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For The Defense In this Issue
Annual Meeting Recap and DUI Defense Spotlight
July—September 2014
Volume
28—Number 3
Tennessee Association of Criminal Defense Lawyers
A special thanks to TACDL members Jim Simmons and David Raybin
for their photos of the Annual Meeting
DUI Defense Seminar and TrainingDUI Defense Seminar and
Training
October 16October 16--17, 201417, 2014 The Chattanoogan
Hotel
Chattanooga, TN Chattanooga, TN
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2 For the Defense Jul - Sep 2014
In this Issue:
3 President’s Message By: Sam Perkins 4 From the Executive
Director By: Suanne Bone 5 TACDL Roundtables 6 News from Capitol
Hill By: Nathan H. Ridley 8 State Case Law Update By: Chelsea
Nicholson 10 Juvenile Defense Seminar Schedule
September 19, Knoxville 11 TACDL Membership Benefits 12 DUI
Defense Seminar and Training October 16-17, Chattanooga 14 Federal
Case Law Update By: Jonathan Harwell 19 Upcoming CLE Schedule
Editorial Board: Sara Compher-Rice Mary-Kathryn Harcombe Rob
McKinney Chelsea Nicholson Mike Working
TACDL BOARD OF DIRECTORS 2014-2015
Samuel L. Perkins, President Paul J. Bruno, President-Elect Sara
Compher-Rice, Treasurer Joseph Ozment, Secretary Mike Whalen, Past
President East Tennessee: Marcos Garza, Knoxville Jonathan Holcomb,
Morristown Jonathan Cooper, Knoxville Troy Bowlin, Morristown Keith
Davis, Dunlap Jessica Greene, Knoxville Middle Tennessee: G. Jeff
Cherry, Lebanon Mary-Kathryn Harcombe, Nashville Dana Ausbrooks,
Franklin Bernie McEvoy, Nashville Laura Dykes, Nashville Frank
Lannom, Lebanon West Tennessee: Kamilah Turner, Memphis Michael
Working, Memphis Claiborne H. Ferguson, Memphis Lauren Fuchs,
Memphis Ben Dempsey, Huntingdon Eric Elms, Memphis Committee Chairs
Amicus Curiae: Jeff DeVasher CLE: Paul J. Bruno Death Penalty: Jim
Simmons Finance: Patrick Newsom Forensic Experts: George Maifair
Indigent Defense Funding: Collier Goodlett Joseph S. Ozment
Innocence: Stephen Ross Johnson Juvenile Defense: Chris Kleiser
Legislative: Melanie R. Bean G. Jeff Cherry Long-Range Planning:
John G. Oliva Membership: Lisa Naylor Past Presidents: Ann C. Short
Personnel: Laura C. Dykes Publications: Sara Compher-Rice Strike
Force: Rich McGee TACDL Staff Suanne Bone, Executive Director
Austin Brown, Communications Director
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- Sep 2014 For the Defense 3
From the President Sam Perkins
Those of us privileged enough to be in Memphis for the annual
meeting leave with a tremendous sense of renewal. The law school at
the University of Memphis was an absolutely top rate facility.
Events included a great lunch at the Rendevous and a beautiful
evening on a Beale Street balcony. But perhaps the most powerful
moment for most attendees came as they each toured the National
Civil Rights Museum. As we followed the museum tour to the balco-ny
where Dr. King was cut down, a single theme emerged in exhibit
after ex-hibit after exhibit. In each century, in each decade, in
each state, the leaders and people struggling for civil rights have
all been asking for justice.
On his last night in Memphis, Dr. King preached that he had been
to the mountaintop, and he had seen the promised land. Dr. King
said that he might not get there, but we would make it one day as a
peo-ple. On their last night in Memphis, TACDL lawyers young and
old were renewed and rededicated to continue the journey up the
mountaintop. The call to justice is a heavy burden for those of us
lucky enough to receive the calling. The jour-ney is never easy,
but the heavy burden seems easier to carry when there are others
standing with you and sharing the load.
As I took my own personal walk through the exhibits, I was
struck by the similar message from the people that we were learning
from inside the museum and those we were learning from at the law
school. One exhibit was a lonely jail cell with chipped paint,
rusty iron bars, and a simple cot with no sheets. I sat there
looking at a bare cinderblock wall and listened to Dr. King reading
his “Letter from the Birmingham Jail.” I was reminded of Lisa
Naylor speaking that morning of how important it is to listen to
our clients. How can we tell their story if we haven’t even heard
it? How often are you excited to read your client’s “Letter from a
Tennessee Jail?”
I watched a video of a young future congressman named John Lewis
standing arm in arm with a group of brave citizens on a bridge in
Selma, Alabama as they began a march to Montgomery. The marchers
stood their ground as the full weight of a brutal government
unloaded on the group with over-whelming force. Watching this brave
stand and brutal beating made me remember how we, as defense
attorneys are the only thing standing in the way to prevent the
government from crushing our client. The only people making the
government follow the law are defense attorneys.
