Sunday, November 25, 2012

When is a lie a federal crime?

By Lee Davis

Earlier this year the Supreme Court decided US v. Alvarez, a case that tests the limits upon which a community must accept contemptible conduct--in this case speech--from locally elected officials.

Xavier Alvarez is a brazen liar. But is he a criminal? As an elected official for the Three Valley Water District Board with headquarters in Claremont, California, he introduced himself at a meeting. Alvarez claimed he served 25 years in the Marine Corps and that he was wounded in combat--this is false. He boasted that he played professional hockey for the Detroit Red Wings and that he once had been married to a Mexican film starlet--these claims are equally untrue. But the whopper that got him indicted in federal court was the statement that he received the Congressional Medal of Honor. By making that statement he violated the Stolen Valor Act by falsely claiming to have received the honor. By all accounts Alvarez was making a pathetic attempt to draw attention to himself to those assembled at the municipal meeting.

The Stolen Valor Act states that whoever falsely represents himself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States ... shall be fined under this title, imprisoned not more than six months, or both.

Faced with the obvious, his own statements, Alvarez pled guilty in federal court but he reserved the right to appeal his conviction. The appeal eventually found its way to the Supreme Court.

The question before the court was whether the Stolen Valor Act violated the Free Speech Clause of the First Amendment? One circuit court had already found the act constitutional and another found it to be unconstitutional. The Supreme Court accepted the case to address the split authority on this issue.

In June of this year, the Supreme Court found the Stolen Valor Act unconstitutional. Justice Kennedy writing for the majority in a 6-3 decision stated that content based restrictions like the Stolen Valor Act are subject to strict scrutiny to see if the law violates the First Amendment. To be sure, some false statements--false statements of defamation or false statements to federal law enforcement agents are crimes. True threats that present a grave and imminent danger are also crimes. But false statements alone do not present the type of threat that warrants intrusion into the first amendment. False statements of the kind made by Alvarez create no harm--so the court found. Obnoxious behavior and reprehensible conduct, yes, but not a crime. The remedy to false statements is true statements and the Court noted that Alvarez had been roundly criticized and rebuked once his claims we found to be untrue.

In the words of Justice Kennedy: "The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find respondent's statements anything but contemptible, his right to make those statements is protected by the Constitution's guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment."

Here is the full opinion:U.S. v. Alvarez, 132 S.Ct. 2537 (U.S.,2012)

Thursday, November 22, 2012

U.S. Supreme Court to consider "late" actual innocence proof

An issue before the U.S. Supreme Court involves the late appearance of evidence that may demonstrate a criminal defendant’s innocence. Though many people assume that if evidence were to arise showing that someone was clearly innocent of the crime they were accused of committing, no matter how late, then it would be considered by the court. Perhaps it may come as a surprise to some, this is not always the case. Here is the petition for certiorari granted by the Supreme Court on this issue filed by Floyd Perkins.

The actual issue presented states: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) contains a one-year statute of limitations for filing a habeas petition. In Holland v. Florida, 130 S. Ct. 2549, 2562 (2010), the Supreme Court affirmed that a habeas petitioner is entitled to equitable tolling of that one-year period “only if he shows: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.

Floyd Perkins' petition presents two recurring questions of jurisprudential significance involving equitable tolling under AEDPA that have divided the circuits:
1. Whether there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition.
2. If so, whether there is an additional actual- innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.

As Justice Antonin Scalia wrote in 2009, the Supreme Court has never held that “the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

The Supreme Court now has agreed to hear a case that demonstrates exactly why the issue can be a tricky one. The case involves a Michigan man, Floyd Perkins, who is serving a life sentence for murder. New evidence was uncovered and a long time passed before it was presented. The issue now is whether it can be raised or whether Perkins should spend the rest of his life in prison for a crime he says he did not commit.

The details of the incident begin with a house party in 1993. Perkins was in attendance and left with two other men, one of whom was later found dead in the woods, having been stabbed in the head. The third man, Jones, testified that Perkins murdered him. Perkins said he parted ways with the other two and later ran across his accuser under a streetlight covered in blood. The jury ultimately believed the accuser, voting to convict Perkins.
After his conviction Perkins worked to collect evidence demonstrating his innocence. There was an affidavit from his sister that said she heard secondhand that Jones had bragged about the killing and had taken bloody clothes to a drycleaner. This is hearsay and it is from a relative, both facts undermined the value of the testimony. A few years later Perkins got a second sworn statement from an acquaintance of Jones’ who said Jones confessed to the killing and confirmed the story about the dry cleaning. Then, a few years after that an employee of the dry cleaning store said that a man who looked like Jones had indeed come in to drop off bloody pants to be cleaned.

