News

Longtime Public Defender Dies in Tullahoma

Longtime public defender Bethel Campbell Smoot died yesterday (Nov. 18) at his home in Tullahoma, according to the Tennessee District Public Defenders Conference. Smoot served as the 14th Judicial District public defender representing Coffee County for 25 years. He was first appointed to the post in 1989 by then-governor Ned McWherter and was re-elected without opposition in subsequent years. Smoot earned his undergraduate degree in forestry and worked as a land surveyor before attending law school. He graduated from the University of Tennessee College of Law in 1973 and practiced for nearly two decades at the Tullahoma firm of Hanes, Hull, Smoot & Reider. Smoot served as president of the Tennessee District Public Defenders Conference in 2013 and served on the TBA Board of Governors as the group’s representative. A 2013 profile in the Tullahoma News captured Smoot's commitment to and pride in his work. Funeral information was pending at press time, though the Kilgore Funeral Home in Tullahoma will be handling arrangements.

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TBI Labs Receive New, High-Level Accreditation

After an assessment by the American Society of Crime Laboratory Directors’ Laboratory Accreditation Board (ASCLD/LAB), the Tennessee Bureau of Investigation (TBI) has obtained new accreditations for its forensic facilities in Knoxville, Memphis and Nashville. TBI facilities are now internationally accredited in Breath Alcohol Calibration and have been upgraded to an “International” testing facility, Chattanoogan.com reports.

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Jury Rejects ‘Driving While Fatigued’ as Crime

The state legislature may decide to consider whether driving while fatigued should be a crime like drunken driving, but a Sevier County jury has soundly rejected that argument, Knoxnews reports. Prosecutors had charged Shaun Russell Dunlap with three counts of vehicular homicide and argued that his decision to drive while drowsy was a “gross deviation” from the ordinary standard of care a motorist should exercise. “This is an unusual case because there have been very few [prosecutions for] sleep deprivation across the U.S., and those have had mixed results,” said Maryville attorney Joe Costner, who successfully defended Dunlap.

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New Sentencing Hearing Ordered Due to Ineffective Counsel

The Tennessee Supreme Court today upheld death row inmate Jerry Ray Davidson’s conviction for first-degree murder, but ordered a new sentencing hearing after finding that Davidson's lawyers did not properly represent him during the sentencing phase of the trial. Davidson was convicted of the 1995 murder of Virginia Jackson in Dickson. At the time of his trial, defense attorneys possessed numerous records documenting his troubled background and history of mental illness. During the sentencing hearing, however, they failed to provide the jury with any of this evidence. In ordering a new sentencing hearing, the court ruled that defense attorneys in death penalty cases have a constitutional duty to collect and present to the jury any “mitigation evidence” that could help the jury assess the defendant’s moral culpability. Download the majority opinion and a separate opinion from Justice Gary Wade concurring in part and dissenting in part.

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Dyer Named Shelby County Attorney

Ross Dyer, the lead Memphis attorney for the Tennessee Attorney General’s office, will take over as Shelby County attorney on Dec. 1. His appointment was announced by Shelby County Mayor Mark Luttrell and is subject to confirmation by the county commission. Dyer replaces Marcy Ingram, who has been serving as interim county attorney since December 2013. Ingram will resume her duties as deputy county attorney. The Memphis Daily News has the story.

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Woodbury Attorney Pleads Guilty to Theft

Woodbury City Attorney Dale Peterson says he may be set to resign his position after pleading guilty to stealing more than $20,000 from a local psychiatric hospital, the Murfreesboro Post reports. Last week, Peterson entered a plea to theft over $1,000 from Riverside Center, a part of Stones River Hospital. As a representative of the center, Peterson filed documents and paid fees to the Cannon County Clerk’s office. But from March 2012 to July 2014 prosecutors found that he stopped filing documents and pocketed the fees. Woodbury Mayor Harold Patrick says he will recommend a new city attorney at the city council meeting on Dec. 5.

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Survey: Discontent Among Court-Appointed Attorneys

A recent TBA survey of private attorneys who handle court appointed work shows they feel undervalued, overworked and unfairly compensated. More than half of those who took the survey reported that they frequently hit the fee cap on appointed cases, while 77 percent reported that they do not bother submiting a fee claim given the issues associated with getting paid. Survey responses also indicated an overwhelming number of cases are not adult criminal cases, but dependency, neglect and abuse work, generally as a guardian ad litem or a parent's attorney. More than half of respondents left lengthy comments on their experience with court appointed work, with many reporting that they love doing the work but cannot continue doing so at the current compensation rates, likening the work to doing pro bono. Respondents also reported that the filing requirements frequently add stress to an already difficult-to-handle clientele. With a compensation rate that has not changed since 1994, Tennessee court-appointed attorneys are among the lowest paid in the nation. Read more from the survey results.

