Richard A. Oppel Jr. of the New York Times  just published a article  entitled " Sentencing Shift Gives New Leverage to Prosecutors". From my perspective handling criminal cases in Tennessee , Mr Oppel is right on target. Under Tennessee criminal sentencing laws , there are mandatory minimum sentences in certain criminal offenses.Some prosecutors use those mandatory sentences to drive a plea bargain that sometimes a citizen accused has to accept or risk going to prison for years.

Prosecutors have lobbied the State Legislators for tough mandatory sentences on some criminal offenses. Child rape , aggravated sexual battery , aggravated robbery and first and second degree murder cases have mandatory minimum punishment. Those are violent crimes and should have severe punishment if convicted. However , the hammer has been given to the prosecutors in drug cases to force onerous plea bargain agreements. The prosecutors want to take the discretion away from judges in sentencing. Once someone is convicted of a crime , the trial court holds a sentencing hearing to determine the length and manner of the service of the sentence. Mandatory sentences takes that out of the judge’s hands.

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

The prosecutors and the police now have that power. The drug free school zone act gives the prosecutors that unfair advantage. For example, a person that is arrested for possession to sell cocaine of over .5 grams in a school zone is facing 15-25 years at 100% in prison with no chance of probation. My problem with the drug free school zone act is that it is arbitrary. The drug activity must occur within 1000 feet of a school zone , but there is no nexus requirement that school must be in session. The worst example is driving down I-65 South and one passes several schools. A person has no intent to sell or possess drugs in a school zone but they can be charged for it.

The  plea  bargain is your client is facing 15-25 on a drug free school zone case so the assistant district attorney offers 15 years at 30% to serve. You go to trial you risk spending years in jail. What is worse is the police can wait to make an arrest. Why arrest someone now ? When they can wait until they drive down Charlotte Avenue past a public school. So the police can dictate the charge and the punishment.

Legal scholars like Paul Cassell, a conservative former federal judge and prosecutor who is now a law professor at the University of Utah, describe the power shift as a zero-sum game.

“Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome,” Mr. Cassell said. “With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”

With that said , our founding fathers created a separation of powers to balance the power between the executive branch and the judiciary. Now , it appears there is no one to keep big brother in check. Let’s keep an eye out in a few years on what it is costing Tennesseans to keep a drug offender in jail.

 

Yesterday , I watched and waited on whether the execution of Troy Davis would be stayed . It was not and Troy Davis was put to death.  In the days before his execution , public interest swelled . Protesters , posts on twitter and an outcry to stop the execution. The last minute appeal to the U.S. Supreme Court was denied. I am sure everyone in Georgia  feels safer today.

Contrast the Davis case with the execution  of a white supremacist gang member who killed a black man while dragging him down a bumpy asphalt road . No weak evidence . A solid case was made. It was a horrific hate crime.

I have thought long and hard on the death penalty. I agree with Justice Blackmun when he wrote that the ‘  I shall no longer tinker with the machinery of death". The death penalty should be abolished. The reasons are many from faulty eyewitness testimony like in the Troy Davis case to ineffective and overworked defense lawyers. Cost savings and inhumane punishment are also present.

I understand and respect the feelings of those effected by violent crime. The sense of loss  of a loved one is something I can’t imagine .The question remains is the death penalty the best option with years of appeals. Reopening the loss with each round of court. Is life without the possibility of parole a better option ? I wish I knew , but today with what limited knowledge I have of the Davis case. The search for the truth and justice did not happen in the death chamber in Jackson , Georgia.

 

Criminal law creates it’s own unique terminology. One of the common phrases is " Bound Over ". Most criminal cases in Tennessee start at the General Sessions Court . If the case cannot be settled at the General Sessions Court ,  a  citizen accused of a crime can have a preliminary hearing or waive your right to hearing . The court will bind over your case to the next meeting of the Grand Jury . So once your case is " Bound Over " , the case is in a state of limbo until the Grand Jury acts on the case . The time limit of how long the case is bound over varies from jurisdiction . In Nashville , Tennessee criminal cases , it could be months . In other counties such as Williamson , Sumner , and Cheatham , you are given your arraignment date once the case is bound over or transferred to the Grand Jury.

Last week , I wrote a post on some tips for surviving your criminal case in Tennessee . I am going to add another tip today . Do not use your work computer to send email to your lawyer . It may not be protected communication under the attorney-client privilege .

The American Bar Association recently issued an ethics opinion advising clients that their emails from a work computer may not be protected by the attorney client privilege.NPR interviewed ethics attorney Diane Karpman on this issue. You can listen to the interview here.

My thoughts on the subject is that email is never fully protected even from a smart phone or your home computer . A work computer has even less security. An old fashioned meeting or letter may be the better route to take.

The explosion of electronic communication via email or social media is now something to be very aware today. It may sink your case.

An increase in child abuse is linked with the recent recession according to new research in the field. Dr. Rachel Berger of Children’s Hospital of Pittsburgh said the results of her research confirmed reports from pediatricians who have seen an increase in shaken baby cases and other forms of brain-injuring child abuse .

Combine the stress of raising a young child with wage cuts or lost jobs and you get "a sort of toxic brew in terms of thinking about possible physical violence," said Mark Rank, a social welfare professor at Washington University in St. Louis. He said the study echoes sociological research linking violence with declines in economic well-being.

It is interesting to note that violent crimes have decreased in 2010.  The question is whether these parents are equipped to handle a newborn and the stark reality of this economy.

 

Under Tennessee criminal law , there are several different types of homicide or murder charges from first degree murder to criminally negligent homicide. Criminally negligent homicide is the least severe charge of murder . It is a Class E felony which carries a full range of punishment of 1 to 6 years in jail .

