News

Pilot Puts Workers on Leave, Ramps up Audit and Compliance Functions

A week after federal agents raided the headquarters of Pilot Flying J, company CEO Jimmy Haslam is taking steps to address charges that Pilot withheld millions of dollars in rebates from its trucking customers. Actions announced yesterday include placing several sales employees on leave, eliminating the manual rebate system that appears to be at the center of the investigation, using the company's field audit team to review all 3,300 trucking contracts, creating the new position of chief compliance officer, and tasking a nationally-recognized individual to conduct an independent investigation. Knoxnews has the latest in this developing story.

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Pilot Hires Nashville Defense Attorney

In the wake of a federal raid and criminal investigation, Pilot Flying J has retained Nashville defense attorney Aubrey Harwell Jr., who also "has brought a team in with him," according to a Pilot spokesman. In addition, at least one top Pilot executive has hired his own attorney, with Vice President of Sales John Freeman retaining Knoxville criminal defense attorney John E. Eldridge. Knoxnews reports the developments.

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House Panel Named for Bebb Inquiry

The Tennessee House on Friday voted to form a committee to review the TBI's four-month investigation into 10th Judicial District Attorney Steve Bebb's office. Lawmakers voted 75-10 to name six members – three Republicans and three Democrats -- to a special committee that can meet during the recess. The six were selected from among the members of the Criminal Justice and Civil Justice committees, the Chattanooga Times Free Press reports. The group said it would begin reviewing the files as soon as practical. Also on Friday, the House Judiciary Committee approved a resolution directing the TBI officials to turn over all files, records, back-up materials, notes, interview transcripts and other exhibits. Senators previously had approved a similar resolution.

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Court Grants New Trial for Miranda Violations

In a unanimous opinion, the Tennessee Supreme Court Friday ordered a new trial for a Gibson County man after determining that statements he made during a police interrogation should not have been used as evidence at trial. The case involves the 2007 arrest of David H. Climer Jr., during which he asked whether he could “have … an appointed lawyer right now.” The detective questioning him said “not at this time” and proceeded to question him for three hours. The trial and appeals courts found that the statements were properly admitted because Climer never unequivocally invoked his right to counsel. The Supreme Court disagreed, saying the prosecution failed to prove that the defendant understood and waived his constitutional right to appointed counsel. Download the opinion.

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Street Sworn in Before Overflow Crowd

Judge Stacy Street was sworn in as First Judicial District Criminal Court judge yesterday in Elizabethton by fellow Criminal Court Judge Robert Cupp. Before a crowd of well wishers, Street thanked many people, and reflected that he is now sitting on a bench that has been occupied by only three men in the past 40 years: Arden Hill, Cupp and Lynn Brown, who he succeeds. He said all three had a drive “to be fair and to do the right thing” and that his dream is that “When my time is up that you can say the same thing about me.” See photos in the Johnson City Press and Elizabethton Star.

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Court Grants Review to 1 Civil, 3 Criminal Cases

The Tennessee Supreme Court has granted review in three criminal cases and a single civil matter. The criminal issues include (1) whether a trial attorney is ineffective for telling a defendant only that he “may or may not be deported” as part of a plea bargain; (2) whether a prosecutor’s closing argument that the defendant should “Just tell us where you were” constituted an improper comment on the defendant’s post-arrest silence; and (3) whether a defendant committed burglary when he obtained permission to enter a habitation through deception. The civil case addresses a jail’s liability to an inmate who was injured by another inmate after he was erroneously left in jail following a court order for his release. The Raybin-Perky Hot List discusses these cases and predicts possible results.

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Race Raises Awareness of Crime Victims’ Rights

The First Judicial District Attorney’s Office and the Washington County Sheriff's Office, in association with Safe Passage domestic abuse shelter in Johnson City, will hold the Justice in Motion 5K run/walk April 27 during National Crime Victims' Rights Week. The event is designed to raise awareness of victims’ rights and will benefit the work of Safe Passage. Local domestic abuse shelters, sexual assault centers, victims groups and law enforcement agencies are invited to attend the race and set up booths with literature about their services. Learn more in this article in the Kingsport Times News or register online.

