TBA Gears Up for 2018 Mock Trial Tournament

The Tennessee Bar Association will host the upcoming Tennessee High School Mock Trial Tournament on March 23 and 24 in Nashville. The Mock Trial is a two-day, single-elimination bracket-style competition where 16 high schools face-off against each other in the Davidson County Courthouse. Each team is scored on their trial preparation and skills. 

We need TBA volunteers to help be bailiffs and jurors (scorers) for the event. After signing up, we will send you a Volunteer Memo with all the information you need for competition including; parking, hotel, downtown map, courthouse rules, and reimbursement information. Come be a part of the Young Lawyers Divisions’ March Madness! Feel free to contact YLD Director Stephanie Vonnahme with any questions.

To volunteer for this event, click here.

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Appeals Court Ruling Calls Tennessee DUI Conviction 'Fee System' Unconstitutional

Tennessee Court of Criminal Appeals has ruled that a state law giving the Tennessee Bureau of Investigation a $250 fee in DUI convictions is unconstitutional. The ruling is a result of a Hamilton County DUI case of a woman who argued her blood test should be suppressed because the fee system violated her right to a fair trial and gave the TBI a financial motivation to get convictions. The case was consolidated with more than 20 others of defendants who gave blood or breath samples to authorities.

The appeals court said in the 28-page ruling, "Based on the record before us, the TBI, and specifically, the forensic science division is dependent on these BADT (blood alcohol or drug concentration test) fees. Given the upward trend in BADT collections for each successive year, we believe that the TBI will become increasingly reliant on these fees in the future, which only serves to heighten the potential for bias among TBI forensic scientists. The fee system in TCA § 55-10-413(f) also closely resembles cases in which expert witnesses or attorneys have been disqualified for conflicts of interest."

The Tennessee Attorney General's Office is reviewing the decision, which could be appealed, according to the Tennessean. The income from the fee has been increasing and now is above $3 million per year, the paper reports.

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Appeals Court Rules $250 TBI Fee for DUI Convictions is Unconstitutional

The Court of Criminal Appeals in Knoxville ruled a statute that gives the Tennessee Bureau of Investigation $250 for DUI convictions obtained using a blood or breath test is unconstitutional, The Tennessean reports. The decision came from a DUI case in which a woman argued her blood test should be suppressed because the fee system violated her right to a fair trial and gave the TBI financial motivation to rack up convictions. Her case was among more than 20 other cases involving defendants who gave blood or breath samples.
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Eastern District Prosecutors Collected More than $11M in Fines, Penalties Last Year

Federal prosecutors in the Eastern District of Tennessee collected more than $11 million from criminal and civil actions in 2017, the Times News reports. The funds come from fines, restitutions and assessments, and went to victims or into the Crime Victims Fund. $9.3 million was from criminal actions and $1.76 million from civil ones.
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Pilot Flying J Trial: Former President Didn't Testify

As prosecutors wrapped up their case in the trial of former Pilot Flying J executives yesterday, former company president Mark Hazelwood chose not to testify on his own behalf, Knoxnews reports. Assistant U.S. Attorneys Trey Hamilton and David Lewen rested their case against Hazelwood, former vice president Scott Wombold and former account representatives Heather Jones and Karen Mann, all accused of conspiracy to commit wire and mail fraud. Defense attorney Rusty Hardin said he “strongly believed” that the government had not proved its case. The prosecution declined to summon former vice president John “Stick” Freeman, who pleaded guilty before this trial begin.
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Defense Lawyers Name Lawrence New Executive Director

The Tennessee Association of Criminal Defense Lawyers (TACDL) has announced that Denise Lawrence will serve as its newest executive director, Humphrey on the Hill reports. Lawrence brings with her more than two decades of government relations experience having previously served in strategic planning and advocacy roles for the Tennessee Board of Regents, the Tennessee Department of Commerce and Insurance and the state senate Democratic caucus. Lawrence, a grandmother of three, first joined TACDL as interim executive director in August 2017. She assumed her latest role in December.
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Access to Justice Commission Seeking Feedback

The Tennessee Supreme Court’s Access to Justice Commission is seeking input from the legal community to help in planning efforts as it develops a new strategic plan in March. A brief survey is available for all who wish to share thoughts and feedback. The survey will remain open through Feb. 7. Please contact Anne-Louise Wirthlin at the Administrative Office of the Courts with questions or for more information. 

