Final Vanderbilt Rape Defendant Gets 10 Years Probation in Plea Deal

The final defendant in the Vanderbilt rape case pleaded guilty today, accepting 10 years of probation and the condition that he must register as a sex offender for life, The Tennessean reports. Jaborian “Tip” McKenzie, who was not recorded ever touching the victim during the attack, previously cooperated with prosecutors and testified against his co-defendants.
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Governor Signs Civil Rights Cold Case Bill into Law

Gov. Bill Haslam on Tuesday signed into law legislation creating the Tennessee Civil Rights Crimes Information, Reconciliation, and Research Center. Rep. Johnnie Turner, D-Memphis, and Senate Majority Leader Mark Norris, R-Collierville, were the sponsors of the legislation, which becomes effective immediately. The center will be housed within the Office of Minority Affairs, and will serve as a "civil rights crimes remembrance and reconciliation repository, function as an informational clearinghouse on unsolved civil rights crimes and cold cases in this state, and coordinate volunteer activities."  A website and toll-free number will be set up to receive information related to unsolved civil rights crimes and cold cases. 

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New Bill Would Offer Police Federal Hate Crime Protections

A new bill in front of Congress would make it a crime to intentionally target a law enforcement officer based on his "actual or perceived status" as one, CNN reports. The Protect and Serve Act of 2018 intends to protect law enforcement officers from violence for simply being a police officer. The bill, modeled on federal hate crime statute, has the support of major law enforcement groups, including the Fraternal Order of Police, National Association of Police Organizations and the National Sheriffs' Association, which say law enforcement is facing increased attacks. 
Opponents, including the American Civil Liberties Union, Human Rights Watch, The Leadership Conference on Civil and Human Rights, and the NAACP Legal Defense and Educational Fund, say the bill wrongly extends protections to a group that does not need them because they are not vulnerable to bias or discrimination in the same manner as people of color and other historically marginalized communities. You can read the bill in its entirety here.
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Appellate Practice Tip: What is the Mandate?

In ordinary parlance, a mandate is an official order to do something, or alternatively, the authority to carry out a policy or course of action. Under T.R.A.P. 42, however, the mandate of the appellate court is defined as, “Copies, certified by the clerk of the appellate court, of the judgment, any order as to costs or instructions as to interest, and a copy of the opinion of the appellate court ....”
In the case of an appeal taken to the Supreme Court, the clerk of the Supreme Court shall transmit to the clerk of the trial court the mandate of the Supreme Court with notice to the parties. Rule 42(a) requires that this be done “Eleven days after entry of the judgment unless the court orders otherwise.” Since a petition for rehearing may be filed within 10 days after the date the decision is filed, the rule further provides that the timely filing of the petition for rehearing will stay the mandate until disposition of the petition for rehearing. If the petition is denied, as it almost always is, the mandate shall issue immediately upon the filing of an order denying the motion for rehearing. When the case is remanded to the Court of Appeals or Court of Criminal Appeals, a formal mandate shall not issue unless the Supreme Court orders otherwise.
The clerk of the Court of Appeals and the clerk of the Court of Criminal Appeals have the duty to transmit to the clerk of the trial court the mandate of the Court of Appeals or Court of Criminal Appeals. That mandate must be sent no later than 64 days after the entry of judgment unless the court orders otherwise. The timely filing of a petition for rehearing will stay the mandate temporarily. Rule 42 provides that the clerk of the appellate court is responsible for collecting the clerk’s fees and that the mandate should not be delayed for the taxing of costs.
In cases in which review by the Supreme Court of the United States is sought, the appellate court whose decision is sought to be reviewed may stay the mandate. (Emphasis added) The clear implication of Rule 42(c) is that the decision of whether to stay the mandate when an appeal is sought to the Supreme Court of the United States is within the sound discretion of the Tennessee appellate court. (Also, under Rule 42(d), the court possessing the power to stay a mandate also includes the power to recall a mandate.)
Once the mandate is issued by the appellate court, the clerk of the trial court has the responsibility to promptly file it. See T.R.A.P. 43(a). If the appellate court has dismissed the appeal or affirmed the judgment of the trial court, once the mandate is filed in the trial court, the prevailing party may issue execution to enforce the judgment. T.R.A.P. 43(b).
The mandate is simply the order of the appellate court that disposes of the case in the appellate court and sends the case back to the trial court to handle the case. If the trial court is affirmed, the mandate allows the prevailing party to proceed. If the appeal is dismissed, the mandate gives the trial court the authority to conduct post-judgment proceedings, if any. It is important for appellate practitioners to understand the significance of the appellate court mandate and not to confuse it with the appellate court’s opinion, which is only a part of the mandate.

