Effective July 1, 2012 , the legal standard for expunging a criminal conviction changed in Tennessee. Before July 1 ,  a person could only expunge their record under the following types of dispositions;

  1. The case was dismissed.
  2. You were found not guilty.
  3. The case was retired.
  4. The case was Nolle prosequi.
  5. You were granted either pretrial diversion or judicial diversion.

Now , certain low level felonies and certain types of misdemeanors can be expunged. You can click this link to an article that lists the felonies and misdemeanors that may be eligible . Also , the article lists the eligibility requirements.

The new process is complex. So, I am giving a free seminar every Tuesday for the month of July at my office here in Nashville, Tennessee to explain the process . Space is limited. Email info@robmckinneylaw.com to reserve your space.

 

 

It’s that time for my annual post on Bonnaroo. Next week thousands of people across the country will be traveling to Manchester , Tennessee for Bonnaroo. At the same time, police officers will be setting up on all the major interstates hoping to make a traffic stop which will lead to an arrest. So , I  posted on article on my web site giving some basic tips on how to survive the Bonnaroo Festival without going to jail.

Ryan Braun’s drug test case is back in the news. As I was watching ESPN during  lunch today , it was reported that Major League Baseball fired the arbitrator in the Braun drug testing case. I wish that I could do that in my cases . I don’t like the judge’s ruling. A couple of months later I fire the judge. I wish life was that simple.. MLB was unhappy in his ruling about the chain of custody in the evidence.The arbitrator found that the chain of custody was not established , therefore the results of the drug test were inadmissible in Ryan Braun’s suspension hearing.

Chain of Custody is a basic concept in the rules of evidence . The concept of the chain of custody involves laying the basic foundation for the introduction of real evidence. The purpose of the chain of custody rule is to demonstrate that there has been no tampering , loss ,substitution , or mistake with respect to the evidence,

The basic concept recognizes that real evidence may be handled by different people between the time it is gathered and the time the evidence is tested. For example , a blood sample in a DUI is handled by the officer , the person in the evidence room , the Lab Tech at the Tennessee Bureau of Investigation , and the person that tests the blood for alcohol content. If there is a break in the chain the evidence may not be admitted.

In the Braun case , it appears that they could not prove the chain of custody in the case. thus , it was dismissed. The chain of custody is an issue that should be investigated in most DUI cases. It won the case for Ryan Braun.

Who says you can’t learn anything on Twitter ? Last night while I was listening to the Alabama Shakes debut release , I read a tweet from lawyer Bob Ambrogi who writes on law firm web sites and social media . The tweet linked to a post about George Zimmerman’s lawyer creating a social media campaign.

It appears that the Zimmerman legal defense team has created a Facebook page as well as a Twitter account . I have never known a person facing criminal charges to launch a social media campaign . Interestingly , the lawyers for Mr. Zimmerman claim it is not to influence the public but rather to manage the emails and phone calls about their client. Two things may be going on as to why the social campaign was launched. First , the social media campaign puts a spin on the case from the defense perspective. Second , the firm is simply promoting itself. The criminal defense lawyers have the case of a lifetime with intense media coverage.Why not parlay that into a bigger reputation. I expect the court will issue a gag order to stop the media campaign.

On the local front, the question remains is whether other lawyers will launch a social media campaign about their clients or potential issues. How about a social media campaign on breath alcohol tests or police tactics. It appears to be an ongoing problem with how the courts deal with social media in the future.

Should smart phones be banned from the courtroom during trials ?  A Kansas judge had to declare a mistrial recently in a murder trial . A local reporter from the Topeka Capital-Journal got permission from the court to use her camera phone to tweet from a murder trial. The reporter was even allowed to take pictures during the trial as long as no images of jurors were taken. A profile of one the jurors was taken. Once that was discovered , the court declared a mistrial.

