The events in this case concern an anti-immigration rally at the Hamblen County Courthouse grounds in Morristown, TN in 2006. Teddy Mitchell attended the rally and sought to park his car in a prohibited area at the court house. When he was told by an African American officer not to park his car in that location he responded, “There’s no nigger going to tell me where I can and can’t park.” That and his aggressive confrontation with police led to his arrest and ultimately a conviction after a jury trial to disorderly conduct. His conviction was reversed on appeal and the state sought review by the TN Supreme Court.
Judge Wade writing the opinion for the court held: "Defendant’s reference to an African-American officer as “nigger” was properly admitted into evidence. The Defendant’s use of that term, his refusal to obey the officer’s directive to remove his vehicle from a no-parking area until a white officer intervened, his angry response, and his loud and belligerent confrontation of the officers at the rally area checkpoint qualified as threatening behavior designed to annoy or alarm in a public place. Moreover, the Defendant’s conduct is not entitled to the protections of free speech. For these reasons, the judgment of the Court of Criminal Appeals is reversed and the conviction and sentence is reinstated."
Significantly, the court held that the defendant had no constitutionally recognized protections under the First Amendment nor Article I, Section 9 of the Tennessee Constitution to this kind of speech.
Thursday, March 31, 2011
Wednesday, March 30, 2011
CCA Vacates Judgment For Implied Consent Verdict By Jury
CCA holds that T.C.A. § 55-10-406(a)(5) gives to the trial court, not a jury, the authority for determining whether the noncriminal implied consent law was violated. Trial judges should not allow that decision to be delegated to a jury contrary to the statute. CCA also does not believe that the trial court’s approving the jury’s finding suffices or renders harmless the trial court’s lack of a proper finding. Jury's verdict vacated.
In her dissent, Judge Ogle writes that since "the appellant did not raise the issue, that no prejudice can be demonstrated, and that the trial court acted as the thirteenth juror, I would not vacate the judgment or remand the case for a new hearing." The dissent recognizes other cases in the history of the court where the court has let stand verdicts of this nature. And as the judge wryly notes: "To be sure, the State’s having to convince a twelve-member jury that a defendant has violated the law is a benefit many defendants would not contest."
White Lightning--Synthetic Forms Of Cocaine And LSD Are Not Prohibited By Current Tennessee Law
The TN Attorney General was asked whether Tennessee Law prohibits the production, manufacture, distribution, or possession of synthetic forms of the drugs LSD and cocaine, including the product known as White Lightning? No, in most situations, is the reply form the AG in a recent opinion.
In short, because these items do not contain controlled substances, they probably are not covered by current TN law. However, the AG opinion points out, even if a product purporting to be synthetic LSD or synthetic cocaine were found not to contain a controlled substance, it may still qualify as a counterfeit controlled substance under Tenn. Code Ann. § 39-17-423.
Senator Roy Herron requested the opinion in response to the growing problem of White Lightning. White Lightning is one of a number of names under which methylenedioxypyrovalerone (MDPV) is sold. MDVP is sold openly in gas stations and other retail stores, labeled as not for human consumption and purporting to be insect repellent or bath salts. MDPV is not currently a controlled substance under Tennessee law or federal law.
The problem with enforcement seems to be a conflict in TN law with White Lightning's actual use and its purported use. Because Tenn. Code Ann. § 39-17-423 specifically excludes from its purview any substance that may be legally purchased at a drug or grocery store without a prescription, so long as the substance is not represented to be a controlled substance.
In short, because these items do not contain controlled substances, they probably are not covered by current TN law. However, the AG opinion points out, even if a product purporting to be synthetic LSD or synthetic cocaine were found not to contain a controlled substance, it may still qualify as a counterfeit controlled substance under Tenn. Code Ann. § 39-17-423.
Senator Roy Herron requested the opinion in response to the growing problem of White Lightning. White Lightning is one of a number of names under which methylenedioxypyrovalerone (MDPV) is sold. MDVP is sold openly in gas stations and other retail stores, labeled as not for human consumption and purporting to be insect repellent or bath salts. MDPV is not currently a controlled substance under Tennessee law or federal law.
The problem with enforcement seems to be a conflict in TN law with White Lightning's actual use and its purported use. Because Tenn. Code Ann. § 39-17-423 specifically excludes from its purview any substance that may be legally purchased at a drug or grocery store without a prescription, so long as the substance is not represented to be a controlled substance.
