Saturday, June 30, 2012

Tennessee legislators celebrate Independence Day with 151 new laws set to take effect on July 1st

By Lee Davis

Tennessee legislators have been busy these last few months compiling a seemingly never-ending stack of bills for Governor Bill Haslam's signature. This legislation will become law on July 1st. What are they? Well they cover a wide variety of concerns and some will affect criminal law, creating new crimes and escalating criminal penalties.

For example, one of the laws slated to go into affect on the 1st of July includes a provision that permits more people to request expungement of criminal convictions for mostly old and minor offenses--this legislation is remarkable in that it is well thought out and resolved a difficult problem. In the information age, how can someone clean up a minor problem from their past? Up to now you couldn't. Now a few select felonies and a wide array of misdemeanous will be permitted to be expunged from the records of first-time offenders.

Another law creates a fine for those that are found to have encouraged, advocated, urged or condoned students to engage in “gateway sexual activity.” Whatever that is. Educators found teaching a non abstinence-based sexual education curriculum can be punished with up to $500 in fines. In a school somewhere in Tennessee next year a parent is going to insist to a principal that a teacher should be reported for encouraging gateway sexual activity and fined. It is hard to imagine how the courts are supposed to figure out what the legislature intended with this sloppy piece of legislation--gateway sexual activity?

Here’s a run down of some of the important and bizarre additions to Tennessee criminal law:

SB3558 - This requires schools to include in their discipline codes a prohibition on students wearing any clothing on school grounds that exposes underwear or body parts in an indecent manner.

SB0074 – This bill makes it a Class C misdemeanor offense for any person to operate a motorcycle on municipal, county or state roads who is carrying a passenger whose feet are not on footpegs. The amendment specifies that the prohibition will not apply to persons riding in a motorcycle sidecar.

HB2466 – This bill is known as the “Ricky Otts Act” and requires an officer to arrest drivers involved in accidents resulting in serious bodily injury or death when such drivers lack a valid driver license and evidence of financial responsibility. The bill specifically prohibits the issuance of a citation in lieu of arrest in such circumstances.

HB2853 – This bill deals with sexual offenders and adds the offense of promoting prostitution to the list of sexual offenses requiring registration under the state sex offender registry. Similarly, HB3283 authorizes judges, after consideration of facts and circumstances surrounding the case, to require a person convicted of statutory rape for the first time to register as a sexual offender on the sexual offender and violent sexual offender registry.

HB2566 – This was passed in response to the outrage surrounding now disgraced judge Richard Baumgartner and says that elected and appointed public officials ineligible for diversion for criminal offenses committed in their official capacity or that involve the duties of their offices.

HB2749 – This DUI bill authorizes a judge to order the use of an ignition interlock device for any person granted a restricted driver license and the device must remain in the vehicle during the entire period of time the driver has a restricted license.

SB2349 – “Kimberlee’s Law,” says that people convicted of aggravated rape must serve 100% of their sentence.

SB2759 – Creates a new level of criminal offense, a Class E felony of aggravated cruelty to livestock, which will exist when someone has intentionally engaged in specified conduct in a depraved and sadistic manner that results in serious bodily injury or death to the animal and is done without lawful or legitimate purpose.

Finally, and oddly, there’s HB2768, which makes it a Class A misdemeanor criminal offense for any person to knowingly dig, harvest, collect or remove wild ginseng from any land that such person does not own on any date not within the wild ginseng harvest season.

Friday, June 29, 2012

151 New Laws in Tennessee beginning July 1, 2112

by Lee Davis

151 New Tennessee Laws going into effect July 1, 2012.
There are new laws going into effect in Tennessee in a few days that range from expungement of old convictions to new obligations on the sex offense registry for statutory rape convictions. Listed below are all changes to Tennessee criminal law.
Probation and Parole - As enacted, permits private probation providers who meet certain qualifications and contract with the department of correction to supervise Class E felony offenders who are granted probation. - Amends TCA Title 40.
Sentencing - As enacted, establishes enhanced punishment for crimes of force or violence committed while acting in concert with two or more other persons. - Amends TCA Title 39 and Title 40.
Sentencing - As enacted, increases the punishment for unlawful possession of firearm by person with previous felony conviction. - Amends TCA Title 39 and Title 40.
Probation and Parole - As enacted, transfers from board of probation and parole to department of correction certain functions relating to probation and parole services and the community correction grant program. - Amends TCA Title 4; Title 38; Title 39; Title 40; Title 41 and Title 55.
Immigration - As enacted, clarifies that a tax form, as such term is used in the part, means any form issued by the United States internal revenue service. - Amends TCA Title 50, Chapter 1, Part 7.
Arrests - As enacted, enacts the "Ricky Otts Act" which requires an officer to arrest drivers involved in accidents resulting in serious bodily injury or death when such drivers lack a valid driver license and evidence of financial responsibility; prohibits the issuance of a citation in lieu of arrest in such circumstances. - Amends TCA Title 39; Title 40; Title 55, Chapter 10; Title 55, Chapter 12; Title 55, Chapter 50 and Title 55, Chapter 8.
Criminal Offenses - As enacted, criminalizes possession, use, transfer or installation of software designed to manipulate retail records of transactions for evading payment of sales tax to the state. Amends TCA Title 38; Title 39; Title 40 and Title 67.