To prove a criminally negligent homicide , the evidence can show an intentional or knowing killing which is unjustified or a killing which was proximately caused by the reckless or criminally negligent conduct . However , that answer needs more  to determine it’s true meaning.

Here it is right from the Tennessee Code ;

(d)  “Criminal negligence” refers to a person who acts with criminal negligence with respect to the circumstances surrounding that person’s conduct or the result of that conduct when the person ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person’s standpoint.

Now I just need to know what gross deviation from the standard of care means .

Here is a tweet from one of my favorite criminals on her failed court ordered drug test . The tweet is perfect for today’s post. Several weeks ago , Nashville lawyer David Raybin spoke at a meeting before the Tennessee Association of Criminal Defense Lawyers in Memphis, Tennessee. Mr. Raybin spoke about some common sense tips for those facing criminal charges in Tennessee . I did add one topic to this list

Here they are with my comments;

  • Change your email password and make it hard.

In these days of electronic media and the use of email. One needs to protect any electronic communication they send. One example might be in domestic violence cases where one spouse or significant other still has access to your email account. Also , wiretaps and other forms of electronic surveillance look to capture emails or texts.When you change your email password. , it might be a good idea to put characters in the password.

  • Get off Face Book , My space , and all forms of social media.

One of the first things some investigators do is search to see if you have a facebook account. I am sure you have seen crazy pictures posted. Let’s take it all down till the case is over. Don’t leave any trace of what you do on FaceBook.

  • Be aware that you may be subjected to court ordered drug testing.

In some counties such as Sumner County Tennessee and Williamson County, Tennessee you may be subjected to court ordered drug tests . For example , those that enter a plea to simple possession of drugs in the General Sessions Court for Sumner County are routinely subjected to drug tests at the plea. If they fail the test , 48 hours in jail may be in their future. Want a delayed report date in Williamson County on a DUI case ? You take a drug test. Fail .It’s off to jail for you .Once you are facing criminal charges be aware that you may be asked to take a drug screen at any time . Also , this applies to prescribed drugs . You have a ache and mom gives you a Lora-tab to help. You might be going to jail for a failed drug screen.

  • Don’t talk about your case from a jailhouse phone or a cell phone

I have written on this issue before so I rest my case.

These are some common sense tips to help you avoid any more problems other than being charged with a criminal offense in Tennessee . I am open to hearing about any more tips . Please let me know by posting them in the comment section.

 

 

I see some strange things in the courtroom . Today in Gallatin , Tennessee was no exception. As I was waiting for my case to be called . I watched a DUI trial that involved a constable . No assistant district attorney and the defendant represented himself. The arrest was made by a constable. I thought the role of a constable was just to serve process. It is outdated in most counties except Sumner County. The DUI case involved a traffic stop , field sobriety tests , and a refusal to take the blood test.  The result was a DUI conviction. I was still baffled by the arrest of by the constable.

I learned that the constable in Sumner County Tennessee routinely makes arrests. Under Tennessee Code annotated 8-10-111 it sets forth the duties of a constable. Nowhere is the duty to arrest listed. Under Tennessee Code Annotated 8-10-204 gives them the power of arrest  . It was interesting to read about their training from the Tennessee Constable Association

 Here is my problem . The constables do not get any pay . I was advised they get paid by the conviction . So once the court costs are paid they get a cut . In Sumner County , a citation gets them $27.00 and a DUI or other criminal charge pockets them $42.00. It is an incentive for abuse and  questionable arrests. Law enforcement officers are trained . Tax dollars pay them . Do we really need constable roaming the streets of Tennessee ?

The jail house snitch is often used as a key witness in some criminal cases by the District Attorney’s Office. The most memorable jail house snitch used in a Nashville , Tn. murder  case  was in the case against Perry March.  The Snitching Blog  reported on the case of Sivak v. Hardison where the 9th Circuit Court of Appeals reversed a death sentence . The court found the two snitches were unreliable , but more importantly that the state offered  testimony  knowing they offered perjured testimony. Here is a link  to the opinion.

Two things are important from this decision.First , a case based mainly on snitch testimony is suspect . The motivation to lie and commit perjury to get out of prison is overwhelming. Secondly , what happened to the prosecutors who offered the perjured testimony ? There was a case in Nashville years ago where the criminal defense attorney offered up known perjured testimony . A jail sentence and disbarment was his fate.  The better question is how to deal with the jail house snitch at trial.

 

One of the jury selection concepts I was taught at the Trial Lawyers College was to embrace the gifts the jurors gave you . I did not fully understand the concept during the lecture. However , the light bulb came on once I saw it in action.

I was sitting in the courtroom of the Cheatham County Courthouse . It is pictured in the post  .  I was there to settle a criminal case during a break in the trial. I listened to the jury selection with interest . It was a DUI case . One juror disclosed that she believed in zero tolerance of alcohol and driving . No one should have any alcohol and drive was her position . The defense lawyer tried to challenge her for cause . As trial judges are taught , one question was asked . "Can you follow the Law ". The juror said , " Of Course ". The juror stayed.

What did the criminal defense lawyer accomplish ? First , he killed any meaningful discussion  of the jurors . The lawyer showed to the other jurors what happens if you speak your mind . The result is keep your mouth shut. Most importantly was the failure to open the gift . The gift was her full and honest disclosure of her true feelings about drunk driving . The juror’s belief of zero tolerance with alcohol and driving which is not uncommon in the Bible belt  and I am sure others in the panel had the same belief .

Use the gift of her disclosure to ask other jurors how they feel about her comment . Discover why she feels the way she does. Use the poison answer to tell your story of the case . Don’t hide from the bad answer . Embrace it . Deal with it . Use all the gifts the jury gives you .

If your trying cases , take a minute to watch the jury selection of other lawyers . You just might learn something by watching and listening .