Tuesday, May 31, 2011

U.S. Supreme Court Clarifies Federal Witness Tampering Statute

Last week the Supreme Court clarified the meaning of the Federal Witness Tampering Statute which makes it a crime "to kill another person, with intent to... prevent communication by any person to a Federal law enforcement officer" regarding "information relating to the... possible commission of a federal crime." Fowler, the petitioner in this case, killed a local law enforcement officer who discovered and prevented Fowler from robbing a bank. The question for the Court was whether Fowler intended to kill the officer in order to prevent communication about the crime to a federal officer.

In a 7-2 decision, the Court rejected the argument that there only needed to be a possibility of potential communications with a federal officer. Rather, the Court held that the statute requires a "reasonable likelihood" that the would-be recipient of the information was a federal official. Specifically, the Court stated, "it must be reasonably likely under the circumstances that (in the absence of the killing) at least one of the relevant communications would have been made to a federal officer." This test requires more than a mere possibility, but less than beyond a reasonable doubt or preponderance of the evidence.
The Court ultimately remanded to the trial court with instructions to determine if there was a "reasonable likelihood" that the officer would have communicated information about Fowler's crime to federal law enforcement.

Legislature Loosens Warrant Requirements in Tennessee

  • The Exclusionary Rule Reform Act: Tennessee

  • The TN Legislature recently passed The Exclusionary Rule Reform Act, easing the state's strict search warrant requirements. Specifically, the law provides a good faith exception to the suppression of evidence obtained as a result of mistakes or errors in search warrants. If an officer, in good faith, makes a typographical error in a search warrant, any evidence obtained pursuant to the warrant will be admitted at trial.

    The law was prompted by a case out of Nashville involving a typographical error on a search warrant. Officers seized large amounts of drugs from the defendant's home, bu the court was forced to suppress the evidence because the typographical error rendered the warrant invalid. According to the Exclusionary Rule of the Sixth Amendment, any evidence seized as a result of an invalid warrant cannot be used against the defendant at trial.

    The Legislature defines good faith as,

    "An unintentional error made by a law enforcement officer, court official or issuing magistrate in the form, preparation, issuance, service, execution,filing and handling of copies, or return and inventory of a search warrant."

    The law also extends the good faith exception to situations where an officer has sufficient information describing items to be included in a warrant, yet the magistrate neglects to include them. Lastly, the law protects any reliance on a law that is subsequently ruled unconstitutional.

    We previously discussed this legislation when it passed in the house here.

    This new exception to the exclusionary rule will take effect on July 1, 2011.

    Saturday, May 28, 2011

    TN Supreme Court Clarifies Mandatory Joinder Rule in Robbery and False Report Case out of Memphis

    In this opinion, the Supreme Court TN analyzes the mandatory joinder provisions in Tenn. R. Crim.P. 8(a)(1)(A). 

    Cedrick Johnson knew better than to call the police to his home and report that his car had been stolen from his girlfriend's house. But when your mother tells you report a crime, you call 911. The problem is that after police arrived and questioned Cedrick, he capitulated and said that really his car had not been stolen after all but that he had loaned it to a friend who never returned the car. Unfortunately for Cedrick, the auto and Cedrick seemed to fit the description for a recent robbery.  The victim of the robbery picked Cedrick out of a photo line-up as the culprit.  At issue here are the separate prosecutions for filing a false report (the car) and a separate prosecution for robbery.  Both the trial court and the Court of Criminal Appeals ruled that the mandatory joinder provisions of Rule 8 required a single prosecution. The TN Supreme Court overturned those rulings.
    We have determined that the majority of the Court of Criminal Appeals erred by finding that Mr. Johnson’s initiating a false police report offense and aggravated robbery offense were part of the same criminal episode....
    We have determined that the two charges against Mr. Johnson were not part of the same criminal episode because, based on the facts of this case, they did not occur simultaneously or in close sequence and did not occur in the same place or in closely situated places. Mr. Johnson initiated the false police report twelve hours after he had allegedly robbed Mr. Watkins. The record does not directly address what transpired between the alleged robbery and the initiation of the false police report. Accordingly, there is no basis for concluding whether a break in the action interrupted the temporal proximity of the two offenses. Likewise, the record fails to demonstrate that the two offenses occurred in the same place or in closely situated places.
    The Supreme Court examines the history of Rule 8 and  the ABA influences and other state's analysis of the principles behind the development of Rule.