George "Buck" Lewis is a shareholder at Baker Donelson, former TBA president and chairs the Appellate Practice Law Section. 
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Share Your Thoughts on Proposed Amendments to Tennessee Supreme Court Rule 6

The Supreme Court recently requested comment on proposed amendments to TSC Rule 6 that would require new attorneys to complete a Tennessee Law Course within one year of admission to the Tennessee bar. The Tennessee Bar Association has a working group on this issue and will be drafting comments in response to the court's Order for Comment. To ensure this comment best reflects members’ views and positions, the groups is looking for your feedback. Share your thoughts about the proposed amendments through this form by June 8.
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    Prevailing Party at PCR Must Ensure the Trial Court’s Order Actually Contains Findings of Fact

    The Tennessee Court of Criminal Appeals has again admonished trial courts to include actual findings of fact for each and every ground relied upon and to make explicit credibility determinations. TCCA reminds trial courts that they “shall set forth in the order or a written memorandum of the case all grounds presented and shall state the findings of fact and conclusions of law with regard to each such ground. Tenn. Code Ann. § 40-30-111(b)....  [Making] findings of fact is mandatory. Donald Mays v. State, [2004 WL 2439255, *6 (Tenn. Crim. App. No. W2003-02761-CCA-R3-PC, Oct. 28, 2004)].”
    TCCA further wrote, “We take this opportunity to point out again that a mere recitation or summary of the testimony of the witnesses at a hearing is not a ‘finding of fact’ as is required. Such a summary only sets forth the testimony, which is usually contradictory. A ‘finding of fact’ is the post-conviction court’s opportunity to fulfill its responsibility to sort through all the evidence and set forth what actually happened, as opposed to just each witness’s version of what happened. See Charles Bradford Stewart v. State, [2017 WL 2645651, *14 (Tenn. Crim. App. No. M2015-02449-CCA-R3-PC, June 20, 2017)], perm. app. denied (Tenn. Oct. 4, 2017).” Nabi v. State, 2018 WL 1721869, *6 (Tenn. Crim. App. Apr. 9, 2018).
    Prevailing parties, either the state or petitioner, must ensure the trial court’s order complies with these requirements in order to facilitate appellate review of the decision.

    Roger E. Nell is the District Public Defender at 19th Judicial District of Tennessee and current Chair-Elect of TBA's Criminal Justice Section.

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    TSC Issues Notice of 2018 Rules Package

    The Tennessee Supreme Court issued notice today that the 2018 rules package will go into effect July 1. Included in the package were revisions to the Tennessee Rules of Appellate Procedure (Senate Resolution No. 165 adopted February 26; House Resolution No. 200 adopted March 5) Rules of Civil Procedure (Senate Resolution No.163 adopted February 26; House Resolution No. 202 adopted March 5) Rules of Criminal Procedure (Senate Resolution No.166 adopted March 1; House Resolution No. 207 adopted March 19) Rules of Evidence (Senate Resolution No. 164 adopted April 11; House Resolution No. 201 adopted March 5) and Rules of Juvenile Procedure (Senate Resolution No. 167 adopted February 26; House Resolution No. 208 adopted March 19), which have been ratified and approved by the General Assembly.
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    Lawrence County Sheriff Charged with Official Misconduct

    Lawrence County Sheriff Jimmy Brown and Captain Adam Brewer have been charged with official misconduct for allegations, including the improper release of jail inmates whose relatives made campaign contributions to the sheriff, Humphrey on the Hill reports. The Tennessee Bureau of Investigation looked into problems at the department and found that inmates were allegedly granted furloughs without proper authorization by a judge or released without the proper order. Brown also allegedly violated multiple laws in his handling of confiscated moonshine.
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    CLE Compliance Deadline, May 31

    Deadline for establishing CLE compliance and avoiding the $200 delinquent fee is May 31. The Tennessee Bar Association offers several live programs and many online offerings to help you meet the deadline, including the Spring CLE Blast, where you can purchase live CLE programming by the hour. This May 17 program offers 11 hours of dual credit CLE programming at the Tennessee Bar Center in Nashville.
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    Hamilton County Sheriff Presents Plan to Remove Mental Health Patients from Jail

    Hamilton County Sheriff Jim Hammond detailed to the county’s commission his plan aimed at getting mental health patients out of the county jail, reports. Hammond said that he would apply for a federal grant from the Federal Substance Abuse and Mental Health Services Agency that would establish an Assertive Community Treatment Act Team. The team would provide up to 50 homeless frequent users of the jail and local hospitals with permanent housing and intensive support services. Hammond said the program would save the county money by lowering the jail and workhouse populations.
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    Federal Judge Chides Counsel on Manafort Investigation

