Saturday, March 31, 2012

New Tax for Diversion Applicants is a Bad Idea

Rep. Eric Watson, Photo by Associated Press
by Lee Davis

The Tennessee House passed a new tax this week that will require people to pay to have their name cleared upon the completion of diversion. HB 2774 (here), sponsored by Rep. Eric Watson, Cleveland, introduces the new tax. The new part is a $100.00 tax that must be paid to the court when requesting diversion. Also added is an increase in taxes that will escalate the amount required to clear one's name to $350.00. Thus, the total cost to have a record expunged after diversion will be $550.00 when the local fee for Hamilton County is added. The house bill has been sent to the TN Senate for passage. If signed by Gov. Haslam, the law will go into effect July 1st. This is a bad idea.Who will this bill affect, and what is diversion? Let's start with diversion; there are two types: judicial diversion and pretrial diversion.

Judicial diversion is a way many minor cases are settled for first time offenders.  Let's say you have a daughter who is home from college and gets arrested for using her sister's ID to get into a club or who actually drinks in the club.  The offending person is potentially guilty of underage drinking and using a false ID, both crimes.  If the person accepts responsibility and has no criminal record, the court may defer court proceedings without entering a judgment of guilty--with the consent of the prosecutor.  Under this example, the student will now pay $100 to be considered for diversion and $350 more (plus $100 local fee) to have their record expunged after completing diversion.  Previously, the person paid $150.

Pretrial diversion is for those with the least culpability who find themselves ensnared in the legal system. Let's say a person writes a check for a service and then disputes the service, placing a stop-payment order on the check.  The merchant then swears out a criminal warrant for theft of services.  Under this scenario each person believes the other is the culprit. The check writer may find herself in court, charged with a crime.  If the district attorney believes the explanation, he may offer the person pretrial diversion with an understanding that the case will be dismissed and expunged.  Most people, completely innocent people, will accept this disposition rather than endure additional trips to the courthouse to prove their innocence. Under the new law, this person will also be forced to pay $550 to have her good name cleared for actions that she believed were completely honest and ethical.

There is good reason to have records expunged.  Background checks are routine for employers, higher education and many other reasons.  A minor charge--even when explained--often will result in a job or school denial when found on a background check. Diversion is granted one time and only for good cause. The result is that many ordinary people may have their records expunged and reputation restored upon successful completion of diversion.  A modest fee for the service has always been the rule.  This week's action by Rep. Watson and the house will place a new heavy financial burden on many. This new tax will effect every citizen who seeks diversion. Without paying the new application tax, there will be no consideration of an application for diversion.  Without payment of the increased tax, no record will be expunged.  Many across the state who cannot afford these new and increased taxes will be harmed.

Saturday, March 24, 2012

Supreme Court decides two important cases affecting attorneys obligations to clients

The Supreme Court published opinions in two important cases this week, LAFLER v. COOPER and  MARTINEZ v. RYAN.  The cases recognize two obligations that attorneys owe their clients:  (1)  the right to effective counsel during plea bargaining and (2) a procedural remedy, if not a recognized right, during post-conviction challenges.  Both cases set forth the minimum standards of constitutional protections to be afforded individuals during either the plea process or in some situations upon collateral post-conviction.

In Lafler an attorney's bad advice led a client to reject a prosecutor's plea offer, resulting in a harsher sentence after trial. Noteworthy about this case is the Court's expansion of the right to competent counsel to the plea bargaining process. Previously, there was no specifically recognized right to plea bargaining or to a competent lawyer at that point:

“as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”  “Because ours ‘is for the most part a system of pleas, not a system of trials,’” Justice Kennedy reasoned, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”

In Martinez, the Court recognized the process--without going so far as recognizing the right--of people convicted in state court to effective assistance of counsel in collateral state post-conviction proceedings. Historically there is a well recognized right to effective counsel in direct appeals. However, there is no established right to competent counsel for collateral review of a conviction.

Justice Kennedy, without saying that a person has a right to effective counsel for these proceedings, nonetheless found that there is a procedure by which an individual can seek federal review of a constitutional claim if the person was denied that opportunity in state court because of attorney ineffectiveness:

"when a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington."

