Hamilton County Grand Jury Indicts 54 Gang Members Under Racketeering Act

The Hamilton County Grand Jury indicted 54 gang members yesterday, marking the first time a street gang in the county has been prosecuted as a criminal enterprise under the state’s Racketeer Influenced and Corrupt Organization Act, the Times Free Press reports. Almost half of the defendants were already behind bars, while the rest were arrested Wednesday morning. The charges stem from a coordinated effort between the Chattanooga police chief and District Attorney General Neal Pinkston to utilize the cold case unit to review a series of unsolved murders.
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Former Skadden Associate Charged in Russia Probe Seeks Leniency

Alex van der Zwaan, the former Skadden, Arps, Slate, Meagher & Flom associate who pleaded guilty to lying in the Russia investigation earlier this year, told a Washington, D.C., judge that his cooperation and remorse justify a non-jail sentence, reports The National Law Journal.

Van der Zwan’s lawyer, Cooley partner William Schwartz, wrote in a sentencing memo to U.S. District Judge Amy Berman Jackson that the 33-year-old’s career is ruined, and that he has “been serving a sentence while stuck in limbo” in the United States. The memo states that while it did not excuse his conduct, van der Zwaan lied to investigators in a Nov. 3, 2017, meeting because he feared for his career, as Skadden lawyers represented him at that time.

“During the interview, Alex was keenly aware that he was not speaking only to the OSC,” the document said. “Alex was represented by Skadden lawyers, and anything he shared with the OSC would simultaneously be heard by Skadden. In his mind, his boss was listening to every word.” The memorandum continues: “Focused on preserving his career at Skadden, and fearful that truthful answers could lead to discovery of the recordings (and in particular, the discovery that he had recorded a Skadden partner), Alex made a terrible decision… The conduct that brings Alex before this court was inexcusable… And while his actions following his initial meeting with the OSC cannot absolve him from culpability, they are compelling mitigating factors in considering just punishment.”

In their own memo, lawyers for Mueller told the judge she should not rule out prison time, because of a “scarcity of mitigating factors and several aggravating circumstances.” They said van der Zwaan “is a person to whom every advantage in life has been given,” and that the government rightly expected “candor and uprightness” from him. “While there might eventually be additional professional consequences that befall a foreign lawyer who commits a United States felony, those consequences do not themselves obviate the need for his current sentence to reflect the seriousness of his crime, to promote respect for the law, or to provide adequate specific and general deterrence,” prosecutors wrote.

The filing also included pleas for a lenient sentencing from van der Zwaan’s wife, the daughter of a Russian oligarch who is expecting a baby in August, and his mother, whom the filing said he helps with errands and household tasks. Van der Zwaan faces up to six months in prison.

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10 Essential Documents for Your Practice

Instructions and rules for client file retention, list of current curse and copy of bank’s form for IOLTA access are three of the top 10 documents attorneys need for succession planning and practice management. Learn more in this 3-hour dual credit workshop with attorney Timothy Takacs.

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Trump’s Pick for Sentencing Commission Once Advocated for its Disbandment

A recent nominee for the U.S. Sentencing Commission is raising eyebrows, as he once pushed for the abolishment of the very group he has been chosen to serve on, the ABA Journal reports. Georgetown Law Professor William G. Otis was chosen for his tough-on-crime views, which aligned with President Donald Trump’s, but in 2011 he called for abolishing the commission altogether, declaring that its guidelines “favor the criminal.” A nominee to the Sentencing Commission has rarely been contested for confirmation, but groups that advocate for criminal justice reform are rallying to fight against his confirmation.
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Sessions Tells Prosecutors to Seek Death Penalty in Drug Cases

U.S. Attorney General Jeff Sessions today instructed federal prosecutors to seek the death penalty whenever “appropriate” in drug-related cases, Reuters reports. Sessions’ edict echoed calls from President Donald Trump earlier this week to execute opioid dealers and traffickers. Critics say the move is the wrong way to combat the opioid crisis, and that greater use of the death penalty would tie up resources at U.S. Attorneys offices.
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Nashville Public Defender Pleads for State Money for Underfunded Office

Speaking at a state budget hearing last Tuesday, Nashville Public Defender Dawn Deaner said her office was understaffed and overworked and requested an increase of $1.2 million in funding from the state, WPLN reports. Deaner said that while the Public Defender’s office serves primarily a state function, the city has been funding almost two-thirds of the expenses for the office. It is currently short a total of 23 staff members, making it difficult to appropriately represent clients.
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Tort and Appellate Forum Reception