Finally, with this information gathered, Perkins asked a federal court to throw out his conviction in 2008. Magistrate Judge Timothy P. Greeley of the Federal District Court in Marquette, Michigan recommended that his request be denied because it was filed too late. Perkins appealed but to no avail. Then the Sixth Circuit Court of Appeals reversed the ruling. It ordered Judge Bell of the Federal District Court in Grand Rapids to consider whether the new evidence was credible enough to justify consideration.

After the Sixth Circuit decision, Michigan appealed to the Supreme Court, and with the support of 10 other states, argued that deadlines are important procedural rules and ought to be enforced as written. They say the legal requirement is that such claims be pursued diligently.

However, Perkins argues that’s exactly what he did. He filed a note with the lower court before the deadline passed explaining that many of his documents and property had been destroyed by prison personnel following a skirmish. He was subsequently denied access to the law library and placed in solitary confinement for nearly five years, making further work on his case all but impossible.

Though the evidence is suggestive, it’s not factually conclusive for Perkins. Had it been presented at trial it may have made a difference, or maybe not. The question is whether there is enough reason to justify Perkins presenting it to a court for consideration now.

Read: “Case Asks When New Evidence Means a New Trial,” by Adam Liptak, published at

Wednesday, November 21, 2012

Jury Convicts in Retrial of Vanessa Coleman

Yesterday, after an 11 hour deliberation, a Jackson County jury found Vanessa Coleman guilty on 13 of 17 counts of facilitation to commit the first degree murder of Channon Christian.  A sentencing date has not been set, but Coleman is expected to spend decades in jail.  
Christian and her boyfriend, Christopher Newsom, were killed in 2007.  Newsom was shot and his body burned on railroad tracks. Christian was repeatedly raped by Letalvis Cobbins, Lemaricus Davidson, and George Thomas before she was left to suffocate in a trash can. 
Cobbins, Davidson, and George were convicted and sentenced on crimes related to the incident in 2009. Coleman was tried in May 2010.  She was acquitted of any role in the crimes against Newsom but found to be a facilitator in the crimes against Christian.  Presiding Judge Richard Baumgartner sentenced Coleman to 53 years. Subsequently, Judge Jon Kerry Blackwood ordered a new trial after Baumgartner admitted to using prescription drugs during Coleman's trial. 
Double jeopardy prevents Coleman from being retried on the crimes connected to Newsom because she was previously found not guilty.  Next month, a new judge is scheduled to decide whether the 3 male defendants should also be retried as a result of Baumgartner’s misconduct.
Read the jury verdict form

Tuesday, November 20, 2012

TN Judicial Ethics Committee Issues Advisory to Judges on Social Media

The Tennessee Judicial Ethics Committee recently released an advisory opinion regarding judges and proper social media etiquette, something that legal experts have seen land judges across the country in controversy recently. In an attempt to avoid some of the same problems in Tennessee, the Committee is attempting to convey how important it is for judges to choose their online “friends” wisely.

Just last year a judge a Philadelphia was under scrutiny after prosecutors discovered he was friends with a man whose drunk driving case was before him. The judge threw out several key parts of his case. In North Carolina, another judge was reprimanded after he became friends with an attorney who was representing one of the parties in a divorce case in his court. The judge went so far apparently as to discuss details of the case with the attorney, including a possible affair by one of the parties.

To date no such situations have been reported in Tennessee, but many believe that with the ubiquitous nature of social media a conflict will eventually arise. Others think that an unscrupulous lawyer with time on their hands could do some digging in an attempt to get a judge thrown off of a case even under innocent circumstances.

The advisory opinion says the biggest impact will be on new judges who may have to ‘de-friend’ some lawyers or parties they were already friends with who might pose problems down the road. Anyone who may appear in their court one day cannot be seen as having special sway with the judge, according to the opinion.

The impetus behind the advisory opinion was a question from a lawyer who as a new judge wondered if he had to de-friend his existing lawyer friends. The answer, according to the Ethics Committee, is no--though it could potentially be problematic. The opinion says that judges should of course avoid sharing any sensitive information or discussing cases, but using social media as a means of keeping in touch with friends and sharing family updates shouldn’t be a problem.

Tennessee joins the ranks of many other states that have addressed the issue by not an outright ban of social media for judges. There are some states, for example Florida, that have banned judges from being e-friends with lawyers who appear in their courtrooms.

The Ethics Committee concludes that while judges are allowed to participate in social media, they should use caution when doing so. Any judge must also expect that their use of social media will be scrutinized by others and thus “must be constantly aware of ethical implications as they participate in social media and whether disclosure must be made.”