Both opinions produced critical dissents from Justice Scalia, and through those he writes that these opinions will open floodgates of litigation for both the newly recognized procedure in post-conviction proceedings and the right to effective counsel during plea negotiations.

Practically speaking where over 90% of criminal cases are resolved by pleas rather than trials, these decisions will have a significant impact in the day-to-day practice of law. While previously it was ethically required only for attorneys to relate plea offers to defendants, it is now a basic minimum requirement.  For most lawyers this is a small but important safeguard in our system of justice.

Wednesday, March 21, 2012

Hemy Neuman Found Guilty but Mentally Ill

Last week, the jury reached a verdict in the highly-publicized daycare shooting trial of Hemy Neuman. If you have been following the blog posts, you know that Neuman was accused of shooting Rusty Sneiderman on the lawn of a daycare in Dunwoody back in November 2010. He plead not guilty by reason of insanity, arguing that an angel who looked like Olivia Newton John told him he needed to kill Rusty Sneiderman. Neuman was intimately involved with Rusty Sneiderman's wife, Andrea although she expressly denied having an affair several times while under oath.

The jury deliberated over two days. They were presented with three options: not guilty by reason of insanity, guilty but mentally ill, or guilty. The jury found him guilty but mentally ill for the murder charge, and guilty for the possession of a weapon during the commission of a felony charge. The judge sentenced him to life without parole. The Judge was faced with the option of a life sentence with the possibility of parole after 30 years, however the Judge said he believed the killing was a "planned execution with no justification." With the guilty but mentally ill verdict, Neuman will receive treatment for his illness while in prison. The distinction between a not guilty by reason of insanity and a guilty but mentally ill verdict is that in the case of the former, the jury believes that the defendant did not know the difference between right and wrong during the commission of a crime. A guilty but mentally ill verdict indicates that the jury believes beyond a reasonable doubt that the defendant knew the difference between right and wrong and knew the consequences of his actions, yet remains a mentally ill individual. Obviously, it is possible to be considered mentally ill, but still possess the intent to commit a crime. Apparently, that is what the jury believed here.

Once he was sentenced, DeKalb County District Attorney Robert James said, "He was a cold-blooded killer. An adulterer. And a liar. And he ultimately got what he deserved."

What will be interesting to see is what prosecutors decide to do about Andrea Sneiderman. She quickly became an interesting topic because of her adamant denial of the alleged affair with Neuman. In an earlier post, I described some key discrepancies in her testimony, the most important being her testimony of when she first learned of the shooting. Andrea testified that she first learned of the shooting when she arrived at the hospital and the doctors informed her of her husband's condition. However, two separate witnesses testified that Andrea called them while in route to the hospital and told both of the witnesses that her husband had been shot. Also, it wasn't until after she began to receive payments off of her husband's life insurance policy that she saw fit to express to the police a suspicion that Neuman could have been the shooter.

The question now is: will prosecutors bring charges against Andrea? She would likely be charged with conspiracy. With the evidence that has arisen against her, it is highly likely that charges will be brought soon. I'll keep you updated. But for now, the dramatic trial of Hemy Neuman has ended, and he will be spending the rest of his life in prison.

Supreme Court Examines the Possibility of Limitations on Sentences for Juveniles

The Supreme Court yesterday heard arguments surrounding two new cases up for their review. Both involved the question of just how severe a penalty imposed on a juvenile has to be in order to be considered unconstitutional. The first case involved a 14-year-old in Alabama who beat an older man to death and subsequently burned his house down. The second case involved another 14-year-old boy in Arkansas who, along with two older boys, tried to rob a video store in 1999. One of the older boys shot and killed the store clerk.

Proponents for harsh penalties point to the "sanctity of life" as the reason a juvenile should be sentenced harshly for crimes involving killings. Justice Ginsburg, however, noted that this argument could fail because if the sanctity of life is an important interest for the State, by imposing a life without parole sentence on a 14-year-old, the State is essentially throwing that life away. Dissenters of harsh sentences believe that teenagers are immature, and should be given a more lenient sentence because of that. Their main point seems to be that many juveniles deserve a life sentence for their crimes; however, what they don't deserve is the lack of hope that they will ever get out on parole. Many worry, however, just how many teenagers will continue to commit extreme crimes such as the ones involved and claim they are too immature to know better.