The TBA Appellate and Tort & Insurance Practice sections will hold a cocktail reception immediately following their collaborative forum on March 29. Join friends and colleagues to relax and unwind after the program.
This event provides a great opportunity to meet leadership of the organization while networking with attorneys and professionals with a similar focus. Forum attendance is not required to attend the reception. Here’s the key info:
When: March 29, 4 p.m., CDT
Where: Tennessee Bar Center, 5th Floor Terrace Room, 221 4th Ave N., Nashville, TN 37219
Contact Jarod Word with any questions.
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Store Owners Caught in 'Operation Candy Crush' Contemplate Legal Action

Store owners involved in the recent “Operation Candy Crush,” where Rutherford County law enforcement agencies raided and shuttered 23 businesses selling cannabidiol (CBD) candies, are contemplating legal action reports The Murfreesboro Post. Law enforcement action culminated on Feb. 12, when the Rutherford County Sheriff’s Department and the Smyrna Police Department seized all merchandise containing CBD and padlocked the almost two dozen businesses, citing them as a public nuisance.
Proprietors argue that they broke no laws since CBD contains only trace amounts of THC, the psychoactive element in illegal marijuana. Legal CBD products must be derived from industrial hemp and contain less than 0.3 percent THC. When isolated from the plant, CBD can be distilled into an oil and added to food and beverages to be sold. If derived from an industrial plant with a clear chain of command, the oil is not inherently illegal.
Defense attorney Tommy Santel, who is representing several store owners, argued that CBD and industrial hemp are not identified as controlled substances. "The state has failed to even plead a sufficient case," Santel said, when asking for the dismissal of all civil injunctions and the removal of the padlocks. "The state needed to go further, the state needed to say 'derivative of marijuana' or 'derivative of industrial hemp.”
All criminal and civil charges against the store owners in Rutherford County part of Operation Candy Crush will be dismissed and their records wiped clean.
Attorneys representing those business owners are discussing how to structure any legal action, which could involve “an overarching” state injunction by stores that took their items off of shelves because they feared prosecution, as well as the Rutherford County business owners who were arrested and lost days of business, according to Joe Kirkpatrick, president of the Tennessee Hemp Industries Association. 
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Prosecutors Seek Death Penalty for Former Student Charged in Parkland Shooting

Nikolas Cruz, the 19-year-old former student accused of killing 17 people at Marjory Stoneman Douglas High School last month, will face the death penalty if he pleads guilty, the Associated Press reports. Prosecutors said they would seek the death penalty despite Cruz’s attorneys saying he would plead guilty if it was not pursued. The only other option for Cruz is life in prison, with no possibility for parole.
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DOJ Says U.S. Prosecutors Won’t Take on Small-Time Pot Cases

Despite the U.S. Justice Department’s decision to lift a policy that discouraged federal authorities from cracking down on pot in legalized states, Attorney General Jeff Sessions said federal prosecutors won’t be taking on small-time marijuana cases, the Associated Press reports. Federal law enforcement will remain focused on larger cases and drug gangs. The Trump administration has taken a tougher line on drugs than previous administrations, with President Trump suggesting the death penalty for drug dealers at a recent rally.
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Moreland Will Stay in Custody Until June Trial

Former General Sessions Judge Casey Moreland appeared in federal court Tuesday for a hearing on the charges of obstruction of justice brought against him last week, WKRN reports. Audio tapes were played regarding the accusation that the former judge took money from the drug court program he started. Judge Joe Brown ordered that Moreland will stay in police custody until his trial date on June 19.

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Cost of Truth in Sentencing Bill Lowered

Tennessee state Rep. Bud Hulsey’s truth in sentencing legislation has become less expensive, the Kingsport Times-News reports. The bill, which would prohibit an inmate from using sentencing credits until the inmate has served the minimum sentence, now has a $37 million fiscal impact instead of more than $112 million in incarceration expenses. Hulsey, R-Kingsport, amended the bill to include only violent felons, and it has passed on a voice vote by the House Criminal Justice Subcommittee.

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Federal Judge Recuses Himself from Ooltewah High Rape Case

A federal judge has recused himself from presiding over lawsuits filed against the Hamilton County Department of Education over an Ooltewah High rape incident, The Chattanoogan reports. Judge Travis McDonough gave no reason for the recusal. The incident, in which a student was hospitalized after allegedly being brutalized on a school trip, happened just before Christmas 2015 when the boys' basketball team was staying at a cabin in Gatlinburg.
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Shelby County Transfers 48 Inmates, Citing High Jail Population

Forty-eight defendants have been transferred pretrial from the Shelby County Jail to the Division of Correction to safely manage the inmate population, The Commercial Appeal reports. Jail populations at the beginning of this year were at the highest since 2015, with the exception of last November, according to Shelby County Sheriff's Office records. Three lawyers said they have clients charged with crimes ranging from theft over $1,000 to aggravated assault and attempted aggravated robbery, who were recently transferred because of the population at the jail.
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TSC: Surviving Spouse Can File Wrongful Death Case Even if Survivor Possibly Negligent in Cause of Death

