News

Paper Sheds Light on Kirby Censure

The Tennessean reports that the censure imposed this week on James “Wally” Kirby, the former head of the Tennessee District Attorneys General Conference, was for giving a part-time job to Glenn Funk after he was elected Nashville district attorney but before he was sworn into office. The censure did not name Funk, but Sandy Garrett, chief disciplinary counsel for the Board of Professional Responsibility, confirmed to the paper that the discipline was related to the hiring of Funk. Kirby responded to the censure saying creating such temporary jobs has been a longstanding practice in the prosecutors group. After the arrangement came to light, the conference suspended Kirby. Funk was required to pay back any financial benefits he received while working at the conference.

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DAs Slowly Reworking Cases that Relied on FBI Hair Analysis

A year after the FBI announced its agents made errors when testifying about hair analysis in the 1980s and 1990s, some defendants have received relief. But the government has identified thousands of cases that could have been affected, including defendants on death row and some who already have been executed. In northeast Tennessee, district attorneys are cracking open decades old cases to make sure no innocent individuals were convicted, WJHL reports. “It’s a very difficult process,” says First Judicial District Attorney General Tony Clark. The district is looking at 10 cases. “We’re looking at every one of these one by one, and we really do not have the manpower to do it but we have to do it,” he said.

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Court: School Zone Law Does Not Apply to Facilitating Sale of Drugs

The Tennessee Supreme Court ruled today that the Drug-Free School Zone Act does not apply when a defendant is convicted of “facilitation of possession” in a school zone, overturning both the trial court and appellate court decisions in the case of Stanley Bernard Gibson, who had received a sentencing enhancement based on the proximity of his crime to a school. In a unanimous opinion, the court found that the state drug-free school zone law specifically lists the offenses to which it applies, and facilitation is not among them. They affirmed the underlying conviction but remanded the case to the trial court for resentencing.

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Cohen Asks DOJ to Investigate Justice Center Issues

U.S. Rep Steve Cohen has requested that the U.S. Department of Justice look into recent computer problems at the Shelby County Criminal Justice Center, Local Memphis reports. The Memphis Democrat sent a letter to U.S. Attorney General Loretta Lynch Tuesday following reports that a system upgrade at the center resulted in inmates being "lost" in the system and  stuck in jail for hours after posting bail. “If true, these reports are deeply concerning,” Cohen wrote. “No one should spend one additional minute, let alone days, in jail when, under law, they are supposed to be free.”

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AG: Local Marijuana Laws Not Enforceable

Laws passed by Nashville and Memphis that give police the discretion to hand out lighter civil citations for possession of small amounts of marijuana violate state statute and therefore are not enforceable, according to Tennessee Attorney General Herbert H. Slatery III, the Tennessean reports. In an opinion released today, Slatery said the local ordinances are preempted by state law, which classifies possession of small amounts of marijuana as a Class A misdemeanor charge punishable by up to one year in jail and a $2,500 fine. This afternoon, Memphis officials said they will suspend enforcement of their new ordinance while they review the matter. Initial reactions, however, downplayed the impact of the opinion with some saying it does not have the weight of law or the courts and others saying they doubted anyone would ever challenge the local law. The Commercial Appeal has more.

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Newsom Named Special Counsel in AG’s Memphis Office

Attorney General Herbert H. Slatery III has named James R. Newsom III as special counsel and lead attorney in the attorney general’s Memphis regional office. In his new role, Newsom will assist on a broad range of cases. Newsom previously served as chancellor in the 30th Judicial District, special master for the Chancery Court and in private practice for more than 30 years with Harris, Shelton, Hanover Walsh and its predecessor firm, Hanover, Walsh, Jalenak & Blair. He was appointed to the bench in 2015 by Gov. Bill Haslam. A native of Memphis, Newsom received his bachelor’s degree from Rhodes College in 1976 and law degree from Vanderbilt Law School in 1979.

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Memphis Leaders Release New Crime Plan

Keeping young people out of jail and hiring more police officers are the two main goals of a new crime prevention plan unveiled in Memphis yesterday, WREG reports. The five-year plan, released by the Memphis-Shelby County Crime Commission, calls for reducing the overall crime rate by 25 percent and the violent crime rate by 30 percent, and growing the police force to 2,500. With regard to juveniles, the goal is to look at “smarter, more effective ways to ... keep them out of the adult correction system,” said state Sen. Mark Norris, R-Memphis, who was on hand for the event. 

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Mental Health Court Holds 1st Graduation

The Hamilton County General Sessions Mental Health Court held its first graduation ceremony earlier this month, Chattanoogan.com reports. General Sessions Judge Lila Statom presided over the graduation of the first two participants in the program, which began in 2015. A short celebration followed the ceremony and the Mental Health Court team, led by assistant public defender Anna Protano-Biggs, was on hand to answer questions about the program. 

