News

Journal Columns This Month: ADR, Crime, Mohammad Ali

Columns in the July Tennessee Bar Journal cover subjects from alternative dispute resolution all the way to boxing. Russell Fowler delves into the history of ADR in his column, "History's Verdict" and Wade Davies explains defining and limiting the community caretaking exception in his column, "Crime & Punishment." In "But Seriously, Folks!" Bill Haltom looks at the long, unlikely and complicated relationship between Mohammad Ali and the lawyer, Howard Cosell. Marlene Eskind Moses and Benjamin Manuel Russ update their "Family Matters" column that was published in May with new information after the General Assembly took action that significantly changed the advice rendered in that piece. Read "Legislative Actions Alter QDRO Advice."

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ABA: Safety of Society Relies on Rule of Law

Following police-involved shootings in Baton Rouge, Louisiana., and St. Paul, Minnesota., as well as the killing of five police officers in Dallas, ABA President Paulette Brown issued a statement, saying that "Our civil society and the safety of all in it – citizens and law enforcement – rely on the rule of law. It is imperative that the law be fairly applied and enforced. All citizens must perceive our justice system as fair. It also is essential that laws and authority are respected and followed." Brown writes that the ABA is "urgently exploring opportunities to develop creative solutions to this problem that affects us all… The ABA calls on all lawyers to work quickly and collaboratively toward viable and just answers to these issues.” Related, police officers in Nashville and Memphis were disciplined this week for what were deemed inappropriate social media posts about the shootings, the Tennessean reports.
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Retirement Reception for Thurman July 27

A retirement ceremony for Tom Thurman, deputy district attorney general for the 20th District of Tennessee, will be July 27 at 4 p.m. at the Washington Square Building, located at 222 2nd Ave N., in Nashville. NewsChannel 5 has a profile on Thurman, who most recently served as prosecutor in the Brandon Vandenburg trial, and whose 39-year career also included the prosecution of accused murderer Perry March.

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Suspect to Claim Self-Defense in Greene Shooting

The man accused of shooting former Metro Nashville Councilman and lawyer Loniel Greene will claim self-defense in the case. Brandon Hunt-Clark, 20, was charged in the Nov. 4 shooting of Greene outside a Nashville gas station. After being named as a suspect in the case, Hunt-Clark was arrested in Mississippi on an unrelated robbery charge, and was finally brought back to Nashville on Tuesday. Greene resigned from the council after the shooting after he was accused of lying in court. The Tennessean has more.
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Seeking Shorter Sentences, Public Defenders Inundate Courts

Tennessee courts have seen hundreds of lawsuits recently from federal public defenders looking to shorten the sentences of current inmates, according to the Tennessean. A U.S. Supreme Court ruling from June of last year that limited which prior convictions qualified a person as a “career offender” and its one-year deadline is the cause of the recent flurry of lawsuits. Henry Martin, the federal public defender for the Middle District of Tennessee, said lawyers in his office filed motions to set aside the sentences in more than 140 cases. In East Tennessee, more than 220 similar motions were filed, according to Federal Community Defender Beth Ford. In West Tennessee, public records show more than 140 filings since May 1. David Rivera, U.S. attorney for the Middle District of Tennessee, said that prosecutors in his office would go through each appeal on a case by case basis.
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Hamilton County Weighs ‘Safety Zone’ Measures Against Gangs

Hamilton County is considering using injunctions from judges to create “safety zones” that would prevent gang members from gathering, the Chattanooga Times Free Press reports. District Attorney General Neal Pinkston said Wednesday that the measures would ban certain activities in neighborhoods around Chattanooga. The DA’s office has not yet decided exactly which activities would be prohibited or which geographic areas would be included. Thomas Castelli, legal director for the ACLU of Tennessee, said he believes that the orders could constitute a civil rights violation. Castelli said the courts should be “careful to use language that can’t be interpreted so broadly as to affect a current gang member’s ability to live an ordinary life.” Other Tennessee cities, including Memphis and Nashville, have used gang injunctions, which were made possible under a 2009 state law and strengthened in 2014.
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Justice Dept. Begins Investigation into Sterling Shooting

The U.S. Department of Justice has opened a civil rights investigation into the fatal shooting of Alton Sterling by Baton Rouge, Louisiana., police, reports The New York Times. The incident was captured on video and shared widely on social media, prompting protests over the police killing of an African-American man. Louisiana Gov. John Bel Edwards promised a thorough investigation. “I have very serious concerns,” Edwards said. “The video is disturbing, to say the least.”
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Court Upholds Death Sentence for 2002 Murders

The Tennessee Supreme Court has affirmed the conviction and death sentence for Howard Hawk Willis for killing two East Tennessee teenagers and dismembering one of them. Willis was convicted in 2010 by a Washington County jury on two counts of premeditated murder and one count of felony murder in the perpetration of a kidnapping. The court held that there was no violation of right to counsel despite arguments that the trial court should have excluded certain incriminating statements Willis made to his ex-wife because she was acting as an agent of the government at the time the statements were made. Justice Holly Kirby authored the court's opinion. Chief Justice Sharon Lee filed a concurring opinion.

