College students alcohol consumption has taken a new low. Several members of the Pi Kappa Alpha were cited for underage consumption of alcohol at UT Knoxville. It seems several members of the fraternity engaged in butt-chugging . Butt-chugging is where a tube is inserted into the anus and then alcohol is funneled rectally. Knoxville police report that the fraternity had been giving wine enemas. One member was hospitalized for alcohol poisoning. What happened to a old fashioned keg party ? It seems butt-chugging gets you drunk quicker and does not leave a odor of alcohol on your breath.

Underage alcohol consumption is a crime in Tennessee . With Nashville being a college town with Vanderbilt and several other colleges , underage alcohol consumption is enforced. Underage alcohol consumption is a misdemeanor and carries punishment up to 11 months and 29 days in jail as well as a fine of up to $2500.00. In most Nashville underage alcohol consumption charges , a person is given a criminal citation and ordered to appear at a future court date. If you have any questions about defending a Nashville underage alcohol consumption case give us a call.

The U.S. Supreme Court agreed to hear a case on whether the police can seize a blood sample of an accused DUI driver based upon exigent circumstances. In Missouri v McNeeley , a police officer took an accused’s blood sample without a search warrant. The government’s theory was there was an exigent circumstances for the seizure without a warrant because the concentration of alcohol dissipates over time. The Missouri Supreme Court  held the seizure of the blood sample was an unconstitutional search. The U.S.Supreme Court will hear this case in the fall.

The Missouri case is very important to those charged with a drunk driving case here in Tennessee. If the court reverses the Missouri Supreme Court’s decision , police officers will be granted the power to take any citizens blood sample without their consent or without a search warrant. Currently , a citizen is allowed to refuse to submit to a breath or blood alcohol test.

it is important on another ground as well. Tennessee currently allows for a forced blood draw on those charged with a second offense DUI or higher. There is no search warrant requirement to seize the blood sample. You must have only been convicted of a prior DUI.  I am unaware if Tennessee’s forced blood draw has been challenged yet. It is my belief that the law will be declared unconstitutional at some point. The concept of Tennessee’s forced blood draw is not before the Supreme Court.

The real question is whether the courts are going to keep allowing unfettered police intrusion into the lives of the citizens accused of a crime. Tracking someone on a GPS is allowed. Cell phones are not private. Where does the erosion of the Fourth Amendment stop ? It must stop with this series of cases. Sure everyone is against drunk driving . But , at what price do we sacrifice our constitutional protections ?

The United States Court of Appeals for the Ninth Circuit is scheduled to reconsider today whether California violates the Fourth Amendment’s prohibition against searches and seizures by requiring police to take DNA samples from those arrested but not yet convicted. California’s law is designed to accurately identify those arrested , solve crimes , and exonerate the innocent.

Earlier in the year, the court ruled it was constitutional. The law should be ruled unconstitutional. Unless there is a search warrant or reasonable suspicion that a different crime was committed , the taking of a DNA sample violates the Fourth Amendment. Does citizens invasion of privacy outweigh the benefits to law enforcement ? The stated purpose of the law is identification. Most law enforcement agencies use fingerprints to make sure they have the right person. Even the citation docket here in Nashville uses fingerprints to identify a person cited for a crime. The real purpose of the California law is investigation. Seize some DNA and whenever you collect some DNA you run it to see if you get a match in your database.When the state seizes the DNA sample , it enters the sample into CODIS which links the DNA database from state , federal , and local databases.

Taking DNA from someone merely arrested violates the Fourth Amendment. Once you are convicted of a felony in Tennessee , you are required to submit to a sample. The constitution permits that sample. Tennessee also allows the taking of a DNA sample as a condition of bond on certain types of felonies. However , California and other sates seizure of DNA solely on the basis of a arrest violates the spirit of the Fourth Amendment. I expect the U.S.Supreme Court to take up the issue in a similar case from Maryland.Currently more than half the states have DNA sampling at the time of arrest.

In the past several weeks , I have read two articles on what to eat during trial. It is interesting to note that both suggested a high protein diet during trial. The first suggestion that I read was a discussion of having a healthy trial. In some cases , lawyers rush back to their offices planning and preparing for the next day of trial. Often leaving the lawyers tired and drained when they should be alert and ready for the unexpected.

Here is the suggestion for a healthy trial;

  • Have a breakfast with at least 20 grams of protein.
  • No carbs should be eaten.
  • Exercise at least 30 minutes before trial.
  • Instead of rushing back to the office , the trial team should gather for dinner and discuss the events of the day.

Houston Lawyer Mark Bennett recently wrote of the virtue of eating eggs during trial on a recent blog post. First , the protein boost gives you tremendous energy without the carb letdown. Then at lunch a hard boiled egg . No afternoon slump and you review during the lunch hour.

