Foggy Road

TN Supreme Court Extends Police Powers

This past Thursday, February 11th, the Tennessee Supreme Court issued two opinions, State v. Smith (http://www.tncourts.gov/courts/supreme-court/opinions/2016/02/11/state-tennessee-v-linzey-danielle-smith) and State v. Davis (http://www.tncourts.gov/courts/supreme-court/opinions/2016/02/11/state-tennessee-v-william-whitlow-davis-jr) , making it easier for officers to justify a traffic stop.

In State v. Davis, Mr. Davis was observed, by Officer Jerry Massey, crossing the center double yellow line several times. The road Mr. Davis was driving on was a curvy two lane road without shoulders. Officer Massey pulled Mr. Davis over and discovered signs that Mr. Davis was intoxicated. Mr. Davis’s attorney attempted to suppress the evidence of DUI claiming that the Officer did not have reasonable suspicion or probable cause to pull Mr. Davis over. The trial court denied the motion and ultimately Mr. Davis plead guilty to DUI and then challenged the stop by appealing the denial of the suppression motion to the Court of Criminal Appeals. The Court of Criminal Appeals and the Tennessee Supreme Court upheld the trial court’s decision.

I believe that most people would agree that crossing the center yellow line several times is a good reason to be pulled over. As a criminal defense attorney, I can understand the need to investigate a driver who is unable to stay in their lane.

State v. Smith is a different story all together. In State v. Smith, Ms. Smith was observed by Trooper Chuck Achinger drift over towards the shoulder of I-65 as she was entering a big swooping curve. Ms. Smith crossed the fog line with both of her right tires by less than six inches and then as Ms. Smith came out of the curve, she twice corrected and drifted towards the fog line again almost crossing it; all of this occurred in less than half a mile. Then Trooper Achinger followed Ms. Smith for two or more miles, observing no other traffic violations. Trooper Achinger then pulled Ms. Smith over and discovered evidence of DUI. Ms. Smith’s attorney filed a motion to suppress which was denied by the trial court, Ms. Smith plead guilty to DUI, and then appealed the trial court’s ruling. Both the Court of Criminal Appeals and the Tennessee Supreme Court upheld the conviction.

This really doesn’t seem like a terrible ruling. As I stated before, we all want safer roads. The problem that I have is that the Court fails to acknowledge or grasp the power they just gave law enforcement. In State v. Smith, the Court stated that “We emphasize that our decision in this case is not intended to provide law enforcement officers with ‘carte blanche’ to seize motorists every time they see a vehicle cross a fog line.” However, that is exactly what they have done.

Regardless of what the Court believes the effect of their ruling in State v. Smith will be, this ruling gives officers far more power to pull people over to “investigate” traffic infractions. Because now an officer won’t have to worry about an attorney suppressing evidence gathered from an unconstitutional stop.

Of course no officer will ever use this as an excuse for a stop after the stop has resulted in the discovery of other criminal activity. Drive safe everyone because it is now open season for law enforcement.

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The 10 Day Rule: A Rule Without a Remedy

Almost every time I’m in general sessions (typically 5 days a week) I hear an attorney ask that a case be dismissed because the State has failed to bring a victim/witness to court to testify against the accused. When the judge challenges them, the attorney usually responds stating that “the case has to be dismissed, it’s the law,” or the “Tennessee Constitution requires that the case be dismissed because the State did not bring a victim.” Both statements are, unfortunately, incorrect.

In general session, when the defendant is in custody, the State has 10 days from the date of arrest to get their victim/witness to court to testify in a preliminary hearing; and 30 day when the defendant is on bond. The accepted practice, in Davidson County, is that the case will be dismissed if the State cannot produce a victim/witness within the ten day/thirty day timeframe. But where does this rule come from? The Tennessee Rules of Criminal Procedure, Rule 5 states in part, that: “…The magistrate shall schedule a preliminary examination to be held within ten days if the defendant remains in custody and within thirty days if released from custody…” Tennessee Rules of Criminal Procedure 5(c)(B). This might be the most misunderstood rule in Tennessee criminal law.

