Wednesday, June 29, 2011

New Law in Tennessee on Harassment

The TN Legislature recently passed a law, sure to effect many Chattanooga residents, which expands the Class A misdemeanor of Harassment to include posts on Social Networking sites. The law provides that harassment includes:

"Any display of an image in a manner in which there is a reasonable expectation that it will be viewed by the victim by telephone, in writing or by electronic communication, without legitimate purpose and:

1) With malicious intent to frighten, intimidate or cause emotional distress; or
2) In a manner the Defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and
3) As a result of the communication, the person is frightened, intimidated or emotionally distressed."

A violation of this law will carry a sentence of up to 30 hours of community service or a fine of $100.00.

The intention behind the law is to prevent cyberbullying among children and teenagers. The law focuses much of its attention on social networking sites such as Facebook and Twitter where users are able to post pictures and comments on other users' walls with little restrictions.

In an effort to clarify the scope of the rule, Senator Bill Ketron states "The images must be targeted at a specific person. If you randomly stumble upon something online that was offensive, this law would not apply."

Many critics of the law feel that it is overly broad, creating a "slippery slope" when it comes to deciding what constitutes harassment and what doesn't. On its face it is hard to determine if the law applies only to minors or if it applies to adults as well. Many also feel that this new legislation will open a "pandora's box" with respect to control over the type of material that can be posted on the Internet.

TN cyberbullying law draws ridicule

The law is set to go into effect on July 1, 2011.

Wednesday, June 22, 2011

Indigent Defendants Do Not Have the Right to an Attorney in Civil Contempt Proceedings

  • Turner v. Rogers

  • The U.S. Supreme Court decided an interesting case this week, Turner v. Rogers, addressing an indigent defendant's right to counsel for civil contempt proceedings when facing incarceration. Turner was held in contempt of court and sentenced to incarceration several times over many years because of his failure to pay child support. While imprisoned for a year, he appealed arguing that under the Fourteenth Amendment, he was entitled to counsel during his hearing (even though the custodial parent, Rogers, did not have an attorney at the hearing either).

    The Court unanimously held that Turner was not entitled to an attorney at his hearing. The Court noted that the Sixth Amendment right to counsel only applies in criminal cases so they had to look to the Fourteenth Amendment's Due Process clause. Citing policy reasons for the importance of due process, the Court ultimately decided that providing an indigent defendant with an attorney in civil contempt proceedings would make the proceedings "less fair" overall. The reasoning for this is because, as here, a lot of times the custodial parent seeking child support is not represented by counsel either. Since this parent is arguably a single parent, trying to support a family, he or she may not have the money for an attorney. To appoint counsel to one party and not the other would make the proceedings vastly unfair.

    The Court also held, however, that there are certain procedural safeguards that should be in place to prevent violations of due process in situations like this. For instance, the lower court should have informed Turner of the legal significance of his financial situation; or they should have had a common form for defendants to fill out regarding their financial situations; or lastly, they should have afforded Turner the opportunity to answer questions about his financial status during the hearing. Without these procedural safeguards, the Court was required to vacate the decision and remand the case for further proceedings.

    Tennessee Criminal Law Review discussed this case after Oral Arguments here.  There has been extensive coverage about his case: New York TimesWashington Post, and the Wall Street Journal Blog all offer analysis that is worth reading.

    Supreme Court sides with Wal-mart in Huge Class Action Suit

  • Wal-Mart Stores, Inc. v. Dukes, et. al.

  • Three former or current Wal-Mart employees brought suit against Wal-Mart as representatives of one of the largest class action suits in history. Members of the class action included 1.5 million current or former female employees of Wal-Mart Stores, Inc. alleging Title VII violations and discriminatory practices based on their gender. Specifically, the Plaintiffs allege that Wal-Mart's promotion and employment procedures are discriminatory towards women and favorable towards men; generally men are paid more and receive more promotions than women of the same employment levels.

    The question for the Court was whether this class action fully complies with the requirements of Rule 23 of the Federal Rules of Civil Procedure. There are four requirements a class action suit must meet under Rule 23: numerosity, commonality, typicality, and adequate representation. The 5-4 opinion written by Justice Scalia centered around the "commonality" requirement and whether the 1.5 million women involved could prove that there are "questions of law or fact that are common to the class." Justice Scalia suggested that the commonality requirement required much more than multiple violations of the same provision of law by Wal-Mart. Rather, all members of the class action must have suffered the same injury. The plaintiffs were trying to "literally sue about millions of employment decisions at once." According to the Court,

    "without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members' claims for release will produce a common answer to the crucial question why was I disfavored."