Tuesday, March 29, 2011
District Attorney's Office Not Liable For Brady Violation. $14 Million Dollar Judgment Overturned By Supreme Court
In this 5-4 opinion, the Supreme Court reversed a $14 million dollar judgment and found that a district attorney’s office may not be held liable under §1983 for failure to train its prosecutors based on a Brady violation.
The Orleans Parish District Attorney’s Office failed to disclose evidence that should have been turned over to the defense under Brady v. Maryland. The evidence was a lab report that showed that the blood of the robber was type B as found on a swatch of clothing worn by the victim. Thompson's blood type is O. Thompson was convicted at his first trial of armed robbery. Because of that conviction Thompson elected not to testify in his own defense in his second trial for murder, and he was again convicted. Thompson spent 18 years in prison, including 14 years on death row. One month before Thompson’s scheduled execution, his investigator discovered the undisclosed evidence from his armed robbery trial. The reviewing court determined that the evidence was exculpatory, and both of Thompson’s convictions were vacated.
After he was released from prison, Thompson sued the District Attorney's Office. The jury awarded Thompson $14 million, and the Court of Appeals for the Fifth Circuit affirmed. The Supreme Court granted certiorari to decide whether a district attorney’s office may be held liable under §1983 for failure to train based on a single claim as opposed to a pattern of similar violations.
The central issue behind the majority opinion is whether the District Attorney, was deliberately indifferent to the need to train attorneys under his authority. The Court concluded that this case does not fall within the narrow range of "single-incident" liability hypothesized in precedent as a possible exception to the pattern of violations necessary to prove deliberate indifference in §1983 actions alleging failure to train.
The Supreme Court states that the District Court should have granted the District Attorney judgment as a matter of law on the failure-to-train claim because Thompson did not prove a pattern of similar violations that would "establish that the ‘policy of inaction’ [was] the functional equivalent of a decision by the city itself to violate the Constitution."
The central issue behind the majority opinion is whether the District Attorney, was deliberately indifferent to the need to train attorneys under his authority. The Court concluded that this case does not fall within the narrow range of "single-incident" liability hypothesized in precedent as a possible exception to the pattern of violations necessary to prove deliberate indifference in §1983 actions alleging failure to train.
The Supreme Court states that the District Court should have granted the District Attorney judgment as a matter of law on the failure-to-train claim because Thompson did not prove a pattern of similar violations that would "establish that the ‘policy of inaction’ [was] the functional equivalent of a decision by the city itself to violate the Constitution."
Monday, March 28, 2011
CCA Reverses Trial Court And Allows Mail Box Rule Postconvition Petition to Proceed
The Tennessee statute says that when a post conviction petition is filed by or on behalf of a pro se petitioner incarcerated in a correctional facility, “filing shall be timely if the papers were delivered to the appropriate individual at the correctional facility within the time fixed for filing.” Tenn. Sup. Ct. R. 28, § 2(G).
The defendant's petition was filed in court a few days after his one year to file had run. The state moved to dismiss the petition as time barred. The court looked to the mail box rule to determine whether the petition was received in a timely manner.
Here, the date stamp on the envelope in which the petitioner mailed his petition was very difficult to read. The date appears to the court, to be “Mar 16” rather than “Mar 17,” which would make the petition timely under the prison mailbox rule, by one day. Accordingly, the Court of Criminal Appeals reversed the Shelby County trial court's dismissal of the petition and allowed it to proceed on the merits.
Saturday, March 26, 2011
U.S. Sentencing Commission Crack Cocaine Retroactivity Data
The Fair Sentencing Act was passed by Congress and signed into law to address unfair disparities between sentences for powder and crack cocaine. As a result of the law's passage, many people serving long sentences under the original law have sought to have their cases reopened and resentenced in accordance with the provisions of the new law. In many, but not all, cases the courts have granted a sentence reduction. Below is the data from cases in Tennessee, Kentucky, Michigan, Ohio (Sixth Circuit) and Georgia, Alabama, and Florida (Eleventh Circuit) concerning this activity.
The United States Sentencing Commission provides data from sentencing documents submitted by courts to the Commission. The following information is from cases in which the court considered a motion to reduce a sentence under 18 U.S.C. § 3582(c)(2) for an offender convicted of an offense involving crack cocaine. The data that follows is from the complete report and I have extracted data for the Sixth Circuit and Eleventh Circuit that seems most relevant.
GEOGRAPHICAL DISTRIBUTION OF APPLICATION OF RETROACTIVE CRACK COCAINE AMENDMENT BY JUDICIAL CIRCUIT.
