"No Refusal" law enforcement in effect on Hamilton County Roads For New Years

To combat drunk driving and the increased use of painkillers and other drugs while driving over the New Year's Day holiday, the Tennessee Highway Patrol and local law enforcement will be stepping up DUI and Drugged driving law enforcement on area roads. The "No Refusal" enforcement will be in effect today through New Year's day.

The most significant difference this year is that motorists who are impaired will not be able to refuse a blood test if an officer has probable cause to believe that the driver is impaired. Previously a motorist could refuse a blood or breath test. Under a law that went into effect earlier this year, a police officer who has probable cause may obtain a search warrant to secure the blood of a suspected impaired driver.

As the TN Department of Safety states, the “No Refusal” law, enacted this year by the General Assembly, allows law enforcement officials to seek search warrants for blood samples in cases involving suspected impaired drivers. Previously, a suspected impaired driver could refuse a blood alcohol content test and face charges of violating the implied consent law. This new law enables law enforcement to legally obtain blood samples by working with prosecutors and judges throughout the state during the warrant acquisition process.

This process will be in effect throughout Hamilton County. This link provides a list of where Tennessee Highway Patrol will be conducting DUI checkpoints today through New Year's Day.

The legislation was passed in part because of the persistent danger of drunk driving and also because of the dramatically increased rates that impaired people driving are impaired by painkillers and other drugs. These drugs do not show up in a standard breath test but can be detected though blood analysis. A forced blood draw supported by probable cause is a significant step to combat the problem.

CCA Judge Thomas Dissent on failure to advise state of defendant's acceptance of plea

In State v. Pye, Judge Kelly Thomas disagrees "with the majority’s conclusion that trial counsel’s actions regarding the Petitioner’s acceptance of the plea agreement did not amount to ineffective assistance of counsel. With respect to the Petitioner’s remaining issue, I concur with the majority’s decision."

As a general rule, “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Missouri v. Frye, --- U.S. ---, 132 S. Ct. 1399, 1408 (2012). By allowing a plea agreement offer “to expire without advising the defendant or allowing him to consider it,” defense counsel renders constitutionally ineffective assistance to the defendant. Id. The converse had also been held to be true, “that defense counsel does have a duty to communicate an accepted plea to the State in a timely manner, i.e., before the plea offer expires.” Randle v. State, 847 S.W.2d 576, 580 (Tex. Crim. App. 1993); see also United States v. Gonzalez-Vazquez, 219 F.3d 37, 41-42 (1st Cir. 2000) (finding that the defendant likely had a claim for ineffective assistance of counsel where his defense counsel failed to accept a plea offer as instructed, allowing the offer to lapse); cf. Nichols v. State, 683 S.E.2d 610, 613 (Ga. 2009) (concluding that defense counsel was not ineffective in failing to communicate the defendant’s decision to accept a plea agreement where defendant did not make decision until after the offer had lapsed). To hold otherwise would mean that defense counsel’s duty to communicate plea offers to the defendant “would have no point if the duty to communicate the acceptance of the plea offer to the State is not also in place.”

Nominating Commission Selects 3 Candidates for 6th District Circuit Court

Nominating Commission Selects 3 Candidates for 6th District Circuit Court.

The Judicial Nominating Commission met in Knoxville today to review the eight applicants for the Third Circuit Court vacancy in the 6th Judicial District, Knox County. The vacancy was created by the retirement of the Honorable Wheeler A. Rosenbalm effective January 1, 2013.

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

Kristi M. Davis
Partner
Hodges, Doughty & Carson
Knoxville

Mary Elizabeth Maddox
Partner
Frantz, McConnell & Seymour
Knoxville

Deborah C. Stevens
President/Managing Shareholder
Lewis, King, Krieg & Waldrop
Knoxville

Law Enforcement Agencies Push Cell Phone Providers to Store Text Messages

The major cell phone providers, including AT&T, Verizon and Sprint, may be required to keep information about their customers’ text messages for at least two years according to a proposal that various law enforcement agencies submitted to Congress.

A group of different police organizations asked legislators to require wireless companies to retain information, warning that a lack of federal requirements leaves a major hole in the ability of law enforcement agencies to launch proper investigations. The move was designed to include text message retention in an upcoming overhaul of the 1986 Electronic Communications Privacy Act, a privacy law meant to reflect the new realities of the modern technological era.

As text message usage has exploded recently so have the instances of their use in criminal investigations. They have been used as evidence in robberies, drug dealing and financial fraud cases. One great example occurred in 2009 when SkyTel turned over a whopping 626,638 text messages in Michigan.

Currently, the approaches used by the various companies are all over the place. Verizon and some others retain their text messages only for a brief period of time. Others, including T-Mobile do not store the messages at all. A Justice Department document obtained by the ACLU found that in 2010, AT&T, T-Mobile, and Sprint did not store the contents of text messages. Verizon did for up to five days, a change from its earlier no-logs-at-all position, and Virgin Mobile kept them for 90 days. The carriers generally kept data like the phone numbers associated with the text for 90 days to 18 months; AT&T was an outlier, keeping it for as long as seven years, according to the chart.

The groups making the request include the Major Cities Chiefs Police Association, the National District Attorneys’ Association and the National Sheriffs’ Association. It has not yet been made clear by the groups whether they want the telecommunications companies to store the content of the text messages or only to hold on to data including the numbers used to send and receive the messages. No matter which approach is employed it will be a massive responsibility for the cell phone providers with some 2 trillion text messages sent in the U.S. last year, coming out to nearly 6 billion per day.

