Tennessee Child Rape Suspect Granted New Trial

• STATE OF TENNESSEE v. EMOE ZAKIAYA MOSI BAKAR

The Tennessee Court of Criminal Appeals has awarded child rape suspect Emoe Zakiaya Mosi Bakari a third trial, ruling that his conviction of attempted rape of a child must be overturned because of various prejudicial errors during Bakari’s second trial.

Bakari was indicted by a Davidson County grand jury in 2008 and was accused of raping an ex-girlfriend’s daughter and nephew in 2002 and 2003 while he lived with the family. Bakari allegedly told police the allegations were not true and stemmed from his ex-girlfriend’s “jealousy.”

Bakari was first tried in August 2009, but the jury could not reach a verdict and the court declared a mistrial. Bakari was tried again in December 2009, convicted of attempted rape of a child and sentenced to 12 years in prison.

On appeal, Bakari argued that Davidson County Criminal Judge J. Randall Wyatt Jr. erred by (1) allowing a State witness to testify about “delayed disclosure” in child sexual abuse cases; (2) allowing a police detective to give testimony suggesting the appellant was uncooperative during the investigation; (3) allowing the State to introduce a photograph of the victims into evidence; and (4) allowing the prosecutor during rebuttal closing argument to give personal examples in an attempt to vouch for the victims’ credibility.

For example, prosecutor Kristen Menke was allowed “to give personal examples in an attempt to vouch for the victims’ credibility,” stating in part that the children should not be expected to perfectly recall “something that happened half of their lifetime ago,” when she couldn’t remember every sexual encounter she’d had with her own husband in the past year.

The Court ultimately agreed with the defense, ruling that the trial court erred by allowing a witness to testify about “delayed disclosure,” by allowing a police detective to give testimony suggesting the appellant was uncooperative during the investigation, and by allowing the prosecutor to give personal examples in an attempt to vouch for the victims’ credibility. The Court concluded that the cumulative effect of the errors warrants reversal of the appellant’s conviction and remanded the case to the trial court for a new trial.

The full opinion can be found here.

See Our Related Blog Posts:

Supreme Court Holds Officers Immune from Civil Suit on Invalid Search

Day-Care Shooting: Victim's Wife Struggles Through Testimony

Tennessee Court of Criminal Appeals: DUI Dismissed After Lost Video of Traffic Stop

In State v. Angela Merriman, the State appealed a trial court's dismissal of a DUI and two other counts against Angela Merriman. Merriman was charged with DUI, felony reckless endangerment and reckless driving. The Tennessee Court of Criminal Appeals agreed that dismissal of the charges was proper based on the state's losing the video of her arrest and roadside conversation with police.

The case began in early 2011 when the defendant was arrested and charged with DUI. The defendant filed a motion to dismiss the indictment due to the State’s failure to produce video evidence of the stop leading to her arrest.

The arresting officer stated that the video was simply lost.  Of particular concern here is that the video is the best evidence for both the prosecution and the defense.  It either inculpates guilt or exonerates Ms. Merriman.  For it to be lost is negligence by the police or state and the court recognized the importance of that issue.

The trial court held an evidentiary hearing and ultimately ruled that the State’s failure to preserve the video of the road side encounter of Merriman and the police violated her right to a fair trial. The court dismissed all three charges against her. The State appealed and argued that the trial court wrongly dismissed this DUI case. 

In a case of misplaced or missing evidence a court in Tennessee must weight three factors: 1) the degree of negligence involved; 2) the significance of the destroyed evidence; and 3) the sufficiency of the other evidence used at trial to support the conviction. If after weighing these factors the court believes that a trial without the lost evidence would be fundamentally unfair, then the trial court may dismiss the charges.

The Court of Criminal Appeals applied an “abuse of discretion standard” which means that before there can be reversal, the record must show that a judge applied an incorrect legal standard or reached a decision which is against logic or reason that caused an injustice to the state.

Here, the appeals court concluded that the trial court was correct in saying that without the video evidence of the traffic stop, the case would become a “he said, she said” situation. Dismissing the charges was appropriate to ensure fundamental fairness. 

The full case can be found here.

Earlier:

Criminal Law Review: New DUI law in effect.

Criminal Law Review: What are the DUI penalties in Tennessee?

Supreme Court Holds Officers Immune from Civil Suit on Invalid Search

• MESSERSCHMIDT ET AL. v. MILLENDER, EXECUTOR OF ESTATE OF MILLENDER, DECEASED, ET AL.

