One of the common issues that happens to me shortly before a criminal trial is the evidence dump. The assistant district attorney starts working their case and discovers evidence that was known or should have been known. In some cases, new evidence is turned over to the defense days before trial. It happens all the time. In my first murder case, my theory was that the decedent committed suicide. On the Friday before the trial at 4:00 P.M. the prosecutors disclosed the presence of suicidal ideations. The court refused to continue the case so I could review the medical records.

 

How to prevent the evidence dump ? File a motion. Under Rule 12(D)4 of the Tennessee Rules of Criminal Procedure , the court can order to disclose what evidence it intends to introduce during the trial. I have put in the order they must disclose the list of evidence 90 days prior to trial. The reason for the disclosure is to litigate it’s admissibility prior to trial. Just referencing what is provided in discovery is insufficient under State of Tennessee v. Giannini. I am now filing this motion when I file my request for discovery. all evidence should be disclosed in a timely fashion. The state must be held accountable. Here is the essence of the rule;

d) Notice by the State of the Intention to Use Evidence.

(1) At the State’s Discretion. At the arraignment or as soon afterward as practicable, the state may notify the defendant of its intent to use specified evidence at trial in order to afford the defendant an opportunity to object before trial under Rule 12(b)(2)(C).

(2) At the Defendant’s Request. At the arraignment or as soon afterward as practicable, in order to afford an opportunity to move to suppress evidence the defendant may request notice of the state’s intent to use (in its evidence in chief at trial) any evidence that the defendant may be entitled to discover under Rule 16, subject to any relevant limitations prescribed in Rule 16

I am putting a sample motion on my website www.RobMcKinneyLaw.com in the next few days.

Last night, I attended a panel discussion on criminal justice issues in Nashville, TN. The panel was hosted by the Davidson County Democratic Party. Judge Steve Dozier, District Attorney Glenn Funk, Sheriff Daron Hall, and Davidson County Juvenile Court Magistrate Carlton Lewis were a few of the panelists. Here is a few of the most pressing issues that were discussed.

  • Gun Violence and Youth

Everyday the news reports some episode of youths involved in gun violence. Is there a solution to the problem ? The Tennessee Legislature must accept some of the responsibility in the rise of gun violence. Every year the laws are modified to allow firearms in more places. There is no quick fix to stem the tide of gun violence according to the panelists. It is easier to obtain firearms. A general consensus is that all those under 30 have some type of firearm. Even those under 18 have firearms.

One proposal advocated by General Funk is to speed up the prosecution of felons possessing weapons. In the past, a firearm prosecution might be deferred to determine whether the Feds would take over the prosecution. Here is my proposal. Stop the source. Maybe we should crackdown on the sellers. Do an underage stings to see if a gun dealer will sell to a minor.

  • Bail Bond Reform

Bail bond reform should be addressed. Why ? Our current bail bond system is just another form of punishment imposed on those less fortunate. One problem preventing bail bond reform is the private bail bond system is firmly entrenched with supporters in the state legislature.

What’s the solution ?

Sheriff Hall spoke on expanding the scope of pretrial release. Pretrial release is a program run by the Davidson County to release citizens on their own recognizance. A fee of $35.00 is paid and they have to call in once a week. I would urge the pretrial release program to take all misdemeanor cases and Class e felony cases where the citizen lives in Middle Tennessee. General Funk discussed a proposal where bonds would be reviewed in certain cases where a person might be released without making bond.. My big complaint is the excessive  amount of the bail bond and the source hearing for nondrug offenses.

  • The Opioid Crisis.

The General Sessions Courts and the Criminal Courts in Davidson County have embraced drug treatment. Judge Norman is a pioneer in the creation of drug courts. The opioid epidemic is more problematic. While I was waiting for my hearing at the Tennessee Board of Nursing, one doctor testified it took at least 12 months to rewire the brain from opioid addiction. There is a glaring need for a dedicated half way house for those struggling with opioid addiction. One measure that needs to be reviewed is how courts deal with probation violations on a failed drug screen. There needs to be more alternatives rather than jail.

 

Nashville is facing problems in our criminal justice system. I am proud of our leaders for appearing at a public forum for a frank discussion of these very important issues.

The Tennessee Legislature passed a new sentencing bill in the last minutes of the legislative session. The proposed new law would establish a new enhancement factor for defendants who are aliens illegally or unlawfully in this country and who have previously been deported for a criminal offense. If the sentence cannot be agreed to by the district attorney and the defense attorney, the trial court will conduct a sentencing hearing to determine the manner and length of the sentence. One of the considerations is enhancements factors. The complete list of sentencing factors can be found here. The new law places an unfair burden on the judges of this state.