I am so proud to be the president of this organization, but I am
just as proud to be a member of TACDL. While I am honored to be
your leader, I am just as honored to stand arm and arm with you to
protect the citizens of this state. Let me encourage you to bring
others to join us arm in arm. I hope that each of you can encourage
one new member – just one – to stand with us for the people of
Tennessee. More members means more people to learn from, more
people to share with, and more lawyers advancing the cause of
justice. My challenge to you all is to help grow this wonderful
organization by one member. Together we will be even stronger as we
stand arm in arm for liberty and justice for all.
Sam Perkins is an attorney practicing in Memphis. He may be
reached at 901-523-8832.
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From the Executive Director Suanne Bone
TACDL recently celebrated its 41st Annual Meeting and CLE
Seminar on August 1-2 in Memphis. Attorneys from across Tennessee
gathered for two days of training and camaraderie. The newly
renovated Cecil C. Humphreys School of Law played host to the CLE
seminar. A special thank you is offered to the mem-bers of the
Memphis TACDL delegation who hosted a welcome reception on Thursday
evening at the Jerry Lee Lewis’ Café & Honkey Tonk on Beale
Street.
The seminar began on Friday morning with dynamic presenters –
thank you to Lorna McClusky and her Memphis team for securing the
slate of speakers. On Friday evening a dessert reception and tour
was held at the newly reno-vated National Civil Rights Museum. The
presentations resumed on Saturday morning.
The Annual Membership Meeting was held on Saturday at the
Rendezvous. Mike Whalen handed the President’s gave to Sam Perkins
(Memphis) and the following members were elected to serve on the
Executive Committee: Paul Bruno (Nashville) as President-Elect,
Sara Compher-Rice (Knoxville) as Treasurer, Joe Ozment (Memphis) as
Secretary and Mike Whalen (Knoxville) as Past President. Thank you
to the outgoing board mem-bers for their service to TACDL and
welcome to the new board members who were elected to three year
terms. During the luncheon the following individuals received
awards. The Joseph B. Jones award was presented to Lor-na McClusky.
The Robert W. Ritchie award was presented to Rob McKinney. The
Capital Defense award was presented to Patrick McNally. The Massey
McGee Trial Advocacy award was presented to Joseph McClusky, Taylor
Eskridge, Bailey Harned and in memory of Glenn Shinaberry. The
workhorse award was presented to Lar-ry Drolsum and Rich McGee.
The 7th Annual DUI Seminar and Training is right around the
corner. The two day training will be held on October 16-17. Rob
McKinney is taking the two day training – for the first time - to
Chattanooga at The Chat-tanoogan Hotel. The first annual DUI
workshop will also be held in conjunction with the seminar. Twenty
–four attorneys will attend the workshop. This is the first time
TACDL has attempted a two day specialty college! A complete copy of
the seminar schedule is listed on pages 12 and 13 of this
issue.
The TACDL Board of Directors meeting will be held on October 16,
during lunch on day one of the DUI seminar. All TACDL members are
invited to attend the board meeting.
As always, feel free to contact me with questions or concerns. I
appreciate the guidance from all TACDL members and look forward to
working with you in the future. Suanne Bone is the Executive
Director of TACDL. She may be reached at [email protected] and
615/329-1338.
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4 For the Defense Jul - Sep 2014
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Roundtables Nashville
1st Thursday of each month Rich McGee and Lisa Naylor
615-254-0202 [email protected] and
[email protected]
Chattanooga 1st Thursday of each month
Myrlene Marsa and Rich Heinsman 423-756-4349 (Myrlene) and
423-757-9995 (Rich)
Williamson County
3rd Thursday of each month Kimberly & Ben Signer
615-794-4744 [email protected]
Memphis 3rd Thursday of each month
Lauren Fuchs 901-384-4004
[email protected]
Knoxville Last Thursday of each month
Mike Whalen 865-525-1393
[email protected]
Join fellow criminal defense professionals for discussion on
pertinent legal issues and be entered into a drawing for a free
CLE!
__________________________________________________________________Jul
- Sep 2014 For the Defense 5
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6 For the Defense Jul - Sep 2014
News from Capitol Hill Nathan H. Ridley
Legislative Process 101. The General Assembly has completed its
work for 2014. Pursuant to HJR1192, the 108th General Assembly of
the State of Tennessee stood in adjournment sine die at the close
of business in both houses on April 17, 2014. The 109th Tennessee
General Assembly will convene at noon on January 13, 2015.
Legislative Update, Top Five New Statutes for 2014.
Balanced Budget, almost. Chapter 919. The General Assembly
balanced its use of recurring revenues with recurring expenditures
except in the TennCare program where some reserves were used to
patch over a portion of proposed provider cuts.
Wine. Chapter 554. Tennessee will become the 34th state to
authorize the sale of wine in retail food stores in 2016 if local
communities approve such by referenda. The earliest date for a
referendum is the November 2014 election. If successful, wine may
be sold in retail food stores beginning July 1, 2016. In the
meantime, existing Tennessee package stores have been able to sell
a host of new food, beverage and tobacco products in addition to
wine and spirits since July 1, 2014.