In an important and sure to be controversial decision yesterday, the Supreme Court held that police officers maintain their qualified immunity, even when a search is invalid, so long as their actions are not objectively unreasonable. (full opinion here)

This California case involved the search of a grandmother's home for proof of a weapon alleged to be possessed by Bowen, her grandson, a reputed gang member.  A federal district court found that the police search was unreasonable and the warrant invalid.  A civil suit was brought against the officers in federal court that sought money damages for the alleged constitutional violations.  In ending the matter, the Supreme Court found that the officers were and are protected from civil suit under the doctrine of qualified immunity.

Writing for a six-justice majority in Messerschmidt v. Millender, Chief Justice John Roberts Jr. rejected the suit against the officers, holding that such legal actions can be brought only if the police acted unreasonably. Chief Justice Roberts concluded that the police’s reliance on the warrant entitled them to qualified immunity because that reliance was not “objectively unreasonable.” The NYT reports.

The Court held: Qualified immunity “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ Where the alleged Fourth Amendment violation involves a search or pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner, or in “objective good faith. Nonetheless, that fact does not end the inquiry into objective reasonableness. The Court has recognized an exception allowing suit when “it is obvious that no reasonably competent officer would have concluded that a warrant should issue.”

The “shield of immunity” otherwise conferred by the warrant, will be lost, for example, where the warrant was “based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. The threshold for establishing this exception is high. “[I]n the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination” because “[i]t is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment.”

The Court further stated: This case does not fall within that narrow exception. It would not be entirely unreasonable for an officer to believe that there was probable cause to search for all firearms and firearm-related materials. Under the circumstances set forth in the warrant, an officer could reasonably conclude that there was a “fair probability” that the sawed-off shotgun was not the only firearm Bowen owned, and that Bowen’s sawed-off shotgun was illegal. Given Bowen’s possession of one illegal gun, his gang membership, willingness to use the gun to kill someone, and concern about the police, it would not be unreasonable for an officer to conclude that Bowen owned other illegal guns.

An officer also could reasonably believe that seizure of firearms was necessary to prevent further assaults on Kelly. California law allows a magistrate to issue a search warrant for items “in the possession of any person with the intent to use them as a means of committing a public offense,” and the warrant application submitted by the officers specific referenced this provision as a basis for the search.

Day-Care Shooting: Victim's Wife Struggles Through Testimony

As I continue to update you on the Day-care Shooting here in Atlanta, I'm finding that the case keeps getting more interesting. The trial has been going on since Monday, and there have been several witnesses called by the prosecution. The most intriguing witness, of course, has been the victim's wife, Andrea Sneiderman. Andrea was drilled over the course of two days by both the prosecution and the defense. What was interesting about her testimony was that she adamantly denied having an affair with the alleged shooter, Hemy Neuman. She continued this denial even after being presented with emails between Neuman and Andrea, and after prosecution brought up her phone records which indicated numerous phone calls between Neuman and Andrea in the days leading up to and immediately following the shooting.

It seems odd to many that both the prosecution and the defense would be so hard on Andrea. The reasoning for the defense is likely that the relationship with Andrea is what triggered Neuman's psychotic break which led him to shoot the victim. As mentioned in an earlier post, Neuman's counsel is presenting an insanity defense claiming that Neuman believed an angel "told" him to shoot the victim, Rusty Sneiderman. The defense is likely to introduce evidence of Neuman seeing demons before the shooting implying that the angel who told him to shoot Rusty was another of those demons. The State, however, seems to be using Andrea's testimony to make it seem like she knew more about the shooting than she has led everyone to believe. While Andrea has never been charged with involvement in the shooting, prosecutors sure are making it seem like she knew it was going to happen.

Some of the evidence presented were phone records indicating 3 phone calls between Neuman and Andrea on the night before the murder. Also, within an hour after the shooting, she called Neuman 6 times!

Some of what Andrea stated on the stand has been contradicted by other witnesses. For instance, the prosecution called a number of witnesses that include hotel workers, bar tenders, and waitresses that witnessed signs of an intimate relationship between Andrea and Neuman. According to the witnesses, they were regularly seen entering and leaving the same hotel room on business trips. This directly contradicts Andrea's testimony that there was never an intimate relationship between her and Neuman. Today, the prosecution called a friend of Andrea's and the victim's father to the stand. Each testified that Andrea called him shortly after she was informed that something had happened to her husband. Andrea stated on the stand that the people who called from the day-care did not tell her what had happened. All they told her was that something terrible had happened and that she needed to go the the hospital right away. She testified that she didn't know her husband had been shot until she arrived at the hospital. The two witnesses called today tell a different story. Each tell the story that a frantic Andrea called each of them while in route to the hospital. During each of these conversations, Andrea told him her husband had been shot. Thus, the jury was presented with two different stories: one, that Andrea didn't know about the shooting until she got to the hospital; and two, that she called two different people in route to the hospital and told each of them her husband had been shot.