The problem with the request for retaining the text messages is that there is ultimately only one reason for companies to do such a thing: to keep databases of information on their customers so police officers can fish for evidence at their leisure.

Source: “Cops to Congress: We need logs of Americans' text messages,” by Declan McCullagh, published at CNET.com.

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)

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 NYTimes.com.

Jury Convicts in Retrial of Vanessa Coleman

By Stevie Phillips

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. 

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 CommercialAppeal.com.

See Our Related Blog Posts:
Tennessee Supreme Court launches new website--JusticeForAllTN.com
Tennessee legislators celebrate Independence Day with 151 new laws set to take effect on July 1st

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 NYTimes.com.

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
Chancellor
10th Judicial District
Athens, Tennessee

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

Thomas Radcliffe Frierson
Chancellor
3rd Judicial District
Morristown, Tennessee

SUPREME COURT RULING CLARIFIES WHEN ATTORNEY CONTEMPT CHARGE PROPER

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 tncourts.gov.

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 HuffingtonPost.com.

See Our Related Blog Posts:
Baumgartner’s Attorneys Get Three Months to Prepare
The Baumgartner Debacle Continues

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 SFGate.com.
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Supreme Court hears case on warrantless wiretaps

The issue before the Supreme Court yesterday was not whether the law allowing warrantless wiretaps violated the Fourth Amendment, but rather whether the plaintiffs may try to make the case that it did.

Here is the transcript from yesterday's oral arguments in Clapper v. Amnesty International.

Read: Adam Liptak's article in the NYT Challege to Wiretaps is heard by Justices


By Lee Davis

Looking Through Your Smartphone: Electronic Pocket Litter and Police Searches

A recent article discussed a seemingly boring but ultimately important issue that may be raised before the Supreme Court in the coming session: pocket litter. “Pocket litter” is a phrase used in law enforcement circles to refer to items of miscellaneous information carried on a person. This comes into play when a person is arrested or otherwise detained by an officer and they are subject to a search.

When law enforcement officers arrest someone, they conduct a thorough search of the suspect and his or her immediate possessions. This is what is known as a “search incident to arrest.” Any and all items found during this search are deemed admissible in Court. During a typical search officers are trained to look for items that might provide useful evidence for the case or that might cause harm to themselves or others. Another use of such searches is to gather information that might provide a clue about other individuals involved in the alleged criminal activity.

Seemingly mundane items found in people’s pockets or purses can provide a significant amount of information. Slips of paper with quickly written messages, phone numbers, names, addresses business cards, etc. all make for great leads. Beyond these obvious examples, scraps of paper including receipts, bus passes or airplane tickets also provide valuable information to those seeking to identify a suspected criminal and any possible criminal associates.

One thing that has happened on this front given the technological changes seen recently is that the items that often make up such pocket litter have changed. Originally the term referred only to small scraps of paper generally containing only a relatively small amount of information. Today, the term has grown to include electronic devices such as smartphones, tablets, iPods, and even laptops from which huge amounts of information can be collected. These devices carry voicemails, call and text logs, photos, Internet browser history and even GPS information.

The question facing many appellate courts today is just how far such a search can go when high value electronic pocket litter is involved. Cellphones in particular present a puzzling gray area, as there have been conflicting rulings between various U.S. Circuit Courts. This conflict makes it more likely that the issue will end up before the Supreme Court at some point to help clarify the issue. Judges confronted with such facts often find themselves lost, comparing cellphones to diaries while trying to analogize to prior cases from decades ago that have little if any relevance to the challenges they face today. The Supreme Court should step in and shed light on the issue, hopefully catching the legal system up to changes in technology.

Read: “Pocket Litter: The Evidence That Criminals Carry,” by Scott Stewart, published at RightSideNews.com.

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Student Who Hacked Sarah Palin’s E-Mail Account Denied Hearing by U.S. Supreme Court

The U.S. Supreme Court recently announced that it would not hear a case concerning the man who hacked into the email account of Sarah Palin. The hacker, David Kernell, was convicted of a felony related to his hacking and eventual posting of the Republican candidate’s emails online.

Kernell served a year and a day in federal prison in Kentucky and is currently on probation. Kernell was studying at the University of Tennessee in 2008 when Sarah Palin was running for Vice President. Kernell’s father, Mike, has been a Tennessee Representative for Shelby County for the past 38 years.

The younger Kernell, a frequent user of the popular internet message board service known as 4chan, hacked into Palin’s Yahoo! e-mail account using the site’s password recovery feature. He then posted the password to her account, as well as several screenshots of her emails to the 4chan site.

Beyond just stealing the information, Kernell made the additional bad decision of deleting the evidence. He commented at one point that he was afraid the FBI would investigate his stunt and, in an attempt to cover things up, deleted files from his computer, removing his browser and defragmenting his hard drive. Turns out Kernell was right and the FBI did launch an investigation, eventually stumbling upon a 4chan post where he bragged about this technical savvy perpetrating the hack.

The law that ended up busting Kernell is contained in the Sarbanes-Oxley Act, a federal law passed in 2002 designed to certify the accuracy of financial records published by major corporations. A lesser-known provision of the law can be interpreted very broadly and has been used in the past to catch those who delete electronic data in an attempt to avoid being caught for a larger, typically more serious crime. Several previous instances involve those who are targets of investigations involving child pornography deciding to delete their collections as the police close in.

