News

1 in 25 Sentenced to Death Are Likely Innocent, Study Says

A new study suggests that about one in 25 people who are sentenced to death are likely innocent, the ABA Journal reports. The study, published in the Proceedings of the National Academy of Sciences, says that while only 1.6 percent of those on death-row are exonerated and released, the actual figure is likely a minimum of 4.1 percent when statistical assumptions are applied to the cases of people who are removed from death row and given life sentences.The new study also refutes a statement made by Justice Antonin Scalia in a concurring opinion in 2007 in which he wrote that American criminal convictions have an error rate of 0.027 percent “or, to put it another way, a success rate of 99.973 percent.”

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Sotomayor’s Opinion Her First on Race Issue

In a dissent this week to a U.S. Supreme Court opinion on affirmative action, Justice Sonia Sotomayor -- the first Hispanic justice on the court -- addressed race in American for the first time since going on the bench, Gavel Grab reports. While the six-member majority upheld a voter-approved Michigan ban on affirmative action in university admissions, Justice Sotomayor parted ways, writing: “The Constitution does not protect racial minorities from political defeat.” She added, “But neither does it give the majority free rein to erect selective barriers against racial minorities.” Attorney General Eric Holder today applauded Justice Sotomayor’s dissent and called it “courageous and very personal,” the Wall Street Journal Law Blog reports.

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State Supreme Court Added to Historic Register

Six Tennessee sites, including the state Supreme Court Building in Nashville, have been added to the National Register of Historic Places, a list of cultural resources worthy of preservation. The court was nominated for the recognition in January by the Tennessee Historical Commission. The other sites are the Grand Guitar in Bristol, Mead and Ross Marble Quarries in Knox County, the Martin-Dobyns House in Kingsport and the Blountville Historic District. WDEF News 12 has the news from the Associated Press.

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Memphis Judges Host Supreme Court Reception

The judges of the 30th Judicial District, in cooperation with the University of Memphis Cecil C. Humphreys School of Law, will host a reception for members of the Tennessee Supreme Court on Friday. The event will begin at 7:30 a.m. in the 4th Floor Gordon Ball Reading Room of the law school. RSVP to Judge Robert “Butch” Childers at robert.childers@shelbycountytn.gov.

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State Challenges Ruling on Same-Sex Marriages

Tennessee Attorney General Robert Cooper is asking the Sixth Circuit Court of Appeals to reverse a decision granting recognition to three same-sex married couples, the Tennessean reports. The action follows Friday’s preliminary injunction issued by U.S. District Judge Aleta Trauger allowing the marriage of three same-sex couples -- plaintiffs in a federal lawsuit -- to be recognized as their lawsuit against Gov. Bill Haslam and others progressed. The AG’s argument points to a stay issued in a similar ruling in Utah, and says it won’t irreparably harm the couples not to be recognized.

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Court to Review Whistleblowing and Contiguous State Cases

The Tennessee Supreme Court has agreed to hear two cases regarding a charge of whistleblower retaliation and the contiguous state requirements for a testifying expert witness. The Raybin Perky Hot List has a summary and forecast of each case.

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3 Recommended for Supreme Court Vacancy

The Governor's Commission for Judicial Appointments today recommended Jeffrey S. Bivins, Linda W. Knight and Larry K. Scroggs as candidates to fill the Tennessee Supreme Court position being vacated this summer by Justice William C. Koch Jr. The three now go to Gov. Bill Haslam for consideration. View each candidate’s application at the Administrative Office of the Courts.

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Bivins Gets Highest Marks in NBA Supreme Court Poll

Judge Jeffrey S. Bivins of Franklin received the highest marks in a poll released today by the Nashville Bar Association in which its members rated candidates seeking appointment to the Tennessee Supreme Court. Five lawyers are seeking to fill a vacancy that will be created when Justice William C. Koch Jr. retires in July to become dean of the Nashville School of Law. The survey asked lawyers to register a vote of highly recommend, recommend, do not recommend or no opinion. Paul C. Ney Jr. of Nashville received the second highest rank, followed by Nashville lawyer Linda W. Knight. See the full poll results.

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Supreme Court Seeks Appellate Courts Clerk

The Tennessee Supreme Court is seeking applications for the Clerk of the Appellate Courts position based in Nashville. The vacancy is being created by the retirement Mike Catalano. Qualified applicants must be licensed Tennessee attorneys, have extensive managerial experience and be knowledgeable about implementation and use of current technologies. The deadline to apply is March 14. Visit the Administrative Office of the Courts for more information. 

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If You Did It, Flaunt It With a TBJ Announcement

The Tennessee Bar Journal has a new opportunity for lawyers and firms to promote outstanding achievements, new associates, new partners, mergers, awards and any changes within the firm. Now, Professional Announcements are available at special, lower-rate pricing. You can tell more than 12,000 of your peers about your accomplishments by placing an announcement in the Journal. For information or to place an announcement, contact Debbie Taylor at 503-445-2231 or Debbie@llm.com. To have an announcement placed in the April issue, please contact her before Feb. 18.

