Tennessee Supreme Court says Lawyers must advise Clients of Mandatory Supervision in Sex Cases

Jason Calvert was represented by two lawyers after an indictment in Davidson County on numerous sex offenses. He and his lawyers met at least 6 times. They provided him discovery. They went over the materials with him. After these meetings, he entered a written plea agreement to several offenses, two of which were aggravated sexual battery. Calvert received a sentence of 10 years suspended after he served 9 months in jail. During the plea colloquoy, the Judge believed the sentence was illegal because aggravated sexual battery was non-probatable. After consulting with his lawyers, Calvert changed his plea from two counts of aggravated sexual battery to two counts of rape. Neither his attorney nor the Court advised him that rape carries with it mandatory lifetime supervision.


In revieweing Calvert's post-conviction petition, the Tennessee Supreme Court held that a lawyers failure to advise their clients of such an important and adverse consequence such as mandatory lifetime supervision when the client is considering a plea consitututes ineffective assistance of counsel under the 6th Amendment. The Supreme Court further held that because the Defendant testified that he thought it would have made a difference in his decision, that such deficiency constitutes prejudice.


Practice Note: Slow down attorneys. The Court has made it clear that even if your client is considering a plea that carries lifetime supervision, that you must advise of the possible supervision requirements. In Calvert, This issue got past the Judge and both Defense Attorneys who did not mention it. The one person it did not get past was the District Attorney who checked the box on the Judgment form. However, the DA never announced that condition in the plea colloquoy transcript. Had he announced it on the record, how much time could have been saved avoiding a post-conviction hearing and appeal?

• JASON CALVERT v. STATE OF TENNESSEE

1969 Murder Conviction Reversed By Court of Criminal Appeals

Now this is a wild one. The original robbery and murder occurred at a Memphis liquor store in 1966 and a conviction against Ms. Freshwater was returned in 1969. The robbery and murder were committed by Attorney Glen Nash and his partner in crime Margo Freshwater. After her conviction, Margot Freshwater escaped from prison in 1970 and she was on the run until 2002.  Now, 45 years after the crime, her case has been overturned on a Brady (withholding favorable evidence by the State) violation and sent back to Shelby County for a new trial.

• MARGO FRESHWATER v. STATE OF TENNESSEE

The main issue was whether State prosecutors withheld from Ms. Freshwater's lawyer a statement of a witness, Johnny Box, that Ms. Freshwater's co-defendant, Glen Nash, told him that he, Nash, had been the lone shooter of the victim, which, had it been revealed to her lawyer, would most likely have resulted in a different judgment. The Court of Criminal Appeals thinks so and reversed the  conviction.


The evidence in question is a four page written statement that details what Attorney Nash told to Johnny Box and was in the files of the District Attorney. The relevant part states that he, Nash, was the sole shooter.  The statement provided in part to Freshwater's lawyer was missing that important part, intentionally.


While it is highly unlikely that the events here will repeat themselves, it is significant that it was through a petition for a writ of error coram nobis that Freshwater found relief.  Typically the court is reluctant to hear arguments about evidence from trial and how the parties exchanged it at such a late date.  But here a fundamental fair trial right was touched upon when it was shown that the state had the actual statement in its possession that this statement was at odds with the partial evidence disclosed by the state with the inference that Freshwater was the actual shooter in the murder.


As a point of interest, the lawyer Glen Nash was found to be insane in Mississippi where the couple was arrested and he remains committed there today.

JUDICIAL NOMINATING COMMISSION RECOMMENDS THREE CANDIDATES FOR KNOX COUNTY CRIMINAL COURT

The Judicial Nominating Commission interviewed eight applicants for the judicial vacancy in the 6th Judicial District created by the retirement of Judge Richard Baumgartner

The Judicial Nominating Commission has recommended the following three candidates to Governor Bill Haslam:

Charles Burks

Attorney

Justice, Noel & Burks

Scott Green
Attorney
Valliant, Harrison, Schwartz, & Green, P.A.


