TN Supreme Court Justice Adolpho Birch Honored & Remembered

Racism Strengthened Birch’s Resolve to Excel in Law

Funeral services for Tennessee Supreme Court Justice Adolpho A. Birch Jr. are Tuesday, Aug. 30, in Nashville.

“The decision to go to law school and become a lawyer was made long ago. I never, never wanted to be anything else. I never recall having wanted to be anything else or do anything else.”

–Adolpho A. Birch Jr.
Late Tennessee Supreme Court Justice

Birch will lie in state at the Metro Courthouse from 2 p.m. to 5 p.m. with a 6 p.m. memorial service at War Memorial Auditorium in the capital.

Birch, Tennessee’s first African-American Tennessee Supreme Court Chief Justice, died Thursday, Aug. 25, in Nashville of cancer. He was 78.

JUDICIARY MOURNS PASSING OF FORMER CHIEF JUSTICE ADOLPHO A. BIRCH, JR.

Statement from Chief Justice Cornelia A. Clark:

“We are extremely saddened to learn of the passing of former Chief Justice Adolpho A. Birch, Jr. Our judicial family has lost a great leader, champion of justice, and dear friend. A true pioneer in many arenas, Justice Birch has left an indelible mark on the Tennessee judiciary and the entire legal system.

“As the only judge who ever served at every level of our legal system, Justice Birch had a keen understanding of the law, the judiciary and the people he served. That perspective served him well on the Supreme Court, especially in his role as chief justice. For his entire judicial career he continued to blaze trails to insure justice and access to the courts for all persons.

“I was very privileged to serve with Justice Birch on the Court during the last year of his tenure and to have my office around the corner from his. I often sought his advice and counsel. He never hesitated to stop what he was doing and answer my questions, and I benefitted greatly from his wisdom and patience. I was proud to call him my colleague and my friend.

"Justice Birch served the state of Tennessee with extraordinary dignity and integrity and we will miss him dearly.

Bart Quinn Named to Judicial Nominating Committee

Lt. Governor Ron Ramsey today announced the appointment of J. Barlett Quinn of Chattanooga to the Judicial Nominating Commission. Mr. Quinn will fill the vacancy left by the resignation of Commissioner Bill Young, who will step down on Sept. 1 to become Tennessee Solicitor General.

“The health of the judicial branch of state government is crucial to the long term health of Tennessee,” said Lt. Governor Ramsey. “Bart Quinn is an outstanding lawyer committed to an exemplary judiciary. I’m proud to appoint him and have every expectation that he will strengthen Tennessee’s judiciary.”


Here is a link to Bart Quinn. Quinn works for the Chattanooga law firm of Chambliss, Bahner & Stophel.


Bart Quinn practices primarily in the areas of employment law and workers' compensation. He has represented several large corporations in the defense of various employment discrimination lawsuits and other related litigation.  He counsels clients on employment decisions, including hiring, termination, reduction in force, disciplinary actions, separation agreements, wage and hour issues and unemployment compensation claims.

Testimony Begins in University of the South Federal Case

CHATTANOOGA, Tenn. (AP) — A former student at Sewanee: The University of the South testified Thursday that university leaders damaged his future when they wrongly decided that he raped a female student in his dorm room.

Identified in court only as John Doe, the former student at the private, Episcopal campus in southeastern Tennessee was never criminally charged. A university disciplinary panel in 2008 decided that he raped a female student who later told them she has prescriptions for mood-altering medications, had been drinking alcohol and was incapacitated when assaulted.

At the request of the former student's attorneys, U.S. District Judge Sandy Mattice is allowing him to conceal his identity as he asks a jury to force the university to pay him at least $1 million in damages. His testimony resumes Friday.

The former student contends the female student consented to having sex with him in his dorm room.

His suit contends the university harmed his reputation and career prospects by violating its own rules in the way it handled the accusation. Instead of a suspension, he accepted the university's other offer to remove the disciplinary finding in return for him leaving the university and reapplying a year later. He did not apply for readmission and said he realized that applications for officer candidate school, military intelligence clearance and law school would reveal the university's disciplinary action that he contends was mishandled.