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Issues Persist at Shelby County Justice Center

Issues that plagued the Shelby County Criminal Justice Center over the last few weeks – including postponement of court, inmates left stranded without bail hearings and computer records that failed to account for all inmates – have mostly been resolved, though new ones have surfaced, Local Memphis reports. According to center staff, the computers have been replaced and all systems are on line and working. Court is back in session and inmates have all been identified and located. Issues now include a backup at the jail that sometimes requires officers to spend their entire shift waiting to check in defendants, and reports that when people go to pay traffic tickets, the tickets do not show up in the system. County staff said they underestimated the impact the change-over would have but the worst should now be over.

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Shelby Commission Rejects Marijuana Ordinance

For the second time in recent days, the Shelby County Commission has rejected a proposal that would have reduced the penalties for possession of small amounts of marijuana. The Commercial Appeal reports that the commission rejected the bill on a 4-9 vote. Opponents cited a variety of reasons for their objections, including the negative impact of marijuana use on education, the damage marijuana can do to the lungs and brain, availability of existing diversion programs and the belief that the issue should be addressed on the state level.

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What Trump Could Mean for Federal Courts in Tennessee

President-elect Donald Trump could dramatically change the makeup of the federal court system in Tennessee with nominations over the next four years, the Tennessean reports. There is one current vacancy in the Western District, with a second one expected to open up when Jackson-based Judge J. Daniel Breen moves to senior status. In the Middle District, U.S. District Court Judge Todd J. Campbell announced today that he would retire from the bench effective Dec. 1. Trump also has the right to replace the state’s three sitting U.S. attorneys. “Here in Nashville … zero of the active judges are Republican appointees,” says Vanderbilt Law School Professor Brian Fitzpatrick. “There has not been a Republican appointed to our federal trial bench here since George H.W. Bush.”

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Duncan Law Finishes 4th at National Mock Trial Tournament

Lincoln Memorial University’s John J. Duncan Jr. School of Law took fourth place at the 28th Annual National Criminal Procedure Tournament at the University of San Diego School of Law this past weekend. The Knoxville-based team competed against 35 other teams from across the country. Team members Emily Persinger and Erin Wallin advanced to the semi-finals and were recognized for Best Petitioner’s Brief. Persinger also was honored as the 10th place oralist in the competition, which featured 72 individual competitors. 

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Nashville Expungement Clinic Scheduled for Saturday

The Music City Community Court Expungement Clinic and Indigency Docket has seen a tremendous community response in Nashville as hundreds of people have obtained non-conviction expungements and important information regarding conviction expungements. The next clinic is scheduled for Saturday from 10 a.m. to 4 p.m. at the Boys and Girls Club, 916 16th Ave. S. Those interested in volunteering should contact Amber Floyd, 901-537-1054.

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Bystander Intervention Summit Planned

The Tennessee Coalition to End Domestic & Sexual Violence and the State Department of Health are joining forces to host a Bystander Intervention Summit Nov. 29 and 30 at the Embassy Suites in Murfreesboro. The event will feature national speakers leading discussions centered on issues related to bystander intervention, which is defined as the psychological phenomenon in which someone is more likely to intervene in an emergency situation when alone than when others are present. Participants will leave with a toolkit to enhance bystander intervention messaging in their own communities. Register online.

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OK to Limit Marijuana Ordinance to Part of County

Armed with an opinion from the Shelby County attorney that an ordinance can be written to only apply to unincorporated areas of the county, Commissioner Van Turner is moving forward with a proposal to lower the penalty for possession of small amounts of marijuana. The legislation would give sheriff’s deputies the option of issuing a civil citation instead of a state misdemeanor charge for possession of a half-ounce or less of marijuana, the Commercial Appeal reports. A similar measure passed the Memphis City Council several weeks ago.

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Opinion: Homeless Vets Lack Access to Justice

Gary Housepian with the Legal Aid Society of Middle Tennessee and the Cumberlands writes in today’s Tennessean that there are nearly 40,000 homeless veterans in America and another 1.4 million at risk of homelessness. This fact, he suggests, complicates efforts to provide legal services to veterans, who often need help with eviction and foreclosure, outstanding warrants and fines and child support issues. Housepian calls on his fellow lawyers to provide critical civil legal services and urges veterans to reach out for help.

