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Craig Garber pleaded guilty to a triple murder in Nashville,Tn. yesterday. Mr.Garber was facing the death penalty. Nashville’s District Attorney’s Office made the decision to offer a plea bargain agreement where Mr.Garber must  serve three consecutive life sentences.Mr.Garber will be eligible to get out in 153 years. There were several reasons why the District Attorney’s Office made the plea bargain offer.Swift punishment gives the family closure and avoids years of appeals.

 

Contrast the handling of this case compared to the Aurora ,Co shooting case. James Holmes offered to plead guilty to all these murders and accept a sentence of life without parole. The prosecutors in Aurora would not accept his plea offer. Now , the case is going to trial where the prosecutors will be seeking the death penalty. The case will drag on for years. Each court appearance will  remind all those of the tragedy. Houston lawyer Paul Kennedy posted on whether this decision is really serving justice. Is revenge the reason for going to trial on a death penalty ? Is the death penalty the right solution ? Mr.Holmes was ready to accept death in prison but the prosecutor did not to accept.

I would like to commend the Nashville District Attorney’s decision in this murder case. The prosecutors sought justice. Mr.Garber is going to die in prison. They sought relief for the family. The family agreed to the sentence.A death penalty case takes a life of its own with years of appeals which was avoided. I don’t always agree with the District Attorney’s Office on cases, but I do agree with how they handle death penalty cases. Death in prison is almost the same as the death penalty. The use of the death penalty should be substituted for life without parole.

A question that pops up over and over again is " Does a confidential informant have do tell me they are the police ? "  One can count on the police recording activity of illegal drug sales or interviewing suspects under criminal investigation . Secret recordings are one of the standard tools that police use every day.

 

Police have no legal duty to advise a suspect that they are recording their conversations.Both federal law and Tennessee state law does not prohibit a party to a conversation from taping the conversation. The legal theory is there is no expectation of privacy. It is different if the party being taped had an expectation of privacy. In one Tennessee case , the Tennessee Supreme Court threw out a taped statement made between a defendant and their family members that was secretly recorded.

If you are questioned by the police , you must assume you are being recorded . an investigation does not trigger  your rights under Miranda. Likewise, a police undercover officer or a confidential informant does not have to warn you before you sell or buy drugs from them. With today’s technology everybody has access to recording your phone calls.

I remember my father’s words when I got my first job working at Nashville’s courthouse."Son don’t say anything at that courthouse that you don’t want to read on the front page of the newspaper".

Tennessee House of Representatives member Vince Dean has sponsored HB 1293. HB 1293 as introduced creates the continuing offense of sexual abuse of a child which is committing three or more incidents of sexual abuse of a child over more than a 90 period or five incidents involving two or more victims within a 90 day period. It establishes venue and punishment. It was in committee last week and is it for a full vote next Tuesday.

The Tennessee District Attorney’s Conference is pushing the bill. I spoke to a ADA yesterday from outside of Davidson County about the bill. " You mean the Jerry Sandusky bill." One way to get a bill passed is to name it after one of the most despicable recent sexual predators. It gives the bill some appeal to be tough on sexual predators.

The bigger question does HB 1293 violate the Tennessee Constitution. Article I Section 9 provides ;

§ 9. Rights of accused

That in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of the County in which the crime shall have been committed, and shall not be compelled to give evidence against himself.

The bottom line is that a trial must occur in the county in which the crime occurred. The purpose of the bill is to try all allegations of a sex crime at the same time. It will create a abuse of the system. In muti-count indictments alleging different dates and different victims of sexual abuse, a lawyer may ask the court to sever the counts of the indictment or try the cases separately. Sometimes that does not lead to a fair trial. You know the old adage "where there is smoke there is fire". If a jury hears evidence of all kinds of victims and several instances of sexual conduct, it may lead to an unfair trial. This bill is an attempt to do an end run around Tennessee’s Constitutional protections of one accused of a crime.

One other part of the bill is that it allows , the DA to pick a venue or location of the trial. In a practical sense, the District Attorney can pick where the case will be tried. As any one knows , judges are different from county to county , it may lead to folks picking the venue that might be more favorable to the State of Tennessee. Then , that could lead to motions for change of venue.

All bills must contain a fiscal note or how much more it is going to cost the state. The number for this bill is set at $300,000.00 I would submit that it is just a fraction of the cost. There will be constitutional challenges to the law to determine if it is in fact constitutional, Long delays and motions to determine if the case is a continuing offense crime. Also, the price of incarceration will sky rocket.

