U.S. Supreme Court Clarifies Federal Witness Tampering Statute

• Fowler v. U.S.
  

Last week the Supreme Court clarified the meaning of the Federal Witness Tampering Statute which makes it a crime "to kill another person, with intent to... prevent communication by any person to a Federal law enforcement officer" regarding "information relating to the... possible commission of a federal crime." Fowler, the petitioner in this case, killed a local law enforcement officer who discovered and prevented Fowler from robbing a bank. The question for the Court was whether Fowler intended to kill the officer in order to prevent communication about the crime to a federal officer.

In a 7-2 decision, the Court rejected the argument that there only needed to be a possibility of potential communications with a federal officer. Rather, the Court held that the statute requires a "reasonable likelihood" that the would-be recipient of the information was a federal official. Specifically, the Court stated, "it must be reasonably likely under the circumstances that (in the absence of the killing) at least one of the relevant communications would have been made to a federal officer." This test requires more than a mere possibility, but less than beyond a reasonable doubt or preponderance of the evidence.
The Court ultimately remanded to the trial court with instructions to determine if there was a "reasonable likelihood" that the officer would have communicated information about Fowler's crime to federal law enforcement.

Legislature Loosens Warrant Requirements in Tennessee

The Exclusionary Rule Reform Act: Tennessee

The TN Legislature recently passed The Exclusionary Rule Reform Act, easing the state's strict search warrant requirements. Specifically, the law provides a good faith exception to the suppression of evidence obtained as a result of mistakes or errors in search warrants. If an officer, in good faith, makes a typographical error in a search warrant, any evidence obtained pursuant to the warrant will be admitted at trial.

The law was prompted by a case out of Nashville involving a typographical error on a search warrant. Officers seized large amounts of drugs from the defendant's home, bu the court was forced to suppress the evidence because the typographical error rendered the warrant invalid. According to the Exclusionary Rule of the Sixth Amendment, any evidence seized as a result of an invalid warrant cannot be used against the defendant at trial.

 The Legislature defines good faith as,

"An unintentional error made by a law enforcement officer, court official or issuing magistrate in the form, preparation, issuance, service, execution,filing and handling of copies, or return and inventory of a search warrant."

The law also extends the good faith exception to situations where an officer has sufficient information describing items to be included in a warrant, yet the magistrate neglects to include them. Lastly, the law protects any reliance on a law that is subsequently ruled unconstitutional.

We previously discussed this legislation when it passed in the house here.

This new exception to the exclusionary rule will take effect on July 1, 2011.

TN Supreme Court Clarifies Mandatory Joinder Rule in Robbery and False Report Case out of Memphis

• STATE OF TENNESSEE v. CEDRIC JOHNSON

In this opinion, the Supreme Court TN analyzes the mandatory joinder provisions in Tenn. R. Crim.P. 8(a)(1)(A). 


Cedrick Johnson knew better than to call the police to his home and report that his car had been stolen from his girlfriend's house. But when your mother tells you report a crime, you call 911. The problem is that after police arrived and questioned Cedrick, he capitulated and said that really his car had not been stolen after all but that he had loaned it to a friend who never returned the car. Unfortunately for Cedrick, the auto and Cedrick seemed to fit the description for a recent robbery.  The victim of the robbery picked Cedrick out of a photo line-up as the culprit.  At issue here are the separate prosecutions for filing a false report (the car) and a separate prosecution for robbery.  Both the trial court and the Court of Criminal Appeals ruled that the mandatory joinder provisions of Rule 8 required a single prosecution. The TN Supreme Court overturned those rulings.

We have determined that the majority of the Court of Criminal Appeals erred by finding that Mr. Johnson’s initiating a false police report offense and aggravated robbery offense were part of the same criminal episode....

We have determined that the two charges against Mr. Johnson were not part of the same criminal episode because, based on the facts of this case, they did not occur simultaneously or in close sequence and did not occur in the same place or in closely situated places. Mr. Johnson initiated the false police report twelve hours after he had allegedly robbed Mr. Watkins. The record does not directly address what transpired between the alleged robbery and the initiation of the false police report. Accordingly, there is no basis for concluding whether a break in the action interrupted the temporal proximity of the two offenses. Likewise, the record fails to demonstrate that the two offenses occurred in the same place or in closely situated places.