Sexual Offenders - As enacted, adds the offense of promoting prostitution to the list of sexual offenses requiring registration under the sex offender registry and adds second offense promoting prostitution to the list of violent sexual offenses. - Amends TCA Title 40, Chapter 39, Part 2.
Sentencing - As enacted, makes elected and appointed public officials ineligible for diversion for criminal offenses committed in their official capacity or that involve the duties of their offices. - Amends TCA Title 39 and Title 40.
Judges and Chancellors - As enacted, terminates the court of the judiciary and replaces it with a 16-person board of judicial conduct; revises provisions governing such a board. - Amends TCA Title 4, Chapter 29 and Title 17, Chapter 5.
Criminal Offenses - As enacted, expands the drugs whose production, manufacture, distribution, sale or possession would be a crime under the present law offense regarding synthetic derivatives or analogues of methcathinone. - Amends TCA Title 39.
Criminal Procedure - As enacted, expands definition of "uses" and "conducts" to include "transport" and "conceal" for purposes of the money laundering criminal offenses. - Amends TCA Title 39 and Title 40 relative to criminal offenses and criminal procedure.
Criminal Procedure - As enacted, deletes provision prohibiting district attorney from applying to judge for a wiretap order in marijuana cases in which the amount is less than 700 pounds. - Amends TCA Title 39, Chapter 17.
Law Enforcement - As enacted, requires that officers who knowingly provide POST with false or misleading information concerning histories be decertified, removed from office, and be deemed ineligible to apply for a new law enforcement position in Tennessee; requires denial of application for POST certification of an applicant who knowingly provides POST with false or misleading information. - Amends TCA Title 4; Title 8; Title 38; Title 39 and Title 40.
Sexual Offenses - As enacted, clarifies that law permits prosecution and conviction for displaying sexual activity to a minor by electronic communication regardless of whether the victim is a minor or an undercover police officer posing as a minor. - Amends TCA Title 39.
Sexual Offenders - As enacted, provides that the conveyance of personal property of a sexual offender used to violate a residential and work restriction of the sex offender registry is subject to forfeiture if the victim was a minor; specifies under the provisions regarding forfeiture of property used in the commission of a sexual offense that property is subject to "judicial forfeiture" instead of "administrative forfeiture". - Amends TCA Title 39, Chapter 13, Part 5.
Sexual Offenders - As enacted, authorizes judge, after consideration of facts and circumstances surrounding the case, to require a person convicted of statutory rape for the first time to register as a sexual offender on the sexual offender and violent sexual offender registry. - Amends TCA Title 39, Chapter 13, Part 5 and Title 40, Chapter 39, Part 2.
Criminal Offenses - As enacted, revises the punishment for the offenses of public indecency and indecent exposure and revises the definition of "public place" with regard to the offense of public indecency. - Amends TCA Title 39 and Title 40.
Criminal Offenses - As enacted, creates defense in prosecution of prostitution where a person is a victim of involuntary labor servitude, sexual servitude, or where the person is a victim as defined under the federal Trafficking Victims Protection Act. - Amends TCA Title 39 and Title 40.
DUI Offenses - As eancted, expands present law to provide that it is not a defense to a violation of the DUI statute that a person is or was lawfully entitled to use an intoxicant, marijuana, controlled substance, or other drug. - Amends TCA Title 55, Chapter 10, Part 4.
Criminal Offenses - As enacted, creates Class A misdemeanor offense of knowingly or recklessly maiming or harming a service animal and the Class C misdemeanor of interfering with a service dog in the performance of its duties and provides for restitution to the handler of the dog. - Amends TCA Title 39, Chapter 14, Part 2.
DUI Offenses - As enacted, increases penalty for violation of DUI statute when child under 18 is in the vehicle to require that the mandatory minimum 30-day sentence for this offense be served consecutive to any sentence received for a violation of specified other alcohol-related offenses. - Amends TCA Title 55, Chapter 10, Part 4.
Criminal Procedure - As enacted, provides that as part of a defendant's alternative sentencing for a violation of domestic
assault, the sentencing judge may direct the defendant to complete a
drug or alcohol treatment program or available counseling programs that address violence and control issues including, but not limited to, a batterer's intervention program that has been certified by the domestic violence state coordinating council. - Amends TCA Title 39 and Title 40.
Sentencing - As enacted, requires that a person convicted of committing a dangerous felony involving a firearm who is subsequently convicted of the same serve a minimum of 15 years imprisonment at 100 percent. - Amends TCA Title 39, Chapter 17 and Title 40.
Criminal Procedure - As enacted, clarifies that a defendant cannot get records expunged if convicted of an offense other than the charged offense or convicted of one offense in a multi-count indictment, including lesser included offenses. - Amends TCA Title 40, Chapter 32, Part 1.
Criminal Offenses - As enacted, creates a Class A misdemeanor for an individual to either: knowingly prevent another individual from placing a telephone call to 911 or from requesting assistance in an emergency from a law enforcement agency, medical facility, or other
agency or entity the primary purpose of which is to provide for the safety of individuals; or intentionally render unusable a telephone that would otherwise be used by another individual to place a telephone call to 911 or to request assistance in an emergency from a law enforcement agency, medical facility, or other agency or entity, the primary purpose of which is to provide for the safety of individuals. - Amends TCA Title 7; Title 39; Title 40 and Title 65.
Criminal Offenses - As enacted, revises definitions of fetus as victim for criminal homicide and assaults to remove viability requirement and include an embryo and remove reference to victim being pregnant; revises legislative intent statement. - Amends TCA Title 39, Chapter 13. Abortion - As enacted, enacts the "Life Defense Act of 2012," which requires that physicians performing abortions have admitting privileges in hospital within certain area of where abortion performed. - Amends TCA Title 37, Chapter 10, Part 3; Title 39, Chapter 15, Part 2 and Title 68.
Bail, Bail Bonds - As enacted, declares a defendant who is unlawfully present in the United States and has committed certain traffic violations may be deemed a risk of flight for bail purposes; authorizes clerks to set bail for such defendants at a higher amount than normally permitted. - Amends TCA Title 39; Title 40 and Title 55.
Criminal Procedure - As enacted, provides that a person may be prosecuted, tried and punished for producing obscene material, sexual exploitation of a minor, aggravated sexual exploitation of a minor or especially aggravated sexual exploitation of a minor, no later than 25 years from the date the child becomes 18 years of age. - Amends TCA Title 40, Chapter 2.
Sexual Offenses - As enacted, enacts "Kimberlee's Law," which requires that persons convicted of aggravated rape serve 100 percent of sentence. - Amends TCA Title 39, Chapter 13, Part 5 and Title 40, Chapter 35.
Criminal Offenses - As enacted, enhances the penalty for involuntary labor servitude where the victim was under age 13 and adds means by which the crime is possible. - Amends TCA Title 39, Chapter 13 and Title 40.
Criminal Offenses - As enacted, clarifies that the offense of trafficking a person for a commercial sex act is Class A felony if the victim is a child under 15 years of age; adds that the offense is a Class A felony if the offense occurs on the grounds or facilities or within 1,000 feet of a public or private school, secondary school, preschool, child care agency, public library, recreational center or public park; adds Class C felony of advertising commercial sexual abuse of a minor; clarifies certain sex offender registry provisions.
Welfare - As enacted, requires the department of human services to develop a plan to implement a program of suspicion-based drug testing for each applicant who is otherwise eligible for temporary assistance for needy families (TANF). - Amends TCA Title 4, Chapter 3, Part 12; Title 4, Chapter 3, Part 18 and Title 71.
Criminal Offenses - As enacted, creates new Class A felony theft provision if the amount stolen is 250,000 or more; allows state to aggregate value of property stolen in certain circumstances; and changes venue for all offenses graded by value. - Amends TCA Title
39, Chapter 14, Part 1.
Animal Cruelty and Abuse - As enacted, creates Class E felony of aggravated cruelty to livestock, which is intentionally engaging in specified conduct in a depraved and sadistic manner that results in serious bodily injury or death to the animal and is done without lawful
or legitimate purpose. - Amends TCA Title 39, Chapter 14, Part 2.
DUI Offenses - As enacted, authorizes judge to order the use of an ignition interlock device for any person granted a restricted driver license; order may be with or without geographical restrictions, but if the device is ordered, then it must remain on the vehicle during the entire period of the restricted license. - Amends TCA Title 55, Chapter 10, Part 4.
Criminal Offenses - As enacted, includes the commission of or attempt to commit a criminal gang offense within the definition of racketeering activity and enterprise for purposes of the Racketeer and Corrupt Organization Act (RICO). - Amends TCA Title 39, Chapter 12, Part 2.
Criminal Offenses - As enacted, makes it a Class A misdemeanor for a person 18 years of age or older to knowingly promote or organize a gathering of two or more minors in a public place with the intent to provide a location for such minors to engage in public indecency; any personal property used in the commission of a violation of this offense would, upon conviction, be subject to judicial forfeiture. - Amends TCA Title 39; Title 40; Title 67; Title 68 and Title 71.
Criminal Procedure - As enacted, authorizes persons to petition for expungement of records of conviction for certain non-violent, non-sexual misdemeanors and Class E felonies that were committed on or after November 1, 1989.
Davis & Hoss, PC attorneys will be posting new developments on these legislative changes as they occur.