Once Andrea's testimony ended, the Judge reminded her that she was still under subpoena. It is believed that she will likely be called to the stand again before the trial ends. What everyone, including myself, will be watching for is if and when Andrea finally elaborates on the extent of her relationship with Neuman. While it is unlikely she will ever be prosecuted for any potential involvement, she is certainly putting herself in a dark light.

The trial was cut short today because of a fire drill, but will resume tomorrow morning at 9:30 a.m. I'll keep you updated!

The Supreme Court: Inmate not in custody for Miranda purposes

In 1966, the Supreme Court in the case of Miranda v. Arizona attempted to create explicit warnings that would remind suspects of their constitutional rights before police interrogation -   specifically, the rights under the 5^th and 6^th amendments to remain silent and to have an attorney during a criminal proceeding.  These “Miranda rights” are now ubiquitous in popular culture, and anyone who has ever watched any of the myriad of crime/lawyer dramas has heard them recited.  What has not been as clear is exactly when the police are required to recite the warnings.  The uncertainty surrounding Miranda was on display most recently in the Supreme Court case Howes v. Fields.

            The trigger for the Miranda warnings is that there are required before a “custodial interrogation” can begin.  At first glance, it would seem clear that a prisoner in jail is in “custody”.  However, in a 6-3 decision, the Court held in Howes v. Fields, that jailhouse questioning does not automatically require Miranda warnings.  While already serving a jail sentence in a Michigan jail, the defendant in the case was removed from his cell and questioned by two armed sheriff’s deputies about another crime for 5 to 7 hours. The questioning began in the evening at some point between 7:00 and 9:00.  Testimony during the trial claimed that during the questioning he stated he no longer wanted to talk but never explicitly asked to return to his cell.  At no time was he read Miranda warnings. 

            Despite these facts, the Court rejected a categorical rule that requires Miranda warnings be given to a suspect who is currently serving a jail sentence.  Instead, they made clear that a determination of “custody” for Miranda purposes should include an inquiry into all of the circumstances.  In Howes, the majority made much of the fact that the defendant was told multiple times that he could leave and return to his cell whenever he wanted.  They also noted that he was offered food and water and was not restrained during the questioning. 

            The dissenting opinion argued that the inquiry should have focused on the overwhelming nature of the “police-dominated atmosphere”.  In many ways such an approach harkens back to the original Miranda decision where the Court sought to clearly limit overreaching by the police who at times utilized brutal interrogation tactics.  The dissent also is clearly concerned that the holding in the case could be read to limit the requirement of Miranda warnings for suspects in jail. 

This decision will cause further anxiety amongst court observers who already fear that the Court is moving towards a repeal of Miranda.  Whatever your opinion, it certainly is surprising to hear the Supreme Court rule that jail inmates are not in “custody”.

** The full opinion can be read here **

Notorious "Daycare Shooting" Case Goes to Trial in DeKalb County, Georgia

If there was ever a real-life case that was made for Law and Order, this would be it. In November 2010, a bearded man in a hoodie fired several shots at Russell Sneiderman on the lawn of a day-care in Dunwoody, an affluent suburb of Atlanta. Sneiderman had just dropped his two-year-old son off at the day-care facility. Mr. Hemy Neuman has been accused of the murder of Sneiderman. If convicted, he could receive a sentence of life without parole. His highly-publicized trial began this week in DeKalb County, Georgia. There have been more wacky and unbelievable twists in the facts of this case, many believe it has the makings to be the next Lifetime movie. As you might have imagined, the case has flooded news outlets Atlanta and even national news outlets.

As a law student here in Atlanta, I am surrounded by the constant coverage of the trial and thought it would be interesting to blog about its progress. Here is some necessary background information: Neuman is a wealthy, high-ranking manager at GE. In early 2010, he hired a woman named Andrea Sneiderman (the victim's wife). It is alleged that the two began an elicit affair. After romancing Andrea on several occasions, it has been said that Neuman believed he and Andrea were going to get married despite the fact that Andrea was married with children. It got to the point where Neuman believed Andrea's children were his children, and that the children were in danger when around their father, Russell.