The Supreme Court examines the history of Rule 8 and  the ABA influences and other state's analysis of the principles behind the development of Rule.

United States Supreme Court Orders Release of Thousands of California Inmates

• Brown v. Plata

The Supreme Court, in a 5 to 4 decision, issued a sure to be controversial holding regarding the prison conditions in California state prisons. Justice Kennedy, writing for the majority, ordered the release of approximately 32,000 inmates from California prisons.

The constitutional issue is whether prison conditions are so bad as to violate the Eighth Amendment protection against cruel and unusual punishment. Evidence was presented to the Court regarding the prison conditions, specifically those involving inmate access to physical and mental health care. The Court goes into gruesome detail when it describes the overcrowding, noting, for instance, a gymnasium that houses over 500 hundred inmates at a time. Justice Kennedy even attaches to the opinion three black and white pictures of various locations in California prisons. The Court came to the conclusion that the constitutional violations were caused by overcrowding so the only reasonable solution is to require California to release a significant number of prisoners.

The dissenting opinions (separate ones by Scalia and Alito) address the obvious drawback to the holding: the potential increase in crime. Justice Alito stated, "I feel that today's decision, like prior prison release orders, will lead to a grim roster of victims."

Given the controversial holding, what will be interesting to see is how the State of California will decide whom to release from prison. What crimes or persons are insignificant enough to warrant an early release? Where this line will be drawn has yet to be determined. 

John Edwards 'did not break the law,' Greg Craig says. US Attorney ready to Indict.

John Edwards 'did not break the law,' Greg Craig says. The US Attorney in Raleigh appears ready to indict, at issue is campaign money that came from at least two Edwards supporters during his presidential run. 

The allegations stem from criminal campaign finance violations in connection with his affair with Rielle Hunter. Specifically contributions from his national campaign finance chairman, Fred Baron, who died in 2008, and banking heiress Rachel "Bunny" Mellon, who is 100.  The fact that Barron died and that Bunny Mellon is 100 has made the investigation long (two years) and ponderous.

Baron provided hundreds of thousands of dollars and loaned his Aspen, Colo., estate to Hunter for Edwards benefit, allegedly to cover Edwards fathering her child.  Mellon provided about $700,000 in campaign contributions and Edwards referred to her generosity as "Bunny money."

Former White House counsel Greg Craig is representing Edwards and the fact that he is lashing out so hard against prosecutors tells me two things.  First, no deal has been worked out with the government.  Second, a decision on the indictment is near.  After a two year investigation and the sordid details of the affair, and worse yet, the cover up by Edwards including having a staffer (and father of three) claim fatherhood of Hunter's child surely points in the direction of an indictment.  

For more on this developing situation see the Washington Post, Politico, and the Charlotte NewsObserver.

CCA Affirms Murder Conviction But Reverses Conspiracy

• STATE OF TENNESSEE v. JOHN E. LANE

This Court of Criminal Appeals opinion out of Knoxville is interesting in that it upholds the main conviction for first degree murder; but, it also sets out the standards by which a conspiracy to commit murder may be met.  In doing so, the Court reverses the jury conviction for conspiracy.

The Court found that there was no evidence produced at trial to suggest there was an agreement between Mr. Lane and another to kill the victim. There was insufficient evidence to support a conviction for conspiracy. Simply because Lane was present with another, and that person was quiet and did not interfere after the shooting, and left with the Mr. Lane was not enough to support a finding of conspiracy. 

Mere knowledge, acquiescence, or approval of the act, without cooperation or agreement to cooperate, is not enough to constitute one a party to a conspiracy. There must be intentional participation in the transaction with a view to the furtherance of the common design and purpose. Solomon v. State. 

However, the conviction for first degree murder is affirmed.

Supreme Court's Kentucky v. King Resonates Around US

KENTUCKY v. KING is causing a ripple through the country as people figure out just what the decision means for personal privacy in homes and what is left of the Fourth Amendment. See, Forbes Blog,  New York Times, and the Los Angeles Times.

According to Kentucky's Supreme Court, the exigent-circumstances exception didn't apply because the police should have foreseen that their conduct would lead the occupants of the apartment to destroy evidence. Overturning that finding, Justice Samuel A. Alito Jr. wrote for the court that as long as the police officers' behavior was lawful, the fact that it produced an exigent circumstance didn't violate the Constitution. That would be the case, Alito suggested, even if a police officer acted in bad faith in an attempt to evade the warrant requirement.