Steven Sword
Assistant District Attorney General
Knox County District Attorney General’s Office, 6th Judicial District


Governor Haslam may now appoint one of these candidates. 

Sixth Circuit Remands Gun Case for Sentencing Recalculation

• US v. JOSE GALAVIZ

Jose Galaviz challenges his 70-month sentence for being a felon in possession of a firearm on the grounds that the district court miscalculated his criminal-history category.  This challenge by Galavitz is not prevented by the language of his plea agreement, which provided that:

Defendant retains his right to directly appeal the Court’s adverse determination of any disputed guideline issue that was raised at or before the sentencing hearing.”  The issue of the district court’s calculation of his criminal-history category under the Guidelines was raised by Galaviz both in a sentencing memorandum submitted to the court prior to sentencing and at the sentencing hearing. Therefore, under the language of the plea agreement, Galaviz has preserved the issue for appeal.

At issue here is whether being incarcerated waiting for a parole revocation is the same thing as being revoked for subsequent sentencing purposes.  The Sixth Circuit says not, and under the policy of lenity it means that the Court will not interpret a federal statute so as to increase the penalty it places on Galavitz now at this sentencing when such an interpretation can be no more than a guess as to what Congress intended.  Case remanded by the Sixth Circuit for resentencing.

Tennessee Death Penalty Drug Seized By DEA

• Justice Department Pursues 'Strange' Probe of Execution Drug 

Judson Berger reports that the DEA has seized the Death Penalty Drug, sodium thiopental, used in Tennessee, Georgia and Kentucky.

The investigation stems from concerns about the overseas source of the drug, .... The seizures started in Georgia, where the Drug Enforcement Administration in March grabbed their supply of sodium thiopental. From there, the DEA swooped into Tennessee, Kentucky and other states to confiscate their stash, forcing the states to either find an alternative chemical or suspend executions. 

Dorinda Carter, with the Tennessee Department of Correction, said the state turned over its "entire supply" at DEA request in late March. "They had some concerns about our domestic vendor's import procedures," she said.

Three Illegal Immigration Bills in Tennessee Legislature

Currently pending in Nashville are three bills concerning illegal immigration.  If passed, one requires employers to check the immigration status of all new hires, another mandates that local police departments check the immigration status of people they routinely stop, and the third directs state and local agencies to check the immigration status of people who are applying for food stamps and other public assistance. 

• Tennessee Lawful Employment Act (HB 1378/SB 1669): Requires employers to check the immigration status of all new hires using the federal government’s E-Verify system. 
• Eligibility Verification for Entitlements Act (HB 1379/SB 1325): Requires government agencies to check the status of people who apply for public assistance. 
• Lawful Immigration Enforcement Act (HB 1380/SB 780): Directs state and local police to check the immigration status of people they stop.

...when any law enforcement officer acting in the enforcement of any state law or local ordinance makes a lawful stop or detention of a person for a violation of a state law or local ordinance, and the officer has reasonable suspicion to believe that the person stopped or detained is unlawfully present in the Untied States, the officer shall request verification of the immigration status of such person from federal immigration authorities...

The issue behind the debate is, as always: who is to pay for this? Local governments, employers, police departments of limited resources: there is no answer to be found in the legislation.  To date, no satisfactory answer has come forward from Rep. Carr the sponsor of the trio.

Sixth Circuit Finds Policer Officer Use of Force Reasonable

• MITCH HAYDEN V. PONTIAC POLICE OFFICER DWIGHT GREEN

Today the Sixth Circuit found that Pontiac Michigan Police Officer Dwight Green used reasonable force in this case involving the stop of a motorist and his forceful removal of the driver.  Hayden, the driver, was involved in an accident with another motorist and left the scene without giving his contact information or speaking to the police.  Officer Green spoted Hayden a short ditance from the accident and attempted to stop him.  When that failed, he used more forceful actions that Hayden objected to and that were the subject of this federal lawsuit.