SIXTH CIRCUIT: Number of applicants 2,063; number granted 1,455; number denied 608.
ELEVENTH CIRCUIT: Number of applicants 4,343, number granted 2,381, number denied 1,962.
DEGREE OF DECREASE IN SENTENCE DUE TO RETROACTIVE APPLICATION OF CRACK COCAINE AMENDMENT.
SIXTH CIRCUIT: 129 m (prev. sent.) 108 m (current sent.) 21 m (decrease)
ELEVENTH CIRCUIT: 167 m (prev. sent.) 137 m (current sent.) 30 m (decrease)
In cases where the court denied a motion to reduce a sentence under 18 U.S.C. § 3582(c)(2) for an offender convicted of an offense involving crack cocaine, the three top reasons given were: (1) Career Offender or Armed Career Criminal provisions control sentence, (2) Statutory mandatory minimum controls sentence, and (3) Case involved more than 4.5 kg of crack cocaine.
The United States Sentencing Commission provides data from sentencing documents submitted by courts to the Commission. The following information is from cases in which the court considered a motion to reduce a sentence under 18 U.S.C. § 3582(c)(2) for an offender convicted of an offense involving crack cocaine. The data that follows is from the complete report and I have extracted data for the Sixth Circuit and Eleventh Circuit that seems most relevant.
GEOGRAPHICAL DISTRIBUTION OF APPLICATION OF RETROACTIVE CRACK COCAINE AMENDMENT BY JUDICIAL CIRCUIT.
SIXTH CIRCUIT: Number of applicants 2,063; number granted 1,455; number denied 608.
ELEVENTH CIRCUIT: Number of applicants 4,343, number granted 2,381, number denied 1,962.
DEGREE OF DECREASE IN SENTENCE DUE TO RETROACTIVE APPLICATION OF CRACK COCAINE AMENDMENT.
SIXTH CIRCUIT: 129 m (prev. sent.) 108 m (current sent.) 21 m (decrease)
ELEVENTH CIRCUIT: 167 m (prev. sent.) 137 m (current sent.) 30 m (decrease)
In cases where the court denied a motion to reduce a sentence under 18 U.S.C. § 3582(c)(2) for an offender convicted of an offense involving crack cocaine, the three top reasons given were: (1) Career Offender or Armed Career Criminal provisions control sentence, (2) Statutory mandatory minimum controls sentence, and (3) Case involved more than 4.5 kg of crack cocaine.
Friday, March 25, 2011
Sixth Cicuit Finds No Plain Error In Use of Defendants Proffer Statements in PSR
Counsel for Jackson never objected to the presence of the defendant's proffer statements in his presentence report (PSR) at sentencing. While counsel did object to the enhancement under the guidelines that his statements resulted in, he did not object to the presence of the statements themselves in the PSR; and, who would think you have to, if you object to the actual impact of those statements? At sentencing the government called an FBI agent to testify to an independent source of the same subject matter (bank robberies) that was contained in the statements. From the opinion, it appears that the only reason the FBI agent was called to testify to independent source information is because counsel for Jackson objected to the result that the proffer statements created in the PSR. Since that result based objection was unsuccessful at the district court, on appeal Jackson asserts that USSG § 1B1.8 categorically precludes the use of proffer information in the PSR. His failure to object to the presence of his statements, at the district court level, is only reviewed on appeal under the standard of plain error and the Sixth Circuit found no plain error. Cautionary lesson, if your client proffers then you must object at sentencing to any proffer statements appearing in the PSR.
Jackson's lawyer was promised by the government at the proffer session “No statements made or other information provided by your client during such proffer and discussion will be used directly against your client in any criminal case.” Nonetheless, Jackson's PSR however contained several of his proffer statements. These were initially used in calculating his guideline sentence range, and the court relied on them in determining his specific sentence.
The reason that these statements ended up in the PSR has less to do with malfeasance toward Jackson and more to with the vagaries of the Sentencing Guideline Manual and how it is interpreted across the circuit by different government offices, I suspect. Guideline Commentary specifically precludes the government from withholding information from the court — something that would be required if Jackson’s proffer information were to be omitted from the PSR. USSG § 1B1.8, note 1 (“This provision does not authorize the government to withhold information from the court.”). Also, Note 5, on which Jackson relies, only speaks to the use of proffer-protected information in
Jackson's lawyer was promised by the government at the proffer session “No statements made or other information provided by your client during such proffer and discussion will be used directly against your client in any criminal case.” Nonetheless, Jackson's PSR however contained several of his proffer statements. These were initially used in calculating his guideline sentence range, and the court relied on them in determining his specific sentence.
