On December 2 2011 , I am moderating a panel discussion of  the following criminal court judges .They are ;

  • Judge Steve Dozier , Nashville , Tn.
  • Judge Dee Gay , Gallatin , Tn.
  • Judge Monte Watkins , Nashville , Tn.

The seminar outline covers some good topics like ;

  • Criminal Court Trial Tips
  • Motions For Discovery
  • Pretrial motions

Here is my request. If you want some topic covered in the seminar , please feel free to post a comment . I will add your comment to the agenda. For example , Judge Gay has a reputation for handing down some tough sentences . So , I am going to get some feedback on some tips for a successful sentencing hearing . One question is should a criminal defense attorney file a sentencing memorandum.

I look forward to your suggestions.

The more I read and watch the Penn State Sex abuse case . The more it makes me sick of what happened. The cover up of Jerry Sandusky’s illegal abuse of young boys was swept under the rug by the coaches, the Penn Sate administration , and possibly the folks that were supposed to investigate the crimes. Then , we heard Jerry Sandusky’s interview with Bob Costas .It made me want to throw up after he talked about showering with young boys .

As a criminal defense attorney , I strongly believe in the presumption of innocence and the right to a fair and impartial trial . How could Sandusky’s criminal lawyer allow him to comment  to Bob Costas . I guess he just wanted to get some press coverage . Allowing Sandusky to answer Costas questions was the nail on his coffin . It sealed the public’s opinion that he was a sexual predator and needs to be punished . If I was a prosecutor , a motion to revoke his bond may be in order. Mr. Costas interview  appeared to be a confession by Sandusky.

After the interview , I predict Mr Sandusky gets a fair trial and then spends the rest of his life in prison and Penn State will write a big check to his victims for not doing a damn thing to stop it or tell the police.

Two lessons are to be learned from Mr. Sandusky’s interviews for those accused of a sex crime. First , don’t give a statement to police. Second , don’t give a statement to the media.

 

Once you see blue lights on a police car come on , you know someone is in trouble. The Tennessee Court of Criminal appeals reversed a lower court and dismissed a DUI conviction based  on a illegal  traffic stop. The court held that once the blue lights come on the driver is seized for Fourth Amendment purposes.Here is a portion of the court’s ruling ;

the defendant’s encounter with the officer was not voluntary, but rather

occurred under a show of authority—the activation of the blue emergency

lights—from which a reasonable person would not have felt free to leave.

“Few, if any, reasonable citizens, while parked, would simply drive away and

assume that the police, in turning on the emergency flashers, would be

communicating something other than for them to remain.”

This case is a reminder that the primary defense in most drunk driving cases in Tennessee is to examine the reason the police pulled you over .Also , blue lights equal a seizure under the Fourth Amendment.

Florida DUI lawyer Mike Kessler wrote a nice piece recently on why your medical records aren’t so private . Under Tennessee law , your medical records aren’t  private  at all. Most people have the belief that your medical records are private and can’t be disclosed without your permission. Wrong . A federal law commonly known as HIPPA  establishes some federal laws about disclosure. However , there is an exception for law enforcement purposes . So , the District Attorney’s office can issue subpoenas for your medical records for a grand jury proceeding or maybe at trial. Also , there is no doctor-patient privilege currently under Tennessee law.

One thing can be argued is that there is a common law duty that may apply. Right now there is no protection of the government from getting your medical records are using them against you. Maybe the Tennessee State Legislature will act to enforce a citizen’s right of privacy rather than allowing guns in bars.

Sexual molestation charges against former Penn state football coach Jerry Sandusky has rocked Penn State University . From news reports , it appears a graduate assistant discovered former coach Sandusky molesting a young boy in a shower in 2002. Coach Paterno was notified and he passed the information along to the administration . Here is the problem , the administration did nothing with the information until it was recently revealed that a cover up might have taken place. Now these administrators have resigned and are now facing criminal charges in alleged perjury scheme.The fallout from these allegations will test the foundation of the Penn State football program and the reputation and legacy of Joe Paterno.