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Supreme Court Denies New Trial for Death Row Inmate

The Tennessee Supreme Court has denied a new murder trial to Clarence Nesbit, who has been on death row since 1995. At trial, the jury found Nesbit guilty of first-degree murder and sentenced him to death. Nesbit’s conviction and sentence both were upheld on appeal. In 1999, Nesbit filed a petition for post-conviction relief, asserting that his trial counsel did not provide effective assistance. In 2009, the post-conviction court ruled that Nesbit was not entitled to post-conviction relief as to his murder conviction, but awarded him a new sentencing hearing based on his attorney’s performance. The Court of Criminal Appeals agreed. On appeal from the Court of Criminal Appeals, the Supreme Court held that Nesbit did not prove that he was prejudiced in the guilt phase of his trial by any deficiency on the part of his attorney. The Administrative Office of the Courts has more.

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Drug Offenders to See Early Release Under New Sentencing Rules

As many as 179 convicted East Tennessee drug offenders — most of them dealers — will be released from federal prison on Nov. 1, 2015, courtesy of two separate initiatives with the same goals — to free up federal prison beds and to lower what critics contend are draconian penalties for drug offenders. After lowering the penalties for all future federal drug defendants, the U.S. Sentencing Commission earlier this year agreed to grant any criminal convicted in federal court under tougher penalties than currently apply to their crimes who have spent at least a decade behind bars to be set free, except under some limited circumstances. Knoxnews has more.

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Court Rules for Police in 2 Cases

Two decisions from the U.S. Supreme Court yesterday upheld the rights of police officers. In the first case, the court found that failure to cite Section 1983 of the Civil Rights Act in a suit for alleged due-process violations did not doom a claim brought by fired police officers. The officers had sued the city of Shelby, Mississippi, claiming they were fired because they brought to light an alderman’s criminal activity. Their suit alleged violations of due-process rights but did not cite Section 1983. A trial judge and the Fifth Circuit Court of Appeals had ruled that the oversight required dismissal of the suit. In the second case, the court ruled that a police officer that entered a couple’s backyard and accessed their deck without a warrant was entitled to qualified immunity because of the facts of the case. The lower court had ruled the officer should have used the front door under the “knock and talk” exception to getting a warrant. The ABA Journal reports on both cases.

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TBI Asked to Investigate Police Shooting

At the request of Jackson police, District Attorney General Jerry Woodall has asked the Tennessee Bureau of Investigation (TBI) to open an independent investigation of a police officer’s discharge of a weapon, which resulted in the death of Cinque D’Jahspora. The incident, which took place Nov. 6, allegedly occurred after D’Jahspora attacked and stabbed the officer, who was responding to a call about a man causing a disturbance. D’Jahspora's family held a news conference yesterday to also call for an independent investigation. The Jackson Sun looks at the issues.

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DA Building Capital Litigation Division

Decatur County’s district attorney is building a first-of-its-kind Capital Litigation Division for District 24 that will focus on death penalty murder cases. One death penalty expert has been hired and within a month, the division will have four to five additional attorneys in place, says District Attorney General Matt Stowe. Some will work full-time, some part-time and some on a consulting basis. Stowe’s office is currently focused on the Holly Bobo murder, building the case and determining whether to bring capital charges. WKRN News 2 Nashville has more.

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STATE OF TENNESSEE v. HENRY FLOYD SANDERS

This appeal concerns the admissibility of incriminating statements made by a defendant to the mother of a sexually abused child while the mother was secretly cooperating with the police in their investigation of the abuse. After a grand jury indicted him on six counts of aggravated sexual battery and four counts of rape of a child, the defendant moved to suppress his recorded statements. The trial court denied the motion to suppress, and a jury convicted the defendant of five counts of aggravated sexual battery and four counts of rape of a child. The trial court imposed an effective forty-year sentence. The Court of Criminal Appeals affirmed the convictions and sentence. State v. Sanders, No. M2011-00962-CCA-R3-CD, 2012 WL 4841545 (Tenn. Crim. App. Oct. 9, 2012). We granted the defendant’s Tenn. R. App. P. 11 application to address the legal standard courts should use to determine the admissibility of incriminating statements obtained by the parent of a victim of sexual abuse who is secretly cooperating with law enforcement officials investigating the child abuse charges. We find no violation of the defendant’s constitutional right against compelled selfincrimination because the defendant merely misplaced his trust in a confidante to whom he voluntarily confessed. Therefore, we find that the recording of these statements was admissible.

