The Tennessee Legislature and Criminal Law

The Tennessee State Legislature has a habit of enacting new criminal laws on an isolated incident that occurred in someone's legislative district. The practice creates terrible laws. I read a great quote recently from an outgoing U.S Senator. " Legislatures should govern not campaign." Tennessee State Legislator Jeremy Faison tweeted that the death penalty should apply for innocent people killed by arson.

We can all agree the intentional setting of forest fires is unconscionable. It should be punished. However, Tennessee already has death penalty laws , arson laws, and laws defining murder charges. Clearly, Representative Faison's tweet was merely a campaign ploy. Every legislative session some law is passed to address an issue that rarely occurs. The legislator goes home and claims a public relations victory. Last week , I posted my commentary on the various criminal laws that could impact the case. I saw a campaign pledge during the recent election of less government. Maybe we need fewer laws.

In my post, I discussed aggravated arson cases in Sevier County. Also, the criminal laws that are now in place to address those issues. The authority od the District Attorney to decide whether to present the charges in Juvenile court or seek to transfer the case to adult court. It seems our government has moved from a civil discourse on governing our state into proposing laws on Twitter.

Aaron Hernandez Caught by Cell Phone Tehnology

Patriots tight end Aaron Hernandez has been charged with murder . While his lawyer Michael Fee puts his spin that "it is a circumstantial evidence case;it is not a strong case." I disagree with Mr.Fee based upon what is reported in the news.

Mr.Hernandez was caught in large part based on the newest weapon in a police murder investigation arsenal. Tracking a cell phone tower is the latest way to investigate murder cases in today's world. Your cell phone calls leave a digital footprint where your phone as been used. Most times the phone is with you. Police pieced together cellphone tower tracking records to find out the location of Hernandez. Then, it appears they captured text messages from those involved. One text could be considered a declaration of the deceased that he was with Hernandez.

Video cameras may have captured some of the goings on before and after the murder. The Boston Marathon bombing showed how police used these video tapes to capture the bombers. Here, there were video cameras inside and outside the Hernandez home.

Mr.Fee may think it is circumstantial evidence, but the proper use of cell phone technology can plot a time line of Mr.Hernandez movements before and after  the shooting based upon his use of his cell phone . My experience is that this type of evidence is powerful if done properly.

Old school ballistic evidence matched the bullets found at the scene of the murder to shell casings found in the rental car. The killer must have used a semi-automatic that ejected the shells rather than a old school revolver . The snitches will be the last piece of evidence. One police theory is that others are involved. Police will not confirm or identify the other two men who were with Hernandez. A person facing a murder rap may just talk about what Mr.Hernandez did that night.

The Hernandez case is one example of the use of technology being used to solve crimes. Most folks don't realize they leave a trail of their whereabouts when they use their cellphone . Expect to see more investigations utilize cell phone tower tracking. One more key point is that under Tennessee criminal law circumstantial evidence is enough to convict one of first degree murder.Mr.fee has his work cut out for him.

Justice Italian Style ; The Amanda Knox Saga

For some reason , I follow foreign  criminal trials. It always amazes me the difference between our criminal justice system and those around the world. Italians make great wine and fine clothes but the criminal justice system is noting like the American system.


Amanda Knox was convicted of murder in Italy.Then , Knox's murder conviction was overturned by an Italian Appeals Court and she was even acquitted of the murder charges. Under the American system , her case would be over based upon double jeopardy . Double jeopardy is the legal principle contained in the Fifth Amendment. Double jeopardy means that no person shall twice put in jeopardy of life or limb for the same offense. In Tennessee , once she was acquitted it would be the end of the case. Jeopardy attaches when;

  1. The jury is sworn in at a jury trial.
  2. The first witness is sworn in at a bench trial.

In Italy , it is a different ball game. Once Knox was acquitted of killing Meredith Kercher, the Kercher family had a right to appeal to Italy's highest court for an appeal which they did. Acquittal was set aside and Knox goes back to trial.

One thing is certain to me now more than ever. Our founding fathers knew what they were doing when they drew up the bill of rights. Let's not shrink those protections that are given to those facing a criminal trial.


Castle Doctrine in Montana Results In No Murder Charges

Montana has a Castle Doctrine as a defense to a murder charge.  However, it is currently being reexamined.  Heather Fredenberg had an affair with Brice Harper. Her husband, Dan Fredenberg, found out about the affair and went to Mr. Harper's house to confront him.  Mr. Fredenburg walked though a open garage door where he was shot and killed.

