Saturday, December 31, 2011

Parents Responsible for Underage Drinking

With New Year's Eve upon us and a plethora of parties soon to begin, a reminder to parents that they are liable in Tennessee for underage drinking--drinking by their children and underage guests that happens in the home.  As a lawyer and a parent of two high school age young adults, I am always a little surprised when I hear parents say that they did not realize they are responsible for underage drinking at their homes.

Many parents think that they can provide a safe haven for young adults to experience alcohol responsibly.  As one parent told me, "I don't want my son driving after drinking a beer. And, it's not like they are getting drunk." That parents have turned a blind eye to the potential consequences concerning what could happen where beer and liquor are consumed is a problem.  With every holiday season we have parties and arrests for drinking under age. When tragedy strikes in the form of an alcohol-related accident or fatality, parents need to know that they might bear significant responsibility.  In Tennessee there are two kinds of potential consequences:  criminal and civil. Criminally, parents can be held liable for the crime of contributing the delinquency of a minor where alcohol is served to minors with their consent or tacit approval (Class A misdemeanor).  Perhaps less well known are the civil consequences.  In a civil context, when you open your home up to the teenage beer-blast, you have exposed yourself to monetary damages for any foreseeable consequences that might follow.  A parent is a social host, and he/she owes guests a duty of reasonable care under the circumstances.   If the harm that follows (arrest, DUI, injury or fatality) is reasonably foreseeable, then the parent is liable.

Today's Wall Street Journal reports about the reality of parents being held liable for underage drinking:
Eight states have specific "social host" laws that say parents can get in trouble if underage guests are drinking, even if no one gets hurt, according to the National Institutes of Health. (Some of those states allow parents to serve alcohol to their own children in some situations.)Sixteen other states have laws that hold Mom and Dad legally responsible for underage drinking under certain circumstances — for example, if a teen who drank at their home got into a car accident, NIH said. In other states, parents can get in trouble under more general liability laws. 
Stephen Wallace, a senior adviser at Students Against Destructive Decisions, or SADD, which used to be called Students Against Drunk Driving, said that with an increased awareness of the dangers of underage drinking, law enforcement authorities are increasingly relying on social host liability laws to go after parents. 
While he acknowledged that teens are adept at finding ways to drink on the sly, he said he is all for anything that gets at the problem of underage drinking. He said he finds it troubling that the Burnetts said they saw no alcohol consumed at their party. 
"Parents need to say to kids, 'You shouldn't be drinking at all and you certainly can't do it here because we can be put in jail,'" Wallace said.
In Tennessee, laws are on the books that hold parents responsible for teen parties and drinking in their midst.  Criminal and civil penalties may follow parents who willfully ignore the obvious:   you are in charge.

Friday, December 30, 2011

Maker’s Mark’s Trademark Case After Oral Aruments

With the New Year festivities to begin tomorrow night, a liquor trade mark case caught my attention. The Sixth Circuit Court of Appeals recently heard oral arguments involving Marker’s Mark and whether it can keep a trademark on its signature red wax seal. The company is seeking to enforce an injunction preventing any other liquor company from using a similar bottle top.


In 2010, Maker’s Mark won an order granting exclusive rights to the dripping red wax seal. At that time U.S. District Judge John G. Heyburn II in Louisville granted Maker’s Mark an injunction prohibiting any other company from using a similar seal and look. Heyburn justified the decision by saying the company had a valid trademark that ought to be enforced.

Brett Barrouquere reports that the 2010 decisions put an end to a nearly seven-year long ordeal between the owner of Marker’s Mark, Deerfield, Illinois-based Fortune Brands and London-based Diageo North America and Casa Cuervo of Mexico which use red wax seals on special bottles of Reserva tequila. Fortune’s former liquor business has since been spun off to a new company, Beam, Inc.


Maker’s Mark lead counsel Edward T. Colbert said the seal serves no purpose other than to make the bourbon bottles distinctive and that it isn’t required for the production or packaging of Cuervo liquor. Colbert, brother of Comedy Central comedian Stephen Colbert, says others may want to use the wax seal but have no need for it. 


Attorneys for Diageo and Cuervo are instead arguing that use of a red wax seal in no way causes customer confusion. Buyers of tequila and bourbon are after different things and no one is confused about whether the two companies are affiliated with one another. 


Judge Karen Nelson Moore took a different view, asking “Wouldn’t it be a logical assumption that the same company made the two products because of the red wax seal?” Cuervo attorney Michael Aschen responded that customers won’t be confused about Cuervo’s origins, saying “They’re not going to get confused and think it comes from Kentucky.”


Aschen noted that Maker's Mark uses a square bottle with large, black letters on it and costs around $25, while Cuervo’s bottle is tall, cylindrical, bears the tequila's logo and cost about $100. The only commonality is the red wax seal, Aschen said.


Cuervo began using the dripping wax seal on bottles in 1997 as part of an effort to brand Reserva tequila as a specialty product. The wax-dipped bottles entered in the U.S. market in 2001 in a limited production run of 3,000-to-4,000 bottles. The bottles remained on sale in the U.S. market for approximately three years.
Maker’s Mark sued over use of the seal in 2003, claiming it violated their long-standing trademark. Cuervo dropped the dripping wax seal six years ago.


Maker’s Mark spends about $22 million annually to market its bourbon, and sells about 800,000 cases annually. The ad campaigns focus heavily on the wax seal, occasionally mixing things up with a different color. Recently a blue seal was used as a promotion for a University of Kentucky charity drive. 


Heyburn declined to award damages when deciding that the injunction would be put in place, saying Cuervo violated the trademark, but did not focus its marketing efforts on the red wax seal to the point of damaging Maker’s Mark’s brand.


Eleventh Circuit: magistrate judge disqualified for participating in plea negotiations

In United States v. Davila, the defendant pled guilty to conspiracy to defraud the United States by obtaining false tax refunds. Prior to his plea, the defendant requested that the magistrate judge discharge his court-appointed attorney for failing to discuss any strategies aside from pleading guilty. At this hearing, the magistrate judge instructed the defendant as follows:

"The only thing at your disposal that is entirely up to you is the two or three level reduction for acceptance of responsibility. That means that you’ve got to go to the cross. You’ve got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three-level reduction for acceptance, and . . . someone with your criminal history needs a three-level reduction for acceptance."