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Attorney 1: 

Dawn Deaner, District Public Defender; Jeffrey A. DeVasher (on appeal); Melissa Harrison (at trial and on appeal); and Jessamine Grice (at trial), Assistant Public Defenders, for the appellant, Henry Floyd Sanders.

Attorney 2: 

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; John H. Bledsoe, Senior Counsel; Victor S. Johnson, III, District Attorney General; Sharon Reddick and Kristen Menke, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: 
KOCH

STATE OF TENNESSEE v. FRED CHAD CLARK, II

This case involves the prosecution of a father in the Criminal Court for Davidson County for the sexual abuse of his children. After a jury found him guilty of seven counts of rape of a child and two counts of aggravated sexual battery, the trial court imposed an effective thirtyfour- year sentence. On appeal, the defendant took issue with (1) the admissibility of recordings of his confession to his wife, (2) the adequacy of the corroboration of his confession, (3) the admissibility of evidence of his predilection for adult pornography, and (4) the propriety of a jury instruction that the mental state of “recklessness” could support a conviction for both rape of a child and aggravated sexual battery. After upholding the admission of the defendant’s confession to his wife and the jury instructions, the Court of Criminal Appeals decided that the admission of the evidence of the defendant’s predilection for adult pornography, while erroneous, was harmless. The Court of Criminal Appeals also determined that the record contained sufficient evidence to uphold three counts of rape of a child and the two counts of aggravated sexual battery. State v. Clark, No. M2010-00570- CCA-R3-CD, 2012 WL 3861242 (Tenn. Crim. App. Sept. 6, 2012). We granted the defendant’s Tenn. R. App. P. 11 application for permission to appeal and now affirm the judgment of the Court of Criminal Appeals.

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Attorney 1: 

Peter J. Strianse, Nashville, Tennessee, for the appellant, Fred Chad Clark, II.

Attorney 2: 

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Brent C. Cherry, Assistant Attorney General; John H. Bledsoe, Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney General; and Sharon Reddick, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: 
KOCH

Obama to Nominate New York Prosecutor for AG

President Barack Obama will nomninate Brooklyn prosecutor Loretta Lynch for attorney general tomorrow, White House spokesperson Josh Earnest said. Lynch, who would be the second woman to serve as attorney general and the second African-American to hold the position, is in her second stint as U.S. attorney in the Eastern District of New York. She was appointed by President Obama in 2010 and served in the same post from 1999 to 2001 under President Bill Clinton. CNN has the story

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Blount County Youth Court Helps Juvenile Offenders

Twenty-two high-school students were sworn in to the Blount County Youth Court Wednesday at the county courthouse, the Daily Times reports. Launched last year, the Blount youth court provides an alternative for first-time offenders accused of certain nonviolent crimes. Youth jurors — chosen from applicants from across the county’s school systems — hear cases, ask questions, make evaluations and are vested with the power to take any number of remedial actions. Learn more about youth courts across the state on the TBA website

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Haslam Appoints Circuit Court Judge

Deanna Bell Johnson of Franklin has been appointed as circuit court judge for the 21st Judicial District by Gov. Bill Haslam. Johnson will fill the vacancy created by Judge Timothy Easter’s appointment to the Tennessee Court of Criminal Appeals. The Administrative Office of the Courts has more.

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Poster Campaign Targets Domestic Violence

The Knoxville Family Justice Center is conducting a poster campaign to draw attention to domestic violence issues and focus on resources for those in abusive relationships. Volunteers will distribute their posters throughout Knoxville and Knox County Saturday. More than 60 organizations are hoping to spread awareness about domestic abuse from partners and within the family unit. Volunteers for the campaign will meet 9 a.m. to 1 p.m. and 3 to 7 p.m. at the center located at 400 Harriet Tubman St. Knoxnews has more.