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Extraordinary Appeal Granted in Brentwood Academy Assault Lawsuit

Last week, the Tennessee Court of Appeals granted an application for extraordinary appeal in the Brentwood Academy assault lawsuit, according to The Tennessean. This decision reignites the controversial dispute previously dismissed by Williamson County Circuit Court Judge Deanna Johnson. The suit, filed in August 2017, alleges John Doe was repeatedly sexually assaulted in a locker room by older students during the 2014-15 school year. It also alleges that school officials failed to appropriately respond to and prevent the attacks. 
The case took a surprising turn last month when it was dismissed by Johnson amidst an argument over the deposition of Bureon Ledbetter, an attorney for the John Doe and family. Ledbetter argued the information he was asked to reveal through the deposition would violate attorney-client privilege. Johnson said Ledbetter could file an objection but must answer. If he did not, she threatened to put him in jail for contempt, according to court documents. At that point, the Does' second attorney, Justin Gilbert, tried to withdraw the case without prejudice, with the intent to refile. However, the same day Johnson granted an order requested by Brentwood Academy attorneys to dismiss the case with prejudice. Despite Johnson's order dismissing the case, the Williamson County court docket states the case is technically still open as Johnson still needs to file a findings of fact offering an explanation as to why the case was dismissed. 
Both the school and the accused students have denied all wrongdoing.
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Tennessee Bar Journal’s Second Annual Fiction Contest Accepting Submissions

The Tennessee Bar Journal is now accepting submissions for its 2nd Annual Fiction Contest! The period for submissions runs through March 12, 2018. The winner will be notified by May 1. The winning entry will be published in the June 2018 issue and the author will receive a $100 gift card from a favorite independent bookstore. Review the rules and more information here.
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The Road is Rocky for Felons Who Want to Be Lawyers

Should convicted felons be able to become lawyers, provided that they have moved on from their criminal past? ABA Bar Leader Weekly points out two states that had to grapple with this recently when two prospective lawyers with criminal records faced challenges with their character and fitness tests — one was initially blocked from taking the bar exam but successfully appealed, and the other prevailed after a two-day hearing, spending $25,000 in the process. The New York Times offers more details about their stories, and raises some questions about how boards of bar examiners can protect the public without being perhaps unnecessarily harsh.

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Report: Murders Down, Overall Crime Up in Memphis/Shelby

The murder rate dropped in Memphis/Shelby County in 2017 from the previous year although the overall crime rate increased, according to figures from the Tennessee Bureau of Investigation in a report released Monday by the University of Memphis Public Safety Institute and the Memphis Shelby Crime Commission. The preliminary figures show a 15.6 percent drop in the murder rate countywide and 10 percent decrease within the city. Among all major violent crimes, there was an increase in aggravated assault (9.3 percent in city and county) and robbery (7.4 percent in the county and 8.4 in the city). "The drop in murders is encouraging," Bill Gibbons told WREG. "The overall level of violence remains unacceptable." Gibbons is president of the Crime Commission and executive director of the Public Safety Institute. 

