It is the Christmas season. Christmas brings dreams of presents under the tree and goodies to eat. Since , I no longer get a toy. I was making a wish list for the criminal justice system in Tennessee. Here they are in no particular order:

  • Dash cams for all patrol cars in Nashville Davidson County, Tennessee.
  • Open discovery. It is a concept where the district attorneys open their file to let you look at the evidence.
  • Abolishing the Jenck’s Act. The Jencks Act codified under Rule 26.2 of the Tennessee Rules of Criminal Procedure. An attorney only gets to read a witnesses statement after they testify. How can you make an effective decision on whether to plea guilty.
  • The right to take a deposition of the primary police officer in charge of the case.
  • The rates for those representing indigent defendants be increased.
  • For the return to an independent judiciary.
  • District Attorneys who present the correct charge rather than indicting a more serious charge to force a plea bargain.
  • A Tennessee legislature that makes solid judgments rather than make a knee jerk reaction to curry favor to certain segments of the voters.
  • End mass incarceration.
  • Protect the Fourth Amendment.
  • Allow partial expungements.

My associate has two Christmas wishes.

  • A database of all negative alcohol screens.
  • A database of all false positive drug dog hits.

I bet I don’t get anything in my Christmas stocking.

 

It is Cyber Monday. All through the house goes the click of a mouse buying presents to be placed under the tree. While Santa is shopping the evil Grinch is trolling for your credit card information. I just read a news release by Cybersecurity expert Tony Perez. Here are some of the takeaways.

1.What are some of the most important things to protect you from Identity theft ?

  • Don’t answer texts or emails from unknown sources.
  • Don’t answer emails from the IRS because they don’t send emails.
  • Don’t answer emails from Nigeria or other strange countries.
  • Remove your personal information from your computer.
  • Create passwords with numbers, characters and do not use your account name.

2. is it okay to have a website store your credit card information ?

It depends if they have a green URL certificate .

3.Should you have your social security number on medical documents ?

  • You should try to avoid doing so if possible. If they require it, ask about how they protect your information.

Tennessee’s identity theft laws are lengthy. Here is a link to Tennessee’s law on identity theft.

The bottom line is to protect your online identity just like you would your wallet or your purse.

 

 Metro Nashville Police Department lobbied for it’s own crime lab. Supported by former Mayor Karl Dean, it was funded. Now blood alcohol reports are being generated by the lab. The key question is whether having a forensic crime lab run by the same folks who are prosecuting the crime create an inherent conflict of interest. Secondly, does having the same lab as the police department create a bias in reporting ?

In 2009 , the National Academy of Sciences released a study on Strengthening Forensic Science in the United states. The study dealt with the entire field of forensic science. One area of study was the independence of forensic science laboratories. One finding was that a system where the crime lab reported to the head of the law enforcement arm leads  to significant concerns related to the independence of the laboratory.

 

One of the recommendations to maximize independence from law enforcement was to remove all public forensic laboratories from the administrative control of law enforcement agencies or prosecutors’ offices.

Before the opening of the Metro Nashville crime lab, most forensic science duties were performed by the Tennessee Bureau of Investigation. At least there was a level of independence in that there agents were not actively prosecuting the cases. All current blood alcohol tests in DUI cases are being performed by the Metro crime lab. Nashville was aware of the forensic science report yet put the forensic crime lab in operation. The big question is whether the lab is independent or biased in its reports.

Charlie Sheen disclosed last week on the Today show that he was infected with the AIDS virus. During the interview, Mr. Sheen denied knowingly having unprotected sex without the other persons knowledge.

Under Tennessee criminal law,  person is person commits the offense of criminal exposure of another to HIV, hepatitis B (HBV) and hepatitis C (HCV) when knowing that the person is infected with HIV, HBV or with HCV, the person knowingly engages in intimate contact with another. It is not a defense that the sexual contact was protected. It is a defense that the person consented to the sexual act with knowledge that the person was infected. See T.C.A. 39-19-109

it is a Class C felony for exposure to HIV. A Class C felony carries a full range of punishment from 3-15 years. Exposure to hepatitis is a misdemeanor.