Tennessee Promise. Chapter 900. This is the signature
accomplishment of the Haslam Administration during the 2014
session. Most high school graduates will be able to attend a public
two year college tuition free beginning in the fall semester of
2015.
Annexation. Chapter 707. Tennessee municipalities will no longer
be able to annex territory without the prior approval of the
property owner being annexed.
Pseudo-Ephedrine. Chapter 906. In an effort to reduce the
production of methamphetamine and yet recognizing that Tennessee is
the on the belt buckle of the allergy belt, the General Assembly
reduced the amount of products containing ephedrine or
pseudoephedrine that may be purchased in a month or a year without
a prescription.
Bills of Note for the Defense. The 108th General Assembly
enacted a number of bills affecting the crimi-nal justice system
during the 2014 session.
Successes:
Chapter 902 which reduces the jail time for second and third
time DUI offenders and substitutes treatment participation as part
of the probationary period.
1A) Chapter 922 which corrects the 2013 statute that required
defendants to secure a new bail bond upon entering a plea agreement
or being convicted.
Chapter 804 re: Open Records maintained for sex offenses during
trial and sentencing.
Chapter 618 which establishes a five year statute of repose for
any action or suit against an at-torney.
SB 1727 / HB 1572 re: witness list disclosure was deferred
indefinitely.
SB 1726 / HB 1524 re: admissibility of photographs during
criminal trials was deferred indefi-nitely.
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- Sep 2014 For the Defense 7
Jerry Richards & Associates, L.L.C.
Retired FBI Special Agent
Former Head of the Polygraph Program of the Knoxville FBI
Division
Investigative and Polygraph Services
40+ Years in Complex Investigations
and Polygraph
Serving TACDL Members since 1998
E-mail: [email protected]
(O) 865.966.1027 (C ) 865.567.0372
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Marty Guinn Pearce, CDE
E-mail:
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524 Saint Paul Drive Hermitage, TN 37076
(O) 615.693.1402
(TF) 888.640.1001 www.MartyPearce.com
Relationship Building. The legislative process is built upon
relationships. Using the TACDL legislative breakfast as a
springboard, TACDL members and their legislative troops have worked
to build relationships with the members of the General Assembly
with a particular focus on the committee and subcommittee levels
that directly affect the practice of criminal defense law. While we
still take some punches, as a measure of success, TACDL now has
legislators seeking our opinions on bills and amendments before
they are considered.
Setbacks:
Chapter 820 which creates the criminal offense of being pregnant
and addicted to narcotic drugs.
1A) Chapter 940 which creates the continuing sexual offense of a
child.
Public Service Note. Howard Baker died on Thursday, June 26,
2014 at the age of 88. Two notable comments come to mind with all
the kind words that have been spoken and written about him. First,
anytime he was sitting across a desk from someone in disagreement,
he told himself to keep in mind: You know - the other fellow might
be right. Second, from of all people, Dan Quayle, when he was a
senator summed it up: “There’s Howard Baker, and then there’s the
rest of us senators.” We should all keep the Baker family in our
thoughts and prayers as we celebrate a life well lived.
Calendar Notes: State offices will be closed Monday, September
1, 2014 for the Labor Day holiday. The last day to register to vote
for the November general election is Monday, October 6, 2014. The
November general election is Tuesday, November 4, 2014. The 109th
General Assembly will convene on Tuesday, January 13, 2015. Nathan
Ridley is an attorney with the Nashville firm, Bradley Arant Boult
Cummings LLP. You may con-tact him by e-mail at
[email protected].
mailto:[email protected]�
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8 For the Defense Jul - Sep 2014
State Case Law Update May—July 2014 Chelsea Nicholson
I. Court of Criminal Appeals CONFRONTATION CLAUSE State of
Tennessee v. Charles Sharp, W2013-00330-CCA-R3-CD, Shelby Co.,
7/28/14, The Defendant was indicted for one count of especially
aggravated sexual exploitation of a minor, four counts of rape, one
count of sexual battery by an authority figure, one count of
statutory rape, and one count of vandalism under $500. The
Defendant was acquitted of all charges ex-cept especially
aggravated sexual exploitation of a minor, on which the jury was
hung. See State v. Sharp, 327 S.W.3d 704, 708 (Tenn. Crim. App.
2010). The Defendant was tried again on the charge of especially
aggravated sexual exploitation of a minor and convicted. Id. This
court reversed the Defendant’s conviction and remanded for a new
trial based on the State’s having read a witness’s testimony from a
prior trial into evidence without having shown the witness’s
unavailability. Id. at 709-712. The Defendant was tried twice more
on the charge of especially aggravated sexual exploitation of a
minor, and the juries were unable to reach a ver-dict. In this
case, the Defendant was tried and convicted again on the same
charge and sen-tenced to 12 years of incarceration. The Defendant
appealed. The CCA affirmed the Defend-ant’s conviction but
concluded that the Defendant’s sentence violated Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403
(2004), and therefore, modified the Defend-ant’s sentence from
twelve years to nine years. DUI State of Tennessee v. Larry
Mitchell Brooks, M2013-00866-CCA-R3-CD, Maury Co., 6/6/24, The
Defendant was indicted for one count of DUI, one count of violation
of the open container law, one count of violation of the
registration law, one count of violation of financial
responsi-bility law, and one count of failure to maintain control.