Interested in learning more ? Here is a link to the bill. Our legislature is really worried on protecting gun ownership rights but weakens the right of one facing a criminal trial every session.

 

For some reason , I follow foreign  criminal trials. It always amazes me the difference between our criminal justice system and those around the world. Italians make great wine and fine clothes but the criminal justice system is noting like the American system.

 

Amanda Knox was convicted of murder in Italy.Then , Knox’s murder conviction was overturned by an Italian Appeals Court and she was even acquitted of the murder charges. Under the American system , her case would be over based upon double jeopardy . Double jeopardy is the legal principle contained in the Fifth Amendment. Double jeopardy means that no person shall twice put in jeopardy of life or limb for the same offense. In Tennessee , once she was acquitted it would be the end of the case. Jeopardy attaches when;

  1. The jury is sworn in at a jury trial.
  2. The first witness is sworn in at a bench trial.

In Italy , it is a different ball game. Once Knox was acquitted of killing Meredith Kercher, the Kercher family had a right to appeal to Italy’s highest court for an appeal which they did. Acquittal was set aside and Knox goes back to trial.

One thing is certain to me now more than ever. Our founding fathers knew what they were doing when they drew up the bill of rights. Let’s not shrink those protections that are given to those facing a criminal trial.

 

             

The Tennessee Supreme Court has decided to hear an appeal in a DUI case. The issue involves the Field Sobriety Tests. David Bell was stopped and he agreed to do some field sobriety tests to see if he was driving under the influence of alcohol. Mr.Bell passed all 6 tests.  Police  were still  not satisfied and arrested him for DUI and made him submit to a blood test which came back over the legal limit of .08.Later the trial court threw out the arrest because he passed the field sobriety tests which was upheld by the Tennessee Court of Appeals. I expect the Court to reverse the prior rulings.

First , the Court is eroding all citizen protections on search and seizure issues. While this case is not a true search and seizure issue under the Fourth Amendment , it does hold that the police should have some evidence in order to arrest someone. My guess is the Court will rule the bad driving and the smell of alcohol is enough to arrest. However , the question is the validity of the standardized field sobriety tests. Once one reads the studies , it does not determine if someone can operate a car safely of determine impaired driving, it only gives an officer some data if their blood test is over .08 BAC. Even then , the field sobriety tests have a huge margin of error.

So what should a citizen do if asked to do field sobriety tests ? Refuse them all. Your stopped for suspicion of DUI. Why give the police any evidence ? Field sobriety tests are voluntary. Exercise your rights. Stay tuned for the Court’s ruling.

New Mexico has some of the highest highway accident  death rates in the nation. In order to combat those death rates , the New Mexico State Legislature has proposed some laws that would ban the sale of alcohol to those convicted of driving under the Influence of alcohol.  State Legislatures constantly rework the DUI laws every session. It always looks good on your resume to be tough on crime and in particular drunk drivers. Will the proposed law work ?

First , the state would require a special license that would advise that one has been convicted of a DUI. Second, a bar , grocery store , or liquor store would not be allowed to sell that person alcohol, but first they would have to check the person’s ID. Will that happen every time ? Would happens to the bar or store that may miss a ID?  Here is one comment on the proposed law ;

“I don’t see this affecting the reduction of death and injury,” said Linda Atkinson, executive director of the D.W.I. Resource Center in Albuquerque, which has pushed for tougher drunken-driving laws. “A lot of times, you see bills that make logical sense, but can you really prohibit someone from purchasing alcohol?”

A advocate for tougher drunk driving laws does not even believe that the new law would be effective. If New Mexico passes this new law it will join Alaska in prohibiting the use of alcohol to those convicted of DUI. Compare these laws with Tennessee’s laws on bail bond conditions. Tennessee has some laws in effect that subject one to random drug screens which detect alcohol use.This bail bond condition is used in Nashville frequently. It seems to me  that New Mexico’s get tough on DUI is going to be expensive and tough to enforce.

 

  

Jody Arias is facing questioning by the jurors in her trial charging her with murder. I have not followed the case , however I got into a discussion about her being subjected to jury questioning . Ms. Arias has undergone two days of questioning from the jurors. Most questions have focused on why she did not call for help.Here are some examples of questions that she was asked ;

"Why were you afraid of the consequences if you killed Travis in self-defense?" asked one juror in a question read aloud by the judge.

"I believed it was not OK … to take someone’s life even if you were defending yourself," Arias replied softly.

"Why didn’t you call 911 to help Travis?" read another juror question.

"I was scared to call anyone," Arias said.

"Would you decide to tell the truth if you never got arrested?" another juror asked.