    Friday, May 27, 2011

    United States Supreme Court Orders Release of Thousands of California Inmates

    The Supreme Court, in a 5 to 4 decision, issued a sure to be controversial holding regarding the prison conditions in California state prisons. Justice Kennedy, writing for the majority, ordered the release of approximately 32,000 inmates from California prisons.

    The constitutional issue is whether prison conditions are so bad as to violate the Eighth Amendment protection against cruel and unusual punishment. Evidence was presented to the Court regarding the prison conditions, specifically those involving inmate access to physical and mental health care. The Court goes into gruesome detail when it describes the overcrowding, noting, for instance, a gymnasium that houses over 500 hundred inmates at a time. Justice Kennedy even attaches to the opinion three black and white pictures of various locations in California prisons. The Court came to the conclusion that the constitutional violations were caused by overcrowding so the only reasonable solution is to require California to release a significant number of prisoners.

    The dissenting opinions (separate ones by Scalia and Alito) address the obvious drawback to the holding: the potential increase in crime. Justice Alito stated, "I feel that today's decision, like prior prison release orders, will lead to a grim roster of victims."

    Given the controversial holding, what will be interesting to see is how the State of California will decide whom to release from prison. What crimes or persons are insignificant enough to warrant an early release? Where this line will be drawn has yet to be determined. 

    Thursday, May 26, 2011

    John Edwards 'did not break the law,' Greg Craig says. US Attorney ready to Indict.

    John Edwards 'did not break the law,' Greg Craig says. The US Attorney in Raleigh appears ready to indict, at issue is campaign money that came from at least two Edwards supporters during his presidential run. 

    The allegations stem from criminal campaign finance violations in connection with his affair with Rielle Hunter. Specifically contributions from his national campaign finance chairman, Fred Baron, who died in 2008, and banking heiress Rachel "Bunny" Mellon, who is 100.  The fact that Barron died and that Bunny Mellon is 100 has made the investigation long (two years) and ponderous.
    Baron provided hundreds of thousands of dollars and loaned his Aspen, Colo., estate to Hunter for Edwards benefit, allegedly to cover Edwards fathering her child.  Mellon provided about $700,000 in campaign contributions and Edwards referred to her generosity as "Bunny money."
    Former White House counsel Greg Craig is representing Edwards and the fact that he is lashing out so hard against prosecutors tells me two things.  First, no deal has been worked out with the government.  Second, a decision on the indictment is near.  After a two year investigation and the sordid details of the affair, and worse yet, the cover up by Edwards including having a staffer (and father of three) claim fatherhood of Hunter's child surely points in the direction of an indictment.  

    For more on this developing situation see the Washington Post, Politico, and the Charlotte NewsObserver.

    Wednesday, May 25, 2011

    CCA Affirms Murder Conviction But Reverses Conspiracy

    This Court of Criminal Appeals opinion out of Knoxville is interesting in that it upholds the main conviction for first degree murder; but, it also sets out the standards by which a conspiracy to commit murder may be met.  In doing so, the Court reverses the jury conviction for conspiracy.

    The Court found that there was no evidence produced at trial to suggest there was an agreement between Mr. Lane and another to kill the victim. There was insufficient evidence to support a conviction for conspiracy. Simply because Lane was present with another, and that person was quiet and did not interfere after the shooting, and left with the Mr. Lane was not enough to support a finding of conspiracy. 
    Mere knowledge, acquiescence, or approval of the act, without cooperation or agreement to cooperate, is not enough to constitute one a party to a conspiracy. There must be intentional participation in the transaction with a view to the furtherance of the common design and purpose. Solomon v. State. 

    However, the conviction for first degree murder is affirmed.

    Monday, May 23, 2011

    Supreme Court's Kentucky v. King Resonates Around US

    KENTUCKY v. KING is causing a ripple through the country as people figure out just what the decision means for personal privacy in homes and what is left of the Fourth Amendment. See, Forbes Blog New York Times, and the Los Angeles Times.
    According to Kentucky's Supreme Court, the exigent-circumstances exception didn't apply because the police should have foreseen that their conduct would lead the occupants of the apartment to destroy evidence. Overturning that finding, Justice Samuel A. Alito Jr. wrote for the court that as long as the police officers' behavior was lawful, the fact that it produced an exigent circumstance didn't violate the Constitution. That would be the case, Alito suggested, even if a police officer acted in bad faith in an attempt to evade the warrant requirement.