In a unanimous opinion, the Tennessee Supreme Court ruled the surviving spouse of a person killed in a vehicle accident could initiate a wrongful death action on the decedent’s behalf even though the surviving spouse’s negligence allegedly contributed to the decedent’s death. In an opinion authored by Justice Roger A. Page, the Supreme Court reversed a decision from the Court of Appeals and ruled that based on current wrongful death statutes, the surviving spouse maintained priority to institute the wrongful death action under the circumstances presented in this case.
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Legislation Would Make Autopsy Reports Secret

Two Republican lawmakers have presented a bill in the General Assembly that would make autopsy reports conducted by state and county medical examiners secret, The Tennessean reports. Rep. Eddie Smith, R-Knoxville, and Sen. Joey Hensley, R-Hohenwald, say that public forensic findings can be difficult for the families of the dead, but critics of the bill say those records are vital to those in the criminal justice system. "It's important autopsy reports remain open in cases when there are questions about the death," said Deborah Fisher, executive director of the Tennessee Coalition for Open Government. "This bill closes everything. Things that can be used for accountability." 
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Woodmore Bus Driver Found Guilty of Criminally Negligent Homicide

Johnthony Walker, the driver in the deadly Woodmore Elementary bus crash, was found guilty of criminally negligent homicide in Hamilton County Court, the Times Free Press reports. The verdict was reached today after only two days of trial. Walker was charged with 32 counts related to the crash, which killed six children and injured several more.
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Former Nashville Judge Charged with Obstruction of Justice

Former Nashville Judge Casey Moreland was arrested today on new charges of obstruction of justice, The Tennessean reports. Moreland allegedly stole money from the Davidson County Drug Court Foundation and then tried to destroy the evidence. According to the charges, he is accused of tampering with evidence against him as recently as Feb. 13. Moreland is currently under FBI investigation over allegations that he assisted those in his court in exchange for sexual favors, travel and lodging.
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Lawyer, Former Stripper Requests Pardon from Missouri Governor Because They Are Accused of Same Crime

A California lawyer, who is a former stripper, has requested a pardon from the embattled governor of Missouri, Eric Greitens, after Greitens was indicted under similar circumstances using the same law. Paul Henreid, who moonlighted as a stripper with the stage name Geno while in law school at Washington University in St. Louis, pleaded guilty of a felony for recording sexual acts with six women without their knowledge. He did this using a camera hidden in a clock-radio casing in his room, which he called "the Geno-cam."
"The law under which both the governor and my client have been charged is a law that has commonly been referred to as the 'peeping Tom' statute," Henreid's attorney Albert Watkins told The Washington Post. "It applies to people that would set up a nanny cam in a public bathroom or take photographs of people while they were in a locker room in a state of undress. The plain interpretation of the law, just based on how it's worded, doesn't correspond to the actions of my client. Now you have a sitting governor who is literally arguing the exact same legal rationale that was argued by us," said Watkins. 
The governor was indicted on Feb. 22 in connection with a compromising photo he is alleged to have taken, without consent, of his former hairstylist with whom he was having an affair. The woman claims Greitens told her that if she ever exposed their relationship, he would distribute the picture. The governor does not deny that the photo exists, but says the woman involved had no expectation of privacy when it was taken, sparking the question whether what Greitens allegedly did – photographing a semi-nude sweetheart without her permission during consensual sex – can be prosecuted under that law. 
Greitens' legal team insists it can't. "[The law] applies to situations such as voyeurs and peeping toms who take photographs in locations such as restrooms, tanning beds, changing rooms and bedrooms," Greitens' attorney, James F. Bennett said in a motion filed just hours after Greitens was indicted and booked. Bennett argues the same law was never meant to apply to situations "where individuals involved were jointly participating in sexual activity."
The judge in Henried's case sentenced him to 30 nights in jail saying "Even though [the victims] chose to voluntarily engage in sexual activity with you, they did not choose to have those moments captured on Kodak and to be exploited and have those moments shown to others and ultimately to become an exhibit in this courtroom." The judge continued, "I do not feel you should be allowed to engage in the occupation of attorney at law because you have shown no regard for that law or for the rights of others."
Gov. Greitens is currently under an impeachment probe and has a tentative trial date set for May 14.
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Supreme Court Declines to Hear Nashville Police Records Appeal