"I've been wanting to be a Marine for a long time," he said in response to a question by his attorney.

An Eagle Scout and athlete, the former student said an application that he sent to Presbyterian College was sent back to him requesting an explanation of his departure from the university at Sewanee.

University administrators involved in the finding that the former student was responsible for violating the sexual assault policy testified that the process was handled properly and that they treated the former student fairly.

Eric Hartman, the university's dean of students, testified that the disciplinary process is different from a criminal case and is intended to "find the truth." He said there was no recording or transcript of the disciplinary panel's hearing. Hartman said there have been about 10 such disciplinary actions related to accusations of sexual assault at the university. About four ended with decisions that there was not enough evidence to hold the accused responsible. He said there has never previously been a lawsuit.

After testimony concluded and the nine jurors left the courtroom Thursday, the judge questioned attorneys about the value of having jurors hear expert witness testimony about the female student's ability to consent to having sex.

"This case is not about rape. It is about whether the (disciplinary) process was adequate or not," Mattice said. "We are never going to know what went on in that dorm room that night."

Records show the former student was an out-of-state freshman when the female student contends she was raped in his dorm room about 1 a.m. on Aug. 30, 2008. She left about 7 a.m., walked to an emergency phone and called university police. Records show that when officers arrived, she told them she had been raped and they took her to a hospital. Investigators prepared a report, but records show a case was never taken to a prosecutor.

Bill Poovey, Associated Press

$3 Million Lawsuit Involving the University of the South Begins in Federal Court This Week

An interesting case began in Federal Court this week involving Sewanee: The University of the South. The Plaintiff, John Doe, brings this suit against Sewanee claiming negligence and a breach of contract. Specifically, he claims he was denied due process when he was punished for a rape allegation from another student.

The entire disciplinary process took less than a few days. It began with A.B. meeting with Dean Eric Hartman and submitting a written statement. Doe was then informed of the charges against him and was told about a disciplinary hearing the next day. He was told he would need a character witness, and that he should submit a written statement claiming he was too drunk to remember his actions that night.

The details of the hearing are not known, but Doe was not allowed inside the hearing except for when he testified. When the committee met the next day, it only took them a few hours to find Doe guilty. They told Doe he had two days to leave campus. It is alleged that Dean Hartman told Doe that appealing the ruling would increase his punishment and would likely cause A.B. to pursue criminal charges. Doe was also told to "destroy" all related material.

Doe was not permanently expelled from Sewanee. Instead, he was given two punishment options: he could leave school for a semester and reapply to the school with the disciplinary action on his record; or he could leave school for a year and reapply with a clean record. Doe chose the second option, but later decided not to return to the school. Doe, along with his parents, filed this lawsuit in June 2009.

The case began this week with jury selections. Seven women and two men make up the final nine jurors selected. Parties are expected to introduce expert witnesses in school administration, school disciplinary practices, and sexual harassment.

Federal Judge Harry "Sandy" Mattice told the court that the trial could last until August 31st. It will certainly be an interesting case to watch.

DUI Breath Test Results Challenged

Intoxilyzer 5000

A Minnesota lawyer has challenged results to Intoxilyzer DUI breath test results. Attorney Ryan Pacyga contests the results of more than 160 DUI tests claiming they are in error. In Tennessee law enforcement uses similar equipment, the Intoxilyzer 5000, as in Minnesota. Timothy Williams reports on this issue in  the New York Times.