The Tennessean has reported  that similar types of laws have been declared unconstitutional. From a common sense perspective the law is a waste of taxpayer money solely in an attempt to make political capital at taxpayer expense. Here is a real life example. A person in this category once arrested would have a ICE hold on them. Meaning that once they got out of jail, they would be deported because they were once deported. Also, the Federal government could prosecute for illegal reentry. Illegal reentry has a maximum punishment up to 20 years.

Now, the Legislature wants to allow Tennessee judges to order the defendant to serve more time in Tennessee prisons before they are deported or prosecuted in the Federal courts. Guess who foots the bill ? Tennessee taxpayers. It is expensive to house inmates.. The bill’s fiscal note was for $500,000.00. It can’t possibly be this low of an amount.

The Tennessee Legislature passed a bill knowing it may be declared unconstitutional. Additional it costs Tennessee taxpayers. It seems it is okay to fight a gas tax to fix roads but it is fine to spend money to keep people in jail unnecessarily.

 

The bill awaits the Governor’s signature.

Plea bargains are how criminal cases are resolved today. Jed Rakoff wrote an article a few years ago on why innocent people plead guilty. Some statistics indicate that in 2013 97 % of all federal criminal cases were settled by a plea bargain agreement, In his article Mr. Rakoff discusses the evolution of the plea bargain agreement in resolving criminal cases. today’s post focuses on what happens if a judge does not accept a plea bargain agreement.

Last week, a Williamson County, Tennessee judge he announced he would no longer be accepting plea bargain agreements once the case was set for a jury trial. First, no criminal judge in Tennessee is bound to accept every plea bargain agreement. Under Rule 11 (c)(3)(A) of the Tennessee Rules of Criminal Procedure a trial court has the authority gives the trial court the authority to accept to accept or reject a plea agreement. In the Williamson County example, the court could be forcing the defendant to plea guilty as charged. However, The Court of Criminal  Appeals has held there was no abuse in discretion to reject a plea bargain agreement that came in after the plea deadline. See State v. Murphy. Here is a link to review the case.

If the court does reject the plea agreement, the court must comply with Rule 11(c)(5) of the Tennessee Rules of Criminal Procedure in advising the defendant of certain ramifications of the court’s rejection of the plea.

Next week more on plea bargains.

Driving under the influence (DUI) laws are a political football in Tennessee. Every session some state legislator tries to be the driving force to enact new DUI laws. Bills are drafted and proposed without any rhyme or reason. The bad DUI bill of this  session prohibits those of a DUI felony conviction from obtaining a restricted driver’s license in Tennessee.

A person can be convicted of a felony DUI if it is their fourth DUI conviction. Several years ago, the Tennessee State Legislature passed a bill allowing those with multiple DUI convictions including those convicted of a felony DUI to be able to get a restricted driver’s  license. The comment in the bill’s passage state it was for the public’s safety. It had a major catch. One had to install an ignition interlock device on one’s vehicle for the entire length of the suspension.

A DUI felony conviction carries an eight year loss of driver’s license. So a person had to install the ignition interlock for eight years. All lawmakers recognized that folks maybe driving without a license. To protect the public they put forth the requirement of the ignition interlock device had to be installed in order to get the license. From my conversations with prosecutors, the ignition interlock device reduces the recidivism rate of repeat offenders. one gets into the habit of monitoring their alcohol use. The car is unable to start with a blood alcohol concentration of .02 or higher with periodic testing while the vehicle in motion. 

Passage of this bill is a threat to public safety and an increase in spending. I predict folks will be driving without a license or ignition interlock devices.. who is at risk ? Secondly, more trials will take place. Why not take a chance at trial if you have nothing to lose. Tennessee Legislators need to take a hard look at this bill.

The Tennessee State Legislators have a host of new gun laws on the table to coin a phrase from a former UT football announcer John Ward. Most of the state legislators are good public servants until it involves guns. All of a sudden a crazed mob mentality takes over. One of the dumbest gun laws is to make a silencer legal in Tennessee.

Currently, it is illegal to posses, manufacture, transport, repair, or sell a silencer under T.C.A. 39-17-1302. It is a Class E felony and carries a full range of punishment of 1 to 6 years. A firearm silencer is defined as any device designed, made, or adapted to muffle the report of a firearm. Tilman Goins from Morristown, TN. has proposed the "Tennessee Hearing Protection Act" which would legalize silencers. It appears that the ear protection gear they sell at Bass Pro Shops is insufficient to protect one’s hearing. We must have silencers legalized to protect our weapon toting friends hearing.

