Florida Drug Law Unconstitutional says, Federal Judge

A Federal Judge in Florida has declared that state's drug law unconstitutional. The St. Petersberg Times reports here that:

U.S. District Judge Mary Scriven of Orlando issued a ruling Wednesday that struck down the state's Drug Abuse Prevention and Control law, saying it violates due process because it doesn't require that prosecutors prove that a person knew he or she possessed illegal drugs.

In other words, under existing Florida law all that had to be proven was simply possession not actual knowledge by a person that they knew they possessed illegal drugs. This knowledge requirement or Mens Rea is required in every other state in the country and under federal law. Judge Scriven's ruling is an attempt to get Florida law in conformity with all other jurisdictions in the United States.

DUI Study Reveals Surprising Results

Miguel F. P. de Figueiredo, a professor at U.C. Berkeley and Yale Law School, conducted a study (here is the abstract) in Arkansas asking whether harsher sentencing for a higher blood alcohol content (BAC) affects the recidivism rate. A common practice today is to increase the time period of incarceration or the amount of time a license is suspended depending on the level of a defendant's BAC at the time of arrest in order to deter the defendant from committing the offense again.  For example, in Tennessee if your blood alcohol level is over .20 the law requires a mandatory 7 days in jail for a standard first offence--5 days more than some whose blood level is over the legal threshold of .08. The focus of the study was to determine whether those increased sentences have the desired deterrence effect.

The study observed 15,973 defendants in two jurisdictions, making this study the most comprehensive of its kind. Because of the size, the numerical estimates and the causal inferences are more reliable. Specifically, the research design examined defendants whose BAC was just above or below .15 to see if the effect of an increased license suspension by an additional two months has an effect on recidivism.

Without getting into the math which involves multiple variables, the study found that the increased sentences had no real effect of the rate of recidivism. This finding directly contradicts the common theory that defendants will be deterred from committing the same offense if the Court imposes a harsher sentence.

Georgia Records Inmate's Execution

Andrew DeYoung was executed Thursday in Georgia for killing his parents and sister in 1993. He was executed by lethal injection using a new anesthetic called Pentobarbital. According to an attorney currently appealing the sentence for another death row inmate, this new anesthetic causes unnecessary pain and suffering. Specifically, it is argued that the drug does not induce a deep enough coma to prevent the immense pain caused by the two drugs that follow. As a way to determine if the drug causes unnecessary pain, the Georgia Supreme Court held on Wednesday that the execution could be recorded.

Georgia is the first state to record an execution by lethal injection. California recorded an execution in the gas chamber in 1992, and the execution of Timothy McVeigh was recorded and broadcast on a closed circuit. No other states with the death penalty currently allow recorded executions.

Critics of the decision by the Georgia Supreme Court fear that although the recording was placed under court seal, the video could be leaked to the public in some way. They also warned of various safety concerns involving the presence of the camera man inside the execution room.

For what it's worth, DeYoung showed no signs of pain during his execution. He remained calm and was able to state as his last words, "I'm sorry for everyone I've hurt."

The Dangers of 'Caylee's Law' in State Capitals

In Nashville like nearly 20 other state capitals across the country legislation has been introduced to address the perceived problems with the verdict in the Anthony case.


Steve Chapman reports in today's Chicago Tribune about the dangers to this reaction based law drafting.

So in some 20 states, bills have been introduced making it a felony not to report a child's disappearance within a given time — eight hours, 24 hours or 48 hours. Some would also make it a crime not to report a child's death within one or two hours. If such a law had been in effect in Florida three years ago, Anthony might have gotten a lengthy sentence despite the murder acquittal.

The obvious problem with reaction based legislation is that it does not address the anger to the issues that caused the verdict and it will be irrelevant to future cases.  Tennessee already has laws on the books that make it a crime to to neglect or injure a child. The neglect statute is particular tough carrying 15-25 years in prison for this A felony in the most serious cases.  

Federal Judge Dismisses Lawsuit Against Chattanooga Police Officers (D&H Clients)

Federal Judge Dismisses Lawsuit In Police Shooting Of Alonzo Heyward
Collier Says Officers Did Not Violate Constitutional Rights Through Use Of Excessive Force

• Order & Memorandum: Wells v. City of Chattanooga

Federal Judge Curtis Collier has dismissed a lawsuit brought by the family of a rifle-wielding man who was shot on July 18, 2009, by six city police officers.  Five of these Chattanooga Police Officers are represented by Davis & Hoss.