While at my desk this week, I opened a email about a recent death. The email had a great line in that we should send flowers while someone is alive rather than waiting till death. I thought about and it makes perfect sense. So I thought I would express my gratitude to my first mentor. It is not flowers but I wanted to say thank you.

Nashville Lawyer Jack Butler offered me a job right out of law school. Jack taught moot court at the Nashville School of Law for years. He offered me a job and I took it. I started in his office in December 1994. Jack assigned me a case to help him try in January.

Here is short story of my first trial. We worked out who was doing what part of the trial. The major part of the trial was a recreation of the breath test. My first role was jury selection. After lunch, we were supposed to start the trial with opening statement. jack wasn’t back yet. The judge asked me if I was ready. I stood up and stated to the court that jack wasn’t back yet. The judge told me that Jack told the judge he wasn’t coming back. So off I went.

The big part of the trial was a recreation of the breath test. Our client took a asthma inhaler right before the breath test. it made a big difference in the result. When I got back to the office, Jack asked how much time did the judge give him. My reply was none. Jack responded that he had to give him some jail. My response was not if the  jury found him not guilty.

I just wanted to express my gratitude to Jack for being my first mentor. Thanks. I will remember you for as long as I live. For my old lawyer friends take someone under your wing and pass on your experience.

Jack is not in the best health right now. I would hope those that knew him or were taught by him to send him a card on how he helped them in their legal career.

The Tennessee State Legislature pasted a DUI law several years ago that authorized a mandatory blood draw in multiple DUI prosecutions, accidents involving serious bodily injuries, and if a minor child was a passenger in a car driven by a DUI driver. There  were constitutional issues raised on a seizure of a person’s blood without a search warrant. The U.S. Supreme Court dealt with those issues in McNeely v. Missouri.

In McNeeley, the court held that a search warrant may be required to obtain a defendant’s blood sample. Exigent circumstances did not always outweigh the search warrant requirement. Soon after McNeeley was the law of the land. Tennessee law enforcement began obtaining search warrants in those cases. Law enforcement soon realized it was not that difficult to get a search warrant on multiple DUI offenders. Regular patrol officers soon trained to get a blood alcohol search warrant in all DUI cases. District attorneys began drafting template search warrants for local police. The Tennessee highway Patrol even had a template. All the arresting officer had to do is fill in the blanks of the template and present it to the magistrate.

Several counties across Middle Tennessee apply for a  a blood alcohol search warrant in all DUI investigations. Williamson County, Tennessee is the primary county where search warrants are used all the time.

The result for those charged with a DUI and those defending DUI cases is a more vigorous defense. Was the magistrate truly neutral and detached ? Was there a Franks violation in that the police officer make some reckless statements on the affidavit for the search warrant.

it reminds me of the old adage. Be careful what you ask for, you just might get it.  

 

Last month, we had a big trial scheduled. We spend a lot of time preparing for trial and the possibility of our client testifying. Luckily, the government dismissed the case on the morning that the jury trial was to start. As I was going through my notebook today, I ran across a list of courtroom tips. They are worth sharing. Being in the courtroom is stressful for lawyers let alone someone  facing losing their liberty. Here are my tips for courtroom success.

 

  • No facial expressions when someone is testifying.
  • No talking when the judge is speaking.
  • No talking when the witness is testifying.
  • Dress appropriately
  • Be careful when you decide on a bench trial or a jury trial.
  • If you decide to testify, be prepared to answer the judge’s questions.
  • Answer the question. Do not try to rationalize your answer.
  • Be polite and respectful when answering the question.

I know these tips are simplistic. Just remember. You only get one chance to get it right. you need to do everything possible to win your case.

Stacey Barchenger  reported in today’s Tennessean on the oral arguments held yesterday in State v. Reynolds. The issue raised by the Court of Criminal Appeals was whether Tennessee should adopt the good faith exception. Now the Tennessee Supreme Court has the case. Tennessee has not adopted the good faith exception under the Fourth Amendment.

