Olympic swimming  star Michael Phelps checked into a alcohol treatment facility after his second DUI arrest. I mention his problem because some folks in Tennessee think about doing the same thing if they are arrested for a DUI. Tennessee recently enacted some new laws about  certain benefits of getting into a alcohol treatment .

Tennessee enacted the Recidivism Reduction Act of 2014 which allows for jail credit for inpatient and outpatient treatment on second and third offense DUI cases in Tennessee. The point is do not just jump into a treatment program without first contacting a DUI defense lawyer. The act was designed to give post judgment credit for alcohol treatment. The act does allow for  post judgment credit , but it needs some attention to make sure you get the credit. You can now get jail credit for treatment on a DUI third offense as well as a second offense DUI and get jail credit for intensive out patient treatment.

The teaching point from Michael Phelps case is don’t dive into to treatment without checking the water.

In yesterday’s post , I discussed whether an subpoena served via telephone was valid . In reading the rule , something else caught my attention. Is a subpoena served outside the of Tennessee valid ? Nashville is a great city to visit. Some folks might have a little too much fun on lower Broad and get into a little misunderstanding with the police. Does a witness have to come back to Tennessee if they get a letter from the District Attorney or a subpoena from the clerk ?

There are two different rules that govern the subject. First interstate subpoenas are covered under the Uniform Law To Secure Attendance of Witnesses. Here are a couple of points. Under T.C.A. 40-17-203 ,only a judge of a court of record can issue the subpoena. So the statute does not apply in General Sessions Courts. Secondly , the court must hold a hearing to determine if the witness is material and necessary. The bottom line is this rule is only applicable in Circuit Court or criminal Court. We are back to Rule 17 of the Tennessee Rules of Criminal Procedure . Here is what part of the rule states:

(2) Service Within State. A subpoena requiring the attendance of a witness at a hearing or trial may be served any place within Tennessee.

From the plain reading of the statute , it appears that Rule 17 does not trigger the attendance of a out of state witness unless there is a application pursuant to T.C.A 40-17-201.

I have enjoyed this topic of getting back to the basics of evidence and procedure . Lawyers sometimes take the rules for granted . In this spirit , I hope to write weekly on evidence and procedure issues

 

Last week a question was posted on a consumer website that allows lawyers to answer  questions posted by people looking for information. First , please do not rely on answers from attorneys on websites as legal advice. The lawyers might not know all the facts or could be lawyers from another state. The question asked  was " Is a subpoena valid if it is served by telephone." Subpoenas are a order directing a person to come to court or to come to court with certain things such as records or other tangible evidence.
 

Subpoenas are issued by telephone routinely in Nashville Davidson County Tennessee General Sessions Courts . Once I read the question ,  I realized that I did not know the answer. Rule 17 of the Tennessee Rules of Criminal Procedure . The rule does not speak to  service of a subpoena by telephone , however  it does address manner of service. Here is an excerpt from the rule;

(f) Service.

(1) Method of Service. A subpoena may be served by any person authorized to serve process, or the witness may acknowledge service in writing on the subpoena. The server shall deliver or offer to deliver a copy of the subpoena to the person to whom it is directed or leave a copy with an adult occupant of the person’s usual residence

The rule sets forth that the server shall deliver a copy of the subpoena or offer to deliver a subpoena . In using a telephone to serve a subpoena , it is common sense that the person subpoenaed does not get a copy. The question is does the person on the phone offer to deliver a copy. There is no clear answer to the question. It appears that if the server did not offer to deliver a copy of the subpoena , the service of the subpoena may be invalid .

Tomorrow, Is a subpoena served out of state valid ?

I had posted some suggestions set out by lawyer Nicole Black on how to be a happy lawyer . One of her suggestions is to take control of your calendar . I could not agree more. Criminal defense lawyers in Nashville, Tennessee calendars are set by the court. Settlement dates, arraignments , motion hearings , trials , plea dates are set by the court or the clerk. Lawyers must gain control of their calendar in order to establish a work-life balance. This week a trial court set a murder trial for a defense lawyer on the week of his wedding which might be over the top.

What do we need to do in order to gain control of our calendar and our lives ?