The defense says DA knew of Judge Baumgartner's misconduct

by Lee Davis

The Christian/Newsom case saw another development today as defense attorneys Tom Dillard and Stephen Ross Johnson responded to the prosecution’s motion to have Judge Blackwood removed due to supposed unethical conduct. The defense fired back with a motion of their own accusing district attorney Randy Nichols and his staff of hiding information about Judge Baumgartner’s misconduct while he was still presiding over the case.

The defense counsel’s motion said that they agree that a motion to recuse was appropriate and should have been granted, however, the motion should not be against the current judge. “A motion to recuse should have been filed years ago in this case concerning Judge Baumgartner.”

The current controversy involves the decision by Judge Blackwood to order new trials of the defendants in the Christian/Newsom murder case following news that Judge Baumgartner was addicted to narcotic pills and abused his position to win sexual favors from some of those that he presided over. An investigation by the TBI showed that many of the crimes were committed while Baumgartner was presiding over the Christian/Newsom murder trials.

Previous releases of information have made clear that others were aware of Baumgartner’s misdeed. For instance, two prosecutors who were working on the Christian/Newsom case reported seeing Baumgartner swearing his way down I-40 following jury selection in Nashville for Vanessa Coleman’s trial. It was also revealed that District Attorney Nichols confronted Baumgartner about such behavior and that the judge admitted to drinking a bottle of wine every night to help him sleep.

The defense attorneys brought forward not only these known instances of prosecutorial awareness of Baumgartner’s problems but another not previously made public: “During this visit, former Judge Baumgartner told Mr. Nichols that he was drinking a bottle of wine a night while at the same time going to the Bradford Rehabilitation Clinic (an outpatient center in Knoxville) and Alcoholics Anonymous meetings.”

Not only did Nichols allegedly know this information, but he also kept it secret from the defense attorneys in the Christian/Newsom case. The defense said that there were many other cases before Judge Baumgartner at the time and that attorneys across the region with clients before the judge would have wanted to know about his conduct. The motion said that despite this “extraordinary step of an ex parte direct inquiry of Judge Baumgartner about his problems…” nothing was ever disclosed by Nichols or his office.
For his part, Nichols’ special counsel, John Gill, responded to the allegations saying that the District Attorney’s meeting with Baumgartner had nothing to do with any particular case and therefore was not ex parte contact.

Ex parte communication refers to any contact between a judge and one party of the case without the presence of the other party. Such communication is frowned upon. The prosecution has hinted that the current judge, Blackwood, has engaged in such contact with unidentified people and has complained that it is objectionable. The defense denies any such one-sided communication with the judge, as has Blackwood.

Read: “DA Randy Nichols hid signs of ex-judge Richard Baumgartner's misdeeds, attorneys contend,” by Jamie Satterfield, published at

Location:Tatarrax Dr,Manhattan,United States

Wednesday, June 27, 2012

Supreme Court Strikes Down Mandatory Life Sentences For Juveniles

On Monday the Supreme Court issued a ruling on Miller v.Alabama, a case previous discussed here.  The case involved two fourteen year old defendants who had been mandatorily sentenced to life without parole after they were convicted of murder.  In a 5-4 decision, the Court ruled that the imposition of mandatory life without parole for juveniles violates the 8th Amendment prohibition on “cruel and unusual punishment”.  The decision (and its announcement) is particularly interesting for two reasons: the dissents were particularly vigorous and the media coverage surrounding the decision misstated the holding of the case.
The decision came complete with three separate dissenting opinions authored by Justices Roberts, Alito, and Thomas.  These dissents demonstrate that there was strong disagreement among the Justices about this case.  In particular, Justice Alito read his dissent from the bench, an unusual occurrence that seems to demonstrate extremely strong disagreement with the majority ruling.
  Chief Justice Roberts cited the fact that there are currently an estimated 2,500 juveniles serving such sentences and that a majority of states impose such mandatory sentences.  Thus, part of his argument is that they are in no way “unusual”.  In the end he concludes that although there may be moral arguments against mandatory life sentences, there are not good legal ones and hence it “is not our decision to make.”  This argument for judicial restraint, which is echoed in all of the dissents, is interesting because it often is used inconsistently by members of the Court.  After all, it was Chief Justice Roberts who wrote the majority opinion in Citizens United, explicitly overturning Supreme Court precedent from twenty years earlier.
Also worth highlighting is the inaccuracy of much of the media coverage regarding the decision.  Many of the headlines read that the Supreme Court had banned life sentences for juveniles (examples here, here, and here).  That was not what the Court ruled however, what they said was unconstitutional was the mandatory imposition of life without parole sentences.  States are still free to sentences juveniles to these sentences but must take into account their age and circumstances before doing so.  Many of the news accounts mention this in the body of the article which begs the question of why the inaccurate headlines?  It is just sloppy reporting or an attempt to oversimplify what happened?  It is important with the Supreme Court so prominent recently in public discourse that coverage of their decisions is accurate.  
As to the ruling itself, it makes good sense.  Juveniles are different from adults, we all understand this.  If a juvenile convicted of murder is mandatorily sentenced, it ensures that their age or mitigating circumstances are never taken into account during the process.  Once prosecutors make the decision to try them as adults their individualized circumstances are not considered.  Under this scheme, juries cannot consider their age or mitigating circumstances, their focus is on guilt or innocence.  All criminal punishment rests of a framework of moral reckoning, an understanding that we as a society are punishing an individual for their morally culpable behavior.  Because of circumstances often beyond their control and which they cannot escape, juveniles can be less morally culpable.   When we sentence them, we should consider not only the terrible crimes they have committed but their entire story, to do less is dehumanizing.