    To prevent an over-encompassing class action claim, the Court noted that the Plaintiffs would have to provide "significant proof" that Wal-Mart "operated under a general policy of discrimination." The only proof offered by the Plaintiffs was expert testimony which claimed there was a social culture at Wal-Mart that makes it vulnerable to gender bias. The expert could not say how regularly stereotypes or discrimination play a role in the decision-making processes. Without more specific evidence, the Court ruled that this was not significant proof and held that the class action was not in compliance with Rule 23.

    Monday, June 20, 2011

    Age Now a Factor for Miranda Warnings

    The U.S. Supreme Court decided last week that a child's age may be considered when determining the adequacy of Miranda warnings. Law enforcement officers are required to recite the Miranda warnings prior to interrogation of a suspect. That suspect must be in custody and must believe he or she is the subject of an interrogation. To determine whether a person is in custody, the Court looks to whether a reasonable suspect would believe they were free to leave at any point before and during questioning.

    J.D.B. is a 13-year-old boy who was interrogated by police at his middle school when he was suspected of theft. He admitted to stealing, but later argued that his confession could not be used because the police did not recite his Miranda rights to him. Specifically, he argued that because of his age, he did not reasonably believe he was free to leave during the interrogation.

    The Court, in a 5-4 decision authored by Justice Sotomayor, agreed with J.D.B. and held that age can be used as a factor for determining whether a child is in custody. The reasoning is mainly because of the obvious psychological differences between children and adults and the increased vulnerability of children. Most children are more easily intimidated by authority figures than adults, and would be more likely to feel they could not leave an interrogation until they were told to do so. Their inability to withstand coercion requires officers to use their "common sense" when deciding whether to recite the warnings.

    The Court also held, however, that age may not always be relevant. It will be relevant when the child is obviously of a young age, or when the police officer knows the child is a minor.

    The dissenting justices fear that this new test marks the continuation of the erosion of Miranda warnings. They believe this ruling will be hard for police to follow and fear that they will soon be required to examine other types of personal characteristics of a suspect before interrogating them.

    Friday, June 17, 2011

    U.S. Supreme Court: Sentences Cannot be Increased Because of Rehabilitation

    The United States Supreme Court recently held that drug rehabilitation is no longer an appropriate reason for a longer prison sentence. Tapia was given a longer sentence because the Judge wanted to recommend her for the 500-hour drug treatment program offered in U.S. Prisons. The Judge believed Tapia would have a better chance to get into the program if she had a longer sentence, but he could not guarantee Tapia a spot in the program.

    Tapia argued that section 3582(a) of the Sentencing Reform Act (SRA) precludes Judges from considering rehabilitation as a factor when deciding the length of a prison sentence. 3582(a) states:

    "The Court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation."
    The Court looked to the plain meaning of the statute to determine Congress' intent. They began by stating that the definition of "recognize" is "to acknowledge or treat as valid" and that the definition of "appropriate" is something that is "suitable or fitting for a particular purpose". Given these definitions, the Court reasoned that Congress would have them interpret this section as meaning, "that the courts should acknowledge that imprisonment is not suitable for the purpose of rehabilitation."

    With this interpretation of the statute, the Court held that rehabilitation is not an appropriate reason to impose a longer prison sentence. The Court also noted that if Congress had intended on allowing courts to use rehabilitation as a reason for a longer prison sentence, they would have provided the courts with the authority to ensure those defendants a spot in the 500-hour drug program. Since Congress has not granted this authority, the plain meaning of the statute precludes judges from imposing longer prison sentences because of rehabilitation.

    Monday, June 13, 2011

    U.S. Supreme Court Clarifies "Violent Felonies" under the ACCA

    The U.S. Supreme Court held last week in Sykes v. United States that fleeing a law enforcement officer in an automobile is considered a "violent felony" under the Armed Career Criminal Act (ACCA). Sykes was convicted of unlawful possession of a firearm, a crime that would normally carry a maximum sentence of 10 years in prison under the Federal Sentencing Guidelines. Under the ACCA, however, if when the unlawful possession occurs, the felon has three previous convictions for a violent felony or serious drug offense, the sentence increases to a minimum of 15 years.

    Sykes had two previous convictions of armed robbery and one for vehicle flight which violates Indiana's Resisting Arrest law. The question for the Court was whether vehicular flight should be considered a violent felony, the result of which would increase Sykes' sentence to a minimum of 15 years.

