Recently , there has been some discussions among Tennessee criminal defense lawyers about a motion that has been filed by a Tennessee prosecutor. An Assistant District Attorney has filed a motion in limine to preclude the defense attorney from referring to the state’s attorney as " The Government’ during trial. The motion asserts that referring to the Assistant District Attorney as the government is derogatory , oppressive , and will inflame the jury. So the government does not want to be called the government . No statute or any authority was cited in the motion.

I find this motion a little hard to swallow. District Attorneys use words to paint their picture . Words like defendant , victim , and even criminal defense attorneys strike some reaction among juries.

What does the Assistant District Attorney want to be called ? General , Assistant District Attorney General , by their last name , or simply the State of Tennessee are their suggestions. Interestingly , Tennessee has a tradition of calling Assistant District Attorney  "Generals" for some historical reason tha tis unknown to myself. Surely , this inflames a jury to give them more credibility by giving them a army rank.

Here is my suggestion for truth in labeling during a criminal trial;

  • Victim =  Mr. or Ms._____
  • Defendant =  Mr. or Ms.____
  • State’s Attorney = Mr. or Ms.______
  • Criminal Defense Attorney = Mr. or Ms. _____

Once we put labels on people such as Republican or Democrat , folks already start judging. I have to admit that I call the state the government during trial because the assistant district attorney represents the state which is the government.

Here is my final suggestion let’s just call the state the evil empire.

 

The Tennessee Supreme Court has grant permission to appeal in two Driving Under the Influence (DUI) cases. The court has granted the appeals to test what are the limits a trial court has to dismiss DUI cases. The two cases to be on the watch for are St. of Tennessee v. Bell and State of Tennessee v. Merriman.

In St. v. Bell , Mr. Bell passed the field sobriety tests with flying colors. In fact, the court stated he did "pretty dog-gone good."  After Mr.Bell passed the field sobriety tests , the police asked him to submit to a blood alcohol test. Mr. Bell should have decided just to do  the field sobriety test. Mr.Bell was arrested. The court dismissed the DUI charge. State appealed. The ruling was affirmed by the Court of Criminal Appeals. The issue is can a trial court dismiss a DUI case for lack of probable cause. Under The Tennessee Rules of Criminal Procedure, there is no procedure to file a motion to dismiss for lack of probable cause. a defendant can only file a Rule 12 motion to dismiss. Nashville Lawyer David Raybin writes a hot list of cases. Ben Raybin predicts that the case will be affirmed. I hope it will be affirmed.However , I see the court reversing the decision. Field Sobriety tests are not the end all be all of any DUI case.It is just one part of the evidence. I expect the court rule that a jury should decide.

In State of Tennessee v. Merriman , the Court of Criminal Appeals upheld a dismissal of a DUI case in Warren County Circuit Court. The police lost a DUI video.The court  dismissed the case. In this case i agree with Mr.Raybin. There should be some harsh remedies for the loss of destruction of evidence especially videotape evidence. Violations of the discovery rules should be dealt with accordingly. If a suspect destroys evidence , they are charged with tampering with evidence. The sword of justice should come down as hard on the police who lose evidence.

Stay tuned to these two important cases before the Tennessee Supreme Court.

One thing that I can’t stress enough is if you are under investigation by the police . you need to keep your mouth shut. I repeat. Do not answer any questions. You can look to many cases that support my point.

First,Jody Arias denies knowing anything about the murder . Then, blames it on masked gunmen . Later , she states it was self defense. Three stories she told. Three inconsistent statements she told police. Now facing the death penalty.

The average DUI case is another example. "Sir, Have you had anything to drink tonight." The answer of two gets you a ride to the police station where you are facing a DUI charge.

Some police departments use hidden digital recorders to tape every conversation without one’s knowledge. In a recent case I handled the Hendersonville Police Department Detectives taped every conversation.

Why does one facing criminal charges feel the need to speak with police before they call a lawyer ? Some people believe they can talk themselves out of trouble. Wrong.  Most detectives have been trained on interrogation techniques to get a confession or some statements that don’t add up. Police will use some information or create an impression that they know more than they are admitting to get a statement.

You think Jody Arias wished she would have kept her mouth shut now ?

 

 

Seth Godin wrote a great blog post about river guides. The post hit home since I went down the Colorado River on a raft trip last year. Mr. Godin talks about a river guide piloting a dory down Lava Falls. Lava Falls is one of the best rapids in the Grand Canyon. It takes great skill , experience , and knowledge to get past the rapids. Why ? The water is always changing. The flow might be different. Rapids move. A river guide has but one goal.Get the boat to the end of the river.

Knowledge of the river much like the knowledge and experience of a DUI lawyer is critical. While the cases are much the same , each case is different .Different judges, assistant district attorneys, and different facts chart a different course for each case. An experienced lawyer may be able to guide you out of danger. Mr.Godin writes that the practice of being a great guide is choosing the right tactic, the ability to hold the tiller with confidence but not locking into it. A great criminal defense lawyer does much the same thing. Pick a single defense not a shotgun approach , stay true to the defense , but not lock into the defense if something changes.

A young reckless pilot might get lucky one time or the lawyer that always plea bargains might get lucky. Like the attorney this week that wondered why his case got reduced. The lawyer had no clue that forced blood draws are under attack based on a recent U.S.Supreme Court case. The lawyer got lucky on the kindness of a assistant district attorney. I wonder who he might have plead guilty that had a valid defense.

The key is if your facing a criminal conviction that has life long consequences , you want the best pilot you can get to get you down the river safely.

