I gave across a blog post by my friend Bruce Kessler who is a DUI lawyer from Florida. Bruce wrote about sitting in a courtroom on a Friday watching a trial of no major significance. His purpose was to watch the lawyers. The prosecuting lawyers were new and he was not familiar with them or their styles. So he took the time to scout his opponents much like a football coach watches film.

Here are a couple of ideas for those facing a criminal charge;

  • Go to court before your first court date. Look around and get a feel for the process.
  • Go to the court room of the judge that is hearing your case and see how they run their court room.
  • Going to trial ? Ask your lawyer when that DA is trying a case ?Then watch them cross examine a witness. You then will discover what is coming .

For criminal defense lawyers;

  • Ask around and get some transcripts of the DA that you are facing.
  • Ask your fellow defense lawyers about the DA.
  • Watch portions of a trial and get a feel of what questions the DA is going to ask or how he presents his or her proof.

Preparing your case is more than understanding the facts from one point of view. You must be open to knowing who the cast of characters are in the play that is called a trial.

 

America must do something to end the weekly news reports of some horrific mass shooting. Our bedrock was shock with the tragedy of the shootings at Sandy Hook. I ran across a letter from  Federal Judge Larry Alan Burns who presided over the case of the Tuscon shooting. Before I share his article in full , I must admit I am a gun owner . I believe in the Second amendment , but the founding fathers only knew of a musket that was fired slowly not a bushmaster. So here is the judge’s proposal ;

 

 

A conservative case for an assault weapons ban

By Larry Alan Burns

December 20, 2012

Last month, I sentenced Jared Lee Loughner to seven consecutive life terms plus 140 years in federal prison for his shooting rampage in Tucson. That tragedy left six people dead, more than twice that number injured and a community shaken to its core.

Loughner deserved his punishment. But during the sentencing, I also questioned the social utility of high-capacity magazines like the one that fed his Glock. And I lamented the expiration of the federal assault weapons ban in 2004, which prohibited the manufacture and importation of certain particularly deadly guns, as well as magazines that can hold more than 10 rounds of ammunition.

The ban wasn’t all that stringent — if you already owned a banned gun or high-capacity magazine you could keep it, and you could sell it to someone else — but at least it was something.

And it says something that half of the nation’s deadliest shootings occurred after the ban expired, including the massacre at Sandy Hook Elementary in Newtown, Conn. It also says something that it has not even been two years since Loughner’s rampage, and already six mass shootings have been deadlier.

I am not a social scientist, and I know that very smart ones are divided on what to do about gun violence. But reasonable, good-faith debates have boundaries, and in the debate about guns, a high-capacity magazine has always seemed to me beyond them.

Bystanders got to Loughner and subdued him only after he emptied one 31-round magazine and was trying to load another. Adam Lanza, the Newtown shooter, chose as his primary weapon a semiautomatic rifle with 30-round magazines. And we don’t even bother to call the 100-rounder that James Holmes is accused of emptying in an Aurora, Colo., movie theater a magazine — it is a drum. How is this not an argument for regulating the number of rounds a gun can fire?

I get it. Someone bent on mass murder who has only a 10-round magazine or revolvers at his disposal probably is not going to abandon his plan and instead try to talk his problems out. But we might be able to take the "mass" out of "mass shooting," or at least make the perpetrator’s job a bit harder.

To guarantee that there would never be another Tucson or Sandy Hook, we would probably have to make it a capital offense to so much as look at a gun. And that would create serious 2nd Amendment, 8th Amendment and logistical problems.

So what’s the alternative? Bring back the assault weapons ban, and bring it back with some teeth this time. Ban the manufacture, importation, sale, transfer and possession of both assault weapons and high-capacity magazines. Don’t let people who already have them keep them. Don’t let ones that have already been manufactured stay on the market. I don’t care whether it’s called gun control or a gun ban. I’m for it.

I say all of this as a gun owner. I say it as a conservative who was appointed to the federal bench by a Republican president. I say it as someone who prefers Fox News to MSNBC, and National Review Online to the Daily Kos. I say it as someone who thinks the Supreme Court got it right in District of Columbia vs. Heller, when it held that the 2nd Amendment gives us the right to possess guns for self-defense. (That’s why I have mine.) I say it as someone who, generally speaking, is not a big fan of the regulatory state.

I even say it as someone whose feelings about the NRA mirror the left’s feelings about Planned Parenthood: It has a useful advocacy function in our deliberative democracy, and much of what it does should not be controversial at all.

And I say it, finally, mindful of the arguments on the other side, at least as I understand them: that a high-capacity magazine is not that different from multiple smaller-capacity magazines; and that if we ban assault weapons and high-capacity magazines one day, there’s a danger we would ban guns altogether the next, and your life might depend on you having one.