On appeal, the Eleventh Circuit held that the magistrate judge’s comments violated Federal Rule of Criminal Procedure 11(c)(1), which prohibits “the participation of the judge in plea negotiations under any circumstances.” Even though the defendant failed to raise a Rule 11 violation on appeal, the Eleventh Circuit held that a violation of this rule is plain error and the defendant was not required to show actual prejudice. Although other circuits recognize harmless error in this context, the Eleventh Circuit made clear that it does not, explaining that even if judicial participation is well-intentioned it will result in convictions being vacated, remanded, and reassigned to another judge.

Eleventh Circuit: value of interstate transport of forged securities determined by face value not actual worth

In United States v. James Brown, the defendant was convicted of mail fraud and transporting forged securities in violation of 18 U.S.C. § 2314, which makes it illegal to knowingly transport in interstate commerce stolen/fraudulent securities or money “of the value of $5,000 or more.”

As a matter of first impression, the Eleventh Circuit addressed whether the “value” element of 18 U.S.C. § 2314 is satisfied by the amount payable as written on the face of the instrument even if the instrument itself was cancelled and, therefore, worthless before it was transported. The court of appeals rejected Brown’s argument that value should be interpreted to mean “actual worth,” holding that the meaning of value under the statute was the value listed on the face of the instrument, whether or not the instrument itself had any actual value or worth.

In its reasoning, the Eleventh Circuit turned to 18 U.S.C. § 2311, which defines value as “face, par, or market value, whichever is greatest.” Although “face” is not expressly defined in the statute, the court turned to its plain meaning: the value listed on the face of the instrument. The court relied on the Fifth Circuit’s interpretation of this statute in United States v. Onyiego (holding that forged airplane tickets with a face value of over $5000 satisfied the value element of 18 U.S.C. § 2314 even though the tickets themselves were “made up” and actually worth nothing).

Thursday, December 29, 2011

Signed Affidavit is Close Enough for Will to be Valid

The TN Court of Appeals reversed Chancellor Jerri S. Bryant, Polk County, and found that a will was validly executed.  At issue was whether a document was a will at all.   The document was not signed at the end, but the following document, the affidavit to the will, was properly signed.  Chancellor Bryant found no will to exist without the appropriate signature on it; therefor an affidavit purporting to support the will was meaningless--if no will existed in the first place.

The Appeals Court saw it differently.  
The unfilled-in space in the document is interesting. It seems plausible to us that this space was intended to contain the Deceased’s printed name and not his signature. If this is the case – and we believe it is – then the second page simply fails to have a line for the Deceased’s signature. We believe this bolsters our position, hereinafter stated, that the Deceased signed the aforesaid affidavit intending to sign the Will.
The case is interesting because of the historic rigidity held position that the courts have had  regarding signatures. No signature typically means no will. A mark on a document intended as a signature is sufficient, but as the proof in this case showed, if the person making the will is capable of signing his name and has in fact signed his name elsewhere in the documents, then initials or a mark is not the same as a signature or valid. Here the court followed the intent of the man signing the affidavit--he intended to sign his will--and the Appeals Court found that sufficient.  The man intended to have that document be his last will, that makes sense.

The puzzling question is how could a lawyer have drafted a will without a signature line at the end of the document. From the proof, the man sat and initialed the first page and signed the following document, the affidavit to the will.

Wednesday, December 28, 2011

Public Reprimand of Judge Zachary


The complaint alleges an act or acts by you that violated the Code
of Judicial Conduct, in that the complaint asserts that you had  imposed a
punishment in a case that  involved  handcuffing a father to  a son as  a
punishment.

6th Circuit Maximum Sentence for Man who Threatened Judge


The 6th U.S. Circuit Court of Appeals recently decided to uphold the five-year sentence of a man who sent threatening letters to a federal judge in Nashville - including one that contained a white powdery substance which was later found to be a harmless artificial sweetener.

Herbert Wilfred Nixon sent the letters to Senior Judge Thomas Wiseman in 2002 after Wiseman sentenced him to three years in prison for credit card fraud. “The unsigned letters demanded money and threatened the judge’s life,” according to the 6th Circuit opinion written by Judge Raymond M. Kethledge.

Nixon pleaded guilty to making a false threat involving a biological weapon, in violation of 18 U.S.C. § 1038(a)(1).. While federal sentencing guidelines only called for a sentence of 30 to 37 months, U.S. District Judge William J. Haynes Jr. decided to send a strong message and sentenced Nixon to 60 months, the statutory maximum. Judge Haynes also ordered that Nixon have no contact with any member of the postal service during his three years of supervised release.

Nixon argued that the sentence was unreasonable. However, the three-judge appellate panel upheld it, citing factors including Nixon’s criminal history and the fact that his hoax “required the government to spend resources responding to a bio-hazard threat and were meant to terrorize a district judge and his staff.”

The Court wrote that just because another appellate court might have imposed a different sentence does not mean reversal is appropriate. The Court found that given the circumstances of Nixon’s offense, his criminal history, and his refusal to be deterred by a prior 36-month sentence, the district court’s sentence of 60 months was not an abuse of discretion.

Nixon also challenged the supervised release condition barring him from contact with any member of the postal service. The Court disagreed again, saying that Nixon used the postal service to commit his crimes, so the supervised release condition was reasonably related to the nature and circumstances of his offense and thus reasonable. The panel found that condition was even more palatable given that Nixon was only prohibited from contacting members of the postal service; he was not barred from using the service altogether.

For the full opinion, click here.