Kernell’s attorney claimed that his client’s case was different than the others because, unlike the child pornographers who deleted the incriminating material before police made their busts, Kernell did not know that there was an ongoing investigation. Kernell’s lawyer said that the provision of Sarbanes-Oxley that makes it illegal to anticipatorily obstruct justice is unconstitutionally vague and should not be used to convict someone for obstructing an investigation that had not yet begun.

A panel of the 6th Circuit said that Kernell admitted anticipating such an investigation and as a result, his conviction was justified. Now that the Supreme Court has declined to hear the case Kernell’s conviction will stand.

Read:“Sarah Palin’s Hacker Turned Down by Supreme Court,” by Michele Bowman, published at Lawyers.com.

Court of Criminal Appeals Reverses Child Rape Conviction Due to Ineffective Assistance of Counsel

A Tennessee defendant, Joel Ernest Blanton, was convicted of one count of rape of a child and two counts of aggravated sexual battery and sentenced to 24 years in prison. Blanton appealed the conviction, citing several instances of ineffective assistance of counsel, particularly, that his attorney was ineffective for failing to obtain visitor logs from the Tennessee Department of Correction that could have been used to impeach the primary witness against him. The Court of Criminal Appeals heard the case and in an unusual decision, ultimately agreed with Blanton, reversing and remanding his case for a new trial.

By way of background, a 12-year-old girl said that Blanton was a friend of her family whom she had known for years. After having to spend the night at his house one day she says she awoke to find Blanton fondling her until she told him to stop and said that “it hurt.” The defendant remained in bed with the girl until the morning when he told her to be quiet about the incident. The girl’s sisters also later admitted to their mother that they too had inappropriate contact with Blanton after Blanton had crawled into bed with them on a previous occasion that same weekend.

Blanton, who was 20 year old at the time of the incident, always vehemently denied touching the girls, though he did admit that they were in the same house on the night in question.

The Court of Criminal Appeals held that the case turned solely on the issue of the witnesses’ credibility. One of the victims testified that her mother was snowed in overnight while visiting their father in prison. On cross-examination, the girl said she was “certain” her mother was away. However, in the videotaped interview with DCS, she said that her mother was at home when the incidents occurred. The other two victims testified that their mother was away from home on the night in question. The mother also said that she was away at the time of the incident. The Court said that whether the mother was home during the alleged incidents was a pivotal fact used by the children and their mother in establishing the time frame relied upon by the State.

The Court of Criminal Appeals found that this case turned completely on the credibility of the State’s witnesses versus the defendant’s witnesses. The evidence of prison visitation records would have irrefutably impeached the mother and her daughter’s credibility regarding where the mother purported to be the night of the incident.

Because the conviction in this case rested solely on the credibility of witnesses, defendant’s counsel should have obtained the available impeachment evidence for use at trial. The Court could not clearly say that the attorney’s failure to do so did not affect the outcome. Given that, Blanton suffered prejudice as a result of his attorney’s failure to request the prison visitation logs.

To read the full opinion, click here.
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THP Set to Crack Down on Impaired Driving as Fatalities Increase

According to recent numbers appearing on the state’s TDOT “SmartWay” electronic message boards, the number of traffic fatalities in Tennessee is on the rise. The most recent numbers shown on the board indicate that Tennessee roads have seen 765 deaths so far this year. That compares to the 728 which had been seen at this point last year.

Law enforcement agencies across the state, including the Tennessee Highway Patrol, have said they will begin cracking down on drunk drivers as a way to hopefully reduce the number of deaths in the state. Arrests statistics indicate that crackdown is real given that between January 1 and the end of September, THP made 4,349 DUI arrests statewide. By way of comparison, last year that same timeframe saw only 3,487 DUI arrests.




The THP says that the plan is to continue to increase enforcement of impaired driving to bring down the state’s increasing fatality rate. It should be pointed out that this strategy is hardly a guarantee for success. After all, the number of DUI arrests across the state are up by nearly 25% though fatality rates have also risen.

Some have raised questions about the benefits of the state’s somewhat strict punishments associated with DUI convictions, especially those for first-time offenders. In Tennessee, first-time DUI offenders face a mandatory two-day jail term, over $2,500 in fines and fees, one-year suspension of the driver’s license, and, more troubling to critics, the misdemeanor can never be expunged from their record.

The lifetime provision of the state’s DUI law is especially tough for those who have never faced any trouble before or after. Though the state’s legislators recently passed a law allowing for the expungement of certain felonies, a DUI is not included--and it is a misdemeanor.

The long-term damage that such a lifetime record can cause is serious. Many people in Tennessee find themselves having trouble finding a job with a DUI conviction on their record as employers often conduct background checks before hiring. In some cases colleges can deny admission to those with a DUI and other professional organizations can deny certification thanks to the presence of a DUI, even one that took place many, many years ago.

Though no one recommends that those convicted of impaired driving get off lightly, punishing someone for the rest of their lives serves little purpose other than to mark them for life.

Read: “TN roadway fatality numbers continue to climb,” by Jennifer Meckles, published at WBIR.com.

TN Supreme Court to Review Case Involving Facebook Messages

By Jay Perry

             In a case that is emblematic of the potential problems with digital communication during jury trials, the Tennessee Supreme Court has granted review in State v. William Darelle Smith.  The case, which is an appeal from a conviction of First Degree Murder involves Facebook messages sent between a juror and the medical examiner during the trial. 