This is where the facts get interesting: according to the State, Neuman attempted to murder Sneiderman outside of the Sneiderman home but did not succeed for fear of being spotted by Andrea or their neighbors. On the morning of the shooting, Neuman went to work at 5:36 a.m. and snuck out the back door (where there exists a convenient lack of cameras). The State argues this was an attempt to secure an alibi. He drove to the day-care in a silver minivan, fired several shots, and quickly got back into his car and tried to take advantage of the notorious rush hour traffic in Atlanta so as to blend in with the thousands of motorists on the road at that time. All of this, the State argues, is evidence that Neuman planned out the murder in meticulous detail. The State also claims that Neuman was so callous to the situation, he went back to work that day and even attended the funeral services for the victim.

The defense, however, tells a different story. Neuman has plead not guilty by reason of insanity, claiming he did not know the difference between right and wrong at the time of the shooting. To further bolster this claim, the defense's opening statement claimed Neuman believed an angel who looked like Olivia Newton John ordered him to shoot Sneiderman. That's right, Olivia Newton John told him to shoot the victim.

The second day of trial was today, and Andrea was the State's first witness. Once her testimony is finished, I will update with a summary of her testimony. I must admit, along with the rest of Atlanta, I'm captivated by this trial. I will continue to update you on its progress.

TN Court of Criminal Appeals Reverses Evidence Tampering Conviction

• State of Tennessee v. Ashlee N. Appleton

The Tennessee Court of Criminal Appeals decided the case of Ashlee Appleton last week. A jury convicted Appleton of tampering with evidence. The case centers around a murder that occurred on September 8, 2009. There are no accusations that Appleton had any involvement in the murder itself; however, Appleton was charged with tampering with evidence because she admitted to disposing of the gun that was used to commit the murder.

According to Appleton's written confession, given voluntarily after being advised of her Miranda rights, Appleton was at the house with a bunch of her friends. While she was standing in the yard of the house, she heard a pop that sounded like a firework from the other side of the house. She immediately got in her car with some of her friends and drove off. Amidst her journey back to Chattanooga, Jeresse Edwards, the accused shooter, informed Appleton that he had the gun in her car. Wanting to get the gun out of her car, Appelton said she threw the gun off a bridge around the Nickajack Dam.

The State relied on this evidence at trial. Once Appleton was convicted, she appealed to this Court arguing that the State did not satisfy their burden of proving beyond a reasonable doubt that she tampered with the evidence.

The Court of Appeals agreed. The standard used by the Court was "corpus delicti", which means the "body of the crime." In order to obtain a conviction, the State must prove the corpus delicti of tampering with evidence. Two elements are required to prove the corpus delicti: first, that a certain result has been produced, and, second, that the result was created through criminal agency. Because of this standard, the Court reasoned, when a Defendant confesses to a certain crime, some corroborating evidence is required to establish the corpus delicti of the offense charged. The problem with the State's case, the Court held, was that they did not produce enough corroborating evidence to prove that Appleton tampered with the evidence. Specifically, the defendant never admitted to knowing that a gun had been fired, or that anyone had been killed. Further, investigators never found the gun, and the State did not produce any evidence that the Defendant had knowledge that the gun had been used in a crime. Without this corroborating evidence, the Court held, the conviction must be reversed.

Tennessee Court of Appeals Reduces First Degree Murder Conviction

• STATE OF TENNESSEE v. DAVID HOOPER CLIMER, JR

Court of Appeals, Jackson, TN

The Tennessee Court of Criminal Appeals recently reduced the first-degree murder conviction of a Gibson County man accused of killing and dismembering his own mother. In this disturbing case, the state failed to include sufficient proof of premeditation to survive a challenge on appeal. However, the Appeals Court decided that there was sufficient evidence to support a lesser, second-degree murder conviction.

The case began in January 2008, when Climer led authorities to the remains of his mother, Dorris DeBerry. Climer had buried DeBerry in woods in northwest Madison County, Tennessee. Investigators believe DeBerry was killed in late November 2007 and that Climer buried her remains around December 5, 2007. The mother and son had lived together in a mobile home near Gibson, Tennessee prior to her death.

Climer admitted to authorities that he was responsible for dismembering his mother’s body, but was vehement that he had not killed her. He was sentenced to life in prison on the first-degree murder charge after a jury found him guilty and on the abuse of a corpse count. The abuse of a corpse charge was intended to run concurrently with his life sentence.

On appeal, Climer’s attorneys argued that the evidence was insufficient to support a premeditated murder conviction. Moreover, his attorney claimed that Climer was suffering from insanity when he decapitated his mother’s corpse. The insanity claim was rejected on appeal.


