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.

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.