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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Jury Convicts 3 in Death of Zaevion Dobson

A Knox County jury today convicted three men in the fatal shooting of Zaevion Dobson, the Knoxville teen who died shielding his friends from gunfire in December 2015, Knoxnews reports. Christopher Drone Bassett was found guilty of first-degree murder, while Richard Gregory Williams III and Kipling Colbert Jr. were found guilty of facilitation of first degree murder. Bassett will receive an automatic life sentence with the possibility of parole after 51 years. Williams and Colbert potentially face 15 to 25 years. 
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Men Accused of Murdering Zaevion Dobson Will Not Testify

The three men accused of the murder of 15-year-old Knoxville high school student Zaevion Dobson will not testify, Knoxnews reports. A jury could begin deliberations as soon as tomorrow. Prosecutors wrapped up their case against Christopher Drone Bassett, Richard Gregory Williams III and Kipling Colbert, who face first degree murder charges. Dobson died shielding two of his friends from gunfire in December 2015.
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Hearing Held in Rape Case of Former U of M Football Player

Former University of Memphis football player Ernest Suttles' rape case will head to a grand jury after his accuser testified in a hearing on Tuesday, The Commercial Appeal reports. The alleged attack took place on Oct. 12, after which the victim went home to Murfreesboro to be examined in a hospital. She was told there that she needed to return to the city where the assault occurred, so she went back to a Memphis hospital where she reported the crime to the police. Suttles was arrested two days later.

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Earn 7 CLE Hours at 2017 Criminal Law Forum

Sessions at this year's Criminal Law Forum will address sentencing issues, case law statutory updates, indigent representation task force recommendations, post-conviction relief, voir dire and ethical considerations. Earn seven hours of CLE credit Dec. 8 at this Tennessee Bar Center program in Nashville.

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Gorsuch Appears to Side with Liberal Justices Over Cellphone Warrant

As the U.S. Supreme Court considered whether police need a warrant supported by probable cause to obtain cellphone location data, Justice Neil M. Gorsuch yesterday appeared to have sided with liberal justices, the ABA Journal reports. Justices Samuel A. Alito Jr. and Anthony M. Kennedy appeared to lean most towards agreeing with the government that a warrant wasn’t needed in the case Carpenter v. United States, while Justice Sonia Sotomayor appeared to most favor protections on cellphone data.

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Supreme Court Affirms Conviction in Theft of House Case

In State of Tennessee v. Tabitha Gentry (AKA Abka Re Bay), the Tennessee Supreme Court ruled the state’s theft statute applies to real property. In the case, the defendant challenged whether Tennessee Code Annotated section 39-14-103 encompassed theft of a house. The Supreme Court affirmed the defendant’s convictions of Class A felony theft and aggravated burglary. Justice Cornelia A. Clark authored the opinion.

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Criminal Law Forum 2017

The Tennessee Bar Association will host the 2017 Criminal Law Forum in Nashville on Dec. 8. This one-day event is a staple for Tennessee attorneys, offering timely analysis of important issues to educate and enrich your practice.
Do not miss this opportunity to fulfill CLE requirements while networking with attorneys who share your focus and cultivating relationships with fellow practitioners. Section members receive a discounted rate for the program. Here's the key info: 
When: Dec. 8, registration begins at 8 a.m., CDT
Where: Tennessee Bar Center, 221 4th Ave N., Nashville, TN 37219
Topics include:
  • Sentencing issues and case law statutory updates 
  • The Indigent Representation Task Force recommendations and the Supreme Court's response
  • Post-conviction relief
  • Voire dire
  • Ethical considerations for criminal law attorneys
Speakers/Producers include:
  • David Veile, Schell & Oglesby, LLC, Franklin 
  • Joseph Fuson, Freeman & Fuson, Nashville 
  • William Koch Jr., Nashville School of Law, Nashville 
  • William Lamberth II, William Lamberth Attorney at Law, Portland
  • Roger Nell, District Public Defender, Clarksville
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Tennessee Supreme Court Amends Rule 12

On Sept.13, the Tennessee Supreme Court filed an order soliciting written comments concerning proposed amendments to Rule 12, section 1, and the First-Degree Murder Report which is appended to Rule 12. The deadline for submitting written comments was Oct 13, and the Court received no written comments during that period. The amendments were adopted and take effect immediately.