The Court noted, "that the parties’ opening and closing statements, in which the State would have argued its theory of the case to the jury, have not been included in the record on appeal. According to the State’s brief, the prosecution’s theory of the case was that the appellant killed his mother and dismembered her body and hid it to conceal his crime." Obviously, the Court struggled to find premeditation and when it could not find the proof included in the record, it was reluctant to infer it from the mere gruesomeness of the crime.  In a fairly unusual move, the court reversed the conviction for first degree murder absent sufficient proof of premeditation.

The Court reduced Climer’s conviction to second-degree murder and remanded the case to a trial court for resentencing. Climer’s conviction of abuse of a corpse was affirmed. His resentencing is set for early April in Humboldt County. Here is a link to the full opinion: STATE OF TENNESSEE v. DAVID HOOPER CLIMER, JR.

Read: “Climer sentence reduced: Court of Criminal Appeals overturned the first-degree murder conviction,” by Jordan Buie, published at JacksonSun.com.

Earlier:

Federal sentencing discretion under attack

GPS and Tracking Criminals in Tennessee

Governor Haslam Seeks to Stiffen Domestic Violence Penalties in Tennessee

We informed you in an earlier post about Governor Haslam's new public safety initiative. We briefly mentioned the provisions in the legislation about the new consequences for domestic violence offenders in Tennessee. Just recently, Bill Gibbons, commissioner of the Tennessee Department of Safety and Homeland Security, spoke out about the domestic violence legislation.

The "Repeat Domestic Violence Offender" bill increases the penalties for repeat domestic violence offenders. Specifically, a second offender would receive at least 45 days in jail and a fine ranging from $350-$3,500. A third offense and any subsequent offense would warrant at least 120 days in jail and a fine ranging from $1,100 - $5,000. The main purpose of the legislation is to address the increasing problem with domestic violence in Tennessee. In a recent study, it was discovered that Tennessee was ranked fifth in the nation for women murdered by men as a result of domestic violence. Gibbons hopes the legislation would deter further domestic violence incidents.

When asked about the legislation, Hamilton County Sheriff Jim Hammond voiced some concern over the cost of housing all the offenders as a result of the mandatory jail time. He also stated that the definition of domestic violence would need to be clarified in order for officers to be able to better determine when a domestic assault has actually occurred. In some instances, such as when there is no physical harm to the woman, it may be hard for officers to determine if a domestic assault occurred.

You can expect the legislation to be considered by the Legislature in the upcoming term. We'll keep you posted on its progress.

Lawyers convicted of scamming millions from fen-phen suit get unsympathetic hearing at 6th Circuit

Judge Ronnie Lee Gilman of the 6^th Circuit Court of Appeals told two attorneys that while their trial judge may have made an error, their scamming of millions from a 2001 fen-phen settlement just “looks wrong.”

The attorneys, 60-year-old William Gallion and 57-year-old Shirley Cunningham Jr., are currently serving prison time for taking more than $94.6 million out of a $200 million settlement. Judge Gilman criticized the attorneys for having taken the bulk of the settlement for themselves; initially distributing only $40 million to clients. Gilman said that lawyers getting 75% of the settlement while clients are left with 25% is fundamentally unfair. 

Gallion and Cunningham were convicted of scamming more than 400 clients out of millions they had won against American Home Products, maker of fen-phen. The drug was pulled off the shelves after users complained of heart problems related to the drug. Prosecutors say the attorneys illegally kept the bulk of the settlement, but later made more money available to their clients only after the federal government began a criminal investigation.

Cunningham’s attorney, Clifton Harviel, told the Court of Appeals judges that U.S. District Judge Danny C. Reeves made multiple errors during the trial, depriving the attorneys of a free and fair trial. Gallion’s attorney, Louis Sirkin, pointed out that Reeves allowed jurors to see 22 findings made by the Kentucky Supreme Court against Gallion and Cunningham, even though the high court never held a hearing. “It changed the whole dynamic,” Sirkin said. “It made these people look like bad guys.”

Judge Eric Clay of the 6^th Circuit wasn’t too impressed with the argument and said as much. “You go on and on, but we’re not hearing any legal authorities.” Sirkin replied: “We’re doing the best we can.” 

Prosecutors rehashed some of the evidence of the case, including how Gallion and Cunningham instructed employees not to tell clients the full details of the settlement and offer them less than they were initially allocated. Cunningham initially moved $153 million into the attorneys’ financial accounts, only to reverse court later and put $59 million back into the settlement after the federal government issued subpoenas as part of their criminal investigation.

Prosecutors pointed out that jurors only saw a few of the findings by the Kentucky Supreme Court and were later instructed to disregard what they had been shown, saying “The full list of allegations was never shown to the jury.”