Tuesday, June 26, 2012

TN Court of Criminal Appeals Rejects Petition From Defendant With Life Sentence

The Tennessee Court of Criminal Appeals recently rejected a petition from a man serving a life sentence for first-degree murder. The defendant, David Edward Niles, was convicted in January of 2010 for the death of Laura Parker. Niles claimed that circuit Court Judge Robert Crigler erred by denying his motion to suppress evidence that was sized during the search of his residence. Niles also said there was not sufficient evidence to convict him and that the judge abused his discretion in denying a motion for money for a psychiatrist.

According to the appeal, public defenders working for Niles discovered he had told one of his jailers that God told him to kill Parker because she was an unfit mother to their 4-year-old son. Niles then told his attorneys that he initially believed God told him this but later though it may have been the devil. 
Judge Crigler ruled that Niles had already been examined once and was found competent to stand trial. The Court here agreed, saying that Niles provided “only unsupported assertions” that a psychiatrist might have been of help in his case, failing to show that testimony from an expert was necessary in order to receive a fair trial.

Before his trial, Niles attempted to have evidence seized at his residence suppressed. A detective, Brian Crews, had asked Niles’ wife, Patricia, about ammunition for the gun her husband was found with the night of the shooting. Patricia allowed Crews and another detective to enter the home to get the ammunition. While they were in the house they found receipts for a replacement barrel and firing pins. Both items ended up being important pieces of evidence that were used to prove that he had planned the killing weeks in advance. 

Crews also asked if police could have a day planner and the computer at the home, but his wife objected saying she needed it for schoolwork. The detective ended up making copies of both. The Court decided that Mrs. Niles freely, specifically and intelligently gave her consent to the search. The day planner and computer were never used as evidence so the issue regarding their copying is moot. 
The Court of Criminal Appeals also said that the record of the case showed that there was “overwhelming evidence of premeditation,” including evidence indicating that an attempt was made to conceal the crime prior to the murder. 

Niles confessed to another one of his jailer’s that he had done research on the internet about how to defeat ballistics testing by using a replacement barrel and firing pin. Thus the Court found that “there was sufficient evidence supporting Niles’s conviction for first degree premeditated murder.”

To read the full opinion, click here

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Friday, June 22, 2012

Supreme Court Overrules Sixth Circuit and Reinstates Murder Convictions

Earlier this week the U.S. Supreme Court restored murder convictions against a Kentucky man who broke into his estranged wife’s home and killed his mother-in-law before raping and killing his wife. 

A three-judge panel from the Sixth Circuit decided to overturn the nearly 30-year-old convictions which the Supreme Court was a decision “based on the flimsiest of rationales.”
David Matthews had a stormy marriage with his late wife, Mary Marlene Matthews and the two fought and reconnected many times. Just weeks before the murders, Matthews spent time in jail on charges that he sexually abused his wife’s 6-year-old daughter. In June of 1981, Matthews bought a gun and broke into the home he shared with his wife, entering the room where her mother was sleeping and shooting her at point-blank range. He then spent several hours having sex with his wife before shooting her too. When he was arrested later that day he had already started the process of destroying evidence, cleaning clothes and burying guns in the backyard. 

A jury convicted Matthews of first-degree murder, and sentenced him to death. This was over his objections that the crimes occurred due to an extreme emotional disturbance on his part. The Sixth Circuit granted him relief after a series of appeals but the Supreme Court struck down the ruling, saying it was based on invalid grounds. The Court said that there is no evidence that the lower courts improperly shifted the burden of proving extreme emotional distress onto Matthews. The high court further stated that the jury had an appropriate basis to find Matthews did not suffer from an extreme emotional disturbance. 

The Court wrote, “As the Kentucky Supreme Court observed, Matthews’ claim of extreme emotional disturbance was belied by ‘the circumstances of the crime’ - including the facts that he borrowed money to purchase the murder weapon the day of the murders, that he waited several hours after buying the gun before starting for his wife’s home, and that he delayed several hours between shooting his mother-in-law and killing his wife.” Furthermore, “The claim was also belied by his behavior after the murders, including his ‘[taking] steps to hide the gun and clean his clothes.’”
Despite the testimony during the trial by Matthews’ psychiatrist who attempted to show the disturbance the defendant was under at the time of the murders, the Court ruled that the jury was entitled to consider the doctor’s testimony along with their own “common-sense understanding of emotional disturbance.” The Court held that the Sixth Circuit went astray by resolving the matter in favor of the physiatrist’s testimony which was an act overstepping its authority. 

To read the full opinion, click here

Read:Double Homicide Verdict Restored by High Court,” by Barbara Leonard, published at

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Thursday, June 21, 2012

The Tennessee Court of Criminal Appeals on Split Confinement

Harvey Brian Cochran was convicted of reckless homicide, a Class D felony.  On appeal, he argued that the trial court erred by failing to follow the sentencing guidelines before denying him an alternative sentence.  An alternative sentence is any sentence that does not involve complete confinement. 

The CCA determined that Cochran was a favorable candidate for alternative sentencing because he was convicted of a Class D felony.  Under T.C.A. § 40-35-101(6)(A), the burden therefore fell to the State to present “evidence to the contrary.”  In determining whether such evidence exists, the trial court should consider the factors set out in T.C.A. § 40-35-103(1)(A)(C):  whether confinement is necessary to protect society, avoid depreciating the seriousness of the offense, or deter others.  The trial court should also consider whether less restrictive sentences have been applied unsuccessfully to the defendant in the past. 

Here, the trial court explicitly found that these factors did not apply, and the CCA saw nothing in the record on appeal to refute this finding.  Nonetheless, the trial court denied alternative sentencing on the basis of lack of remorse or truthfulness as it related to Cochran’s potential for rehabilitation under T.C.A. § 40-35-103(5).  As the CCA explained, a defendant’s potential for rehabilitation should only be considered when determining the type and length of the alternative sentence once the court has ruled that complete confinement is improper. 

As a result, Cochran was still a candidate for alternative sentencing.  The CCA reversed and ordered a sentence of split confinement – ninety days in jail and the remainder on supervised probation. 

The full opinion can be found here.  