The reason that these statements ended up in the PSR has less to do with malfeasance toward Jackson and more to with the vagaries of the Sentencing Guideline Manual and how it is interpreted across the circuit by different government offices, I suspect. Guideline Commentary specifically precludes the government from withholding information from the court — something that would be required if Jackson’s proffer information were to be omitted from the PSR. USSG § 1B1.8, note 1 (“This provision does not authorize the government to withhold information from the court.”). Also, Note 5, on which Jackson relies, only speaks to the use of proffer-protected information in
computing the guideline sentence range. USSG § 1B1.8, note 5 (“The guideline operates as a limitation on the use of such incriminating information in determining the applicable guideline range . . . .”).
Here the court held, "We only review this issue for plain error, since Jackson failed to object at the district court." The PSR contained several of his proffer statements. These were initially used in calculating his guideline sentence range, and the court relied on them in determining his specific sentence. Jackson unsuccessfully challenged both his guideline sentence range and the specific sentence imposed. The Sixth Circuit affirmed his convictions for bank robbery.
The Sixth Circuit has never reached a contrary result to this case, and it is small comfort that other circuit opinions on this issue are split. (holding information disclosed to the government under a promise of confidentiality cannot be included in a PSR), (7th Cir. 1996) (precluding the government from withholding relevant information from the sentencing court). United States v. Choice, 201 F.3d 837, 840 (6th Cir. 2000). Here, the plain language of USSG § 1B1.8 specifically and unequivocally protects proffer statements from use “in determining the Compare United States v. Abantha, 999 F.2d 1246, 1248 (8th Cir.with United States v. Rourke, 74 F.3d 802).
Thursday, March 24, 2011
Should A 13 Year Old Child Be Given Miranda Warnings When Questioned By Police At School? Supreme Court Oral Arguments JDB v. NC.
On Wednesday, March 23rd, the Supreme Court heard oral arguments in
The transcript of yesterday's oral argument makes interesting reading as the Supreme Court takes on the question: Should a 13 year old be given Miranda warnings when questioned by Police at School?
Barbara Blackman attorney for the NC minor begins powerfully by stating:
J.D.B. was only 13 years old when he was taken out of his middle school classroom and escorted to a closed door interrogation conducted by outside law enforcement regarding a matter that did not take place on school property. He was isolated from his family who had already demonstrated an interest in this investigation and sought to shield him from the police. He was not advised that he was free to leave or free not to answer questions until he had already incriminated himself. The restrictions on J.D.B.'s freedom of movement which existed because of his youth were heightened by the manner in which this officer chose to conduct this interrogation.
As we all know, criminal suspects are typically given Miranda warnings if they are questioned while in police custody. A person is usually considered to be in custody if a reasonable person in similar circumstances would believe that he was not free to leave. The question presented here is whether courts should consider the age of a juvenile suspect in deciding whether he is in custody for Miranda purposes.
JUSTICE BREYER:... in considering a reasonable person for this purpose and avoiding subjective states of mind, you would look at objective circumstances, known to both the officer and the suspect that are likely relevant to the way a person would understand his situation?
JUSTICE BREYER: So both would be both mental illness and age and -- I don't know, whether you speak English, and a lot of other things would be relevant, provided they are things that are relevant to how a person would understand his situation and are known to both the officer and the individual?
MS. BLACKMAN: Well, we're simply making the point that there's not necessarily going to be a floodgate opening.
JUSTICE BREYER: No, no, but I mean what Justice Scalia was really asking is, do you favor something like this test that I read, which is open as to circumstance? Anything could fit in that blank, as long as both policemen and the -- and the individual know it and it is relevant as to how he understands the circumstance, whether he's likely free to go or not.
MS. BLACKMAN: Conceptually absolutely.
JUSTICE SCALIA: Even -- even if you said no, you're pushing us there, because there's no basis for treating a childhood any differently from these other factors. So basically you're saying Justice Breyer would call it objective circumstances. You know, whether you're mentally deficient, I would call that the subjective condition of the -- of the person being held in custody. And I think, I don't think that's what we meant by the phrase "objective circumstances."But you want objective circumstances to include the character of the person being held in custody, whether he's mentally deficient, whether he's schizophrenic, known to the police, you know, whatever factors, right? Those are all objective circumstances?
MS. BLACKMAN: Your Honor, what we are talking about are a complex of characteristics which are unique to children, and that's what we are examining in this case.
