New Tennessee Legislation sought to combat gang problem

Local, state, and federal officials held a press conference in Chattanooga yesterday to announce the formation of the Chattanooga Area Gang Enforcement Team ("CAGE").  This team was created to address the recent outbreak in gang-related crime in the city and embraces both outreach and suppression efforts.  Among the options announced was the introduction of new laws including one that would create a criminal offense for being a gang member.  This bill (HB 2869) has just been introduced in the legislature and reads as follows:


(a)  It shall be unlawful for any person to actively participate in any criminal street gang, as defined by § 40-35-121(a) with knowledge that its members engage in or have engaged in a pattern of criminal gang activity as defined in § 40-35-121(a), and to willfully promote, further, or assist in any felonious criminal conduct by members of that gang.  

(b)  A violation of this section is a Class E Felony.  Any sentence imposed 
shall be served consecutively to the sentence for any other offense that is based 
in whole or in part on the same factual allegations, unless the sentencing judge 
or magistrate specifically orders the sentences for the offenses arising out of the 
same facts to be served concurrently.

It will be interesting if this law is passed to see how it is utilized by the police.  Will it be a stand along charge, or will it be added in addition to other crimes?  The provision requiring consecutive sentencing is important because it would have the effect of extending the total sentence if there were other crimes arising out of the same circumstance.  All pending bills in the Tennessee legislature can be tracked here.

 

TN Supreme Court not to have its jurisdiction challenged by legislature

Senator Mae Beavers

Senator Beavers withdraws bill. A bill introduced by Senator Mae Beavers, SB2348, that would have striped the Tennessee Courts of judicial review and instead given the legislature the final say on what is constitutional has been dropped.

The sponsor of the proposal to strip state courts of the power to block laws enacted by the Tennessee General Assembly quietly withdrew her bill yesterday after receiving heavy criticism from all sides of the political spectrum.   


Earlier: Tennessee legislature to claim it is the Supreme Court?

GPS monitoring requires search warrant says Supreme Court

• United States v. Jones

In a unanimous show of strength, the Supreme Court ruled 9-0 yesterday in US v. Jones  that police cannot surreptitiously track an individual for a month in their private car without a search warrant.  The court announced that police monitoring in the modern age, by GPS tracking, amounts to a search and the month long surveillance in this case required a warrant to be valid.  Without this necessary warrant, the police violated the Fourth Amendment protections afforded by the Constitution.


David Savage reports in the Los Angeles Times, "Even the justices who most often side with prosecutors rejected the government's view that Americans driving on public streets have waived their right to privacy and can be tracked and monitored at will. At least five justices appeared inclined, in the future, to go considerably beyond the physical intrusion involved in putting a GPS device on a car and rule that almost any long-term monitoring with a technological device could violate an individual's right to privacy."


"I would guess every U.S. attorney's office in the country will be having a meeting to sort out what this means for their ongoing investigations," said Lior Strahilevitz, a University of Chicago expert on privacy and technology.


Robert Barnes of the Washington Post reports, "The court rejected the government’s view that long-term surveillance of a suspect by GPS tracking is no different than traditional, low-tech forms of monitoring. But its decision was nuanced and incremental, leaving open the larger questions of how government may use the information generated by modern technology for surveillance purposes."


Jennifer Geiger of the Chicago Tribune writes, "At the center of the case is suspected narcotics trafficker and D.C. nightclub owner Antoine Jones, who was busted for possession of cocaine and firearms after police secretly tracked him by attaching a GPS unit to his car. The police got a warrant authorizing them to install the GPS unit on the suspect's Jeep Grand Cherokee. However, problems arose because of how the warrant was used. Police had 10 days to mount the device on the car, but didn't do it until day 11. The monitoring was also supposed to be done while in D.C., but the suspect was followed across state lines to Maryland."


The GPS monitoring occurred  without a warrant and outside the jurisdiction.