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U.S. Attorney Ramps Up Gun-Crime Task Force in Memphis

New U.S. Attorney for West Tennessee Michael Dunavant said his office will be reinvigorating an anti-gun crime initiative in Memphis and Shelby County, The Commercial Appeal reports. The task force, called Project Safe Neighborhoods, is comprised of investigators and attorneys that meet each week to review crimes involving firearms and examine whether a conviction in court could bring the maximum sentence. Enthusiasm for the initiative cooled in 2010 as resources were diverted to other needs.
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U.S. Gymnastics Doctor Gets 40 to 175 Years for Sex Abuse

Following days of victim impact statements before a Michigan judge, former Olympic gymnastics doctor Larry Nassar was sentenced today to 40 to 175 years in prison for molesting young female athletes, NBC News reports. Nassar pleaded guilty to seven counts of first-degree criminal sexual misconduct last year, and has already been sentenced to 60 years in federal prison for possession of child pornography. He was forced to listen to 156 of his accusers gave statements in Judge Rosemarie Aquilina’s courtroom over seven days before hearing the sentencing. "You do not deserve to walk outside of a prison ever again," Aquilina said to Nassar. “I just signed your death warrant.”
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Don't Forget: Winter CLE Blast Tomorrow!

Need CLE hours fast? We can help! The annual Winter CLE Blast is less than a day away. With this program, you can complete up to 11 hours of Dual CLE credit on your own time. Our registration desk will be open from 7 a.m. to 6:45 p.m. on Feb. 21, providing you the flexibility to create your own schedule and take as many or as few hours as you need. Payment will be determined at checkout depending on the number of hours you attend. 


  • Flexible to your schedule
  • Up to 11 Hours of CLE
  • Ethics Credits
  • Compliance CLE
  • Live Credit Hours

When: Feb. 21, registration begins at 7 a.m., CST

Where: Tennessee Bar Center, 221 4th Ave N., Nashville, TN 37219


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CLE Opportunities for Solo Practitioners

The Tennessee Bar Association will host upcoming CLE events geared towards assisting solo practitioners with the unique problems faced in starting their own practice and how to further advance their practice once established. 
The programs - Go SOLO: Tools for Starting Your Practice and I am SOLO: What's Next for The Solo Practice - will focus on topics such as:
  • Are you ready
  • People skills
  • Start-up costs
  • Business operations
  • Allocation of resources
  • Entering the market
  • How to promote yourself
  • Expanding your office
  • Considering additional partners
  • Combining services with another small firm
  • Opening another office or adding more support staff
Do not miss this opportunity to learn from seasoned professionals who have dealt with and overcome these challenges, while you fulfill your necessary CLE obligations. Section members receive a discounted rate for the programs. Both will be simulcast online, should you be unable to make it in person. Here's the key info:
When: Feb. 8, registration begins at 8:30 a.m., CDT
Where: Tennessee Bar Center, 221 4th Ave N., Nashville, TN 37219
When: Feb. 8, registration begins at 11:45 a.m., CDT
Where: Tennessee Bar Center, 221 4th Ave N., Nashville, TN 37219
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Michigan Judge Tells Convicted Killer 'I Hope You Die in Prison'

A Michigan judge became incensed during a sentencing hearing and told the defendant "I hope you die in prison." Judge John McBain was ruling in the case of 31-year-old Camia Gamet, when the defendant appeared to mock the victim's grieving family by rolling her eyes, causing the judge to lose his temper.
Gamet was convicted in March of fatally stabbing her boyfriend, Marcel Hill. According to WNEM in Lansing, McBain called it one of the worst cases he has ever seen. He told Gamet that she "gutted [Hill] like a fish.' 'If this was a death penalty state, you'd be getting the chair," said the judge.
McBain also threatened to tape Gamet's mouth shut, saying, "You're going to shut your mouth or I'm going to have some duct tape put on it." Gamet was sentenced to life in prison without the possibility of parole.
This is not the first time the acrimonious adjudicator has made news for his candid outbursts. McBain once tackled and subdued a man who resisted being taken into custody and has been repeatedly accused of partiality and hostility in his courtroom.
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6th U.S. Circuit Judge Hands Down First Published Opinion in a Constitutional Case

