Metro Nashville police use GPS to track gang members

• GPS units to track gang members in Nashville. 

Historically, Global Positioning Systems have been used to monitor sex offenders in many counties in Tennessee.  In Wednesday's Tennessean Brian Haas reports: "Metro police have begun using GPS units typically reserved for the state's most dangerous sex offenders to track gang members. Police and the Tennessee Board of Probation and Parole announced a pilot program on [last week] that will track 10 convicted gang members to keep them out of "exclusion zones," areas their respective gangs have been known to frequent. Gang members found in those zones could face more jail time."

Tommy Overton, a longtime Nashville criminal defense attorney, said police branding someone a gang member is troubling. "You're making a determination that an individual is 'in a gang' without having a hearing," Overton said. "I just think it's possibly setting a bad precedent as people being singled out without due process, based on potential hearsay or just because somebody might have some sort of symbol on their arm."


I can see the advantages to GPS tracking.  First for the individual it is preferable to additional jail time; and, for the community, it allows law enforcement to know ahead of time when someone might be in an area that is often rife with gang activity.  But, the persistent question remains, is it a violation of an individual's civil rights to be prohibited from going to certain places (First Amendment protections).  Equally as problematic is the branding of a person as a gang member.  How is that determined?  How long does that stigma last? What is the standard that makes this determination. Are people who are associated with people who are labeled gang members included, because of their association, in this tracking system too?

Eleventh Circuit holds Rule 35 Order Did Not Reset Clock on Statute of Limitations for Motion to Vacate Sentence

•  ROBERT MARSHAL MURPHY v. UNITED STATES

In Murphy the district court held that its Rule 35(b) order did not reset the clock and dismissed the petitioner’s § 2255 motion. 

The issue before the Eleventh Circuit is whether a district court order reducing a defendant’s sentence pursuant to Federal Rule of Criminal Procedure 35(b) for the defendant’s substantial assistance is a new “judgment of conviction” that resets the one-year statute of limitations for filing a motion to vacate a conviction and sentence under 28 U.S.C. § 2255.

Previously, the Sixth  Circuit has held that a Rule 35(b) modification does not constitute a new judgment of conviction that restarts § 2255’s statute of limitations clock. See, Reichert v. United States, 101 F. App’x 13, 14 (6th Cir. 2004) “Under 18 U.S.C. § 3582(b), the defendant’s original judgment of conviction remains the final judgment even if his sentence has been modified or reduced as the result of the government filing a Rule 35 motion.”

The court reasoned that because Congress has declared that a Rule 35(b) reduction of a sentence does not affect the finality of a judgment of conviction, and because a Rule 35(b) reduction does not constitute a resentencing where an old sentence is invalidated and replaced with a new one, the statute of limitations need not be reset.

DUI and DUI Per Se Convictions for Single Incident Must Merge Says TN Supreme Court

• State v. Cooper

The Tennessee Supreme Court finds in Cooper that two judgments of conviction are not permissible for DUI and DUI per se (.08 or higher BAC) in a single indictment alleging a single act. 

Previously, the court notes in State v. Conway, 77 S.W.3d 213 (Tenn. Crim.App. 2001), the Court of Criminal Appeals held that double jeopardy precludes two separate judgments of conviction for DUI and DUI per se if they are based upon a single episode. 


While both counts of DUI can be acted upon by a jury without the requirement of an election, if the jury returns verdicts of guilty for both counts, the trial court should merge the two convictions into one judgment of conviction for DUI.


The court followed State v. Cribbs, 967 S.W.2d 773, 787-88 (Tenn. 1998) holding that, although a defendant cannot have separate judgments of conviction for both premeditated murder and felony murder for a single act of murder, both counts should be submitted to the jury and later merged into one judgment of conviction.


So, the reasoning goes, two judgments of conviction for DUI should be merged into a single conviction of DUI if they are based on a single episode or act.