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Precedent Set for Dogs in Courtrooms

The Tennessee Court of Criminal Appeals has rejected a claim that the presence of a comfort dog was "overly prejudicial" to a defendant in a rape trial. The case comes from the appeal of a man convicted of raping a 10-year-old in DeKalb County. Prosecutors wrote detailed guidelines for the dog’s courtroom presence during the trial, including instructions that the dog be invisible to everyone but the victim. The appeals court upheld the local court’s decision, citing case evidence from other states that allow service dogs in courtrooms. “This was the first case in Tennessee for a dog to be allowed in the courtroom to provide comfort to the victim,” said Jennifer Wilkerson, executive director of the Child Advocacy Center. With this win under their belts, prosecutors and child advocacy center directors across the state are planning to introduce service dogs into their own courtrooms, the Herald Citizen reports.

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DOJ Seeking Prosecutors to Work Without Pay

The Associated Press reports that U.S. attorneys’ offices around the country have been offering unpaid jobs for entry level prosecutors with promises of training and invaluable work experience. But critics say the unpaid jobs threaten racial diversity in federal prosecutors’ offices and set a bad precedent for labor standards. The association representing associate U.S. attorneys goes a step further, saying the unpaid positions violate the law. MSNBC has the story.

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FBI: No Charges Recommended in Clinton Email Probe

FBI Director James Comey announced today that the FBI will be recommending that no charges be brought against Hillary Clinton for her use of a private email server while secretary of state. Comey stated that the bureau “did not find clear evidence” that anyone being investigated intended to violate laws, but said there was evidence that the parties "were extremely careless in their handling of very sensitive, highly classified information.” And despite “evidence of potential violations of the statutes regarding the handling of classified information,” Comey concluded that no reasonable prosecutor would bring such a case. The findings now go to the U.S. Justice Department. The ABA Journal has more on the story while ABC News has the full transcript of Comey's remarks.

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Vandenburg Sentencing Set for Sept. 30

A Sept. 30 sentencing date has been set for Brandon Vandenburg, a former Vanderbilt University football player convicted of participating in the rape of an unconscious woman in 2013, the Tennessean reports. Vandenburg, 23, was found guilty of eight felony sex-related assault charges on June 20, exposing him to a prison sentence of 15 to 25 years. The sentencing hearing is set for 9 a.m. central time.

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5th Circuit: Machine Guns Not Protected by Constitution

The New Orleans-based 5th U.S. Circuit Court of Appeals has upheld a federal law that generally bars the possession of machine guns, the ABA Journal reports. The court based its decision on a reading of District of Columbia v. Heller, the U.S. Supreme Court decision that found the Second Amendment protects an individual right to own a gun. But the case also distinguished between guns used in the military and those possessed at home for self-defense, the appeals court said. The plaintiff in the case wanted to build an M-16 machine gun from components of the AR-15.

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UT Asks for Extension in Title IX Lawsuit

Lawyers for the University of Tennessee asked a judge last week for more time to file a response to the federal Title IX lawsuit against the university, Knoxnews reports. The extension request for a new deadline of July 7 follows a previous extension from the original deadline of June 16, which was set to expire Thursday. The lawsuit, filed in U.S. District Court in Nashville in February, alleges UT has a “hostile sexual environment” and violated Title IX in the handling of sexual assault cases, especially accusations against student athletes.

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Prosecutor Wants Foul-Mouthed Parrot to Give Evidence

A Michigan county prosecutor is arguing that the speech from a parrot, which may have witnessed a brutal killing, should be considered admissible evidence in a court of law. The prosecutor admits the request is novel but says authorities are studying the parrot’s words to determine whether the speech can be considered reliable. Since the shooting, the bird has been shouting at the top of his lungs in a tone mimicking his owner’s voice “Don’t f—ing shoot!” The Washington Post has the story.

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Fetal Assault Law Expires

A controversial law that charged new mothers with assault if they took opiates during pregnancy and their babies were born addicted has expired. Critics of the measure, including the ACLU and Addiction Campuses, argued that the law made women afraid to reach out for help. News Channel 5 has more.