Prior to trial, the Defendant filed a mo-tion to suppress the blood
sample evidence on the basis that the State was unable to provide
proper chain of custody for the sample. After a hearing, the trial
court granted the motion to suppress. The trial court entered an
order of nolle prosequi. The State filed a notice of appeal on the
same day that the order of nolle prosequi was entered. The CCA
determined that Tenn. Code Ann. § 55-10-410 does not require the
certificate of the blood draw to include the person who took the
blood specimen in order to establish chain of custody and that the
evidence at the hearing on the motion to suppress adequately
established the chain of custody. The trial court was reversed.
http://www.tsc.state.tn.us/sites/default/files/sharpcharlesopn.pdf�http://www.tsc.state.tn.us/sites/default/files/brookslarrymitchellopn.pdf�
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- Sep 2014 For the Defense 9
State of Tennessee v. Marvin Roscoe, W2013-01714-CCA-R9-CD,
Shelby Co., 7/11/14, This was an interlocutory appeal by the State
of the trial court’s granting in part the Defendant’s mo-tion to
suppress. The Defendant was indicted for DUI and DUI over .08%. The
Defendant filed a motion to suppress any evidence seized or
statements made as a result of his stop and arrest. The trial court
entered an order granting in part the Defendant’s motion to
suppress. The State appealed arguing that the trial court erred.
The CCA reversed the judgment of the trial court. In this case, the
officer submitted that the Defendant ran through a stop sign and
was pulled over. The officer stated that he smelled alcohol when
the Defendant rolled down his window. He asked the Defendant to
step out of his vehicle and perform field sobriety tests. The
Defendant was subsequently arrested for DUI. The trial court found
that while the investigatory stop was constitutional, “that Officer
Thomas lacked probable cause to arrest the defendant following the
preliminary HGN test.” The trial court suppressed any evidence or
statements pertaining to or obtained after the Defendant’s arrest.
The CCA reversed finding, “although the trial court was correct in
concluding that the odor of alcohol alone was insufficient to
establish probable cause, the combination of the odor of alcohol
with other signs of intoxication supports a finding of probable
cause for the DUI arrest.” II. Tennessee Supreme Court DOUBLE
JEOPARDY State of Tennessee v. Glover P. Smith,
M2011-00440-SC-R11-CD, Rutherford Co., 6/19/14, The Defendant was
indicted on two counts of fabricating evidence and on six counts of
making a false report arising out of the disappearance of his wife.
A jury convicted the defendant on all counts, and the trial court
imposed a sentence of one year in the county jail followed by six
years on probation. After a hearing on the Defendant’s motion for
new trial, the trial court af-firmed the convictions for making a
false report but dismissed the convictions for fabricating evidence
after concluding that no investigation was “pending” when the
Defendant fabricated evidence. Both the State and the Defendant
appealed. The CCA reinstated the Defendant’s con-victions for
fabricating evidence, dismissed as multiplicitous two convictions
for making a false report, and affirmed the remaining convictions
and sentences. The TNSC granted the De-fendant permission to
appeal. The TNSC affirmed the CCA’s reinstatement of the
Defendant’s convictions for fabricating evidence and concluded that
two of the Defendant’s convictions for making a false report should
be dismissed because the evidence was insufficient to support these
convictions. The TNSC also concluded that three of the Defendant’s
convictions for mak-ing a false report are multiplicitous and
therefore dismissed two of those convictions. The CCA was affirmed
in all other respects. Chelsea Nicholson is a criminal defense
lawyer, who practices in Nashville, Tennessee. She can be reached
at [email protected] or 615-256-0138.
http://www.tsc.state.tn.us/sites/default/files/roscoemarvinopn.pdf�http://www.tsc.state.tn.us/sites/default/files/smithglover_opn.pdf�mailto:[email protected]�
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10 For the Defense Jul - Sep 2014
Juvenile Defense Seminar September 19
University of Tennessee College of Law, Knoxville Approved by
the TN CLE Commission for a maximum of 7.00 credit hours: 5.00
general, 2.00 dual
Call 615-329-1338 or visit www.tacdl.com to register today!