 

By the way , the image is of a dory heading down Lava Falls.

Last week , I tried a week long first degree murder case and aggravated child abuse case in Gallatin , Tennessee. We were blessed with a good result. The trial tip of the day is very simple.Gallatin is about a forty minute drive from Nashville. A hour plus is burned up in travel time. The case had a lot of witnesses and some complex medical issues. During a trial you are burning the midnight oil. How do you ease the time restraints.

Easy. Book a hotel room. Case ended around five each day. Back to the hotel room to rest for a bit and make some last minute preparations for the nest day. No family distractions either. Rise and shine early the next day and preparing again and no worries about traffic. I know it sounds simple but just the ease of staying close by the courthouse allowed me to really focus on what is important. If you have a case out of town , consider a hotel room. Here is my motto. Have case will travel as long as there is a hotel close .

Someone asked me today to get some documents so we could review a case.The problem is under Tennessee law, you are not entitled to anything to discover what evidence the State of Tennessee has in it’s possession.

Here is a short list of what you don’t get;

  1. No video evidence.
  2. No arrest reports.
  3. No witness statements.
  4. No field sobriety testing reports.
  5. No motion of discovery.
  6. Taped confessions.

The list goes on. In fact , Rule 16 of the Tennessee Rules of Criminal Procedure does not apply in General Sessions Courts in Tennessee. Why ? Because the rule makers say so.

What are you entitled to get ? You only get what you can get yourself. Most attorneys get the warrant. One can get the arrest warrant because it is a public record.

The question is how can one decide to settle ones case with limited information. Is it time to have some basic information disclosed at the General Sessions Court level ?

 

This is my second post this week on " Hiring a Criminal Defense Lawyer." Today’s post is inspired by Lee Rosen a North Carolina divorce attorney who writes a blog called "Divorce Discourse." In his latest post , he writes about 9 reasons to keep your office plants alive. It was a great post. It made me think what a dead plant reaaly shows and it is also important in hiring a lawyer. So , there are four reasons to look at dead plants when hiring a lawyer and what the dead plant might say.

  1. Dead plants make you seem incompetent . If you can’t keep a plant alive , can you save someone from jail or a criminal conviction.
  2. Dead plants say you don’t pay attention to details. Details make a difference in a criminal case. Can the state prove all the facts. Attention in the details.
  3. Dead plants say neglect.No water or no light mean dead plants. A criminal file needs to be tended as well and looked at more than the court date.
  4. Dead plants say you don’t care. A dead plant says I don’t care enough to put you out of your misery. You must care what happens to those you represent.

Thanks to Lee Rosen for the advice. Some of my readers are criminal defense lawyers. I would highly recommend checking out his blog for advice and tips you can use in your criminal practice.

By the way , I checked out my two plants. Alive and well. You can check out the picture on Twitter. Follow me on Twitter @RobMcKinney .

One common myth about hiring a criminal defense lawyer is one should hire a former prosecutor. This statement is what it means it is only a myth. Past experience as a prosecutor does not equal the experience necessary to be an effective criminal defense lawyer. The skill set is completely different. From plea bargaining , motion practice , and trials , the skills are completely different. One of the biggest skill differences is cross examination.

Having a former prosecutor as your attorney only assures you that your attorney can put someone in jail not keep one from going to jail. Some folks choose to become a criminal defense lawyer for several reasons. Helping people , protecting against unfair charges, and defending the Constitution are a few of the common reasons. Some former prosecutors change sides for the the wrong reason.Money.

So check their track record in defending folks.

The United States Supreme Court ruled  that forced blood draws are not valid based upon the fact that alcohol may dissipate over time. Missouri argued for a per se rule that all forced blood results are valid based upon the exigency of the circumstances.

Missouri unsuccessfully argued that alcohol dissipates over time, therefore this meets the exception to the search warrant requirement. Does this mean all forced blood draws are invalid ?No. The U.S.Supreme Court rules it was fact specific and should be looked at in a case by case basis.

The big question is how does this ruling effect the forced blood draws in multiple DUI cases in Tennessee. In Tennessee , the police are given a statutory right to take a accused blood sample if they have a prior DUI conviction. My opinion is that T.C.A. 55-10-406(f)2 is unconstitutional. T.C.A. 55-10-406(f)2 allows police to make a accused submit to a  mandatory blood test for alcohol.Currently , I have filed a motion that has been under advisement pending the McNeely ruling.

Want to read a copy of the McNeeley opinion ? Here is the link .

Every DUI case in Nashville , Tennessee and every where else in Middle Tennessee is being delayed by the blood alcohol tests. Once a person submits to a blood alcohol test , the sample is send to one of three forensic labs run by the Tennessee Bureau of Investigation. According to a memo send to the Administrative Office of the Courts , the turn around time on blood alcohol tests is about six weeks. I am guessing that is six weeks from receipt of the sample. The real problem is in the testing for drugs.

The Tennessee Bureau of Investigation first runs a test for alcohol.Currently,the testing of the sample is complete if the results are .08 BAC or higher. If the sample is less than .08 BAC , the sample is retested if requested by the arresting officer. According to the March memo , there is a 32 week turnaround time for a drug toxicology report performed by the Nashville lab. Why a 32 week delay ? Where does the blood sample sit for the 32 weeks ? What about the chain of custody ? Are you being denied a speedy trial ? Under severe bond conditions ? There are a host of problems that are caused by the delay.

 

Here is the big question. Due to the pressure to get these test results out , are the labs now taking short cuts ? Let’s hope not .