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7 CLE Hours in Criminal Law

Join the TBA at the Tennessee Bar Center in Nashville for this year's Criminal Law Forum. Topics this year will address sentencing issues, case law statutory updates, indigent representation task force recommendations, post-conviction relief, voir dire and ethical considerations. Earn seven hours of CLE credit at this Dec. 8 program.
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Supreme Court Clarifies Self-Defense When Engaged in Unlawful Activity

The Tennessee Supreme Court has clarified when self-defense can be claimed, when the person making the claim is engaged in unlawful activity at the time of the incident. In the case of State of Tennessee v. Antoine Perrier, the Supreme Court held that the defendant, who admitted to being a felon in possession of a handgun, was engaged in unlawful activity, and concluded that there was a sufficiency of proof to support the defendant’s conviction.
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ABA Urges 11th Circuit to Ban Bail System in Calhoun, Ga.

The American Bar Association filed a new amicus brief Monday, again contending that the bail system in Calhoun, Ga., which allows pretrial release only if the defendant pays an amount of bail money fixed to a schedule of offenses, violates the Equal Protection and Due Process clauses of the 14th Amendment. In March, the U.S. Court of Appeals for the 11th Circuit remanded the case back to the trial court, requesting the judge’s injunction provide more guidance to Calhoun on how it must comply with the minimal standards required by the U.S. Constitution. This is the second brief filed by the ABA in the matter.
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Supreme Court Upholds Death Sentences for Murder of Memphis Family

The Tennessee Supreme Court has affirmed the convictions and death sentences for Sedrick Clayton in the murders of Arithio, Patricia, and Pashea Fisher, and the conviction for attempted murder of A’Reco Fisher in Memphis. The court found the sentences were not arbitrary nor were they disproportionate to sentences imposed in similar cases. Justice Roger A. Page wrote the majority opinion, with Justice Sharon G. Lee authoring a concurring opinion.

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Online and In-Person Criminal Law CLE

The annual Criminal Law CLE is set for Dec. 8 at the Tennessee Bar Center in Nashville. It offers seven hours of CLE, with topics on post-conviction relief, voir dire and ethics. Related online courses touch on field sobriety tests and Tennessee DUI law.

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Lawmakers Delay Reauthorizing Dept. of Correction After Critical Audit

Following a scathing audit of the state’s largest privately run prison, state lawmakers have delayed reauthorizing the Tennessee Department of Correction, The Tennessean reports. “Department of Correction, you've failed in a lot of areas,” said Rep. Jeremy Faison, R-Cosby. “It's egregious to the people of Tennessee, to the taxpayers and to the people that are there in the prisons.” Departments are authorized for four years, and not reauthorizing would mean that at some point in the future, the department could be dissolved. The department’s future will be discussed during a hearing in December.
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Judge Declines to Move Zaevion Dobson Murder Trial Out of Knox County

Knox County Criminal Court Judge Steve Sword is refusing to move the trial of three young men accused of killing 15-year-old Fulton High School student Zaevion Dobson, Knoxnews reports. Sword said that despite the national spotlight on Dobson, such as an ESPN documentary and words from former President Barack Obama, none of the attention focused on the defendants and therefore would not poison the minds of potential jurors in Knox County. He did, however, summon a larger than usual jury pool of 500. Sword also will allow jurors to see a YouTube video featuring the defendants in which they lip sync to a rap song with lyrics about gang activity.
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S.C. Justice to Judges: Stop Jailing Poor Defendants Without Lawyers

The chief justice of South Carolina’s Supreme Court has sternly warned lower level judges that defendants must be advised of their right to a lawyer, and that poor defendants must be provided with a lawyer before they can be jailed. The ABA Journal reports that Chief Justice Donald Beatty also said defendants could not be jailed for missing their trial if they had not been informed of their rights. The statements have resulted in thousands of arrest warrants being suspended while summary courts figure out which cases are affected by Beatty’s instructions.
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