_____________
_____________
8:00
Registration and breakfast
sponsored by UT Legal Clinic
8:30
10 Supreme Court cases every juvenile defender should know
Maya Sheppard & Wendy Bach (.75 gen)
9:15
Adolescent Development JTIP Curriculum
Theodora Pinnock, MD & Jennifer Hall
(1.50 gen)
10:45
Break
11:00
Cracking open juvenile appeals in TN: roundtable discussion
Randee Waldman, Tim Arnold, Penny White
moderated by Chris Kleiser (1.25 gen)
12:15
Lunch (provided)
1:00
Critical Issues with Guilty Plea and Dispositional Planning. The
ethics of plea counseling with the
youth client
Wendy Back, Chris Kleiser & Susan Kovac (2.00 dual)
3:00
Break
3:15
Motion Practice– JTIP Curriculum
Randee Waldman & Jerry Black (1.50 gen)
4:45
Wrap Up
5:00
Adjourn
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- Sep 2014 For the Defense 11
Membership Benefits ———————————————————
Amicus: Members monitor the appellate courts and file briefs on
issues concerning criminal law.
Continuing Legal Education: Provides 80+ hours of CLE across the
state annually.
Criminal Justice Policy: Members serve on the Judicial Selection
Commission, Judicial Evaluation Commission, Bench-Bar Relations
Commission, Domestic Violence State Coordinating Council, and
various short-term task groups to represent the criminal defense
bar.
Forensic Experts: Database of expert witnesses for use by
members.
Legislative: Employs a lobbyist to monitor and work with
legislative committees, who informs members of issues in the
Legislature and other policy-making bodies.
Resource Library: Educational materials and videos available for
purchase from past semi-nars.
Member Network: Members provide assistance to each other in
practicing criminal law through the Members-Only listserv. Also, a
new attorney mentoring program is available upon request.
Publications: Publishes a quarterly newsletter entitled For the
Defense, a weekly on-line news-letter entitled The Weekly Writ, and
Tennessee death penalty manuals.
Strike Force: Specifically designated members provide free
counsel to other members facing criminal contempt charges in the
courts for “zealously” representing clients’ rights.
Website: Information pertaining to TACDL, its Board of
Directors, current membership list, a listing of all CLE seminars
for the year and links to research sources.
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12 For the Defense Jul - Sep 2014
The Chattanoogan Hotel 1201 Broad Street
Chattanooga, TN 37402
October 16-17, 2014
Tennessee Association of Criminal Defense Lawyers
DUI Defense Seminar and Training
One Day Both Regular, Sustaining: $250 $495
Affiliate: $250 $495
Pub Defender: $200 $395
New: $200 $395
Post 1993 Life: $100 $195
Pre 1993 Life: $0 $0
Law Students: $75 $150
Non-Members: $325 $650
Seminar Materials only: $75
Registration Fees HOTEL ACCOMMODATIONS: TACDL reserved a block
of rooms with the
Chattanoogan Hotel If you are interested in a room, please
contact the hotel at
800-619-0018 or by visiting www.chattanooganhotel.com by
September 22, 2014 and advise the hotel you are with the Ten-nessee
Association of Criminal Defense Law-yers, using Group ID: 517052
for the group
rate.
The rate is $119 /day.
Pending approval by the TN CLE Commission for 15.00 credit hours
(11.75 gen, 3.25 dual)
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SEMINAR SCHEDULE
Call 615-329-1338 or visit www.TACDL.com/
upcoming-events to register today!
Wednesday, October 15th
8:30 Welcome reception at The Foundary Sponsored by:
Thursday, October 16th
7:15 Registration
8:00 Preparing for the Preliminary Hearing Jerry Summers (1.0
gen)
9:00 Preparing to Win without Experts Judge Mark Fishburn (1.25
dual)
10:15 Break
10:30 DUI Case Law Update Sara Compher-Rice (1.25 gen)
11:45 Lunch & TACDL BOD meeting
1:15 Warrantless Searches & Seizures Jay Steed (.75 gen)
2:00 Topic TBA Marcos Garza (1.0 gen)
3:00 Break
3:15 Topic TBA Andrea Hayduk (1.0 gen)
4:15 Observations from 30 years in the trenches Ed Fowlkes (.75
gen)
5:00 Insights from a former DUI Officer Ron Lucarini (.50
gen)
5:45 Adjourn
6:30 Cheese & Wine Tasting Reception at DeBarge Vineyards
& Winery
Friday, October 17th 7:30 Ethics at Sunrise Panel Discussion
(1.0 dual) 8:30 Blood Alcohol Issues Deandre Grant (1.25 gen) 9:45
Break Sponsored by: 10:00 DRE Doug Murphy (1.25 gen) 11:15 Lunch
12:30 Drugged Driving Issues Dr. Jimmie Vanetine (1.0 gen) 1:30
Updates on 2013 SFST changes Tony Corrato (1.0 gen) 2:30 Break 2:45
Trial Skills that work Panel Discussion (1.0 general) 3:45 Ethics
TBA (1 dual) 4:45 Adjourn
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14 For the Defense Jul - Sep 2014
Federal Case Law Update July-August 2014
Jonathan Harwell The Supreme Court closed out its term with a
couple of good opinions, the cellphone decision in Riley and the
death penalty decision in Hall -- both the kind of cases that seem
like they should be straightforward but which the Court so often
gets wrong due to misunderstanding or ignoring the technological or
scientific reality. I also enjoyed Justice Scalia’s words in
Abramski, sadly in dissent, on the rule of lenity, a rule that in
my experience is often given short shrift by judges. As he wrote,
quoting Chief Justice Marshall, the rule of lenity is “founded on
the tenderness of the law for the rights of individuals.” Abramski
v. United States, 134 S.Ct. 2259 (2014): Addressing issues relating
to straw purchasers of guns from licensed dealers. The defendant
purchased a firearm from a licensed firearm dealer. Pursuant to an
ATF form, he was asked “Are you the actual transferee/buyer of the
firearm(s) listed on the form?” He answered yes and certified the
correctness of his answers, even though the purchase of a Glock 19
was for his uncle. He was indicted for a violation of 18 U.S.C.