The Tennessee Supreme Court will not hear the appeal of a lower court ruling granting a plaintiff access to police accident reports in a timely manner, the Nashville Post reports. Bradley Jetmore sued Metro Nashville two years ago, challenging a policy by the city’s police department that limited access to accident reports within 72 hours. He won and was awarded more than $56,000 in attorneys' fees.
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Next Week: Tort and Appellate Forum 2018

A cross-collaborative CLE forum presented by the TBA’s Appellate Practice and Torts & Insurance Practice sections comes to the Tennessee Bar Center on March 29. This must-see, must-do event will feature timely topics and expert analysis from seasoned professionals, guaranteed to help you up your game and stay on top of trends and advancements relevant to your practice. The forum will feature first-rate programming from speakers and producers such as:

  • Hon. Kyle Hendrick, Hamilton Co. Circuit Court, Chattanooga
  • James Hivner, Supreme Court of Tennessee, Nashville
  • Justice Janice Holder, Private Legal Solutions, Memphis
  • Justice William Koch Jr., Nashville School of Law, Nashville
  • Robertson Leatherman Jr., Attorney, Memphis
  • Morris Ricketts, Consumers Insurance USA a Motorists Insurance Group Company, Murfreesboro
  • Nathan Shelby, Rainey, Kizer, Reviere & Bell PLC, Nashville
  • Hon. Neil Thomas, Hamilton Co. Circuit Court (ret.), Chattanooga

Topics include:

  • Updates on the appellate court’s new e-filing process
  • Updates in tort law
  • A review of the claims evaluation process
  • Practice pointers for insurance coverage and bad faith
  • Effective lawyering in front of juries
  • Ethical considerations and professionalism in appellate practice

Section members receive a discount for the program. Here’s the key info:

When: Thursday, March 29, registration begins at 8 a.m. CST

Where: Tennessee Bar Center, 221 Fourth Avenue North, Nashville

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Nashville Councilman Aims to Eliminate Pretrial Jail Fees

Nashville Metro Councilman Freddie O’Connell filed a resolution last week to remove pretrial jail fees for defendants in Davidson County, the Nashville Scene reports. Currently Metro charges defendants who can’t afford bail $44 per day to be housed in jail. When paid, those fees go directly into the city’s general fund, but only a tiny fraction of the millions in assessed fees get collected. The resolution must go through a 30-day review period before it can appear on the council’s agenda. 
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Lawsuit: Lethal Injection Drugs Cause Torture

A new lawsuit filed by attorneys representing 33 Tennessee death row inmates claims that the state cannot execute convicts using a controversial three-drug mixture because doing so would constitute cruel and unusual punishment. The Tennessean reports that the suit, filed in Davidson County Chancery court today, likely delays any potential executions. The filing comes days after Attorney General Herbert Slatery pushed for the scheduling of eight lethal injections before June 1.
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Top State Attorneys Plan to Appeal DUI Fee Decision

Tennessee’s top prosecutors say they plan to appeal a controversial ruling that threw hundreds of DUI cases into limbo, the Times Free Press reports. The Criminal Court of Appeals last week ruled that the Tennessee Bureau of Investigation had instituted an “unconstitutional” fee system that required defendants pay a $250 blood test fee if they are convicted. "Because the intermediate court ruling will impact the handling of all pending DUI cases in trial courts, we will do our best to impress on the Court the need for expeditious action on the application," Rachel Willis, deputy attorney general for the state of Tennessee, wrote in an email Monday to local prosecutors. "And if it is granted, we will consider asking for an expedited appeal."
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The Protest Movement as a Tool for Social Change: Fifty Years Post-King

The Ben F. Jones Chapter of the National Bar Association presents a dynamic day of programming in recognition of 50th anniversary of the death of Dr. Martin Luther King in Memphis. This program explores the protest that brought Dr. King to Memphis in 1968 and the legacy that his untimely death has left on the fabric of the city. The event will focus on the protest movement in its current state as well as provide updated information on the law surrounding assembly, protest and municipal responsibility.
The program features local historical figures who worked with Dr. King, representatives of the media, City of Memphis, local activists, attorneys and judges.
Speakers and producers include:
  • Barbara Arnwine, Esq., CEO and Founder of the Transformative Justice Coalition, Washington, D.C. 
  • Judge Earnestine Hunt Dorse, Municipal Court Judge, Memphis
  • Bill Cody, Burch, Porter and Johnson, Memphis
  • Earle Schwartz, Memphis Bar Association President, Memphis
  • Judge Bernice Bouie Donald, United States Circuit Judge of the United States Court of Appeals for the Sixth Circuit, Memphis
When: Feb. 23, 9 a.m. CST
Where: Fogleman Business Center, First Floor Amphitheater, 330 Innovation Dr., Memphis, Tennessee 38152
Contact Florence Johnson by email or call her at 901-725-7520 for more information.
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