Smart phone technology is becoming a growing problem for the courts. Juror privacy is one issue that was raised in this case. How about leaking trial testimony to future witnesses via tweets , Facebook, , and video or recordings from smart phones. It also brings the issue of whether phones should be taken from jurors during a trial. It is human nature not to want to discover some facts about a case if a juror feels they need the information.

In the Kansas case , the newspaper should be sanctioned for their negligence. The persons hurt was the victim’s family  and the defendant who were both denied their day in court since the trial was continued. A trial should be in a vacuum . No outside information other than what is presented from the witness stand is allowed, but influence seeps in. The courts must deal with these technology issues.

Last week , George Zimmerman had a hearing to reduce his bail bond . It was anticipated Mr. Zimmerman would make the request .The way in which he made the request was a terrific move on his lawyer’s part. In most cases , I do not put the accused on the stand at a bond hearing . Under Tennessee criminal law , one of the factors for reducing the bail bond is the likelihood of the conviction. So , the client should not testify in most cases since the assistant district attorney can make an inquiry about the facts of the criminal offense.

In the Zimmerman case , Mr. Zimmerman took the stand and made a public apology to the family . Great move. It appeared to be heartfelt and may have turned the public opinion of him in this tragic case. In most cases , it would be unwise to take this path. Due to the unique facts of this case , it was the right choice . Now everyone in America knows he is remorseful including prospective jurors. I think the public apology was a very strategic move by his lawyer. One thing was missing. Why did not the prosecutors cross examine Zimmerman on the facts. In Tennessee , this would have been fair game.

Reducing a bail bond in Tennessee is base upon several factors like the likelihood of conviction. I have previously written about all the factors the court will consider in lower bail bond.

 

Today is going to be a short post . I am constantly amazed that in voir dire in most criminal cases the district attorney focuses on CSI. The state wants to make sure the jury does not hold them to the standard of TV . In fact , it appears the proficiency in criminal crime labs across the country is severely lacking.. PBS just ran a great documentary on the subject. After you watch it , please post your comments on the subject. It appears the real CSI is not very trustworthy.

Since Trayvon Martin’s death much has been written and spoken on the news. It is a daily topic of discussion in the media. What would be different about the case if it happened in Tennessee rather than Florida. My first thought would be that Mr. Zimmerman would be under arrest. Tennessee criminal laws on self defense are completely different than Florida as well as the Grand Jury process.

Under Florida law, they have a wacky law on self defense called the " Stand Your Ground Law ". I am surprised we do not have the same law in Tennessee with the State Legislature’s fascination with gun laws. The stand your ground law sets forth that anyone who perceives that their life is threatened is not required to retreat and has a right to use a weapon . Tennessee has no such law today. It also has a component that law enforcement must prove that the accused did not act in self defense and requires a pre-trial hearing to determine immunity. Under Tennessee criminal law , a jury decides if self defense is a viable defense. There is no pre-trial hearing to avoid a trial. Here is Tennessee’s jury instruction on self defense ;

DEFENSE:  SELF-DEFENSE

            Included in the defendant’s plea of not guilty is [his] [her] plea of self-defense.

            When a person is assaulted, by the [use of force] [attempted use of force], in such a way as to create in his or her mind a reasonable belief that he or she is in imminent and actual danger of [death] [serious bodily injury], he or she will be justified in [threatening] [using] force to defend himself or herself even to the extent of killing another human being.  The [threat] [use] of force can only be to the degree reasonably believed to be immediately necessary to protect against the other’s [use] [attempted use] of unlawful force.  The danger creating the belief of imminent [death] [serious bodily injury] must be real, or honestly believed to be real at the time, and must be founded upon reasonable grounds.1

            A person may have been mistaken, based on his or her  perception of the circumstances, as to the extent of the actual danger, but if he or she acts in self-defense from honest, even though mistaken, convictions as to the extent of danger he or she will not be held criminally liable for his or her action.