Read: “In social media, judges and 'friends' don't always mix,” by Lawrence Buser, published at

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Monday, November 19, 2012

Petraeus Affair Raises Concerns About E-mail Privacy

With all the coverage surrounding the recent fiasco involving General Petraeus, the extent of people’s personal electronic security has been given increased attention. After all, if the CIA Director isn’t able to keep his emails private, what hope is there for the rest of us? Many privacy experts agree the recent scandal has shown just how vulnerable most people are in terms of the transparency of their digital communications.

The first thing that many experts say you need to realize is that no matter what you’re trying to hide, if it’s in your e-mail inbox it is possible that someone will find out. If the thing you’re hiding involves criminal activity, the chance of the government finding it goes up exponentially given their power to search and subpoena information. This doesn’t change whether the information is contained on your hard drive or floating up in the cloud.

One thing that Petraeus discovered was that the government can easily connect you to an account by using the IP address of the computer you used to access the account. This is what proved that he and his mistress were using the otherwise anonymous account. E-mail providers like Google and Yahoo save this kind of information for 18 months, during which time it can easily be subpoenaed.

Something many people may not realize is that the Fourth Amendment requires the authorities to get a warrant from a judge to search only physical property. Rules governing e-mail searches, however, are far more lax. Under the 1986 Electronic Communications Privacy Act, a 1986 law that Congress enacted to protect your privacy in electronic communications, a warrant is not required for e-mails six months old or older. Even if e-mails are more recent, the federal government needs a search warrant only for “unopened” e-mail. Everything else, including identifying information such as the IP address used to access the account requires only a subpoena.

One complicating factor is a recent rejection of the government’s approach by the Ninth Circuit Court of Appeals. The district happens to encompass many of the technology companies that handle e-mail messages and the servers that contain the data. Given the decision by the Ninth Circuit, the Department of Justice’s Manual now includes a note reminding agents in the area to get a warrant before accessing such information.

Though many people might believe this kind of e-mail surveillance only happens in high profile cases, the reality is that law enforcement throws a large net when looking for incriminating information. Google reported that United States law enforcement agencies requested data for 16,281 accounts from January to June of this year, and it complied in 90 percent of cases. Online users need to realize that everything is logged and recorded somewhere. If you don’t want someone else to find it, don’t say it.

Read: “Trying to Keep Your E-Mails Secret When the C.I.A. Chief Couldn’t,” by, published at

Saturday, November 17, 2012

Nominating Commission selects three candidates for Court of Appeals Eastern Section

Jerri S. Bryant, Chancellor

The Judicial Nominating Commission met in Chattanooga today to review the 11 applicants for the Court of Appeals Eastern Section vacancy which serves 13 judicial districts in east Tennessee. The vacancy was created by the retirement of Court of Appeals Judge Herschel P. Franks.

After holding a public hearing and interview for each applicant, the Judicial Nominating Commission has recommended the following three candidates to Governor Bill Haslam:

Jerri S. Bryant
10th Judicial District
Athens, Tennessee

Michael A. Faulk
Solo Practice/State Senator
The Faulk Law Office
Church Hill, Tennessee

Thomas Radcliffe Frierson
3rd Judicial District
Morristown, Tennessee

Thursday, November 15, 2012


November 15, 2012

In a unanimous opinion, the Tennessee Supreme Court ruled today that a judge may not properly charge an attorney with contempt of court when the behavior neither disrupts the proceeding nor disparages the court, even if the judge believes that the attorney behaved unethically.
In 2009, Mr. James Beeler represented Mrs. Christina Thomas in a criminal trial at which her husband, Mr. James Thomas, was represented by another attorney.  While the other attorney was questioning a witness, Mr. Beeler leaned over and spoke softly with Mr. Thomas.  The trial judge immediately interrupted the trial and asked the other attorney whether he had given Mr. Beeler permission to speak with his client.  Because the other attorney said that he had not, the judge charged Mr. Beeler with criminal contempt of court.  At a hearing, both attorneys testified that they had cooperated in defending their clients and that Mr. Thomas had spoken openly with Mr. Beeler on the morning of the trial without objection from his attorney.  Despite this testimony, the judge convicted Mr. Beeler of criminal contempt and recited the ethical rule that forbids an attorney from speaking with a person represented by another attorney about the subject matter of that representation without permission.
The Supreme Court held that a judge may not charge an attorney for contempt of court based upon "willful misbehavior" when the behavior neither disrupts the proceeding nor disparages the court, even if the judge believes that the attorney behaved unethically.  In this case, the Court found that Mr. Beeler had the implicit consent of the other attorney to speak with Mr. Thomas.  His ethical conduct was not "misbehavior" for which he could be charged with criminal contempt.  Accordingly, the Court reversed the Court of Criminal Appeals and vacated Mr. Beeler's conviction.