Saturday, December 24, 2011

CCA affirms theft convictions and no violation of interstate agreement on detainers

A Monroe County jury convicted the Defendant, Todd Joseph Sweet, of theft greater than $10,000, and the trial court sentenced him to six years in the Tennessee Department of Correction, to be served consecutively to a sentence he received in a separate case, case number 08-081. In this appeal, the Defendant contends: (1) the trial court improperly denied his motion to dismiss for the State’s failure to comply with the Interstate Compact on Detainers; (2) the trial court improperly refused to remove for cause a juror who had previous knowledge of other crimes the Defendant allegedly committed; (3) the State failed to comply with Tennessee Rule of Criminal Procedure 16 when it failed to provide the Defendant’s trial counsel with letters written by the Defendant and intercepted by the Monroe County Sheriff’s Department; (4) the State failed to disclose exculpatory evidence; (5) the trial court improperly admitted evidence that the Defendant had committed other crimes; (6) the trial court improperly denied the Defendant’s motion for a mistrial; (7) the trial court improperly instructed the jury; (8) the trial court improperly denied the Defendant’s Motion to Strike the State’s Notice of Impeachment; (9) the evidence was insufficient to support his conviction; and (10) the trial court improperly sentenced the Defendant to the maximum sentence within his range and improperly ordered that his sentence run consecutively to a sentence he had previously received in a separate case. CCA concludes that there exists no error in the trial court’s judgment. Court of Criminal Appeals affirms the judgment and sentence.

Full case State v. Sweet

Post Conviction denied in Juvenile life without parole murder conviction

Daniel Decker, appeals the Hamilton County Criminal Court’s denial of his petition for post-conviction relief. Decker was convicted by a jury of one count of first-degree premeditated murder and is currently serving a sentence of life without the possibility of parole. On appeal, he contends that the post-conviction court erred in denying his petition because the proof presented established that he was denied his right to the effective assistance of counsel. More specifically, the petitioner alleges that the postconviction court erred in   multiple aspects, specifically: (1) that the courtheld that an expert witness had the duty and burden to present her opinions more completely at trial; (2) that the court erred by admitting a letter written by the petitioner to trial counsel after the conviction; (3) that the court should haverecused itself in the matter; (4) denying  relief because the petitioner met his burden of proof under the Strickland standard to establish ineffective assistance of counsel; (5) that the court erred by not reviewing trial counsel’s performance under the Cronic standard; and (6) that the court erred by failing to address all issues raised by the petitioner in its order denying relief.Court of Criminal Appeals finds no error and affirms the denial of the petition.

Full case State v. Decker

Thursday, December 22, 2011

TN Supreme Court Examines the Constitutionality of Two Murder Convictions and the Subsequent Death Sentence


The TN Supreme Court recently decided the case of Leonard Smith, convicted murderer on death row. The long case with a complicated procedural history began in 1985. He was convicted of murdering John Pierce in 1985 and of murdering Novella Webb in 1989, both occurring in the process of an armed robbery.

There were four issues on appeal. The first, and arguably the most interesting, is whether Smith was denied his Constitutional right to a fair trial at his 1995 re-sentencing hearing when his counsel failed to investigate and present evidence in support of his motion to recuse the presiding judge. Judge Brown, presiding judge over Smith's case, also served as a Prosecutor in Carter County. In May of 1984, Smith was indicted in Carter County for simple robbery and DUI. Prosecutor Brown (now Judge Brown) was assigned to prosecute him. Therefore, Smith was being prosecuted at the same time in two different counties for four crimes: the two murders and the robbery and DUI in Carter County. Smith appealed his convictions for the simple robbery and DUI but was denied relief. Meanwhile, Prosecutor Brown later became Judge Brown and presided over Smith's 1995 re-sentencing hearing.

When presented with these facts, Smith's attorneys neglected to investigate further into Judge Brown's involvement in the prior convictions to determine whether he had an obligation to recuse himself.

In determining whether Smith's counsel was ineffective, the Court looked to the United State Supreme Court's holding in Strickland v. Washington. Specifically, the Court in Strickland stated that the ultimate focus on the effectiveness of an attorney is "whether counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Judicial impartiality is a fundamental requirement in the guarantee for due process. Therefore, the test is an objective one: the Court examines whether the Judge is likely to be "neutral" or whether there is an unconstitutional "potential for bias."

The Court held that Smith's counsel were ineffective when they neglected to investigate or further pursue the motion to recuse. This ineffective counsel resulted in prejudice to Smith in that he was denied his right to a fair trial before an impartial tribunal. Particularly damaging to Smith's case was Judge Brown's involvement in the re-sentencing. As part of justification for a sentence of death, a judge should consider any aggravating factors such as prior violent felony convictions. Not only did Judge Brown know of the prior conviction for robbery, but he was the attorney that prosecuted Smith for that crime. This is clearly a situation that would point to a "potential for bias" by the Judge.

The Court examined three other issues: 1) whether Smith met the definition for "intellectual disability" and would thus be precluded from receiving a death sentence; 2) whether Smith's counsel were ineffective in their voir dire of potential jurors when they neglected to ask the jurors if they or someone close to them had been victims of a crime; and 3) whether the post-conviction claims Smith brought for the Pierce murder were barred by the statute of limitations.

The Court decided the lower courts should be given the opportunity to further examine whether Smith met the definition of "intellectual disability." The case was remanded back to sentencing. If found to have an "intellectual disability," Smith cannot be sentenced to death. Next, the Court decided that his attorneys were ineffective when they neglected to ask the potential jurors if they or anyone close to them had been a victim of a crime. The boyfriend of the daughter of one of the jurors was murdered in the recent years before Smith's trial. When asked if that would impair his ability to be impartial, the juror responded that he could remain impartial throughout his decision. Although counsel was ineffective, since Smith could not prove actual bias, he could not be afforded a remedy. Lastly, the court held that Smith's post-conviction claims were barred by the statute of limitations. The statute of limitations for bringing post-conviction claims is three years from the final action of the highest appellate court. Smith waited twelve years to bring post-conviction claims for the Pierce murder. The Court held this was obviously in violation of the statute of limitations and the claims were barred.

After all of that it might be difficult to tell where exactly Smith stands. Here is the rundown:
  • Smith's conviction for the Pierce murder are affirmed.
  • Smith's conviction for the Webb murder is affirmed.
  • Smith's death sentence was vacated, and the case is remanded to the trial court for hearings on Smith's mental capacity. These hearings are to be conducted by a judge other than Judge Brown.