In Reynolds, the trial court suppressed Ms. Reynolds blood alcohol test. Ms. Reynolds was charged with vehicular homicide. Reynolds’ lawyers filed a motion to suppress her blood tests because her warrantless blood draw. At first, the court denied her motion then granted the motion after medical testimony. In the opinion’s concluding remarks, the court wrote that this case would be a  case to determine if the officer’s actions were covered under the good faith exception rule of Fourth Amendment law. Good faith was not raised by either party on direct appeal.

Here is a short definition of what is good faith;

An exception to the exclusionary rule barring the use at trial of evidence obtained pursuant to an unlawful search and seizure. If officers had reasonable, good faith belief that they were acting according to legal authority, such as by relying on a search warrant that is later found to have been legally defective, the illegally seized evidence is admissible.

The good faith exception was adopted by the U.S. Supreme Court in Leon. Tennessee has not adopted Leon. It appears Tennessee is on the verge of adopting the good faith exception. The Tennessee Constitution has always been interpreted as giving more protections that the U.S. Constitution. It looks like we are going to find out soon if that is still the case.

 

Former Tennessee Supreme Court Justice William Koch was invested as the Dean of the Nashville School of Law this past weekend. After years of service on the Tennessee Court of Appeals and the Tennessee Supreme Court, Dean Koch was named the Dean of the Nashville School of Law in the spring of this year.

The Nashville School of Law (NSL) has a unique mission in providing legal education to it’s students. It provides an avenue for students to obtain a law degree at night. Most students at the NSL work during the day then attend classes at night while often supporting their family. The school provides an opportunity to get a legal education they might not otherwise obtain. Classes are taught by practicing lawyers and judges who teach real life law with practical applications rather than a traditional law school that might be focused on the abstract.

Tony Gonzalez of WLPN reported on Dean Koch’s appointment. After listening to to the piece while driving to court one morning, I knew Dean Koch was the right choice. Dean Koch embraced the history and tradition of the school in producing top notch lawyers and judges. One trait that Dean Koch praises is that most of the students have life experiences outside of law school which makes them better to jump into practicing law. NSL lawyers mix work experience and the law to make themselves a well rounded lawyer rather than study the law in a vacuum of academia.

One component of Dean Koch’s agenda is to engage the alumni.  support him in that endeavor. I am proud to be a graduate of the Nashville School of Law. For my first two years of law school. I left work at six and sped to class. I worked everyday then off to classes that went to ten. My last two years of law school, I clerked for a local trial judge. I was able to see what happens in the courtroom and apply the real world with what I learned. My path is not dissimilar than most students. I applaud Dean Koch’s appointment. I encourage all former graduates to get behind our new Dean.

Stacey Barchenger wrote a story in today’s Tennessean about a court filing calling for mass expungements. Before I comment on the article. I would like to acknowledge The Tennessean is once again covering the local courts. When I first started as a law clerk then a lawyer , Kirk Loggins covered the courthouse beat. Kirk did a great job covering the issues and bring a closer inspection on what goes on at the Courthouse. Ms.Barchenger has taken over the beat and has provided in depth reporting on the courts including the Vanderbilt rape trial. it was a welcome addition to the local news coverage.

Mr.Horwitz gained some exposure by filing the petition. However, it will never take place because of the manpower that it would require. It should have been done by the lawyers who represented the folks years ago. typically, a person may be arrested on multiple charges. I see a marijuana charge plus a drug paraphernalia charge. You plead on one charge and get the other dismissed. You can get all charges expunged that are dismissed or retired. One service I provided is to have all dismissed charges expunged from your record that are dismissed. I have one staff person that handles all expungements. If your lawyer did not do this for you, you should go to the second floor of the A.A.Birch Building and request an expungement order. If court costs were assessed, you must pay the court costs in full. If you leave out of Nashville and want your record cleaned up leave a message on our website. Marcia will see if we can help. We charge a small fee if we did not handle the case from the beginning.

We will see what happens. The filing made a splash. It is yet to be seen if it will have a real impact.