Wednesday, July 25, 2012

Tennessee Supreme Court Develops Training Video on Providing Legal Services to Persons with Disabilities




The Tennessee Supreme Court’s Access to Justice Commission recently developed an important training video that will help attorneys and legal agencies that work with people with disabilities. The video, Providing Legal Services to Persons with Disabilities, was created to raise awareness and reduce the barriers persons with disabilities face when seeking legal services.

“Projects such as this are a priority because they assist in providing persons with disabilities better access to the justice system,” Justice Janice M. Holder said. “This video will serve as a valuable resource for lawyers. The Court and the Commission commend Disability Law & Advocacy Center of Tennessee (DLAC) and the Vanderbilt Kennedy Center (VKC) for developing this tool.”

ATJ Commission committee members and staff from DLAC and VKC provided leadership in developing the video, available at http://kc.vanderbilt.edu/legalservicesvideo. The 12-minute video provides general etiquette tips on interacting with individuals with disabilities and highlights specific examples of common scenarios that people with disabilities encounter when seeking legal services.

“Attorneys will better understand how to provide services to people with disabilities after watching the video,” said Martha M. Lafferty, Managing Attorney at DLAC. “That increased understanding will, in turn, lead attorneys to work with their own clients, opposing counsel, and courts to ensure that disabilities are appropriately accommodated during the entire justice process.”

Another goal of the project is to encourage more lawyers to do more pro bono work with clients with disabilities.

“The Court and Commission want lawyers to feel equipped to handle pro bono (free) or reduced fee cases for clients with disabilities,” said George T. “Buck” Lewis, Chair of the Access to Justice Commission. “We hope that lawyers who watch the video will learn how to address barriers unique to clients with disabilities and provide those clients with meaningful access to the court system.”

The Tennessee Developmental Disabilities Network – which includes the VKC, DLAC, the Tennessee Council on Developmental Disabilities and the UT Boling Center for Excellence in Developmental Disabilities – offers a number of resources and training opportunities for attorneys across the state who want to learn more about serving clients with disabilities.

“We see this video as a beginning in the partnership with the Tennessee Supreme Court Access to Justice Commission,” Elise McMillan, Co-Director of the VKC for Excellence in Developmental Disabilities said.

The Tennessee Supreme Court announced its Access to Justice campaign in Dec. 2008. This was in response to a growing legal needs gap in Tennessee as indigent and working-poor families faced more legal problems caused by unemployment, predatory loans, uninsured medical bills, domestic violence, evictions and foreclosures. As part of the campaign, the Court created the Tennessee Access to Justice Commission, which is made up of ten members from across the state.

To view the video, visit http://kc.vanderbilt.edu/legalservicesvideo.

For more information on the Access to Justice campaign, visit http://www.tncourts.gov/programs/access-justice.

News from the Tennessee Courts

Sunday, July 22, 2012

State v. Tweedy - Initiation of a Process and Manufacture of Meth Must be Based on Separate Facts



 
Anthony Laren Tweedy, II was convicted of initiation of a process to manufacture methamphetamine and manufacture of methamphetamine.  On appeal, he argued that his conviction for manufacture of methamphetamine should be reversed. 

The Tennessee Court of Criminal Appeals applied plain error review and determined that Tweedy was improperly convicted of both initiation of a process to manufacture methamphetamine and manufacture of methamphetamine.

Tweedy was convicted for initiation of a process intended to result in the manufacture of methamphetamine under T.C.A. section 39-17-435.  That statute provides that “[a] person may not be prosecuted for a violation of this section and of manufacturing a controlled substance in violation of § 39-17- 417 based upon the same set of facts.”

The Court found that Tweedy was prosecuted under both sections 39-17-435 and -417 and that the convictions were based on the same set of facts.  Here, the State agreed that Tweedy should not have been convicted of both offenses and further agreed that the manufacture of methamphetamine conviction should be reversed.  Accordingly, the Court reversed and dismissed Tweedy’s conviction for manufacture of methamphetamine.

A full opinion can be found here.  

Sunday, July 8, 2012

Lying to Probation Officer is a Federal Crime

By Lee Davis
United States v. Vreeland

Everyone knows that a person has the right to remain silent when faced with questioning by police and most people understand that you have the right to have an attorney present during questioning. Perhaps fewer people know that it is a crime to lie to federal agents.

In Vreeland, the court was faced with these issues in the context of a man who lied to his probation officer during his monthly probation meeting. Vreeland denied knowing a man involved in a crime. He too was a suspect in this crime. His probation officer pressed on these facts. Vreeland's statements are what formed the basis of both a probation violation and the substantive new crime of lying to the PO--a federal agent. This is a novel issue in the Sixth Circuit.