Q How long do you believe there has been a problem with the Intoxilyzer, and what made people start looking into it?
A The suspicion is that this probably started a long time ago. The more air you blow into the machine, the higher the alcohol rate it registers. You have officers saying, “Blow harder. Blow harder,” as people are blowing into these machines. I’ve seen it happen time and again. In some cases, if you didn’t blow enough air into a machine you get what is called a “deficient sample,” which is qualified as a refusal. A refusal takes a harsher punishment in Minnesota.” [Note: The state and the manufacturer dispute that blowing harder is linked to higher readings.] I’ve handled over 1,000 D.W.I.’s in the last seven years and always look at the breath volume and compare the two samples [tests consist of two breaths into the Intoxilyzer]. I’ve seen this. I don’t know whether it could be tested or if it’s been tested. It’s kind of anecdotal. The other thing is this machine uses a control — a simulated solution control that is usually between a .078 and .082 when it is put into the machine. When the machine does the “control” and “replicate,” I often see that, despite knowing the control is a given value, the machine measures it higher, or lower. The point is that it knows what the control is, and it still isn’t measuring it right. The state says it’s within an acceptable limit. It may be acceptable to the state, but if you are a defendant, it’s not so cool.

Q How many cases are involved here?

A Over all, tens of thousands of tests probably over five or six years. A lot of lawyers never challenged the tests. We’re probably down to around 4,000 now. I’ve got over 160 people myself. My understanding is that is the second largest group in the state.

Q Why is this issue important?

A In some form or other, everyone involved in this is fighting for their lives. Someone who drives as part of a job — a truck driver, someone who makes deliveries, a traveling salesman — they’re going to lose that job. They’ve had training for their jobs and that’s all the training they have, and especially in this economy, their prospects for employment are not good. There are mechanics, they have to test-drive cars. They’re out of work. There are also background checks for white-collar workers. There’s not a lot of tolerance for a D.W.I. A lot of people are getting screened out because employers think if you have a D.W.I., you must be an alcoholic.

My take on the Intoxilyzer 5000 in TN. Tennessee chose not to use a newer version of the Intoxilyzer, the Intoxilyzer 8000, after reviewing the machine.  Both the Intoxilyzer 5000 and 8000 have faced a number of legal challenges in several states: Ohio, Florida and now Minnesota.  It is my understanding that law enforcement in Tennessee uses the Intoxilyzer 5000 exclusively. Currently results from the Intoxilyzer 5000 are admissible in Tennessee Courts.

Five Tobacco Companies Sue the FDA

On Tuesday, five tobacco companies filed suit against the FDA in response to a new law which places graphic warning labels on cigarette packaging. Some of the pictures include graphic images of unhealthy lungs, unhealthy mouths and teeth, and other displays of the potential physical harm caused by smoking. They will also include the phone number for the stop-smoking hotline. The five tobacco companies include R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Commonwealth Brands, Inc., Ligget Group, LLC., and Santa Fe Natural Tobacco Co. Inc.

Specifically, the complaint stated,

"Never before in the United States have producers of a lawful product been required to use their own packaging and advertising to convey an emotionally charged government message urging adult consumers to shun their products."

The five companies also argue that this is exactly the type of compelled speech the First Amendment is supposed to prevent. While it is important that people are educated on the effects of smoking, they argue, this regulation "completely disregards core constitutional principles."

In defense of the law, Health and Human Services Secretary Kathleen Sebelius stated, "These labels are frank, honest and powerful depictions of the health risks of smoking and they will help encourage smokers to quit."

If the FDA gets its way, the new law will require the warnings to appear on cigarette packaging beginning October 22, 2012. We will keep you updated on any and all progression from this suit.

AOC Receives Interpreter Grant Funding

We came across a recent development regarding state funding for interpreters and wanted to share what it means. The Administrative Office of the Courts has received one time grant funding for a $200,000 project to pay for the costs of interpreters for specific non-indigent parties. The following are types of cases eligible for funding.