After the medical examiner had concluded her testimony, the juror sent a message stating that the juror recognized the witness and “thought you did a great job today on the witness stand”.  The message also stated the juror’s belief that “you really explained things so great!!”  The medical examiner responded that “I was thinking that was you” and recognizing the impropriety added “there is a risk of a mistrial if that gets out”. To the medical examiner’s credit, she notified the trial court of these communications.

Despite the trial court’s knowledge of this contact, it refused defense counsel’s request to question the juror further regarding the Facebook communications.  At the Court of Criminal Appeals, the appellate court rejected the defendant’s appeal finding the communication to be merely a “social communication” and no evidence that the juror was seeking extra or improper information about the case. 

It seems likely that the Supreme Court granted review in order to better outline how to control digital communication and information gathering during trials.  The most recent case law cited in the Court of Criminal Appeals decision is from 2000 and it seems that this issue deserves some new guidance to trial courts throughout the state.  Not only in terms of communication but now additional information is available to any juror with a simple Google search.  While there is only so much a trial court can do to control jurors and their access to information, it is important that such communications do not comprise the defendant’s right to a fair trial.   It seems appropriate that the trial court with knowledge of potentially inappropriate communications or other technology usage would at the least make further inquiries.

 

It will be interesting to see what happens with this case and whether the Court finds that what happened here mandates a new trial.  The Court of Criminal Appeals decision can be read here.

Tennessee Board of Probation and Parole Admits to Monitoring the Dead

Troubling news for many in the state came when Tennessee’s Board of Probation and Parole reported that dozens of dead offenders were alive and being monitored, according to a state comptroller report released earlier this month. The office claimed that at least 82 dead people on probation or parole were still alive. In a stunning understatement, the state’s comptroller attributed the mistake simply to “inadequate supervision.”

State Senator Brian Kelsey boiled the problem down quite well, saying, “With that many dead people supposedly being supervised, it makes you wonder how many live people were also not being supervised.”

One good example of the kind of problems revealed in the report is a criminal who died in October 2011 but who was reported to be bedridden at home by the Board of Probation and Parole. In another instance, an officer continued turning in documentation of visits with a parolee who, the auditors later learned, had been dead for 19 years.

The individual officers responsible for the shoddy work have not been identified and the Board has not said if anyone has been disciplined for the errors. The Comptroller did admit that the report raises concerns about how the office’s nearly $100 million budget is being spent. “If parole officers are supervising dead people, this is a waste of taxpayer dollars and makes us wonder about the supervision of parolees living in our communities.”

Supporters of the Board have pointed out the economic downturn has stretched the office thin. With increasing numbers of criminals added to the rolls, some officers have found themselves supervising about 100 offenders. Many say this number is simply too large to do a good job.

So far, the Board has said only that staff would be trained to better detect deceased offenders by the end of the year. We can only hope it doesn’t take that long to train officers to be able to detect if a parolee is dead.

The full report is available here.

Read: “Parolees monitored, but no longer alive,” by Bobby Allyn, published at Tennesseean.com.

Supreme Court May Hear Case Regarding DNA Database

The Supreme Court will likely hear a Maryland case this term regarding a law that allows law enforcement to take DNA samples of anyone arrested for a crime--before the individual has been convicted of a crime.
Many people may know or expect that individuals convicted of crimes are required to submit to DNA collection in Tennesee. Something most people are unaware of is that there is a Tennessee law that requires law enforcement to take a DNA sample once someone has been arrested for all violent felonies.

The collection law states: (1) When a person is arrested for the commission of a violent felony, the person shall have a biological specimen taken, for the purpose of DNA analysis to determine identification characteristics specific to the person as defined in subsection (a). After a determination by a magistrate or a grand jury that probable cause exists for the arrest, but prior to the person's release from custody, the arresting authority shall take the sample using a buccal swab collection kit for DNA testing. The biological specimen shall be collected by the arresting authority in accordance with the uniform procedures established by the Tennessee bureau of investigation, pursuant to § 38-6-113, and shall be forwarded by the arresting authority to the bureau, which shall maintain the sample as provided in § 38-6-113. The court or magistrate shall make the provision of a specimen a condition of the person's release on bond or recognizance if bond or recognizance is granted.

Tennessee law requires the Tennessee Bureau of Investigation to establish a DNA database. The database was established nationally by the Federal Bureau of Investigation to enable crime laboratories to exchange DNA profiles for unknown subjects and other offenders.

The law was championed as a tool to help law enforcement find and capture those who commit serious offenses in the state, but opponents of the law argue that it allows law enforcement to trample on the 4th Amendment rights of those who have been arrested but not yet convicted of anything. These opponents of the law argue that DNA samples represent an unreasonable search and seizure of private information when the person has been accused and not convicted of a serious offense.

DNA is a powerful tool that law enforcement can use to tie a person to a crime or crime scene when other evidence is lacking. Adding DNA to the state and national database is expected to help close multiple cases that have gone cold, often because the existing physical evidence, without DNA, was not enough to lead investigators to the perpetrator.

Prior to the implementation of the T.C.A. Section 40-35-321, police were required to obtain a warrant for DNA evidence before they were legally allowed to collect it. For those who are later acquitted or have their charges dismissed, the DNA information is supposed to be removed from the statewide database.

