News

Supreme Court Rules in Favor of Whistleblower

The Supreme Court today ruled that a former air marshal who was fired after leaking plans to the media about security cutbacks can seek whistleblower protection. By a 7-2 vote, the justices said Robert MacLean did not violate federal law when he revealed that the Transportation Security Administration planned to save money by cutting back on overnight trips for undercover air marshals. MacLean leaked the information in 2003 to an MSNBC reporter after supervisors ignored his safety concerns. His disclosure triggered outrage in Congress, and the Department of Homeland Security quickly reversed the policy, calling it a mistake, but TSA fired McLean three years later after it discovered he was the leaker. WRCB has more from the Associated Press.

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Court Appears Split in Judicial Campaign Case

Justices of the U.S. Supreme Court appeared closely split today when they heard oral arguments over whether to uphold a Florida ethics rule that prohibits judicial candidates from personally soliciting campaign money, Gavel Grab reports. During oral arguments in the case brought by former judicial candidate Lanell Williams-Yulee against the Florida Bar, “The court’s conservative justices appeared to favor Williams-Yulee’s free speech argument. The court’s liberals voiced support for the state’s right to ensure the impartiality of the judiciary” through the ethics rule. Justice Anthony Kennedy was seen as the likely swing vote in a final decision.

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Court Rules Successor Judge Can Act as 13th Juror

The Tennessee Supreme Court ruled that a successor judge who takes over a case from the judge that presided over the trial, may act as the “13th juror” in a case. In its ruling, the Court created a rebuttable presumption, which means that it is assumed the judge can act as a 13th juror unless evidence is presented that contradicts that assumption. A successor judge may act as the 13th juror in all cases except in the rare occasion in which the demeanor of a witness was the critical issue in weighing the evidence that led to the verdict. The Chattanoogan has more.

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Court Clarifies Rule for Ending Mortgage

A unanimous U.S. Supreme Court ruled Tuesday that home buyers do not need to file a lawsuit, but may simply write a letter if they want to back out of a mortgage because they believe their lender violated the federal Truth in Lending Act. The decision came in a case of a Minnesota couple that refinanced their home in 2007 but later claimed the company failed to provide disclosures required under federal law. Resolving a split among lower courts, the Supreme Court said written notice was enough. In another unanimous opinion, the court upheld a mandatory 10-year minimum prison term for a suspect who forces another person to accompany him during a bank robbery or in trying to elude police. WRCB-TV has the Associated Press story.

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High Court May Address Same-Sex Marriages Monday

In its first official business of the new year, the U.S. Supreme Court met today but, according to SCOTUSblog, did not not grant review in any new cases. This includes the issue of whether same-sex couples have a constitutional right to marry no matter which state they live in or whether states can individually decide if marriage should only be allowed between a man and a woman. The court’s next chance to issue an order on those cases will be at 9:30 a.m. Monday, with the release of a lengthy list of actions on new cases. If no action on the five marriage cases comes then, the cases are likely to be rescheduled for the conference next Friday, the blog reports.

In related news, a federal judge in Georgia has declined to dismiss a lawsuit challenging the state's ban on same-sex marriage, NewsChannel 9 reports. And in New Orleans today, two of three federal judges who will decide whether to overturn laws against same-sex marriage in Texas, Mississippi and Louisiana appeared critical of Texas's ban at a hearing before the 5th U.S. Circuit Court of Appeals, questioning the state's argument that marriage primarily is an institution meant to encourage procreation, the Houston Chronicle reports.

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Investiture for Holloway, Easter Set for Monday

An investiture ceremony for Judges Robert L. Holloway Jr. and Timothy L. Easter – both of whom recently joined the Court of Criminal Appeals – will take place Monday at 10 a.m. in the Old Supreme Court Chambers of the state capitol in Nashville. Gov. Bill Haslam will administer the oath of office. Judge Holloway was named to the appeals court after serving on the 22nd Judicial District Circuit Court. Judge Easter previously served on the 21st Judicial District Circuit Court. Download the invitation.