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McNally Amendment Withdrawn

The appropriations amendment that threatened legal aid and funding for public defender and indigent representation was withdrawn by the sponsor Tuesday evening. Advocates credited swift, coordinated and effective response by the legal community in reaching many senators and representatives who argued against the proposal.

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Street Named 1st District Criminal Court Judge

Elizabethton attorney Stacy Street was appointed to the First Judicial District Criminal Court today by Gov. Bill Haslam. Street takes the seat held by Judge Lynn W. Brown, who retired March 31. Most recently, Street worked as a solo practitioner focusing on criminal law. He previously was a partner with Hampton & Street and an associate with Hampton & Hampton, the AOC reports. He is a 1992 graduate of the University of Tennessee College of Law. The AOC reported the appointment.

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Prosecutor May be Planning Run for Judgeship

Leland Price, a Knox County assistant attorney general who’s helped prosecute defendants in the slayings of Channon Christian and Christopher Newsom, indicated over the weekend that he is planning to run next year to succeed Criminal Court Judge Mary Beth Leibowitz, who is retiring. Knoxnews columnist Georgia Vines writes in today’s paper that Price once considered running for Knox County district attorney general but apparently has changed his mind. Another prosecutor in the office, Republican Charme Knight, has indicated an intention to run for the DA position.

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Gideon’s Promise Holds Nashville Event May 1

Atlanta-based Gideon’s Promise will host a “Law Day Soiree” May 1 from 5 to 7 p.m. at the Nashville offices of Frost Brown Todd. During the event, the group's president will discuss the state of the nation’s public defense system and share about the mission of the organization. Nashville Mayor Karl Dean also will be honored and select outtakes from an upcoming HBO documentary, Gideon’s Army, will be shown. The event is sponsored by Nashville Public Defender Dawn Deaner; Baker, Donelson, Bearman, Caldwell & Berkowitz; Bell Tennent & Frogge; Bone McAllester Norton; Dodson, Parker, Behm & Capparella; and Frost Brown Todd, located in the Pinnacle at Symphony Place, 150 3rd Ave. S., Suite 1900, Nashville 37201. RSVP for the event by April 24 to Roshonda Carter. Learn more about Gideon’s Promise, formerly known as the Southern Public Defender Training Center, by watching this recent New York Times video about a young prosecutor who graduated from its program.

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Workers' Comp Overhaul Adopted; McNally Amendment Still Alive

The bill (SB 200) to overhaul the workers’ compensation system, transfer responsibility to an administrative judiciary and narrow the range of discretion in the system received easy final passage in the state House today.

Meanwhile, budget deliberations, which will formally resume on Monday afternoon, continue to include the McNally amendment. With only one week likely left in the session, and most notice and other rules suspended, advocates must now expand their focus to all members of the Senate Finance Committee to try to head off quick adoption of the proposal by the chair.

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Rivera Named Acting Federal Prosecutor

David Rivera has been named acting U.S. attorney for the Middle District of Tennessee, replacing Jerry Martin who left office to create a Nashville office for Robbins Geller Rudman & Dowd. Rivera is a veteran federal prosecutor who worked in federal prosecutors’ offices in Puerto Rico, Florida and New York, and has been recognized for work on prosecutions of international drug trafficking organizations as well as his work on public corruption and economic fraud cases. Knoxnews has the story.

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Prosecutors Oppose Probation for Baumgartner

Federal prosecutors are asking U.S. District Court Judge Ronnie Greer to disregard probation requests and lock up former Knox County Criminal Court Judge Richard Baumgartner for “at least two years,” according to Knoxnews. Assistant U.S. Attorneys Zachary Bolitho and David Lewen said in a filing Monday that Baumgartner’s misdeeds “significantly disrupted” the Knox County criminal justice system. The pair point to the half dozen new trials granted to defendants as a result of the fall-out of the pill scandal, most notably within the high-profile case regarding the Christian-Newsom torture-slayings. Baumgartner’s defense attorneys Donald Bosch and Ann Short argued the former judge gave up the bench when the Tennessee Bureau of Investigation probe became public in 2011 and that damage to the justice system has not been as bad as anticipated.