§§922 and 924. The Supreme Court, in an opinion written by Justice
Kagan, affirmed the conviction. The defendant’s primary argument
was that the federal gun law is not concerned with straw
purchasers, and so long as the person at the counter is eligible to
purchase a gun, there is no vi-olation. The Court acknowledged that
federal gun laws do not directly address transactions be-tween
licensed dealers and straw purchasers. It reasoned, however, that
the defendant’s argu-ment, if accepted, would “virtually repeal”
the core provisions of the gun law: “And no part of that scheme
would work if the statute turned a blind eye to straw purchases—if,
in other words, the law addressed not the substance of a
transaction, but only empty formalities.” If a straw buyer could
appear at a dealer, be directed to purchase a specific weapon by a
felon, and pro-vided money to do so, then the background check
requirement would be rendered useless. The same would be true of
the requirements that the buyer appear in person and that the
dealer re-tain information regarding the purchaser. The Court also
noted that this conclusion was con-sistent with its “standard
practice” of “ignoring artifice” in identifying the parties to a
transac-tion. The Court also rejected the defendant’s arguments
that the statutory scheme allowed for guns to be purchased as
gifts, and chose not to regulate secondary (non-dealer) transfers
of guns. The Court thus concluded that the defendant had made a
material misrepresentation in filling out the form and thus had
violated §922(a)(6). The Court also rejected the alternative
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__________________________________________________________________Jul
- Sep 2014 For the Defense 15
argument that there was no violation when the ultimate purchaser
(i.e., the uncle) was himself eligible to purchase a firearm, and
thus the falsity was not material. Finally, as to his convic-tion
under §924(a)(1)(A), making a false statement with respect to
records required to be kept by a firearms dealer, the Court also
disagreed with the defendant’s argument that the infor-mation on
the form did not fall under that statute. Justice Scalia, joined by
Chief Justice Roberts, and Justices Thomas and Alito, dissent-ed,
essentially for the reasons offered by the defendant as set forth
above. He also gave an ex-pansive discussion of the rule of lenity,
which he termed a “liberty-protecting and democracy-promoting
rule.” Hall v. Florida, 134 S.Ct. 1986 (2014): For a defendant
arguing that he or she is not eligible for the death penalty due to
intellec-tual disability, an IQ test score of greater than 70 does
not render him or her automatical-ly eligible. The defendant, along
with an accomplice, kidnapped, raped, and murdered a woman in 1978.
He was sentenced to death. He was resentenced in order to be
permitted to present evidence of non-statutory mitigating
circumstances. At that re-sentencing, he presented “substantial and
unchallenged evidence of intellectual disability” (formerly known
as “mental retardation”), ex-acerbated by “horrible family
circumstances.” The jury nonetheless voted to sentence him to death
again. After Atkins v. Virginia, holding that the Eighth Amendment
prohibited the exe-cution of intellectually disabled individuals,
Hall filed another motion. At a hearing, he pre-sented evidence
including an IQ test with a score of 71. The state court denied his
motion, finding that an IQ below 70 was a threshold requirement.
The Supreme Court, in an opinion written by Justice Kennedy,
reversed and remanded. He began by noting the policies behind the
prohibition on execution of the intellectually disa-bled. On the
question of how to define intellectual disability, he turned first
to medical experts. He concluded that the Florida court’s
interpretation of state law, establishing a hard-and-fast 70
threshold, was contrary to medical expertise. He wrote:
Florida's rule disregards established medical practice in two
interrelated ways. It takes an IQ score as final and conclusive
evidence of a defendant's intellectual capacity, when experts in
the field would consider other evidence. It also relies on a
purportedly scientific measurement of the defendant's abilities,
his IQ score, while refusing to recognize that the score is, on its
own terms, imprecise.
He emphasized that many states take into account the standard
error of measurement of the IQ test (i.e., that the IQ score is
essentially a range, to be refined by other evidence), which
Florida does not. He wrote: “[I]n 41 States an individual in Hall's
position—an individual with an IQ score of 71—would not be deemed
automatically eligible for the death penalty.” The Court also
interpreted Atkins as being consistent with this conclusion: “The
clinical definitions of intellectual disability, which take into
account that IQ scores represent a range,
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16 For the Defense Jul - Sep 2014
not a fixed number, were a fundamental premise of Atkins.”