But if we can’t find a way to draw sensible lines with guns that balance individual rights and the public interest, we may as well call the American experiment in democracy a failure.

There is just no reason civilians need to own assault weapons and high-capacity magazines. Gun enthusiasts can still have their venison chili, shoot for sport and competition, and make a home invader flee for his life without pretending they are a part of the SEAL team that took out Osama bin Laden.

It speaks horribly of the public discourse in this country that talking about gun reform in the wake of a mass shooting is regarded as inappropriate or as politicizing the tragedy. But such a conversation is political only to those who are ideologically predisposed to see regulation of any kind as the creep of tyranny. And it is inappropriate only to those delusional enough to believe it would disrespect the victims of gun violence to do anything other than sit around and mourn their passing. Mourning is important, but so is decisive action.

Congress must reinstate and toughen the ban on assault weapons and high-capacity magazines.

Larry Alan Burns is a federal district judge in San Diego

A friend of mine forwarded the DUI sobriety checkpoints for Williamson County for this holiday season. Don’t worry. The police are supposed to publish the checkpoint locations and times. Here is the schedule ;

Sobriety Roadside Safety Checkpoints
 
      The Williamson County Sheriff’s Office along with other jurisdictions will be conducting sobriety roadside safety checkpoints on the following dates and times:  
 
      Thursday, December 20, 2012         11 p.m. to 1 a.m.       Highway 31 South
 
      Friday, December 21, 2012              10 p.m. to midnight    Highway 100
 
      Thursday, December 27, 2012           7 p.m. to 9 p.m.       Highway 96 East
 
      Friday, December 28, 2012                9 p.m. to 11 p.m.     Highway 431
 
      Monday, December 31, 2012           11 p.m. to 1 p.m.       Carothers Parkway         
 
 
     The Williamson County Sheriff’s Office recognizes that sobriety checkpoints are highly visible and effective tools in the battle against impaired driving.  Extra  deputies will also be on patrol throughout the county on those nights looking for impaired drivers.
 
     These sobriety checkpoints are funded by grant money from the Governor’s Highway Safety Office.       
     
 
                                                              ###
 
     For more information contact Sharon Puckett, Public Information Administrator, Williamson County Sheriff’s Office at (615) 440-3310.  

If you want more information on Tennessee sobriety checkpoints here is a link to a video on the subject.

Appealing a sentence or the denial of probation just got tougher under Tennessee law. In years past , the Court of Criminal Appeals and the Tennessee Supreme Court would review a sentence or the denial of probation based upon a standard of review referred to as de novo based with a presumption of correctness. In two recent cases , that standard of review has now been replaced with a abuse of discretion standard.

In State of Tennessee v. Bise , the Tennessee Supreme Court , the court held that "sentences imposed by the trial court within the appropriate statutory range are to be reviewed under an abuse of discretion standard with a presumption of reasonableness."

In State of Tennessee v. Caudle , that same standard was extended to the issue on the granting of probation.

The court’s decision robs an accused of any appellate review of his or her sentence. Now , some judges may impose any punishment they desire as long as it is in the range of punishment. Appellate review of a sentence was one check on the whim of a trial court in imposing a sentence or the denial of probation. It is sad the courts have declined to exercise their oversight of the trial courts. Justice and sentencing will vary on a judge to judge basis.

Yet again , the Tennessee Supreme Court tramples on the rights of a citizen accused and those convicted of a crime.

The Transportation Security Administration has found over 1105 guns this year as of September 2012. Why the rise ? First , there has been a sharp rise in gun sales.Secondly , more states have enacted right to carry laws which make it easier to carry a firearm. Most of the weapon charges at Nashville’s airport involve a person with a carry permit who forgets they have a gun in a briefcase or a purse. Most of these cases are not intentional.

In most cases, a person is rushing to make a flight and forgets they have a gun in a bag or briefcase. Usually , the F.B.I. is not notified . The gun charges are then handled by the local police. Here is a comment by a T.S.A. official;

“All we’re permitted to do is confiscate the weapon and call law enforcement agents, who then will take custody of it and determine whether or not you’re arrested,” said Mr. Castelveter, who is part of the security agency’s effort to notify local news media to aggressively publicize reports of guns and other prohibited weapons being found at checkpoints.

Here is what happens. T.S.A. will contact the Nashville Airport Police or Metro Nashville Police. Local police will then seize the gun and issue you a criminal citation for illegal possession of a firearm. A criminal citation is like a traffic ticket but it is a criminal charge . You will have to go to court to fight the charges.

In every case that I have handled so far , the gun or weapon charge has been dismissed. One key fact is whether you had a carry permit at the time of the criminal offense. Now , you might have to forfeit the gun and you may get a notice of a fine from the T.S.A.