    A federal judge in Virginia on Friday grilled lawyers from the office of special counsel Robert S. Mueller III about their motivations and authorization for bringing a fraud case against former President Trump campaign manager Paul Manafort, who is accused of crimes related to his work for a pro-Russian political party in Ukraine, The Washington Post Reports. Manafort was seeking to have bank and tax fraud charges against him dismissed, with his lawyers arguing that the alleged crimes have nothing to do with the election or with President Trump. “You don’t really care about Mr. Manafort’s bank fraud… You really care about getting information Mr. Manafort can give you that would reflect on Mr. Trump and lead to his prosecution or impeachment,” Judge T.S. Ellis III said during a morning hearing. Ellis also requested an un-redacted version of an August 2017 memo from the Deputy Attorney General for the USDOJ Rod Rosenstein authorizing to investigate whether Manafort illegally coordinated with Russia in 2016.
    Michael Dreeben, a prosecutor with the special counsel’s office, responded that the Manafort investigation has expanded significantly since it was taken over by Mueller and the specific parameters of the special counsel investigation have not been publicly revealed because to do so would jeopardize ongoing probes and sensitive national security information. Manafort’s attorneys have requested the judge address a motion alleging leaks to reporters that conversations were intercepted between their client and Russian officials and other issues in a hearing on May 25.
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    Several New Circuit, General Sessions Judges Elected Across the State

    The AOC today posted election results from judicial elections on the May 1 ballot in counties across the state. Candidates running unopposed included Sullivan County’s William K. Rogers for Circuit Court Part II; Jim Gass, who ran to represent Cocke, Grainger, Jefferson and Sevier counties in District 4 for Circuit Court Part II; and Ben E. Bennett, who ran for General Sessions Part II in District 16, which serves Cannon and Rutherford Counties. Carter S. Moore won District 4’s contested race for Circuit Court Part I, Kyle E. Hendrick won for Hamilton County’s Circuit Court Division IV, Barry R. Tidwell won for District 16’s Circuit Court Division III, and David R. Howard won for Sumner County’s General Sessions Division II. Davidson County alone held four races, and the winners were: Angie Blackshear Dalton, Circuit Court Judge Division II; Anne C. Martin, Chancellor; Ana L. Escobar, General Sessions Division III; and Sam Coleman, General Sessions Division X.
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    Coffee County Seeks Ways to Solve Jail Overcrowding Issues

    Coffee County officials recently met to discuss potential solutions to overpopulation issues at the county’s jail, the Manchester Times reports. The jail has been over capacity several times in the last few months, and the county houses 135 more inmates than it did just three years ago. County Mayor Gary Cordell said more than half of the jail population consists of individuals incarcerated for pretrial misdemeanors, much higher than in other counties.
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    New Court Date Set for Cyntoia Brown

    Cyntoia Brown, the Nashville woman who is serving life in prison for a murder committed when she was 16, has a new court date to challenge her sentence after national attention was brought to her case by celebrities and activists. The Tennessean reports that the Sixth Circuit Court of Appeals in Cincinnati will hear oral arguments on June 14 from attorneys who say her sentence was unconstitutional. Brown was first jailed in 2004 after her conviction of shooting a 43-year-old man who picked her up. Advocates say Brown was a victim of sex trafficking and during the incident she feared for her life.
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    Criminal Law CLE 1-Click Package

    This series offers topics on sentencing issues, voir dire, post-conviction relief and ethics. Speakers include District Public Defender Roger Nell and Charles Bloodworth, Joseph Fuson of Freeman & Fuson and David Veile of Schell & Oglesby.
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    SURVEY: Proposed Amendment to Supreme Court Rule 31, Relative to Alternative Dispute Resolution

    As you may know, the Supreme Court issued a notice requesting comment on amendments to TSC Rule 31. The Tennessee Bar Association will be filing a comment in response to the proposed amendments and we need your help in drafting our response to ensure that it best reflects our members’ views and positions. Completing this brief survey will assist us in determining specific sections' positions on the proposed changes. After completion, the survey will be sent to your section's executive council, who will review the received responses, determine the section's position and relay the final comments to the TBA.
    The TBA has generally summarized the proposed changes, but please read the order and proposed amendments, which are provided below, for more detailed information. Please provide your responses by Monday, April 30. Thanks for your help in this endeavor.


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    Tennessee’s ‘Fresh Start Act’ Signed into Law

    Last Friday, Gov. Bill Haslam signed Tennessee SB2465, relative to occupational licenses, into law. The bill, known as the "Fresh Start Act," creates a uniform process that all licensing authorities must follow and requires that denials and refusals to renew occupational and professional licenses based on a criminal conviction must only occur when the offense relates to the offender's ability to perform the occupation or profession. This bill Amends TCA Title 62, Chapter 76, Part 1 and Title 63, Chapter 1.

