Sentencing in Rape Cases – Stanford Swimmer vs. Vanderbilt Football

The Media has blown up lately regarding the discrepancy between the sentencing of the Vanderbilt football player and Stanford swimmer who both recently received convictions for crimes stemming from a sexual assault on an unconscious person.

People are enraged on both sides of the equation. Implying that skin color played a part.  Why did the black man receive such a larger sentence than the white man? Why would one judge give probation while another gave a 15-25 year sentence to serve at a hundred percent?

Well, let’s start at the beginning. The facts of both cases are nearly identical. However, the law in both cases is completely different. While I am an attorney in Tennessee, I can only imagine the law, as far as sentencing is concerned, in other states is similar.

The jury found the Stanford Swimmer guilty of “intent to commit rape of an intoxicated person,” “penetration of an unconscious person,” and “penetration of an intoxicated person.” This allowed for the judge to issue a sentence based on those charges. The range of punishment I believe he was facing was 3-14 years (The prosecutors in that case were only asking for 6). When sentencing a defendant, there are significant guidelines that a judge should follow. The judge should not be swayed by public opinion or media outcry. The judge’s personal opinion or feelings should not affect their ruling. Simply put, the judge is there to apply the law.

In Tennessee the law is such that the shortest sentence within the range should be the presumptive sentence. Meaning if the range is three to six years then the judge should assume the sentence is three years and only depart from that if certain specific “enhancing factors” are found. The crime itself is not to enhance the punishment as the legislature specifically set the punishment for that crime at the intended  range. Furthermore, in Tennessee the judge is required to consider alternative sentencing in eligible cases. Again, this is the action of the Legislature, not the judge. The Legislature determines which crimes can receive probation and which sentences require a sentence to serve. With these factors considered and no personal opinion, the judge must issue a sentence. The sentence issued to the Stanford swimmer is harsher than minimum, under Tennessee law.

By contrast, the Vanderbilt football player went to trial and the jury convicted him of aggravated rape (The fact that the victim is unconscious enhances a rape Charge in Tennessee, a fact that is again determined by the legislature, not the judge). The range on this charge is 15-25 years at 100% (meaning the defendant must serve the entire sentence without parole). The Judge has no discretion to sentence outside of this range. This Range for this offense is again determined by the legislature, not the judge. The absolute most lenient sentence the judge can issue is 15 years to serve at 100%. To put this in perspective the one judge sentencing 15 years is the lightest punishment allowed by law and the 6 months to serve is harsher than the law requires.

The disconnect in the sentences is not the fault of the Judge in each case but instead, the legislature defining the crime and setting punishment range. There is no question the result is not fair, however the rulings appropriately apply the relevant law. The judges in both cases seem to have applied the law correctly. There can be no allowance within the law for a judge to issue rulings based on personal belief or media attention. The issue is with the law. The Legislature holds within its power the ability to outline punishments for crimes. The judge has no authority to defy the legislature when the law is constitutional, and as of yet, I am unaware to any constitutional challenge to either ruling. Ultimately the public outcry against the judges may be unfounded. Both judges applied their State’s law correctly.  The issue arises from the law and punishment created by the legislature, not by the judge interpreting it.

Faulty Service May Render Thousands of Orders of Protection Invalid

When someone takes out an order of protection (“order”), the Davidson County Sheriff’s Office (“DCSO”) is responsible for serving the person the order is taken out against (respondent) with a copy of that order. This is called “notice.” Notice of the nature of the case against the person, when and where they can be heard and/or fight the case. Notice is vital to our constitutionally protected Due Process Rights under both the Federal and Tennessee Constitutions. Without proper notice, the court does not have the jurisdiction necessary to make any rulings against the respondent. Tennessee law requires that this service be done in person. (T.C.A. 36-3-605(c)). DCSO serves the orders by phone, which is a clear violation of Tennessee law, or at the very least, does not comply with Tennessee law.