    Sunday, May 22, 2011

    Court of Criminal Appeals Remands Assault Case for Restitution Reconsideration

    The Tennessee Court of Criminal Appeals on Friday, remanded the case of State v. Carlton Horton, back to the trial court to determine if restitution was appropriate for Horton’s crime. Carlton Horton was convicted of domestic aggravated assault as a standard offender for stabbing the victim numerous times during the course of an argument. He was sentenced to serve eleven months and twenty-nine days in prison, eight years of probation, and to pay restitution of $4,048.10 for the victim’s unpaid hospital bills.

    The question on appeal was whether the trial court adequately considered Horton’s ability to pay restitution pursuant to The Tennessee Code § 40-35-304(d). The pertinent part states:
    “In determining the amount and method of payment or other restitution, the court shall consider the financial resources and future ability of the defendant to pay or perform.”
    Horton argued, and the Court of Appeals agreed, that the trial court did not adequately consider his financial resources or ability to pay. At trial Horton reported no assets, and testified that he received $200.00 a month in food stamps, that he was unable to work because of illness, and that he owed a debt of $1,100.00 to a loan company. Horton also testified, interestingly, that he was able to maintain a $100-a-day cocaine habit. Horton’s testimony is obviously conflicting because while he states he has no income or assets, he manages to support an expensive cocaine addiction. The Court of Criminal Appeals decided that not enough attention was paid to the evidence of Horton’s financial abilities, and remanded the issue back to the trial court for further consideration. Mitch Carter was the Chattanooga attorney who successfully argued this case at the CCA.

    Thursday, May 19, 2011

    New DUI Bill for Tennessee

    The New DUI Bill : two new ways that force a blood draw of suspected DUI drivers.

    A new bill regarding DUI offenses was passed by the Tennessee Legislature today. Essentially if a driver gets pulled over because of a suspected DUI, the officer can now administer a blood alcohol test regardless of whether the driver consented to the test if the driver falls under one of two categories. The first is if the driver has been previously convicted of a DUI, vehicular homicide due to intoxication, or aggravated vehicular homicide. The second is when there is a child in the car under the age of 16. If a driver falls into one of these two categories and the officer has probable cause to believe the driver is intoxicated, he can administer a test regardless of consent, the officer may force a blood draw.

    The bill states, in part:

    "If a law enforcement officer has probable cause to believe that the driver of a motor vehicle involved in an accident resulting in the injury or death of another has committed an offense of DUI, vehicular homicide due to intoxication, or aggravated vehicular homicide, then the officer must cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood, regardless of whether or not the driver consents to the test."
    This bill changes many aspects of the procedures involving DUI offenses. The Fourth Amendment of the U.S. Constitution exemplifies a policy favoring personal autonomy in regards to searches and seizures by law enforcement upon the person of another. Despite such a policy, this bill puts a substantial amount of discretion into the hands of the police, negating any sort of personal autonomy. The question becomes whether the Tennessee legislature will continue to recognize limitations on this policy, and if so, will those limitations eventually result in a complete lack of consent for purposes like those contained in this DUI bill? The effective date of the new DUI forced blood draw law is January 1, 2012. HB Bill 715 full text.

    Blue Alert Bill Signed into Effect

    A new Tennessee bill signed into effect yesterday establishes the “Blue Alert system” “to provide a statewide system for the rapid dissemination of information to speed the apprehension of violent criminals who kill or seriously injure law enforcement officers and to aid in the location of missing law enforcement officers.” Eleven other states have enacted similar laws, and U.S. Senator Sherrod Brown (D-Ohio) announced on May 16th his intention to co-sponsor national Blue Alert system.

    In the event the TBI receives report of a law enforcement officer injured, killed, or missing in the line of duty, the new law authorizes the TBI to issue an alert for un-apprehended suspects. The TBI will be required to adopt guidelines and procedures to handle such alert. The agency must also provide education and training to radio and television broadcasters to encourage broadcast media participation. Through consultation with TDOT, the TBI will develop a procedure for the use of “overhead permanent changeable message signs.” Additionally, for the purposes of a Blue Alert, the TBI will be authorized to use the statewide infrastructure in place for AMBER Alerts.