    The Court examined the relevant provisions of the ACCA which state that an offense is deemed a violent felony if it is a crime punishable by more than one year of imprisonment and that:

    i) has as an element the use, attempted use, or threatened
    use of physical force against the person of another; or

    ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
    Specifically, the Court had to decide if vehicular flight is conduct that "presents a serious potential risk of physical injury to another." Using what it calls the "categorical approach", the Court looked to the nature and risk of the crime generally, not at the specifics of the crime committed by the particular defendant. Comparisons of vehicular flight to the specific crimes of arson and burglary made it clear that vehicular flight involves some of the same risks as the specific crimes listed. Police chases have always been dangerous, posing a serious risk of harm to the driver, the police officer, and bystanders. Some have produced seriousinjuries or, in some instances, were fatal. Seeing no difference in the serious risks of harm posed by vehicular flight and the specific crimes listed in the statute, the Court held that vehicular flight should be considered a violent felony.

    Friday, June 10, 2011

    Supreme Court Finds Federal Minimum Sentences for Cocaine Apply to All Forms of Base Cocaine

    The Supreme Court decided (9-0) yesterday that the statutory minimum guidelines for cocaine base include all forms of cocaine base, not just what is known as crack cocaine. 
    (Photo courtesy of Meli.)

    Federal law sets a minimum 10-year sentence for persons convicted of certain drug offenses, 21 U. S. C. §841(a), including those involving 50 grams or more of  “a mixture or substance . . . which contains cocaine base,” §841(b)(1)(A)(iii), and a minimum 5-year sentence for offenses  involving  5  grams  or  more  of  the  same, §841(b)(1)(B)(iii).
    We hold that the term “cocaine base” as used in §841(b)(1) means not  just “crack  cocaine,” but cocaine in its chemically basic form.  
    In this case, out of the First Circuit, DePierre attempted to distinguish crack cocaine from other types of base cocaine and argued that the federal minimum guidelines only applied to crack. The Supreme Court rejected that argument finding that the mandatory minimums apply to all forms of base cocaine.

    The decision does not mean that powder cocaine is covered by these mandatory guidelines as the powder form of cocaine was not contemplated to be included by congress and is a different chemical form of cocaine from base cocaine.

    Wednesday, June 8, 2011

    "I Hate Meth Act" becomes Tennessee Law

    Tennessee Governor Bill Haslam signed the I Hate Meth Act on Monday June 6th, 2011. The Act requires TN pharmacies to electronically track the sale of pseudoephedrine. Specifically, the pharmacy is required to submit certain information to the National Precursor Log Exchange (NPLEx) before the sale of over-the-counter medicine containing pseudoephedrine or ephedrine. While pharmacies have been required to track pseudoephedrine purchases since 2005, the new law requires the input of information into an electronic system before the purchase is complete.

    The law also requires that a parent or guardian be charged with child endangerment if their child is under the age of 8, and they knowingly expose the child to "the initiation of a process intended to result in the manufacture of any amount of methamphetamine."

    When he signed the law, Governor Haslam stated, "Hopefully, we can start changing the tide against what has for too long been too bad of a problem in East Tennessee." As evidence of this problem, TN reported over 2,000 meth labs seized in 2010. This is the highest state total for labs seized in the country. As a result of those drug busts, more than 500 children were taken into state custody.

    The law will take effect on July 1, 2011 and pharmacies will have until January 1, 2012 to install the electronic system.

    Sunday, June 5, 2011

    John Edwards Indicted by Federal Grand Jury in North Carolina

    This 19 page document details the charges against John Edwards. Count 1 is a Conspiracy Count.  Counts 2-5 are Illegal Campaign Contribution Counts, and Count 6 is a False Statement Count.

    The indictment, predictably, is a retelling of the cover up of Edward's affair with Rielle Hunter. Significant and new are the descriptions of specific activities that Edwards himself directed others to misuse campaign contributions, $925,000, i.e. that Edwards' aid's wife falsified check memo lines for such things as antiques and furniture.  Purportedly these checks were written as campaign expenses but in actuality it is alleged that these were continuing payments to Rielle Hunter and for her benefit while pregnant with Edwards' child.  These are the kinds of details that, if proven, a jury will convict on in a heartbeat. The rest of the indictment details examples of his cover up, from chartered flights to conversations, showing the arrogance of a man using campaign funds for personal gain, and he did so because he thought the law doesn't apply to him.  How else to explain the obvious abuses he took with federal campaign contributions? It is not like he lacks money.