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6th Circuit Offers Appellate Advocacy Training

The U.S. Court of Appeals for the Sixth Circuit now features a series of video clips providing training on appellate advocacy on its website. In one of the videos, Judge Jeffrey Sutton provides an in-depth discussion on effective appellate advocacy before the court, but many of his comments have equal application to practice in Tennessee appellate courts, according to the TBA’s Appellate Practice Section. Other video resources on the site provide tips for electronic filing, avoiding common billing mistakes and handling Criminal Justice Act cases. Read more in this blog posting from the appellate group at Squire Sanders.

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Appellate Court Clerk to Retire, Become Ordained Deacon

Clerk of the Appellate Courts Mike Catalano announced today he will retire in June to become an ordained deacon in the Roman Catholic Church, pursuing his ministry on a full-time basis. Catalano has served the state of Tennessee for more than 35 years in a variety of roles. He was appointed by the Tennessee Supreme Court to be the appellate court clerk for a six-year term starting in January 2004 and was reappointed for a second term starting in January 2010. “Mike Catalano is the consummate professional -- a public servant of the first order. As a valued leader within the office of the attorney general and as clerk of all of our appellate courts, he has performed his duties in an exemplary fashion -- with class, dignity, and courtesy," Chief Justice Gary R. Wade said in a press release. “That he has chosen to spend the balance of his career in service to the highest authority is the best reflection of his true character. Our courts will sincerely miss this good man.”

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Process Underway to Fill Supreme Court Vacancy

The Governor’s Commission for Judicial Appointments is now accepting applications for a vacancy on the Tennessee Supreme Court that will be created by the retirement of Justice William C. Koch Jr. on July 15. Interested applicants must be licensed attorneys who are at least 35, have been a resident of the state for five years and have been a resident of the Middle or Western grand divisions of the state. Applicants must complete the designated application and submit it to the Administrative Office of the Courts by Feb. 21 at 5 p.m. Central time. The commission will interview all qualified applicants on March 5 in Nashville.

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Case of 6th Circuit Judge Referred to DOJ

This past summer, federal Judge Boyce Martin Jr. of Kentucky announced he would retire from the 6th Circuit Court of Appeals and repay nearly $140,000 in travel expenses to avoid an ethics investigation. But documents just released reveal that his case will be referred to the U.S. Justice Department by the Committee on Judicial Conduct and Disability of the U.S. Judicial Conference, the ABA Journal reports. In making the referral, the committee also refused a request that Martin’s name not be disclosed. Commenting on the case, University of Pittsburgh law professor Arthur Hellman said the referral to the Justice Department was “quite unusual” and "stunning." Others, including Judge Martha Craig Daughtrey, praised Martin's legacy. A senior member of the court, Daughtrey said Martin had a “stellar legacy” and that “his character and integrity are beyond question.”

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Senate Confirms Wilkins to D.C. Circuit

The U.S. Senate today confirmed Robert Wilkins to the U.S. Court of Appeals for the D.C. Circuit, marking the final step in an aggressive push from the White House and Senate Democrats to leave a mark on a key federal appeals court, the Blog of Legal Times reports. With Monday’s confirmation vote, Wilkins became the fourth Obama pick since May to take a seat on the D.C. Circuit. The appointment of Wilkins creates a vacancy on the federal trial bench in Washington.

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Jackson Lawyer Appointed to Court of Appeals

Jackson lawyer and Alamo native Brandon O. Gibson has been appointed to the Tennessee Court of Appeals by Gov. Bill Haslam. She will replace Judge David R. Farmer when his term expires in August 2014. Gibson, 38, has been in private practice at the Pentecost & Glenn law firm in Jackson since 2003. “Brandon Gibson will be an excellent judge on the Court of Appeals,” Haslam said. “She has vast experience in private practice, and I know she will serve the citizens of the Western Section well in this role.”

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Court Adopts New Standard for Concurrent Sentences

The Tennessee Supreme Court on Friday adopted a new standard to guide appellate court review of decisions that impose consecutive sentences for multiple convictions. The decision came in the case of James Allen Pollard, who was found guilty of first-degree murder and aggravated robbery. The trial court imposed consecutive sentences of life in prison for the murder and 18 years for the robbery. The appellate court affirmed the conviction but instructed the trial court to identify the factors that supported imposition of consecutive sentences. The Supreme Court upheld that approach, directing trial courts to identify a specific evidentiary basis for “stacking” sentences. It also ruled that if a lower court finds an appropriate basis for consecutive sentences, appellate courts must find an abuse of discretion to justify overturning the decision.