  • When we file a motion in criminal court , put a notice of when you want the motion to be heard rather than filing the motion and getting the notice from the clerk when you have a conflict.
  • Block out some personal time or vacation time for 2015 now.
  • Block out the day after you get back to catch up , return calls ,  and take care of office business rather than launch into a trial on your first day back.
  • Set all of your cases on one day. In the new domestic violence docket , you might be able to set all your cases on one day of the month.
  • Block out time of the week for you. last summer , I left the office at 4:30 every Wednesday to play nine holes of golf in a weekly tournament.

Practicing law is hard enough without placing undue stress on yourself. Lord knows I have been doing it for years I have often had court in different counties at the same time. I just hope I can start practicing what I am preaching.

 

I ran across a great article from the folks at techno lawyer . Nicole Black wrote an excellent article that listed 15 ways to be a happy lawyer . Lawyers especially criminal defense lawyers lead stressful lives and need to consider a healthy balance between work and their personal life. Here is the list ;

 

 

 

 

 

1. Make your work environment more ergonomic.

2. Create a peaceful, calming work environment.

3. Foster an office environment that encourages cooperation and communication.

4. Streamline your work processes.

5. Practice law on your terms. 

6. Tweak your practice to make it more enjoyable.

 

7. Change your career track.

8. Carefully choose your clients.

9. Take care of yourself.

10. Find the right balance between work and the rest of your life.

11. Create a mobile practice.

12. Take control of your schedule.

13. Know when to hire help

14. Take advantage of technology

15. Refrain from taking on too much

 

Nicole Black will be posting about these 15 ways over the next few months . I intend to write about a few of them as well. Here is the link to the blog if you want to read Ms. Black’s thoughts on the subject.

 

Being a criminal defense attorney requires you to use many types of advocacy. You have preliminary hearings , motion hearings , jury trials ,and sentencing hearings. Each area requires different skills of persuasion. Today , I want to discuss one aspect of  sentencing hearings.

Sometimes your client is found guilty after trial or agrees to a sentencing hearing for the judge to decide the sentence. A sentencing hearing is basically a mini-trial where the judge decides the manner of service meaning should your client get jail, probation , or some other sentence. The court also decides the length of service . The topic today is whether your client takes the stand.

The attorney and the client must make the decision on whether to testify. Bear in mind a old post on the two most important words your client must say at a sentencing hearing. You client has three choices:

  • Say nothing.
  • Testify and be subject to cross examination.
  • Make an allocution .

If your client says nothing , the court can’t hear him say I am sorry and show he is remorseful. If he testifies , the client opens himself up from the rants of the prosecutor that are often rambling and borders on abuse. then, the judge may have some questions.

My suggestion is the allocution. A  allocution is simply a statement made to by the client to the court. No help from the defense attorney. No cross examination by the prosecutor. It needs to express remorse if there is someone hurt .It needs to deal with the issues that the court may have concerns about such as alcohol and drug use. remember it is your story to tell on why the court should not send you to jail.

 

Over the last few days , I have been thinking about the inequalities in the Tennessee criminal justice system . Most cases are misdemeanor cases and can be resolved in General Sessions Court. However , you are not entitled to receive information about your case which is commonly known as discovery . Since the vast majority of criminal cases are resolved in General Sessions , folks are settling their cases without knowing what the state has or doesn’t have to prove you guilty .

If your case is in criminal court or circuit court , you can request the state to provide you discovery under Rule 16 of the Tennessee Rules of Criminal Procedure . Once you make your request you are entitled to the following;

  • The defendant’s oral statements
  • The defendant’s written or recorded statements.
  • The defendant’s prior record.
  • Documents and objects in the state’s possession,
  • Reports of examinations and tests.

 

 

In General Sessions Court, the state does not have to provide you with;

  • The video of the DUI arrest.
  • Your statements.
  • Any tests on drug cases.

 

A person has to make a decision that impacts their life forever. Everyday in General Sessions Courts plea bargain agreements are made without the information that is provided if you took your cased to the criminal court level. It is incumbent of the Tennessee Supreme Court to modify the rules of procedure to make the discovery rule applicable in general Sessions Court. If not , how can a citizen accused obtain effective assistance of counsel ?