The question is how would this scandal play out under Tennessee law . Tennessee Code Annotated  37-1-605 sets forth a list of those that have a legal duty to disclose child sexual abuse ;

a) Any person including, but not limited to, any:

(1) Physician, osteopathic physician, medical examiner, chiropractor, nurse or hospital personnel engaged in the admission, examination, care or treatment of persons;

(2) Health or mental health professional other than one listed in subdivision (1);

(3) Practitioner who relies solely on spiritual means for healing;

(4) School teacher or other school official or personnel;

(5) Judge of any court of the state;

(6) Social worker, day care center worker, or other professional child care, foster care, residential or institutional worker;

(7) Law enforcement officer; or

(8) Neighbor, relative, friend or any other person who knows or has reasonable cause to suspect that a child has been sexually abused;

shall report such knowledge or suspicion to the department in the manner prescribed in subsection (b).

 

Under Tennessee law , Coach Paterno would have had a duty to report the act since he was a school official or personal. I am not aware of what Pennsylvania’s ‘s laws are but the result may be different under Tennessee law as to any charges that could  have been filed against Coach Paterno.

 

Tennessee State Representative Curry Todd made his first appearance in a Nashville court room yesterday. Nothing happened and the case was reset.  Representative Todd was charged with driving under the influence , possession of a handgun under the influence of alcohol , and a violation of the implied consent law.

The reason I am commenting on his court appearance is to explain what happens at the initial appearance on a criminal charge in Nashville. After someone is released on a bail bond or pre-trial release , a court date is set on a docket. Most court dates are set at 1:00 P.M. The purpose of this docket is to determine if some criminal cases can be settled with the issuing of any subpoenas. Your attorney and the assistant district attorney meet to discus the case. If the case can’t be settled the case is reset to a trial docket . At the trial docket , the witnesses will be subpoenaed . Plea bargain discussions will continue in efforts to try to come to some agreement on the case. If the case can’t be settled , a trial or preliminary hearing will be held in most cases .

The bottom line is the initial court appearance in Nashville is not that big a deal. You should have a lawyer by that time . Usually , the good attorneys try to speak with the assistant district attorney beforehand to discuss the case. Sometimes , the attorney will continue the case beforehand . However , one judge does require you to be present at the afternoon docket. One key thing to remember . Don’t get disappointed if nothing happens that day. Sometimes the assistant district attorney may not have all the information they need in the case to make a decision.

My question is how did Mr. Todd vote on the harsher implied consent charge ? It appears he exercised his right not to take the breath or blood alcohol test.

The U.S. Supreme Court  recently heard  oral arguments in Cooper  and Frye. The links will take you to a transcript of the oral argument. The pivotal issue is  the performance of the lawyers during the plea bargaining process.. In the Frye case , Mr. Frye’s lawyer did not advise him of a plea bargain offer where Frye could have plead guilty to a misdemeanor and serve 90 days in jail. Instead , Frye took a thee year sentence to serve with a felony now on his record. In Cooper , the criminal defense lawyer gave the defendant some really bad advice on the issue of intent to commit murder. During oral argument , the court struggled with the proper remedy. The court has held that plea bargaining is a critical stage of the litigation for Sixth Amendment purposes.

A more interesting side note is that of the low price lawyer who writes letters to those accused of a crime and offers to provide a legal service for the sum of $400.00.  Simple Justice addressed the issue of lawyers whose business model is take the bucks and plead them or force them to plead guilty . I witnessed one such event today. Cheap lawyer says to assistant district attorney " It’s a DUI first offense right and I want to move the case for plea". No negotiation . No discussion with the assistant district attorney. Probably no review of the warrant or video. Nothing . NADA. Zilch. The lawyer took the bucks and made a rapid plea bargain at the client’s expense..What regulates lawyers when they have no intention of giving an accused  a defense. Those issues will not be addressed and will be the dirty little secret in the underworld of criminal justice. Yet the problem exists. I guess it is the old adage " you get what you pay for".

Justice Scalia said trying to solve either problem would leave the courts “in the soup,” as Mr. Cooper had received a fair trial and Mr. Frye had entered a valid guilty plea. Justice Scalia is dead wrong in his comments. First , Frye did not enter a knowing plea of guilt and Cooper did not have a lawyer that knew the basics of an attempt to commit murder. Scalia concluded the trial was fair. Not hardly.

