I came across an article in the Washington  Post by law professor Michael Krauss. The article is simply a list of books to read before you enter law school. It might also cover practicing lawyers since I have only read two of the books on the list. Lawyers get trapped into how they think about a case. Mr. Krauss opines this list is an overview of the values and challenges of the legal profession. Here is the list. You can go to the link to get a summary of each book.

  1. Truman Capote." In Cold Blood."
  2. Brooke Goldstein and Aaron Eitan Meyer. "Lawfare:The War Against Free Speech."
  3. Harper Lee. "To Kill a Mockingbird."
  4. Karl N.Llewellyn , "The Bramble Bush."
  5. Herman Melville, "Billy Budd,Sailor."
  6. Publius ,"The Federalist Papers."
  7. Patrick J.Schiltz,"On Being a Happy , Healthy and Ethical Member of an Unhappy , .Unhealthy , and Unethical Profession
  8. B. F. Skinner , "Walden Two ."
  9. Barry Werth , "Damages."

 

Confession . I have only read two books on the list. I read Billy Budd my junior year at Castle Heights Military Academy . I finally got around to reading To Kill a Mockingbird on it’s 50th anniversary .It looks like I might visit Amazon later today .

 

 

 

I spend last week at a continuing legal education conference in Ft .Collins , Colorado. The conference was the brainchild of Wisconsin DUI lawyer Andrew Mishlove and sponsored by the National College of DUI Defense. The conference had two components . First , it taught some basic science skills on blood alcohol testing. Secondly , it taught trial skills on how to communicate the science during trial. During the training , I had the opportunity to visit the Rocky Mountain laboratory . The Rocky Mountain Laboratory is a working forensic laboratory in Ft. Collins. I thought I would share my observations from my visit.

The tour was broken down into five stages with instructors at each stage to explain what was going into each critical step in analyzing a blood alcohol sample.

  • Receiving the Blood Alcohol Sample.

The first step in the forensic toxicology lab is to properly document the sample when it arrives at the lab. A blood alcohol sample can be dropped off at the lab or mailed into the lab. The receiving clerk takes in the sample. The clerk must create a paper trail to maintain the chain of custody, assign the blood sample a unique lab number and takes steps to make sure the sample belongs to the right person. At the Rocky Mountain Lab , the receiving clerk makes a visual inspection of the sample to make sure the seal was properly in place and to ascertain if the blood had clotted.

  • Pipetting  

The next step is the blood must be pi petted into a vial for testing. A pipette is simply a tool to measure exact portions of a blood sample to be placed into a vial. Only a portion of the blood sample is used for testing.

  • Preparing the Sample

Once the sample is pi petted, it is ready to be prepared. You are probably asking yourself why does it need to be prepared ? All blood alcohol samples usually have propane added to the vial as a n internal standard. Also,  a salt solution is added.The sample was placed into ma numbered slot to make ascertain the lab tested the right sample.

  • Running the Sample.

After the sample is prepared , it is ready to be tested using a head space gas chromatography with flame ionization detection. The machine will test numerous samples. The first step is to place all the samples , controls , calibrators , and blanks onto a tray or carousel. The samples are then tested by the gas chromatography. The samples are reported using a computer software program. The machine does all the testing.

  • Maintenance.

The gas chromatography machines don’t run forever without some maintenance .Before the sample is vaporized by the flame ionization, the sample is run though capillary columns. The capillary columns need to be clipped and replaced on a periodic basis.

This is just a brief overview of my day at the Rocky Mountain Laboratory  allowing some folks to visit the lab. For some reason , the Tennessee Bureau of Investigation does want to give me a tour. I would highly recommend this course for all DUI defense lawyers

 

I made a court appearance today in Van Buren County Tennessee today. I have appeared in all Middle Tennessee counties with the exception of Cannon County Tennessee . It was a beautiful drive especially between Sparta and Spencer. Here is a little information on the general sessions court procedure.

General Sessions Court in Van Buren County happens on Thursday. After you have been arrested , your first court appearance will be in a week or so from the date of arrest . The first court date is not that big of a deal. No police officer is present . If you need time to hire a lawyer , the court will grant you a continuance . At the first court date , you may be able to settle the case via a plea bargain . The second court will be critical. The officer is subpoenaed and you must be ready to deal with your case.

One side note , Highway 111 is often a shortcut for folks traveling to and from Bonnaroo . So ,obey the speed limit and travel safely.