Wednesday, December 21, 2011

Retrial for Christian/Newsom Slayings Prompts Outcry to TN Supreme Court

Lemaricus Davidson
Despite being inundated with thousands and thousands of emails, the Tennessee Supreme Court has said that nothing can be done regarding the expected retrial for those convicted in the Christian/Newsom slayings.  And, of course the rules of criminal procedure would bar any attempt to circumvent or expedite the process.

The high court has said that justices cannot and will not consider the email petitions received by them, regardless of how many people ultimately send them in. Thus far more than 16,000 people nationwide have signed and forwarded an online petition requesting that the Tennessee Supreme Court, Tennessee Governor Bill Haslam and former Knoxville Mayor Daniel Brown do what they can to prevent the convictions of the four defendants from being thrown out for the 2007 kidnapping, rape, torture and murder of Channon Christian and Chris Newsom.

Christian, 21, and Newsom, 23, were on a date when they were carjacked the night of Jan. 7, 2007. They were held hostage at a rented house on Chipman Street in North Knoxville, where they were raped, tortured and killed.

Four separate juries found four people — Lemaricus Davidson, Letalvis Cobbins, George Thomas and Vanessa Coleman — guilty in the couple’s murders. However, Special Judge Jon Kerry Blackwood decided earlier this month that all four defendants in the Christian/Newsom case must receive new trials. Judge Blackwood granted the retrials due to extreme judicial misconduct found during a TBI investigation of former Knox County Judge Richard Baumgartner, who presided over the four previous trials.  Judge Baumgartner was recently disbarred after admitting he had a drug addiction.  This admission apparently is only the tip of that iceberg.

Judge Blackwood is one of the most accomplished and well respected members of the bench statewide.  As a Senior Judge, he is often called upon by the Supreme Court to hear the most difficult cases across the state.  Often these cases involve conflicts with attorneys or District Attorney's offices and in some cases, like this one, even errant judges.  Attorneys who have practiced before him praise him for his legal knowledge, fairness, and ability to quickly sort out the thorniest of legal issues.  If Judge Blackwood says that justice dictates that these cases require a new trial, then it is from the facts and circumstances that happened on Judge Baumgartner's watch that this remedy is demanded. Those familiar with Judge Blackwood--prosecutors and defense attorneys alike--will tell you, he coddles no defendant and suffers no foolish lawyer.  This decision to order four new trials was difficult to make, knowing full well the pain it would bring to the victim's families.  But, that Judge Blackwood would make this most unpopular decision is a testament to the power of the rule of law in Tennessee and a strong signal that the law applies even to those who seem most undeserving.

Laura Click, spokeswoman for the Tennessee Administrative Office of the Courts said she gets the email petitions constantly. “It's the exact same email, over and over again.”

Click said that while the justices care that the public is so invested in the case they will not be swayed by the outpouring. The Court can only look to the law and to do otherwise would be a breach of judicial ethics. 

Meanwhile, Knox County prosecutors have said they will appeal the case to the state Court of Criminal Appeals. John Gill, special counsel for the Knox County district attorney general said that the appeal should be filed by early January.

Click went on to say that, “The Code of Judicial Conduct prohibits judges from commenting on any cases that may come before them. Should the state file an appeal from the trial judge’s decision granting the motions for retrials, the appellate courts will consider the appeal based on the facts and information filed with the court as part of the regular appeals process, described in the Tennessee Rules of Appellate Procedure,” Click said.

 Channon Christian & Chris Newsom
Christian’s cousin, Brandon Sterne, started the online petition at http://www.change.org within a few days of Blackwood’s decision. Despite the news from the Supreme Court, the petition drive has not stopped; as of last count there 18,155 signatures.


Tuesday, December 20, 2011

What are the DUI penalties in Tennessee?






Frequently attorneys are asked, what are the potential penalties for DUI?  Most lawyers know the conventional answer: loss of license and 48 hours in jail.  But the reality is that DUI law is becoming more complicated and the penalties can be more invasive than one might think. Listed below are the actual DUI penalties in Tennessee. These are listed by the TN Department of Safety & Homeland Security and are updated as legislative changes occur.

By way of example, a first offense DUI has the following potential penalties:
  • from 48 hours in jail up to 11 months, 29 days for first offenders
  • .20 BAC or greater minimum jail time 7 consecutive days
  • License revocation for 1 year/restricted license may be available for work
  • 3 days (24 hours) of community service like trash pick up
  • alcohol & drug counseling
  • You will be ordered to participate in a DUI school
  • Pay restitution to any person suffering physical injury or personal loss
  • $350-$1,500 fine to the state plus often a local court's DUI fine typically another $100
  • With towing, bail, high risk insurance, court costs, school, and reinstatement fees, your first offense average costs could add up to $5,000 
  • Judge can order you to install a vehicle Ignition Interlock Device at your expense. Minimum 1st year cost $810 [55-10-412d]
  • If two (2) convictions of DUI in 5 years, Ignition Interlock Device required for 6 months after reinstatement at your expense Drug and Alcohol Treatment may be required at the judge's discretion.

A second offense DUI carries the following potential penalties:

  • from 45 days to 11 months, 29 days in jail
  • $600-$3,500 mandatory fine
  • 3 days community service
  • License revocation for 2 years/Restricted License available after first year
  • Subject to vehicle seizure/forfeiture
  • You will be ordered to attend a DUI school
  • alcohol and drug counseling
  • The judge can order you to install a vehicle Ignition Interlock Device at your expense
  • If two (2) convictions of DUI in 5 years, Ignition Interlock Device required for 6 months after reinstatement at your expense
  • Pay restitution to any person suffering personal injury or loss.

