News

Appeals Court Ruling Calls Tennessee DUI Conviction 'Fee System' Unconstitutional

Tennessee Court of Criminal Appeals has ruled that a state law giving the Tennessee Bureau of Investigation a $250 fee in DUI convictions is unconstitutional. The ruling is a result of a Hamilton County DUI case of a woman who argued her blood test should be suppressed because the fee system violated her right to a fair trial and gave the TBI a financial motivation to get convictions. The case was consolidated with more than 20 others of defendants who gave blood or breath samples to authorities.

The appeals court said in the 28-page ruling, "Based on the record before us, the TBI, and specifically, the forensic science division is dependent on these BADT (blood alcohol or drug concentration test) fees. Given the upward trend in BADT collections for each successive year, we believe that the TBI will become increasingly reliant on these fees in the future, which only serves to heighten the potential for bias among TBI forensic scientists. The fee system in TCA § 55-10-413(f) also closely resembles cases in which expert witnesses or attorneys have been disqualified for conflicts of interest."

The Tennessee Attorney General's Office is reviewing the decision, which could be appealed, according to the Tennessean. The income from the fee has been increasing and now is above $3 million per year, the paper reports.

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New TBJ: Adverse Legal Authority, #MeToo, a Lewie Donelson Tribute and More

The February Tennessee Bar Journal has a lot packed into it, including an article by Nashville lawyer David Hudson Jr. about the duty to disclose adverse legal authority. Chattanooga lawyer Russell Fowler details the life of Tennessee lawyer and American President James K. Polk and Knoxville lawyers Edward Phillips and Brandon Morrow take an employment law look at the Faragher-Ellerth framework in the #MeToo Era. Learn from Knoxville lawyer Monica Franklin what it takes to be an elder law attorney, read a book review by Jackson attorney Mary Jo Middlebrooks of The Fight to Vote, as well as a touching tribute to Lewie Donelson, by Memphis lawyer Bill Haltom.

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Access to Justice Commission Seeking Feedback

The Tennessee Supreme Court’s Access to Justice Commission is seeking input from the legal community to help in planning efforts as it develops a new strategic plan in March. A brief survey is available for all who wish to share thoughts and feedback. The survey will remain open through Feb. 7. Please contact Anne-Louise Wirthlin at the Administrative Office of the Courts with questions or for more information. 

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Extraordinary Appeal Granted in Brentwood Academy Assault Lawsuit

Last week, the Tennessee Court of Appeals granted an application for extraordinary appeal in the Brentwood Academy assault lawsuit, according to The Tennessean. This decision reignites the controversial dispute previously dismissed by Williamson County Circuit Court Judge Deanna Johnson. The suit, filed in August 2017, alleges John Doe was repeatedly sexually assaulted in a locker room by older students during the 2014-15 school year. It also alleges that school officials failed to appropriately respond to and prevent the attacks. 
 
The case took a surprising turn last month when it was dismissed by Johnson amidst an argument over the deposition of Bureon Ledbetter, an attorney for the John Doe and family. Ledbetter argued the information he was asked to reveal through the deposition would violate attorney-client privilege. Johnson said Ledbetter could file an objection but must answer. If he did not, she threatened to put him in jail for contempt, according to court documents. At that point, the Does' second attorney, Justin Gilbert, tried to withdraw the case without prejudice, with the intent to refile. However, the same day Johnson granted an order requested by Brentwood Academy attorneys to dismiss the case with prejudice. Despite Johnson's order dismissing the case, the Williamson County court docket states the case is technically still open as Johnson still needs to file a findings of fact offering an explanation as to why the case was dismissed. 
 
Both the school and the accused students have denied all wrongdoing.
 
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U.S. Supreme Court Rules District Courts Should Decide WOTUS Challenges

The U.S. Supreme Court ruled unanimously on Monday that district courts, not the appellate system, should decide legal challenges to what constitutes “Waters of the United States” under the Clean Water Act, NaturalGasIntel.com reports. Today, Tennessee Attorney General Herbert Slatery applauded the decision, which reversed a 6th Circuit Court of Appeals ruling. In a statement, Slatery hailed the decision as a victory for state’s rights.
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Don't Forget: Winter CLE Blast Tomorrow!