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    Next Week: Criminal Law Basics

    The Tennessee Bar Association will offer a Criminal Law Basics CLE program at the Bar Center in Nashville. This program will feature intangibles such as what to do when you get a new client (from opening a file to getting paid), the life cycle of the attorney-client relationship, obtaining the charging instruments and filing requests, notices, motions and more. Don’t miss this chance to learn from seasoned practitioners while networking with professionals who have a similar focus. Here is the key info:
    When: Monday, May 21, 12 p.m., CDT
    Where: Tennessee Bar Center, 221 4th Avenue North, Nashville, TN 37217
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    TBI Crime Data Shows Murder, Rape Increases, Fewer DUIs

    The Tennessee Bureau of Investigation today released its 2017 "Crime in Tennessee" report, revealing a slight overall increase in reported instances of crime, Humphrey on the Hill reports. The annual study compiles data reported from each law enforcement agency in the state through the Tennessee Incident Based Reporting System (TIBRS). The numbers show murders increased by 6.7 percent and rapes increased by 3.2 percent. Juvenile crime is slightly down, accounting for 6.4 percent of all arrests, and DUI arrests continue to trend downward.
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    3 Charged in Connection to Raid of Bellevue PetSmart

    Criminal charges have been filed against three people involved in the recent raid of the Bellevue PetSmart The Tennessean reports. Two men and a woman, employees of the store on Sawyer Brown Road in Bellevue, were cited by Metro Animal Care and Control for cruelty to animals, a misdemeanor for a first offense.
    The charges stem from a raid of the store on March 29, where Metro police and the Metro Nashville Public Health Department uncovered and confiscated several sick and injured animals. Authorities were tipped off by members of People for the Ethical Treatment of Animals (PETA), who received undercover videos of injured animals from an employee of the store. A court date has not yet been set in this case.
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    Mastering the Art of Intermediate and Advanced Discovery 2018

    You can't win a trial at the discovery phase, but you certainly can lose one. This CLE, scheduled for April 20 at the UT Conference Center in Knoxville, is designed to help you avoid that outcome by addressing intermediate and advanced discovery techniques and topics including matters of e-discovery. Attendees will hear from experienced litigators who will discuss key components of the discovery process in the context of family law, general civil, and criminal matters and its effective use at trial.

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    Volunteers Needed for Monroe County Expungement Clinic

    Vet to Vet Tennessee and the University of Tennessee College of Law will host a free expungement clinic in Madisonville on April 21 and are seeking attorney volunteers to help out. The clinic will take place from 9 a.m. to noon at the First Baptist Church of Madisonville and aims to help residents in Bradley, McMinn, Monroe and Polk counties. To sign up to volunteer or ask a question, contact Troy Weston.
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    East Tennessee ICE Crackdown Called ‘Largest Workplace Raid in a Decade’

    The Immigration and Customs Enforcement raid conducted at the Southeastern Provision meatpacking plant in Bean Station on Thursday constituted the “largest single workplace raid in a decade,” The Washington Post reports. Ten people were arrested on federal immigration charges, one was arrested on state charges and 86 immigrants were detained for being in the country illegally. Volunteers interested in helping the affected families should sign up with the Tennessee Immigrant and Refugee Rights Coalition here.
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    Chattanooga Racketeering Indictment Raises Concerns of Overreach

    Most of the 54 people charged in last month's racketeering indictment against a Chattanooga street gang don't know what they're specifically accused of doing, reports The Chattanooga Times Free Press. Criminal defense attorneys who've previously represented many of the accused are seeking as much information as possible before April 27, when all 54 defendants are set to appear in Hamilton County Criminal Court to plead guilty or not guilty.
    Critics say these cases can be an overreach, creating collateral damage for those who may not have committed serious crimes, yet can be punished for their previous affiliation with gang members. Prosecutors declined to comment on this case, so the extent of their evidence is unknown. You can read the full presentment here.
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    Forfeiture Law Reform Bill Passes Senate

    A bill providing protections for people to regain property seized by law enforcement is headed to Gov. Bill Haslam’s desk after passing the Senate yesterday, the Times Free Press reports. The bill’s sponsor, Sen. Todd Gardenhire, R-Chattanooga, said it was the rare piece of legislation that had backing by both the Beacon Center and the American Civil Liberties Union. The legislation requires authorities to provide notice within five days of a property seizure of a forfeiture-warrant hearing, and says a seizing agency found to be in the wrong must pay attorneys fees. It also provides a more defined process for individuals charged with a crime to recoup their property seized, provided that property was not involved in commission of a crime.
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