For a full list of penalties click this link or go to: 
http://www.tn.gov/safety/duioutline.shtml

Memphis Criminal Court Judge John Fowlkes appointed to Federal Judgeship

Memphis Criminal Court Judge John Fowlkes was appointed yesterday by President Obama to the Federal Bench for Western District, Tennessee.  The Commercial Appeal reports,
Fowlkes, 60, would take the post left vacant when former U.S. Dist. Judge Bernice B. Donald was sworn in as a judge on the U.S. Court of Appeals for the Sixth Circuit on Oct. 29.
“It is truly an honor for the President to nominate me for the position,” said Fowlkes moments before the official announcement came from the White House. “It’s a position I’ve wanted to fill for a number of years and I look forward to the challenges that the position brings. Of course, the process still has a ways to go. 
“In the meantime, I’m still the judge of Division 6 of Criminal Court,” he said. “My responsibilities don’t stop.”
Fowlkes has been a Criminal Court judge since 2007. Immediately prior to that, he served as the chief administrative officer for Shelby County government under then-County Mayor A C Wharton. Before that, he served as an assistant U.S. attorney from 1989 to 2002, where he prosecuted corruption, money laundering, narcotics and gang-related defendants, among others. From 1979 to 1989, he was an assistant district attorney general in the Shelby County District Attorney General’s Office.

Monday, December 19, 2011

When is a Courthouse Escape a Violent Offense?

Does a criminal’s escape from custody rise to the level of a violent offense? Courts have been struggling to answer that question with any degree of certainty. The latest case to deal with the issue is the Sixth Circuit case United States v. Oaks.

In Oaks, defendant Jerry Ray Oaks had a prior conviction for escape based on an earlier attempt to flee from a courthouse. In a later case, Oaks pleaded guilty to being a felon in possession of a firearm and the district court in the Eastern District of Tennessee sentenced him to 120 months. Oaks appealed his sentence, challenging the district court’s use of his prior conviction for felony escape to support his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

The Court stated that Oaks made his escape from a courtroom which was not in a secure facility. The Court labeled his escape as one from “nonsecure custody.” The Court was tasked with deciding whether such an escape from “nonsecure custody” is a “violent felony” for sentencing purposes.

To answer such a question the Court must decide whether an offender is significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a “serious potential risk of physical injury.” Chambers vs. United States, 555 U.S. at 128-29 (2009). The Court found that in this case, as in Chambers, “a United States Sentencing Commission report helps provide a conclusive, negative answer.” 

The Court decided that the act of escape from “nonsecure custody” is rarely violent. The Court relied on statistics that showed that out of one hundred seventy-seven instances of escape from “nonsecure custody” in 2006 and 2007, only 1.7% ever resulted in injury. The Court went on to say that a felony is not necessarily violent just because past commissions of that felony have involved violence. By way of example, the Court pointed to Chambers where the Supreme Court found that “failing to report” is not a violent felony even though previous commissions of that crime were known to have involved violence. 

The Court ultimately held that an escape from “nonsecure custody” is not a violent felony for sentencing purposes. They were careful to say that some courtrooms may be part of secure facilities and an escape from them may amount to an escape from “secure custody” thus necessitating a different decision. The Court remanded the case for resentencing.

See Other Blog Posts:

Saturday, December 17, 2011

Supreme Court to Hear Arizona Immigration Law Case

According to a recent article in the Wall Street Journal, the Supreme Court will soon decide whether Arizona specifically and other states, more generally, are allowed to target illegal immigrants for arrest.

With this announcement comes yet another highly political issue the Court has decided to weigh in on. This, in conjunction with President Obama’s signature health care law and a voting rights case in Texas are intensely partisan debates that the justices will issue an opinion on in the coming year.

Clarifying the limits of state and federal authority will be foremost in the immigration case, as well as in the dispute over the health care law. In another highly partisan dispute, the court on Friday agreed to rule on a Texas congressional remapping that figured to give Republicans four more seats in the House of Representatives. The Obama administration’s lawyers contend that the plan would deny fair representation to the state’s growing Latino population.

The Court’s ultimate decision on the Arizona case will decide the fate of other laws in states such as Alabama, Georgia, Indiana, South Carolina and Utah.

The issue before the justices is whether states may enforce the immigration laws on their own, or instead defer to the federal government with regard to immigration policy.
The U.S. Constitution grants Congress the power to set a “uniform rule of naturalization,” and this has been understood to mean the federal government decides who may enter or stay in the country. However, the Court has not ruled on just how broad this grant of authority is and, as a result, questions about the extent of states’ authority on the subject remain.

The new case began in July 2010 when Obama administration lawyers filed suit in Phoenix and argued Arizona had gone exceeded its authority by enlisting police to enforce the stringent immigration law. Under SB 1070, the Arizona immigration law, police are required to check the immigration status of people they lawfully stop and suspect of being in the country illegally. The law also makes illegal immigration a state crime. U.S. District Judge Susan Bolton blocked much of the law from taking effect, and the U.S. 9th Circuit Court of Appeals upheld her decision.

The court’s announcement said Justice Elena Kagan had stepped aside in the case, creating the possibility of a 4-4 split. A tie vote would affirm the 9th Circuit Court’s decision, giving a win to the Obama administration and a defeat to Arizona and like-minded states.

See Our Related Blog Posts:

Wednesday, December 14, 2011

President Obama Fails to Veto the National Defense Authorization Act


In a surprising move today by President Obama, the White House issued a statement supporting the controversial National Defense Authorization Act. In an earlier blog post, we highlighted some of the more controversial provisions of the Act. In short, critics fear this law oversteps the bounds separating government power and civil liberties. One of the main provisions authorizes the U.S. military to arrest and indefinitely detain alleged Al Qaeda members or other terrorist operatives captured on U.S. soil.

The news comes as quite a shock to many people due to President Obama's recent assurance that he would veto the NDAA when it fell on his desk. The reasoning behind the "change of heart," according to CBS News, was because the military mandate in the final version of the act had been "softened." The statement issued by the White House said in part,
"We have concluded that the language does not challenge or constrain the President's ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President's senior advisors will not recommend a veto."

Kenneth Roth, executive director of Human Rights Watch states, "By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in U.S. law. In the past, Obama has lauded the importance of being on the right side of history, but today he is definitely on the wrong side."