    The law will be codified at Tennessee Code Annotated § 38-6-122 and will go into effect July 1 of this year. Legislative history, including the original bill and amendments, may be found here.

    Wednesday, May 18, 2011

    Sixth Circuit Allows Execution to Proceed Today

    The Sixth Circuit vacated a District Court stay to allow the execution Daniel Lee Bedford to proceed.  This last minute flurry of legal activity was in Federal Court after all of Bedford's other claims had been exhausted. In this petition he was seeking to show he was not mentally competent to be executed.  The Sixth Circuit found no merit to his claims. The Columbus Dispatch reports that: 27 years later, frail killer meets his own end.  At 3:08 AM today Bedford was executed by lethal injection for his 1984 double murders; his lawyers and the brother of one victim, his former girlfriend, were in attendance.

    Tuesday, May 17, 2011

    Sixth Circuit Holds that Solicitation to Commit Aggravated Assault Qualifies as Violent Felony for Armed Career Criminal Act

    Today the Sixth Circuit holds that the Tennessee state offense of solicitation to commit aggravated assault “involves conduct that presents a serious potential risk of physical injury to another,” and “involves the same kind of purposeful, violent and aggressive conduct as the enumerated offenses.”  Therefore, the Court finds it qualifies as a “violent felony" under the Armed Career Criminal Act (ACCA).

    In this case out of the Western District of Tennessee, Derek Benton appeals his conviction and sentence for being a felon in possession of a firearm; and, specifically the enhancement he received as a result of his prior conviction in state court for solicitation to commit aggravated assault.

    The ACCA sets a fifteen year minimum sentence for any person convicted of being a felon in possession of a firearm if that person also has three or more prior convictions for a violent felony. 

    Whether solicitation to commit aggravated assault constitutes a “violent felony” under the ACCA is a question of first impression in the Sixth Circuit in this case.  Because the crime involves conduct that presents a serious potential risk of physical injury it qualifies just as if it were an actual aggravated assault.  Benton's sentence of 180 months was affirmed.

    Monday, May 16, 2011

    Supreme Court Reduces Fourth Amendment Protections in Homes

    Justice Ginsburg's spells out in her dissenting opinion how the majority diminishes the Fourth Amendment protections for ordinary citizens.  "The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.  In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.  I dissent from the Court’s reduction of the Fourth Amendment’s force."

    The majority opinion (8-1) written by Justice Alito holds that the exigent (emergency) circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.  In this Kentucky case the Supreme Court supports the warrant-less entry into an apartment by police who believed they smelled marijuana when the were near the door. After the smell, they knocked on the door and announced their presence.  When no one answered and they heard what sounded like the destruction of evidence, they broke down the door.  Inside they found marijuana and other drug contraband.  At issue is the Fourth Amendment and the protections it affords.

    The Fourth Amendment guarantees to the people “[t]he right . . . to be secure  in their . . .  houses . . .  against unreasonable  searches and seizures.”   Warrants to search, the Amendment further instructs, shall issue only upon a showing of “probable cause” to believe criminal activity is afoot. 

    Kentucky v. King is an important case in Fourth Amendment Law as it announces that police may now enter a private dwelling without a warrant, even when they could have sought one, if they have what they believe is some indication of a crime from within, coupled with the barest something that could lead to the destruction of evidence.  Sight, sound, and now smell seem to be  fair game in the replacement of the warrant requirement previously guaranteed by the Constitution.

    Today's  Kentuck v. King decision is reported today in the New York Times, NPRChristian Science Monitor and TIME.

    Sunday, May 15, 2011

    Tammy Harrington named Judge in Blount County

    On Friday Governor Haslam appointed Tammy Harrington to replace W. Dale Young in Blount County as a Circuit Judge. Tammy worked in Hamilton County as a prosecutor in the mid 1990's and since leaving Chattanooga has worked in the Blount County District Attorney's office.