Recently appointed 6th U.S. Circuit Court of Appeals Judge John K. Bush handed down his first published opinion in a constitutional case, Peffer v. Stephens, last Thursday. The case is a civil suit challenging probable cause in the issuance of a search warrant. 
Jesse Peffer served as a caregiver for medical marijuana patients in Michigan, permitting him to grow a limited number of cannabis plants. When his plants produced more marijuana than he needed, Peffer sold the surplus to Tom Beemer, who ran a medical marijuana dispensary. Unbeknownst to Peffer, Beemer was a confidential informant to state and local police. 
One day, Beemer asked Peffer to sell him more surplus marijuana than is permitted under state law. The two agreed and police stopped the appellant as he drove to the meeting, finding more marijuana in his car than he was licensed to possess. Peffer was arrested and charged.
Eight months later, the local school district and child services agency received typewritten letters purporting to be from one of the police officers who arrested Peffer. These letters accused Beemer of distributing a controlled substance and becoming a confidential informant "in exchange for immunity/leniency in sentencing." Investigators determined it was most likely Peffer who authored and distributed the letters and flyers and obtained a warrant to search for and seize records relating to the activities including in electronic form.
To search Peffer's house for evidence, the police needed "probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." A detective submitted an affidavit to the court asserting he had probable cause to believe Peffer's residence "may contain evidence of the crime of Impersonating a Police Officer and Witness Intimidation." The detective asked permission to search Peffer's house for "computer hardware," "computer-related equipment," printers, scanners, any "electronic storage device," and Peffer's personal email.
After searching the appellant's house and electronics, law enforcement found nothing incriminating; prosecutors elected not to press charges. Peffer and his wife sued a detective sergeant with the Michigan State Police alleging a violation of their Fourth Amendment rights. A lower court threw out their suit, and Bush affirmed its decision in a unanimous decision for a three-judge panel.
Prior to his confirmation, Bush came under fire because of a history of making blog comments that have been construed as sexist and homophobic. He has been an outspoken critic of LGBT protection laws and used an offensive anti-LGBTQ slur when giving a speech to the Forum Club of Louisville. Bush co-authored an amicus brief on behalf of a conservative group opposing the admission of women into the Virginia Military Institute, asserting that VMI “does not appear to be compatible with the somewhat different developmental needs of most young women.” He has also been criticized for remarks made comparing abortion to slavery.
The full decision can be viewed here.
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Bill Proposes Amendments Regarding Children's Testimony in Criminal Trials

Proposed amendments to Tennessee Code Annotated, Title 24, Chapter 7, Part 1 aim to permit out-of-court statements made by children from being excluded as hearsay. Under HB1480, an out-of-court statement made by a child who is under 12 years of age at the time of a criminal trial describing any sexual act performed by, with, or on the child or describing any act of physical violence directed against the child will not be excluded from evidence at the criminal trial as hearsay if all of the following apply:
The court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness that make the statement at least as reliable as statements admitted under certain rules of the Tennessee Rules of Evidence. This bill lays out in detail the circumstances a court must consider in making a determination of the reliability;
1. The child's testimony is not reasonably obtainable by the proponent of the statement. This bill details the circumstances in which a child's testimony is not reasonably obtainable;
2. Independent proof exists of the sexual act or act of physical violence;
3. At least 10 days before the trial or hearing, a proponent of the statement has notified all other parties in writing of the content of the statement, the time and place at which the statement was made, the identity of the witness who is to testify about the statement, and the circumstances surrounding the statement that are claimed to indicate trustworthiness of the statement.
4. The bill will require the court to make the findings based on a hearing conducted outside the presence of the jury and to make findings of fact on the record as to the bases for the court's ruling. 
Similar proposed legislation has been met with consternation out of constitutional concerns for defendants. The bill has passed the first reading and has been assigned review by the Criminal Justice Subcommittee. More information is available on the General Assembly website.
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Rep. Faison Files Bill Aimed at Ending Private Prison Usage in State

