During the break between Christmas and New Year’s , I took my son to a baseball camp in Cleveland , Tn. At the workout there are some college coaches around while they work on some baseball skills. We had a little time before we headed back to Nashville . So , I signed him up  for a one on one lesson with Willie Bosque a scout from the San Diego Padres for a infield lesson . I watched for a little bit as he worked on a nuance of playing infield called the transfer . I got bored and started reading a book until I heard Willie talk about the four Rs’ My ears perked up.. It made sense to me and it immediately hit home after I talked to some new lawyers getting ready for their first court hearing. The rest of the week the posts will be about the four Rs’ and how they relate to a criminal  trial practice.

The First R is Relax.

Before you announce to the judge ready , cross examine the first witness , or voir dire the jury , the key is to relax . Take a deep breath. Gather yourself and your thoughts. There have been trials since Socrates .Here are ten thoughts on how to relax before your first hearing or trial :

  • Meditate. Find a quiet spot at home or somewhere else to gather your thoughts.
  • Breathe deeply.
  • Be present in the moment.
  • Reach out to friends or find a mentor.
  • Tune in to your body and mind.
  • Laugh. Laughter is great to relax.
  • Music. Listen to a song that pumps you up or relaxes you. I know of a lawyer who picks a theme song for every case. when he works on the case , he plays the song.
  • Move. Tale a walk. Hit the stairs in the courthouse.
  • Be grateful. You have a law degree. You are representing someone charged with a crime. You are there to help that person.

In sports there are all types of methods to relax. One is to waggle the golf club before you swing. It is a way for the body to tell the mind to get ready . I see one friend of mine doing little Tai-Chi moves in the hallway of the courthouse. Just find your way to relax.

If you are arrested for a criminal charge or DUI in Tennessee , you are entitled to have a preliminary hearing . A preliminary hearing is to determine whether there is probable cause that a crime has been committed. The key question is whether you should testify at that hearing in your defense.

 Last week is a prime example of what not to do. Mark Sevier was charged of stalking country music star John Rich.  Mr. Sevier took the stand at the preliminary hearing to testify. You can click the link to read some of the comments. During his testimony , Mr. Sevier alleged that the court was with the group of "pawns"  helping Rich get his revenge. Needless to say , it did not go well for him and his case was bound over to the Davidson County grand jury.

Here is the takeaway from this story. First , as a general rule you should never testify at a preliminary hearing Why ?

  • All of your statements are recorded.
  • It gives the government a chance to cross examine you.
  • The recorded statement can be used against you to impeach your testimony at trial .
  • The government will learn of your defense.
  • The burden of proof is lower at a preliminary hearing.

The bottom line is you should never testify at a preliminary hearing. It is your right to testify if you wish . My guess is Mr.Sevier testified against his lawyer’s advice. Look where that got him.

 

Here is Ed Ryan’s qualifications for judge. Mr.Ryan is running for General Sessions judge in Nashville Davidson County, Tennessee.

 Qualification to be a Judge in TN 1. Have spent your life devoted to the law and the courts it should be your passion. 2. Actually tried a case, trial, motions hearings. Argued your side of a case to a trier of fact. 3. Be able to see all sides of a case not be jaded from one side or another. Identify the issue apply the law correctly. 4. Be fair to all sides, listen! Don’t worry about moving a docket realize that this is the most important issue in these people lives no matter what side they are on or how big or small the case appears. 5. Be consistent and decisive. Why vote for Ed Ryan Division 9 General Session Court I have spent my entire adult life working in the judicial system. After graduating from Antioch High School I served my country in the U.S. Air force. I served as a security police officer and worked narcotics. Upon returning to Nashville I became a member of the Metro Nashville Police Department where I proudly served for sixteen years. While with MNPD I started in patrol in West Precinct, moved to the k-9 unit for 10 years. While working patrol and K-9, I went to school and obtained by AS and BS in Criminal Justice with a minor is psychology. I then attended the Nashville School of Law, graduated and was sworn in as an attorney in 1995. While an attorney with MNPD I was promoted to sergeant, worked in the legal division and taught law at the police academy. In 1997 I was offered a job as an Assistant District Attorney in Davidson County. I was a prosecutor for two years. While in the DA’s office I was the team leader in the vehicular crimes unit. I also worked in the trial courts handling cases from murder to theft. In 2000 I went into private practice. As a private practicing attorney I have handled cases in all levels of court, from family law, wills & estates, probate, conservatorships, civil litigation (plaintiff & defense), in both Circuit and General Session Court. I continued my practice in the criminal courts as a defense attorney representing people with a range of crimes from shoplifting to murder. I have argued to both the Court of Criminal Appeals and the Tennessee Supreme Court. I had the opportunity to be the first Environmental Court Referee in Davidson County serving from 2001-2006. I had the chance to sit as a judge and apply the law and facts to real people and their problems. I was able to see how important these matters were from the Governments side as well as that of the person charged. It was a great opportunity to see how being a fair and responsible judge was so important to the system. Even though not everyone wins you want to make sure people leave knowing that they had a chance to present their case and have a fair day in court. I have dedicated my entire life to the law in one aspect or another. I have worked to elevate my knowledge of the law and the courts to ensure I do the best job I can for my clients. I want to take my experience from the streets to the court house and continue to serve the people in Nashville and make sure when they come into my courtroom it is fair and just. I ask for your vote on May 6, 2014. www.EdRyanForJudge.com and www.facebook.com/EdRyanForJudge. Thank you