Read: “California and the Fourth Amendment,” published at NYTimes.com.
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TN Supreme Court Refuses to Overturn Man’s Felony Murder Conviction

The Tennessee Supreme Court recently denied an appeal by a man from Knoxville attempting to have his felony murder conviction overturned. The man, Travis Kinte Echols, had been sentenced to life in prison and appealed claiming that there had been a number of errors during his trial.

Echols claimed that the trial court failed to suppress a statement the defendant made to the police which he said was the product of an unlawful arrest. Echols appealed his case to the Tennessee Court of Criminal Appeals which found that the arrest lacked probable cause. Despite the unlawful arrest, the Court of Appeals said that the statement qualified as harmless error and thus did not serve as grounds for reversal.

Echols appealed again and the Supreme Court agreed to hear the case. In a unanimous decision, the justices rejected Echols’ argument that his conviction should be reversed because the police did not have probable cause when they arrested him back in 2005.

Echols was arrested and ultimately convicted of murdering Robert Steely in the parking lot of the Townview Towers apartment complex in East Knoxville. During his interrogation, Echols waived his right to remain silent and, in the course of a conversation with officers, admitted to shooting Steely, but said that he only did so in self-defense. Specifically, Echols admitted to shooting Steely and then disposing of the weapon. This claim of self-defense did not ring true to the jury and they found him guilty of felony murder during a robbery of Steely, ultimately sentencing him to life in prison.

The Supreme Court heard the case and disagreed with the Court of Criminal Appeals. The High Court ruled that the police were able to establish probable cause for the warrantless arrest of Echols and, given this probably cause, the statement Echols later made to investigators was admissible at trial. The Supreme Court did find that the trial court incorrectly limited cross-examination of two witnesses, but that these errors were harmless and did not affect the final result of the trial. As such, the judgment of the lower court convicting Echols of felony murder was upheld.

To read the full opinion, click here.

Sexting Teacher’s Aide Given New Sentencing Hearing by the TN Court of Criminal Appeals

A former Knox County Schools teacher’s aide who sent naked photos to a Gibbs High School student has been given a new sentencing hearing as the result of a recent ruling by the Tennessee Court of Criminal Appeals. Scot E. Vandergriff won the hearing to determine whether he should avoid conviction for sending “inappropriate texts and nude photos” to a male student at the school.

The Court said that the problem began in October of 2009 when Gibbs’ Principal Lynn Hill called the police after a parent complained that there were sexual texts on her son’s phone. The student’s teacher then alerted the principal who, in turn, confronted Vandergriff about the inappropriate text messages.

Vandergriff admitted to the principal that he had sent the photos. He then turned over his phone to authorities and gave consent to search the mobile device. The phone contained pictures of his anatomy and a subsequent investigation showed numerous text messages back and forth with the student, including nude photos.

Vandergriff decided to plead guilty as part of a plea deal to a charge of sexual exploitation of a minor and was sentenced to a two-year prison term. After pleading guilty he applied for judicial diversion, a program for first-time offenders that avoids jail and a criminal record if he were to abide the requirements of probation. The trial judge however, refused to allow Vandergriff to enter into the program. This decision was appealed and the Court of Criminal Appeals agreed that Vandergriff was entitled to another, more complete hearing.

The Court said that the judge, Knox County Criminal Court Judge Mary Beth Leibowitz, did not adequately explain her decision to deny Vandergriff diversion. The Court said that the record does not demonstrate that the lower court considered all the factors in ruling against the application. All Leibowitz said was that she was going to “err on the side of caution” and deny the diversion. This statement is not a sufficient explanation for why Vandergriff does not qualify.

To read the full opinion, click here.

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The Dangers of “Drugged” Driving

Though everyone knows about the danger and irresponsibility of getting behind a wheel after drinking, few people talk about the similar risks associated with drugged driving. That is changing in law enforcement and in many state legislatures across the country given the increasing occurrence of medication-related wrecks and fatalities on the nation’s roadways.

One terrifying example occurred a few weeks ago when a woman in Georgia was driving the wrong way outside Atlanta and was involved in a car crash that injured five others. The female driver, Beverly Lynne Wilkins, was taking a powerful sedative she had taken from her job as a nurse with an anesthesiology center.

Wilkins is said to have been under the influence of Propofol as she drove for three miles the wrong way down Ga. 316. Police investigators say they found an IV bag with a used needle in Wilkins’ car and believe she injected herself with several vials right before her wreck.

According to the National Institutes of Health, the problem of impaired driving is not limited to alcohol. Driving under the influence of prescription drugs raises many of the same concerns given that powerful medication can act on the brain to impair a person’s motor skills, reaction time and judgment. Drugged driving is a public health concern because it puts not only the driver at risk, but also passengers and others who share the road.

According to the National Highway Traffic Safety Administration’s (NHTSA) 2007 National Roadside Survey, more than 16% of weekend, nighttime drivers tested positive for illegal, prescription, or over-the-counter medications while more than 11% tested positive for illicit drugs. Another NHTSA study found that in 2009, among fatally injured drivers, 18% tested positive for at least one, a number that marked a 13% increase from 2005. These results indicate that not enough has been done to educate the public about the true danger of driving under the influence of medication.

Despite the information available regarding the danger of drugged driving, the nation’s laws have yet to reflect the severity of the crime. Though alcohol detection is relatively easy, the presence of illicit drugs is more difficult to measure and there is no agreed upon impairment limit. Many states, including Tennessee, don’t list specific requirements for what measurements of substances amount to intoxicated driving the way that 0.08% blood alcohol concentration is specified for alcohol-related arrests. Instead, Tenn. Code Ann. § 55-10-401(a) vaguely says that a person is guilty of driving under the influence if he or she drives or is in physical control of any motor driven vehicle while under the influence of any intoxicant, marijuana, or narcotic drug.