Here are some of the possible solutions the Court could reach:
  • It could prohibit life without parole sentences for any minor under the age of 15.
  • It could prohibit life without parole sentences for anyone under the age of 18.
  • It could bar life without parole sentences for defendants who were accomplices to a crime.
  • It could bar mandatory sentences, relying on the discretion of the particular Court to consider all the facts and circumstances of the case.

Tuesday, March 20, 2012

Thirty-Seven Charges of Sexual Battery by an authority figure Reversed by Court of Appeals

Judge Norma McGee Ogle of the Court of Criminal Appeals released an opinion today that reverses Hardeman County convictions of Jimmy Qualls for 37 counts of sexual battery by an authority figure. The problem with the trial and the reason for the reversal was because of the failure of the state to make an election of offenses.  Added to the state's failure was the failure of the trial court to cure the problem.  In its simplest terms, where the state alleges criminal sexual acts over a span of time, the state must specify (elect) what acts it is asking the jury to convict upon.  A general or vague accusation insufficient. 

This requirement of election is for five stated purposes: (1) it enables the defendant to prepare for the specific charge; (2) it protects a defendant against double jeopardy; (3) it ensures the jurors’ deliberation over and their return of a verdict based upon the same offense; (4) it enables the trial judge to review the weight of the evidence in its role as the thirteenth juror; and (5) it enables an appellate court to review the legal sufficiency of the evidence.

Here the state approached the case with a grab bag theory of justice. It alleged many bad acts over several months and it left it up to the jury to figure out what acts went with what dates. The Court recognized the problem with this approach. 
To illustrate the operation of this theory, in any given case the State could present proof on as many offenses within the alleged period as it chose. Because all such offenses will have been “proven,” the jury may, in effect, reach into the brimming bag of offenses and pull out one for each count. Even when done by this method, the argument goes, each offense will have been proven beyond a reasonable doubt. We acknowledge that the illustration is an extreme one, but we think it makes the point: such an approach is contrary to our law.
Based on the state's failure to elect appropriate offenses, the Court reversed the convictions and has ordered a new trial.

Friday, March 16, 2012

HB 2869 and the Costs of Incarceration

By Jay Perry

A previously discussed proposed bill in the Tennessee legislature related to gangs moved on to the Judiciary Committee on Wednesday.   The bill (HB 2869/SB 3004) however was recently estimated by the Fiscal Review Committee of having a financial impact of $1.92 million over 10 years.  The Fiscal Note contains a few enlightening projections that merit review.

The Note estimates that the cost of incarceration per offender in the Tennessee Department of Corrections (TDOC) is $61.36 per day.  For the sake of comparison, an eight hour day of work payed at minimum wage would cost $58 per day.  The proposed bill would create an E felony which is statistically served in 1.28 years post-conviction (the maximum is 2 years).  Thus, each conviction for the proposed gang offense would cost a projected $28,687.

In making the estimations the Committee estimated that the proposed additional gang offense would only be added to three current crimes: aggravated assault, robbery, and aggravated burglary.  They estimate that for those offense, three (3) percent involves gang activity.  It is unclear why they chose only these three offenses for the estimates, most notably they did not include aggravated robbery.

The Note also indicates that 25.5% of offenders will re-offend within one year of their release.  A recent Pew Center study calculated the national recidivism rate (3 year return to prison rate) at 43.3% based on 2004 data.  Another recent study calculated that approximately 2.7% of all adults in the United States of America have served a prison sentence (state or federal).  The number of adults with "prison experience" was 5.6  million which is the approximate population of Denmark.  According to U.S. Bureau of Justice statistics, at the end of 2010 2,266,800 adults were incarcerated with another 4,933,667 on probation or parole.  This is the highest incarceration rate of any nation in the world.

Other Bureau of Justice statistics also demonstrate that the cost of the criminal justice system is increasing at a rapid rate.  From 1982-2006 for example, the direct expenditures spent on police rose 420%.  The increase is 660% for corrections and 503% on judicial costs over the same time period.  