Though the Rule seems straight forward, it really isn’t. Defendants are left unsure of what to expect because the Rule does not specify what will happen if the hearing is not scheduled within the timeframe. In Davidson County, this Rule has come to mean that a defendant’s case will be dismissed when the State cannot produce a victim/witness to testify against the accused within ten days of their arrest. And in the case of a defendant who is on bond, the judge will usually dismiss the case against them when the State cannot produce a victim by the third setting (Settlement, trial, and one continuance requested by the State).

But the question is; if the State cannot produce a victim, is a dismissal of the case required? In short, no. However, since the local practice in Nashville is to dismiss the case when there is no victim/witness present, it is a common belief that the law requires the cases to be dismissed. Unfortunately this is not true. The Tennessee Rules of Criminal Procedure mandate that there shall be a preliminary hearing scheduled within the specified ten day/thirty day timeframe, but the Rule is silent on any remedy when a preliminary hearing is not scheduled within the allotted time.

So what does this mean to people accused of a crime? It means that a dismissal is not guaranteed. No matter what people are saying in jail, or what has happened in the past. The judge is not required to dismiss the case.

Hiring an experienced attorney will increase the chances of having a case dismissed when the State cannot bring a victim/witness to court to testify. In order to increase the likelihood of a dismissal, we will check to see if/when subpoenas were served on a victim/witness, we will speak with the District Attorney about their communication with the victim/witness, we will speak with the victim/witness coordinator about their communication with the victim/witness, and we will see how many times the case has been set for hearing. When the judge calls the case during docket call, we will inform the judge of everything we know about the previous settings, and then request a dismissal of failure to prosecute. This isn’t a guaranteed dismissal, but when the attorney is as prepared as we are, with all the information, the likelihood of a dismissal is significantly improved.

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Does Anyone Even Review this Legislation? Problems in Crime Designations

Here we are, the modern era. We have advances in technology beyond what anyone could imagine. We have medical treatments for anything and everything including successful treatments for cancer, and AIDS. Why can’t the legal system keep up? Right now, despite the fact that we can show that marijuana can treat symptoms from anxiety to pain (and is being used, with amazingly successful results, to get people off heroin and practically every other illicit drug), a single joint in your pocket is the equivalent of beating your wife. Both are A misdemeanors, punishable for up to 11 months and 29 days in jail. The third time someone gets caught with a joint, they will be charged with a felony; beating your wife three times does not result in a felony. The only real difference is that once someone is convicted of domestic assault, they can never own a gun again.

This system cannot stand. We have lumped together people with these indiscriminate, ridiculous laws that do not even come close to encompassing the reality of the crime. You can do the same amount of time for selling a gram of heroine as you can for dragging a person into a back alley and raping them. If you get pulled over, in front of a church, at 3:00am with a half gram of cocaine, you can actually be sentenced to MORE time than you can for raping someone! This disparity cannot be accounted for. I am not saying that one is a crime and one is not, but the shameless way in which the legislation treats them as though they were equivalent is ridiculous. The law as it stands right now, threatening someone with a gun and actually shooting them is the exact same. The truth is that few of these crimes have anything in common.

I have clients who served time for stabbing, shooting, raping, and robbing people. However by far the people who are incarcerated for the longest are all drug related. I understand that drugs can be, and often are a problem. By no means do I deny that drug addiction plagues our society. However, the damage is primarily inflicted on the user, so why when other people commit crimes, which cause clear, direct damage to others, are they punished so much less than a person whose addiction plagues only themselves?