I get the hearing issue. When I go duck hunting , I wear ear protection. Making silencers legal is a different issue. Silencers are used for one thing only. Silencers are used to hide the sound of a firearm. what comes to mind first ? Police officer safety is my main concern. getting a call of a robbery or burglary in progress and they might have a silencer. C’mon man.

Can we have a little common sense about whether silencers should be illegal, Where are the law enforcement folks on this issue. I want a head count of who thinks this is a great law or are the legislators being pushed around by the NRA.

It appears from the news accounts that U.S. Attorney General Jeff Sessions may have given untruthful testimony under oath before the U.S. Senate. What are the ramifications ? Let’s look what could happen to Mr. Sessions under Tennessee law.

First, Mr. Sessions committed aggravated perjury under Tennessee’s criminal laws. Perjury is defined in Tennessee as a false statement under oath during or in connection with an official proceeding. It is a Class D felony. After it was discovered that Mr. Sessions made a false statement under oath, he tried to fix it. Retraction is a defense to perjury under Tennessee law. However, the retraction must be made before the completion of the testimony at the official proceeding.

Let’s turn to his law license next. To be an attorney general one must be licensed to practice law. Recently, I appeared at the Tennessee Board of Law Examiners on whether a law school application contained an omission. Here, Mr. Sessions made a false statement to the U.S. Senate under oath. Under Tennessee’s rules of professional conduct, Mr. Sessions appears to have violated the rule that a lawyer shall not offer evidence the lawyer knows to be false.

The country’s top lawyer has now been caught red handed being untruthful. Can the country tolerate this type of behavior ? I think not. This reminds me of the old TV show " I Love Lucy" when Desi tells Lucy you got some explaining too do.

Steven Hale wrote an article in last week’s Nashville Scene on the Nashville Public Defenders Office overwhelming caseload. One visit to any of the criminal courtrooms in Nashville supports that conclusion. The article does a great job setting out the facts and the money issues. A hearing was held last year arguing a case should be dismissed based upon a denial of a speedy trial. The main focus of the motion was that public defenders were over worked and could not prepare the defense.The Nashville Public Defender was represented by three attorneys at the hearing. Ms. Deaner’s attorneys assert that the office should have 67 full time lawyers rather than the 44.5 full time attorneys on staff.

What should we do to solve the problem ? First, taxpayers are not thrilled that their tax dollars are being used to defend alleged criminals. The only real solution is to increase funding for the public defenders office. The Constitution demands us to fund indigent defense. I do not predict any relief from the state. It does appears that Nashville receives less per case that the state average. Since the government is not willing to step up to the plate, what else can be done ?

Effective January 1, 2017, the Nashville Public Defenders Office will not be accepting  misdemeanor criminal cases where the accused makes bond. Now the next question is what does that mean to the folks who don’t get a public defender ?

Misdemeanor cases are just as important as a felony charge. Collateral consequences occur with most convictions especially a DUI or domestic violence charge. So what happens when the public defenders refuse to accept a misdemeanor bond case ?

You get a court appointed lawyer. According to the article, it will be a crap shoot. The judge or the judge’s assistant will appoint a lawyer to your case. Here is an example in one case. Accused is screened by the public defender. A judge’s secretary hands the accused a card to call lawyer.  Remember every judge is different and each will have a different policy.

 The lawyer may be experienced or  fresh out of law school. May have never handled a case like yours before. No formal training on handling the defense of a DUI case. Once the case is over, the court appointed lawyer will not expunge your record if the case is dismissed. Just because you"re a lawyer does not automatically make you a criminal defense lawyer. The people who may suffer is the folks who can get out of jail but not able to get a lawyer. Also, folks might even decide to go without a lawyer and waive their right to a lawyer. Let’s see what happens in a couple of months.

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.

Just the other day someone asked me if the U.S. Constitution requires nine Supreme Court Justices. I did not know the answer so I looked it up. The short answer is the U.S. Constitution does not state the precise number of justices. The constitution gave Congress the power to decide the number of justice. Since The Judiciary Act of 1869, the number has been set at nine with no change. Is the Senate violating the Judiciary Act of 1869 by not acting on the vacancy created by Justice Scalia’s passing ? Is there a time limit or can the senate refuse to act on the vacancy ? I guess I will read the act in the next few days.