On June 6, 2016 Judge Philip E. Smith, Fourth Circuit, issued an order finding that DCSO’s practice of service by phone renders service insufficient. When service is insufficient, the order and the subsequent violations and criminal charges resulting from those violations may be void. In a footnote, Judge Smith wrote:

“The Court is concerned that if this method of service of process is the current policy of the Davidson County Sheriff’s office, the courts of the Twentieth Judicial district may be entering Orders of Protection against respondents in violation of their due process rights. Additionally, because of the insufficiency of service of process personal jurisdiction would not be properly conferred upon the court resulting in many of the orders of protection being void. While Orders of Protection are civil in nature, violations can be tried by criminal contempt or by a violation warrant. If the Court is in fact correct in its analysis regarding the Sheriff’s Office Current method of service, then this Court is fearful that hundreds, if not thousands, of orders of protection and the corresponding criminal convictions thereon could be void as the courts never obtained personal jurisdiction over the respondent.” Footnote 1.

This order could invalidate thousands of orders of protection. If you or someone you know was served with an order of protection, violated that order of protection, and were convicted of criminal offenses due to those violations; you may be able to have those charges removed from your record. If you are currently dealing with criminal charges due to an order of protection, you may have a defense against the order and all the violations.

If you think this might apply to you, or someone you know, contact the Law Offices of Lords and Cate at 615-418-9814 or by email.

10 Tips For Avoiding a DUI this St. Patty’s Day in Nashville TN

With St. Patty’s day right around the corner everyone can expect at least three things, people dressed in green, excessive drinking, and DUIs. The Law Offices of Lords and Cate wants everyone to enjoy the celebration responsibly and avoid jail. Here are 10 tips for avoiding a DUI.

  1. Don’t drink and drive.

The easiest way to avoid a DUI is to simply not drink and drive. Have a designated drive. If you don’t have a designated driver, call a cab, or in some cases the sheriff’s office will be offering sober rides at no cost. Every year there is a “sober ride” program in Nashville Tennessee, before going out look it up, save the number, and use it before getting behind the wheel.

  1. If you make the wise decision to sleep it off, hide your keys outside the vehicle.

If you decide to sleep it off in your car, make sure that the car is not running and the keys are hidden outside the vehicle. Get in the back seat; don’t sleep in the front seats. In Tennessee, you can be prosecuted for DUI if you are in physical control of the vehicle; this has been interpreted to mean the ability to control use and non-use (aka. drive the vehicle if you wanted to). If you are caught in the back seat asleep without the keys anywhere in the vehicle, you have a very good defense.

Oh, and don’t tell the officer that you know where the keys are. Tell the officer that you have no idea where they are, or that you lost them somewhere that night and you couldn’t find them.

  1. Don’t drink on an empty stomach.

Drinking on an empty stomach will increase your likelihood of impairment. Make sure that you eat a meal while you are drinking, and be careful not to drink too much.

  1. Check your license plate light, taillights, break lights, blinkers, and headlights.

Police officers will be looking for any reason whatsoever to pull you over. Taking the time to ensure that all your lights are working will reduce your risk of being stopped.

Also, make sure that your registration is up to date, your license is valid, and you have a current insurance card.

  1. Obey every traffic law.

This means don’t drink and drive, but since you’re going to do it anyway; use your blinker when making a turn, obey the speed limit, no rolling stops, and keep it between the lines.

  1. Check the local paper and local news websites for sobriety checkpoints.

It is extremely common for police to put up sobriety checkpoints. The thing about these checkpoints is that they have to be announced. You can look up the checkpoint’s location online, in the local paper, or just call the police department and ask.

Though checkpoints seem like a clear violation of your right to privacy, the U.S. Supreme Court and the Tennessee Supreme Court have found that they are constitutional for the single purpose of combating drunk driving. There are, however, some serious restrictions on these checkpoints so if you get arrested at one, you might have a defense.

  1. Stay off your phones.

Being on your phone is a sure way to get the attention of police officers and likely to get you pulled over. Police officers can pull you over for simply looking at your phone. Put it down, turn it off if you have to, but whatever you do don’t have it in your hand while driving. You are already putting other people at risk; there is no need to multiply that risk by playing on your phone while driving.

