Recently, the bail bond system has been in the news  due to the perceived inequality of the bail  bond system. The most common complaint is the bail bond system unfairly treats the poor. Some bonds are set so high that the accused cannot afford to make the bail bond. The result is people set in jail until the case is resolved. It can lead to people pleading guilty just to get out of jail.

Under the Tennessee Constitution , everyone accused of a crime is entitled  to a bail bond with one notable exception. The only exception is if you are charged with a capital offense. A capital offense is where the death penalty is sought. The primary purpose of the bail bond is to ensure the defendant comes to court and to protect the public.


The big question is how to make the bail bond system fair. Will only the 1% of the people be able to afford a bail bond ? One of the critical issues is how should the bond amount be determined. In Tennessee, most of the bail bonds are being set by the judicial magistrate. There is some guidance given to the courts in setting the bail bond pursuant to Tennessee Code Annotated 40-11-118. Personally, I have seen multiple offense DUI bonds in Sumner County Tennessee range from $50,000. to $100,000. The Tennessean reported today on a Metro school teacher had a bond set at $100,000 on a child pornography case in Davidson County.

in years past, some Tennessee counties established a fixed schedule in setting bail bonds. San Francisco used a fixed bond schedule until they were recently sued. San Francisco and 30 other cities or counties have adopted a scoring system established by the Laura and John Arnold Foundation which uses nine factors to establish the bail bond amount.

Being in jail awaiting to face your charges harms those accused of a crime. Low income defendants are even more at risk at losing their jobs. Low income jobs are not as secure and they can be replaced more easily. In an effort to get out of jail and return to their family, some people plead guilty of a crime just to get out of jail if they cannot afford to pay the bail bond. The offer of immediate freedom may cause people to plead guilty even when they are innocent or have viable defenses.

My father was a lawyer. One of his sayings that I remember quite well  is " Those with the capital don’t get the punishment." Now, it is those without the capital don’t get out of jail. maybe it is time to overhaul the bail bond system.

In closing, I know some folks around the state read my blog. I would invite your comments on  your local bail bond system operates.

The Nashville Metro Council has passed on second reading a proposal to decriminalize marijuana. Final reading is coming up soon. It has a ton of support locally and is expected to pass. The proposal is to make possession of marijuana less than one half ounce a civil matter much like a traffic ticket. It would carry a $50.00 fine. Nashville residents who enjoy a little 420 should not rejoice yet.


Is the local ordinance legally valid ? Probably not.

A local ordinance does not trump state law. The effort to decriminalize marijuana here in Nashville is just a waste of time. Nashville police can still enforce Tennessee state law governing the possession of marijuana.

Decriminalizing marijuana will only be effective if it done on a state level. It is a lot of talk with no real change in the law.

It never ceases to amaze me the laws that the Tennessee Legislature passes. I go to some committee meetings during the session. I have seen what goes on first hand. Most of the lawmakers are level headed. A law that was passed last session may now cost the citizens of Tennessee $60 million dollars in federal road funding. 60 million that won’t be used for fixing our roads or providing jobs.

Here is what happened. In their never ending battle to tinker with the criminal laws of Tennessee, DWI for drivers under 21 was eliminated. Anyone 18 or over can now be charged with DUI. The big difference in the under 21 DWI set the blood alcohol limit at .02. For a DUI, the blood alcohol limit is .08. The federal law sets the limit for those under 21 at.02 blood alcohol concentration. If Tennessee does not comply with the federal law on blood alcohol limits, Tennessee forfeits federal road money. We already lose money because the Legislature will not outlaw the open container laws.

Maybe the Tennessee state Legislature needs to spend some time fact checking before they change the DUI laws.

In an effort to fix the problem, Governor Halsam has called for a special session of the legislature to fix the problem. Who is going to pick up the tab for the special session ? The taxpayers.

The courts in Nashville,Tennessee will require random drug testing if you are charged with a multiple DUI charge. It is a condition of your bail bond. Positive drug test could mean that your bail would be revoked pending the outcome of your case. The test also looks for Ethyl Glucuronide (EtG). I added the fancy symbol above.

EtG is a biomarker for ethyl glucuronide. It is basically a  method to determine alcohol consumption.Here is what the Substance and Mental Health Services Administration has to say about EtG testing;

The EtG test is simply not reliable by itself to determine alcohol consumption. According to the SAMHSA advisory:

"Currently, the use of an EtG test in determining abstinence lacks sufficient proven specificity for use as primary or sole evidence that an individual prohibited from drinking, in a criminal justice or a regulatory compliance context, has truly been drinking.

"Legal or disciplinary action based solely on a positive EtG … is inappropriate and scientifically unsupportable at this time.