JUSTICE GINSBURG: Ms. Blackman, what is complex about a juvenile investigator? That's what this police officer was. So he's investigating a juvenile for juvenile justice purposes, and I think there's hardly anything more objective than that. This case has child written all over it. It's investigator who deals with children. The first proceedings is going to be a
juvenile proceeding.
JUSTICE KAGAN: Do we need either imaginative powers or empirical data to know that when a 13-year-old is brought into a room in his school, taken
out of class, four people are there, two are police officers, one is assistant principal, threatened with custody, that that person is not going to feel free to
take off and leave?
And, the attorney general representing North Carolina got similar treatment by the court.
JUSTICE BREYER: There's a big sign jail cell, the door is unlocked. When you want to leave, leave. Is he in custody?
MR. COOPER: Well, Your Honor, I think you have to look at the obvious circumstances.
JUSTICE BREYER: Is he in custody? It's a jail cell, but a big sign, "Go ahead, leave, go when you want." Is he free to leave?
MR. COOPER: I think he may be, Your Honor.
JUSTICE BREYER: Yeah, so do I.
JUSTICE BREYER: Okay. Then why aren't you willing to take into account an ambiguous situation as was true in Alvarado, a tough situation where it's
pretty unclear; he was brought there by his parents and there are all these things around that might suggest to a 20-year-old, yeah, you could leave, but to a 12-year-old, "no." If the judge can take into account whether he's in a wheelchair, whether he just speaks Ukrainian, whether in fact a thing -- you have to swim through a pool and he doesn't know how to swim -- I mean, all kinds of things like that; why can't he take into account in a proper situation before he thinks he's in custody or not, things they both know including
whether he's 8 years old or 22?
MR. COOPER: Your Honor, because those are obvious circumstances that everyone agrees -
JUSTICE BREYER: And it's obvious whether
MR. COOPER: The problem is, Your Honor, you have to think like an 8-year-old or think like a 15-year-old in order to determine the situation.
The final word is still to come.
The transcript of yesterday's oral argument makes interesting reading as the Supreme Court takes on the question: Should a 13 year old be given Miranda warnings when questioned by Police at School?
Barbara Blackman attorney for the NC minor begins powerfully by stating:
J.D.B. was only 13 years old when he was taken out of his middle school classroom and escorted to a closed door interrogation conducted by outside law enforcement regarding a matter that did not take place on school property. He was isolated from his family who had already demonstrated an interest in this investigation and sought to shield him from the police. He was not advised that he was free to leave or free not to answer questions until he had already incriminated himself. The restrictions on J.D.B.'s freedom of movement which existed because of his youth were heightened by the manner in which this officer chose to conduct this interrogation.
As we all know, criminal suspects are typically given Miranda warnings if they are questioned while in police custody. A person is usually considered to be in custody if a reasonable person in similar circumstances would believe that he was not free to leave. The question presented here is whether courts should consider the age of a juvenile suspect in deciding whether he is in custody for Miranda purposes.
JUSTICE BREYER:... in considering a reasonable person for this purpose and avoiding subjective states of mind, you would look at objective circumstances, known to both the officer and the suspect that are likely relevant to the way a person would understand his situation?
JUSTICE BREYER: So both would be both mental illness and age and -- I don't know, whether you speak English, and a lot of other things would be relevant, provided they are things that are relevant to how a person would understand his situation and are known to both the officer and the individual?
MS. BLACKMAN: Well, we're simply making the point that there's not necessarily going to be a floodgate opening.
JUSTICE BREYER: No, no, but I mean what Justice Scalia was really asking is, do you favor something like this test that I read, which is open as to circumstance? Anything could fit in that blank, as long as both policemen and the -- and the individual know it and it is relevant as to how he understands the circumstance, whether he's likely free to go or not.
MS. BLACKMAN: Conceptually absolutely.
JUSTICE SCALIA: Even -- even if you said no, you're pushing us there, because there's no basis for treating a childhood any differently from these other factors. So basically you're saying Justice Breyer would call it objective circumstances. You know, whether you're mentally deficient, I would call that the subjective condition of the -- of the person being held in custody. And I think, I don't think that's what we meant by the phrase "objective circumstances."But you want objective circumstances to include the character of the person being held in custody, whether he's mentally deficient, whether he's schizophrenic, known to the police, you know, whatever factors, right? Those are all objective circumstances?
MS. BLACKMAN: Your Honor, what we are talking about are a complex of characteristics which are unique to children, and that's what we are examining in this case.