Supreme Court Allows DNA to be Sought By Civil Rights Claim in Some Cases

• Skinner v. Switzer 

SCOTUS reports today that DNA may be sought under a Civil Rights Claim.
Lyle Denniston writes:

After seeming to close the door in 2009 to constitutional claims by convicted individuals that they were wrongly denied access to DNA evidence gathered at a crime scene,  the Supreme Court opened the door — but perhaps only slightly — on Monday.  The Court ruled that the federal courts may hear, under civil rights law, a claim by a state prison inmate that his state’s procedures for testing of biological evidence are flawed.  Although the Court majority stressed that it was not raising inmates’ hopes very high, the ruling potentially could have an impact in 48 states that do allow for some testing of DNA — evidence that sometimes provides a powerful demonstration of innocence, or of guilt.  (The federal government also allows access to DNA evidence for testing.)

Supreme Court Reverses Michigan Supreme Court and Allows Victim's Statement

• MICHIGAN v. BRYANT

Admission of police testimony at trial of a statement by a dying victim did not violate confrontation clause.

The Court held that the victim Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a “primary purpose . . . to enable police assistance to meet an ongoing emergency.”  Therefore, the admission of these statements at Bryant’s trial did not violate the Confrontation Clause.

The facts involve a crime where Michigan police were dispatched to a gas station parking lot and found Anthony Covington wounded and dieing. Covington told police that he had been shot by Bryant, the defendant, outside Bryant’s house. At trial, the officers testified about what Covington said. Bryant was found guilty of second-degree murder.  The Michigan Supreme Court reversed Bryant's conviction, holding that the Sixth Amendment’s Confrontation Clause rendered Covington’s statements inadmissible testimonial hearsay.

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. 

TN Supreme Court Repeals Rule 37 in its Entirety Effective March 2, 2011

• Tennessee Supreme Court Repeals Rule 37: Mandatory Mediation Program for Appeals in workers' compensation cases no longer.

The Tennessee Supreme Court repealed Rule 37 in its entirety, effective March 2, 2011.  For all pending appeals governed by Rule 37, but in which the mediation process was not completed as of the filing of March 2nd, the mediation process may be terminated, and the mediator and the parties are relieved of their responsibility to make any post-mediation filing previously required by Tenn. Sup. Ct. R. 37.

The repeal of Rule 37 does not relieve the parties of their liability for payment of the cost of services rendered by a mediator pursuant to the Rule; Rule 37shall be deemed to continue to apply to all cases in which such payment has not been made as of the filing of this order.

In 2001, the TN Supreme Court adopted Rule 37, establishing a mandatory mediation program for appeals in workers' compensation cases.

Not a criminal case, rule, or issue but a significant rule change that we though we should post.

Double Jeopardy Precludes Simultaneous Convictions for DUI and Vehicular Homicide from Single Incident

• STATE OF TENNESSEE v. DENNIS NEIL BIZZOCO

This is an appeal of a guilty plea in Hamilton County Criminal Court of defendant’s plea to DUI, vehicular homicide and vehicular assault.  The facts involve a two car head on accident near the roundabout on Signal Mountain Rd. resulting in two fatalities.  One victim being a passenger in the defendant’s car the other victim was the driver of the second vehicle.  Others in both vehicles including the defendant were also seriously injured.  The BAC for the defendant was .17.

The CCA held that double jeopardy prohibits separate convictions for DUI, vehicular homicide and vehicular assault based upon one act of driving under the influence that causes serious bodily injury or death and that the claim was not necessarily waived on direct appeal if the convictions were pursuant to a guilty plea. State v. Rhodes, 917 S.W.2d 708, 713 (Tenn. Crim. App. 1995); see also Menna v. New York, 423 U.S. 61, 62 (1975).

Tennessee appellate courts have previously held that double jeopardy precludes simultaneous convictions for DUI and vehicular homicide by intoxication. State v. Thomas W. Cothran, No. M2005-00559-CCA-R3-CD, 2005 WL 3199275, at *8 (Tenn. Crim. App. at Nashville, Nov. 29, 2005). Here the court found the appellant’s convictions for DUI, vehicular homicide by intoxication, and vehicular assault offend double jeopardy principles.

The CCA concludes that the trial court should have merged the DUI conviction into the convictions for vehicular homicide by intoxication and vehicular assault.  Accordingly, the court vacated  the defendant’s DUI conviction.  As a practical matter the defendant’s sentence remains the same as the DUI and vehicular homicide and vehicular assault convictions were all concurrent sentences as part of the plea agreement. 