Alonzo Heyward had 43 bullet wounds, but Judge Collier said he refused to comply with commands to stop and give up the gun, he started to walk in a house with the weapon, and he turned the rifle toward the officers after he was tased.


Judge Collier said, "Because a reasonable fact-finder, viewing the facts in the light most favorable to plaintiffs, could not find the officers violated Heyward's constitutional rights through excessive use of force, it is unnecessary to consider whether any alleged violated right was 'firmly established.'"


He said the six officers had a duty to stop Heyward from going into the house with the rifle and "had manifest probable cause to believe Heyward posed an immediate serious threat of physical harm to themselves and others."


Attorney Bryan Hoss, who represented five of the officers along with attorney Lee Davis, said, "This has taken two years, but we have said from day one the officers had a reason for what they did and they are finally vindicated."
He added, "These are great officers. Five of the six are still on the streets patrolling for the citizens of Chattanooga, keeping us safe."


Attorney Hoss said the case had been set to go to trial on July 25 and was expected to last two weeks. The defense had over 250 exhibits and over 20 witnesses ready to go.


Attorney Johnny Houston represented officer Deborah Dennison, who married, moved to Alabama and is in another line of work.


The city was also sued and was represented by Phil Noblette and Crystal Freiberg of the city attorney's office.


Police said the officers fired a total of 59 shots.


Officers Dennison, Lauren Bacha, Zachery Moody, George Romero, William Salyers and Bryan Wood were initially placed on paid leave according to Chattanooga Police Department policy.


Police confronted Heyward on the porch of a house at 4316A 7th Ave. after first finding him on Rossville Boulevard.


John Wilson reported in the Chattanoogan the article above. 

TN Legislatures push for "Caylee's Law"

After the surprising not-guilty verdict in the Casey Anthony trial, legislatures have drafted a bill known as "Caylee's Law" for the state of Tennessee.

Under the current law, parents are required to report to the police that their child is missing, but do not suffer any penalties if they fail to do so. Caylee's Law will make it a Class A misdemeanor punishable by up to one year in prison and a $2,500 fine if a parent fails to report a missing child within 48 hours of the child's disappearance. Further, if the child experiences serious bodily injury or death during the course of their disappearance, the offense upgrades to a Class C felony punishable by three to fifteen years in prison and a fine of up to $10,000.

State Representative Craig Fitzhugh said he drafted the bill in response to the many emails he received from concerned Tennessee citizens following last week's verdict. Many citizens in Tennessee and around the country were outraged by the verdict, believing Casey had to have done something to Caylee or else she wouldn't have waited 31 days to report her as missing. Naturally, this sparked an online movement to enforce laws like "Caylee's Law" to prevent another situation like Caylee's.

Tennessee joins more than a dozen different states which have drafted different versions of "Caylee's Law." Lawmakers will consider the bill when the legislature comes back into session in January.


Richard Locker of the Commercial Appeal reported on this topic today.

6th Circuit Denies Retroactivity of the Fair Sentencing Act

• United States v. Marrero

The 6th Circuit decided Wednesday that the Fair Sentencing Act of 2010 is not retroactive to the date when a defendant commits an offense. The FSA was enacted to alleviate some of the disparities in sentencing for offenses involving crack cocaine and offenses involving powder cocaine. Specifically, the FSA raises the amounts of crack cocaine required to trigger a mandatory minimum sentence.


Marrero was convicted of possessing 27.25 grams of crack cocaine. He was sentenced on August 11, 2008 to 360 months (30 years) of incarceration. Marrero appealed and argued that the FSA, enacted on August 3, 2010, should apply retroactively. Without FSA amended guidelines, Marrero faced an incarceration range from a 10-year mandatory minimum sentence to a maximum life sentence. With FSA guidelines, Marrero faced no mandatory minimum and a maximum of 30 years.


The 6th circuit refused to apply the FSA retroactively to offence date stating:

"In United States v. Carradine 621 F.3d 575 (6th Cir. 2010), cert. denied, 131 S.Ct. 1706 (2011), this court determined that the Fair Sentencing Act's penalty provisions do not apply to offenses committed prior to their enactment, id at 580 ("The new law at issue here, the Fair Sentencing Act of 2010, contains no express statement that it is retroactive nor can we infer any such express intent from its plain language. Consequently, we must apply the penalty provision in place at the time [the defendant] committed the crime in question.") Because Carradine is a prior published opinion of this court, we are bound by its pronouncement that the Fair Sentencing Act has no bearing on Marrero's case."

Because Marrero committed his offense prior to the enactment of the FSA, the 6th circuit denied his request for resentencing.