Monday, June 18, 2012

Baumgartner’s Attorneys Get Three Months to Prepare

The Knoxville case involving disgraced former judge Richard Baumgartner moved forward last week with news that his defense attorneys, Don Bosch and Ann Short, filed a motion before U.S. Magistrate Judge Clifford Shirley asking that he declare the case “complex.” 
Though the name may seem odd and beside the point, it’s important to a case’s timeline. If a case is declared “complex” it will give the defense more time to review discovery submitted by the prosecution, postponing the currently scheduled July 18 trial. 
Bosch and Short told Judge Shirley that they had only begun to scratch the surface of the voluminous discovery turned over by the government. Moreover, for them to do their jobs properly they’ll need additional time to review everything and properly brief their client. They state that the July 18 date currently set for trial is inappropriate given the amount of work still left to do.
Federal prosecutors disagreed, saying that the defense was only seeking a delay for delay’s sake. They raised that Bosch and Short represented Baumgartner back in 2011 when he pled guilty to one count of official misconduct. The TBI had initiated an investigation of him in 2010 and after news came to light of his misdeeds the government offered a deal to avoid further damage to the Knox County criminal justice system. Given that both Bosch and Short reviewed all the evidence at the time, the prosecution now says their claims of unpreparedness are ridiculous. The prosecutors wrote, “It is unlikely that defense counsel would have advised defendant to plead guilty to a felony in state court without first evaluating the evidence against defendant.”
The defense counters saying that the investigation against their client was continued by the TBI after the plea deal was accepted and that, as a result, mountains of new information remains to be reviewed. Interviews were conducted and filed were gathered, none of which were available the first time around. 
It was announced later last week that Judge Shirley approved a deal struck between the two sides granting a three-month continuance, so that trial is not set to begin until October 23rd. This amounts to a victory for both sides. The defense received a delay and longer time to review and prepare their case. The prosecution avoided having the trial labeled “complex” and kept the case subject to the federal speedy trial act. 
Though Baumgartner pled guilty to avoid further prosecution just like the one currently proceeding, further allegations of misconduct that he was not initially charged with have since been unearthed. These include his doctor shopping, using his mistress (one of his own Drug Court graduates, Denna Castleman) to get pills, using his influence to help her avoid trouble with prosecutors and judges, lying about being her lawyer and helping her hide a failed drug test. His actions with Castleman are at the heart of the current federal case filed in May. Baumgartner is currently charged with and scheduled for trial on July 18th for seven counts of misprision of a felony. Each count accuses him of either covering up Castleman’s crimes or failing to report them to the proper authorities. Misprision of a felony carries a maximum prison term of three years. 
Yet another interesting twist occurred earlier last week when, on Wednesday, U.S. District Judge Thomas Phillips, who was scheduled to preside over Baumgartner’s trial, recused himself. Phillips has not released any word as to why he asked to have the case reassigned and the decision now rests in the hands of Chief U.S. District Judge Curtis Collier to assign Phillips’ replacement.
Source:Baumgartner seeks delay in his federal trial,” by Jamie Satterfield, published at
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Sunday, June 17, 2012

Tennessee Court of Criminal Appeals Finds Career Criminal Not Entitled to Alternative Sentencing

The defendant, William Henry Wiggins, was convicted in Davidson County Circuit Court of felony possession of a controlled substance, in this case oxycodone, and a violation of the state’s sex offender registry. He was ordered to serve a six-year sentence in prison which he then appealed claiming insufficient evidence and an excessive punishment. The Court of Criminal Appeals reviewed the case and affirmed the trial court’s initial decision. 

When Wiggins was indicted for possession and a sex offender registry violation the grand jury indictment indicated his five prior convictions for unlawful possession of a controlled substance. The evidence presented at trial consisted of testimony by officers that they observed a car where Wiggins was the passenger cruising a gas station in search of drugs. When the officers pulled the car over and ran the driver’s and passenger’s names against their database they discovered Wiggins had a warrant out for a sex offender registration violation. When he was arrested, Wiggins admitted to having some pain pills given to him by the driver of the car in exchange for gas money. 

On appeal Wiggins claimed that the state failed to show that he knowingly possessed a controlled substance, believing them to be “pain pills” and not a controlled narcotic. The Court pointed out that Wiggins did not dispute that he possessed the pills or that oxycodone is a controlled substance, he only claimed that he did not know what he was given was oxycodone. The Court disagreed, citing evidence of a prescription label found in the car Wiggins was arrested in and Wiggins’ own statements to officers concerning the pills he had in his pocket. 

Regarding Wiggins’ contention that the length of confinement was too severe, the Court noted that the trial court found him to be a Range III, career criminal and thus not a good candidate for alterative sentencing. The trial court considered the possibility of probation but rejected it in favor of the minimum prison sentence allowed for his crimes. The Court of Criminal Appeals noted that Wiggins does not admit to having a drug problem, making rehabilitation next to impossible. Given his status as a career criminal, the Court found Wiggins’ initial sentence proper.
To read the full opinion, click here.


Saturday, June 16, 2012

TN Court of Criminal Appeals Says Petition Regarding 1988 Drug Conviction is Moot

Joby Lee Teal, a pro se petitioner, sought declaratory judgment concerning the legality of his five 1988 convictions for drug offenses and resulting concurrent five-year sentences. He argues the sentences are void because he committed them while on bail and should have received consecutive sentences. The Criminal Court of Shelby County found that such relief was not available because the five concurrent sentences had expired and the Court of Criminal Appeals agreed. 
The plea deal was struck with deal in November of 1988 and his negotiated sentence expired in 1993. It’d odd then that so many years later, in 2011, Teal filed a pro se petition attacking the five-year sentences he received back in the 80s. He claimed the original trial court did not have jurisdiction to enter concurrent sentences for felony offenses he committed while released on bail. 
The Court of Criminal Appeals discussed the state’s Declaratory Judgment Act, found in Tennessee Code Annotated Section 29-14-102, which states:
  1. Courts of record within their respective jurisdictions have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.
  2. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for.
  3. The declaration may be either affirmative or negative in form and effect; and such declaration shall have the force and effect of a final judgment or decree.
The Court said that Tennessee law is clear that in order to maintain an action for declaratory judgment, a justiciable controversy must exist. The question before the court must be a real one, not simply a theoretical one. The Court says that even a simple review of the records shows that Teal’s claim is moot because it lost its “character as a present, live controversy.” 
Because Teal did not pursue this remedy during the time available to him and because he has long since completed the sentence about which he now complains, the Court can do nothing today. Apparently the return address on Teal’s brief indicated he is currently residing at the Federal Correctional Institute in Memphis, Tennessee. The fact that he is currently incarcerated on unrelated charges does not help the fact that the underlying claim before the court is moot.  
To read the full opinion, click here.

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Friday, June 15, 2012

State v. Anderson – The Tennessee Court of Criminal Appeals Reverses a Finding of Exigent Circumstances

By Stevie Phillips

Deputies were dispatched to Stoney Anderson’s neighborhood at about 1 a.m. in response to an unknown disturbance involving shots fired.  They encountered a car leaving Anderson’s home.  The occupants told them that they were coming from a small get together and had not heard any shots.  Nonetheless, the deputies proceeded to Anderson’s home and walked around to the back of the house.

As the deputies were walking onto the back deck, Anderson exited the house holding a duffle bag.  When asked, he told them that he had not heard any shots.  At this point, however, the deputies could smell marijuana and saw several people sitting at the kitchen table.  They then entered Anderson’s home and eventually searched the duffle bag where they found marijuana and paraphernalia. 

