Sixth Circuit Hears Ineffective Assistance of Counsel Appeal From Lillelid Murderer

The recently decided Sixth Circuit case of Howell v. Hodge began in 1997 when Karen Howell and five of her friends set off from Pikeville, Kentucky to New Orleans. At the time, Howell was only 17-years-old, another of the group was 14 and the rest were over 18. The group of friends brought two guns with them on their journey and discussed forcibly trading in their broken down car for a newer one along the way.

While stopped in Greeneville, Tennessee, an opportunity to steal a better car presented itself. A Jehovah’s Witness, Vidar Lillelid, came up to Howell and her friends and began to share his religious views. One of Howell’s compatriots brandished a gun and walked Lillelid back to his family’s van despite Mr. Lillelid’s offer of his wallet and his keys. The group ended up ordering Lillelid to pull over on a secluded stretch of road, at which point, all four members of the family were shot multiple times. The only person to survive was the Lillelid’s two-year-old son who lost an eye in the attack.

Howell and her group attempted to flee to Mexico but were caught in Arizona after failing to cross the border. Howell and her friends still had several of the Lillelid’s possessions when they were apprehended.

Prosecutors in Tennessee then filed charges and initially sought the death penalty. In exchange for dropping the death penalty charges, the group pled guilty to the crime, with Howell and the other minor pleading guilty in adult court. Howell was eventually sentenced to three life sentences to be served consecutively without the possibility of parole.

Howell then filed a petition for relief, claiming that she received ineffective assistance of counsel. She said that her attorney at the time should have insisted that she take a psychological evaluation to determine if her mental state required that she be committed to a psychiatric institution, which would have prevented her being transferred to adult court. The case made its way to the Tennessee Supreme Court, which found that although the attorney had indeed been deficient, Howell was not able to show prejudice.

The Sixth Circuit agreed to hear the case and laid out that for an ineffective assistance of counsel claim to succeed under the Sixth and Fourteenth Amendments, a claimant must show that deficient performance resulted in prejudice. The Sixth Circuit agreed with lower courts that there were reasonable grounds to believe Howell was not “committable” at the time of her trial. Thus, her attorney’s lack of action to get her a psychological evaluation does not prove prejudice. Moreover, the Sixth Circuit says that for a claimant to make such an ineffective assistance claim, he or she must establish that, but for their counsel’s ineffectiveness, he or she would not have pled guilty and would instead have gone to trial. Howell never says that, just that she might have been committed to an institution for a brief period of time for evaluation.

The Sixth Circuit ultimately affirmed the conviction and the ruling of the Tennessee Supreme Court. The Court found that the test for ineffective assistance of counsel is a demanding one that requires claimants prove that the likelihood of a different result is substantial, not just conceivable.

To read the full opinion, click here.

See Our Related Blog Posts:
Sixth Circuit Hears Criminal Trade Secrets Case Concerning Giant Tires

By Lee Davis

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.

Supreme Court Strikes Down Mandatory Life Sentences For Juveniles

By Jay Perry

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 8^th 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.

Supreme Court Examines the Possibility of Limitations on Sentences for Juveniles

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

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

Here are some of the possible solutions the Court could reach:

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

Post Conviction denied in Juvenile life without parole murder conviction

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

Full case State v. Decker

New Law in Tennessee on Harassment

• Senate Bill 487

The TN Legislature recently passed a law, sure to effect many Chattanooga residents, which expands the Class A misdemeanor of Harassment to include posts on Social Networking sites. The law provides that harassment includes:

"Any display of an image in a manner in which there is a reasonable expectation that it will be viewed by the victim by telephone, in writing or by electronic communication, without legitimate purpose and:



1) With malicious intent to frighten, intimidate or cause emotional distress; or
2) In a manner the Defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and
3) As a result of the communication, the person is frightened, intimidated or emotionally distressed."
A violation of this law will carry a sentence of up to 30 hours of community service or a fine of $100.00.

The intention behind the law is to prevent cyberbullying among children and teenagers. The law focuses much of its attention on social networking sites such as Facebook and Twitter where users are able to post pictures and comments on other users' walls with little restrictions.

In an effort to clarify the scope of the rule, Senator Bill Ketron states "The images must be targeted at a specific person. If you randomly stumble upon something online that was offensive, this law would not apply."

Many critics of the law feel that it is overly broad, creating a "slippery slope" when it comes to deciding what constitutes harassment and what doesn't. On its face it is hard to determine if the law applies only to minors or if it applies to adults as well. Many also feel that this new legislation will open a "pandora's box" with respect to control over the type of material that can be posted on the Internet.

TN cyberbullying law draws ridicule

The law is set to go into effect on July 1, 2011.

Sunday NYT Features a Story on Juvenile Crime and Age for Prosecution as Adults

• States Prosecute Fewer Teenagers in Adult Courts

In Sunday's New York Times Mosi Secret writes an in depth front page article about juvenile crime examining issues concerning the age threshold for prosecuting juveniles as adults: 16, 17 or 18 depending on the state.  The article looks at costs and national legislative trends for these prosecutions. 

Thirty-seven states, the District of Columbia and the federal government have already set the age of adult criminal responsibility at 18. Eleven states have set the age at 17. New York and North Carolina are the only two states that set the age at 16. 

In 2008, the year of the most recent national estimate from the Justice Department, law enforcement agencies made about 2.1 million arrests of teenagers younger than 18, and most of those cases involved 16- and 17-year-olds. The data also showed a drastic decrease in arrest levels since the mid-1990s: there were an estimated 2.9 million such arrests in 1996, when the population of those under 18 was smaller than it is today. (nyt link)

The age for adult responsibility in Tennessee is 18 but transfers to adult court for serious violent crime and persistent offenders can come at an earlier age.  It is unusual to see transfers for juveniles offenders younger than 15 years of age to adult court.