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Supreme Court Moving to Electronic Filing

The Supreme Court is moving toward a full and free-access system for all documents filed in cases before the Justices — a system expected to be working “as soon as 2016,” Chief Justice John G. Roberts, Jr., revealed in his annual year-end report on the federal judiciary. The Court already receives some of its filings electronically, but the present arrangements do not include all filings. The Chief Justice’s annual report was dominated by a theme of technological advances and their impact on the operation of the courts, SCOTUSBlog reports.

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Tennessee Lawmakers Voice Opposition to ACA Tax Incentives

Nineteen current and former Tennessee legislators have filed a brief with the U.S. Supreme Court in support of petitioners who oppose tax incentives to health insurance plans bought on the federal exchange. This March, the Court is set to hear the case of King v. Burwell in which the central question is whether health insurance on federal or state exchanges are eligible for tax incentives or whether tax incentives are available only on state exchanges. The Tennessean has more.

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5 Most Important Supreme Court Stories of 2014

Law professor Erwin Chemerinsky presents his five most important stories about the U.S. Supreme Court in 2014 in terms of their impact on the law and society for the ABA Journal. The list includes the court’s unanimity, rulings on intellectual property, the increasing rights of corporations, influence of Justice Anthony Kennedy and the lack of vacancies on the court — specifically 81-year-old Justice Ruth Bader Ginsburg’s refusal to retire so that Democratic President Barack Obama could appoint her successor. The court is predicted to consider marriage equality, the Affordable Care Act, abortion and affirmative action in 2015.

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Court Grants Cert in 3 New Cases

The Tennessee Supreme Court recently granted review to three cases that will look at issues involving remittitur of damages, access to counsel in criminal cases and real property. The latest issue of the Raybin-Perky Hotlist reviews the cases and offers a prediction on how each one may be decided.

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Same-Sex Marriage Cases Added to Jan. 9 Conference

The U.S. Supreme Court’s electronic docket confirms that four same-sex marriage cases from the Sixth Circuit Court of Appeals – including one from Tennessee – have been distributed to the justices for consideration at their Jan. 9 conference, SCOTUSblog reports. While the court will not necessarily decide whether to hear the cases at that time, it is widely expected it ultimately will grant review of one or more of them, the blog indicates. Another case from Louisiana, which seeks to bypass consideration by the Fifth Circuit Court of Appeals, also is ready for the justices’ consideration.

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Court Unlikely to Release Executioners’ Names, Lawyers Say

Two Tennessee lawyers with experience in criminal law predict that the state Supreme Court will not release the names of those who serve on execution teams – information that is being sought by 11 death row inmates challenging the state’s death penalty. Johnson City attorney Mark Fulks predicts the court will rule that the names of the individuals are not relevant and should not be disclosed. However, if the court were to release the names, he says, it also would have to decide whether a 2013 law exempting information from public disclosure also exempts it from release in court proceedings. Nashville attorney David Raybin also predicts the court will not order the disclosure of executioners’ names. “I think the potential for harm is significant and could potentially go on for years. It’s not only a privacy interest that I think is a concern here. I think it is a safety issue.” Read more in the Tennessean.

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Court Vacates Extraordinary Appeal

The Tennessee Supreme Court today ruled that a Hamilton County trial court did not depart from accepted and usual judicial course during a health care liability lawsuit, so an immediate appellate court review was not called for. The Court of Appeals had granted an application for an extraordinary appeal in a case involving a request to waive the Tennessee law that requires expert medical testimony to come from one who practices in Tennessee or a contiguous state. With this ruling, the court remanded the case back to the trial court.

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Senate to Consider Additional Judicial Nominees

Lawmakers negotiated Tuesday over a final batch of President Barack Obama’s judicial nominees with Democrats hoping to win Senate confirmation for up to a dozen of them, the Associated Press reports. The Senate has approved 76 federal court of appeals and district court judges so far this year. Confirmation of 12 more would bring the total to 88 – the highest annual figure in 20 years. Senate leaders are hoping to end this year’s session as soon as tonight. WRCB-TV has the AP story.

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Justices Scalia, Kagan Visit Ole Miss

Although they are often at odds in written opinions, U.S. Supreme Court Justices Antonin Scalia and Elena Kagan were full of warm praise for each other at an event yesterday at the University of Mississippi School of Law. “We have a really collegial court,” Kagan told the students. And both agreed that common ground often overrides ideological differences on the high court, the Associated Press reports. Kagan and Scalia, for example, have built a relationship in part around hunting. The pair talked about their favorite and least favorite parts of the job but declined to answer a question about what they would consider the court’s biggest mistake. The Commercial Appeal has the AP story.