Even FBI Director Robert Mueller opposes the Act because of the restraints it puts on the federal government's ability to investigate and prevent terrorism. He said this when he expressed his concern, "My concern is that you don't want FBI agents and the military showing up at the same time, with some uncertainty as to who is in control."

This news will no doubt cause controversy for President Obama in his upcoming bid for reelection. What is more important, however, is the effect it will have on the civil liberties of U.S. citizens in the future. Unfortunately, only time will tell.

Tuesday, December 13, 2011

DNA Evidence and the Confrontation Clause

By the_tjb
Williams v. Illinois, was recently argued before the Supreme Court. This case concerns the issue of when a DNA analyst testifies at trial that he or she has compared analyses of two DNA samples and found a match-- does the prosecution also have to produce the experts who produced the analyses, or only the expert who reviewed them both and made the match? The oral arguments to Williams v. Illinois, can be heard through this link.

According to an article in The Atlantic, interest in this case is from a recent appeal by an Illinois rape convict and is part of a recent series of cases testing the reach of a defendant’s right to be “confronted by the witnesses against him.” A narrow majority of the Supreme Court has expanded that Sixth Amendment right in cases involving a range of witness testimony, including the introduction of forensic reports.

The facts of the case are as follows: Police took a sample of Sandy Williams’s blood after he was arrested on an unrelated charge. A lab technician at the official state lab then sequenced his DNA. A state expert in turn compared the chart produced by that sequencing with another chart, drawn from a sample taken in a “rape kit” from the victim. That chart came from a sequencing conducted in an out-of-state lab. The state-lab tech testified that proper procedures were followed. The expert testified that the two charts were a close match. The out-of-state lab was accredited, but beyond that little was introduced regarding the procedures that took place on their end. Williams’s attorneys moved to strike the evidence and thus far the Illinois state court has refused.

The case has potentially important implications for both sides of the criminal law practice. Requiring testimony from multiple experts who will essentially be testifying to the same thing, makes criminal prosecution more costly. However, allowing only one expert to testify raises the chance that flawed DNA may sway the jury.

The new dispute, closely watched by prosecutors and defense lawyers nationwide, specifically addresses situations in which a report is not introduced at trial but is used as the basis for testimony by another expert witness. A ruling would refine the rules for when analysts must be available for trial.

Forty-two other states have entered the case on the side of Illinois, arguing that scientific witnesses should be able to offer independent analyses of forensic evidence without the need to bring in the people who generated the underlying data. Defense groups such as the California Public Defenders Association counter that if those who prepared the underlying reports are not called, a defendant will not be able to probe their qualifications or record.

The issue is critical in criminal prosecutions because of the important role DNA evidence has developed since it was first introduced as evidence in the 1990's. It’s seen by many juries as rock-solid proof that a crime was or was not committed, even if that conclusion is misleading in the context of the entire case. Justice Alito wrote as much in an earlier case, saying “DNA testing... even when performed in perfect accordance with protocols - often fails to provide ‘absolute proof’ of anything.”


A ruling in the case of Williams v. Illinois is likely by the end of June when the Court recesses for the summer.

See Our Related Blog Posts:

Saturday, December 10, 2011

State's Failure to Elect Offenses Results in Reversal of 100 Year Sentence

Charlie Brown was convicted at trial of child rape from multiple counts and sentenced to a 100 year sentence. He asserts on appeal that the trial court should have required the State to make an election of offenses as required by the Tennessee Supreme Court in this child rape case. The State acknowledges that the trial court should have required the prosecution to make an election of offenses but argues that the error was harmless because the victim “recounted a single set of facts constituting the crime and testified that the same facts happened every time she visited the [appellant].” However, the State also acknowledges that this argument was squarely rejected by our supreme court in Tidwell v. State, 922 S.W.2d 497 (Tenn. 1996). Trial Courts are required to strictly follow the law as set forth by our Supreme Court and cannot rule contrary to precedent established by that court even if they wish to do otherwise.

Here, the victim testified to repeated rape by the defendant but could not provide a single detail that differentiated one offense from another.  Since the state did not elect which counts that they were relying upon for the evidence, it violated precedent when it was submitted to the jury.

The State also argues that to require an election of offenses in this type of case “prevents the State from prosecuting defendants who have been successful in delaying disclosure of their crimes.” However, the TN Supreme Court has rejected this argument, stating, the rules of evidence and the rules of procedure have been relaxed to some extent to accommodate very young witnesses. Nevertheless, the constitutional protections guaranteed a criminal defendant, who is presumed by law to be innocent until proven guilty, cannot be suspended altogether because of the victim’s age or relative inability to testify. In cases such as this one, the state must either limit the testimony of prosecuting witnesses to a single event, or prepare the case so that an election can be made before the matter is submitted to the jury to decide. 

The Court concluded that the trial court committed reversible error by failing to require the State to make an election of offenses.

Thursday, December 8, 2011

Apeals Court Reverses and Imposes Community Corrections in Drug Case

Angela Colley pled guilty to selling 0.5 grams or more of cocaine on June 9, 2008 , delivering 0.5 grams, selling less than 0.5 grams of cocaine on June 17, 2008, and delivering less than 0.5 grams of cocaine on June 17, in the Sullivan County. Pursuant to her plea agreement, count two merged with count one and count four merged with count three, and Colley received a sentence of eight years at thirty percent for count one and a concurrent sentence of three years at thirty percent for count three, for an effective sentence of eight years, with the manner of service to be determined by the trial court. 

At the sentencing hearing, the trial court denied all forms of alternative sentencing. On appeal, Colley argues that the trial court erred in denying her request for an alternative sentence. Court of Criminal Appeals reversed the judgments of the trial court and remand for entry of judgments sentencing Colley to community corrections and for consideration of other terms and conditions that the trial court deems appropriate pursuant to the Community Corrections Act.