Before trial, Anderson moved to suppress the evidence found in the bag.  The trial court denied his motion on the basis that exigent circumstances existed to justify the warrantless search, namely that the deputies were responding to an immediate risk of serious harm to themselves and others based on their concern that the bag contained a weapon. 

On appeal, Anderson argued that, even if there were exigent circumstances, those circumstances could not support the search of his bag because the deputies created the exigency when they unconstitutionally intruded into the curtilage of his home.  The Court of Criminal Appeals agreed.

In the Court’s analysis, Anderson’s back deck was “an area to which the activity of home life extends” and therefore plainly within the curtilage of his home.  The Court also determined that the deputies’ intrusion onto the deck without a warrant was unreasonable because they had no information connecting Anderson’s house to the disturbance.  Because any risk to the deputies’ safety resulted from their violation of Anderson’s constitutional rights, even a reasonable fear for their safety could not support the search of Anderson’s bag.

In sum, the exigent circumstances exception to the warrant requirement does not apply if the police themselves create the exigency.  Kentucky v. King, 131 S. Ct. 1849, 1857-58 (2011).  Case dismissed. 
The full opinion can be found here. 

Baumgartner Debacle and District Attorney Nichols

by Lee Davis

As discussed in a post last week, prosecutors in the Christian/Newsom case are attempting to have Special Judge Jon Kerry Blackwood recuse himself from the case. Matters took a heated turn this week. Knox County District Attorney Randy Nichols started a screaming match with the judge and at another point he was faced with a contempt of court threat.

The exchange occurred as a result of Judge Blackwood’s refusal to step down from the case. Rather than permit additional oral argument by the prosecution, Judge Blackwood carefully explained his reasons for not stepping down and then ordered the court to take a short break. After returning to the bench he read aloud a section of law regarding what comments attorneys are permitted to make about judges. The purpose of the reading was to highlight a comment that we discussed in our last post by John Gill accusing Blackwood of engaging in private communications to avoid media scrutiny. These allegations by prosecutor Gill appear to be baseless and are contempt of court if untrue. 

The exchange got heated very fast as reported by the Knoxville News Sentinel. Blackwood said: “If you have one blooming email to support that charge that this court has been dealing with ex parte communications with these defense attorneys, you better bring it forward or the person who made that statement needs to self report.” Nichols then jumped to his feet and demanded to know whom Blackwood was referring to. The judge responded by saying prosecutor “John Gill.” 
District Attorney Nichols then attempted to cut off Blackwood and the judge had enough, ordereing, “You’re going to sit down.” Nichols remained standing and told the judge that the prosecution objected to him saying anything more. Blackwood then ordered Nichols, “I told you to sit down. If you stand up one more time, you will be in contempt of court. Do you understand?” After that the judge stood up and left the bench. 

Nichols’ made the request for Blackwood to recuse himself after he granted new trials for a second time in the Christian/Newsom case. Though the high court raised questions with the initial decision it did not bar him from coming to the same conclusion the second time around. Instead, the justices said that if Blackwood believed he was not able to serve as the 13th juror in place of Richard Baumgartner then he would have no choice but to grant new trials. Blackwood decided he did not believe he could serve that role. 

Prior to the blowup by Nichols, the judge said he would reconsider his decision regarding a new trial for the ringleader, Lemaricus Davidson, and his brother, Letalvis Cobbins. The reason for his reconsideration is that both men had DNA evidence linking them to the rapes of Christian. Blackwood was firm that he would not reconsider his decision regarding George Thomas for whom no forensic evidence existed linking him to the slayings. 

See Our Related Blog Posts:
Prosecutor’s Note Questioning Witnesses’ Credibility Leads to a Murderer’s Appeal the bench.

Wednesday, June 13, 2012

Tennessee Supreme Court Overturns Death Sentence Due to Misconduct

By Lee Davis

1926 Tennessee Supreme Court: W.L. Cook, William Swiggart, Grafton Green, C.J., Colin McKinney and A.W. Chambliss 
The Tennessee Supreme Court recently overturned the death sentence for Hubert Glenn Sexton who was previously convicted of murdering a Scott County, Tennessee couple in their bed. The Supreme Court ordered that a new jury hear the case and decide whether he does indeed deserve the death penalty.

The high court found a multitude of problems with the evidence and sentencing phase of Sexton’s murder trial. Examples include inappropriate remarks made by jurors and the impact of prejudicial evidence that was admitted.

Sexton was convicted of first-degree murder by a jury for the May 2000 murders of Stanley and Terry Sue Goodman. The Goodmans were shot to death while they slept in their home only days after Sexton was accused of sexually abusing one of Stanley Goodman’s children.

Despite the problems uncovered by the Supreme Court, the justices refused to take the additional step of overturning his murder conviction. The majority clearly believed Sexton was guilty of the crime, stating that, “Aside from the unfairly prejudicial nature of the inadmissible evidence and the inappropriate argument by the prosecution, however, the proof of guilt for each of the two murders was simply overwhelming.” The doubt about Sexton’s guilt is very small as Sexton reportedly told at least three different friends that he had murdered the Goodmans.

The problems with the case began before the trial even started as the voir dire process was tainted. Apparently some people were improperly excluded as jurors. Later, jurors heard allegations of the sexual abuse Sexton was alleged to have committed but never officially charged with, something that never should have happened. The Court said that prosecutors should have instead attempted to charge Sexton separately for the abuse. The jurors were further prejudiced by hearing that Sexton initially agreed to take a polygraph but later changed his mind.

The accumulation of misconduct was enough to earn Sexton a new sentencing trial but not enough for a reprieve.

To read the full opinion, click here.

Read: “Tenn. Supreme Court overturns death sentence in E. Tenn. Case,” by Sheila Burke, published at

See Our Related Blog Posts:
Tennessee Supreme Court to revisit "constructive possession" in State v. Robinson
TN Court of Criminal Appeals Finds Video Must Be Reviewed by Trial Court