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States Pass Marijuana, Minimum Wage, Gun Measures

Proponents for legalized marijuana, increased minimum wage and stricter gun control provisions saw gains on Election Night, the ABA Journal reports. Voters in seven states approved marijuana-related ballot initiatives ranging from recreational use to medicinal marijuana. Only in Arizona did a marijuana-related initiative fail. Voters in four states approved minimum wage hikes, while three supported various gun control measures. Washington voters supported a measure giving family members or law enforcement the right to petition a court to strip someone of their gun rights. Nevada voters approved tighter background checks on gun purchases and Californians passed an initiative to limit high-capacity ammunition magazines. Only in Maine did voters reject a proposal to expand gun-purchase background checks.

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Voters in 3 States Back Capital Punishment

Voters in three states on Tuesday passed ballot initiatives supporting capital punishment. In California, voters rejected a measure to repeal the death penalty and passed a measure that seeks to speed up the appeal process. In Nebraska, voters restored the death penalty after lawmakers repealed it last year. And in Oklahoma, voters passed a constitutional amendment stating that the death penalty does not amount to cruel and unusual punishment. Link to news stories about each of these measures from the ABA Journal.

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Profile: Federal Prosecutor Readies for Change

Nancy Harr, the acting U.S. attorney for the Eastern District of Tennessee, is maintaining a good attitude about her job in the wake of a Republican presidential win Tuesday night, according to a profile of the lawyer in Knoxnews. “We are the U.S. Attorney’s Office for everyone,” the Democratic appointee says. While she likely will not stay in her current role, she is happy to return to prosecuting cases and said she will help with the transition once a new Republican appointee is confirmed. “I’ve served now under Clinton, under Bush and Obama and now I’m getting ready to serve under President Trump,” she said.

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Prison Medical Provider Faces 2 More Suits

A federal lawsuit filed Tuesday alleges that prison health care provider Centurion failed to provide proper care to a man who fell ill after eating undercooked chicken at a state prison in Hickman County. Though he was experiencing severe symptoms, the suit claims he was not taken to the hospital for two days and later died there. A separate suit has been brought by the family of a man who died after falling ill in a West Tennessee prison. These two suits come just weeks after a female prisoner filed suit against the company after she gave birth in a medical wing cell without a doctor present. That suit alleges nurses accused her of faking labor and that the unsanitary conditions led to a serious infection for her newborn son. The Tennessean looks at the cases.

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Court Issues Order Amending TCCA Rule 7

The Tennessee Court of Criminal Appeals issued an order today amending Rule 7 of its rules. The order deletes Rule 7 in its entirety and substitutes the following language: “Motions in this Court shall be in conformity with Rule 22, Tennessee Rules of Appellate Procedure. The proponent of a motion is not required to submit a proposed order.” Get the order here.

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Lawsuit Challenges State Sex Offender Registry

Retroactive enforcement of Tennessee’s sex offender registry law is being challenged in a federal lawsuit that mimics a successful suit that struck down similar laws in Michigan, the Tennessean reports. The case, filed Tuesday in federal court in Nashville, argues that the state’s registration laws, which have been added piecemeal over the years, are illegally applied retroactively. The suit alleges the increasingly burdensome requirements are onerous, vague and arbitrary, and cites 10 cases from around the country that have found retroactive enforcement of registries unconstitutional.

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Trial Set for June 19 for 3rd Football Player

Davidson County Criminal Court Judge Monte Watkins has set June 19 as the trial date for Brandon E. Banks, the third former Vanderbilt student and football player charged in the rape of an unconscious woman in 2013. Banks has pleaded not guilty to five counts of aggravated rape and two counts of aggravated sexual battery, the Tennessean reports. His case has been on hold while two other defendants went to trial. They were both found guilty and sentenced to prison. Banks' lawyer said plea negotiations will continue as the case moves toward trial.

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Stanton, Weirich Announce Special Heroin Prosecutor

U.S. Attorney Ed Stanton and Shelby County District Attorney Amy Weirich are joining forces to support a special prosecutor to go after those responsible for heroin overdoses and deaths, the Commercial Appeal reports. At the request of Stanton, the board of the Gulf Coast High Intensity Drug Trafficking Areas approved a grant to hire a full-time prosecutor in Shelby County. The yet-to-be-named individual will come from Weirich’s office, but will be named a special assistant U.S. attorney and will work with federal, state and local officials on heroin cases. The pair hope to have a prosecutor on the job by January.

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State to Seek Trial for 3rd Vanderbilt Rape Defendant

Prosecutors on Thursday will ask to set a trial date for a third ex-football player charged in the rape of an unconscious woman at Vanderbilt University, the Tennessean reports. Felony charges against Brandon E. Banks have been pending while two other former football players went to trial and were sentenced to prison. Banks’ lawyer has been working with the state to try and reach a deal to avoid a trial. The move to set a trial date may signal that those negotiations have stalled, the paper suggests.

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