Finally, it again noted the “unanimous professional consensus”
against an absolute cut-off. It thus concluded:
This Court agrees with the medical experts that when a
defendant's IQ test score falls within the test's acknowledged and
inherent margin of error, the defendant must be able to present
additional evidence of intellectual disability, including testimony
regarding adaptive deficits.
Justice Alito, joined by Chief Justice Roberts, and Justices
Scalia and Thomas, dissent-ed. He criticized the reliance on
professional societies, such as the American Psychiatric
Asso-ciation, in conducting the Eighth Amendment’s
evolving-standards analysis. He noted that At-kins had left to the
states the task of determining “which offenders are in fact
retarded.” He ar-gued that the supposed trend in other states was
overstated by the majority. Loughrin v. United States, 134 S.Ct.
2384 (2014): §1344(2) does not require that defendant intended to
defraud a financial institution. The defendant executed a scheme of
stealing checks out of the mail and forging signatures. He would
take the stolen checks to a retailer and use the check to purchase
merchandise, which he would immediately return for cash. Six checks
were passed in this way to Target. The defend-ant was charged with
six counts of violating 18 U.S.C. §1344(2), executing a scheme to
obtain money of a financial institution under false pretenses. At
trial, he argued that the jury should be instructed that it could
convict only if it found that he acted “with intent to defraud a
financial institution.” (The idea being that he acted only with
intent to defraud Target, not any financial institution.) That
instruction was not given. The Supreme Court, in an opinion written
by Justice Kagan, affirmed the conviction. She noted that §1344(1),
which was not in question here, defined the violation of intending
“to defraud a financial institution.” If §1344(2), the portion at
issue here, was interpreted to in-clude the requested intent
requirement, it would merely duplicate §1344(1). She also rejected
the argument that, without such a requirement, the federal statute
would reach every “garden-variety con” normally within state
jurisdiction. She reasoned that §1344(2) already has a limi-tation
to avoid this problem, namely that the defendant must acquire the
bank property “by means of” the misrepresentation in question. Thus
situations in which banks are involved merely fortuitously are not
covered by the statute. Justice Scalia, joined by Justice Thomas,
concurred in part, stating that he would hold open whether the “by
means of” limitation should be read in the way offered by the
majority. Justice Alito also concurred in part. Riley v.
California, 134 S.Ct. 2473 (2014): Warrant required to search a
cellphone seized pursuant to arrest. Defendant Riley was stopped
and arrested. A search pursuant to arrest uncovered a cell phone (a
smartphone). An officer examined the phone and determined that some
words were
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- Sep 2014 For the Defense 17
preceded by “CK,” a gang term. Subsequently, another officer
also examined the contents of the phone closely, finding, among
other things, a photograph of Riley standing in front of a car
believed to have been used in an earlier shooting. Riley was later
charged in that shooting, and after the denial of a motion to
suppress, testimony regarding the contents of his phone was
in-troduced. In a separate case, defendant Wurie was seen to make
an apparent drug sale. Upon ar-rest, a flip phone was taken from
him. That phone later began ringing with calls from “My house.”
That number was then traced. A warrant for the address associated
with that number was obtained, and drugs and guns were found. Wurie
was convicted of drug offenses and of being a felon in possession.
The Supreme Court, in an opinion written by Chief Justice Roberts,
considered the law-fulness of these warrantless searches of
cellphone seized pursuant to lawful arrests. The Court noted the
importance of this question given the ubiquity of cellphones, which
are “now such a pervasive and insistent part of daily life that the
proverbial visitor from Mars might conclude they were an important
feature of human anatomy.” Drawing on precedent (Chimel, Robinson,
Gant), the Court held that two important concerns for searches
incident to arrest are harm to of-ficers and destruction of
evidence. It concluded that neither of those are significantly
present in the cellphone context. As to the first, the Chief
Justice wrote: “Once an officer has secured a phone and elimi-nated
any potential physical threats, however, data on the phone can
endanger no one.” As to the destruction of evidence, the Court
noted that the phones could have been secured pending issuance of a
warrant, and therefore the defendants could not have destroyed any
evidence on them. As to the proffered danger of “remote wiping,” by
which a third party could remotely remove data from the phone, the
Court noted that there was no indication that such was a
“prevalent” problem, and could be prevented by removing the phone’s
battery or putting it in-side aluminum foil. As to the privacy
interests at stake, the Court reasoned that “Cell phones differ in
both a quantitative and a qualitative sense from other objects that
might be kept on an arrestee's per-son,” given the amount and type
of information contained on a smart phone.
[I]t is no exaggeration to say that many of the more than 90% of
American adults who own a cell phone keep on their person a digital
record of nearly every aspect of their lives—from the mundane to
the intimate…. Allowing the police to scru-tinize such records on a
routine basis is quite different from allowing them to search a
personal item or two in the occasional case.