It remains to be whether what effect the above mentioned budgetary calculations will have on passage of HB 2869/SB 3004.  More importantly though, it remains to be seen whether the State of Tennessee or the U.S. as a whole can continue to bear the costs of such a continued high rate of incarceration.

Wednesday, March 14, 2012

Pending legislation would impact Constitutional right to counsel

By Jay Perry

The Tennessee and Federal Constitutions both guarantee the right of the accused in “all criminal prosecutions” to have an attorney.  For an increasing number of people who cannot afford an attorney, that right is satisfied by the appointing of an attorney.  In 1989 the General Assembly of Tennessee created a statewide system of public defenders divided into 31 districts.  Those public defenders handle the bulk of appointed cases although private attorneys are appointed in cases where the public defenders’ have an ethical conflict.  The court is to appoint an attorney when the accused can demonstrate that they are “indigent” and this usually means the completion of an affidavit and questioning by the judge.
There is currently proposed legislation that would deny an appointed attorney to anyone who has made an appearance bond in their case.  This bill, SB 2989 – HB 3364, would require many facing a criminal charge to make an impossible choice between freedom and exercising their right to an appointed attorney.  This is true because in many cases the appearance bond is low, sometimes as low as $500 or $1000 (appearance bonds typically increase with the seriousness of the charges).  To make such a bond would only require the accused (or their family) to pay a bondsman $50-$100.  Many people, even those who are truly indigent, are able to utilize family resources to scrape together that relatively small amount of money.  It makes sense to do so also, as many cases take a long time to arrive at a disposition and often the end result is no jail time.  And that small amount does not even begin to pay the fee of any competent attorney.  This bill does not explain how these defendants would find attorneys willing to represent them for such little money.
The justification for this proposed legislation must be largely economic because public defenders very often handle overwhelming case loads and private attorneys are compensated by the state for appointed cases.  Interestingly however, the Fiscal Review Committee found that the fiscal impact of this bill would be not significant.  The impact would be significant however on those defendants who are indigent in every sense of the word.  They would be consigned to wait in jail for the end of their relatively minor criminal proceedings in order to have the assistance of a lawyer.  As written, this bill brings into conflict a constitutional right with the natural yearning of all people for freedom.   As such, this bill directly contradicts the principles espoused in both Constitutions by inappropriately placing a price of the invocation of those rights.  

Monday, March 12, 2012


March 9, 2012

Nashville – In three unanimous decisions, the Tennessee Supreme Court significantly changed the tests and procedures for determining when multiple convictions are permissible under the state and federal constitutions.

In State v. Watkins and State v. Cross, the state confronted the issue of whether multiple convictions under different statutes violate the state constitutional prohibition against double jeopardy. After reviewing historical developments, the Court concluded that the time has come to abandon the test previously announced by the Court in State v. Denton and adopt the same elements test announced by the U.S. Supreme Court in Blockburger v. United States. The Blockburger test is already used by federal courts and many state courts. It requires courts to focus on the elements of the crimes and the legislative intent when determining whether multiple convictions violate double jeopardy. Adopting the Blockburger test will allow Tennessee courts to decide double jeopardy claims in a more straightforward manner.

The Court emphasized that there cannot be a double jeopardy violation unless the convictions arise from the same act or transaction. Similarly, the Court pointed out that if the Legislature expressly states that multiple convictions are permissible or if each offense includes a different element, courts will presume the Legislature intended to permit multiple punishments.

In State v. White, the Supreme Court announced changes in cases involving charges of kidnapping and an accompanying felony. The Court concluded that a separate due process test is no longer necessary for determining whether convictions for kidnapping and an accompanying felony may be upheld. Instead, a properly instructed jury must decide whether a defendant who detains a victim during a crime, such as rape or robbery, can be convicted of kidnapping in addition to the other crime. When the charges result in a kidnapping conviction, the trial and appellate courts must uphold the conviction if the evidence is legally sufficient. The opinion overrules the approach taken in State v. Anthony and refined in State v. Dixon by requiring a jury to determine if the evidence is sufficient to support a conviction for kidnapping and another offense. The opinion also overrules State v. Cozart, in which the Court concluded that judges, as opposed to juries, were required to determine whether a separate kidnapping conviction violated constitutional standards.