Arias paused briefly, thinking.

"I honestly don’t know the answer to that question," she said.

Ms.Arias may not have been questioned by the jurors if she was on trial in Tennessee. Arizona is one of the few states where jurors have a right to ask questions during a trial. Under the Tennessee Rules of Criminal Procedure , juror questioning is discretionary with the judge. Rule 24.01 of the Tennessee Rules of Criminal Procedure allows juror questioning in the discretion of the trial judge. Tennessee provides the questions must be reduced to writing  and shall be anonymous.The judge must then review the questions and shall consult with the parties on whether the questions should be asked.Based on my experience the use of juror questions is very limited in Tennessee. In Nashville , I am not aware of any criminal judge allowing jurors to ask questions due to a multitude of reasons. Just one look at the Arias trial and you know the Nashville judges are correct . Maybe it’s time to eliminate juror questioning in an effort for a fair trial.

 

I have always thought it was important to get the scouting report on a new judge , venue , or even the prosecutor before a trial just so you know what to expect.Here is today’s tip. Just because you have appeared before the judge that does not mean you are aware of his trial procedure. Recently , I got the change-up during a trial because I did not get the scouting report. The judge wanted both sides to give a opening statement before voir dire. In my career as a lawyer , I have never been asked to do the opening statement prior to jury selection. I hadn’t reviewed the scouting report because I felt comfortable with the judge . A good trial lawyer adapts and off I went. However , the question is should that be the practice.

So before you try a case with a judge that you have not appeared before get the scouting report. Call the clerk , call some local lawyers , or even call the judge’s staff . You need to know if a curve ball is coming .

Last week , I wrote a tip of the day about wiretaps. Now , I move on to criminal law trial tips. Granted , I have lost my fair share of cases , but we are always growing as a trial lawyer. Interviews , discovery and legal issues are just the tip of getting ready for trial. How do we get started ?

You must boil down the case to the basic premise. Remember we are in the world of Twitter and the judge telling us to move on. So faced with jurors and judges wanting to streamline the process, here is my suggestion;

1. Write down the top five things that the citizen wants to tell the judge or jury. Have you noticed I am not using the term client ?

2. The attorney must write down the five things he or she wants to tell the judge or jury. Warning they might not be the same.

3. Have the accused write down the five most dangerous things about the case .

4. The attorney must write down the five most dangerous things about the case

We boil down the case to these danger points and the points we want to make. It is a building block. We start a process of compressing the good and the bad so we can tell a story. Maybe our theme of the trial comes from this or our central defense. I recently tried this . We came up with five things the citizen wanted to tell the jury. The five topics were perfect because it made sense. It became like the chapters in a book but with names. So if you are the accused or the lawyer start your case with the seeds for the defense.

By the way , I hate using the term "My Client." Any suggestions ?

 The Nashville Tennessean  has been running a series of articles on the request for legal fees by the public guardian of Nashville . Jeanan Mills Stuart has billed her wards more than $1.1 million dollars from 2009 to 2011. Ms. Stuart bills $225 per hour for such tasks as going to a concert or lunch. The reason I mention this story is to highlight the contrast to those lawyers in the criminal justice system.  

Prosecutors do not get paid $225.00 per hour to prosecute violent criminals. In fact, one story about a prosecutor several years ago described her part time job on the weekends to pay her law school debt while she fought crime Monday thru Friday.. Same thing for the public defenders who defend those charged with crimes. Heck, they don’t even get to go to a concert at the symphony. Public defenders get to spend their time visiting folks in jail.

My biggest problem is those lawyers that are appointed by the court to represent people that are indigent. Compared to Ms. Stuart’s pay, they get $40.00 per hour out of court and $50.00 per hour in court. Sounds like great pay? WRONG. Overhead, an office, and a phone are basic office expenses that must be paid. The rate has not increased in years and there is a cap on fees in most cases with the exception of a death penalty case. Then once they submit a bill , the court reviews the bill and as well as the Administrative Office of the Courts.

Thanks Ms. Stuart for giving lawyers a bad name. Lawyers who work in the criminal justice system and truly care about what happens are not compensated for the value they bring. Here is my suggestion:

1. Increase the pay of those in the criminal justice system including assistant district attorneys and public defenders.

2. Increase the hourly rate for those lawyers appointed by the court.

The Tennessee Association for Criminal Defense Lawyers have filed a petition to increase rates for lawyers with the Supreme Court. It appears to be headed nowhere. Despite this, we read about a public guardian charging legal fees for routine tasks . I wonder what she would charge for a first degree murder charge? It is just a little tougher than going to the symphony.