Read: “Driver in wrong-way Gwinnett crash to enter drug rehab,” by David Ibata, published at AJC.com.

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State v. Bise: New Standard of Appellate Review of Sentencing Decisions

By Stevie Phillips

In a unanimous Tennessee Supreme Court opinion handed down on September 26, Chief Justice Wade outlines the historical development of state and federal sentencing guidelines.

In short, he observes that the 2005 amendments to Tennessee's 1989 Sentencing Act were passed for the purpose of bringing our sentencing scheme in line with United States Supreme Court sentencing decisions, namely Apprendi and its progeny.  This is the first time since the passage of those amendments that the Tennessee Supreme Court has had an opportunity to address the effect of those Supreme Court decisions on Tennessee's standard of appellate review. 

In the view of the Court, the effect is that "de novo appellate review and the 'presumption of correctness' [has] ceased to be relevant.  Instead, sentences imposed by the trial court within the appropriate statutory range are to be reviewed under an abuse of discretion standard with a 'presumption of reasonableness.'"

You can read the full opinion here. 

Man on Death Row Gets New Trial in Kingsport Killing

The Tennessee Court of Criminal Appeals recently ruled that Steven James Rollins, a former death row inmate involved in the fatal stabbing of an elderly East Tennessee bait shop owner, ought to receive a new trial.

Rollins was convicted of first-degree murder and robbery in the killing of 81-year-old James T. Bussell inside Bussell’s Fisherman’s Paradise bait shop near Kingsport, TN in August of 2001. Rollins was originally sentenced to death, but the sentence was overturned in 2010 and a new sentencing hearing was ordered. The decision was then appealed to the Tennessee Court of Criminal Appeals which decided to reverse his conviction.

The Court of Criminal Appeals ruled that Rollins had received ineffective assistance of counsel and that the trial was also defective due to a “biased juror.” The two issues were related given that the Court found that Rollins’ attorney failed to properly question prospective jurors to help with weeding out those with biases.

The problematic juror was identified as “Juror 9.” In a 2008 affidavit, the juror admitted to knowing Bussell and having bought bait from him once a week before he was killed. The juror said that he had made up his mind about Rollins the moment they seated the jury. He said he could tell just by looking at him that he was guilty. The juror sealed the deal about his own bias by admitting that, in his opinion, “death is the only appropriate punishment” for someone who is convicted of murder.

The Court of Criminal Appeals said that Juror 9’s failure to admit his friendship with Bussell amounted to a presumption of bias. Given this bias, the Court found that Rollins was denied his right to a fair and impartial jury. The Court went on to highlight how Rollins’ attorney failed to ask jurors if they knew the victim, something the Court found to be “objectively unreasonable” and amounting to a “deficient performance.”

To read the full opinion, click here.

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Charges of Terrorism in Tennessee Often Fall Apart

A report out of The Tennessean has shown that the state is falling down when it comes to terrorism prosecutions, a charge that is apparently difficult to have stick. The paper found that only nine people in the state have been arrested on terrorism charges since the state’s laws went into effect in 2002. All but one of the defendants either had their charges dismissed or were convicted on lesser charges.

The law in Tennessee makes it a felony to commit any crime intended to “intimidate or coerce” civilians or the government or to disrupt government. The offense is punishable by up to 25 years in prison for a first offense.

The exact reason for why terrorism charges are so hard to make stick is difficult to pin down. It could be many things; mental illness on the part of the defendant will often excuse or reduce the charges. Prosecutors often end up taking into consideration the intent of the defendant making the threats as the words may have been said as a result of extreme emotional distress on their parts and not meant to actually cause harm.

Davidson County recently saw their first such terrorism–related arrest when Amal Abdullahi told a CEVA Logistics co-worker on September 1 that she was ready to die for Allah and that America was full of nonbelievers who should die. Police said she also told the co-worker that nobody pays any attention to her and “she should pick up a gun and shoot all these people.”

The incident was not reported to police until September 6, and CEVA could not be reached for comment. Abdullahi is currently free on $50,000 bond after family was able to post her bail. She is expected to be in court again on October 10 and has retained an attorney

Another terrorism-related arrest that fizzled happened in 2008, when a Middle Tennessee State University student was arrested after, police said, he set fire to his dorm and threatened large-scale devastation on the campus. Rather than admit to terrorism, he pleaded guilty to charges of setting fire to personal property and filing a false report.

On Halloween 2010, a local guy in Chattanooga was arrested on a terrorism charge after he called 911 to say there was an active shooter and several people had been wounded in the fictitious attack. Again, prosecutors dropped the terrorism charge and the man eventually pled guilty to a charge of making a false report.

Source: “TN terrorism charges are rarely upheld,” by Brian Haas, published at WBIR.com.

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Tennessee Stats concerning for Domestic Violence

October is observed as Domestic Violence Awareness Month nationwide and according to a recent study, Tennesseans need to be more aware. A new study by the Violence Policy Center found Tennessee ranks fifth in the country when it comes to the number of women being murdered by men in domestic violence situations.

Domestic violence charges can result from a number of instances including domestic abuse, spousal abuse, battery, emotional abuse, economic deprivation, child abuse, sexual assault, and stalking. There are many serious charges that can result from a misunderstanding or from an unfortunate escalation of emotions during an argument.