This post is a practice update from Williamson County , Tennessee . It appears the courts may not accept plea bargains in cases involving periodic confinement. Periodic confinement is simply allowing a defendant to serve their jail sentence over a period of time rather than to serve the sentence straight.  Periodic confinement is authorized by statute found in T.C.A. 40-35-307 .

An example is that the government wants a sentence of ten days , but during the plea bargain process , the parties compromise and agree to the ten day sentence to be served on weekends. One purpose of the periodic confinement is to save someones job.

Most counties allow some types of periodic confinement. I don’t know the policy reason for denying periodic confinement. It does not apply in cases where there is a mandatory minimum such as DUI second or DUI third charges . The takeaway is to always be aware of local customs . Even though the law of Tennessee is uniform from Memphis to Knoxville , the application changes from county to county.

I enjoy helping other lawyers in their DUI cases. DUI defense is a complex area . The law changes constantly. I remember when I started and the help that I received. A DUI lawyer should know some basic stuff.

One thing a DUI lawyer should know is what the per se limit of the blood alcohol concentration to convict one of driving under the influence in Tennessee . A lawyer with a paying client did not know the answer to that basic question. The blood alcohol limit needed to sustain a DUI conviction is .08 %.

 

To follow up on this topic , I will post the basic concepts everyone should know about DUI defense.

Under Tennessee law, one accused of a crime is entitled to request discovery if your case is in circuit or criminal court . Rule 16 of the Tennessee Rules of Criminal Procedure only apply in circuit or criminal courts . The rule requires the state to provide certain types of evidence to the defense if requested. A request for discovery does not apply in the general sessions courts where most cases begin.

I don’t know why the Tennessee Supreme Court limited the scope of discovery in Tennessee courts. Here is a recent case study of a aggravated assault case that I recently handled in Rutherford County ,Tennessee . It illustrates the need for discovery in all courts.

I head down to General Sessions Court in Smyrna , Tennessee ready for a preliminary hearing. Based upon my early investigation ,it was a case of credibility of who do you believe . Luckily , a seasoned assistant district attorney was assigned to the case. In discussing the case prior to the hearing , I learned there were some third party witnesses .The assistant district attorney provided a copy of all statements including the Jencks statement of the complaining witnesses. The ADA was not required to give me these statements by rule. I was able to review the statements which changed my mind about the case.

What happened next ? The aggravated assault charge was amended to simple assault. No felony.No  jail. The State of Tennessee resolved a case without months of needless litigation because the ADA  realized that disclosure of the evidence might be the best route to take.

The takeaway is the state should disclose discovery in any criminal proceeding. I am not suggesting a wholesale discovery request but statements , reports , and videotapes would streamline the process .It probably would lead to a fair criminal justice system.

Last week Vanderbilt basketball coach Kevin Starlings made ESPN Sportscenter for a remark that Stallings wish he would never have yelled. Right after Vanderbilt beat Tennessee , a player made some gestures that could be construed as unsportsmanlike . Stallings yelled at the player after the game " I am going to kill you". It happens all the time . One might make that statement not meaning any harm. However , could Coach Stallings been arrested for that threat ?

Under Tennessee criminal law , one can be charged with a simple assault under three different theories. Tennessee Code Annotated 39-13-101 sets forth the following elements of simple assault.

39-13-101. Assault.

 

(a)  A person commits assault who:

     (1)  Intentionally, knowingly or recklessly causes bodily injury to another;

     (2)  Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or

     (3)  Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.

Under the facts of the Stallings incident , (2) could be applicable .The key wording is did Stallings intend or knowingly cause the player to fear imminent bodily injury. The answer to the inquiry is know. Stallings was upset and said some things he regrets. Let’s look at whether threats could get one arrested. You ball up your fist and yell at someone that you are going to punch them in the nose.In this example there are some other facts that may cause the person to fear getting hit . Also , the threats can’t be remote like a threat by text or phone. No one is in close proximity .

 

The big takeaway is be careful what you say and yes you can get arrested for making verbal threats in the right situation.

Changes to Tennessee’s !2 hour hold in domestic violence cases is set for committee review this afternoon . Current law requires that anyone arrested for a domestic violence charge must be held in custody for 12 hours before one could make a bail bond. A judge has discretion to waive the 12 hour hold . In light of one high profile case , the Tennessee State Legislature is pushing a bill to remove all discretion from judges and magistrates.