• Cases in which an adult is charged with a felony or a misdemeanor and is in jeopardy of incarceration;
• Contempt of court proceedings in which the defendant is in jeopardy of incarceration;
• Proceedings initiated by a petition for habeas corpus, early release from incarceration, suspended sentence, or probation revocation;
• Proceedings initiated by a petition for post-conviction relief, subject to the provisions of Tennessee Supreme Court Rule 28 and Tennessee Code Annotated sections 40-30-101 et seq.;
• Parole revocation proceedings pursuant to the authority of state and/or federal law;
• Judicial proceedings under Tennessee Code Annotated, Title 33, Chapters 3 through 8, Mental Health Law;
• Cases in which a superintendent of a mental health facility files a petition under the guardianship law, Tennessee Code Annotated, Title 34; and
• Cases under Tennessee Code Annotated section 37-10-304 and Tennessee Supreme Court Rule 24, relative to petitions for waiver of parental consent for abortions by minors.
• Cases in which a juvenile is charged with juvenile delinquency for committing an act which would be a misdemeanor or a felony if committed by an adult;
• Cases under Titles 36 and 37 of the Tennessee Code Annotated involving allegations against parents that could result in finding a child dependent or neglected or in terminating parental rights
• Cases alleging unruly conduct of a child which place the child in jeopardy of being removed from the home pursuant to Tennessee Code Annotated section 37-1-132(b).
• Grant funds have been awarded from the Edward Byrne Memorial Justice Assistance Competitive Grant Program. The grant funding ends as of June 30, 2012.

All courts (trial/general sessions/juvenile) that hear cases as outlined above, in which there is a non-indigent party and in which there has been an appointment of an interpreter, may advise the interpreter that he/she can invoice the AOC for the costs of the interpreting through the grant period.

From my read of this notice it appears that private criminal defendants are eligible for funding in criminal cases in all of our state courts where jail is a possible outcome.  This is a one year grant and when the $200k is gone then it looks like it is over.  While not a solution to long time interpreter services issues, it could be a valuable resource for cases you have now.

Questions regarding payment rates and general questions about this project can be sent to the following:

Mary Rose Zingale, Court Services Director
Mary.Rose.Zingale@tncourts.gov
Administrative Office of the Courts
511 Union Street
Nashville, Tennessee 37219
(615) 741-2687 or 1-800-448-7970
Fax: (615) 741-6285

Eleventh Circuit Finds Healthcare Law Unconstitutional--Breaks From Sixth Circuit

The Eleventh Circuit ruled Friday that the health care law known as the Affordable Care Act is unconstitutional. In a two-to-one opinion, the Eleventh Circuit found Friday that the individual mandate that requires individuals to carry health insurance is unconstitutional and that Congress exceeded their lawful authority when it passed the law. The Court found this to a be a violation of the commerce clause. This decision is the first appellate review of a lower District Court's decision finding the law unconstitutional. Previously, the Sixth Circuit found the law constitutional.

Both the White House and the Justice Department have released statements saying they are confident that the law is constitutional. Now with split decisions from the Sixth and Eleventh Circuits the law is ripe for review by the Supreme Court.

Michael Cooper reports in the New York Times today about the opinion.

STATE OF FLORIDA, by and through Attorney General, STATE OF SOUTH CAROLINA, by and through Attorney General, STATE OF NEBRASKA, by and through Attorney General, STATE OF TEXAS, by and through Attorney General, STATE OF UTAH, by and through Attorney General, et. al., Plaintiffs - Appellees - Cross-Appellants, versus UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (case link)

The Use of GPS Tracking Devices Without a Warrant is an Upcoming Issue Before the U.S. Supreme Court

Looking ahead at the next U.S. Supreme Court season, one important issue the Court will have to deliberate is whether law enforcement officers need a warrant for the use of a GPS tracking device on a suspect. This is the case of Antoine Jones, a suspected drug trafficker in Washington, D.C. In order to try to tie Jones to a drug house in Maryland, FBI Agents and local law enforcement installed a GPS tracking device on the car registered to Jones' wife. Officers obtained a warrant that permitted a 10-day period of surveillance, but they installed the tracker after the 10 days had expired. Nevertheless, over the next month, law enforcement kept track of every movement of the Jeep, including times when Jones' wife and kids were traveling. Once they tied Jones to the drug house in Maryland, law enforcement was able to execute search warrants for the house and other property. They found large amounts of powder and crack cocaine, and Jones was convicted of conspiring to sell drugs and sentenced to life in prison.