The Court noted that: “Privacy comes at a cost,” but concluded:
Modern cell phones are not just another technological convenience.
With all they contain and all they may reveal, they hold for many
Americans “the privacies of life,”…. The fact that technology now
allows an individual to carry such infor-mation in his hand does
not make the information any less worthy of the protec-
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18 For the Defense Jul - Sep 2014
tion for which the Founders fought. Our answer to the question
of what police must do before searching a cell phone seized
incident to an arrest is accordingly simple—get a warrant.
Justice Alito concurred. Selected Sixth Circuit Cases: United
States v. Babcock, 753 F.3d 587 (6th Cir. 2014): §4B1.5’s
enhancement requiring that instant offense be committed “subsequent
to” prior sexual offense contains no time limitation, and applies
even to 15-year-old prior convictions. United States v. Dado, ---
F.3d ----, 2014 WL 3360853 (6th Cir. July 10, 2014): Rejects
argu-ment that mandatory minimum for 1,000 marijuana plants under
§841(b) requires finding that defendant’s knew there were 1,000
plants. Explicitly declines to hold whether this strict liability
mandatory minimum would survive due process scrutiny. Judge
Merritt. Harris v. Haeberlin, 752 F.3d 1054 (6th Cir. 2014):
Defendant not automatically entitled to pre-vail as a matter of law
where prosecutors can no longer recall reasons for peremptory
strike in post-trial Batson enquiry (conducted many years after
trial), particularly where there was other circumstantial evidence
for the trial court to rely upon. United States v. Jackson, 751
F.3d 707 (6th Cir. 2014): Sentence reduction under §1B1.10 can-not
produce a sentence below the minimum of the amended guideline
range. Concurrence by Judge Merritt lamenting that “It looks like
no one with authority to correct the injustice is will-ing to do
anything, and thousands of mainly black defendants will remain in
prison unjustly for many more years.” Kennedy v. United States, ---
F.3d ----, 2014 WL 2853848 (6th Cir. 2014): No right to counsel for
preindictment plea negotiations, and thus there can be no
ineffective assistance claim. McCarley v. Kelly, --- F.3d ----,
2014 WL 3360833 (6th Cir. July 10, 2014): Granting condition-al
writ in case where testimonial statements of three-year-old were
read into evidence by a child psychologist. Disagreeing with the
state court on the issue of whether the admission of this evi-dence
was harmless. United States v. Musgrave, --- F.3d ----, 2014 WL
3746811 (6th Cir. July 31, 2014): Error for District Court, in
white-collar case, to consider “four years of legal proceedings,
legal fees, the likely loss of his CPA license, and felony
convictions that would follow him for the rest of his life” to
support a lessened sentence (of 1 day). United States v. Payton,
754 F.3d 375 (6th Cir. 2014): Where recidivist bank robber’s
guideline
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- Sep 2014 For the Defense 19
range was 17 to 22 years, and the Government requested 25 years,
the District Court’s sentence of 45 years was unreasonable,
particularly in light of its failure to address the defendant’s
argu-ments for a lesser sentence. United States v. Phillips, 752
F.3d 1047 (6th Cir. 2014): Conviction for third-degree burglary
under Florida statute is a violent felony for Armed Career Criminal
purposes under the residual clause, due to the potential danger for
a violent encounter with passersby. Judge Rogers dis-sented: “When
pilfering a few stray eggs from the fenced yard of a chicken coop
is considered ‘violent’, the term ‘violent’ becomes unmoored from
its meaning.” United States v. Reid, 751 F.3d 763 (6th Cir. 2014):
No reversible error when trial court mistak-enly gave defendant
only 9, and not 10, peremptory challenges, where defendant did not
ex-haust all the challenges that he had been given. Jonathan
Harwell practices law in Knoxville. He can be reached at
[email protected] or at (865) 637-8900.
Upcoming CLEs
Juvenile Defense Seminar University of Tennessee College of
Law
Knoxville September 19, 2014
DUI Defense Seminar and Training
The Chattanoogan Chattanooga
October 16-17, 2014
Williamson County General Sessions Training Historic Williamson
County Courthouse
Franklin November 2014
Davidson County General Sessions Training
Justice Birch Building Nashville
November 2014
Reserve your space at any CLE by visiting www.TACDL.com or by
contacting us at 615-329-1338 or [email protected].
mailto:[email protected]�mailto:[email protected]�
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Tennessee Association of Criminal Defense Lawyers 530 Church
Street, Suite 300
Nashville, TN 37219
41st Annual Meeting of the Tennessee Association of Criminal
Defense Lawyers
August 1-2, 2014 ♦ Memphis, TN
For The DefenseIn this IssueAnnual Meeting Recap and DUI Defense
SpotlightDUI Defense Seminar and TrainingOctober 16-17,
2014Chattanooga, TN By: Nathan H. RidleyNathan H. RidleyDUI Defense
Seminar and TrainingPending approval by the TN CLE Commission for
15.00 credit hours (11.75 gen, 3.25 dual)SEMINAR SCHEDULE