These tests should currently be considered as potential valuable clinical tools, but their use in forensic settings is premature."

SAMHSA recommends that biomarker tests be used as a tool to launch a more extensive investigation into possible alcohol use, but not as a stand-alone confirmation

Here is the takeaway. Get a lawyer that can present a scientific defense to your case. I see over and over again motions to revoke bond based on a failed drug test. It is well documented about false positives and EtG testing.

Henry Martin is the federal public defender for the Middle District of Tennessee. In today’s Tennessean, Mr. Martin wrote a very thoughtful letter to the editor about the duty of a public defender. One of his comments was about the pay of new lawyers. One New York law firm recently announced that new hires would get $180,000.00. The starting pay is way above the salary of public defenders and Tennessee state court judges. The bigger issue is the pay scale to appointed counsel for indigent defendants.

In some cases, the courts must appoint counsel to represent indigent defendants in criminal cases. The Constitution demands that all folks are entitled to a lawyer. Conflicts arise where a lawyer must be appointed to represent one accused of a crime.

The problem is the pay is lousy. Currently, an attorney for an appointed counsel gets paid $40.00 per hour in court and $50.00 for in court time. There is a cap on the amount of time one can charge on each case. Some folks reading this will think $40.00 per hour is great pay. Let’s look at it a little tighter.

What needs to be deducted from that number ?

  • Health Insurance
  • Office Rent
  • Saving for Retirement
  • Taxes
  • Office Expenses.

The list can go on.

The Tennessee Supreme Court has set up a series of listening tours on the subject. Get involved. Reach out to the folks that make a difference. The question is should we provide adequate compensation for those who represent folks charged with a crime.


The Tennessean’s follow up story to the Nashville Scene reporter being arrested for trespass had an interesting side story. The Tennessean complained in the story about not getting a copy of the complaint after multiple requests by the paper. It is standard procedure that no information is released in Nashville Davidson County until the warrant or indictment is served.

Attorneys for the accused cannot even get a copy of the arrest warrant. Inside the four corners of the arrest warrant, the affidavit of complaint is listed. It is a short summary of the evidence which supports the probable cause for the arrest. One cannot get a copy under the guidelines established by the booking office. Think you have an arrest warrant against you ? You can’t just call in and check. The folks at the booking office want you to come on down to check in person. If you have an active warrant, surprise you are now under arrest. The Tennessean complains they did not get a copy after requests are made. Sorry but you are not entitled to get a copy at this juncture.


Here is the problem. according to the article, the Davidson County Sheriff’s office released a copy of the complaint to the newspaper. The reporter, Carrie Wade Gervin was not served with the criminal citation until the next morning.

 It was a clear violation of long established policy by the Davidson County Sheriff’s Office. No information is provided on cases where the accused has not been served with process. Was the policy violated solely for the Tennessean ?

Nashville’s Mayor Megan Barry proposed her budget recently. Contained in the budget is three million dollars for improvements to the A.A. Birch Building which houses the Davidson County General Sessions Courts as well as the Criminal Courts of Davidson County, Tennessee. It was reported in The Tennessean that the three million dollars was earmarked to provide another courtroom so all the General Sessions Judges could have their own courtroom.

I spend several hours each week in the Birch. In fact, I spend more time in the courthouse than I do my office. I would submit that the new courtroom does not improve the efficiency of the building. Here are my suggestions to improve the Birch from a lawyer’s perspective.

Improve the traffic flow of the building. Arrive any morning before the court’s call the docket. You will see a mass of folks waiting to get on the elevator. Chaos. My suggestion is to add another elevator in the space now available. In the least add some type of stairwell from the first floor the second floor. The clerk’s office and a probation office are located on the second floor. It would at least reduce the use of the elevator.


Mayor Barry spend one million dollars redecorating her office. Now three million just to add a courtroom. The additional courtroom does not improve any functionality to the Birch. Nashville needs to spend its money wisely.

I would invite my fellow Nashville criminal defense lawyers to chime in on what they would do to improve the A.A. Birch Building.


The Marshall Project provides excellent commentary regarding the criminal justice system. A recent post was titled 13 Important Questions About  Criminal Justice We Can’t Answer. Today’s post focuses on one question. How many criminal cases are referred to prosecutors and how do they decide which to pursue.

I have never been a prosecutor so I know little of the internal workings of case evaluation in various district attorney’s offices. My insight is solely from a criminal defense lawyer’s perspective. Most cases are referred to the district attorney’s office by law enforcement.

The most common method for case going to the district attorney’s office for prosecution is an arrest warrant. After an arrest warrant is taken out, the case is docketed. An assistant district attorney will review the facts contained in the arrest warrant.The assistant district attorney (ADA) will then make a decision to prosecute the case, offer a plea bargain, or dismiss the case. I am not aware of any readily available data of the percentage of the cases they actually pursue.