In Vreeland the Court was face with two questions: whether his false statements to a probation officer during the course of a monthly supervisory meeting are protected by the Fifth Amendment privilege against self-incrimination, and whether such statements fall within the “judicial function exception” to prosecution set forth in 18 U.S.C. § 1001(b). The answer to both questions is no.

The Court reasoned that:
We have held that “the Fifth Amendment privilege against self-incrimination is not self-executing in the context of a meeting with a probation officer.” United States v. Miller, 910 F.2d 1321, 1326 (6th Cir. 1990) (holding that the defendant’s voluntary revelation to his probation officer during a presentence meeting that he regularly purchased cocaine to support his habit, resulting in the probation officer’s recalculation of the defendant’s base offense level and sentencing range for his drug offense, was not a compelled incrimination); see also United States v. Humphrey, 34 F.3d 551, 555 (7th Cir. 1994) (“[U]nless a state overtly threatens to revoke probation in retaliation for the legitimate exercise of the self-incrimination privilege, there is no reasonable basis for a probationer to believe that his Fifth Amendment rights are in jeopardy.”) (citing Murphy, 465 U.S. at 438).

As to the notion that these are protected communications that are not subject to prosecution, the Court rejected that idea.
A meeting between a probation officer and a defendant under supervision is not a “judicial proceeding” protected by § 1001(b) because it serves an administrative, not an adjudicative, function.

Vreeland received a two year sentence for lying to his PO and an additional two years for his probation violation.

The full opinion can be found here.

Friday, July 6, 2012

New law allows some Tennessee offenders to have their records expunged

By Lee Davis

A recently passed bill which will became law on July 1st will permit some criminals to expunge select felonies and misdemeanors from their records after paying a fee and meeting other court requirements. The law will only apply to those with a single conviction, not repeat offenders.

Before passage of the bill, legislators discussed how the current economic decline has led to a surge in the number of people seeking to expunge their records of criminal convictions. As jobs have become scarcer people found that even old infractions could be used as justification to avoid hiring them. There’s been a surge in the number of requests for expungements over the last few years, from 23,000 in 2007 to some 39,000 across the state in 2011. Legislators say that this recent loosening of restrictions contained in the recent bill will lead to huge additional increases, adding a shocking 60,000 requests each year.

Before the recent passage, a conviction was permanent unless there was an executive exoneration from the governor. Expungement was only allowed for those not guilty or whose charges were dropped or those sentenced to judicial diversion.

The recent passage means that Tennessee will join at least 17 other states that permit first-time offenders to expunge a criminal charge under certain conditions. Under the current law, offenders can only have a single criminal conviction, must be willing to wait for five years after all court requirements have been fulfilled and then must pay $350 to apply to have their one charge expunged. Those seeking expungement must apply in the county where they are convicted and a hearing must be held allowing prosecutors the opportunity to object.

Most of the felonies that are eligible for expungment are property crimes like theft and vandalism where the value of the stolen goods is less than $1,000. Very minor drug charges like simple possession can also be expunged. The majority of misdemeanors are eligible, with the exception of convictions for violent crimes like assault and domestic assault, a few kinds of weapons charges, child neglect, molestation and DUI convictions.

Read: “TN law allows some felons a second chance,” by Brian Haas, published at WBIR.com.

Earlier: "Expungement law goes into effect." by Stevie Phillips

Thursday, July 5, 2012

New Tennessee Law Prevents Discussion of “Gateway Sexual Activity”

by Lee Davis

A law signed by Governor Bill Haslam has introduced a new legal term: gateway sexual activity. The bill, HB 3621/SB 3310, bans teaching Tennessee students about “gateway sexual activity.” One of the problems with the bill is that it does not clearly define what exactly that activity is. Critics have complained that a broad reading of the law could mean that behavior such as kissing or holding hands may qualify. Thus, those opposed to the new bill have labeled it the “no holding hands bill.”

According to the bill, a gateway sexual activity means “sexual contact encouraging an individual to engage in a non-abstinent behavior.” Those found to have encouraged, advocated, urged or condoned such actions will be found in violation of Tennessee law.

The law was prompted by a classroom demonstration of a sex toy. Former State Sen.,David Fowler, president of the Family Action Council, helped draft the bill and said that “gateway sexual activity” means “sexual contact” such as any intentional touching of areas such as the “groin, inner thigh, buttock or breast of a human being.”

Under the new law, the curriculum of Tennessee schools is required to “exclusively and emphatically promote sexual risk avoidance through abstinence, regardless of a student's current or prior sexual experience.” Should outside instructors or organizations teach students about gateway sexual activity in class, they could be fined up to $500

The law says that abstinence-based programs will be implemented in counties where the pregnancy rate exceeds 19.5 pregnancies per 1,000 females between ages 11 and 18, which essentially means every county in the state. The Associated Press reported that in 2009 in Tennessee, there were 29.6 pregnancies per 1,000 girls, down from a high of 48.2 in 1998.