Prosecutors declined to press charges stating Harper was protected by Montana’s Castle Doctrine law.  Harper believed he was about to be assaulted; therefore, his use of force was justified under the law even though Fredenberg was unarmed.

County Attorney Ed Corrigan, in a letter (PDF) to members of the Kalispell Police Department, outlined his reasoning for not pressing charges against Brice Harper.  Mr. Corrigan relied on Montana's version of the Castle Doctrine, a prior altercation between the parties and Mr. Harper's statements at the time of the killing.  The biggest issue was that that Mr. Fredenberg, who again was unarmed, was shot three times.

Here is Tennessee's version of the Castle Doctrine:

 Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be, has no duty to retreat before threatening or using force intended or likely to cause death or serious bodily injury, if:

    (A) The person has a reasonable belief that there is an imminent danger of death or serious bodily injury;

   (B) The danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time; and

    (C) The belief of danger is founded upon reasonable grounds.

(c) Any person using force intended or likely to cause death or serious bodily injury within a residence, business, dwelling or vehicle is presumed to have held a reasonable belief of imminent death or serious bodily injury to self, family, a member of the household or a person visiting as an invited guest, when that force is used against another person, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, business, dwelling or vehicle, and the person using defensive force knew or had reason to believe that an unlawful and forcible entry occurred.


The basic principle is that a man's home is his castle. He can protect his family or himself while at home. The defense is very similar to the defense being used in Florida in the Zimmerman case.
The question posed is should it be a defense to kill someone at your home under certain circumstances ?


Will the Drew Peterson Verdict Stand Up ?

I had not followed the Drew Peterson murder trial until a friend asked me if I thought he was guilty. I did not know much until the verdict came down. It appears some hearsay evidence persuaded the jurors to return a guilty verdict.  A new rule of evidence was passed in 2008 which allowed some hearsay evidence to be admitted. It was called " Drew's Law." Normally , hearsay evidence is not admitted into evidence absent some exception to the hearsay rule.

This verdict may not stand up. I read about numerous instances where the prosecutor introduced evidence that was precluded by the court. The major problem is whether this new hearsay exception trumped Peterson's right to confront and cross examine witnesses. The hearsay rule was put in place so one person could not repeat what another person said. In Crawford v Washington , the U. S. Supreme Court has found that the confrontation clause is a bedrock constitutional right. The basic rule is an accused has a right to confront and cross examine any witness that may be called against you. The Tennessee Constitution is even stronger


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.

Tennessee requires you meet your accusers face to face. So , the question becomes will the verdict stand up on appeal and whether this rule of hearsay trumps the confrontation clause.


Murfreesboro Judge Issues Gag Order In MTSU Murder Trial

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

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

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




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

2. The nature of publicity as fair or inflammatory.

3. The particular content of the publicity.

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

from which the venire is drawn.

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

which the venire is drawn.

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

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

8. The severity of the offense charged.

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

against the defendant.

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

11. Affidavits, hearsay or opinion testimony of witnesses.

So where will judge Ash get the jurors. The rule provides the court shall change the venue to the nearest county where the same cause for a change of venue does not exist. Stay tuned as to where Judge Ash selects the jury pool from.

Reflections on the Death Of Troy Davis

Yesterday , I watched and waited on whether the execution of Troy Davis would be stayed . It was not and Troy Davis was put to death.  In the days before his execution , public interest swelled . Protesters , posts on twitter and an outcry to stop the execution. The last minute appeal to the U.S. Supreme Court was denied. I am sure everyone in Georgia  feels safer today.

Contrast the Davis case with the execution  of a white supremacist gang member who killed a black man while dragging him down a bumpy asphalt road . No weak evidence . A solid case was made. It was a horrific hate crime.

I have thought long and hard on the death penalty. I agree with Justice Blackmun when he wrote that the '  I shall no longer tinker with the machinery of death". The death penalty should be abolished. The reasons are many from faulty eyewitness testimony like in the Troy Davis case to ineffective and overworked defense lawyers. Cost savings and inhumane punishment are also present.