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Important Issues Still at Play in Legislature

A number of bills of interest to lawyers may see action before the end of the session. They include:

Lawyer Regulation -- A bill (SB 779/HB 635) to impose criminal sanctions on Board of Professional Responsibility panel members, staff, lawyers subject to discipline, and their counsel for certain procedural violations could see action in committees in both chambers. The TBA has resisted this unwelcome intrusion in the Supreme Court’s disciplinary process.

Tort -- Codification of comparative fault with limitations of joint and several liability in several types of cases that the courts have carved out by common law -- including products liability and cases with combined intentional and negligent actors -- still awaits House committee action (SB 56/HB 1099).

Collateral Source Rule -- The effort to limit the effect of the collateral source rule (SB 1184/HB 978) will be studied for now but could return next year.

Workers Compensation Overhaul -- The Workers Compensation overhaul (SB 200/HB 194) continues its march towards expected passage. According to the Associated Press, the plan is scheduled for a full Senate vote on Monday night with the House Finance Committee taking it up on Tuesday.

Conservatorship -- The work of the TBA’s Special Committee on Conservatorship Practice and Procedure has been adopted by the Senate (SB 555/HB 692) and should see action in the House Civil Justice Committee this week.

Trust Law -- A bill (SB 713/HB 873) to rewrite Tennessee trust law and a 52-page amendment debuted 10 days ago will see action in the House Civil Justice Committee.

Criminal -- The Senate Judiciary Committee will hear about legislation (SB 1362/HB 1293) permitting prosecution of an alleged repeat child abuser in any county where an act of of abuse allegedly occurred, and permitting evidence of all prior child abuse by declaring past offenses to be a "continuing offense.”

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DA Names Domestic Violence Prosecution Team

Addressing a growing need to help victims of domestic violence, the Davidson County District Attorney’s Office will create a special team to handle domestic crime-related cases. District Attorney Torry Johnson said the Domestic Violence Prosecution Team will devote six assistant district attorneys and five victim witness coordinators to the effort. A similar team was disbanded 10 years ago because of budget concerns, WTVF NewsChannel 5 reports, but it has been reconstituted after Mayor Karl Dean recognized the growing need. "The trend has to be to bring these cases into the criminal justice system and break the cycle of violence," Johnson said in announcing the team.

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Drug Court Running Low on Funds

The Sumner County Drug Court, which is in its 11th year and annually serves 40 to 60 adults, is running low on funding, with one general sessions judge saying the program could be as much as $35,000 short in the next fiscal year. The program is funded by an annual state grant and fines paid by those convicted of drug or alcohol-related crimes in the county. The 2013 Leadership Sumner class also recently made a three-year financial commitment to the drug court. As one class member observed, “Either we can fund the program…or we can pay for them to stay in the county jail. Either way, we are going to pay for it.” The Tennessean looks at the history of the program, including a number of success stories.

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Baumgartner Defense Makes Final Push

Lawyers for former Knox County Criminal Court Judge Richard Baumgartner are making a final push to fight federal charges that he lied to judges and a prosecutor to protect his pill-supplying girlfriend Deena Castleman. New motions filed with U.S. District Judge Ronnie Greer allege that Baumgartner could not have been collaborating in the pill distribution network since Castleman was locked up when he spoke to Anderson County Judge Don Elledge about her release. A second motion argues there is no proof that Baumgartner lied to Knox County Assistant District Attorney General Jeff Blevins when he asked Blevins to “do what you can” to help the woman, as she was facing burglary charges at the time. Baumgartner faces sentencing April 10 Knoxnews reports. Greer is expected to rule on the validity of the convictions before the sentencing.

