet of a school zone. Metro Nashville Police discovered a large marijuana growing operation this week. A police officer noticed the smell during a DUI traffic stop. The smell was traced to a house in East Nashville. Police knocked on the door. No answer. Then , the police got a search warrant.  Bingo. Marijuana , grow  lights and all sorts of growing tools were discovered.There are two points that make this case worthy of comment.

First , the issue is whether the smell of marijuana alone justifies the issuance of a search warrant.  The California Court of appeals addressed this very issue this week. The court held ;

"Was the warrantless search justified based on smell alone?" wrote Presiding Justice Arthur Gilbert of the Second District Court of Appeal in Ventura. "Not according to the California Supreme Court. To smell it is not the same as to see it."

It will be interesting to see how this case plays out . From , my reading of The Tennessean article by Andy Humbles and Nicole Young , it appears there was no other evidence to issue the search warrant other than the smell. If there is nothing else , I predict the search warrant may be invalid.

Secondly , does a citizen have to answer the door if police knock ? No. A citizen has no duty to open the door for the police absent a search warrant or arrest warrant. One of the most popular police tactics is the " Knock and Talk ". Police knock on the door. Ask to come in and then they look around or ask for consent to search. Just like a door to door salesman , you do not legally  have to answer or let them in.

One question I have is how far was the house from the DUI stop.

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

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

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

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

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The Cheatham County Commission recently approved Sheriff Holder's request to hire a new police officer to patrol Interstate 40 in search for drug traffickers. The officer will work in conjunction with the Drug Interdiction Crime Enforcement (DICE) unit . The drug interdiction unit is made up of officers from the Dickson County Sheriff''s Office and  Humphrey's County Sheriff's Office. As part of the deal , all the agencies will share in the amount of confiscated funds or property.

My concern about drug interdiction units is it's all about the money.It is like the phrase from the movie ' Jerry Maguire ' " Show me the money ".

Drug Interdiction units are about seizing money . Who suffers ? Drug dealers suffer if their caught. However , traffic stops are focused on cars from Texas or suspicious looking people by that  I mean blacks and Hispanics . The war on drugs has been a dismal failure since being declared by President Nixon. Now , average citizens pay the price by bending our constitutional protection against unreasonable search and seizures.

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As I was walking to the criminal courthouse in Gallatin , Tennessee for a motion hearing , I noticed a new sign for a lawyer on the corner . The sign advertised General Sessions Lawyer .  What is a General Sessions lawyer ? Under Tennessee rules of specialization , Tennessee does not recognize such certification. Then , I understood .

See , the sign is hoping to attract those accused of a crime or DUI in Sumner County , Tennessee. A poor soul might walk into his office going to the General Sessions Court . To understand what a General Sessions lawyer is one must understand Tennessee's court system .

Criminal offenses in Tennessee are heard in three trial courts . They are Juvenile court , General Sessions court , and Criminal or Circuit court . A General Sessions Court has jurisdiction of misdemeanors and can only hear preliminary hearings on felony cases . You are not entitled to a trial by jury in General Sessions.

Most criminal  cases start in General Sessions Court  in Tennessee . Some lawyers don't want to venture out of General sessions Court . . Should you hire a General Sessions lawyer ? Probably not

Here's why :

• Are they a Dump Truck Lawyer ? By that , I mean a lawyer that is just going to settle your case with whatever the Assistant District Attorney is offering . Tomorrow , I will post on what is a dump truck lawyer .
• You might not get the best plea bargain offer because the D.A. knows they won't take one to trial.
• Do they give a damn about you or your case or do they just want a quick attorney's fee ?
• Do they try cases or just go to the back room and then tell you I can't help you after their promises ?
• Do they know the basic defenses of a criminal case ?
• Have they ever had pretrial hearing ?
• Have they taken any specialized continuing legal education classes on DUI or criminal law ?
• Are they a  member of any criminal defense lawyers groups ? If they won't pay $175.00 for dues to stay up to date on the law do they deserve your hard earned money to defend you from going to jail ?

You owe it to yourself to educate yourself on getting the best  criminal defense lawyer in Sumner County , Tennessee for your case .

Hiring a General Sessions lawyer is like hiring a doctor who is only going to take your temperature and give you an aspirin . They don't have the cure or will they even try .