My answer is that legislation is hot button driven. Elected officials, Politicians, only push for legislations that will get them elected and reelected to office. What do the voters want to hear? Felons can’t vote. So it’s easy, rally your voter base around a cause, and make it so that those who suffer under the weight of your legislation cannot vote. That means those with drug addiction problems and drug dealers (who almost exclusively get into dealing because of a personal drug addiction) won’t have the ability to oppose the legislation. People will get caught with drugs, people will commit violence within the home, and people will drive without a license. At some point, someone within the legislature needs to look and say that these and innumerable other offenses need to be assessed, reclassified, and the punishment needs to fit the crime.

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Worthless checks, white collar crime or a simple mistake?

When I hear the phrase “white collar crime,” I think of a businessman sitting in a cigar-smoke filled room counting all the money he swindled from unsuspecting investors. In reality, white collar crime is defined by Black’s Law Dictionary as:

“Fraud and crime committed by managerial and administrative personnel, professionals and public servants.” http://thelawdictionary.org/white-collar-crime/.

So, is passing a worthless check a type of white collar crime? I guess it depends on who passed it and what their intent was when doing so. But for the vast majority of people, it is not.

To be charged with passing a worthless check in Tennessee, someone has to write a check knowing that there is not enough money in the account, or write a check and then stop payment. This seems less like a criminal law issue and more of a civil law issue, but I guess our courts aren’t too busy to punish people for overdrafting.

Nevertheless, in order to convict someone, the state will have to prove intent to commit fraud. This is usually done by showing that the person who wrote the check was notified that the check bounced, and they didn’t pay the amount owed within 10 days. The tricky part is, the law says that notice of the check bouncing “shall be in writing…sent by certified mail with return receipt requested.” T.C.A. 39-14-121(c).

Sometimes people make mistakes. I don’t mean breaking the law, I mean accounting mistakes. You should not have to face criminal charges just because a check you wrote bounced. Especially if the party bringing the criminal charges failed to follow the law in providing notice that the check was worthless. Sometimes, people make mistakes.

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A World Without Second Chances – Why is it Impossible to have a Criminal Record Expunged?

As children we grow up being taught to believe in second chances. Think of any hero from any novel or movie you watched growing up. It isn’t until the hero fails or is brought low that he can rise to defeat whatever evil is encountered.  This very country was built upon the belief that anyone can rise above their past. A second chance, a new life, these were and are the mantras of countless individuals as they flock to the shores of this great nation.

However, in the criminal justice system this simply is not the reality. Once convicted of a crime that is it, we might as well brand the word “CRIMINAL” on their forehead. “CRIMINAL” is the title that will follow you for the rest of your life. Every job, college or educational institute will demand to know, “Have you been convicted of a crime?” Now with educational options stunted and job prospects limited to low-wage/unskilled work, the prospect of rising above their past slips further and further away.

The fact is the law sets out punishments for crimes, commonly referred to as the person’s “debt to society.” They range from probation and fines to jail time and even death. Why must we erect such a significant roadblock to employment and education right on top? Lawmakers and politicians complain of high recidivism, yet they completely ignore the root cause. A kid (18 years old) gets caught with drugs, he is convicted and sentenced to 8 years in prison because he happened to be pulled over a 2:00 in the morning across the street from a daycare. He serves his sentence and now, at the age of 26, he has a permanent conviction for drugs in a school zone. No funding for school, no real job opportunities, just minimum wage work. However, he has a mother and siblings he has to help take care of. Determined to do anything he can to keep his family from starving, he only has two options, He can live on welfare and food stamps in government housing, while trying to provide for his family or he can sell drugs. Is that even a choice? Seems like an easy question to answer, but until we have walked in his shoes, felt the stress of not knowing how to provide for the family for the last two weeks of the month (because he isn’t getting enough hours at his minimum wage job, and the government assistance isn’t enough to cover the gaps in income for the entire month), we really can’t judge him for choosing to do anything to make sure his family has enough.