What the Court did not decide is whether a less intrusive measure, say surveillance without a warrant for a few days would be a violation of the law.  That will be the stuff of future cases as courts will wrestle with the boundary of privacy in this age of constant camera surveillance--bank machines, toll roads, parking lots, wireless cell towers, phone GPS systems, and even to cars that track their own whereabouts round the clock.  This mountain of information that many people think to be private is often available to easy government access and the spot where privacy concerns are tipped is still an open question.

Do you know your city code?

A glance through the Chattanooga city code calls to mind a quote attributed to Winston Churchill: “[i]f you have ten thousand regulations you destroy all respect for the law”.  Section 25 of our city’s code is entitled “Offenses and Miscellaneous Provisions” and contains many offenses which are silly and duplicative with state law.   

Among the highlights are the following:

Sec. 25-9 – A ban on “fortunetelling” which includes “any person who tells fortunes by means of occult  or psychic powers, facilities or forces, clairvoyance, psychology, psychometry, spirits, mediumship,  seership, prophecy, astrology, palmistry, necromancy, phrenology, talismans, cards, graphology or other craft or mystery, science or character or magic of any kind or character.”  It is not clear what source the horoscope column in our paper relies on (likely not necromancy), but surely it is in violation.

Sec. 25-12 – A declaration that “It shall be unlawful for any person to play baseball or any similar game on property adjacent to or near any improved premises without having obtained the written consent of the persons owning such improved premises.”  It sounds like a cranky neighbor had the ear of a city councilman.  No wonder baseball is declining in popularity; makes you wonder -  if baseball is outlawed will only outlaws play baseball? 

Sec. 25-18 – Makes unlawful the spitting “upon any sidewalk or in any public conveyance or in any school, church or other building where the public assemble in the city.”  One questions how bad the spitting problem had become before this ordinance was enacted?

Sec. 25-21 – A provision making it “unlawful for any person to throw or fling any stone or other missile against any house or other building in the city, or against or through the window of any building, public or private.”  The section does not define “missile,” but they are probably not talking about this.

Sec. 25-66 – A typical noise ordinance making unlawful any “unreasonably loud, disturbing or unnecessary noise”.  Notably, there are certain enumerated acts that specifically violate the noise ordinance.  Among these are “hooting” on the streets or sidewalks, and the keeping of dogs which “bark at an average rate of ten (10) or more barks per minute over a period of five (5) minutes which can be heard from a distance of one hundred (100) feet or more”.

Now some of the things mentioned are reasonably objectionable, but there is a legitimate concern over the cost of so many laws or regulations.  In addition to this city code (which contains 38 Chapters), there is a myriad of state and federal laws and regulations.  Not only does the sheer amount make it hard to know what is exactly “the law” but carries the danger of a “regulatory fatigue”.  The situation is akin to trying to play a board game with a 500 page rulebook, at some point you just play and make it up as you go.    

Tennessee legislature to claim it is the Supreme Court?

Justice Mae Beavers?

A bill introduced by Senator Mae Beavers, SB2348, would strip the Tennessee Courts of judicial review and make the legislature the arbiter of all that is constitutional. When a law student sent me an email with the statutory language, I had to ask if this was a joke. But no, I was informed, a state senator from Mt. Juliet has taken it upon herself to decide that the legislature is the body to be trusted with all of our civil liberties and that the Supreme Court will have no authority to review any law it passes. Don't believe me?


Here is the proposed law: "The supreme court shall have no jurisdiction to determine the constitutionality of a statute which has been properly enacted by the general assembly and become law."   As introduced, the bill provides that the supreme court, circuit, criminal and chancery courts have no jurisdiction to determine the constitutionality of a statute properly enacted by the general assembly. - Amends TCA Title 4, Chapter 5 and Title 16.


In theory, if this bill were to be passed, then only the legislature can decide what is constitutional.  And, if a citizen felt aggrieved by a law then the solution would be an appeal to where, the legislature? Under this arrangement no citizen of Tennessee could seek redress from the Courts and the Supreme Court of Tennessee would have no authority to strike down an unconstitutional law. Of course this is ridiculous, but it is an actual bill that some senators want passed.