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Court to Review 5 Cases

The Tennessee Supreme Court has granted review to five cases involving compensation of franchise and excise taxes, tolling agreements, workers’ compensation discrimination, voidability of default judgments and pre-suit notice requirements in healthcare liability actions The Raybin Perky Hot List has a summary and forecast of each case.

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Court Vacates Execution Set for February

Today is the fifth anniversary of the execution of Cecil Johnson, the last inmate to be put to death in Tennessee. And it looks like it might be a while before another execution takes place. Last week, the state Supreme Court vacated the execution date for Stephen Michael West, who was set to die Feb. 10, 2015, the Tennessean reports. The move comes after West and nine other death-row inmates filed suit to challenge the state’s methods of execution. The court indicated it would set a new date after final disposition of the inmates’ suit. In related news, death row inmate Gregory Thompson, 52, died of natural causes last week, the Times News reports. Thompson, who was convicted in 1985, was the subject of a CBS 60 Minutes film about whether a state can medicate a mentally ill person enough to render them sane enough to be executed.

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Court OKs Use of Statement in Child Rape Case

The Tennessee Supreme Court has ruled that the state can use a child victim’s recorded video statement as evidence during prosecution of a defendant indicted on seven counts of rape. Reversing the trial court, the Supreme Court said that as long as the recorded video statement is relevant, meets certain statutory requirements and otherwise is in line with the Tennessee Rules of Evidence, its use would not violate constitutional principles. Use of the video had been challenged by the defendant. Read more from the AOC or download the opinion.

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Bill Young Returning to AG’s Office

Tennessee Attorney General Herbert Slatery announced today that Bill Young will rejoin the office as associate chief deputy. Young, a former solicitor general, will supervise special projects, oversee legislative matters, coordinate multistate initiatives and assist with daily office operations. Young worked in the Attorney General’s office from 1987 to 1995. He left in 1995 to serve as deputy commissioner of the Tennessee Department of Commerce and Insurance, a position he held for four years. Later he was named senior vice president, chief compliance officer and general counsel for Blue Cross Blue Shield of Tennessee. He most recently was working as director of the Administrative Office of the Courts.

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New Sentencing Hearing Ordered Due to Ineffective Counsel

The Tennessee Supreme Court today upheld death row inmate Jerry Ray Davidson’s conviction for first-degree murder, but ordered a new sentencing hearing after finding that Davidson's lawyers did not properly represent him during the sentencing phase of the trial. Davidson was convicted of the 1995 murder of Virginia Jackson in Dickson. At the time of his trial, defense attorneys possessed numerous records documenting his troubled background and history of mental illness. During the sentencing hearing, however, they failed to provide the jury with any of this evidence. In ordering a new sentencing hearing, the court ruled that defense attorneys in death penalty cases have a constitutional duty to collect and present to the jury any “mitigation evidence” that could help the jury assess the defendant’s moral culpability. Download the majority opinion and a separate opinion from Justice Gary Wade concurring in part and dissenting in part.

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Supreme Court Denies New Trial for Death Row Inmate

The Tennessee Supreme Court has denied a new murder trial to Clarence Nesbit, who has been on death row since 1995. At trial, the jury found Nesbit guilty of first-degree murder and sentenced him to death. Nesbit’s conviction and sentence both were upheld on appeal. In 1999, Nesbit filed a petition for post-conviction relief, asserting that his trial counsel did not provide effective assistance. In 2009, the post-conviction court ruled that Nesbit was not entitled to post-conviction relief as to his murder conviction, but awarded him a new sentencing hearing based on his attorney’s performance. The Court of Criminal Appeals agreed. On appeal from the Court of Criminal Appeals, the Supreme Court held that Nesbit did not prove that he was prejudiced in the guilt phase of his trial by any deficiency on the part of his attorney. The Administrative Office of the Courts has more.