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Court to Review Five End-of-Year Cases

The Tennessee Supreme Court has granted review of five end-of-year cases. The four civil cases involve a child custody issue, a real estate contract dispute, independent contractor premises liability question, and a forfeiture of real property in a child pornography matter. The criminal case is regarding the waiver of a jury instruction on lesser included offenses. The Raybin Perky Hot List has a summary and forecast of each case.

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2014 Rules Package Published

The Tennessee Supreme Court today published its 2014 package of amendments to the Rules of Procedure and Evidence, including changes to the Rules of Civil Procedure, Rules of Criminal Procedure and Rules of Appellate Procedure. The amendments, which would be effective July 1, 2014, if approved by the General Assembly, include new authority for appellate courts to suspend rules; requirements for electronic copies of transcripts; specification of the color of applications, responses and amici in TRAP 9 and 11 matters; and refinement of criminal contempt provisions. The court adopted the single recommendation from the TBA and Public Defenders Conference that trial court discretion to substitute a statement of evidence for a verbatim transcript on appeal not apply to criminal cases.

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Smith to Step Down; Embattled Judges Get Meeting

The Judicial Performance Evaluation Commission on Friday announced that Court of Criminal Appeals Judge Jerry L. Smith has decided not to seek another term, leading the commission to drop plans to recommend he not be retained in next year’s election. For two other appellate judges facing possible negative recommendations, the commission said the judges could file written responses to its reports and appear at a Jan. 17, 2014, meeting where they would be allowed to speak about their performance. Appeals Court Judge Andy Bennett and Criminal Appeals Court Judge Camille R. McMullen appear on track to press forward with their campaigns, the Tennessean reports. Finally, the panel declined to hear from opponents of the retention election system, including Nashville attorney John Jay Hooker, who said afterward that he may sue the commission for not letting him speak.

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Wade: Quality Work Motivated Defense of Judges

Tennessee Supreme Court Chief Justice Gary Wade says he does not believe politics was involved in the Judicial Performance Evaluation Commission’s tentative recommendation against new terms for three appellate court judges and wants to make sure no one thinks he is injecting politics into the mix, Humphrey on the Hill writes in a blog post today. As previously reported, Wade defended three judges set to receive negative recommendations, saying they have done “quality work” and deserve new terms. Since initially making those comments, Wade says he and Charles Susano Jr. -- who spoke out in support of one of the three -- have been accused of “injecting politics” into the situation. “Neither Charlie nor I believe this is a partisan issue,” he said. “We know there was some rational basis for each of the decisions [the members of the commission] made...I have never seen a commission more prepared than this one was for making its recommendations...They have done a very difficult job in a relatively short period of time.”

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Trooper Disciplined After Blocking Judge from Courthouse

A Tennessee Highway Patrol trooper has retired after facing discipline for stopping Court of Criminal Appeals Judge Camille McMullen from entering the state Supreme Court building in June, Knoxnews reports. Trooper Brent Gobbell, who had four prior disciplinary actions on his record, was reprimanded and docked a day’s pay. According to an official discipline memo from Safety Commissioner Bill Gibbons, Gobbell demonstrated “an utter disregard” for proper procedures in rejecting the judge’s identification card.

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Court to Hear 6 New Cases

The Tennessee Supreme Court has granted review to six new cases. Among the civil questions it will consider are those seeking clarification about the pre-suit notice in health care liability cases, jury instruction regarding foreseeability limited to the day of the event, and construction of the Tennessee Human Rights Act. New criminal cases granted review include the standard for ineffective assistance claims, inconsistent/mutually exclusive verdicts regarding merger of offenses, and waiver of lesser-included offense instructions. The new issue of the Raybin-Perky Hotlist reviews the cases and offers predictions as to how each may be decided.

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Court Rules County Not Responsible for Attack on Inmate

The Tennessee Supreme Court has ruled that Anderson County is not liable for damages beyond medical costs for Kenneth E. King, an inmate who sustained injuries from an attack by cellmates, the Administrative Office of the Courts reports. “There is no evidence that Anderson County Detention Facility officials knew or should have known that Mr. King would become the victim of an attack by his cellmates after he was returned to his cell to await pretrial release,” Justice Cornelia A. Clark wrote in the opinion. In a dissenting opinion, Chief Justice Gary R. Wade disagreed, deferring to the trial court’s finding that Anderson County was liable for King’s injuries, which were sustained after officials failed to timely release him from jail.

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GOP Senators Block Nominee for D.C. Appeals Court

GOP senators on Tuesday blocked another of President Obama’s picks to fill a vacancy on the U.S. Court of Appeals for the District of Columbia Circuit. On a vote to end procedural delays, the Democratic leadership fell four votes short of advancing the nomination of Cornelia Pillard, a Georgetown University law professor, the Associated Press reports on WATE.com. Republicans have blocked votes on two other Obama nominees to the same court this year, attorneys Patricia Millett and Caitlin Halligan.

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