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I have been remiss on keeping up with my weekly cheeseburger quest. Stuff like murder trials and other duties just got in the way. When I first started this wacky food adventure , I had two burger joints in mind that was going to win hands down . First was Brown’s Diner which was solid. The second was Rotier’s . I was a little disappointed in Rotier’s.

Rotier’s was in my mind one of the gold standards in Nashville cheeseburger history . The crowning jewel was the cheeseburger on French bread . So I headed down to Rotier’s for the classic . Of course , I ordered the French bread .Poppy seeds covered the toasted bun. As glorious as I remember then it went south . The burger was dry and a tad overcooked for my taste . Condiments were weak as well . I was shocked and dismayed as to the cheeseburger  from the great taste of my memory.

Vibe is still great . Old wood paneled dining room feels like the fifties’.Best of all is the old Galaga game that’s right by the door.On busy Vanderbilt game days a couple of games should be in order before you get your table.

3 out of 5 stars.

In the recent edition of The Champion , Dr . Demosthenes Lorandos wrote a fascinating article summarizing the integration of science and law in the defense of Tonya Craft . Ms. Craft was charged in 22 counts of sexually abusing three different little girls . The cost of her defense was over $ 500,000.00. A jury found her not guilty of all 22 counts. Money well spent .

Dr. Lorandos identified six  scientific areas of Ms.Craft’s defense that had to be addressed. One of the questions that must be answered in all child sex abuse cases is "How did the child know about certain areas of sexuality" ? It can be explained by normal child sexuality . This was the first field of science that had to be tackled head on. The defense concentrated on educating the jury of various studies that dealt with child sexuality.

Some of the findings are as followed ;

  1. Research studies showed that 65 % of of preschool educators found that direct sexual behavior of body exploration and genital manipulation occurred often or very often .
  2. Another study related that at least a third indicated genital fondling.
  3. 37 % of the girls reported sexual activity with other children involving exposure to or manual or oral stimulation of the genitals .

All of the studies mentioned were peer reviewed. From these studies , it appears sexual touching is present in some children which explains their basis of knowledge for sexual activity .

The defense used sound science to explain one of the threshold issues in defending child sex cases .

 

 

 

 

Shaun Martin and Scott Greenfield have recently commented on most criminal courts’ problem in explaining what is beyond a reasonable doubt . Proof " Beyond A Reasonable Doubt " is the most important protections that a citizen is given in facing criminal charges .Yet , it is  the hardest to explain to jurors and even to other lawyers . I am not aware of any jury instruction that adequately explains the concept.

The current debate of the definition of " Beyond A Reasonable doubt " was sparked by a recent case in the great state of California . California’s a  hotbed of traditional criminal jurisprudence . A temporary judge began with a series of examples of what beyond a reasonable doubt  means . The defendant was convicted and appealed . At the appellate level , the defendant argued that the trial court’s examples lowered the state’s burden of proof by his examples . The California Court of Appeals upheld the conviction . They cited some persuasive authority . In the opinion , the court reminds the trial court to be careful in giving examples . They cite the legal scholars John Lennon and Paul McCartney . The California Court’s suggestion is " To Let It Be" .Here’s Tennessee’s instruction on reasonable doubt .Notice the omission of the term beyond.

T.P.I. — CRIM. 2.03

REASONABLE DOUBT

            Reasonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability, after such investigation, to let the mind rest easily as to the certainty of guilt.  Reasonable doubt does not mean a doubt that may arise from possibility.  Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required, and this certainty is required as to every proposition of proof requisite to constitute the offense.

 

Continue Reading Can Beyond Reasonable Doubt Be defined ?

 One frequently asked question about Tennessee drunk driving laws is why am I being charged with two violations . Most police officers only charge one drunk driving violation in the original arrest warrant . Once the case is presented to the Grand Jury , the prosecutors often add an additional charge if a blood or breath test is going to be offered into evidence.

First , you are charged with driving ‘ Under the Influence" . It is found under Tennessee Code Annotated 55-10-401 (a)(1) . Under the influence is a broad term to encompass when a person’s ability to operate a car , truck , or motorcycle is impaired . Last year the legal definition changed and I expect  it will be changed again this year .

Secondly , you can be charged under the " DUI Per Se " law. You are guilty of drunk driving if your blood or breath alcohol is .08% or higher .. So the state will try to convict someone on either legal theory . One good thing is you can’t be convicted of both and receive two sentences . The convictions merge into one conviction by operation of law .

So , that’s the short answer to two charges . If the jury does not trust the chemical test or the basic facts of the case . The jury or the judge has an out for a guilty verdict .

                          

The Tennessee State Legislature is on the march to wipe out the exclusionary rule in this year’s session . A hearing was held last week . A Nashville  Assistant District Attorney  General  testified during the committee meeting . The discussion centered on a technical error in the search warrant which was later held to be invalid .Criminal defense lawyers  are worried that the Legislature is going to wipe out the exclusionary rule .

 

The exclusionary rule is used to refer to the exclusion of evidence because it was obtained by law enforcement officials in violation of the Due Process Clause of the Fourteenth Amendment or some provision of the Bill of Rights. The exclusionary rule prohibits the state from using evidence obtained in violation of of four constitutional rights :

  1. The right against unreasonable searches and seizures prohibited by the Fourteenth Amendment
  2. The right against self incrimination as guaranteed by the Fifth Amendment
  3. The right to counsel as guaranteed by the Sixth amendment
  4. The right to Due Process of law guaranteed by the Fourteenth Amendment

 

Tennessee first recognized the the validity of excluding evidence in violation of the Tennessee Constitution as early as 1922 . Mapp v. Ohio  is the case where the U.S. Supreme Court applied the exclusionary rule for the first time.