  1. Don’t let someone who has been drinking drive you home in your car.

If you have been drinking do not give your keys to someone else who has been drinking and let them drive you home. If your driver is pulled over and arrested for DUI you will get charged with a DUI as well. You are better off hiding your keys outside the vehicle and sleeping it off in the back seat.

  1. If you get pulled over (and you know you are above the legal limit of .08).

If you see those blue lights flashing behind you I suggest the following.

  • Roll down your windows while pulling over. This will help get rid of some of the alcohol smell.
  • Start chewing a piece of gum or a mint.
  • Make sure you have your license, registration, and proof of insurance ready when the officer gets to your window.
  • When the officer gets to your window don’t talk to him, don’t look at him, just hand him your documents.
  • Do not answer any of the officer’s questions, just keep looking forward.
  • If the officer instructs you to get out of the vehicle, get out.
  • If the officer instructs you to do any field sobriety tests, just shake your head no.
  • If the officer tells you to take a breathalyzer test, shake your head no.
  • The officer will arrest you and you will be taken to the hospital where they will ask to take your blood, just shake your head no.
  • You will then be booked for DUI and you will be able to make your bond.

If you don’t answer any questions the officer cannot say that you slurred your speech, if you don’t take the breathalyzer or give blood there is no physical evidence that you were intoxicated, if you don’t do the field sobriety tests the officer cannot claim that you were falling all over the place, and if you have your documents ready when the officer gets to your window the officer cannot say that you were fumbling around looking for them.

If you don’t give the police any evidence that you have been drinking, it becomes very difficult for the State to convict you of a DUI. Until February 2014, it was typically a good idea to take the field sobriety tests to show that you were not impaired, but with the recent Tennessee Supreme Court decision State v. Bell, field sobriety tests cannot help you at all. Even if you pass them 100% perfectly, it doesn’t matter.

  1. Call The Law Offices of Lords and Cate.

If you get arrested for DUI you will need representation. Call The Law Offices of Lords and Cate at (615) 418-9814 and let us help you.

We cannot stress enough the importance of having a designated driver. Not only will having a designated driver keep you from getting a DUI but it just might save a life. Be smart this St. Patty’s day, have fun, and get home safely.

What Happens If Justice Scalia is not Replaced Before this Session’s Cases are Heard?

As everyone knows, or should know by now, Justice Scalia has passed away, leaving a vacancy in the United States Supreme Court. Regardless of how you felt about the man, he was a legal juggernaut and admired not only by his fellow justices, but also by many conservatives and liberals alike.

There is so much controversy surrounding who will replace Justice Scalia and whether or not the senate will block a nomination until after the presidential election. This blog is not intended to discuss those controversies. Instead, I want to discuss what could happen in the event Justice Scalia is not replaced prior to this session’s cases being heard.

Now that there is a vacancy in the Court, there is a real possibility that the Justices will be split 4 – 4 on cases (especially considering the fact that most controversial cases are decided 5 – 4) in this session. A 4 – 4 split is not impossible when there are 9 judges on the bench either. There are times where a justice will recuse themselves from hearing a case because they may have a conflict with that particular case. In the event that the Court is split, the ruling of the lower court will stand as if the Supreme Court never heard the case at all. However, the opinion of the Supreme Court will be persuasive to all other jurisdictions (all other states not subject to the decisions of the Federal Circuit Courts that originally heard the case). What are the Justices options? Well they can take the chance of voting and having a split, upholding the decision of the lower court, or they can hold the case over until next session in the hopes that Justice Scalia is replaced.

Considering the consequences of a 4 – 4 split, what are the big cases to watch this session? The following are the names of the cases and a link to the Supreme Court of the United States Blog explaining cases in detail:

Fisher v. University of Texas at Austin (Affirmative Action)

Evenwel v. Abbott (One Person, One Vote)

Friedrichs v. California Teachers Association (Public Union Dues)

Whole Women’s Health v. Cole (Abortion)

Whole Women’s Health v. Cole (Abortion)

Another link for great information considering these cases is

TN Supreme Court Extends Police Powers

This past Thursday, February 11th, the Tennessee Supreme Court issued two opinions, State v. Smith ( and State v. Davis ( , 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.

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.

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.

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.

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.

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.