Need CLE hours fast? We can help! The annual Winter CLE Blast is less than a day away. With this program, you can complete up to 11 hours of Dual CLE credit on your own time. Our registration desk will be open from 7 a.m. to 6:45 p.m. on Feb. 21, providing you the flexibility to create your own schedule and take as many or as few hours as you need. Payment will be determined at checkout depending on the number of hours you attend. 

Highlights

  • Flexible to your schedule
  • Up to 11 Hours of CLE
  • Ethics Credits
  • Compliance CLE
  • Live Credit Hours

When: Feb. 21, registration begins at 7 a.m., CST

Where: Tennessee Bar Center, 221 4th Ave N., Nashville, TN 37219

 

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Michigan Judge Tells Convicted Killer 'I Hope You Die in Prison'

A Michigan judge became incensed during a sentencing hearing and told the defendant "I hope you die in prison." Judge John McBain was ruling in the case of 31-year-old Camia Gamet, when the defendant appeared to mock the victim's grieving family by rolling her eyes, causing the judge to lose his temper.
 
Gamet was convicted in March of fatally stabbing her boyfriend, Marcel Hill. According to WNEM in Lansing, McBain called it one of the worst cases he has ever seen. He told Gamet that she "gutted [Hill] like a fish.' 'If this was a death penalty state, you'd be getting the chair," said the judge.
 
McBain also threatened to tape Gamet's mouth shut, saying, "You're going to shut your mouth or I'm going to have some duct tape put on it." Gamet was sentenced to life in prison without the possibility of parole.
 
This is not the first time the acrimonious adjudicator has made news for his candid outbursts. McBain once tackled and subdued a man who resisted being taken into custody and has been repeatedly accused of partiality and hostility in his courtroom.
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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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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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Legal Practice Tip: Amicus Briefs

Rule 31 of the Tennessee Rules of Appellate Procedure relates to the subject of amicus curiae briefs. Amicus briefs may only be filed with leave of court or at the request of the appellate court. One practice tip is that it is generally advisable to file the actual brief conditionally with the motion for leave. In other words, a motion for leave may be filed and Exhibit A to the motion would be the brief. This allows the appellate court to actually see the brief before entering an order for leave to file. Once the order granting leave to file is entered by the appellate court, the brief should then be formally filed as a stand-alone pleading.
 
As the rule says, amicus briefs should only be filed when the amicus curiae actually has something useful to say from a perspective which is different from that of the parties. One common example of an entity that would file an amicus brief is a bar association. State and national bar associations often file amicus curiae briefs on issues that affect legal procedures or the profession. Another example would be a brief filed by an industry association. Industry associations often file briefs in order to argue the effects of the decision on the industry as a whole, not just the individual party.
 
As with the briefing, amicus curiae may only participate in oral argument by leave of court or at the request of the appellate court. The question is often asked how the appellate court will allocate oral argument time when an amicus curiae is going to argue. Generally speaking, any argument made by counsel for an amicus curiae will be taken off the time of the party whose position the amicus curiae is supporting. So, for example, if counsel for an industry association is granted leave to participate in oral argument, their time will be taken off the time of the party whose position the industry association supports. Of course, time allocation generally involves an agreement among counsel as to how the time will be allocated on that side of the case. If counsel for the parties is not willing to yield any of its time to the amicus curiae and the amicus curiae is keen on participating in oral argument, it is possible for the amicus curiae to file a motion to ask the court to allow it to participate even though counsel for the party has not yielded any of their time. It is unusual for the lawyers involved not to reach an agreement but the appellate court, of course, retains the discretion to organize oral argument as it sees fit.
 
As the advisory commission comment points out, the Tennessee rule is slightly different from the federal rule of appellate procedure in that the Tennessee rule does not permit the filing of an amicus brief by consent of all of the parties. Also as the comment notes, most amicus briefs are actually a type of adversary intervention rather than truly objective assistance to the court. Accordingly, subdivision (a) of the Tennessee Rule requires an amicus to identify its interest and to state how the amicus brief will assist the appellate court.
 