In May , voters across Tennessee will be going to the polls to cast their vote for their elected officials including judges . Most folks outside the court system know little if anything about the candidates for judicial office. In fact , there has been some discussion on social media recently about the qualifications that a candidate should have to be a judge.

It has been awhile since Tennesseans have voted for judge . So , I am offering a open invitation for all candidates for judicial offices to post their qualifications here at the Nashville Criminal Law Report. Here are the guidelines ;

  • A  summary of your qualifications should be send to me via email Rob@RobMcKinneylaw.com
  • It should not exceed 800 words. According to the research 800 words is the maximum someone will read on the Internet.
  • The article will be unedited.
  • It will contain a link to your website.
  • It will not be an endorsement .
  • I will publish your post via the blog and other forms of social media .
  • It is open to all judicial candidates in Nashville and surrounding counties.
  • I will not reject any post.
  • I will vet the post so that I know it came from the real candidate.

I look forward to receiving your posts . I know it is difficult voting for a judge . I have several good friends running and in some cases against each other.

 

I wonder if anyone will take me up . Good Luck to all candidates.

Judge Mark Bennett wrote a recent obituary on the fate of the American trial lawyer. I must agree with Judge Bennett’s comments. The American trial lawyer is now a memory from times long past or in the pages of a legal thriller from John Grisham or Michael Connelly . Why did the trial lawyer get placed on life support ?

There are several reasons according to Judge Bennett;

  • Mediation
  • Increased Costs of Litigation
  • Abusive Discovery

One key point that Judge Bennett mentions is the growth of the role of trial judges as litigation managers. The only trials are that are really being tried in Nashville , Tennessee are criminal trials.

Here is my challenge to those lawyers that still set foot in the courtroom for things other than a plea bargain agreement where you beg and grovel with the DA for a little scrap of justice . Let’s say "Your Honor this case is for a jury trial." Let’s talk to the jurors about their feelings on the case in jury selection. Tell the story of the case. Do not let the American trial lawyer die . All it needs is a little CPR.

From the Jury Room , the question is whether a older juror is more likely to vote for a conviction in a criminal case ? Unfortunately the answer is yes. A study was conducted in Florida in which 700 felony trials were analyzed . From the data , it appears that the elderly are more likely to convict a person of a crime . Here is a potion of the finding;

When the average age of the jury pool is greater than 50 years, there is a 79% conviction rate.

When the average age of the jury pool is less than 50 years, there is a conviction rate of only 68% (and yes, those differences are statistically significant).

 In other words, the older juror is more likely to convict. Conviction rates, say the authors, rise 1% with each year of increase in the average age of a jury. Specifically, “if a male defendant, completely by chance faces a jury pool that has an average age above 50, he is [snip] more likely to be convicted than if he faces a jury pool with an average age less than 50”.

I have known lawyers to select jurors on all  type of factors such as who listens to Rush Limbaugh or what type of bumper sticker you have on your care. I did not put much faith in these generalizations . The question is what fears do older jurors have . How do address those. Please keep in mind this information. Use it and deal with the data.  Remember to always deal with your danger points of your case. Now you just added one if your aggregate jury pool is over 50.

Thanks again to Keene Trial Consulting for the post.

Yesterday’s post was my modest proposal for Governor Haslam to commute all those on death row to a sentence of life without parole instead of the death penalty. The Tennessee Administrative Office of the Courts contacted me today with the cost of court appointed lawyers defending those facing the death penalty.

The cost to Tennessee taxpayers for the 2011-2012 fiscal year was $1,527,383.03.

Here is what that number does not include;

  • It does not include post conviction proceedings which are handled by the Post Conviction Defender.
  • The extra incurred cost by the prosecutor’s office.
  • The cost incurred in the federal court system.