There is no doubt that the video released by TMZ showed a frightening display of domestic violence by Ray Rice. The question is, why the change in policy by the NFL.  Mr. Rice admitted guilt, entered a plea, and accepted responsibility for his actions. The NFL suspended him for two games. Then, the full video was released and Mr. Rice was fired.  Should NFL players be treated differently?

First , I do not condone domestic  violence.  Domestic violence charges are a serious problem in our country and in our courts.

The criminal process works.  Mr. Rice and Ms. Janay  Palmer were both arrested for simple assault.  Later, the charge against Ms.Palmer was dismissed and more serious charges were brought against Ray Rice. A plea was entered. If the diversionary program is completed, Mr. Rice’s criminal record will be expunged.  Connecticut criminal defense lawyer Norm Pattis opined that the criminal court process worked but the NFL made a knee jerk reaction .

Under Tennessee law, Mr. Rice may have had the same result. In Tennessee, Mr. Rice would have been charged with aggravated assault. If he had no prior convictions, he would be eligible for judicial diversion under T.C.A. 40-35-313. Once Mr. Rice completed the terms of probation, which usually include domestic violence classes, he would be eligible to have it expunged from his record.

Was Ray Rice guilty of domestic violence?  Yes. Were his actions despicable? Yes. Did the NFL change position due to a public relations nightmare? Yes.

 

Last week I posted on Nashville’s domestic violence docket . I had a chance today to go observe the docket. Here are a couple of my observations:

  • The first court appearance is an initial appearance. No witnesses are subpoenaed. The purpose is to ascertain if you have a lawyer and to reschedule the court date. The time is too soon to determine if you have an attorney .I am hopeful the court gives more time for the citizen accused to hire an attorney.
  • A representative from the mayor’s office was in the courtroom. Why ? Mayor Dean announced a domestic violence report last year . One of the goals was to reduce the time between arrest and the first court date.
  •  Nashville Bar Association failed the members of the criminal defense bar.  It was my understanding that the NBA was contacted by the court to send a representative . No input was sought from the private criminal defense bar . Further there were no reports from the Nashville Bar association about what was being planned. It may be appropriate that another group be asked to have a seat at the table on criminal justice issues such as the Tennessee Association of Criminal Lawyers .
  • The courts may be open to change or tweak the system after a couple of docket cycles.

No one likes change , but change is good .However , change should be evolving . The new domestic violence docket just needs some fine tuning.

One last thought. The Nashville Criminal Law Report is journalism . It collects , edits news and sometimes gives commentary on the news .  It is protected  by the First Amendment

 

Starting on September 2 , 2014 , the domestic violence docket in Nashville General Sessions Courts  are undergoing some drastic changes. Mayor Dean issued a press release on some of the changes in August. Last night , I attended a meeting on the changes . Unfortunately , there is not a written protocol of the new process only some colored graph that will make your head spin. As I understand it , a person who is arrested for a domestic violence charge that makes bond will have a court date within days of their release. It was explained to me this is an appearance date to see if you have a lawyer. The case will be reset with the goal to have a court date within 30 days from arrest.

Here are some of my issues ;

  • There is not enough time for an accused citizen to research , interview , and hire a lawyer in that time frame.
  • Once the lawyer gets hired , there is not that much time to prepare for a preliminary hearing or trial.
  • The criminal justice system seems to be unfair to the citizen in having his or her day in court. It seems to me to be a rush to judgment.

Since ,  I am venting here are some other observations ;

  • The powers that be who set these wheels in motion had little input from the private criminal defense bar. In the future , I would hope the General Sessions Judges would include more folks at the table than the Mayor’s office , the Public Defender , and the District Attorney.
  • I am all in favor of having a place for the assistant district attorney generals to meet and interview witnesses , however the advocacy room might be a place to just park the witnesses. I know in past cases that I introduce myself to the complaining witness and they tell me what happened from their point of view.

 I may be chicken little and I hope that I am . People don’t like change but if it comes at diminishing the rights of the citizen accused of a crime with limited time to defend themselves I am against the new changes.

I will be in court on Monday and look forward to reporting on my experiences.