Now to address all of those who will say that there is a current expungement law and what about diversion. The current expungement law provides that if you have a single case on your record, and it is the only thing that you have ever been convicted of in your entire life, then you might be able to get it expunged from your record. Also, at least four years has had to of passed since you completed your sentence. Additionally, the case you were convicted of can only contain one count (IE simple possession = ok, simple possession and paraphernalia = not ok). Finally, that single offense can only be expunged if it is on the specific list of low end offenses enumerated in the statute. If all of those magical stars align then you can hire an attorney who can file with the Court (an additional $450 fee on top of attorney fees) a request for expungement that may or may not be granted 30-60 days later……Seriously, this is not a legitimate option. Diversion on the hand is a great solution and an opportunity that should be jumped on whenever possible. However, diversion is only available by agreement in advance, or by taking a chance at a sentencing hearing. It is not available to anyone who has already been convicted and accordingly is not relevant to this discussion.

The truth is, without dramatic changes to the law and providing realistic expungemnet options a second chance will never be available to countless individuals who not only having paid their debt to society but, they must now live branded with the shame of their past actions for the rest of their lives.

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Courtroom tips that matter

This is another one of those blogs that shouldn’t have to be written, but after the last couple days in court, it clearly does. Spending every weekday in court, I get to see and conduct a lot of hearings. All kinds. Anything from preliminary hearings to petition for post conviction relief. After months of watching other attorney’s clients during hearings, I realize that people just don’t know how to act in their own best interest. I cannot emphasize enough, you have to be your own best advocate! I am your attorney, I will do everything in my power and under the law to defend you and your rights, but I cannot dress you, and I cannot make you behave in court. The judge sees it, the district attorney sees it, everyone sees it, and it is hurting you! What, specifically, am I talking about?

I was watching a preliminary hearing where the victim accused her boyfriend of assaulting her. Throughout the entire direct examination of the victim (this is when the state puts their witness on the stand asking them questions so they can tell their story), the defendant was scoffing out loud at almost every statement. He shook his head so much and for so long I found it amazing that he could even stand up without falling over. He tried to talk at least three times during the testimony. When he was told to be quiet, he would tell his attorney that she was lying (he literally said it after every other word that came out of the victim’s mouth). The most amazing part of this entire show was that his attorney never said a word to him.

Before every hearing, I sit down with my client and go over what they need to do and not do during the hearing. Here is what I tell them:

  1. Do not react to anything the witnesses say,
    1. Do not scoff,
    2. Do not shake your head,
    3. Do not even acknowledge that they are in the courtroom.
  1. If you have any questions, write them down (I always provide my client with paper and a pen), if I can and should ask them I will,
  2. Do not talk to the witness,
  3. Do not talk to the judge, and
  4. If you have trouble with any of this, just look forward,

Remember, the judge is the one who rules on all the objection, decides how much leniency I get with my lines of questioning, determines whether there is probable cause to bind a case over, and determines whether to increase or lower a bond. Most people wouldn’t want to annoy the judge or make them mad and hurt their chances of a favorable outcome. But that is exactly what will happen for being disrespectful.

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Domestic Violence Prosecution – A System Broken at its Core

Domestic violence is physical violence where the two parties are related, romantically involved, or living together. It usually involves a person in a position of trust and responsibility violently abusing the other. While violence in any instance is unacceptable this is more egregious because the victim is particularly vulnerable due to the nature of the relationship. Actual domestic violence is among the most atrocious evils plaguing our society. Punishments, for a conviction for domestic violence, range from probation, to months of classes, to one day shy of a year in jail. Further all convictions revoke an individual’s second amendment right to bear arms.

So how can a system, that prosecutes this heinous act, be broken? This really is a criminal law hot button issue. It is broken because it does not have the ability to differentiate between a person guilty of committing domestic violence and a completely innocent party. And no district attorney or judge wants to be the one to dismiss a case only to have something else or something worse happen. It seems that the domestic violence system prefers to lock up/punish innocent people in an attempt to prevent any guilty people from escaping the consequences of their actions. In this current system, everyone who is accused is guilty from the very beginning.