    Donald Verrilli set to be next Solicitor General of the United States

    The Senate Judiciary Committee has approved the nomination of Donald Verrilli to be the next Solicitor General of the United States. NPR recently reported the 17-1 vote for confirmation by the Senate Judiciary Committee and the full Senate is expected to vote for confirmation barring any stall tactics. Upon confirmation, Verrilli will become the Government's first advocate before the U.S. Supreme Court and he decides which government appeals to bring in the lower courts. There has been no confirmed solicitor general since Elena Kagan was appointed to the Supreme Court.

    AmLaw Daily and SCOTUS  report on the vote and the tepid support from GOP Sen. Charles Grassley of Iowa.  Only GOP Sen. Jeff Sessions of Alabama voted against Verrilli.  Verrilli's nomination ran into Republican hostility after the Obama administration announced it would not defend the constitutionality of the federal law banning gay marriage.  Although Verrilli personally had nothing to do with that decision,  his nomination has been held up by the reality of those politics.  Watch to see if the full Senate confirms Verrilli quickly on his merits, which are aplenty, or whether there is grandstanding on this hot button federal law banning gay marriage issue.  I expect Verrilli to be confirmed before summer's end as even the Senate must concede that every president is entitled to have a well qualified advocate to represent the administration before the nation's highest court.  And no one, not even the president's harshest critics, claims that Donald Verrilli is not qualified. Here is his bio.

    National Police Week begins this week, running from today through Saturday, with today being Peace Officers Memorial Day

    This is a week that you can make a difference by simply telling a police officer, "Thank you for protecting me and my family."

    The Chattanooga Police Department Homepage

    Friday, May 13, 2011

    Tennessee Supreme Court says Lawyers must advise Clients of Mandatory Supervision in Sex Cases

    Jason Calvert was represented by two lawyers after an indictment in Davidson County on numerous sex offenses. He and his lawyers met at least 6 times. They provided him discovery. They went over the materials with him. After these meetings, he entered a written plea agreement to several offenses, two of which were aggravated sexual battery. Calvert received a sentence of 10 years suspended after he served 9 months in jail. During the plea colloquoy, the Judge believed the sentence was illegal because aggravated sexual battery was non-probatable. After consulting with his lawyers, Calvert changed his plea from two counts of aggravated sexual battery to two counts of rape. Neither his attorney nor the Court advised him that rape carries with it mandatory lifetime supervision.

    In revieweing Calvert's post-conviction petition, the Tennessee Supreme Court held that a lawyers failure to advise their clients of such an important and adverse consequence such as mandatory lifetime supervision when the client is considering a plea consitututes ineffective assistance of counsel under the 6th Amendment. The Supreme Court further held that because the Defendant testified that he thought it would have made a difference in his decision, that such deficiency constitutes prejudice.

    Practice Note: Slow down attorneys. The Court has made it clear that even if your client is considering a plea that carries lifetime supervision, that you must advise of the possible supervision requirements. In Calvert, This issue got past the Judge and both Defense Attorneys who did not mention it. The one person it did not get past was the District Attorney who checked the box on the Judgment form. However, the DA never announced that condition in the plea colloquoy transcript. Had he announced it on the record, how much time could have been saved avoiding a post-conviction hearing and appeal?

    Tuesday, May 10, 2011

    1969 Murder Conviction Reversed By Court of Criminal Appeals

    Now this is a wild one. The original robbery and murder occurred at a Memphis liquor store in 1966 and a conviction against Ms. Freshwater was returned in 1969. The robbery and murder were committed by Attorney Glen Nash and his partner in crime Margo Freshwater. After her conviction, Margot Freshwater escaped from prison in 1970 and she was on the run until 2002.  Now, 45 years after the crime, her case has been overturned on a Brady (withholding favorable evidence by the State) violation and sent back to Shelby County for a new trial.
    The main issue was whether State prosecutors withheld from Ms. Freshwater's lawyer a statement of a witness, Johnny Box, that Ms. Freshwater's co-defendant, Glen Nash, told him that he, Nash, had been the lone shooter of the victim, which, had it been revealed to her lawyer, would most likely have resulted in a different judgment. The Court of Criminal Appeals thinks so and reversed the  conviction.

    The evidence in question is a four page written statement that details what Attorney Nash told to Johnny Box and was in the files of the District Attorney. The relevant part states that he, Nash, was the sole shooter.  The statement provided in part to Freshwater's lawyer was missing that important part, intentionally.