Back to the email. If a law student who sent  me that email had proposed such a scheme in a law school exam, the student would flunk for failing to recognize that this principal has been settled law in the United states since 1803 when the Supreme Court decided Marbury v. Madison, which if you have forgotten your elementary school education, set out that judicial review is the law of the land.  


Since at least 1836 judicial review has been recognized law in Tennessee: "It is clear that the General Assembly cannot rightfully exercise a judicial power." That was written in the Tennessee Supreme Court opinion of Jones' Heirs v. Perry (1836). Further in 1938 the Supreme Court in State v. Shumate wrote that the power resides in the Court to declare an act of the Legislature unconstitutional. The principal is simple.  The basis of power for the Court to declare an act of the Legislature invalid is "the provence and duty of the judicial department to say what the law is." Where the Constitution and the statue conflict, the Court must determine which law controls.


That an elected state senator proposes such an idea demonstrates that she either does not understand basic constitutional principals or that she really believes that the Tennessee legislature should be the Supreme Court. Fortunately for us the Legislature is not the TN Supreme Court and hopefully it never will be.

Supreme Court Says Death Row Inmate Gets Second Chance After Attorneys’ Abandonment

• Maples v. Thomas, Alabama DOC

The U.S. Supreme Court decided Mapels v. Thomas in a 7-2 vote on Wednesday that an Alabama death row prisoner should be allowed to appeal despite having missed a deadline after his attorneys dropped his case without notifying him. The two attorneys at the major New York firm of Sullivan and Cromwell failed to alert Alabama judicial authorities so that when the court clerk sent papers to the attorneys the firm’s mailroom returned them unopened, marked “Return to Sender.”

Writing for the majority, Justice Ruth Bader Ginsburg said, “Abandoned by counsel, (Cory) Maples was left unrepresented at a critical time … and he lacked any clue of any need to protect himself.” Ginsburg continued, “In these circumstances, no just system would lay the default (arising from a missed deadline) at Maples’ death-cell door.”

The decision meant a reversal of an earlier decision by the US Court of Appeals for the 11^th Circuit. Maples had been convicted and sentenced to death for the 1995 killings of two companions, Stacy Terry and Barry Robinson, after a wild night of heavy drinking. At the trial in 1997, Maples pleaded not guilty and was represented by two court-appointed Alabama attorneys. It was noted that only one of those trial lawyers had earlier served on a capital case and that their compensation was limited.

Only Justices Antonin Scalia and Clarence Thomas dissented. They instead believed that a state is permitted to enforce its deadlines and court procedures related to death penalty appeals even when lawyers are at fault.

The case garnered much attention as the firm at the center is so prominent. The NAACP sided with Maples in the case and twenty states joined Alabama in arguing against the claim for ineffective assistance of counsel.

Ginsburg emphasized Maple’ unusual situation. After the Sullivan and Cromwell lawyers volunteered to represent Maples, pro bono, and had filed a petition challenging his murder conviction, they left their law firm for jobs elsewhere. Ginsburg stressed that when they left the firm in 2002, Jaasi Munanka and Clara Ingen-Housz did not tell Maples or seek permission from an Alabama trial court to withdraw. After their departure no other attorneys at Sullivan and Cromwell took over the case. A few months after the departure a trial court denied Maples’ petition and the clerk of court sent notice to the lawyers. The firm returned the notices unopened. Maples was then blocked from appealing the denial because he missed the deadline as the clock had started running the day the denial was issued.

Ginsburg made clear that usually attorney “negligence or oversight” would not result in a new hearing. What happened in this case was characterized as something altogether different, “Maples alleges something graver than attorney oversight. He contends that his attorneys abandoned him.”

The decision in Maples v. Thomas means that Maples will now be allowed to present arguments on his Sixth Amendment claim of ineffective assistance of counsel.