In today’s decision, the Court set out temporary jury instructions and invited the Tennessee Pattern Jury Instruction Committee to develop permanent guidelines for future cases. The Court also pointed out that its decision does not create a new rule of constitutional law and, therefore, does not require retroactive application.

  1. State v. Watkinsopinion authored by Chief Justice Cornelia A. Clark
  2. State v. Crossopinion authored by Justice William C. Koch, Jr.
  3. State v. White, opinion authored by Justice Gary R. Wade
The above was  released by the Tennessee Supreme Court and the content of this post is a verbatim statement from the court.  I believe it is fair to quote from each case and this release as authority from the Court.

Defense Rests in Hemy Neuman Murder Trial

The defense rested in the Hemy Neuman Murder Trial late last week. Neuman, accused of murdering Rusty Sneiderman in front of his child's day care facility in November 2010, has plead not guilty by reason of insanity. The defensive strategy was to provide intensive expert testimony on the mental capacity of Neuman.

The Defense called two experts to testify as to the sanity of Neuman and his ability to recognize the difference between right and wrong at the time of the shooting. One expert was forensic psychiatrist, Tracy Marks. In an attempt to prove insanity, Marks spent the majority of her testimony discussing Neuman's suicidal thoughts, hallucinations, and symptoms of bipolar. She stated that Neuman had been experiencing suicidal thoughts and tendencies months before he ever hired Andrea Sneiderman, the wife of the victim who was allegedly engaged in an elicit affair with Neuman. During the defense's opening statement, the defense mentioned that Neuman had been visited by demons. Marks detailed an encounter with a demon in February 2010 where the demon supposedly told Neuman that he was worthless. Another demon, appearing in July 2010, told Neuman that Andrea Sneiderman's children were actually Neuman's children, and that they were being abused by their father, Rusty. One month later, that same demon allegedly told Neuman that he needed to kill Rusty Sneiderman in order to "protect them from suffering the same fate he did as a child in terms of being abandoned or rejected." Marks stated that certain statements and actions by Andrea Sneiderman fueled the fire in Neuman. Specfically, Marks said Andrea regularly complained to Neuman about tension in her marriage. She once emailed Neuman several pictures of her children without their father in the pictures. Neuman interpreted his absence to mean he was abusing the children.

The second expert that testified for the defense was forensic psychiatrist, Adriana Flores. Dr. Flores, along with Dr. Marks, diagnosed Neuman as mentally ill and suffering from bipolar disorder and psychosis. Dr. Flores expressed the opinion that because of his mental state, Neuman did not know the difference between right and wrong at the time of the shooting. The Prosecution has argued, however, that Neuman did know the difference between right and wrong because he disguised himself at the crime scene, he threw the gun in the lake after the shooting, and he lied to police about his involvement. Thus, on cross-examination, the prosecution asked Dr. Flores if it was possible that Neuman was lying. She responded that, "It's always possible."

Neuman informed the Court many times that he would not be testifying during his defense. However, the defense played taped interviews with Neuman in front of the jury. In these tapes, Neuman discussed the difficult childhood he experienced with an emotionally abusive father and an absent mother. Neuman became visibly upset when the tapes were played in court.

After the defense rested, the prosecution called a rebuttal witness, forensic psychiatrist Pamela Crawford to try and provide testimony from an expert who believed Neuman was faking his mental illness. The prosecution ended its rebuttal this morning. Closing arguments are expected to begin tomorrow morning. Once closing arguments are over, it will be up to the jury to decide the fate of Hemy Neuman.

Monday, March 5, 2012

Prosecution Rests in Hemy Neuman Murder Trial

The Prosecution rested their case last week in the trial of Hemy Neuman, the man accused of shooting Rusty Sneiderman in front of his child's day-care facility in November of 2010. The focus of the majority of the State's case was on the widow of Rusty Sneiderman, Andrea Sneiderman. I detailed the testimony of Mrs. Sneiderman in an earlier post. Her testimony was so compelling, it deserved its own blog entry.

