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

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.

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

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

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

Here is what one Federal Court thought about eyewitness identification ;

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

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

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

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

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

Analysis of blood spatter may do the following :

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

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

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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 :

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

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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.

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

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

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

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