Court of Criminal Appeals Remands Assault Case for Restitution Reconsideration

• State v. Carlton Horton

The Tennessee Court of Criminal Appeals on Friday, remanded the case of State v. Carlton Horton, back to the trial court to determine if restitution was appropriate for Horton’s crime. Carlton Horton was convicted of domestic aggravated assault as a standard offender for stabbing the victim numerous times during the course of an argument. He was sentenced to serve eleven months and twenty-nine days in prison, eight years of probation, and to pay restitution of $4,048.10 for the victim’s unpaid hospital bills.

The question on appeal was whether the trial court adequately considered Horton’s ability to pay restitution pursuant to The Tennessee Code § 40-35-304(d). The pertinent part states:

“In determining the amount and method of payment or other restitution, the court shall consider the financial resources and future ability of the defendant to pay or perform.”

Horton argued, and the Court of Appeals agreed, that the trial court did not adequately consider his financial resources or ability to pay. At trial Horton reported no assets, and testified that he received $200.00 a month in food stamps, that he was unable to work because of illness, and that he owed a debt of $1,100.00 to a loan company. Horton also testified, interestingly, that he was able to maintain a $100-a-day cocaine habit. Horton’s testimony is obviously conflicting because while he states he has no income or assets, he manages to support an expensive cocaine addiction. The Court of Criminal Appeals decided that not enough attention was paid to the evidence of Horton’s financial abilities, and remanded the issue back to the trial court for further consideration. Mitch Carter was the Chattanooga attorney who successfully argued this case at the CCA.

New DUI Bill for Tennessee

The New DUI Bill : two new ways that force a blood draw of suspected DUI drivers.

A new bill regarding DUI offenses was passed by the Tennessee Legislature today. Essentially if a driver gets pulled over because of a suspected DUI, the officer can now administer a blood alcohol test regardless of whether the driver consented to the test if the driver falls under one of two categories. The first is if the driver has been previously convicted of a DUI, vehicular homicide due to intoxication, or aggravated vehicular homicide. The second is when there is a child in the car under the age of 16. If a driver falls into one of these two categories and the officer has probable cause to believe the driver is intoxicated, he can administer a test regardless of consent, the officer may force a blood draw.

The bill states, in part:

"If a law enforcement officer has probable cause to believe that the driver of a motor vehicle involved in an accident resulting in the injury or death of another has committed an offense of DUI, vehicular homicide due to intoxication, or aggravated vehicular homicide, then the officer must cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood, regardless of whether or not the driver consents to the test."

This bill changes many aspects of the procedures involving DUI offenses. The Fourth Amendment of the U.S. Constitution exemplifies a policy favoring personal autonomy in regards to searches and seizures by law enforcement upon the person of another. Despite such a policy, this bill puts a substantial amount of discretion into the hands of the police, negating any sort of personal autonomy. The question becomes whether the Tennessee legislature will continue to recognize limitations on this policy, and if so, will those limitations eventually result in a complete lack of consent for purposes like those contained in this DUI bill? The effective date of the new DUI forced blood draw law is January 1, 2012. HB Bill 715 full text.

Blue Alert Bill Signed into Effect

A new Tennessee bill signed into effect yesterday establishes the “Blue Alert system” “to provide a statewide system for the rapid dissemination of information to speed the apprehension of violent criminals who kill or seriously injure law enforcement officers and to aid in the location of missing law enforcement officers.” Eleven other states have enacted similar laws, and U.S. Senator Sherrod Brown (D-Ohio) announced on May 16th his intention to co-sponsor national Blue Alert system.

In the event the TBI receives report of a law enforcement officer injured, killed, or missing in the line of duty, the new law authorizes the TBI to issue an alert for un-apprehended suspects. The TBI will be required to adopt guidelines and procedures to handle such alert. The agency must also provide education and training to radio and television broadcasters to encourage broadcast media participation. Through consultation with TDOT, the TBI will develop a procedure for the use of “overhead permanent changeable message signs.” Additionally, for the purposes of a Blue Alert, the TBI will be authorized to use the statewide infrastructure in place for AMBER Alerts.

The law will be codified at Tennessee Code Annotated § 38-6-122 and will go into effect July 1 of this year. Legislative history, including the original bill and amendments, may be found here.