Jones later appealed arguing that the prolonged use of the GPS tracking device without a warrant constituted an illegal search. The D.C. Circuit Court of Appeals ruled in Jones' favor, stating that he had a reasonable expectation of privacy and thus was entitled to Fourth Amendment protection. The Court's reasoning was that Jones had a reasonable expectation of privacy in his movements as a whole over that month, and that his actions were not "exposed" to the public (which would negate the need for a warrant). The Court stated this,

"First, unlike one's movements during a single journey, the whole of one's movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. Second, the whole of one's movements is not constructively even though each movement is exposed, because that whole reveals more -- sometimes a great deal more -- than does the sum of its parts."

The government argues that based on U.S. v. Knotts, the installation of the GPS tracker did not require a warrant. Knotts held that officers did not need a warrant to install a beeper tracking device to a barrel of chloroform being transported in order to manufacture illegal drugs. The government argues that the use of a beeper and the use of a more technologically advanced GPS tracking device is one in the same.

Jones' attorney, Stephen Leckar argues, however, that Knotts is different from this case because law enforcement in Knotts had to remain close to the beeper in order for it to work. Therefore, they were already tracking the chloroform barrel themselves; the beeper just "augmented their senses." The GPS tracking device, he says, completely supplants the officers' senses, making the two cases different.

What both sides agree on is that this case may prove to be monumental to the status of the Fourth Amendment. Critics worry that a favorable ruling for Jones would open up many avenues of warrantless surveillance, stomping on the privacy rights of citizens. Many, including John Wesley Hall (a criminal defense attorney in Arkansas), do not believe the government is merely chipping away at the Fourth Amendment; rather, it is being "blasted away."

Continue to check back for updates on this and other upcoming issues in the Supreme Court.

What's Next for the U.S. Supreme Court?

An interesting article in the New York Times last week focuses on what lies ahead for the U.S. Supreme Court. Specifically, it focuses on the future of the four left-wing justices individually and as a whole. After a relatively quiet season, these justices may face some tough times over the next few seasons.

The article first discusses the roles of the two newest members of the Court, Justices Sonya Sotomayor and Elena Kagan. The two female justices have voted the same way in 96% of the cases they have heard. With three female justices on the bench, the question becomes whether we will see more gender discrimination cases. If so, the three justices will need to persuade one of the male right-wing justices to strengthen the standard needed to restrict gender discrimination from its current position at the bottom of the spectrum. This task may prove difficult and will likely require heavy debate.

Next, the article discusses the role of the swing-vote, Justice Anthony Kennedy. The author takes language from some recent opinions written by Kennedy, and speculates as to which way he may vote on some of the upcoming issues. For instance, in Kennedy's opinion for the case involving the release of thousands of inmates from California prisons due to inadequate medical care, he states that the health care system in prisons was "incompatible with the concept of human dignity." This may be a hint on how he might rule on President Obama's Health Care Reform Act. To quote the author of the article, "So if prisoners are entitled to adequate care, you'd think the rest of us would be too."

There is also speculation as to whether Justice Kennedy might one day support same-sex marriage because of his opinion in the 2003 case which threw out the sodomy prosecution of two homosexual males.

The last topic of the article deals with President Obama and his ability to appoint federal appellate judges. Since he took office, Obama has yet to appoint any democratic federal appellate judges. This is odd to some liberals because of Obama's strong stance on constitutional rights. Many thought he would load the federal appellate bench with left-wing liberals. Instead, he has left the federal bench with at least 80 vacancies for more than two years.

It will be interesting to see how the Court will progress with the next season. It is sure to be an interesting one with hot-button topics such as the Health Care Reform Act, same-sex marriage, and abortion rights.