Monday, June 11, 2012

Texting While Driving Leads To Homicide Conviction/Jail Time

            Recently, Aaron Deveau, an 18 year old student from Massachusetts was sentenced, to 2 ½ years with one year to serve in prison for a car crash in 2011 that killed one person and serious injured another.  There was strong evidence that Mr. Deveau (who was 17 at the time) had been texting while driving, and he was convicted of motor vehicle homicide and negligent operation while texting.  The second charge is a relatively new criminal charge in Massachusetts and applies only to cases involving injury.  Mr. Deveau also had his driving privileges suspending for 15 years.  
            While Tennessee does not have a criminal charge specifically related to texting, our vehicular homicide law prohibits the reckless killing of another when driving via “conduct creating a substantial risk of death or serious bodily injury to a person.”  Such a crime is a Class C Felony carrying between 3-6 years of punishment.  There is also the charge of reckless homicide, a Class D (2-4 years), which prohibits the “reckless killing of another.” 
            The conviction of Mr. Deveau (and sentence) demonstrates that many states are recognizing the dangers of “texting while driving”.  Text messaging while driving is currently banned in 39 states with another 5 states banning it for younger drivers.  While it is hard to know exactly how many crashes are due to texting, it is estimated that “distracted driving” was the cause of 18% of all accidents in 2010.  These accidents (in 2010) were responsible for the death of 3092 people with an additional 416,000 estimated injuries. 
Despite these laws and sobering statistics, it does not appear that many people fully understand the risks.  A recently released Centers for Disease Control and Prevention (CDC) study found that 58% of high-school seniors admitted to texting or emailing while driving in the past month.  For high school juniors the percentage who admitted doing so was 43%.  The survey involved questioning more than 15,000 high school students from across the country.  In many ways, these results aren’t surprising.  Anyone who has been a teenager (or who now is the parent of one) understands that most adolescents don’t fully appreciate risk.  There is increasing evidence that the part of the brain (the striatum) that seeks rewarding experiences matures earlier than the prefrontal cortex, which regulates the ability to control behavior and overcome impulsivity.
          There are underway a great many educational campaigns to help students appreciate the dangers of texting while driving.  We can only hope that as texting becomes a more and more common method of communication, these dangers are better internalized, not only by adolescents but adults as well.  The story of Aaron Deveau is a tragedy for all involved.  It was a terrible accident that took the life of Donald Bowley Jr., seriously injured his girlfriend, and has changed Mr. Deveau’s life forever.

Tennessee Supreme Court Rules Police Must Corroborate Tips Before Frisking

The Tennessee Supreme Court recently ruled that police officers across the state must corroborate anonymous tips before they are permitted to stop and frisk someone. The rule came from a case involving about a man, Guy Alvin Williamson, who was convicted of being a felon in possession of a firearm and of firearm possession while intoxicated. The ruling by the Tennessee Supreme Court overturned an earlier ruling by the Tennessee Court of Criminal Appeals. 

The Court held that police had no grounds to stop and frisk Williamson at a hotel he was staying in because there was no indication, beyond one anonymous tip, that a crime had been committed. As a result, the high court said evidence against Williamson should have been suppressed at trial. The tip came in May of 2009 that there was an armed party at a local motel. Williamson was found in possession of a firearm and arrested as a result. Police based their search only on one report before drawing their guns on Williamson and two others.

The opinion should help protect others wrongfully stopped and frisked by police officers against illegal searches and seizures. From now on police in the state will have to have additional grounds to believe that a crime has been committed beyond a simple anonymous tip. In this case especially the fact that someone is carrying is gun is not sufficient to justify a search and seizure because many individuals are legally permitted to carry a firearm. 

It’s important to note that the opinion did not say that police can’t act on anonymous tips, only that law enforcement must have some reason to believe that a crime has been committed before stopping and frisking potentially innocent individuals. 

To read the full opinion, click here.


Sunday, June 10, 2012

The Baumgartner Debacle Continues

former judge Ricard Baumgartner
Special Judge Jon Kerry Blackwood affirmed his earlier decision, recently reviewed by the Tennessee Supreme Court, and ordered new trials for a second time for the defendants in the Christian/Newsom murder case.

The state Attorney General’s Office earlier appealed Blackwood’s first retrial order, and on May 24 the Supreme Court issued an opinion saying that former judge Baumgartner’s misconduct off the bench was not reason enough to justify new trials. The high court said that the defense would have to show that actual error or bias had occurred. The justices further questioned Judge Blackwood’s ruling that Baumgartner’s inability to serve as the 13th juror was justification for new trials. The Court did leave open the possibility that if witness credibility were essential, Baumgartner’s behavior could be used as support. 

Blackwood took the opportunity to revisit his ruling and quickly decided he had been right the first time. The Supreme Court never overruled him and did not bar him from again granting new trials. The justices simply asked that he review his initial order using their opinion as a guide.

Blackwood did base his second retrial order on language contained the Supreme Court’s opinion, specifically mentioning the importance of witness credibility to the ultimate outcome of the trials. Blackwood said because witness credibility was such an “overriding and important issue" at trial he did not feel he was able to step into the role of the 13th juror left open thanks to Baumgartner’s resignation. 
The order came just a few days after Knox County District Attorney General Randy Nichols filed a motion asking that Blackwood recuse himself from the case. Prosecutors argued that Blackwood was biased against them, having planned to grant new trials before allowing the state to make its case. It is hard to understand their position, given that they are arguably the only ones who could have had knowledge or power to do anything about Baumgartner's misbehavior.

Current law in the state is vague about what is to happen when a motion to recuse is before a judge. The current Rule 10 of the state’s Code of Judicial Conduct states only that: 

“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding; [or] (b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it.”

The Supreme Court recently adopted a new Rule 10 that is set to go into effect on July 1 of this year. The new rule would prevent a judge whose recusal is being sought from issuing any orders or rules until the motion to recuse has been dealt with. The new rule also gives the petitioning party a right to automatic emergency appeal should the judge deny the motion. Because the rule is not yet in effect Blackwood is permitted to issue his second order despite the current motion for him to recuse himself. 


Wednesday, June 6, 2012

6th Circuit Affirms Child Pornography Conviction

Picture this: as a defense to an accusation of knowing possession of child pornography, a defendant claims, "Honestly, your honor, I had no idea those pictures were on my computer! I thought I had deleted them along with the 2,300 other child pornography pictures." Laughable, right? Apparently the defendant in this case didn't think so. 

On April 10, 2008, the FBI, amidst a child pornography investigation, went to the home of David Ferguson. Officers asked Ferguson if they could search the hard drives from his computer, to which David consented. Forensic tests revealed that 2,300 images of child pornography had been deleted from the computer, but 14 images of child pornography still remained on the computer. Ferguson was arrested and later indicted in October 2008 by the grand jury for one count of knowing possession of child pornography "from on or about October 1, 2007 - on or around April 10th, 2008." On June 10, 2010 a superseding indictment was entered against Ferguson for one count of knowing possession of child pornography on or about April 10th, 2008. The reason for the superseding indictment, according to the prosecution, was to condense the indictment down to the actual images possessed on the computer on the day Ferguson consented to the search. Further, they explained that they could not prove that Ferguson knowingly intended to possess the deleted images on the date of the search. 