The question is whether there was any constitutional violation here. In Hayden’s view, Green violated the Fourth Amendment’s prohibition on “the use of excessive force by arresting and investigating officers.” Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006). We decide that issue based on “the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989). In evaluating whether an officer’s use of force was reasonable rather than excessive, we consider “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Smoak, 460 F.3dat 783 (internal quotation marks omitted). “This standard contains a built-in measure of deference to the officer’s on-the-spot judgment about the level of force necessary in light of the circumstances of the particular case.”

The Court found that Officer Green is immune from suit.  

Illegally Obtained Evidence Bill Passes TN House

The Tennessee House passed a law yesterday that allows a good faith exception to illegally obtained evidence. HB 401, The Exclusionary Rule Reform Act, passed the full House on a vote of 89-8. 

• Exclusionary Rule Reform Act
  

The relevant part:

any evidence that is seized as a result of executing a search warrant ... not in violation of the constitutions of the United States or the State of Tennessee shall not be suppressed as a result of any violation (law) if the court determines that such violation was a result of a good faith mistake or technical violation made by a law enforcement officer, court official, or the issuing magistrate.

Here is an article in the Chattanoogan.com about the law.

If enacted the bill goes into effect July 1, 2011.

TN Guns-on-Campus Bill

As many have learned, there is currently pending in Nashville legislation that allows college professors and staff to carry weapons onto campuses of Tennessee’s public colleges and universities.  Here in Chattanooga that means at UTC and Chatt. State everyone from the grounds keepers to the Chancellor, from part-time adjunct instructors to full time coaches can carry concealed weapons at work and amidst students. In response today, campus police officers from Memphis to Chattanooga to Knoxville, concerned parents, and college professors paid a trip to the capital to voice their concerns and to stop this bill.


Jennifer Brooks' Tennessean article  describes the scene that finally culminated in what almost passes for common sense in the legislature.  The state House Judiciary Committee has decided to send State Rep. Andy Holt’s bill to a summer study committee. This is the legislative equivalent of a time out and such a maneuverer lets the bill in all likelihood expire. What one friend described as a face saving move which allows the legislation to wither away without the necessity of a vote on a polarizing issue.


Regardless of where you stand on other aspects of the second amendment, how can mixing gun toting staff and professors with student populations that average between 18-22 years of age be considered responsible?    Security is best left to the police. In the words of ETSU campus Police Chief Jack Cortrell “We train {officers} to take down the guys with the guns.”

Supreme Court Summarily Reverses Sixth Circuit and Reinstates Death Penalty

• DAVID BOBBY, WARDEN, PETITIONER v. HARRY MITTS

Tennessee has a death penalty statute that splits the jury's responsibilities into two parts: phase one is guilt v. innocence; and in cases with a conviction for first-degree murder, there is a second phase, the penalty phase, where the jury decides between life in prison (with parole possible), life without any possibility of parole, and in the most serious cases death. Ohio has a similar statute and it is the second part of Ohio's statute, the penalty part, that is at issue in Bobby v. Mitts. Today the Supreme Court summarily reversed the Sixth Circuit and reinstated the death penalty against Harry Mitts.

Previously, the Sixth Circuit Court of Appeals determined that jury instructions in this Ohio death penalty case ran against the Supreme Court's decision in  Beck v.  Alabama, and accordingly the Court of Appeals vacated Mitts’s death sentence.  The Sixth Circuit stated that Ohio's statute impermissibly required the jury to first decide whether  to “acquit” Mitts of the death penalty before considering mercy and some form of life imprisonment.


In reversing the Sixth Circuit, the Supreme Court found no constitutional violation  because the Court reasoned a jury convicted Mitts on two counts of aggravated murder and two counts of attempted murder and they knew that this second phase of the trial involved certain imprisonment of one kind or another. These jurors were specifically instructed that if they did not find that the aggravating factors outweighed the mitigating factors—and therefore did not recommend the death penalty—they would choose from two life sentence options. Because the choice did not force the jurors to make a decision upon a mistaken presumption that Mitts could possibly go free, if not given the ultimate penalty, the Court saw no violation.  Significantly, the Court drew a distinction between this penalty phase and the choices made by a jury during the guilt v. innocence phase of the trial.