    The Washington Post  reports that:
    the payments, which covered Hunter’s living, medical and other expenses, are at the heart of the dispute. Prosecutors say that they were campaign contributions because they were meant to prevent Edwards’s 2008 presidential bid from collapsing if the affair was discovered. They say the contributions also exceeded legal limits. 

    If it were not paying for Reille Hunter's life style and pregnancy with campaign contributions that motivated a team of prosecutors to indict, then it was how Edwards suggested a staffer claim the child as his own.  Later, Edwards directed the campaign to pay the staffer and then to pay hush money to Reille Hunter.  How could the same man who claimed to be the champion of "sons of mill workers across this country" have drifted so far away from the basic values of honesty and integrity that many believed they had seen in him?
    "And what we students of history always learn is that the human being is a very complicated contraption and that they are not good or bad but are good and bad and the good comes out of the bad and the bad out of the good, and the devil take the hindmost."
    - Robert Penn Warren, All the King's Men

    Friday John Edwards was indicted by a Federal Grand Jury in Raleigh.  News agencies across the country are reporting on the spectacular fall of a once favored son of the South: Tennessean, Washington Post, Los Angeles Times, Hufffington Post blog, and the WSJ blog.

    Reille Hunter told her side in an interview with GQ magazine last April.


    Saturday, June 4, 2011

    New Law Bans Password Sharing

    A new Tennessee Law signed by Gov. Haslam bans password sharing.  Minor infractions result in a fine and the most serious violations are felonies with possible prison time.
    Anyone convicted of giving his or her password to an entire dorm room or sports team would face a fine, which would be based on the cost of the content viewed. For example, if the unauthorized viewers watch less than $500 worth of videos, both they and the password distributor could face fines up to $2,500 and a year in jail. Any movie-watching over $500 becomes a felony with much stricter fines and prison sentences.
    The Tennessean reports that Netflix Sharing is now a crime in Tennessee.
    State lawmakers in country music’s capital have passed a groundbreaking measure that would make it a crime to use a friend’s login — even with permission — to listen to songs or watch movies from services such as Netflix and Rhapsody.

    There is a Gradual Erosion by the Supreme Court to Law Supporting Miranda Warnings

    The United States Supreme Court has, over the last two years, re-examined the iconic Miranda warnings. There have been three notable cases decided recently that impose limitations on Miranda and lead many to question the warnings sustainability.

    Powell v. Florida and Maryland v. Shatzer were decided within one day of each other. Powell held that the statement "You have the right to a lawyer before answering any questions and you may invoke that right at any time" was an adequate warning under Miranda even though the officers did not explain that the suspect had a right to a lawyer during interrogation.

    Maryland v. Shatzer answered the question of whether a detained suspect who has asked to speak with an attorney can ever be questioned again without a lawyer present. The Court held that law enforcement could resume interrogation if 14 days have passed since the suspect last expressed a desire to have a lawyer present and the suspect has waived his right to an attorney for the current interrogation.

    The third case, Berghuis v. Thompson, held that a suspect must unambiguously state he wishes to remain silent. Silence in the midst of questioning is not an adequate invocation of the right to remain silent. In the dissenting opinion, Justice Sotomayor argued that the Court's ruling imposes a counter intuitive requirement on suspects: a person must speak in order to invoke their right to remain silent. Try to reason your way to that conclusion.

    While the Miranda warnings are still intact, many feel that the Court is gradually chipping away that the warnings piece by piece. The question is whether the Court will one day see fit to overrule Miranda or just continue to impose limitations upon it. At any rate, as of today a person can no longer remain mute and enjoy the protections that Miranda once afforfded.

    Friday, June 3, 2011

    TN Supreme Court Hears Unusual Case on Alimony

    Yesterday the Tennessee Supreme Court heard oral arguments on an alimony issue, which is fairly unusual for the Court.

    The Tennesean reports today on the Court's deciding whether a woman who earns $72,000 a year should get $15,000 a year in alimony for the rest of her life or until she remarries. The case is important because it could determine how money is awarded in divorce cases across the state. The husband's income is nearly $140,000, including his base salary and bonus.

    In the lower courts, a Sumner County Judge split the couple’s assets nearly evenly and ruled that the wife did not deserve alimony. The couple have two adult children. The Tennessee Court of Appeals unanimously overturned the trial court and ordered the husband to pay $1,250 a month in alimony. The Husband  appealed, and the Tennessee Supreme Court took the case.

    In accepting this case the Supreme Court should clear an unsettled area of law by setting guidelines on when courts should award alimony on a permanent or limited basis.

    The case is Gonsewski v. Gonsewski, Sumner County.