At trial, Ferguson's defense was that he couldn't have knowingly possessed the 14 images because he thought he had deleted them with the other 2,300 images. Forensic analysis proved that the last time all the images were accessed was the night of April 4th, six days before the search occurred. The district court found Ferguson guilty and reasoned that since the images were deleted on April 4th, Ferguson knowingly possessed the pictures up until that day. It further reasoned that knowingly possessing the pictures on April 4th is close enough in time to April 10th to be included in the "on or about April 10th" language on the superseding indictment. 

On appeal, Ferguson challenged the superseding indictment and conviction, stating that he was convicted of a different crime than he was indicted. He argued that the superseding indictment did not include the crime he was convicted of. Specifically, he argued that knowingly possessing the 14 images before he deleted all the other images is a different act or crime than knowingly possessing the 14 images after he deleted the 2,300 images. To prevail on this, the court explained, Ferguson would have had to prove that the grand jury indicted him only for knowingly possessing the 14 undeleted images after deleting the other images on April 4th. The 6th circuit held that he had not proven this. Specifically, the court cited a rule which states, "when 'on or about' language is used in an indictment, proof of the exact date of an offense is not required as long as a date reasonably near that time is established." According to the court, April 4th is reasonably close in time to the indictment date of April 10th. The court affirmed the district court's acceptance of the superseding indictment and affirmed the conviction. 

Moral of the story: It probably would have been wise of Ferguson to double check his hard drive for more pictures after he deleted the 2,300 others. 

Tennessee Court of Criminal Appeals Discusses Factors for Determining Whether a Plea was Voluntary and Intelligent

Jonathan Lawrence appealed Davidson County Criminal Court’s rejection of his petition for relief from his convictions on two counts of especially aggravated kidnaping, one count of aggravated kidnapping and three counts of aggravated robbery which resulted in a sentence of 25 years. Lawrence contends he did not plead guilty knowingly, intelligently or voluntarily. 

In 2008 Lawrence was indicted on the above-mentioned charges following one incident in June of that year where he and a friend robbed a man at gunpoint and then forced him into his apartment while they fled. Just a few days later Lawrence robbed another man, robbing him at gunpoint and then demanding he drive him to an ATM to withdraw money. His partner in crime stayed behind, forcing his way into the man’s apartment and repeatedly raping his girlfriend. In 2009 he pled guilty and was sentenced to 25 years to be served at 100 percent. 

The Court of Criminal Appeals said that for a plea to comply with the Constitution it must be both voluntary and intelligent. A defendant must be advised of the consequences of a guilty please and must understand those consequences. The court says that in answering this question it looks at the following factors: 1) the relative intelligence of the defendant; 2) the degree of familiarity with criminal proceedings; 3) whether he was represented by competent counsel; 4) extent of advice from counsel; and 5) the reasons for his decision to plead guilty.

The Court concluded that the lower court was correct in denying Lawrence’s petition for post-conviction relief. The Petitioner was informed by the court of his right to a jury trial and of the consequences of a guilty plea. The court then asked if Lawrence understood and he said “Yes.” Lawrence had a credible attorney advise him of the plea arrangement before entering into it and Lawrence made the choice to accept on his own. Thus, his guilty plea was knowing, intelligent and voluntary. 

To read the full opinion, click here.


Monday, June 4, 2012

Sixth Circuit Court of Appeals: No recovery for man released from prison 17 years too late

On Tuesday the Sixth Circuit U.S. Court of Appeals refused to reinstate the lawsuit of a man, Buxton Craig Heyerman, who blames prosecutors for leaving him in prison for 17 years after his conviction was overturned. Heyerman filed a civil rights action alleging the defendants violated his Sixth Amendment speedy-trial rights through his lengthy detention. 

There seems to be no dispute that a court order overturning Buxton Heyerman’s conviction and ordering a new trial apparently fell through the cracks in 1989. In January of 1988, after initially being found guilty of one count of first-degree criminal sexual conduct, he was sentenced to a prison term of 20-40 years. The next year the Michigan Court of Appeals reversed the conviction and remanded the matter back to the trial court. But instead of getting a new trial, he stayed in prison.

The Sixth Circuit said there’s no evidence that his extended stay in prison was due to a prosecutor's bad policy or a failure to supervise staff, key points in his civil rights lawsuit. The system in place at the time was to notify the parties and schedule a status conference once a case was remanded or reconsideration. For reasons unknown, the procedure was not followed in this case. 

The Sixth Circuit wrote that: 

“The judicial system - to say nothing of the criminal defense system - has not functioned as it should when a criminal defendant remains imprisoned for 17 years after his or her conviction has been reversed and no further action has been taken. Liability, however, does not necessarily attach to any entity and/or individual as a result of this breakdown.”

Heyerman’s attorney at the time was evidently aware of the decision but told his client to keep quiet and stay locked up for a few more years until the statute of limitations on the charge ran out. Calhoun County authorities said they became aware of the case only in 2007, when Heyerman filed a lawsuit demanding his release.

A judge that year dismissed charges, saying Heyerman's right to a speedy trial was violated. Heyerman’s former attorney paid $95,000 to settle a malpractice claim and was suspended from the practice of law for three years.

The judges of the Sixth Circuit summed the trial up aptly, calling it a “remarkable saga.”“It is not often that an inmate seeks refuge from the prosecutorial arm of the state by laying low for 17 years in prison in order to avoid the risk of a new trial that, if all goes badly, will lead to incarceration. And it is not often that a state abets this strategy by failing to realize that it is housing an individual whose conviction has been reversed.

To read the full opinion, click here


Saturday, June 2, 2012

TN Court of Criminal Appeals Finds Video Must Be Reviewed by Trial Court

The State of Tennessee appealed a lower court’s ruling denying their request to admit evidence of a video-recorded interview of a minor victim. The Court of Criminal Appeals held that the lower court made a mistake by reaching the constitutional question before it was ripe for review and the ruling was vacated and remanded for reconsideration. 

Barry D. McCoy was charged with seven counts of rape of a child and submitted to a bench trial. The state moved to introduce a video interview of the victim as evidence. McCoy objected and the lower court ruled that it would not be admitted on three grounds: 1) the video was hearsay and was not covered by any exception; 2) admission of the video would violate McCoy’s right to confront a witness against him; and 3) the code at issue in the case, T.C.A Section 24-7-123, was unconstitutional as legislative overreach into judicial authority. The court believed that by enacting such a statute the legislature had violated the separation of powers doctrine by engaging in what is clearly a judicial function.

The Court of Criminal Appeals says that lower court jumped ahead of itself. The court should not have ruled on the constitutionality of the statute without first having reviewed the video recording to determine whether it would actually qualify for admission under the terms of the statute. The court could not know then if the statute was applicable to the case. If it didn’t apply,  then the constitutionality of the statute is moot. Because the trial court did not determine the statute’s applicability to the video in this case, the Court found that the constitutional challenge was not yet ripe for review and the lower court’s ruling was vacated. 

To read the full opinion, click here.