The case has resulted in the downfall of many prominent legal careers. Beyond Gallion and Cunningham, formerly prominent attorneys in Lexington, another attorney, Melbourne Mills, was acquitted at trial but later disbarred for his role in the case. The Kentucky Supreme Court also disbarred former state judge Joseph P. Bamberger, who oversaw the settlement and was found to have profited from it, as well as David Helmers, a former legal associate of Gallion. The Kentucky Supreme Court is still deciding the fate of Stanley Chesley, a class-action specialist from Ohio. Chesley managed to avoid criminal prosecution, but faces multiple ethics charges that could result in disbarment.

Gallion and Cunningham are fighting battles on multiple fronts as they are also being sued by their former clients in civil court. A judge recently awarded the former clients $42 million, but the Kentucky Court of Appeals overturned the decision and the case is now pending before the Kentucky Supreme Court.

The 6^th Circuit Panel has taken the case under advisement and has not yet issued an opinion.  Reversal or either conviction is seen as highly unlikely. Gallion is not scheduled to be released from federal prison until 2029 and Cunningham's release date is not until 2025.

Read: “Federal appeals court hears Ky. diet drug pair,” by Brett Barrouquere, published at CBSNews.com.

Earlier:

Palin hacker loses before the 6th Circuit

Federal sentencing discretion under attack

Sixth Circuit vacates bank fraud conviction

In a surprising development, the 6^th Circuit Court of Appeals ordered that a Tennessee businessman’s conviction for bank fraud be vacated. The 6^th Circuit in the case, U.S. vs. Parkes, held that the jury convicted Timothy Parkes with insufficient evidence of guilt beyond a reasonable doubt. The 6^th Circuit also held that the lower court improperly excluded motive evidence critical to the defense. 

Mr. Parkes’ business made car floor mats and, in the course of conducting that business, borrowed money from a local bank. The business suffered enormous losses when a new manufacturing process failed, resulting in the mats melting in intense summer sun. The business eventually decided to begin importing its mats from China, and essentially acted as a distributor. This decision allowed the business to keep going, but it still owed more than $2 million to the bank. 

The bank also honored bounced checks of the business, essentially converting those amounts into new loans. Soon the loan size exceeded lending limits. To avoid FDIC scrutiny, the bank president falsified entries on its books to make it appear that the amount loaned had gone to several different shell companies. Prosecutors charged Mr. Parkes with participating in the scheme based on a vague fax from the business to the bank. However, there was no evidence that Mr. Parkes was the author of the fax, which was subject to a few alternate explanations. In addition, although the bank president pleaded guilty pursuant to a plea agreement requiring cooperation, the government never introduced his testimony to establish that Mr. Parkes intended that fraudulent bank entries be made.

What the jury did not hear was that the bank president had been embezzling from the bank for years. He may have made the false entries on his own to avoid triggering FDIC scrutiny of his own malfeasance. In addition, the jury did not hear how the bank president had concealed loans exceeding limits from other businesses. Critically, of course, this would have explained to the jury why the bank president might have done this for Mr. Parkes’ business without Mr. Parkes’ intending that it be done. 

The lower court excluded all of this, saying that telling the jury that the bank president was an embezzler would discredit any testimony that he might give. The 6^th Circuit held that it was relevant to Mr. Parkes’ defense in that it spoke to his motive, or lack thereof. The Court of Appeals also held that the relevance of an item has to be judged in relation to the specific issues present in the case. What may be unfairly prejudicial in one case could be pertinent in another. 

The 6^th Circuit, acting through Judges Ray Kethledge, Jane Branstetter Stranch, and District Judge James Gwin, ordered that Mr. Parkes’ conviction be vacated, and that an acquittal be entered.

Click here to view the full opinion.

See Our Related Blog Posts:

Palin hacker loses before the 6th Circuit

New Tennessee Legislation sought to combat gang problem

Georgia Supreme Court Holds Assisted Suicide Legislation Unconstitutional

The Georgia Supreme Court held yesterday that a law banning advertisements for assisted suicide services violates the constitutionally protected right to freedom of speech. The case stemmed from the arrest of members of the Final Exit Network in 2009. Four members of the group were charged with assisting in the suicide of a cancer patient. The members were arrested after they were approached by an undercover GBI investigator posing as someone in need of assisted suicide. According to the testimony of the investigator, as his suicide date was approaching, Ted Goodwin (former President of the group), "walked the agent through the steps and demonstrated how he would hold the agent's hands to stop him from removing the 'exit bag'." The exit bag is a devise used by the group to aid in the suicide.