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November TBJ Covers a Variety of Topics

In the latest issue of the Journal, Murfreesboro lawyer Josh McCreary writes about "The Viability of a Regulatory Takings Claim Under Phillips v. Montgomery County." In his column, Knoxville lawyer Wade Davies helps you understand diminished capacity, and two books are reviewed. Nashville lawyer David Raybin explores a book by noted death penalty scholar Austin Sarat, Gruesome Spectacles: Botched Executions and America's Death Penalty (there were several in Tennessee over the years, including an elephant) and Chattanooga lawyer John B. Phillips reviews H. Graham Swafford Jr.'s memoir, Go to the Pound and Get a Dog ... Then Learn to Fly an Airplane: Life's Lessons Acquired by a Country Lawyer.

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Vandy Rape Trial Delayed Until January

The trial for two former Vanderbilt football players accused of raping a student will be delayed until January 2015 because one of the defense attorneys needs emergency surgery, News Channel 5 reports. Judge Monte Watkins made the decision today after Worrick Robinson, lawyer for Corey Batey, reported he needed invasive surgery Monday on a shoulder injury. Prosecutors sought to sever the cases and move forward with a trial for Brandon Vandenburg, but both Robinson and Vandenburg’s lawyer Fletcher Long said they prepared only for a joint trial.

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Memphis Stakeholders Discuss Juvenile Reforms

Newly elected Shelby County Juvenile Judge Dan Michael was part of a roundtable discussion Friday with the mayor, district attorney and county school leaders to discuss how to address youth violence in Memphis, News 5 reports. Michael said his office is working on an Evening Reporting Center, an after school facility for troubled kids on probation. The group also discussed expanding a program that allows police to check prior offenses of a juvenile in custody; expanding a program designed to decrease the number of minority students sent to court for minor infractions; Mayor Wharton's idea of creating centers for youth arrested on curfew violations; and assigning juvenile court liaisons to police precincts to meet with young offenders brought in by officers.

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Convicted 'Stringbean' Killer Paroled Today

John Brown, 64, who admitted to killing Grand Ole Opry and "Hee Haw" comic David "Stringbean" Akeman and his wife Estelle, was released from prison today. Brown, originally sentenced to 198 years, had been denied parole at least a half dozen times. He spent 40 years in prison. On Nov. 11, 1973, Brown and his cousin, Doug Marvin Brown, ransacked the Akemans' cabin on their farm in Ridgetop, but were apparently surprised by the Akemans as they returned home from the Opry. Brown shot Akeman as he walked into the cabin, then ran after his wife and shot her. Newschannel5 has more. In this 2004 Tennessee Bar Journal column, Don Paine wrote about the murders, the investigation and the trial.

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Appeals Court Upholds Baumgartner’s Convictions

The 6th Circuit Court of Appeals today rejected a bid by former Knox County Criminal Court Judge Richard Baumgartner for a second hearing before the full court. The order stated that despite a three-judge panel’s 2-1 split decision upholding four of the five convictions against Baumgartner, the remaining court members believe the case was properly decided. The decision essentially ends Baumgartner’s effort to have his convictions overturned, unless the U.S. Supreme Court was to take up the case, Knoxnews reports. Baumgartner was convicted in October 2012 of five of seven federal charges of misprision of a felony. He served a six-month sentence, but sought to overturn the convictions so he could collect his state pension.

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Judge Won’t Step Down from Rape Case, Trial to Start Monday

It has been a news-packed week for the upcoming trial of two former Vanderbilt University football players accused of rape. On Wednesday, Judge Monte D. Watkins refused to recuse himself after the defense accused him of not following the law when communicating with prosecutors about a live video stream during pretrial hearings. Also on Wednesday, a late afternoon surprise came when a Nashville television station said it had surveillance video related to the case. Watkins authorized the prosecution to contact the station about the video saying, “It could be potentially a major problem with the trial itself.” Airing of such a video would be a violation of Watkins’ protective order. Today, Watkins denied two requests from defense attorneys: to delay the start of a trial and require the sequestering of jurors. Unless the ruling is appealed, jury selection will begin Monday. The Tennessean and WKRN News 2 have more.

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Wharton Proposes ‘Juvenile Safety Centers' For Curfew Violators

Memphis Mayor A C Wharton is proposing a rule change that would make it easier for police to detain young people caught outside after curfew, the Commercial Appeal reports. Current state and city rules do not allow police to transport curfew violators anywhere other than the youth’s own home or the Shelby County Juvenile Court. To avoid further overcrowding in juvenile court, Wharton is asking the city council to allow police to transport minors to new community “juvenile safety centers,” which would be specially staffed. Youth would stay there until a parent or guardian picks them up. Juvenile Court official Larry Scroggs says Memphis police rarely enforce the curfew, given limited manpower, the city’s large size and the number of more serious crimes.

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