The bottom line is when you go to the airport check your bags to make sure you are not carrying a gun. Also , you are allowed to travel with a firearm as long as it is checked , the airline notified , and it is in a hard locked case. Check out the T.S.A blog for more details

One of the biggest issues before the Tennessee Legislature is the issue of electing our appellate and Supreme Court judges. Should Tennesseans elect their Supreme Court by popular vote? Years ago, Tennessee adopted the modified Missouri Plan. Appellate judges and the members of the Tennessee Supreme Court are appointed by the Governor and are retained by a yes or no vote. This plan also applies to the Tennessee Court of Appeals and the Tennessee Court of Criminal Appeals. General Sessions judges and Circuit Court judges are elected by popular vote. A big push is on to elect all judges.

Changing our method of selecting Supreme Court judges would be a disaster. Look around the country at the spending in these judicial races. In Michigan’s Supreme Court race, the candidates raised 3.2 million dollars to run. However, 15 million was spent on TV ads with 75% to undisclosed special interest groups. One ad attacked a respected judge for work she did as a lawyer.

As a result of the United States Supreme Court’s ruling in Citizens United, the floodgates are wide open on special interest groups buying an election. We have already witnessed it in a House race where the NRA did not like a Republican representative’s view on a gun law. Elections can be bought and sold. Should it also apply to the courthouse? A courthouse is where any citizen should have equal footing against the government in a criminal case or a big corporation that has done wrong (like BP Oil in the Gulf Oil Spill).

The system now in place has its problems. It will only spiral out of control and a loss of public trust if a popular election of Supreme Court judges is put in place. So if the judge is supported by some organization in his or her election, should that judge recuse themselves?

 

 

The justice system is too important to our stability as a nation. It should be protected. The rule of law sets our country apart from others. Do we want justice like China? Do we as Americans want our day in court with a fair playing ground?

Aisha

On Nov 20, 2012, at 4:38 PM, "Rob McKinney" <rob@robmckinneylaw.com<mailto:rob@robmckinneylaw.com>> wrote:

 

One of the biggest issues before the Tennessee Legislature is the issue of electing our appellate and Supreme Court judges. Should Tennesseans elect their Supreme Court by popular vote ? Years ago , Tennessee adopted the modified Missouri Plan. Appellate judges and the members of the Tennessee Supreme Court are appointed by the Governor and are retained by a yes or no vote. This plan also applies to the Tennessee court of Appeals and the Tennessee Court of Criminal Appeals. General Sessions Judges and Circuit Court Judges are elected by popular vote. A big push is on to elect all judges.

Changing our method of selecting Supreme Court Judges would be a disaster. look around the country on spending in these judicial races.In Michigan’s Supreme Court race , the candidates raised 3.2 million dollars to run. However , 15 million was spent on TV ads with 75% to undisclosed special interest groups. One ad attacked a respected judge for work she did as a lawyer.

As a result of the United States Supreme Court’s ruling in Citizens United , the floodgates are wide open on special interest groups buying an election. We have already witnessed it in a House race where the NRA did not like a Republican representative’s view on a gun law. elections can be bought and sold . Should it also apply to the courthouse. a courthouse is where any citizen should have equal footing against the government in a criminal case or a big corporation that has done wrong like BP Oil in the Gulf Oil Spill.

The system now in place has its problems. It will only spiral out of control and a loss of public trust if a popular election of Supreme Court Judges is put in place. So if the Judge is supported by some organization in his or her election , should that judge recuse themselves

 

 

The justice system is too important to our stability as a nation. It should be protected. The rule of law sets our country apart from others. Do we want justice like China ? Do we as Americans want our day in court with a fair playing ground.

 

California has over 74,000 people on the sex offender registry. Every year that passes more restrictions are put into place on those on the sex offender registry. California passed a new referendum that would require those on the sex offender registry to  provide authorities their email addresses , user names , screen names , and Internet handles as well as to report any changes to those within 24 hours.

The American Civil Liberties Union has filed suit to prohibit the new law from going into effect on Firs Amendment grounds. Here are some of the comments from Michael Risher who filed the lawsuit;

“This is a problem under the First Amendment,” Mr. Risher said. “Americans have a right under the First Amendment to speak anonymously, and this eviscerated that right. People, for example, would have to turn over the screen names they use to comment on the New York Times Web site.”

“That’s not activity that can be used to commit a crime in any way,” he continued. “It is pure speech, often pure speech about important political issues of the day. It’s an area where there is no reason for the government to be requiring people to identify themselves to the police.”