Once the group members were arrested, they immediately challenged the law's constitutionality arguing that it violated their rights of freedom of speech. Specifically, they argued that the law prescribed punishment for those people involved in assisted suicide only if they spoke publicly about it. The GA Supreme Court agreed. They reasoned that the law does not prohibit the act of assisting in suicide, rather it only prohibits advertising or promoting assisted suicide. This is an obvious ban on a particular type of speech; the very thing the First Amendment is supposed to prevent. The Court stated in part,

"The State has failed to provide any explanation or evidence as to why a public advertisement or offer to assist in an otherwise legal activity is sufficiently problematic to justify an intrusion on protected speech rights."

The Court further suggested that if the State has an interest in the preservation of human life, they would propose legislation which prohibited the act of assisted suicide rather than prohibiting the public speech. Sources believe that the General Assembly is preparing to consider legislation that prohibits assisted suicide within the next term.

Life without the possibility of parole for a 14 year old?

The Supreme Court will take up the Eighth Amendment again this term, specifically to rule on whether the prohibition on “cruel and unusual punishment” allows the imposition of a sentence of life without the possibility of parole for a fourteen year old convicted of homicide.

            Similar issues have already been addressed by the Supreme Court in two cases, Roper v. Simmons and Graham v. Florida.  In Roper, the Court abolished the death penalty for juveniles and in Graham the Court held that a sentence of life without parole cannot be imposed on a juvenile for the conviction of a non-homicide offense.  Inherent in the decision of those cases was the idea that juveniles are both more apt to be rehabilitated and morally less culpable than adults.

            The Current Case (Miller v. Alabama, Jackson v. Hobbs) will probably revolve around similar arguments and is likely to be buttressed by emerging scientific evidence related to brain development.  Both of the Petitioner’s briefs cite this literature in making the argument that young adolescents are particularly prone to impulsive behavior and negative peer pressure.  The petitioners also cite many state and federal laws that recognize the immaturity and impulsivity of young adolescents. 

Tennessee has many such examples of the special legal status of adolescents.  A minor cannot apply for a marriage license without a parent’s permission.  T.C.A. §36-3-106.  A child under the age of 15 must wear a helmet when riding a bicycle. T.C.A. §55-52-105.  Children younger than 16 have a weekday curfew of 10:00 and a weekend curfew of 11:00.  T.C.A. §39-17-1702. 

The two states involved in these cases (Arkansas and Alabama) have mandatory life sentences without the possibility of parole for first degree murder.  The importance of this is that when a child is tried as an adult, their age is not taken into account either at trial or at sentencing.  In Tennessee, there are three options for punishment for a first degree murder conviction; death, life imprisonment, or life imprisonment without the possibility of parole.  The sentence is imposed at a sentencing hearing and an explicit factor considered is “the youth … of the defendant at the time of the crime.”  T.C.A. 39-13-204.

The imposition of mandatory sentences is problematic in the typical case but even more so when the convicted is a young adolescent.  If any determination calls out for individualized attention it is the sentencing of minor.  It will be interesting to see what the Supreme Court thinks, oral arguments are scheduled for March 20.

For more of the subject (including Amicus briefs):see Miller v. Alabama and Jackson v. Hobbs.  Also, to see a map illustrating state by state the number of juveniles are currently serving a life sentence without the possibility of parole, look here.

GPS and Tracking Criminals in Tennessee

GPS technology can be a wonderful thing, just ask anyone with a terrible sense of direction what a godsend it can be. While the technology has many helpful, civilian uses it can also be used for other, more intrusive purposes. As a case before the U.S. Supreme Court recently highlighted (which we discussed here), GPS can also be used by police to help crack down on crime. The Court’s ruling, that police have to get a proper search warrant before using GPS technology to track criminal suspects, should help limit some abuses of this the technology.  United States v. Jones, sets the current limit on warrantless GPS searches, but it does not resolve the issue completely.

The Jones case involved a nightclub owner in Washington, D.C., Antoine Jones, who had a GPS tracking device attached to his Jeep. As a result of the tracking, law enforcement officials were able to gather evidence which linked him to a house used to stash drugs and money. Jones’ movements were monitored for 28 days and he was convicted of conspiring to sell cocaine. A federal appeals court eventually overturned his drug conspiracy conviction because police did not have a warrant when they installed the GPS device on his vehicle. 

Similar tactics have been used by some Tennessee law enforcement agencies, most famously in the Middle Tennessee case of Robert Jason Burdick, the so-called “Wooded Rapist.” The Brentwood Police Department tracked him with a GPS device back in 2008 after identifying him as a suspect. Burdick was accused of attacking multiple women since 1994. Michael Lindenberger reports about the issue in the Tennessean.com.