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New Ad Attacks U.S. Supreme Court

Viewers of Fox and MSNBC in the Washington, D.C., area will soon see a new ad that calls for greater Supreme Court transparency, the ABA Journal reports from various news sources. The six-figure campaign unveiled today by a group called Fix the Court criticizes the U.S. Supreme Court as the “most powerful and least accountable branch of government. The ad campaign has five goals: for the court to report reasons for recusals, to post detailed financial disclosures online, to adhere to the code of ethics governing federal judges, to disclose public appearances and generally allow media coverage, and to broadcast live oral arguments and opinion announcements.

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Supreme Court Allows Kansas Same-Sex Marriage to Proceed

The U.S. Supreme Court has lifted a temporary stay and is allowing same-sex marriages to proceed in Kansas, the ABA Journal reports. The order vacates a stay issued Monday evening by Justice Sonia Sotomayor, who handles emergency appeals from the Denver-based 10th U.S. Circuit Court of Appeals. The Kansas Supreme Court had stayed same-sex marriage in the state pending proceedings before the court, but a federal judge later ordered the state to begin issuing marriage licenses, a decision that was “a de facto circumvention” of the state litigation, the state argued in its emergency stay application. Justices Antonin Scalia and Clarence Thomas would have granted the stay application, according to the order.

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STATE OF TENNESSEE v. HENRY FLOYD SANDERS

This appeal concerns the admissibility of incriminating statements made by a defendant to the mother of a sexually abused child while the mother was secretly cooperating with the police in their investigation of the abuse. After a grand jury indicted him on six counts of aggravated sexual battery and four counts of rape of a child, the defendant moved to suppress his recorded statements. The trial court denied the motion to suppress, and a jury convicted the defendant of five counts of aggravated sexual battery and four counts of rape of a child. The trial court imposed an effective forty-year sentence. The Court of Criminal Appeals affirmed the convictions and sentence. State v. Sanders, No. M2011-00962-CCA-R3-CD, 2012 WL 4841545 (Tenn. Crim. App. Oct. 9, 2012). We granted the defendant’s Tenn. R. App. P. 11 application to address the legal standard courts should use to determine the admissibility of incriminating statements obtained by the parent of a victim of sexual abuse who is secretly cooperating with law enforcement officials investigating the child abuse charges. We find no violation of the defendant’s constitutional right against compelled selfincrimination because the defendant merely misplaced his trust in a confidante to whom he voluntarily confessed. Therefore, we find that the recording of these statements was admissible.

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Attorney 1: 

Dawn Deaner, District Public Defender; Jeffrey A. DeVasher (on appeal); Melissa Harrison (at trial and on appeal); and Jessamine Grice (at trial), Assistant Public Defenders, for the appellant, Henry Floyd Sanders.

Attorney 2: 

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; John H. Bledsoe, Senior Counsel; Victor S. Johnson, III, District Attorney General; Sharon Reddick and Kristen Menke, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: 
KOCH

STATE OF TENNESSEE v. FRED CHAD CLARK, II

This case involves the prosecution of a father in the Criminal Court for Davidson County for the sexual abuse of his children. After a jury found him guilty of seven counts of rape of a child and two counts of aggravated sexual battery, the trial court imposed an effective thirtyfour- year sentence. On appeal, the defendant took issue with (1) the admissibility of recordings of his confession to his wife, (2) the adequacy of the corroboration of his confession, (3) the admissibility of evidence of his predilection for adult pornography, and (4) the propriety of a jury instruction that the mental state of “recklessness” could support a conviction for both rape of a child and aggravated sexual battery. After upholding the admission of the defendant’s confession to his wife and the jury instructions, the Court of Criminal Appeals decided that the admission of the evidence of the defendant’s predilection for adult pornography, while erroneous, was harmless. The Court of Criminal Appeals also determined that the record contained sufficient evidence to uphold three counts of rape of a child and the two counts of aggravated sexual battery. State v. Clark, No. M2010-00570- CCA-R3-CD, 2012 WL 3861242 (Tenn. Crim. App. Sept. 6, 2012). We granted the defendant’s Tenn. R. App. P. 11 application for permission to appeal and now affirm the judgment of the Court of Criminal Appeals.

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Attorney 1: 

Peter J. Strianse, Nashville, Tennessee, for the appellant, Fred Chad Clark, II.

Attorney 2: 

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Brent C. Cherry, Assistant Attorney General; John H. Bledsoe, Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney General; and Sharon Reddick, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: 
KOCH