    While it is highly unlikely that the events here will repeat themselves, it is significant that it was through a petition for a writ of error coram nobis that Freshwater found relief.  Typically the court is reluctant to hear arguments about evidence from trial and how the parties exchanged it at such a late date.  But here a fundamental fair trial right was touched upon when it was shown that the state had the actual statement in its possession that this statement was at odds with the partial evidence disclosed by the state with the inference that Freshwater was the actual shooter in the murder.

    As a point of interest, the lawyer Glen Nash was found to be insane in Mississippi where the couple was arrested and he remains committed there today.


    The Judicial Nominating Commission interviewed eight applicants for the judicial vacancy in the 6th Judicial District created by the retirement of Judge Richard Baumgartner

    The Judicial Nominating Commission has recommended the following three candidates to Governor Bill Haslam:

    Charles Burks
    Justice, Noel & Burks

    Scott Green
    Valliant, Harrison, Schwartz, & Green, P.A.

    Steven Sword
    Assistant District Attorney General
    Knox County District Attorney General’s Office, 6th Judicial District

    Governor Haslam may now appoint one of these candidates. 

    Monday, May 9, 2011

    Sixth Circuit Remands Gun Case for Sentencing Recalculation

    Jose Galaviz challenges his 70-month sentence for being a felon in possession of a firearm on the grounds that the district court miscalculated his criminal-history category.  This challenge by Galavitz is not prevented by the language of his plea agreement, which provided that:

    Defendant retains his right to directly appeal the Court’s adverse determination of any disputed guideline issue that was raised at or before the sentencing hearing.”  The issue of the district court’s calculation of his criminal-history category under the Guidelines was raised by Galaviz both in a sentencing memorandum submitted to the court prior to sentencing and at the sentencing hearing. Therefore, under the language of the plea agreement, Galaviz has preserved the issue for appeal.

    At issue here is whether being incarcerated waiting for a parole revocation is the same thing as being revoked for subsequent sentencing purposes.  The Sixth Circuit says not, and under the policy of lenity it means that the Court will not interpret a federal statute so as to increase the penalty it places on Galavitz now at this sentencing when such an interpretation can be no more than a guess as to what Congress intended.  Case remanded by the Sixth Circuit for resentencing.

    Sunday, May 8, 2011

    Tennessee Death Penalty Drug Seized By DEA

    Judson Berger reports that the DEA has seized the Death Penalty Drug, sodium thiopental, used in Tennessee, Georgia and Kentucky.
    The investigation stems from concerns about the overseas source of the drug, .... The seizures started in Georgia, where the Drug Enforcement Administration in March grabbed their supply of sodium thiopental. From there, the DEA swooped into Tennessee, Kentucky and other states to confiscate their stash, forcing the states to either find an alternative chemical or suspend executions. 

    Dorinda Carter, with the Tennessee Department of Correction, said the state turned over its "entire supply" at DEA request in late March. "They had some concerns about our domestic vendor's import procedures," she said.

    Saturday, May 7, 2011

    Three Illegal Immigration Bills in Tennessee Legislature

    Currently pending in Nashville are three bills concerning illegal immigration.  If passed, one requires employers to check the immigration status of all new hires, another mandates that local police departments check the immigration status of people they routinely stop, and the third directs state and local agencies to check the immigration status of people who are applying for food stamps and other public assistance. 

    ...when any law enforcement officer acting in the enforcement of any state law or local ordinance makes a lawful stop or detention of a person for a violation of a state law or local ordinance, and the officer has reasonable suspicion to believe that the person stopped or detained is unlawfully present in the Untied States, the officer shall request verification of the immigration status of such person from federal immigration authorities...

      The issue behind the debate is, as always: who is to pay for this? Local governments, employers, police departments of limited resources: there is no answer to be found in the legislation.  To date, no satisfactory answer has come forward from Rep. Carr the sponsor of the trio.

      Thursday, May 5, 2011

      Sixth Circuit Finds Policer Officer Use of Force Reasonable

      Today the Sixth Circuit found that Pontiac Michigan Police Officer Dwight Green used reasonable force in this case involving the stop of a motorist and his forceful removal of the driver.  Hayden, the driver, was involved in an accident with another motorist and left the scene without giving his contact information or speaking to the police.  Officer Green spoted Hayden a short ditance from the accident and attempted to stop him.  When that failed, he used more forceful actions that Hayden objected to and that were the subject of this federal lawsuit.