Wednesday, December 7, 2011

U.S. Supreme Court to Revisit the Confrontation Clause... Again

Staircase at US Supreme Court  by RLHyde
The U.S. Supreme Court heard oral arguments on the potentially monumental case of Williams v. Illinois yesterday. The case involves a laboratory test in a rape case. A sample of Williams' DNA was sent to a lab in Maryland where it was tested. The result proved that Williams' DNA matched the DNA of a rape assailant. At his trial, an analyst with the Illinois State Police Laboratory testified about the DNA and how the DNA taken from the assailant in the rape case matched the DNA taken from Williams. The analyst admitted that the DNA sample was tested in a Maryland laboratory and that she never touched it, but that she did an independent review of the findings in her preparation as an expert witness. Williams was convicted and appealed. The Illinois Court of Appeals affirmed stating that the analyst was testifying as an expert and that the Maryland test results were never entered into evidence. Since there was an opportunity for cross-examination of the analyst, the Court saw no error in the proceedings.

The U.S. Supreme Court granted certiorari to revisit the Confrontation Clause as guaranteed by the Sixth Amendment. The Confrontation Clause provides a Defendant with the right to confront their accusers; particularly the right to cross-examine them at trial. The big issue for Williams is whether it is a violation of the Confrontation Clause that the actual technician who tested the DNA sample was not at trial and could not be cross-examined.

This is not a new issue before the Supreme Court. In fact, there have been two very recent opinions regarding issues of the Confrontation Clause: Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico. Melendez-Diaz stood for the principle that laboratory results are "testimonial" and that the defendant's Sixth Amendment rights were violated because the technician who handled the lab results had not testified. Bullcoming involved the same issue, but the lab technician who ran and handled the tests for a blood alcohol sample was on unpaid leave at the time of the trial. The testimony came from another analyst who was familiar with the testing process but did not touch the actual sample. The Supreme Court ruled 5-4 that this was a violation of the Confrontation Clause.

The dissenters in both Bullcoming and Melendez-Diaz stated fears that due to the majorities' holding, guilty criminals would go free because a lab technician couldn't be at trial. They also worried about the effect the holdings would have on the demand for technicians in court. The already long waiting period for lab results will undoubtedly increase if all the technicians are under Court-ordered Subpoena. The question for the dissenters becomes, what happens when a lab technician is permanently unavailable? Does that then mean that the lab result will never be admitted at trial?

Many are hoping these questions will be answered in Williams v. Illinois. Erwin Chemerinsky, Dean and law professor at the University of California Irvine School of Law, wrote an article on Williams for the ABA Journal. He stated that if the Court were to affirm Williams' conviction, experts can then testify based on a laboratory report without it actually being entered into evidence. If the Court chooses to reverse the Illinois courts, he says, then prosecutors will not know what to do in cases where a technician is unavailable or in a case such as this, where there are multiple steps and multiple technicians involved in the process.

Chemerinsky provides a little perspective regarding this issue when he says, "the underlying basic question is: how much should practical consequences matter in interpreting a provision like the Confrontation Clause?"

It will certainly be an interesting case to watch. We'll keep you updated on its progress throughout the upcoming Supreme Court season.

Implementing Fairness: Supreme Court Hears Case Regarding the Fair Sentencing Act

It was reported in the Courthouse News Service, that the Supreme Court on Monday agreed to hear two cases related to the issue of retroactivity and the 2010 Fair Sentencing Act (FSA), which deals with sentencing guidelines for powder cocaine and crack cocaine offenses.

Under the FSA, a conviction for the distribution of 280 grams of crack cocaine now carries a 10-year mandatory sentence, up from the previous level of 50 grams that triggered the mandatory minimum. The same sentence continues in effect for distribution of 5 kg of powder cocaine, so the FSA reduces the disparity in sentencing of crack and powder cocaine to 18:1 from 100:1.

There is currently a three-way split at the circuit court level regarding the implementation of the FSA. The 1st Circuit Court of Appeals has held that the FSA standards apply to sentencing which occurs after the guidelines were promulgated, so after November 1, 2010.  The 1st Circuit has said this is the case regardless of when the underlying offense was committed. The 3rd Circuit Court of Appeals, however, has held that the FSA standards apply to sentencing that occurs only after the FSA was enacted on, so after August 3, 2010. The 3rd Circuit has also said this is the case regardless of when the underlying offense was committed. The 5th, 7th and 8th Circuits have all held that the FSA does not apply unless the underlying offense was committed after August 3, 2010. The 6th Circuit has held that FSA is not retroactive.


However, closer to home, Chief Judge Curtis Collier ruled in US v. Toney Robinson, Docket No. 1:10-CR-66 that in the Eastern District the Fair Sentencing Act applies to defendants whose offense occurred before August 3, 2010, and who are sentenced after that date.  Judge Collier distinguishes Robinson from the Sixth Circuit's Carradine opinion.

The cases before the Supreme Court both arise from the 7th Circuit. Both petitioners were found guilty of crack cocaine offenses before Congress passed the FSA. In one case, the criminal was sentenced after the FSA was enacted, but before guidelines to implement the Act were put into effect. In the other case, the convict was sentenced after both the enactment of the FSA and the passage of the implementing guidelines. In each case the courts refused to apply the new FSA standards, choosing to instead sentence the criminals to significantly longer prison terms. The 7th Circuit affirmed the lower courts’ decisions.


The federal government initially asserted that the FSA standards would not apply to offenses committed before August 3, 2010. It later changed its mind. This summer Attorney General Eric Holder issued a memo stating that the FSA guidelines should apply to all sentences "that occur on or after August 3, 2010, regardless of when the offense conduct took place.” 


The Supreme Court is now faced with the decision of choosing between the Circuit Courts. The justices must decide whether the new guidelines apply to sentences imposed after the FSA became law for offenses that were committed before the FSA was enacted.


See Our Related Blog Posts:

Indictment Cures Any Defect in DUI Warrant

Guy Cathey pled guilty to driving under the influence of an intoxicant (“DUI”), first offense, and reserved on appeal the following two certified questions: (1) “Whether a magistrate that conducts field sobriety tasks upon a defendant prior to issuance of a warrant is qualified as [a] ‘neutral and detached’ magistrate for purposes of the Fourth Amendment to the Constitution of the United States or its laws and/or in violation of the Constitution of the State of Tennessee and its laws”; and (2) “Whether the issuance of a warrant after the administration of field sobriety tasks by a magistrate to a defendant [was] in violation of the Constitution of the State of Tennessee and/or its laws.” After the challenged warrant was issued,the Grand Jury indicted the defendant, charging him with one count of DUI. The Court of Criminal Appeals held on Monday, Dec. 5, 2011, that the certified questions are not dispositive of the defendant’s case because the subsequent indictment cured any defects in the warrant. The appeal was dismissed.