The penalties for a domestic violence charge in Tennessee can be life altering. Domestic assault is a Class A Misdemeanor, meaning it carries a maximum jail sentence is 11 months 29 days in jail and a maximum fine of $200. It is common for domestic abuse convictions to result in restraining orders, loss of child custody rights, criminal penalties, fines, and a tarnished reputation. Along with jail time, a conviction will also carry supervised probation. The probation will last for 11 months 29 days, although shorter probation periods are up to the discretion of the judge or prosecutor. As part of the conditions of probation, the defendant will be subject to regular and random drug screens and have to pay probation fees and court costs on schedule, which can be as much as $100 per month.

With a domestic assault conviction, the defendant has a prohibition on owning or possessing any firearms, including hunting rifles. If you are employed as a police officer, security guard or other profession where you must carry a firearm, a conviction can thus mean a loss of employment. It may prevent you from getting a job or an apartment.

The state has attempted to reduce the numbers of domestic violence incidents but experts say a common strategy employed elsewhere, merely increasing jail time for perpetrators, will be difficult to institute in Tennessee. Increased jail time supposedly helps because research shows that the perpetrator, once released, goes out and finds another victim and the cycle begins anew. The problem with increasing sentences here is that the state is already spending millions holding existing criminals in overcrowded prisons and cannot afford the millions more it would take to substantially increase domestic violence sentences.

Source: “Is Southern Culture Behind Domestic Violence Increase?,” published at NewsChannel5.com.

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Saying, “I have a gun” during a bank robbery not always enough to require sentencing enhancement

On September 23, 2010, James Wooten robbed a bank in Gordonsville, Tennessee. In the midst of the robbery Wooten calmly walked up to the teller and told him that he was going to rob the bank. At first, the teller doubted Wooten given his tone, the teller felt like Wooten was just joking around. However, the teller decided to hand over $4,130 in cash later after Wooten said that he had a gun and again demanded money.

The teller said that the bank had told all its employees to hand over money during a robbery without asking further questions. Thus, once Wooten’s demand appeared to be real, the teller opened the register and gave Wooten the money he requested. The teller stated that Wooten had his hands on the counter and was not reaching for anything and that it did not seem as if Wooten intended to harm anyone in the bank. The teller specifically said that he never felt threatened by Wooten during the robbery, despite his statement concerning the gun.

Wooten was arrested and pled guilty in federal court to one count of bank robbery. Because he had a gun at the time of the robbery and made a threat about the gun, he was given a sentencing enhancement for making a death threat. Wooten disputes this enhancement; saying that despite his use of the phrase, “I have a gun,” his demeanor was so nonthreatening as to eliminate fear from a reasonable teller’s mind that his or her life was actually in danger.

The Sixth Circuit noted that the threat of death need not be explicit for a sentencing enhancement to occur. Although the statement, “I have a gun,” lacks a certain force more commonly found in such threats, there have been cases that have determined that the phrase can be sufficient on its own to warrant the threat-of-death enhancement. The Sixth Circuit said that it has clearly established that the statement “I have a gun” can constitute a threat. However, it has not been established as a per se rule that the statement “I have a gun” always constitutes a threat of death.

The Court said that where potentially mitigating factors are present, the court must go a step further and evaluate the overall circumstances of the robbery to determine whether a reasonable teller in that particular scenario would have perceived a threat of death. So, while the statement “I have a gun” certainly can be enough to support the threat-of-death enhancement, the statement is not necessarily enough, especially when circumstances exist that undermine the threatening nature of the statement.

The Court says that facts such as the robber’s statements, body language and overall demeanor, tone of voice, and mode of communication are all relevant to the analysis. The Court also stated that it believes that a teller’s perceptions of an incident also play a role in the objective evaluation of whether a reasonable teller in that specific teller’s shoes would have experienced a fear of death.

Applying the rules to this case, the Court found that, despite Wooten’s use of the phrase, “I have a gun,” the circumstances of the robbery did not warrant application of the threat-of-death enhancement. The teller’s description of Wooten’s nonaggressive demeanor suggests that Wooten would not have appeared threatening to a reasonable observer. Wooten approached the tellers calmly, placed both hands in a visible position on the counter, and softly said that he was engaged in a robbery. Wooten’s demeanor was described as “nonthreatening,” and Wooten was not engaged in any conduct that would suggest intent to harm anyone. Finally, the Court pointed out that the teller himself explained that he handed over the money because he had been trained to do so, not because of any perceived danger.

In this case, the Court agreed with Wooten’s argument and decided to reverse the district court’s sentencing enhancement, vacate his sentence and remand the case for resentencing.

To read the full opinion, click: U.S. v. James Wooten

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The Tennessee Supreme Court on Passing Worthless Checks

By Stevie Phillips

Justice Janice M. Holder, in a unanimous decision of the Tennessee Supreme Court, held yesterday that the misdemeanor "crime of passing worthless checks involves an element of dishonesty or false statement" and can therefore be used to impeach a defendant's credibility so long as its probative value outweighs its prejudicial effect.

Under Tennessee Rule of Evidence 609(a)(2), a witness may be impeached with a prior conviction if the crime involves dishonesty or false statement.   Here, the defendant, Wanda F. Russell, argued that an honest mistake can result in a conviction for passing a worthless check.