Now what will the Supreme Court do when the lawyers blew it ?

A Nashville , Tennessee magistrate denied arrest warrants that charged Occupy Nashville protesters were trespassing.

 Tennessee Highway Patrol Officers enforced a last minute trespassing ban at Legislative Plaza this past weekend. Protesters were charged with trespassing and hauled off to visit with the magistrate. After hearing some proof and considering the law , the magistrate denied the arrest warrants and set the protesters free.  The separation of powers was on display. The judiciary upheld the integrity of the law and kept the executive branch from exercising their will on the people. I applaud the actions of the court in enforcing the rule of law. Some magistrates would merely act as a rubber stamp and condone this offensive action by whoever that ordered the arrests.

The teaching point that is important is the role of a magistrate in Tennessee criminal law cases. Rule 5 of the Tennessee Rules of Criminal Procedure provides that a person under arrest shall be taken without unnecessary delay to a magistrate. The magistrate usually makes a finding of probable cause to issue the warrant.

Other duties of the magistrate included ;

  • Setting bond.
  • Advising the defendant of their constitutional rights.
  • Setting the preliminary examination.

 

In the occupy Nashville case , the magistrate held that the State of Tennessee did not have the power to authorize a curfew . Nashville Scene reporter Jonathon Meador was arrested and ultimately tweeted his release from jail.

Here is my two cents . First , I guess the right to assembly granted to us in the Constitution does not apply to the Legislative Plaza. Second , the rule of law was enforced by that great thing called the separation of powers. I wonder if Governor Haslam checked his orders out with the Attorney General.

 

 

North Carolina divorce lawyer Lee Rosen wrote a post on should a mother attend the first consultation in a divorce case. I thought the post was worth commenting on from a criminal lawyer’s perspective. I represent a lot of Vanderbilt students  as well as those from other local colleges here in Nashville. Most parents want to be involved in the process. As a parent myself , I understand that need to know what is going on with the criminal case for your child. However , when a third-party is in the conference room it breaks the attorney client privilege. So , any communication between the client and the criminal defense attorney is no longer privileged. It comes to be important later at a bond hearing or if the parent is a witness at a later hearing..

What should a criminal defense lawyer do ? First , explain to the parents about the attorney-client privilege. Second , Meet with the parents and give a general overview of the criminal process. Third , excuse the parents while you get the facts about the case . One benefit is your client may really tell you what happened rather than sugarcoat it for their parents. finally , bring the parents back in to discuss the defenses , strategies , and where you go next.

 

Thanks to Lee Rosen for the idea for today’s post.

A Nashville , Tn. couple was arrested this week on charges of manufacturing marijuana and possession of marijuana within a 1000 feet of a school zone. Metro Nashville Police discovered a large marijuana growing operation this week. A police officer noticed the smell during a DUI traffic stop. The smell was traced to a house in East Nashville. Police knocked on the door. No answer. Then , the police got a search warrant.  Bingo. Marijuana , grow  lights and all sorts of growing tools were discovered.There are two points that make this case worthy of comment.

First , the issue is whether the smell of marijuana alone justifies the issuance of a search warrant.  The California Court of appeals addressed this very issue this week. The court held ;

"Was the warrantless search justified based on smell alone?" wrote Presiding Justice Arthur Gilbert of the Second District Court of Appeal in Ventura. "Not according to the California Supreme Court. To smell it is not the same as to see it."

It will be interesting to see how this case plays out . From , my reading of The Tennessean article by Andy Humbles and Nicole Young , it appears there was no other evidence to issue the search warrant other than the smell. If there is nothing else , I predict the search warrant may be invalid.

Secondly , does a citizen have to answer the door if police knock ? No. A citizen has no duty to open the door for the police absent a search warrant or arrest warrant. One of the most popular police tactics is the " Knock and Talk ". Police knock on the door. Ask to come in and then they look around or ask for consent to search. Just like a door to door salesman , you do not legally  have to answer or let them in.

One question I have is how far was the house from the DUI stop.