JUSTICE GINSBURG: Ms. Blackman, what is complex about a juvenile investigator? That's what this police officer was. So he's investigating a juvenile for juvenile justice purposes, and I think there's hardly anything more objective than that. This case has child written all over it. It's investigator who deals with children. The first proceedings is going to be a
juvenile proceeding.
JUSTICE KAGAN: Do we need either imaginative powers or empirical data to know that when a 13-year-old is brought into a room in his school, taken
out of class, four people are there, two are police officers, one is assistant principal, threatened with custody, that that person is not going to feel free to
take off and leave?
And, the attorney general representing North Carolina got similar treatment by the court.
JUSTICE BREYER: There's a big sign jail cell, the door is unlocked. When you want to leave, leave. Is he in custody?
MR. COOPER: Well, Your Honor, I think you have to look at the obvious circumstances.
JUSTICE BREYER: Is he in custody? It's a jail cell, but a big sign, "Go ahead, leave, go when you want." Is he free to leave?
MR. COOPER: I think he may be, Your Honor.
JUSTICE BREYER: Yeah, so do I.
JUSTICE BREYER: Okay. Then why aren't you willing to take into account an ambiguous situation as was true in Alvarado, a tough situation where it's
pretty unclear; he was brought there by his parents and there are all these things around that might suggest to a 20-year-old, yeah, you could leave, but to a 12-year-old, "no." If the judge can take into account whether he's in a wheelchair, whether he just speaks Ukrainian, whether in fact a thing -- you have to swim through a pool and he doesn't know how to swim -- I mean, all kinds of things like that; why can't he take into account in a proper situation before he thinks he's in custody or not, things they both know including
whether he's 8 years old or 22?
MR. COOPER: Your Honor, because those are obvious circumstances that everyone agrees -
JUSTICE BREYER: And it's obvious whether
MR. COOPER: The problem is, Your Honor, you have to think like an 8-year-old or think like a 15-year-old in order to determine the situation.
The final word is still to come.
.
Monday, March 21, 2011
Supreme Court to Consider Whether State Court Judge Can Jail Person Without Appointing Counsel
*Turner v. Rogers
On Wednesday, the Supreme Court will hear oral argument in a case that will determine whether a state court judge can jail a person for contempt without appointing an attorney to represent him.
In Turner, the Court will consider: 1) Whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration; and 2) whether the Court has jurisdiction to review the decision of the South Carolina Supreme Court.
Turner argues the Sixth and Fourteenth Amendments of the United States Constitution guarantee him, as an indigent defendant in state court, the right to appointed counsel before being sentenced to one year imprisonment for civil contempt. The South Carolina Supreme Court disagreed.
SCOTUS
Of significance will be if the court will find that it has jurisdiction to hear the case; and, then if they do, will they establish a rule that state court judges must appoint counsel for defendants who cannot afford counsel prior to jailing a person. Such a rule would have implications in Tennessee courts for violations of such things as varied as child support, contempt of court, or failing a drug test. If the Court finds that they have jurisdiction over what has previously been a state court matter then this will be a decision to watch for 2011.
On Wednesday, the Supreme Court will hear oral argument in a case that will determine whether a state court judge can jail a person for contempt without appointing an attorney to represent him.
In Turner, the Court will consider: 1) Whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration; and 2) whether the Court has jurisdiction to review the decision of the South Carolina Supreme Court.
Turner argues the Sixth and Fourteenth Amendments of the United States Constitution guarantee him, as an indigent defendant in state court, the right to appointed counsel before being sentenced to one year imprisonment for civil contempt. The South Carolina Supreme Court disagreed.
SCOTUS
Of significance will be if the court will find that it has jurisdiction to hear the case; and, then if they do, will they establish a rule that state court judges must appoint counsel for defendants who cannot afford counsel prior to jailing a person. Such a rule would have implications in Tennessee courts for violations of such things as varied as child support, contempt of court, or failing a drug test. If the Court finds that they have jurisdiction over what has previously been a state court matter then this will be a decision to watch for 2011.
Sunday, March 20, 2011
Eastern District of Tennessee Orders Million Dollar Restitution to Victim in Child Pornography Case
Judge Collier Ordered restitution of over a million dollars in a recent sentencing of a child pornography defendant. This is a first for the Eastern District of Tennessee and is in following with trends across the country in child pornography prosecutions. The victims in these cases can recover for the damage they experienced by being depicted in these videos. Most victims in these cases are minors and the awards pay for damages suffered including counseling and medical expenses. The award was reported in the Chattanooogan.
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