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DA Cleared of Criminal Acts

State Attorney General Robert Cooper has found no prosecutable criminal acts by 10th Judicial District Attorney General Steve Bebb, though a report criticizes the district attorney’s office for poor judgment, mismanagement and deficient record keeping. State Rep. Eric Watson, R-Cleveland, and Sen. Mike Bell, R-Riceville, had called on the attorney general to investigate allegations after the Times Free Press ran a series last August that alleged Bebb’s office botched important cases through ineptness or misconduct, misused taxpayer money and played favorites in criminal prosecutions.

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Watson Appointed to Criminal Justice Committee

Tennessee House of Representatives Speaker Beth Harwell has appointed Rep. Eric Watson, R-Cleveland, to the Tennessee Criminal Justice Coordinating Committee. The purpose of the committee, according to Chattanoogan.com, is to identify issues in the criminal justice system that are harmful to public safety and recommend changes. Rep. Watson’s appointment commences immediately and will run until Nov. 2, 2014.

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6th Circuit Clarifies Test for Ineffective Counsel Claims

The U.S. Court of Appeals for the Sixth Circuit recently clarified the requirements for a successful claim of ineffective assistance of counsel. The decision in the case of Howell v. Hodge found that a claimant must show that the deficient performance resulted in prejudice, and that, but for the counsel’s ineffectiveness, he or she would not have pled guilty and instead would have gone to trial. Writing for Chattanoogan.com, commentator Lee Davis says the test is a “demanding one that requires claimants to prove that the likelihood of a different result is substantial, not just conceivable.”

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Study: Tennessee Indigent Defense Fees Among Lowest

A study released by the National Association of Criminal Defense Lawyers found that Tennessee pays court-appointed attorneys one of the lowest rates in the country. The study suggests that states with low compensation and pay caps discourage experienced attorneys from taking court-appointed cases and create an incentive for quick plea deals. Tennessee pays court-appointed attorneys $50 an hour for in-court work and $40 for office work compared to a national average of $65 an hour. Also in Tennessee, rates are capped at $1,500 for felony cases and $1,000 for misdemeanor cases. Defense attorneys say these rates allow for about a week’s worth of work when such cases can easily take several weeks or even months. The Administrative Office of the Courts told The Tennessean that it has increased payments but is limited by budget constraints and that criminal defense expenditures now represent nearly half of the entire court system's budget.

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Court to Hear DUI Case

The Tennessee Supreme Court has agreed to hear a DUI case that could determine whether police can arrest people suspected of drunk driving even after they pass field sobriety tests. The case involves a DUI charge in Sevier County that was dismissed because the driver passed a series of field sobriety tests but was still arrested. Blood tests showed he was legally drunk, but three lower courts have said the evidence was gained unlawfully because police had no proof he was guilty of anything other than a traffic violation. News Channel 5 has the story.

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Letters Urge Leniency for Former Judge Baumgartner

In the run-up to former Knox County Criminal Court Judge Richard Baumgartner’s April 10 sentencing on five counts of misprision of a felony for lying to cover up his mistress’ involvement in a federal drug conspiracy, defense attorneys have filed dozens of letters in support of probation for their client. Among the letters, according to Knoxnews, is a handwritten note from retired U.S. Magistrate Judge Robert P. Murrian, a former colleague of U.S. District Judge Ronnie Greer, who will determine Baumgartner’s fate. Others writing in support of the defense are former Tennessee Supreme Court Justice Penny White, Knoxville Bar Association Committee Chairman William Vines III and attorneys John K. Harber and Al Harb.

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Know Your Plea Offers

In the recent Tennessee Bar Journal, Knoxville lawyer Wade V. Davies advises readers about plea offers and preventing ineffective assistance of counsel. For one thing, he says, lawyers need to check the sex offender statute every time they have a case, since the standards often change. "In 2010," for example, "the Tennessee Supreme Court noted that the General Assembly had amended the registration act at least 15 times since 2005."

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