Continue Reading An Attack On the Excluisonary Rule

 

Lack of discovery sometimes leads to the image we see above. One of my major gripes with the criminal justice system is the limited discovery that is granted in criminal cases . In Part II of Criminal Discovery in Tennessee criminal law cases , we will cover Reports of Examinations and Tests  covered under Rule 16 of the Tennessee Rules of Criminal Procedure .

In today’s criminal trials ,  forensic evidence is taking center stage in the courtroom . From  DNA , tool mark evidence ,  blood alcohol reports , forensic evidence is critical to preparing a defense .

The government shall permit a defendant to inspect and copy or photograph the results or reports of physical or mental examinations , and of scientific tests or experiments .if :

  1. the item is within the state’s possession , custody , or control ;
  2. the district attorney knows or though due diligence could know the item exists ; and
  3. the item is material to preparing the defense or the state intends to use the item in it’s case in chief at trial.

 

Here is one common problem in drunk driving (DUI) cases . A defendant only gets the report . You get nada, zilch , and nothing on the tests and the procedure in how the sample was tested . You get a vanilla report without and supporting proof .The second out for the state is the claim is that is not in the posses ion , custody and control of the state . It’s in possession of law enforcement or some other agency .

Criminal defendants just want a level playing field .One area of reform is broadening the scope of discovery in Tennessee criminal cases .

No time for blog posts for awhile .  I was  in a first degree murder trial last week . I learned a few time honored lessons in the courtroom . Dress for success still applies in a criminal jury trial .

Here are a few tips :

  • Get a haircut . My client refused to get a haircut on one of the most important weeks of his life . Jurors like nerds . Get a nerd haircut .
  • Shave . No facial hair period .
  • Wear a dark colored suit . Think Brooks Brothers type clothing . Be conservative . At the least  , wear tan pants , white dress shirt , and a striped tie.
  • For women , no short skirts . Don’t show too much skin . You know what I mean .
  • Wear you pants at waist level . I know it’s the style to wear your pants low . Heck even my son wears his pants low . Jurors might not care for your fashion sense .
  • No jewelry .
  • No tattoos showing . Cover them if possible .
  • If you wear contacts , wear glasses for trial .

New York attorney Carol Schlitt wrote a article on what not to wear to court that is worth reading . Dress and demeanor are critical in the courtroom . Jurors judge you by what you wear and how you act . During those stupid bench conferences on whether some evidence should be admitted , the jurors are sizing you up . I know the judge will tell them about the presumption of innocence , but that doesn’t stop them from judging you on your appearance .

Here is my suggestion . Choose your outfits . Take a picture of them or take them to your lawyer’s office to see what they think . Think church or funeral attire .

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Piranha's Bar & Grill on Urbanspoon

                                              

I am taking a break in preparing for a murder trial so I thought I would post my most recent Nashville cheeseburger review. For this review , I stayed close to my office on Second Avenue in Nashville and visited one of my favorite lunch spots Piranha’s . Piranha’s claim to fame is it ‘s take on a Pittsburgh favorite a Primanti Brothers sandwich . The Primanti Brothers created a sandwich for truck drivers in 1933 so that the whole meal would be on a sandwich so the truck drivers could eat and drive. Visit  Piranha’s for that sandwich alone.

As I sat down to the bar , Kirk Evans came over and suggested I try the special cheeseburger Piranha’s style rather than the basic burger . I again changed course on the burger review and ordered the special.

First , the bun was a corn duster . It appeared to have a little corn meal on the outside . Buttered and grilled made a nice touch . Eight ounces of fresh Angus beef . Question ? Why is Angus considered the gold standard of beef ? It was served Primanti style with sweet and sour Cole slaw , provolone cheese  , and fresh hand cut french fries all smashed together . I added a fried egg on top for  a little extra goodness. It was so big I couldn’t get my mouth wide enough .

Great burger and great vibe makes Piranha ‘s one of downtown Nashville’s best  places to stop and visit .

Four out of five stars are given to Piranha’s .

 

             

George Korpita , a former New Jersey Judge , conviction for drunk driving has been upheld on appeal. According to the facts of the case , Judge Korpita burped 78 times while waiting to do the breath alcohol test . After , all those burps , the cop arrested him for drunk driving and violating the implied consent law .why is this case important in Tennessee DUI cases /

The former judge knew that the burping would prohibit a breath alcohol sample from being taken. Tennessee DUI laws require that there be no burping or belching for 20 minutes prior to the breath alcohol test being given for it to be admissible into evidence. The judge knew the law and tried to take advantage of it .

How does it help you ? Think back to the best test and think about whether you burped before the test . Some people might experience a micro burp. You know us Southerners . We are too polite to let a burp rip. We would try to suppress it . Belching and burping are defenses to a breath alcohol result in Nashville DUI cases.

           

What does this guy’s brain have anything to do with the criminal trial tip of the day. Everything is the answer. More specifically it is Mens Rea . Don’t overlook the mens rea in every case. i almost did .

In preparing for a criminal trial , one gets caught up in witnesses , getting your client ready to testify , jury selection , and the other things you have to do to get ready. Sometimes the basic elements of the offense are overlooked. I tried a child abuse case this week . One of the key issues was that the child witness recanted several times to various people including the forensic examiner . I got so caught up in that one critical component of the case , I almost forgot the mental element.

Mens rea is defined as a guilty mind or criminal intent. In a child abuse case , one of the elements is knowingly .

          "Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist.  A person acts knowingly with respect to a result of the person’s conduct when the person is aware that the conduct is reasonably certain to cause the result.3

            The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally

There is only one mental element in a Tennessee child abuse and neglect charge. The conduct must be knowingly . No other mental element will suffice like recklessly.

Bottom line is to not forget the mens rea of the criminal conduct .