I never really thought that nutrition made you a better lawyer. Rather I wanted to master the rules of evidence and procedure. I was wrong. Nutrition can make a difference. In most cases , the government goes first. You voir dire or cross examine witnesses in the afternoon . Your tired.The jury is tired. So , I have conducted two experiments.

First , a jury trial in Franklin, Tn., a bacon and eggs breakfast before trial. No lunch which avoided carbs. I had great energy until we recessed for the night at 8:00 P.M. Next day was the same until the jury deadlocked in a DUI trial. Second , I just finished a bench trial. Another protein breakfast was eaten. At lunch , a couple of hard boiled eggs. I think the protein diet keeps one sharper during trial. Now , if I could just squeeze in the 30 minutes of exercise.

The case of a former FBI agent convicted of wire and bankruptcy fraud is being remanded to the Federal District Court here in Nashville to make a ruling on racial bias during jury selection. Darin McAllister was convicted in 2010. However , the prosecutor used two of his peremptory challenges to excuse to black jurors. The first juror was excused because of a criminal conviction. In the case of the second black juror that was excused , the court did not make any findings of as to whether McAllister established the existence of purposeful race discrimination in the selection of his jury.

 

In Batson v. Kentucky, the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment guarantees the defendant that the state will not exclude members of the defendant’s race from the jury venire on account of race, or on the false assumption that members of the defendant’s race , as a group are not qualified to serve as jurors.

Continue Reading Racial Bias During Jury Selection

I had not followed the Drew Peterson murder trial until a friend asked me if I thought he was guilty. I did not know much until the verdict came down. It appears some hearsay evidence persuaded the jurors to return a guilty verdict.  A new rule of evidence was passed in 2008 which allowed some hearsay evidence to be admitted. It was called " Drew’s Law." Normally , hearsay evidence is not admitted into evidence absent some exception to the hearsay rule.

This verdict may not stand up. I read about numerous instances where the prosecutor introduced evidence that was precluded by the court. The major problem is whether this new hearsay exception trumped Peterson’s right to confront and cross examine witnesses. The hearsay rule was put in place so one person could not repeat what another person said. In Crawford v Washington , the U. S. Supreme Court has found that the confrontation clause is a bedrock constitutional right. The basic rule is an accused has a right to confront and cross examine any witness that may be called against you. The Tennessee Constitution is even stronger

 

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.

Tennessee requires you meet your accusers face to face. So , the question becomes will the verdict stand up on appeal and whether this rule of hearsay trumps the confrontation clause.

 

One of the routine questions I am asked is" what is an arraignment ."  An arraignment  is that stage of the criminal proceedings where a defendant is called upon by name to enter a plea. It is at this stage of the case where the defendant is to provide notice to the defendant that a plea must be entered . In most cases a plea of not guilty is entered. The plea can always be changed to guilty at a later time.

The Tennessee Rules of Criminal Procedure provides that before any defendant is tried , they must be brought into court and arraigned. At arraignment , a copy of the indictment , presentment , or information. The arraignment is not a critical stage of the trial so long as the judge requires no plea. In fact , a defendant can waive his presence at the arraignment as long as his or her attorney is present with a written waiver and enters a plea of not guilty.

The arraignment is the first step in the criminal court process under Tennessee criminal procedure.

Lawyers and Judges are struggling with the explosion of social media in the courtroom. Recently , a Virginia judge sanctioned a lawyer over $500,000.00 for advising a client to delete a facebook account in a civil case. Most states have a theory of law in civil cases called spoliation of the evidence. Basically , one side is punished if it is discovered they destroyed evidence in a civil case.

How does that apply in a Tennessee criminal case ?  Tennessee does not have any brightline tests for deleting a facebook page. However , Tennessee does have a Tampering with Evidence law. It usually deals with someone who tries to throw away the drugs or destroy the object of the crime. I am unaware of any Tennessee cases that have dealt with a destruction of a facebook page.

Facing a criminal charge and you have a facebook page. First , change the privacy settings . Second , contact your attorney about what you should do before you take any action . There is one guiding rule of what you should or should not post on facebook. Would you want your mother or grandmother seeing the post or the picture.

Dennis Ferrier of WSMV reports that only 17 people have taken advantage of Tennessee’s new expungement law . I was excited about the new expungemnt law going into effect in hopes it would give citizens a second chance. Once , I had a hard look at the law . I knew few people would qualify.  If you go to my web site , you can read about the process.

My modest proposal is to have the state legislature revisit the expungement law. Open it up. Allow more folks to take advantage of clearing their criminal record. Take down some of the barriers that have only allowed 17 people in Nashville to even file for an expungement. Should the government reward folks that have changed their ways or should they have a mark on their record that lasts a lifetime.