Under Rule 32 of the Tennessee Rules of Appellate Procedure, the attorney general of the State of Tennessee is entitled to file a brief whenever the validity of a statute or administrative rule is at issue and the state is not a party. Rule 32 also allows the attorney general to participate in an oral argument even if that attorney general decides not to file a brief. Subdivision (d) of Rule 32 strictly prohibits the appellate court of disposing of an appeal until notice has been given to the attorney general and the attorney general has been given an opportunity to respond.
 
George "Buck" Lewis is a shareholder at Baker Donelson, former TBA president and chairs the Appellate Practice Law Section. 
 
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Judiciary Chair Asks White House to Reconsider Judicial Nominations

Senate Judiciary Committee Chairman Chuck Grassley is asking the White House to reconsider the nominations of controversial judicial nominees Brett Talley and Jeff Mateer, the ABA Journal reports. Senate Judiciary Committee spokesman Taylor Foy said that Grassley was concerned about statements made by Talley and Mateer, who are nominated to judgeships in the Middle District of Alabama and the Eastern District of Texas, respectively.

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Senate Judiciary Advances 10 Nominees, Including Grasz

The U.S. Senate Judiciary Committee has advanced 10 judicial nominees, including controversial figure Leonard Steven Grasz, who received a “not qualified” rating from the American Bar Association, the ABA Journal reports. Grasz was found to have a “passionately held social agenda” by an ABA committee, which believed Grasz would be unable to respect precedent in the 8th U.S. Circuit Court of Appeals in St. Louis. The Judiciary Committee approved the nominees via an 11-9 party line vote.
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Federal Judge to SCOTUS: Justice Department Left ‘Incorrect Impression’ in Stay Request

U.S. District Judge William Alsup filed a statement with the U.S. Supreme Court that says the Justice Department left an “incorrect impression” in its request for a stay of his order for the disclosure of government records, the ABA Journal reports. The statement was filed in response to the DOJ’s request for the court to block his order to turn over documents regarding the government’s wind-down of the Deferred Actions for Childhood Arrivals program. Alsup said the DOJ failed to include qualifiers when it characterized his remarks on discovery and left the “incorrect impression” that he had “endorsed unfettered discovery.”
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Appellate Retroactivity Rules: The Pipeline Doctrine

It is important to be aware of developing legal issues so that if the Tennessee Supreme Court creates some new right or remedy you can take advantage of the ruling even though your case has already been adjudicated. This is known as the “pipeline doctrine” which grants limited retroactive relief if the litigant has preserved the issue in anticipation of a change in the law. This is a tricky process which requires anticipatory litigation and adequate record preservation for pending cases and appeals.
 
When the Supreme Court releases an opinion involving an entirely new doctrine of law, the Court frequently articulates how that doctrine will impact pending cases and appeals. For example, in State v. Dyle, 899 S.W.2d 607 (Tenn. 1995), the Supreme Court discussed a new jury instruction on witness identification. At page 612, the Court held that “this ruling is applicable to cases now on appeal and those cases tried after the release of this opinion.” This meant that the opinion was given pipeline application.
 
In State v. Walker, 905 S.W.2d 554 (Tenn. 1995), the Court held that persons under criminal sentence who present themselves for incarceration but are turned away by the sheriff may consider the sentence satisfied under certain circumstances. The Supreme Court held, at page 557, that “we are also persuaded that the rule announced today should be prospective only and should apply only to cases tried or retried after the date of this opinion and in cases on appeal in which the issue has already been raised.”
 
In State v. Enochs, 823 S.W.2d 539 (Tenn. 1991), the Court found that the thirteenth juror rule applied to all cases which were pending on direct review at the time the rule was reinstated and became effective. Lawyers who raised the issue prior to the release of Enochs, obtained a new trial for their clients after Enochs was rendered. See e.g., State v. Barone, 852 S.W.2d 216, 218 (Tenn. 1993).
 