Domestic violence is the new crime du jour that is a political football . Just read State Senator Steven Dickerson op-ed piece in yesterday’s Tennessean . In Senator Dickerson’s article , he speaks of all the problems of the domestic violence problem. It is article with some facts but no solution except bashing the courts . Here is some critical facts to consider;

  • If Metro Nashville Police show up in response to a domestic violence call , someone is going to be arrested no matter what a police investigation reveals.
  • During the change in the domestic violence docket Public defender stated at a meeting that 70 % of the domestic violence cases were dismissed.
  • Some people might be innocent of the charges.

The legislature must trust the courts to use their discretion in setting bond and the conditions of the bond like waiving the 12 hour hold. There can be no cookie cutter approach There used to be a concept of the separation of powers between the branches of government . For example , a person may be arrested days or weeks after the event  is still subject to a 12 hold.

Representative William Lamberth is sponsoring the bill in the house. To his credit , he has sought out discussion on the issue. Here is my solution to the 12 hour hold . If the arrest is made within 6 hours of the event , put the 12 hour hold into effect. After that time , there has been some time for a cooling off period which the statute intended. Better yet trust the judges to use their discretion. The voters trusted them to do their job. Most magistrates will seldom remove the 12 hour but don’t take away from the discretion of the courts when they are the ones that hear some facts of each and every case.

 

Here is my question to the members of the Tennessee State Legislature , would you be okay with your son or daughter being held in jail if they are not guilty of domestic violence.

You can check out the debate here via web cam.

Earlier this week , I posted on the new changes in the docketing of domestic violence cases in Nashville Davidson County Tennessee. With new concepts in how to process domestic violence cases also comes new strategies in prosecuting the cases. It used to be if a witness did not appear in court after being subpoenaed then a criminal defense attorney would make a motion to dismiss based on the failure of the state to be able to prosecute . The government has gotten creative in trying to make a case where the witness does not show up to court.

First , the District Attorneys Office has hired two folks to go get witnesses and bring them to court if they do not appear. The second new tactic is the use of exceptions to the hearsay rule.

It is a bedrock principle of our criminal justice system is the right to confront and cross-examine witnesses that are called to testify against you. The Supreme Court of the United States affirmed that constitutional protection in Crawford v Washington . The bottom line of the court’s holding was that the Confrontation Clause prohibits the admission of testimonial statements unless the defendant has an opportunity to cross-exam the witness. The court went on to allow some exceptions to the rule.

Will Allensworth gave a great presentation on the new ways the government is trying to introduce out of court statements. Here are the ways that the government is attempting to introduce these out of court statements.

  • Forfeiture by Wrongdoing. This is a exception to the hearsay rule and the rule of confrontation in which a person has engaged in wrongdoing to procure the unavailability of the declarant as a witness. An example of this is telling the witness not to come to court. So be careful what you say or text.
  • Excited Utterance Exception to the Hearsay Rule. Rule 803 (2) allows the admission of statements relating to a startling event made while the declarant was under the stress of excitement caused by the event.
  • The statement was not testimonial. The Tennessee Supreme Court laid out a list of nonexclusive factors on whether s statement is testimonial in the Franklin case.

 The take away  point for a person accused is not to create a record of telling someone not to show up in court . For the criminal defense lawyers , better know the rules of evidence and when is a statement testimonial.

 

Last September , there began a shift in the procedure in how domestic violence cases are handled in Nashville Davidson County Tennessee. It has been almost six months  since some major changes have been instituted. It all started with a study from Mayor Karl Dean’s office on how to combat domestic violence in Nashville . Here is a summary of the changes.

  • The government has created the Jean Crowe Advocacy Center . It is located on the first floor of the Ben West Building. The purpose of the center is to be a place for alleged victims of domestic violence to go rather than going to court. It is a belief among some criminal defense attorneys that they can no longer speak with witnesses in the hallway to learn more about the case.
  • The General Sessions Judges have created a daily domestic violence docket in Courtroom 4B in the A.A. Birch Building. You get a settlement date within days of your arrest and then a trial date within 30 days of your arrest.
  • The District Attorney’s Office have created two positions that they basically go get witnesses if they do not appear in court.
  • There are plans for a special docket to handle jury trials for domestic violence cases . Again , the plan is to expedite these cases.
  • There are more assistant district attorneys staffed to handle these dockets.

Everyone agrees that the effects of domestic violence are detrimental to the person being abused and the children who witness the abuse. However , the police’s hands are tied on some cases. It has been a long standing policy that if Metro police respond to a domestic violence call an arrest must be made. What about a fair investigation of what happened ? Does every case need to result in an arrest ? I know the police are fearful of what might happen if an arrest is not made . It is a debate that has gone on for a long time of balancing the safety of the citizens verses the rights of the accused.