How do you preserve a question on appeal?

Tennessee Rule of Criminal Procedure 37(b) sets forth the requirements for preserving certified questions for appeal from guilty pleas: The defendant may appeal from any judgment of conviction . . . on a plea of guilty . . . if . . . the defendant entered into a plea agreement under Rule11(a)(3) but explicitly reserved – with the consent of the state and of the court– the right to appeal a certified question of law that is dispositive of the case. . . .Tenn. R. Crim. P. 37(b)(2)(A). Strict compliance with Rule 37’s requirements is mandatory. See State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003)

Saturday, December 3, 2011

U.S. Senate Passes The National Defense Authorization Act

The Huffington Post reports today that the U.S. Senate voted 93 to 7 to pass the National Defense Authorization Act (NDAA). In an interesting article featured on the American Constitution Society Blog, Stephen Vladeck, a law professor and Associate Dean at American University Washington College of Law, highlights some of the more controversial portions of the NDAA.

The NDAA, passed just over a decade after the Authorization for the Use of Military Force (AUMF), seems to greatly increase governmental power to detain persons suspected of participating in and aiding terrorist activities against the U.S. While terrorism awareness and prevention have obviously been priorities in the government since September 11, 2001, many believe this Act crosses lines that should have never been drawn. The AUMF left many questions unanswered and over the last decade, courts have attempted to answer some of these questions. For instance, they have reached conflicting views on whether AUMF authorizes the detention of U.S. citizens or non-citizens lawfully present within the United States. Most importantly though, the courts have consistently held that the purpose of the AUMF was to authorize the government to use military force on those reasonably believed to be tied to the September 11, 2001 terrorist attacks. A main concern of the NDAA, according to Vladeck, is that it severs the requirement that detention be tied to involvement with the September 11, 2001 attacks.

Many say that the NDAA expands the authority to detain to dangerous measures, disintegrating the boundaries used to protect the liberties of U.S. citizens. The NDAA authorizes, in addition to the AUMF,
"any detention of a person who was a part of or substantially supported Al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."

According to Vladeck, "the NDAA effectively authorizes the military detention of any individual who provides assistance anywhere in the world to any group engaged in hostilities against any of our coalition partners, whether or not the United States is in any way involved in (or even affected by) that particular conflict."
An obvious question is what the government would define as "direct support" of these enemy forces: money, outward praise, logical assistance, full-fledge involvement, etc. This particular language is undoubtedly vague and could include many different actions.

Another question with the language is what groups are included in the term "associated forces" because many may believe human rights activists, political protestors and even the infamous "occupiers" are "associated forces." Would that then permit the government to detain members of these "associated forces?"

Former FBI agent and author of the article in the Huffington Post, Coleen Rowley, expresses concern over another part of the NDAA; one that would be particularly damaging to the application of certain provisions of the Bill of Rights. According to Rowley, the NDAA would authorize the government to "decide who gets an old-fashioned trial (along with a right to an attorney and right against self-incrimination) and who gets detained without due process and put into a modern legal limbo." Some, including Rowley, believe the NDAA allows the government to treat U.S. citizens suspected of aiding terrorist groups as if they were "enemy combatants", and therefore, not to be afforded the same due process rights as other U.S. citizens accused of various crimes.

The biggest fear among the critics of the Act is that the already powerful U.S. Government would be given far more power than was originally intended and drafted into the Constitution. That U.S. citizens could be detained without due process for potential "support" or "aid" of enemy forces goes against the entire purpose of the Constitution.

For the vocal critics against the NDAA and all of those who may be quietly doubting its constitutionality, it seems President Obama has every intention of vetoing the Act once it reaches his desk. While that may provide some comfort, many fear this is only the first step to an eventual decline in the everyday liberties of U.S. citizens.

Friday, December 2, 2011

Federal Rule Changes December 1, 2011

Changes to Federal Rules became effective  December 1, 2011. The changes are listed below with links to each changed rule.


  • Rule 4 (clarifies 60-day appeal deadline in cases where U.S., federal agency, or federal employee is a party) 
  • Rule 40 (clarifies 45-day rehearing deadline in cases where U.S., federal agency, or federal employees is a party)
  • Rule 1   (expands the definition of “telephone and “telephonic” to include technologies that enable live, contemporaneous voice conversations)
  • Rule 3   (authorizes consideration of complaints and issuance of arrest warrants and summonses based on   information submitted by reliable electronic means as provided for in proposed new Rule 4
  •  Rule 4   (authorizes consideration of complaints and issuance of arrest warrants and summonses based on information submitted by reliable electronic means as provided for in proposed new Rule 4.1. Also authorizes the return of warrants by reliable electronic means)
  •  Rule 4.1     (new rule incorporates provisions that allow a warrant to be issued based on information submitted reliable electronic means and extends those procedures to complaints, arrest warrants, and summonses)
  •  Rule 6   (provides that a grand jury return may be taken by video conference)
  •  Rule 9   (authorizes consideration of complaints and issuance of arrest warrants and summonses based on information submitted by reliable electronic means to provided for in proposed new Rule 4.1)
  • Rule 32  (permits the defendant, upon consent, to appear by video conference in a proceeding on arrest for failure to appear in another district)
  • Rule 41(deleted provisions now covered by new Rule 4.1. Also authorizes the return of warrants by reliable electronic means)
  • Rule 43 (permits, with the defendant’s written consent, the arraignment, trial, and sentencing in misdemeanor cases to be conducted by video conference)
  • Rule 49 (authorizes local rules permitting papers to be filed, signed, or verified by electronic means)



  • Rules 101-1103 (make the rules simpler and easier to read and understand without changing substantive meaning)
Loading...