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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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I had my first experience dealing with Tennessee's new bail bond law for those accused of DUI second , DUI third, and felony DUI offenses. The new law may keep those accused of these crimes from being released on bond.In Nashville,Tn., once a person is arrested and can't make bond their case is placed on the review docket .The review docket is usually held in courtroom 3C in the A.A. Birch Building.We filed a motion to set bond.The court granted the bond and released my client with the condition that he have an ignition interlock device installed.

I expect a lot more in the coming weeks on this issue.I am of the opinion this law will be challenged on constitutional grounds.

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I got a call today about a DUI case in Maury County Tennessee. I take tough DUI cases in most Tennessee counties.However , the question was did I know everybody like the clerk , the assistant district attorney , or the court personnel.Since  I don't have cases there on a routine basis , the answer was no.So , do you need to hire a good ole boy to avoid a DUI conviction ?

DUI defense is getting tougher each year in Tennessee.Just look at the new four laws that will be going into effect in 2011 . The good ole boy defense is my client is a good guy or gal. Never been in trouble and needs a break. Everyone of my clients is a good person , but how does that convince an assistant district attorney to reduce a  DUI charge. It doesn't. Most jurisdictions in Tennessee are cracking the whip on DUI prosecutions with some having a no reduction policy Like Dickson County and Cheatham county.

You defend the cases by knowing the  search and seizure law , the science of  blood or breath alcohol testing , the workings of field sobriety tests and an aggressive motion practice. if it's a blood test ask the good ole boy about head space gas chromatography testing.

Gone are the days of 'My client is a great guy " . That defense was gone when Andy left Mayberry.

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   Rudy Giuliani's daughter Caroline appeared in a New York courtroom Tuesday.She was charged with shoplifting some cosmetics from a store. Ms Giuliani received a plea under an Adjournment in Contemplation of Dismissal (ACD). Once she performs some public service work likely to be at a sanitation garage ,her criminal case will be dismissed.

In the General Sessions Courts for Nashville Davidson County Tennessee , there are similar procedures to handle some petty crimes.Shoplifting , simple possession of drugs and various other criminal charges can be disposed of like Ms.Giuliani's case. The disposition in Nashville courts is referred to as an under advisement plea. Usually a plea bargain is reached to do public service work or some other type of project , a plea is entered but disposition is reserved if you do what you are supposed to do case dismissed. You fail to do it .Jail and a permanent criminal conviction will be on your record. These types of dispositions are not just for the rich and famous , but are available to the average citizen. Ask your attorney if you are eligible for this type of plea bargain.

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

Eyewitness Misidentification

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

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

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

One of the issues in this case is the identification of the defendant as the person who committed the crime. The state has the burden of proving identity beyond a reasonable doubt. Identification testimony is an expression of belief or impression by the witness, and its value may depend upon your consideration of several factors. Some of the factors which you may consider are:

(1) The witness' capacity and opportunity to observe the offender. This includes, among other things, the length of time available for observation, the distance from which the witness observed, the lighting, and whether the person who committed the crime was a prior acquaintance of the witness;

(2) The degree of certainty expressed by the witness regarding the identification and the circumstances under which it was made, including whether it is the product of the witness' own recollection;

(3) The occasions, if any, on which the witness failed to make an identification of the defendant, or made an identification that was inconsistent with the identification at trial; and

(4) The occasions, if any, on which the witness made an identification that was consistent with the identification at trial, and the circumstances surrounding such identifications.

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 California DUI lawyer Lawrence Taylor wrote a post on his DUI Blog on the cost of a DUI conviction.

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Drunk Driving Could Cost $20,000

CNBC News.  Dec. 14  –  Twenty thousand dollars sounds like a lot to pay for a drink at a holiday party, but if that last cocktail puts you over the legal limit, that “one for the road” could easily cost you that or more.

One drink too many puts you at risk for not only an arrest, but also for fees, fines and costs that can run you thousands of dollars. While a DUI or DWI may be a misdemeanor charge in a number of jurisdictions, it’s a matter that most judges and district attorneys take very seriously. The financial toll of a conviction will play out for years to come, and in many states that can add up to $20,000 before everything is over. This includes bail, fines, legal fees, increased auto insurance premiums, loss of work income, court-ordered alcohol education programs and more.

Of course, if you get fired from your job as a result of the arrest, that dollar figure would skyrocket…

The Texas Department of Transportation says a June 2006 survey in that state showed the total costs of a DWI arrest and conviction — for a first time offender with no accident involved — would range from $9,000 to $24,000.

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