In determining whether a crime qualifies, a court assesses the elements of the offense, not the circumstances surrounding its commission. Here, the Court applied the rules of statutory construction to the statute setting out the crime of passing worthless checks, Tennessee Code Annotated section 39-14-121(a)(1). The Court concluded that the statute only criminalizes dishonest conduct, not honest mistakes.

Read the full opinion here.

- Posted using BlogPress from my iPad

Evidence at issue in 2006 Sierra Carpenter child death case

MONDAY, OCTOBER 1, 2012 AT 12:06PM
by Todd South

In this 2011 file photo, Traci Carpenter looks up at her defense attorney, Lee Davis.
(Photo by Alex Washburn /Chattanooga Times Free Press.)

Six years ago emergency workers carried a gasping 18-month-old girl covered in bruises into an ambulance, trying to save her life.

Two days later, Sierra Carpenter died.

Police believe that only two people could have caused the bleeding in her brain and in her eyes, the deep bruising in the recesses of her ears — the fatal injuries that led doctors to take her off life support.

One of those people — her mother's boyfriend — was acquitted by a jury. And there is some doubt whether the other —Sierra's mother — ever will face trial.

At least four trial dates for Traci Carpenter have come and gone. She faces more than two decades in prison if convicted of aggravated child neglect, the charge lodged against her.

But if Tennessee's highest court agrees with Carpenter's lawyer, prosecutors may lack enough evidence to win a conviction and could be forced to drop the case.

Last week the Tennessee Court of Criminal Appeals denied her attorney's request that it review the charges against her before she stands trial.

Now attorney Lee Davis says he will ask the Tennessee Supreme Court for a rare pretrial ruling on what he sees as changes in admissible evidence in child neglect cases.

Davis argues that a state Supreme Court decision in a similar case earlier this year now prevents prosecutors from showing a jury any evidence of prior abuse.

Sierra's death tore the Carpenter family apart, putting relatives on the witness stand before television cameras to talk about the woman's mothering. More than one said Carpenter -- whether or not she hurt Sierra -- did put the child at risk for abuse.

Carpenter has remarried and had another child, a girl now almost 9 months old.

Davis contends that prosecutors want to blame Sierra's death on Carpenter because they failed to win a conviction against her then-boyfriend, Brian Rutherford.

Prosecutors maintained all along that even if Rutherford had been convicted, Carpenter knew that Sierra was being hurt and did nothing to stop it.

•••

Carpenter's case shows some of the difficulties prosecutors face in proving guilt when children die of abuse, and the challenge defense attorneys face in keeping the focus on the law and not letting emotion take over.

Testimony in Rutherford's trial centered on the autopsy finding that bleeding in Sierra's brain could have been weeks or months old.

In hearings leading up to Carpenter's potential trial, prosecutors have worked to demonstrate a "pattern of abuse" they believe the mother should have stopped.

Davis has fought to keep much of that evidence from the jury, writing that it would prejudice them against his client when the indictment deals only with the few days leading up to Sierra's death.

Carpenter's mother, Sue Petty, testified that she cared for the toddler for two days before dropping her off with Carpenter and Rutherford. She said the girl then had a single bruise on her forehead.

•••

Two days after Sierra's April 27, 2006, death, investigators named Rutherford and Carpenter as "persons of interest." They asked Carpenter to take a polygraph test over Sierra's abuse. She passed.

Nearly a year later the pair were charged: Rutherford with murder and a sentence of life with the possibility of parole, Carpenter with neglect and up to 25 years in prison.

When Rutherford went to trial in November 2008, his defense team heaped all the blame on Carpenter.

"It's important to punish the right person, isn't it?" defense attorney Myrlene Marsa asked the jury during opening statements. "The issue is about who did it."

The defense called witnesses who testified that the teen mother mistreated the toddler, jerking her around, thumping her on the head. Other witnesses said they couldn't believe Carpenter would hurt her child, but they blamed her for leaving the girl in Rutherford's care.

When Carpenter testified, she admitted she would drive Sierra around in a car while high on methamphetamine and marijuana.

She told the jury she had done many things she wasn't proud of but had never harmed her daughter.

At the end of a two-week trial, the jury took less than an hour to acquit Rutherford.

Then prosecutors began preparing for Carpenter's trial.

Davis objected and filed documents saying so. He had expected that since his client had cooperated, testified against Rutherford for the prosecution and opened herself up for such deep public scrutiny, that the charge against her could be dismissed.

It wasn't.

•••

In the years since, Davis has battled to obtain what he considers a fair trial for his client.

He has sought to limit photographs, recorded interviews and certain experts' testimony from reaching a potential jury.

Hamilton County Criminal Court Judge Don Poole has considered each motion, balancing the efforts by Davis and prosecutor Neal Pinkston, who has taken over the effort to convict Carpenter.

University of Tennessee law professor Dwight Aarons, who specializes in criminal law, said the work in the Carpenter case is typical of an aggressive defense attorney and an equally committed prosecutor attempting to build their best cases through evidence.

The riskiest outcomes occur when a case gets before a jury, he said.

"Unless you have somebody at the scene who says this is what happened, then you're just left to infer from [evidence]," Aarons said. "Those are just guesses; they're educated guesses, but just guesses at what happened."

That's what makes pretrial work so crucial.

"Most trials are won or lost before the first juror is sworn in," Aarons said. "To some extent, to have a trial is a failure."

(reprinted from Chattanooga Times-Free Press, Oct.1, 2012)