Opponents have argued that the bill will do a disservice to Tennessee young people by making them less informed about ways to prevent disease and avoid pregnancies. They say that ignorance, and a lack of information, is never the way to improve a situation. Barry Chase, president of Planned Parenthood Greater Memphis Region, told the AP that the bill will prevent educators in Tennessee “from providing the comprehensive education that students want and need and their parents expect.”

The law took effect July 1, 2012.

Read: “Tennessee Passes Law Against ‘Gateway Sexual Activity’, Critics Suspect Holding Hands Qualifies As Sex,” by Laura Matthews, published at IBTimes.com.

Wednesday, July 4, 2012

TN Supreme Court upholds four year suspension of Knox County attorney

by Lee Davis

The Tennessee Supreme Court ruled to uphold a four year suspension of former Knox County Law Director and attorney Bill Lockett. Mr. Lockett is pictured (left) with his attorney Tom Dillard.
While working for Kennerly, Montgomery & Finley in which he was a shareholder, Bill Lockett performed legal services for clients and failed to remit fees owed to the law firm. Members of the law firm confronted the attorney about the misappropriated legal fees shortly after the attorney resigned his position at the law firm to assume elected public office as Law Director for Knox County. As a result of his conduct, Lockett pleaded guilty to theft and to willful failure to file income tax returns. Here is the plea agreement. During a subsequent investigation, the Board of Professional Responsibility discovered that the attorney had accepted loans from the law firm’s clients while he was employed at the law firm. A hearing panel of the Board of Professional Responsibility found that Lockett should be suspended for four years. Here is his letter of resignation as Knox County Law Director.

Lockett appealed, and Knox County chancery court applied additional mitigating factors to reduce the suspension to two years. The Tennessee Supreme Court holds that the chancery court erred in modifying the judgment without finding that any of the circumstances in Tennessee Supreme Court Rule 9, section 1.3 applied.
The Tennesse Supreme Court also holds that the hearing panel erred in imputing a conflict of interest to Lockett with respect to the loan from the law firm’s client and in misapplying aggravating and mitigating factors. Despite these errors, the Supreme Court concludes that the length of suspension imposed by the hearing panel is consistent with the sanctions imposed on attorneys for similar conduct.
The Supreme Court therefore reverses the chancery court’s reduction of the suspension to two years and affirm the hearing panel’s imposition of a four-year suspension.

Tuesday, July 3, 2012

New Laws Broaden Scope of Sex Offender Registry



The Tennessee General Assembly passed four new laws that broaden the scope of the sex offender registry.  A brief explanation of each new law follows: 

House Bill 2853

The main difference between registering as a standard sex offender and registering as a violent sex offender is that a standard sex offender may petition to be removed from the registry ten (10) years after completion of probation, parole, or incarceration.  The violent sex offender registry, on the other hand, is for life. 

After passage of House Bill 2853, a person convicted of first-offense promotion of prostitution must register as a standard sex offender.  It’s only upon conviction of a subsequent offense that he or she must register as a violent sex offender.

House Bill 2939

After the passage of House Bill 2939, a person convicted of trafficking a person for a commercial sex act must register as a sex offender. 

This requirement is only a small part of this new law, however.  The main purpose of House Bill 2939 is to revise the definition of “trafficking a person for a commercial sex act.”  Specifically, a sex act can now be commercial if secured by causing or threatening physical harm, restraint, abuse of law or legal process, destruction of a passport or immigration/government document, blackmail, or facilitating access to a controlled substance.  

House Bill 3283

Previously, a judge could only require a person convicted of statutory rape to register as a sex offender if that person had a prior conviction for mitigated statutory rape, statutory rape, or aggravated statutory rape. 

After the passage of House Bill 3283, a judge may require a person convicted of statutory rape for the first time to register as a sex offender.  In determining whether to impose this requirement, the trial court must consider the totality of the facts and circumstances surrounding the offense, including the offense for which the person was actually charged and whether the conviction is the result of a plea agreement.

House Bill 3398

House Bill 3398 applies to registered sex offenders whose victims were minors and who are later convicted of violating the residential and work restrictions in the TN Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004. 

Under this new law, which amends section 39-13-530(a), any conveyance or personal property (not real property) is subject to judicial forfeiture if used during the commission of such a violation.  The proceeds of the judicial forfeiture will be allotted to the child abuse fund.  Under current law, 50% of that money funds child advocacy centers, 25% funds court appointed special advocates, and 25% funds child abuse prevention.
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