There are other various costs of the death penalty. It is just food for thought. 

 

Lt. Governor Ron Ramsey made the news when he called for Tennessee to start executing those on death row. 79 people are on death row in Tennessee. Tennessee has not executed anyone in years. Delays are numerous as the appeals process is long and hard. With the delays , the victim’s families play the waiting game of will they or won’t they.

My modest proposal is stop all these appeals and delays and ask Governor Haslam to commute all 79 folks on death row sentences to life without parole. It basically means that they will die in prison. Why should the government commute death penalty sentence ?

According to the Death Penalty Information Center , executions are down in America . In fact , Texas which kills more folks than anybody are adopting life sentences without parole which is a major factor in the decline.

My request is more pragmatic for two reasons. First , the appeals would end. The fight over the right mix of drugs to kill someone would end . I tried to contact Tennessee’s Administrative Office of the Courts to get the amount taxpayers spend on indigent defense in death penalty cases went unanswered . After being transferred to several people , I got dumped into voice mail. I guess nobody knows what Tennessee taxpayers spend on the death penalty. Second , it is closure for the families of the victims. Thank God I have never experienced their pain of loss over a loved one , but to relive that those moments time and time again with appeals and delayed execution dates. At least with life without parole means the person convicted will die in prison.

 

My modest proposal is first commute all death sentences in Tennessee to life without parole. Then , hope the Tennessee Legislature closely examines whether Tennessee should still be putting folks to death. Only 32 states have the death penalty on the books. Is it Time Tennessee joins the list ?

Last week , a young lawyer had a first court appearance . Fear seeped in after years of college and law school . Uncertainty was the mood of the day . Few law schools truly prepare a lawyer for their first court appearance . I was lucky. I clerked for a Nashville trial judge and felt comfortable in the court room from day one . My first words were stay calm . No one knows it is your first time but you. I thought about the issue and asked the question on Twitter asking for more feedback . Here are some of the responses ;

 

  • From David Anthony , Get there early , stay off your I-phone and watch other lawyers was his tips.
  • From Steven Waterkotte ,  Be confident, don’t be afraid to ask questions, and know they every lawyer in the courtroom was once in your position.
  • From Jason Lamm  , Be prepared and breathe .
  • From Josh Lee ,  Go watch that court in action at least once ahead of time. It makes a huge difference.

All the tips were great . I believe in being real. if you have to , let the court know it is your first court appearance . I once told the jury in voir dire it was my first jury trial. When the jury came back , the foreman winked at me and the not guilty verdict was announced. My tip is be real. I  I really like Josh Lee’s comment. Most sports teams do a scouting report on the opposing team. Why not go to the court room and check out the judge .See the court room. imagine being at the podium. All the comments were on the money.

Here are my thoughts ;

1. Get the scouting report on the court , your opponent and the key issue of the case.

2. On the ride to the court house , visualize your argument or examination of the witness.

3.Don’t be afraid to ask another lawyer . Heck , ask them to be your mentor. I still have one that I go to for advice.

4.Be Real . Be yourself . No lawyer tricks. Just your argument  and your feelings on why you should win.

I know it is scary when you step into that courtroom for the first time and your case is called. Stand up announce yourself and have no fear.

 

I have never figured out who reads this blog. I think mostly criminal defense lawyers and a few prosecutors. In that vein, I am starting a new feature that will be posted on Mondays. It will be the criminal law tip of the week. I just hope I have a tip each week.

My first tip is procedural questions during a motion to suppress evidence. Sometimes you need to put your client on the witness on the stand to prove some fact. Some trial judges believe that the defendant/client needs to testify in certain cases to rebut the police officer’s testimony .

For example, how does one rebut testimony of serving without a video? The answer is simple, put the client or other folks in the car to rebut the officer’s testimony. How do you protect your client from testifying about other issues?

Rule 104(d) of the Tennessee Rules of Evidence provides as follows:  "The accused does not by testifying upon a preliminary matter become subject to cross-examination as to other issues in the case." The accused can testify as to the traffic stop or other matters. Warning: Operate with extreme care if you put a client on at a bond hearing. One of the factors is the likelihood of conviction. It might be fair game for an inquiry by the prosecutor. I very rarely, if ever, put a client on the stand for a bond reduction hearing.

Further, the pre-trial testimony cannot be used at trial according to Tennessee case law. Whether the testimony can be used for impeachment purposes is not clear.

The takeaway point is consider putting the accused on the witness stand for search warrant issues, traffic stops and other matters without the risk of exposing your client to the risk of a wide open cross-examination.