A federal judge has issued a temporary injunction stopping the new law for now. How does that law apply to those in Tennessee ?  Tennessee requires the disclosure of  certain information. Here is the exact wording as the law is now; 

 

 

A complete listing of the offender’s electronic mail address information or any instant message, chat or other Internet communication name or identity that the person uses or intends to use

 

 

 

Continue Reading Lawsuit Filed to Block New California Sex Offender Law

                        

Ken Whitehouse of the Nashville City Paper recently interviewed Williamson County Sheriff Jeff Long . The interview focused on the challenges faced by law enforcement In Williamson County , Tennessee. Surprisingly , Sheriff Long stated prescription drug abuse is the number 1 problem facing the Williamson County Sheriff’s office. Here is some of his comments;

 Our number one issue is prescription drug abuse. We have people that go “doctor shopping” looking for prescriptions and kids that raid medicine cabinets and bring it into the schools. We are combating that problem with enforcement and prevention

Sheriff Long blames doctor shopping. I agree with him to some degree , but what about all the pain clinics that dole out these paper prescriptions like candy. Who has a duty to prescribe these powerful medications responsibility ? Prescription drug abuse is a huge problem across our country not just Williamson County.

The key question should prescription drug abuse be treated primarily as a medical problem or a criminal justice matter.  The blog Grits for Breakfast posted about the criminalization of prescription drug abuse in Texas. There were some interesting facts that were discussed. Dr.Emilie Beck testified that one in five Texas teens have experimented with prescription drugs.

What is the answer ?  I agree with one proposal in Texas. All first offenders would be presumed to get treatment rather than jail or probation. The presumption would not apply to drug trafficking crimes. Where someone gets addicted to pain pills , society must fix the problem of addiction rather than just send people off to jail.

 

            

In almost  every DUI arrest warrant that I review , there is a common denominator. The defendant has  red , bloodshot , and glassy eyes. Alcohol is not the only cause for red bloodshot and watery eyes. Here is a complete list ;<!–

–>

Possible Causes of Bloodshot Eyes at Night

  • Environmental toxins
  • Sun exposure
  • Eye Strain/overuse
  • Fatigue
  • Cigarette smoke
  • Chemical fumes
  • Overuse of contact lenses

Other Possible Causes of Bloodshot Eyes

  • Blepharitis
  • Pink eye/conjunctivitis
  • Corneal ulcers and infection
  • Corneal abrasion
  • Diabetes
  • Foreign bodies in the cornea and conjunctiva
  • Iritis
  • Ocular lacerations and intraocular foreign bodies
  • Uveitis
  • Blood thinning drugs
  • Stress and anxiety
  • Cold and flu
  • Allergies and hay fever
  • Pregnancy
  • Kidney failure/problems such as kidney stones
  • Liver disease
  • High blood pressure/hypertension
  • Glandular fever
  • Menstruation/menopause
  • Mumps
  • IBS
  • Dry Air
  • Infection
  • Improper diet
  • Deficiencies in Vitamin B2 (riboflavin), B6 (pyridoxine) and the amino acids histidine, lysine or phenylalanine

So , why bloodshot eyes are associated with alcohol. It should not be used in evidence since so many other factors can trigger bloodshot eyes.

Two drug dog cases were heard were on the docket this week at the United States Supreme Court. The use of dogs to detect illegal drugs is on the rise. Criminal defense lawyers and the court’s  struggle on when the use of the drug dogs may trigger a Fourth Amendment violation.

     

The first case involves Franky seen above. Franky was walked around the outside of a house in Florida. Franky signaled to his handler that there were drugs inside. A search warrant was obtained based on Franky’s signal. Surprise. The police found a marijuana growing operation inside. The Supreme Court has always held that the privacy of the home is at the core of what the Fourth Amendment protects . Here is some of the comments from two of the justices;

There was a dispute about how long Franky had spent sniffing around, and Justice Stephen G. Breyer suggested that the answer might affect his analysis.

“Would a homeowner resent someone coming with a large animal sitting in front of his front step on his property and sitting there sniffing for five to 15 minutes?” he asked, indicating that it would not be plausible to assume consent in that situation.

Justice Elena Kagan seemed to agree. “This dog is there for some extended period of time, going back and forth and back and forth, trying to figure out where the greatest concentration of the smell is,” she said, adding that it seemed to be “a lengthy and obtrusive process.”

My prediction is the court will not allow this sort of intrusion on a person’s home.

The second case Florida v. Harris is about Aldo. Aldo helped his trainer find some methamphetamines. The issue in this case was  the reliability of the drug dog had not been adequately established.  One judge opined that this issue should be left to the trial judges. I agree. It is hard to establish a black line test on what should be  qualifications of a drug dog . Prediction. Harris loses.

 

Two drug dog cases at the court in the same day. Probably two different results will occur.