            In determining whether the defendant’s [threat] [use] of force in defending [himself] [herself] was reasonable, you may consider not only [his] [her] [threat] [use] of force but also all the facts and circumstances surrounding and leading up to it.  Factors to consider in deciding whether there were reasonable grounds for the defendant to fear [death] [serious bodily injury] from the [deceased] [alleged victim] include but are not limited to any previous threats of the [deceased] [alleged victim] made known to the defendant; the character of the [deceased] [alleged victim] for violence, when known to the defendant; the animosity of the [deceased] [alleged victim] for the defendant, as revealed to the defendant by previous acts and words of the [deceased] [alleged victim]; and the manner in which the parties were armed and their relative strengths and sizes.

            If you find that the defendant’s fears of [death] [serious bodily injury] were genuine and reasonable under the circumstances, then [he] [she] would have had the right to [threaten] [use] as much force as was apparently necessary in [his] [her] own self-defense.  If, on the other hand, you find that the defendant was not genuinely or reasonably fearful of [death] [serious bodily injury], or that [he] [she] [threatened] [used] force going beyond the real or apparent necessity for [his] [her] own defense, then [his] [her] [threat] [use] of force would not have been justified

 

Continue Reading The Trayvon Martin Case Under Tennessee Law

This week the U.S. Supreme Court held that a any person arrested for any offense however minor is subject to a strip search.. I expect this ruling will open the floodgates for jail house strip searches in the search for evidence. The country’s highest court adopted a new standard that any correctional officer can order a strip search. Prior to this ruling , a correctional officer must have had reasonable suspicion that the person possessed contraband. The strip searches embraced by the Court are forbidden by statute in at least 10 states . Also , the court opinion is in violation of international human rights treaties which ban strip searches.

 Nashville Davidson County, Tennessee Sheriff Daron Hall applauded the new law in that it gives flexibility to correctional; officers. Sheriff Hall’s opinion is in direct conflict with the standards of the American Correctional Association of which he is president. The new ruling opens up the possibility of abuses;

  1. How does it apply to foreign nationals  who are protected by international treaties ?
  2. Will a police officer try to encourage a correctional officer to perform a strip search ?
  3. Will a person in Nashville be arrested rather than being issued a criminal citation ?

The last concern is most important to those charged with a crime in Nashville. In some minor criminal offenses , the police can cite and release a defendant. A criminal citation is issued then a person must later appear to face the charges. A criminal citation is used in simple cases like simple possession of drugs , patronizing prostitution and shoplifting. Now , the police might consider arresting someone in order for correctional officers to perform a strip search.

The next coming issue in this area  could be  body cavity searches. Is the Court going to approve this search of person’s body cavities next ?

 

 

 

 

 

Monsignor William Lynn is on trial in Philadelphia over felony charges of endangering children and conspiracy that he shielded sex abusers . It is thought to be one of the first trials in the nation on this theory of prosecution. The central theory of the state’s case is that Monsignor Lynn knowingly allowed priests who had sexually abused minors to be reassigned  to positions where teachers or parents would not know about the charges. Lynn’s defense is that he notified his supervisors and he should be found not guilty. One problem with that defense is that it did not work in the Nazi war crimes trials or any other trial that I am aware of where blame is shifted up the chain of command.

Under Tennessee criminal law , it appears that Monsignor Lynn could be convicted on these charges. Tennessee has a provision under it’s criminal code called criminal responsibility . Basically , the law provides that you responsible for the conduct of another if you assist in the crime . Criminal responsibility also provides that you are liable if one has a duty to prevent the commission of a crime or promotes or assists in its commission. Clearly , Mr. Lynn knew of the sex abuse and transferred these priests where they could resume their abuse.

Criminal responsibility could even be brought in other types of cases . In the past several weeks ,  a women was charged with vehicular homicide. Reports from the news indicate she may have been over served at a bar. Under the doctrine of criminal responsibility the bartender or the bar could be charged .

 

One thing that makes it an easier case for the state is that they are trying one of the priests for an attempted rape of a young boy. The evidence may show up to 20 other cases where Lynn swept these allegations under the rug.