This “pipeline” doctrine is not limited only to criminal cases. In McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), the Supreme Court adopted new rules regarding comparative fault. At page 58, the Court held that the opinion would apply to “all cases tried or retried after the date of this opinion and all cases on appeal in which the comparative fault issue has been raised at an appropriate stage in the litigation.” Identical language can be found in McClung v. Delta Square Partnership, 937 S.W.2d 891, 905 (Tenn. 1996) (landlord liability for crimes committed against innocent third parties by criminals on the premises); Broadwell v. Holmes, 871 S.W.2d 471, 477 (Tenn. 1994) (parental immunity); and Hataway v. McKinley, 830 S.W.2d 53, 60 (Tenn. 1992) (the “lex loci delicti”) choice of law doctrine in a wrongful death action). 
 
There may be constitutional limitations on the retroactivity doctrine. See, Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932), which that state courts could constitutionally choose to apply a state court decision departing from established precedent in either a retroactive or prospective manner. The United States Supreme Court had adopted “a posture of non-retroactivity” only where three conditions are present: (1) the decision at issue establishes a new principle of law by overruling clear past precedent, (2) retroactive application will retard its prospective application, and (3) retroactive application could produce substantial inequitable results to the instant litigants.
 
The lesson to be learned here is that attorneys should be aware of pending issues in the Tennessee Supreme Court and preserve the issue in anticipation of a possible change in the law so the client can retroactively take advantage of the new ruling. 
 
David Raybin is a Middle Tennessee Delegate of the executive council for the Tennessee Bar Association's Appellate Practice Section. Raybin has been named the Best Criminal Lawyer in Nashville in criminal general practice and white collar defense by Best Lawyers in America and listed among the Best Criminal Lawyers in TN by Tennessee Business magazine. Raybin holds degrees from Virginia Commonwealth University and the University of Tennessee College of Law.
 
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Noel Named Chair of Governor’s Council for Judicial Appointments

Gov. Bill Haslam has named Randall D. Noel as the new chair of the Governor’s Council for Judicial Appointments. The Council for Judicial Appointments interviews applicants and makes recommendations to the governor when there are vacancies on the appellate courts. Noel is a partner at Butler Snow LLP in Memphis engaged in civil practice, with a focus on commercial, banking, antitrust, data security and products liability matters. He is a former president of the TBA.

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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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Tennessee Supreme Court Rules on Required Notice for Enhanced Sentence

The Tennessee Supreme Court reinstated a life sentence without the possibility of parole that defendant Kevin Patterson received under Tennessee’s three strikes law. The defendant argued the state did not provide him with the required pre-trial notice that it planned to use his prior convictions to obtain an enhanced sentence. The Supreme Court held that while the notice was imperfect, the defendant was not prejudiced by the errors. The unanimous opinion was authored by Justice Cornelia A. Clark.

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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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Court Holds Personal Signature of Party Appealing in Parental Termination Case Not Required

In the parental termination case In re Bentley D., the Tennessee Supreme Court concluded that a father’s notice of appeal, signed by his attorney but not the father personally, satisfies the statutory signature requirement for appeals in parental termination cases. The court remanded the case to the Court of Appeals for consideration of the father’s appeal on the merits. Chief Justice Jeffrey S. Bivins authored the unanimous opinion.

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Recent Vandy Law Grad to Clerk for SCOTUS Justice Sotomayor

2016 Vanderbilt Law graduate Samiyyah Ali has been chosen to clerk for U.S. Supreme Court Justice Sonia Sotomayor, the Nashville Post reports. Ali will begin working for Sotomayor in October. She is currently the clerk to Judge Sri Srinivasan of the U.S. Court of Appeals for the D.C. Circuit in Washington. Ali, a Georgia native, was executive editor of the Vanderbilt Law Review and vice president of the Black Law Students Association while at Vanderbilt.
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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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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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Court Rules Sevier Jailers Not Liable for Inmate's Death

A federal appeals court has ruled that Sevier County jailers shouldn’t be held liable for an inmate's death because they were following a nurse’s advice, Knoxnews reports. The family of Samuel M. McGaw IV filed a suit after he fell into a coma in a Sevier County Jail cell in 2014, 24 hours after he was booked into the facility high on alcohol and pills. The jailers knew McGaw was in danger, but trusted a nurse’s trained assessment that he go untreated. The ruling means the case now returns to U.S. District Court Judge Pamela Reeves’ court for a trial with Sevier County leaders as the sole defendants.
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