I understand and respect the feelings of those effected by violent crime. The sense of loss  of a loved one is something I can't imagine .The question remains is the death penalty the best option with years of appeals. Reopening the loss with each round of court. Is life without the possibility of parole a better option ? I wish I knew , but today with what limited knowledge I have of the Davis case. The search for the truth and justice did not happen in the death chamber in Jackson , Georgia.


Can the Co-defendants Statement Sink Your Case

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

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

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

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



Eyewitness Testimony vs. An Alibi Defense

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

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

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

Here is what one Federal Court thought about eyewitness identification ;

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

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

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



What is Blood Spatter ?

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 .

Mark Chesnut Verdict

A Davidson county jury returned a verdict in the Mark Chesnut shooting of attempted first degree murder. The co-defendant who shot Officer Chesnut plead guilty on the morning of trial. The key question that had to be determined by the jury was the defendant criminally responsible for the shooting. In Tennessee , a person is just as guilty as the man that pulled the trigger if the jury finds he was criminally responsible for the criminal act.

Here's the law :

A person is criminally responsible for an offense committed by the conduct of another, if:


(1) Acting with the culpability required for the offense, the person causes or aids an innocent or irresponsible person to engage in conduct prohibited by the definition of the offense;


(2) Acting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense; or


(3) Having a duty imposed by law or voluntarily undertaken to prevent commission of the offense and acting with intent to benefit in the proceeds or results of the offense, or to promote or assist its commission, the person fails to make a reasonable effort to prevent commission of the offense.

Base upon Tennessee law if the jury found the defendant gave the gun to the shooter. The co-defendant is just as guilty.

Justice Texas Style

Charles Dean Hood sits on death row in Texas. After the trial , it was discovered that Judge Verla Sue Hood and the prosecutor Thomas S. O'Connell were having an extramarital love affair during the trial.Recently, Texas's highest court for criminal matters rejected Mr.Dean's appeal.The court held Mr.Hood waited too long to raise the issue  of whether a love affair between the judge and the prosecutor could create a conflict of interest.

 “A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself,” the brief from the ethics experts said. “Of all the courts to have considered the issue, only the Texas Court of Criminal Appeals in this case failed to recognize this imperative.” Reported Adam Liptak of the New York Times.

A former governor, former FBI director,U.S. Attorney, and a host of other judges and prosecutors have filed a brief in support of Mr. Hood's appeal to the United Supreme Court.


The District Attorney in Collin County , Texas ,John Roach, was quoted as " the past romantic relationships,of even public figures,become a matter that is entitled to a little privacy". I quess Mr. Roach is not following Tiger Woods issue.Bias is a subtle issue. when a man's life is on the line it is completely wrong for the judge not to recuse ones self. Last year the Supreme Court weighed in on the judicial ethics.

“The probability of actual bias on the part of the judge,” Justice Anthony M. Kennedy wrote for the majority, was “too high to be constitutionally tolerable.”

It's time for the Supreme Court to step up to define these ethical pitfalls.

Was it Murder or Suicide ?

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

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

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


The murder case has gained national exposure.It seems that Ms. Leath leaves behind death and mayhem in her wake.Ms. Leath's first husband Ed Dossett, Knox County District Attorney General, was killed in a cattle stampede in his barn.Randall Pedigo , the Knox County Medical Examiner at the time , ruled the death an accident. Mr. Pedigo later lost his medical license for sedating and molesting children in 1995.After Mr. Leath's death , The Dossett case was reopened and it was discovered that the cattle did not kill Mr. Dossett, but he had toxic amounts of morphine in his blood system.Ms Leath has been charged for murdering Dossett and that case is set for August 2010.

The story doesn't end with two dead husbands. Ms.Leath discovered that Mr. Dossett had fathered a child with a women who worked in the District Attorney's office.Ms.Leath confronted the women's husband Steve Walker.Ms Leath opened fire on Mr. walker with a gun.Leath chased Walker across a hayfield firing until she ran out of bullets.Leath was charged with attempted First Degree Murder, but plead guilty to a lessor charge. Leath received a six year sentence and was placed on diverison which was later expunged.

The Leath case has politics, murder, two dead husbands and money.I found the case interesting in a number of ways.The pretrial publicity was enormous in that a jury questionnaire revealed 70% of those polled knew about the case.Second, the issue of suicide hinges on the testimony of forensic scientists.To deliver a not guilty verdict , Mr Bell is going to need the touch of Peyton Manning and the luck of a riverboat gambler.