The focus continued to stay on Mrs. Sneiderman as the State called various witnesses to testify about Mrs. Sneiderman's actions and how they corresponded with Neuman's actions. Aside from providing numerous witness accounts detailing the intimate relationship observed between Neuman and Mrs. Sneiderman, the State turned its attention to the part she may have played in the shooting. As emphasized before, she has never been charged with aiding in the murder of her husband, and it is unlikely that she ever will. However, the State seemed to want to paint a picture of a detailed, planned out shooting in which Andrea Sneiderman was aware. While this is purely speculative, if evidence is presented that Mrs. Sneiderman was aware of the shooting, the jury might be more inclined to believe that Hemy Neuman planned it and told Mrs. Sneiderman his plans, contradicting his insanity defense.

The State called Lt. Barnes, the police officer who initially took Neuman's statement after the shooting. Among other things, he testified that he became suspicious of Mrs. Sneiderman and her relationship with Neuman when she adamantly denied having an affair with Neuman and when she waited 6 days after the shooting to tell police she believed Neuman was the shooter. He also testified that when Neuman came to give his statement, he was presented with records indicating his rental of the van witnesses saw Neuman drive off in after the shooting. Given this evidence, Lt. Barnes stated that Neuman said, "It doesn't look good" in regards to the case against him.

The State also called FBI Special Agent Freiman who examined Mrs. Sneiderman's iPhone and iPad. He testified that he found several suspicious searches conducted on her iPad including: "gun", "range", and "can police trace a cell phone call?" The State also called FBI Special Agent Chad Fitzgerald who conducted an analysis of the cell phone correspondence between Mrs. Sneiderman and Neuman dating from May 2010 to November 2010. He stated that Mrs. Sneiderman corresponded with Neuman 1,446 times during that time. He further stated that during that same amount of time, she only corresponded with her husband 882 times.

The defense began their case late last week. It will be interesting to see what evidence they produce of Neuman's psychological behavior in order to further his defense.

Thursday, March 1, 2012

United States v. Lander: Convictions Reversed Because Facts at Trial Varied from Facts Alleged in Indictment

In United States v. Joseph Lander, the Eleventh Circuit reversed twelve of the defendant’s convictions for fraud and money laundering because the facts proved at trial materially varied from those alleged by the Government in the superseding indictment.

In this case, the defendant was convicted of mail fraud and money laundering charges related to two separate fraudulent schemes. The Eleventh Circuit upheld the convictions regarding one of the fraudulent schemes (misrepresenting expected returns on an investment in a vitamin company) but reversed the defendant’s mail fraud and money laundering convictions in the second scheme (involving the conversion of developers’ funds).

With regard to the latter scheme, the Eleventh Circuit held that the facts proved at the defendant’s trial for fraud materially varied from those alleged in the superseding indictment. The indictment itself alleged that Lander, a county attorney, misrepresented to developers that they were required to pay a performance bond to the county. At the trial, two developers stated that Lander either never instructed them about a performance bond or could not recall if he instructed them about a performance bond. Following this testimony, the Government adjusted its theory of the case and argued, in closing, that Lander misrepresented to the developers that he could make sure their project moved through the regulatory process. The court of appeals held that the misrepresentation that the Government ultimately relied on did not match the scheme to defraud which was set forth in the indictment, and was an essential element to the mail fraud charge. The court held that this material variance from the indictment substantially prejudiced Lander—by failing to “apprise the defendant of what he must be prepared to meet” and Lander’s mail fraud conviction was reversed.

Because the government based Lander’s money laundering charges on the aforementioned mail fraud charge—using the mail fraud to satisfy the “specified unlawful activity” element of money laundering—the court reversed Lander’s convictions on the money laundering charges as well.

Appeals Court Directs Sheriff Hammond To End Pay Disparity Among Sergeants

Appeals Court issues opinion in suit of Hamilton County Sergeants against Sheriff, reported here.

The Tennessee Court of Appeals has directed Sheriff Jim Hammond to equalize pay among sergeants in the department.

The appeals court modified a ruling by  Chancellor Frank Brown, who said the Sheriff's Civil Service Board did not have the authority to set pay.
Sheriff Hammond filed suit after the Civil Service Board ruled in favor of sergeants, who filed a grievance on the pay issue. He said the pay gap was between around $43,000 to around $49,000 and moving all sergeants to the higher rate would cost some $73,000.

Here is the link to the full opinion.