*Photo courtesy of Alex Wong/Getty Images North America.*

Sixth Circuit Blog is Helpful and Informative

There is a Sixth Circuit blog that I wanted to pass along. It is authored by Squire, Sanders & Dempsey, LLP. Here is the link. 

Sixth Circuit Appellate Blog


The Sixth Circuit Appellate Blog discusses news about and opinions issued by the United States Court of Appeals for the Sixth Circuit with an emphasis on cases pertaining to business interests. It also includes an En Banc Watch and features guest bloggers on occasion, as well as interviews with Sixth Circuit judges. 


One of the more recent posts is about the Family Smoking Prevention and Tobacco Control Act. This Act gives the Food and Drug Administration the power to regulate tobacco and advertising marketing. Specifically, the Act provides that beginning in Fall 2012, cigarette packaging will include graphic color images of harmful smoking effects. The plaintiffs are various tobacco companies and are arguing that the mandatory color photos violate their Free Speech Rights under the First Amendment. The parties just completed oral arguments on this issue. Keep an eye on this blog for regular updates to this potentially powerful law. 


The blog also keeps its readers up to date with the recent Sixth Circuit decision affirming the constitutionality of the Health Care Reform. The Sixth Circuit was the first circuit to rule on the constitutionality of the Health Care Act. The most recent post informs the readers that the plaintiffs have filed a petition for a Writ of Certiorari in the United States Supreme Court. 


Take a look at the blog, and I think you will find it helpful.

6th Circuit holds a Sleeping Attorney is Not "Ineffective" Counsel

• Muniz v. Smith

The 6th Circuit heard a case out of Michigan last week that involved a defendant's appeal of a conviction for assault with intent to commit murder, felon in possession of a firearm, and felony firearm. Muniz argued that his 6th Amendment right to counsel was violated because his attorney fell asleep during his trial.

The 6th Circuit first had to decide which rule of law to follow. Muniz argued that the Court should only apply the rule of U.S. v. Cronic which held that there are "circumstances so likely to prejudice the accused that the cost of their effect in a particular case is unjustified and prejudice is presumed." The lower Court previously used the standard of U.S. v. Strickland which held that in order to successfully claim that an attorney was so ineffective as to violate the 6th Amendment, the defendant must prove two things: that counsel's performance was deficient and that the deficient performance prejudiced the defendant.

Applying both rules, the 6th circuit determined that the defendant had not proven that his counsel's slumber had a prejudicial effect on his defense. Applying the rule from Cronic, the Court had to decide whether Muniz had proven that his attorney slept through a "substantial part" of his trial. The only evidence Muniz offered was testimony from two of the jurors who said they saw the attorney sleeping during Muniz's cross-examination. His cross-examination made up only a very small part of the trial transcript. This evidence, the Court held, did not prove the attorney slept through substantial portion of the trial.

Applying the rule from Strickland, the Court had to decide whether the attorney's conduct fell below an objective standard of reasonableness, and if so, if that conduct prejudiced the defendant. The Court held that there is no question that the attorney's conduct fell below an objective standard of reasonableness. Sleeping in court during your client's cross-examination is not reasonable conduct for an attorney. What the defendant could not prove, however, was that his attorney's conduct prejudiced the defendant's defense. In order to do so, Muniz would have to prove that the outcome of the trial would have been different. The evidence against Muniz was so strong, the Court held that it was unlikely that the outcome of the trial would have been different even if the attorney had not fallen asleep.

If an attorney sleeping through examination of his client by the government is not enough to trigger relief, what is? Sounds like the Court is asleep on this issue as well. I understand that in a case--especially one of strong proof--that the court can't be reversing on collateral issues. But I wonder what the trial court was doing. Surely, if two jurors are to believed and counsel was asleep, the Court was aware. I can't think of anything more damaging to the integrity of the judicial process than a sleeping defense attorney. You can imagine what the jurors said, "if his own lawyer doesn't care enough to be awake for the trial you know he's guilty."