In criminal cases in Nashville, Tennessee, the court may be reset to have police officers subpoenaed or private witnesses present. At the trial date, the ADA will interview any potential witnesses to further evaluate the case. if the case can’t be resolved a preliminary hearing should be conducted by the defense lawyer. It is a great opportunity to demonstrate some potential weaknesses in the case.

The case is also reviewed by the district attorney during the grand jury process. Again, there is no raw data available if the case is screened and who decides on whether to present the case to the grand jury. On rare occasions, the local grand jury can find there is sufficient evidence and refuse to return an indictment. Interestingly, the prosecutors in Cheatham County will sometimes allow the defendant to testify at the grand jury proceeding.

In some cases, law enforcement can present the cases directly to the grand jury for a sealed indictment. It is most commonly used in sex crimes , rape of a child, and aggravated sexual battery. The district attorney’s office reviews child sex cases with a team approach with the use of police, an ADA, and an investigator of the Department of Children’s Services.

In answering the question posed by the post, there is insufficient data to answer the question. The main takeaway is the power of the local district attorney’s Office in deciding which cases to pursue and which cases to drop.

Under Tennessee Code Annotated 39-17-1307 , it is illegal to carry a firearm with the intent to go armed. There are some exceptions under the law. For example, having a Tennessee carry permit is one of the exceptions. Ironically, Tennessee’s firearm laws does not define the word carry. The question is can one carry a weapon in a backpack or briefcase and not trigger a violation of the unlawful possession of a weapon law. Lawyers love definitions. Since there are no definitions of carry, it is wide open for the true meaning of carry. The basic definition of carry is to hold. What about a backpack ?

The California Supreme Court recently ruled that there is no distinction between carrying a weapon on ones person verses carrying one in a backpack that is strapped to a person. Here is a part of the court’s ruling…

"The distinction is untenable," Justice Ming Chin wrote. "It would require, for example that we treat differently a gun in a zippered pocket of a pair of cargo pants — which would violate the statute — from a gun in a fanny pack tied around the waist — which would not violate the statute — even though, from the perspective of easy access, the gun at the waist might be closer at hand than the gun in the knee pocket of the cargo pants."

It would be interesting on how the court’s rule in Tennessee. Would the courts give a broader interpretation of the law in Tennessee? After all, the Tennessee state Legislature addresses gun laws in every legislative session. This year it was allowing guns on college campuses. Since unlawful possession of a weapon is a misdemeanor, it is unlikely this type of case would make it to the appellate courts.


I was in the Circuit Court for Williamson County , Tennessee recently. The court announced that the public defenders had requested not to be appointed to any new cases for a short period of time. The judges agreed and started to appoint local attorneys to represent indigent defendants. The District attorney objected and requested to file an objection. The Tennessean reported on the story this week.

Caseloads for the public defender’s office is exploding across our country. Paying for indigent defense is not a popular subject for most of our citizens, but it is a constitutional requirement to provide effective representation. Can representation be effective when a criminal defense attorney does not have sufficient time to work on a case ? The complaint by the Williamson County, Tennessee Public Defenders is caseload volume.

The National Association of Criminal  Defense Lawyers ran an article in The Champion several months. It urged it was time to update the American Bar Association’s ten principles  of a public defense delivery system. One of the principles is declaring the unavailability of the public defender. One of the guidelines set forth is  to advise the court when their workloads become excessive. The report does not require the public defender to file any motion with the court. I applaud the trial judges in Williamson County in issuing the memorandum regarding the excessive workload of public defenders.

In reviewing the ABA principles for public defense, there is no procedure for prosecution objections. Lawyers have an ethical duty to not take on more cases than they can provide competent legal services. It is even more critical when a person’s fate is going to prison. In some discussions, some people say the assistant district attorneys have a bigger caseload than the public defenders. Let’s take a look at that issue.

The district attorneys have a fleet of investigators called police officers or detectives. They have access to a crime laboratory with folks with specialized knowledge. Some Tennessee district attorney’s offices have dedication victim witness coordinators whose job it is to help with the witnesses in the case. Most public defenders or court appointed lawyers do not have access to those resources. true, a public defender or appointed counsel can file a motion for funds for an expert or investigator but the purse strings are held by the Tennessee Administrative Office of the Courts.

Who knows better about how many cases the Public Defenders can ethically accept….the public defenders and the Judges or the District Attorney? it is not popular to support funding for indigent defendants. it takes courage to make tough decisions. the trial judges in Williamson County took a stand for ethical , effective , and high quality representation for those that simply can’t afford a criminal defense lawyer.