Rep. Jeremy Faison, R-Crosby, has filed legislation taking aim at private prison usage in Tennessee, according to the Tennessean. SB1585 proposes an amendment to TCA Title 41, Chapter 24, prohibiting contracts for the operation of prison facilities from containing occupancy level guarantees, in which the state promises to keep its prison at 90 percent capacity or pay the contractor as though the prison were 90 percent full even if it's not. Private prison opponents argue that these guarantees act as a monetary incentive for states to keep prisons full.
Faison predicts the bill will be hotly contested, as Tennessee is home to the second largest private corrections company in the United States, CoreCivic, formerly Corrections Corporation of America. The spokesman for the company, Amanda Gilchrist, recently told the Tennessean that "fewer than half of our contracts include such a provision. Those contracts that include a guarantee ensure our government partners that sufficient space to safely and securely house their offenders in the facility is available to them." 
CoreCivic has long been the center of controversy, most recently because of a report from the state Comptroller’s Office, which cites inadequate staffing and supervision of inmates, both persistent problems for the beleaguered corporation. "The U.S. Constitution says that government is supposed to carry out justice," said Faison. "Our Tennessee state Constitution says that government is supposed to carry out justice, not, 'somebody who’s trying to make money gets to carry out justice.' That's crazy."
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Write it Up: TBJ Fiction Contest is Now Open

The Tennessee Bar Journal's Second Annual Fiction Contest is underway! We know that in your real job you don't get to make stuff up, so now is your chance to be loose with the facts and write wildly creatively. Send your fiction in by March 12 to be considered. The winning entry will be published in the June 2018 issue of the Journal, and the author will receive a $100 gift card from a favorite independent bookstore.

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Criminal Law: Field Sobriety Test and Analysis

In this online video, Officer Bradley Nave of the Metro-Nashville Police Department will give an overview of Standardized Field Sobriety Tests. 
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Researchers Find Link Between Brain Trauma, Criminal Behavior

After a Vanderbilt University professor found a connection between criminal behavior and brain trauma, defense attorneys say they can establish a link in court as well, WSMV reports. Brain scans are being used as defense tactics to explain behavior as well as determine punishments, according to Nashville lawyer David Raybin. The author of the research, assistant professor of neurology Ryan Darby, focused his study on people with brain tumors, as well as individuals who had suffered a stroke or a brain bleed. 
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Rutherford Sheriff’s Office Pushes for Education to Fight Recidivism

The Daily News Journal has profiled the Rutherford County Sheriff’s Office’s efforts to improve inmate education and programming, including greater push for inmates to pass the High School Equivalency Test (HiSET), the newer name for the GED. In 2017, 50 inmates successfully completed the program and passed the test. Proponents of the new programs say they help inmates adjust and compete in the workforce when they are released.
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Wilson County Man Exonerated for Wrongful Rape Conviction

Lawrence McKinney, the Wilson County man released from prison in 2009 after a court overturned a 1978 rape conviction due to DNA evidence, has been exonerated by Gov. Bill Haslam, The Tennessean reports. McKinney spent 31 years in prison for a crime the court determined he did not commit. He also previously saw his record expunged. The Tennessee Board of Parole voted unanimously against exoneration, but Haslam said he respected the determinations of the Shelby County Criminal Court and District Attorney General.
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Prosecutors Unveil Evidence in Woodmore Bus Crash

The driver of a school bus charged with killing six children was on the phone at the time of the crash, the Times Free Press reports. Hamilton County District Attorney General Neal Pinkston said that driver Johnthony Walker received a call at 3:17 p.m., and the first calls about the Woodmore Elementary bus crash came in at 3:20 p.m. The prosecution also alleges that Walker was speeding. A draft of National Transportation Safety Board report on the wreck is now in the review process and could be released in late spring. Judge Don Poole also announced during today's hearing that jurors for the trial will be brought in from Montgomery County to hear the case.
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