To read the State of Tennessee v. James Beeler opinion authored by Justice Cornelia A. Clark visit the opinions section of

Saturday, November 10, 2012

An End to the Baumgartner Saga as Jury Convicts Disgraced Judge

A federal jury in Knoxville, Tennessee voted to convict former Knox County criminal court judge Richard Baumgartner, who was charged with lying to cover up a scheme that provided him with painkillers and sex.

The verdict meant that the former judge was found guilty on five counts of misprision of a felony and acquitted of one charge. Prosecutors were successfully able to convince the jury that Baumgartner had lied to cover up a conspiracy involving a defendant from his court supplying him with pills and sex. Baumgartner’s defense conceded he was an addict and adulterer, but unsuccessfully argued that his actions were not a federal crime.

The jury foreperson later spoke about the deliberations and said that jurors were never deadlocked on any of the counts as they debated their verdict, despite a few questions that led some observers to believe they were.
Deliberations lasted nearly 20 hours and many observers wondered what was taking the jury so long. The jury led some to believe they were going to end up deadlocked given a few of the questions they had for the judge. One question asked what they should write on the verdict form if they did not agree. The foreperson said that the question was not asked because of any actual deadlock, but instead asked preemptively, so that she could plan ahead in the event that unanimity was not possible.

The foreperson said that the reason for the delay was the complexity of each count that they had to decide on. For each charge, the jury of 12 people had to come to an agreement on four distinct elements: First there was a drug conspiracy. Second, Baumgartner had full knowledge of it. Third, he failed to report it. Fourth, he then worked to conceal the felony.

Some of the counts were easier for the jury to agree on than others and they ultimately acquitted Baumgartner on Count Two. The foreperson said the reason for that decision was because the crime of misprision deals with lying to federal officials and Count Two involved an incident at St. Mary’s hospital. The jury decided that there were not any federal officials present at the hospital and thus cleared Baumgartner on Count Two.

Read: “Richard Baumgartner Guilty: Jury Convicts Ex-judge In Drug Conspiracy Cover-up,” by The Associated Press, published at

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Saturday, November 3, 2012

Tennessee Vehicle Forfeiture Procedure Questioned by Hamilton County Sheriff

Hamilton County sheriff Jim Hammond has asked the Tennessee Bureau of Investigation to decide whether he violated state procedure when he returned a car to its owner after it was seized during a drug-related arrest of the owner’s son. The investigation is meant to clarify the state’s vehicle forfeiture procedures so that law enforcement agencies are clear in the future of exactly what to do in such circumstances.

The owner of the car, Marcia Tenenbaum, told reporters that she called Hamilton County Sheriff in April after her son was arrested for possession of marijuana in her Lincoln sedan. Tenenbaum knew Hammond from her past. Both studied criminal justice at the University of Tennessee at Chattanooga. Tenenbaum is merely an acquaintance of the Sheriff's and he says the the decision was not meant as a personal favor.

Tenenbaum said that she called the sheriff to say that she was disabled and needed the car to get around. Hammond apparently agreed and returned the car. However, some people question whether the return was proper. One official says that sheriffs are not permitted to release a car without a direct order from the state Department of Safety. No such order was ever issued by the agency and the car should have remained state property under that interpretation. Others in law enforcement and many attorneys say that the sheriff is well within his authority to return the vehicle. He has the discretion they say to return vehicles that his officers seized under his authority.

Hammond says he was concerned about the decision and wanted it to be reviewed to settle the matter. To him the issue is purely procedural and not one about improper influence. Some paperwork may have been improperly filed which could have led to the release of the vehicle. The sheriff’s office launched an internal investigation into the matter in an attempt to sort out the issue.

Police officers across the state often seize automobiles when they find drivers in the possession of drugs. Tennessee law allows law enforcement agencies to confiscate an automobile that is used in to transport illegal drugs, regardless of whether the person transporting the drugs actually owns the car. The person found in possession of drugs is issued a notice of seizure and is informed that they must submit a petition to the Tennessee Department of Safety if they wish to contest the seizure.

There is an exception to a seizure under Tennessee law for those that simply possess such drugs for their own personal use.

Whether a Sheriff can return a vehicle for good cause once it has been seized under his authority without approval of the Department of Safety is the underlying issue.

Read: “Sheriff asks TBI to probe seized car procedure,” by The Associated Press, published at

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