Read: “Alabama Inmate Must Be Given Second Chance After Mailroom Mix-Up, Justices Rule,” by Adam Liptak, 

Earlier:

Supreme Court Throws Out Murder Conviction After Prosecutors Fail to Turn Over Damaging Confession 

Is Chief Justice Roberts A First Amendment Defender? One New Study Says Maybe Not 

Justice For All - New website to assist needy Tennesseeans

The cost of legal services is sometimes prohibitively high and as a result many citizens lack access to needed legal assistance.  Furthermore, it is often lack of information regarding the legal system that keeps many people in the dark regarding their rights under the law.  

In furthering their quest to increase access to legal services, the Tennessee Supreme Court's Access to Justice Commission has recently published a website, JusticeforallTN.  The site provides both general information as well as a link to an existing website OnlineTNJustice that allows for direct communication with lawyers who provide their time pro bono.

This website is an excellent resource for information regarding many legal issues and provides a great starting place for those with a need for legal help.  It also provides a one stop platform for attorneys who are seeking to provide pro bono assistance to the community.

Georgia man seeks gun rights in court in Tennessee

• DAVID SCOTT BLACKWELL v. BILL HASLAM, GOVERNOR

In this Davidson County Chancery Court case David Blackwell sought to clear up whether he could possess a gun in Tennessee. Mr. Blackwell, who was convicted of three felony drug offenses in Georgia, was granted a full pardon by the State of Georgia that expressly restored his right to possess a firearm, now resides in Tennessee and desires to purchase and possess firearms. Tennessee law makes it a Class E felony offense for a person, who has been “convicted of a felony involving the use or attempted use of force, violence or a deadly weapon” or who has been “convicted of a felony drug offense,” to possess a firearm in Tennessee.

Blackwell filed this action seeking a declaration that he would not be in violation of Tennessee law by purchasing or possessing a firearm in Tennessee.

The State of Tennessee initially got the case dismissed on grounds that Chancery Court could not grant the relief sought--that is to allow Mr. Blackwell to have his gun rights recognized in Tennessee.  Blackwell appealed to the Court of Appeals.

The Court of Appeals decided that Blackwell's complaint for declaratory relief does state facts sufficient to demonstrate the existence of an actual controversy concerning the matter at issue; therefore, the chancery court erred by granting the State’s motion to dismiss. Judge Clement indicates in his opinion that Chancery Court should have granted Blackwell a declaratory judgment in his favor as the facts and law require.  In short, the Court has given strong guidance to Chancery Court to allow Blackwell's gun rights in Tennessee to be recognized.

Supreme Court Throws Out Murder Conviction After Prosecutors Fail to Turn Over Damaging Confession

In Smith v. Cain, the Supreme Court just issued a ruling holding that one New Orleans man’s murder conviction must be reversed because prosecutors failed to mention that the sole eyewitness to the crime had earlier admitted to not being able to identify the killer.

The decision was overwhelming, 8-1, with Justice Clarence Thomas serving as the only dissenter. The case highlights a problem of prosecutors’ hiding potentially damaging evidence. The Court also called attention to the guarantee that the government must turn over evidence that may be favorable to a defendant. Such a guarantee arose in the 1963 Supreme Court decision Brady v. Maryland.

Chief Justice Roberts, writing for the majority, stated that, “We have observed that evidence impeaching an eyewitness may not be material if the state’s other evidence is strong enough to sustain confidence in the verdict.” He continued by adding, “That is not the case here.”

The case concerns Juan Smith who was charged with killing five people during a 1995 armed robbery of a New Orleans home. A single eyewitness, Larry Boatner, identified Smith as being involved in the killings. Boatner testified at trial that he had been “face to face with Smith during the initial moments of the robbery.”

Later, during a jury trial, Smith was convicted of five counts of murder. On appeal, Smith obtained files that showed that Boatner had told police on the night of the killings that he “could not ID anyone because (he) couldn't see faces.” Prosecutors failed to turn over the potentially devastating detective’s report to Smith before trial.

While weighing whether the information ought to have been revealed Roberts discussed Brady v. Maryland, which requires prosecutors to turn over evidence that would be favorable to the defendant and “material” to his guilt or punishment.