Sixth Circuit in Case of First Impression Holds That Duplicate Digital Images May Be Counted For Sentencing Enhancement

• UNITED STATES OF AMERICA v. TIMOTHY MCNERNEY

Defendant McNerney contends that only unique digital images, not duplicate digital images should be counted in computing an enhancement under the Sentencing Guidelines. This issue is a question of first impression for the Sixth Circuit. There is almost no case law on this question in other circuits either.


The Guidelines provision at issue is § 2G2.2(b)(7), providing for a sentence enhancement  based on the number of images involved in the crime.

Congress enacted the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”), which “made several changes with respect to the child pornography guidelines and contained provisions by which Congress for the first and only time to date, directly amended the guidelines.”   

The PROTECT Act of 2003 instructed the Commission to amend § 2G2.2 to include the number-of images enhancements, which are currently codified at § 2G2.2(b)(7) and range from two levels to five levels.”   Thus, “[i]n 2003, pursuant to the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act (“PROTECT Act”), the Commission again revised the guidelines covering child pornography offenses,” and added the quantity of images enhancement mandated by the PROTECT Act.  History of the Child Pornography Guidelines.
The Supreme Court has stated that “Congress, of course, has the power to fix the sentence for a federal crime.”  Mistretta v. United States, 488 U.S. 361, 364 (1989); see also United States v. Evanouskas, 386 F. App’x 882, 884 (11th Cir. 2010).  Thus, “[n]othwithstanding the delegation of authority provided to the Commission in the [Sentencing Reform Act], Congress retained ultimate authority over the federal sentencing guidelines . . . . Congress [thus] retains the ability to influence federal sentencing policy by enacting directives to the Commission,” History of the Child Pornography Guidelines, supra, at 5-6, “which the Commission is obliged to implement.

In other cases duplicate hard copy images are counted separately for § 2G2.2(b)(7) purposes.  However, here McNerney argues that only unique digital images, not duplicate digital images, should be counted in determining a sentencing enhancement under this Guideline provision.

The court recognizes that § 2G2.2(b)(7) applies to possession of duplicate hard copy images, and that even in cases of simple possession of child pornography the court considers the quantity of images involved in the crime relevant to the measure of a defendant’s culpability. 

The Sixth Circuit holds here "that duplicate digital images, like duplicate hard copy images, should be counted separately for purposes of calculating a sentence enhancement pursuant to § 2G2.2(b)(7)."

Supreme Court Holds That Postsentencing Rehabilitation Relevant at Resentencing

PEPPER v. UNITED STATES

March 2, 2011

The Supreme Court held that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation, and such evidence may support a downward variance from the now-advisory Guidelines range.

This case involves a sentencing Odyssey by the defendant, Pepper, and no less that four trips to a sentencing court and the Eighth Circuit. At issue is the extent that a district court may take into consideration at resentencing a defendant’s postsentecing rehabilitation. Here, Pepper, had begun serving his supervised release, testified at his resentencing hearing that he was no longer a drug addict; that he was enrolled in community college and had achieved good grades; and that he was working part time. Pepper’s father testified that he and his son were no longer estranged, and Pepper’s probation officer testified that a 24-month sentence would be reasonable in light of Pepper’s substantial assistance, postsentencing rehabilitation, and demonstrated low recidivism risk.

JUSTICE SOTOMAYOR delivered the opinion of the Court.  This Court has long recognized that sentencing judges “exercise a wide discretion” in the types of evidence they may consider when imposing sentence and that “[h]ighly relevant—if not essential—to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Williams v. New York, 337 U. S. 241, 246–247 (1949).

JUSTICE THOMAS, dissents from the majority holding and offers the following: I would affirm the Court of Appeals and uphold Pepper’s sentence. As written, the Federal Sentencing Guidelines do not permit district courts to impose a sentence below the Guidelines range based on the defendant’s postsentencing rehabilitation. See United States Sentencing Commission, Guidelines Manual §5K2.19 (Nov. 2010) (USSG). Therefore, I respectfully dissent.

In this well reasoned opinion the court sets out the arguments concerning how a defendant's post sentencing rehabilitation may at resentencing be considered by the district court --negating, I believe, aspects of presumptive Guideline policy supremacy.