      The question is whether there was any constitutional violation here. In Hayden’s view, Green violated the Fourth Amendment’s prohibition on “the use of excessive force by arresting and investigating officers.” Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006). We decide that issue based on “the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989). In evaluating whether an officer’s use of force was reasonable rather than excessive, we consider “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Smoak, 460 F.3dat 783 (internal quotation marks omitted). “This standard contains a built-in measure of deference to the officer’s on-the-spot judgment about the level of force necessary in light of the circumstances of the particular case.”

      The Court found that Officer Green is immune from suit.

      Illegally Obtained Evidence Bill Passes TN House

      The Tennessee House passed a law yesterday that allows a good faith exception to illegally obtained evidence. HB 401, The Exclusionary Rule Reform Act, passed the full House on a vote of 89-8. 
      The relevant part:

      any evidence that is seized as a result of executing a search warrant ... not in violation of the constitutions of the United States or the State of Tennessee shall not be suppressed as a result of any violation (law) if the court determines that such violation was a result of a good faith mistake or technical violation made by a law enforcement officer, court official, or the issuing magistrate.
      Here is an article in the Chattanoogan.com about the law.

      If enacted the bill goes into effect July 1, 2011.

      Wednesday, May 4, 2011

      TN Guns-on-Campus Bill

      As many have learned, there is currently pending in Nashville legislation that allows college professors and staff to carry weapons onto campuses of Tennessee’s public colleges and universities.  Here in Chattanooga that means at UTC and Chatt. State everyone from the grounds keepers to the Chancellor, from part-time adjunct instructors to full time coaches can carry concealed weapons at work and amidst students. In response today, campus police officers from Memphis to Chattanooga to Knoxville, concerned parents, and college professors paid a trip to the capital to voice their concerns and to stop this bill.

      Jennifer Brooks' Tennessean article  describes the scene that finally culminated in what almost passes for common sense in the legislature.  The state House Judiciary Committee has decided to send State Rep. Andy Holt’s bill to a summer study committee. This is the legislative equivalent of a time out and such a maneuverer lets the bill in all likelihood expire. What one friend described as a face saving move which allows the legislation to wither away without the necessity of a vote on a polarizing issue.

      Regardless of where you stand on other aspects of the second amendment, how can mixing gun toting staff and professors with student populations that average between 18-22 years of age be considered responsible?    Security is best left to the police. In the words of ETSU campus Police Chief Jack Cortrell “We train {officers} to take down the guys with the guns.”

      Monday, May 2, 2011

      Supreme Court Summarily Reverses Sixth Circuit and Reinstates Death Penalty

      Tennessee has a death penalty statute that splits the jury's responsibilities into two parts: phase one is guilt v. innocence; and in cases with a conviction for first-degree murder, there is a second phase, the penalty phase, where the jury decides between life in prison (with parole possible), life without any possibility of parole, and in the most serious cases death. Ohio has a similar statute and it is the second part of Ohio's statute, the penalty part, that is at issue in Bobby v. Mitts. Today the Supreme Court summarily reversed the Sixth Circuit and reinstated the death penalty against Harry Mitts.

      Previously, the Sixth Circuit Court of Appeals determined that jury instructions in this Ohio death penalty case ran against the Supreme Court's decision in  Beck v.  Alabama, and accordingly the Court of Appeals vacated Mitts’s death sentence.  The Sixth Circuit stated that Ohio's statute impermissibly required the jury to first decide whether  to “acquit” Mitts of the death penalty before considering mercy and some form of life imprisonment.

      In reversing the Sixth Circuit, the Supreme Court found no constitutional violation  because the Court reasoned a jury convicted Mitts on two counts of aggravated murder and two counts of attempted murder and they knew that this second phase of the trial involved certain imprisonment of one kind or another. These jurors were specifically instructed that if they did not find that the aggravating factors outweighed the mitigating factors—and therefore did not recommend the death penalty—they would choose from two life sentence options. Because the choice did not force the jurors to make a decision upon a mistaken presumption that Mitts could possibly go free, if not given the ultimate penalty, the Court saw no violation.  Significantly, the Court drew a distinction between this penalty phase and the choices made by a jury during the guilt v. innocence phase of the trial.