While at first glance it could appear that Burdick’s conviction could be overturned as a result of the recent Supreme Court decision, the reality is that things aren’t so simple, and Jones does not mean that all warrantless GPS tracking is illegal. Though it is probable that police in Brentwood violated Burdick’s constitutional rights, the timing sequence indicates it would likely not be grounds to overturn his conviction. Police only put the GPS device on his vehicle days before he was ultimately arrested and none of the evidence in his criminal case was gleaned from the device.

Captain Tommy Walsh of the Brentwood Police Department stands by the tactics his officers used to catch Burdick, saying that he’s confident the case could withstand any appeals that result from the recent Supreme Court ruling. The tracking device was “not used prominently in the Burdick case,” Walsh said. “It was used to keep track of him while we waited for the DNA results.”

Attorney John Herbison, a member of Burdick’s defense team, said he did not believe the ruling would be grounds for an appeal. “In the cases where I represented Mr. Burdick, I don’t think the government attempted to use any information obtained through the use of GPS.” 

Even if it does not result in overturning Burdick’s conviction, the Jones case will prompt a review of law enforcement policies across the state to be sure that officers follow the directives of this emerging law. “This is a change, a significant change,” Walsh said of the ruling’s impact. “You’ll need to obtain a search warrant anytime you want to use a GPS device. It will slow down the process significantly.”

Not limited to a problem in Brentwood, Metropolitan Nashville Police Department spokesman Don Aaron confirmed the department had engaged in tracking and that the recent ruling would have an effect on their procedures in the future. “We have directed component commanders that, should any of their investigators need to use GPS tracking or other technology to gather evidence in the case, to consult with the local district attorney so any subpoena or warrant issues get resolved prior to the use of the technology.”

Law enforcement in the Tri-Cities, have said they do not make use of GPS tracking technology.  What is the practice in Chattanooga, Hamilton County and North Georgia? Warrantless GPS tracking has been used by area law enforcement in the past, but I suspect that practice will change or be challenged in court.

Read: “Nashville, other police must get warrant to use GPS on suspects,” by Michael Lindenberger, published at Tennessean.com.

Earlier:

GPS monitoring requires search warrant says Supreme Court

TN Supreme Court not to have its jurisdiction challenged by legislature

Palin hacker loses before the 6th Circuit

• UNITED STATES V. DAVID C. KERNEL

The U.S. Court of Appeals for the 6^th Circuit has upheld the felony conviction for David Kernell, a former University of Tennessee student who was found responsible for gaining unauthorized access to Sarah Palin’s private Yahoo email account. Kernell was convicted by a jury of a misdemeanor for accessing the email account and a felony for obstruction of a federal investigation.

The incident precipitated a high-profile jury trial in the Eastern District of Tennessee, with testimony from Palin and her reality TV star daughter, Bristol. While Kernell claimed the hacking was simply a college prank, the prosecution portrayed the hacking as a politically motivated attempt to derail the campaign of Palin and her presidential running mate John McCain.

Kernell was sentenced to one year and one day in prison, he was released in November 2011. Now Kernell is appealing part of his conviction. David Kernell and his lawyer, Wade Davies, appealed the felony conviction on the grounds that it was unconstitutional to prosecute an individual for destroying records when there was no formal investigation. While the court agreed that the relevant law was vague, the three-judge panel upheld the conviction on the grounds that Kernell feared that there would be an FBI investigation into the incident later. Kernell made the mistake of posting on an internet discussion board expressing precisely those fears.

The court ruled that David Kernell’s decision to erase his internet browsing history and hard drive further proved his obstructive intent. The opinion released by the Sixth Circuit showed states that Kernell was not aware of any formal FBI investigation into the incident but found Kernell’s awareness of a potential probe is sufficient to uphold a conviction on obstruction of justice.

Kernell gained access to Sarah Palin’s email account during the 2008 presidential campaign by repeatedly guessing the account’s password reset questions. He correctly answered the question regarding where Palin met her spouse. After digging through Palin’s email and taking several screenshots, he changed the account’s password and posted it on an Internet message board for others to peruse and then bragged about his accomplishment.

Davies, Kernell’s attorney, said the 6^th Circuit’s opinion confirms that Kernell had no knowledge of an official investigation at the time of the alleged obstruction. Davies said he plans to seek review by the full Sixth Circuit and perhaps the Supreme Court on the constitutionality of being convicted for obstructing justice without knowledge of a pending investigation.

Read: “Sarah Palin email hacker loses appeal,” by Terry Baynes, published at Reuters.com.

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