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Nashville DA Wants to Put Former Opponent on Under Oath

Nashville District Attorney General Glenn Funk wants the man he defeated in the 2014 election, Rob McGuire, to answer under oath if he is the source of information behind media reports involving a deal Funk made with developer David Chase. Funk claims the stories are libelous and defaming. He is seeking testimony from McGuire, another lawyer, Brian Manookian, and both of their law firms about what information they had. Separately, Funk has sued WTVF-NewsChannel 5 chief investigative reporter Phil Williams and the station’s parent company, Scripps Media Inc., for news stories about the deal, the Tennessean reports.

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Libel-Proof Plaintiff Doctrine Featured in July TBJ

What if a person has no good reputation to protect – does defamation law still apply to her? David L. Hudson Jr. looks at the Libel-Proof Plaintiff Doctrine in the July Tennessee Bar Journal while Charles L. Baum examines the details of calculating loss from wrongful incarceration. TBA’s new president, Jason Long, writes about the TBA Special Committee on Evolving Legal Markets (ELM) and its explorations into the changing legal landscape and new ways legal services are being delivered. Read these and other stories in the new issue of the journal.

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Public Defenders Conference Elects New Director

Patrick Frogge has been elected executive director of the Tennessee District Public Defenders Conference and took office today following the retirement of former director Jeff Henry. Frogge earned his law degree from Fordham University School of Law. After graduation, he clerked for Tennessee Court of Criminal Appeals Judge Jerry Smith and then joined the Nashville Public Defender's Office. In 2005, he co-founded Bell, Tennent & Frogge, a boutique firm focused on criminal defense. Read more in this release from the conference.

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Special Prosecutor to Lead Bradley Sheriff Probe

Jimmy Dunn, a veteran district attorney in East Tennessee, has been named special prosecutor for the investigation of Bradley County Sheriff Eric Watson, the Times Free Press reports. His job will be to review evidence gathered by the Tennessee Bureau of Investigation and the FBI related to allegations that Watson got a woman, with whom he reportedly had a personal relationship, released from jail twice. He also will be asked to review the sheriff’s credit card and travel records and whether Watson’s wife got favorable treatment as a bail bondsman.

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Judge: Community Action Key for Juvenile Justice Reform

As the Shelby County Juvenile Court is working to stay in compliance with federal directives, Judge Dan Michael says community involvement is critical for the next steps on juvenile reform and diversion. Through the Juvenile Detention Alternative Initiative (JDAI), Michael is encouraging community members to learn more and be active advocates, News 5 reports. “I need your involvement,” he said. “If we don’t get involved as a community, we won’t solve this problem as a community.”

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State Willing to Move Prisoners to Other Facilities

State officials confirm that 99 inmates currently held in the Blount County Adult Detention Center can be moved to other facilities, the Daily Times reports. The announcement comes after a recent state attorney general’s opinion found that the state cannot require local governments to hold prisoners who have been sentenced to more than a year unless they contract to do so. However, the law also provides an exception if the governor designates an overcrowding emergency. According to the Tennessee Department of Corrections, the state has been under an overcrowding emergency declaration for more than 30 years. 

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Implicit Bias Training Mandated for Federal Law Enforcement

The U.S. Department of Justice will require its prosecutors and all law enforcement agents to receive training designed to prevent implicit bias from affecting their decisions. Implicit bias is defined as “unconscious or subtle associations that individuals make between groups of people and stereotypes about those groups.” The decision will impact some 23,000 federal agents (including those from the FBI, DEA and ATF) as well as 5,800 federal prosecutors. The ABA Journal reported the news and noted that the ABA has developed implicit bias training materials for state and local judges, prosecutors and public defenders.

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Veterans Court Uses PT to Address PTSD

“PT for PTSD” was the motto of the day at All Rise for Exercise, an event created by the Montgomery County Veterans Treatment Court to engage veterans in physical activity. The event featured presentations on the importance of exercise and healthy eating as well as a group warm up session and individual circuit training. The court, led by Judge Kenneth R. Goble Jr., is designed to address the needs of active duty soldiers and veterans involved in the criminal justice system. The Clarksville Leaf Herald has the story.

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Black Caucus to Hold Criminal Justice Forum

The Tennessee legislature’s Black Caucus will hold a public forum in Memphis on July 10 to discuss criminal justice reform issues. The event will run from 3 to 6 p.m. at First Baptist Church-Broad. According to the Commercial Appeal, the caucus won legislative approval this year for several bills aimed at reforming criminal justice laws, including one making it easier to have a criminal record expunged in cases of mistaken identity and another preventing the state from asking a job applicant about a criminal history early in the interview process. 

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