In Davidson County if a 911 call is made alleging domestic violence, someone will go to jail. Police officers do not have the authority to make a judgment call as to whether a crime has been committed. I can no longer count the times that an officer has come to me, the defense attorney, and commented that nothing really happened but that the officer had to make an arrest solely based on the nature of the call.

Now you are in jail. If you are lucky, you can afford to bond out. The average bond on domestic violence is $10,000. That means you have to pay a bonding company roughly $1000 dollars plus tax to get out of jail. This money is non-refundable. Even if you are found not guilty you will not get this money back. If you cannot afford to pay a bond you will just sit in jail.

The State is entitled to ten days to prosecute a case where an individual is in custody. During those ten days you will be sent to court multiple times. The first setting is an settlement/review. The only thing which can occur is a guilty plea. To reiterate if you are in jail on your general sessions settlement/review date your only options are maintain your innocence and stay in jail or plead guilty.

On the second court date the district attorney may, and I emphasize may, have spoken to the alleged victim in your case. If they have they will make an offer based entirely on the one sided version of the alleged victim, usually to plead guilty to probation and a class or jail time. If the alleged victim is unavailable the state will request the remainder of ten days to prosecute the case. Nothing can be done at this point but wait. The assistant district attorney is entitled to ten days and the defense cannot stop this. Now on the tenth day the assistant district attorney will have, hopefully, spoken to the victim and will make an offer or the judge will retire or dismiss the case. That is ten days in jail for as little as one phone call and no other evidence.

We now live in a country where a single phone call with no corroboration is sufficient to place an individual in jail for ten days. Further jail time, a criminal record, loss of constitutional guarantees, and permanent damage to your reputation is based entirely on one person’s word and the mood of your friendly neighborhood district attorney and in no part whatsoever on guilt or innocence.

The worst part is that there is no defense against the abuse in this system. If the person sitting across the table from you at dinner tonight decides to call the police and claim you struck them, you will go to jail. And why would they do this? I’ve seen police called over things as simple as one person was angry over a non-physical argument. I’ve seen couples decide to punish one another for cheating. I’ve even seen police called with outrageous claims of horrible physical violence just to better posture in a child custody dispute.

So what can be done? Public awareness of just how broken this system is would be a start. Next a better system needs to be built so that the innocent do not suffer next to the guilty.  And to be clear, I do not advocate for leniency. True domestic violence is deplorable and should be handled severely. However the system must improve so we only punish those who deserve it and not everyone who is accused of it.

Bond, the Ultimate Discrimination Against the Poor

Bond

When a defendant is arrested, they can give the court money in order to remain free while waiting for their case to get through the court system. This is called bond or bail money.

The obvious discrimination is that a defendant with money can get out of jail while their case is handled, and a poor defendant cannot.

However, the true damage is done in the early court process. Most criminal cases start in general sessions. Here the majority of cases are handled by an agreement with the state. If no agreement is reached, then the case gets bound over to the criminal courts. This process takes about six months to reach the criminal court. If the case is to proceed to trial, then there is another three-six month wait. If a person cannot afford to make their bond, then they will remain in jail this entire time regardless of whether they are guilty or innocent.

The result is that the State has no motivation to consider the circumstances of a crime where a defendant cannot afford their bond. Any offer short of six months is nearly impossible to turn down. An innocent defendant must seriously consider all offers regardless of their merit.

By contrast, any person who is out of jail can ignore poor offers from the state. They can force the state through time consuming hearings and a bind over process at little or no personal cost. This places the state in the position of being highly motivated to settle cases when the defendant is out on bond.

The result is that a defendant who can afford bond will receive better offers than a defendant who cannot. This difference will include pleading to lesser charges and to reduced time. Being convicted of a lesser charge is far less detrimental to future job prospects and to future court proceedings. While jail time almost always results in lost employment, jail fees, and reduced future opportunities. And while someone might find that this is just the cost of committing crime, remember that the only difference in the treatment of the two defendants is that one could afford to bond out of jail and the other could not.