We discussed Chief Judge Curtis Collier's ruling in US v. Toney Robinson, Docket No. 1:10-CR-66 in February from the Eastern District of TN involving whether the FSA applied retroactively to those offenders who committed offenses before enactment, but were sentenced after enactment, here is the post. Today's opinion in Marrero clears up the issue of retroactivity of FSA to offence date but leaves open still other issues.  Read Judge Collier's opinion above for a full discussion.

TN Court of Appeals Affirms Aggravated Robbery Conviction

• State of Tennessee v. Alvertis Boyd

The Tennessee Court of Appeals decided State v. Alvertis Boyd on July 1. The Defendant, Boyd, was convicted by a jury of aggravated robbery. Boyd brought several issues up on appeal including, in particular, the argument that the prosecution violated Rule 609(a)(3) of the Tennessee Rules of Criminal Procedure.

Rule 609(a)(3) allows for the admission of a prior conviction to impeach the credibility of a defendant testifying at trial. The impeaching conviction must be either "punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted" or "must have involved dishonesty or a false statement." When deciding whether to admit a prior conviction for impeachment purposes, the Court must first determine if the prior conviction is relevant to the defendant's credibility. Second, if the prior conviction is substantially similar to the crime for which the defendant is being tried, the court must weigh the probative value of the impeachment conviction against the prejudicial effect the conviction would have on the defendant. If the probative value of the impeachment conviction outweighs the prejudicial effect, trial courts may admit the prior conviction during trial.

At trial, the prosecution used Boyd's prior convictions of aggravated robbery and theft to impeach him. Boyd argued that since one of the prior convictions was the same offense for which he was on trial, the jury believed that because he was previously convicted of aggravated robbery, he must be guilty on this offense. The Court of Appeals disagreed and held that the convictions of aggravated robbery and theft were extremely probative of credibility because each of the crimes involved dishonesty. Because there was no evidence that the trial court abused its discretion, the Court of Appeals affirmed the conviction.

New Sports Agent Law in Tennessee

There is a new sports agent law that took effect July 1st as reported in Business Insider.Com.

The new Tennessee law requires all sports agents recruiting in the state to register with the Tennessee Secretary of State.  Failure to even register can result in an agent spending 6 years in prison, in addition to paying a $25,000 fine.  The law also changes the definition of “sports agent” to include runners, managers, marketing representatives, financial advisors, and others working on behalf of an agent.  Further, Tennessee’s law takes into account the Cam Newton Loophole and states that “Athlete agent” does not include a parent or legal guardian, unless the parent or legal guardian of the student athlete accepts a form of a financial benefit or gift on behalf of the student athlete.  If you are going to have an athlete agent law on the books, which I am not totally sold on, at least have it reflect current issues.  In this regard, Tennessee does a good job of including runners, financial advisors, and even parents who are accepting benefits under the scope of regulation.

Doubtful that agents or so called sports boosters would change simply with a bill from Nashville, but it is good to see that the direction of this legislation is right.

New TN Criminal Laws Effective July 1

On July 1, several new laws for the state of TN went into effect. There are many laws that pertain to various aspects of criminal law. We have written on several of them before, but here is a brief list of the most noteworthy laws:

Welfare Benefits - HB0119 prohibits a person who has been convicted of a felony for possession, use, or distribution of a controlled substance from receiving welfare benefits.

Sex Offender Registry - HB0687 requires juveniles who are convicted of violent sexual offenses to register on the sex offender registry.

DUI Offenses - HB0391 increases the minimum time period a driver's license may be revoked for a third DUI offense to six to eight years rather than three to five years.

Wiretapping - HB1066 authorizes judges to allow a district attorney to use a wiretap when the conversation may provide evidence of criminal gang-related activities in aggravated burglaries.

Distracted Driving - SB1171 increases the penalties for distracted driving around cyclists. If a pedestrian or bicycle fatality is the result of distracted driving, this is now considered a Class A misdemeanor. The offender may serve up to eleven months and 29 days in prison, revocation of the driver's license, and a $500 fine.

Methamphetamine - The I Hate Meth Act increases the penalties for manufacturing methamphetamine in the presence of a child and requires pharmacies to track and record pseudo ephedrine purchases. We recently discussed the I Hate Meth Act here.

Search Warrants - SB0559 provides for a good faith exception in the execution of invalid search warrants due to typographical errors. We previously discussed this law here.

Harassment - The new Cyber-bullying act expands the crime of harassment to include posting harmful or offensive messages about another on social networking sites. We recently discussed this law here.

Knoxnews.com has a complete list of the 508 TN laws that took effect on July 1, 2011 here.