The Court held that Boatner’s comments met that burden. “Boatner's testimony was the only evidence linking Smith to the crime. And Boatner’s undisclosed statements directly contradict his testimony.”

In his lengthy dissent Thomas said that Boatner’s earlier statement confessing doubt about the killer’s identity did not undermine Boatner’s ultimate confidence in his identification of Smith at trial. “Much of the record evidence confirms that, from the night of the murders through trial, Boatner consistently described - with one understandable exception - the first perpetrator through the door, that Boatner's description matched Smith.” Smith would likely take issue with the idea that the “one understandable exception” was not, according to Justice Thomas, a very big deal.

For the full opinion, please click here.

Read: “Supreme Court Tosses Murder Conviction for Brady Violation by New Orleans DA,” by Debra Cassens Weiss, published at ABAJournal.com.

Earlier:

Is Chief Justice Roberts A First Amendment Defender? One New Study Says Maybe Not

Chief Justice Roberts Steps into Recusal Fight

Is Chief Justice Roberts A First Amendment Defender? One New Study Says Maybe Not

One would assume that the Supreme Court led by Chief Justice John Roberts would be an institution especially pro-free speech. However, according to an article in the New York Times, a recent study challenges that conclusion. By analyzing an array of data spanning nearly six decades (1953-2011), the study shows that the Court is hearing fewer and fewer First Amendment cases and, when it does hear them, is ruling in favor of free speech at an lower rate than any of the Courts led by three prior chief justices. 

The timing of the study is opportune as the Court prepares to hear two major First Amendment cases. Today the court will hear arguments in FCC v. Fox Television Stations, a case which asks whether the First Amendment allows the government to regulate obscene language on national television. In February, the Court will hear United States v. Alvarez, and decide whether the government can make it a crime to lie about receiving military decorations. Neither case appears to be a certain victory for free speech advocates. 

The recent study acknowledges that the Roberts Court has on occasion ruled in favor of free speech. These cases have tended to be media spectacles and received significant attention following the ruling. The attention given to the cases has skewed the perception of Roberts’ friendliness for free speech. 

Monica Youn, an attorney with the Brennan Center for Justice at NYU Law said that, “These free speech slam-dunks, with their colorful facts, were among the Roberts court’s cases that have attracted the most press attention, but they are hardly indicative of a conservative majority with an expansive view of First Amendment freedoms.” 

Others have come to Roberts’ defense. Floyd Abrams, an esteemed First Amendment attorney said he was not swayed by the recent findings. Abrams argued that statistics don’t tell much of a story, it’s the Court’s decision to protect unpopular and distasteful speech that really shows whether Roberts will protect the First Amendment and, according to Abrams, “no prior Supreme Court has been as protective as this.”

Abrams cites one of the most controversial decisions of Roberts’ tenure as proof. “Two words - Citizens United.” Abrams said that decision, granting corporations and unions the First Amendment right to spend freely to support candidates in elections, is proof of Roberts’ defense of the free speech even in the face of withering criticism.

In Roberts’ first six years on the bench the Court issued 29 decisions regarding free speech, of those cases it ruled in favor of free speech 10 times, roughly 35% of the time. The three prior Courts heard some 506 cases and ruled for free speech a total of 54% of the time. Such a difference has raised many an eyebrow. 

Some have been quick to identify the cause of the difference. The Court led by Chief Justice Earl Warren, 1953-1969, was famously liberal and, by itself ruled in favor of free speech 69% of the time. Chief Justice Burger, 1969-1986, only ruled in favor of free speech 46% of the time and Chief Justice Rehnquist, 1986-2005, sided with free speech 49% of the time. Though Roberts’ 35% still clocks in as the lowest, the difference between his Court and that of Burger and Rehnquist is not statistically significant.

Read: “Study Challenges Supreme Court’s Image as Defender of Free Speech,” by Adam Liptak, published at NYTimes.com.

Earlier:

Supreme Court Must Answer “The Broccoli Question” 

Health Care Battle Brings Calls for Recusal