Court of Criminal Appeals Upholds Decision Regarding Fatal Bus Crash

The Tennessee Court of Criminal Appeals (TCCA) yesterday upheld a Hamilton County Criminal Court decision denying judicial diversion for the man convicted on multiple charges in the bus crash that killed six children, the Chattanooga Times Free Press reports. Johnthony Walker received a four-year sentence from Criminal Court Judge Don. W. Poole. Walker appealed that sentence because he was denied judicial diversion. The appeals court maintained that Poole carried out a "very detailed and thorough examination" of the factors presented, and there was "substantial evidence in the record to support the denial of diversion." Read the opinion authored by Court of Criminal Appeals Judge Timothy L. Easter.

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Man Who Pleaded Guilty to Murder Sues for Injunction Regarding 'Unprocessed Evidence'

A man who pleaded guilty to the 1996 murder of a woman during a home robbery is now suing the Hamilton County District Attorney’s Office and the county’s criminal court judges seeking due process protections, alleging that certain DNA evidence that could support his innocence was not tested and was intentionally excluded from his trial, WTVC Chattanooga reports. The lawsuit maintains that untested evidence regarding 284 homicides cases, including Tracey Vick’s, that was discovered by the Hamilton County Medical Examiner’s Office in 2015 "could reasonably support (the) Petitioner’s position that he is innocent of the crimes of which he stands convicted.’” 

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TSC Accepts Certification of Non-Economic Damages Cap Question

On June 19, 2019, the Supreme Court of Tennessee accepted certification of three questions of law relating to Tennessee's statutory non-economic damages cap. The certification follows on the heels of a decision from a divided panel of the U.S. Court of Appeals for the 6th Circuit holding that Tennessee's separate statutory cap on punitive damages violates the right to trial by jury under the Tennessee Constitution. Litigants hoping for additional clarity following the 6th Circuit's decision should anticipate a ruling from the Supreme Court within the next six to nine months directly addressing the constitutionality of Tennessee's non-economic damages cap.

The Supreme Court's June 19 order accepted certification of three questions from the United States District Court for the Middle District of Tennessee in Jodi McClay v. Airport Management Services, LLC, No. 3:17-cv-00705. The plaintiff in McClay filed suit against the defendant, an operator of a retail store in the Nashville Airport, after a wooden panel in the store fell and struck the plaintiff's foot. Following a trial, the jury returned a verdict awarding the plaintiff $444,500.00 in economic damages and $930,000.00 in non-economic damages.

The defendant asked the court to apply Tennessee's non-economic damages cap, which limits non-economic damages to $750,000.00. See Tenn. Code Ann. §§ 29-39-102(a)-(e). The plaintiff objected, arguing that the damages cap violated the right to a trial by jury, amounted to an impermissible exercise of judicial powers by the Tennessee legislature, and, in an unusual argument, disproportionally discriminated against women, all in violation of the Tennessee Constitution. The plaintiff's objection cited the 6th Circuit's recent decision in Lindenberg v. Jackson Nat'l Life Ins. Co., 912 F.3d 348 (6th Cir. 2018), which held that Tennessee's statutory cap on punitive damages violated the state constitutional right to trial by jury. The Lindenberg court's analysis of the punitive cap applied with equal force to Tennessee's separate non-economic damages cap, argued the plaintiff. (For our previous analysis of the Lindenberg decision, see here, here, and here.

U.S. District Judge Eli J. Richardson, a 2018 appointee to the bench, certified the three issues raised by plaintiff's objection to the Supreme Court of Tennessee on March 18, 2019. In his certification order, Judge Richardson recognized the Lindenberg decision on the punitive damages cap, but observed that neither the Tennessee Supreme Court nor the 6th Circuit had rendered opinions on the state constitutionality of the non-economic damages cap.

The Tennessee Supreme Court's acceptance of the certification on June 19, based on recent history involving certification issues, means that litigants should anticipate an opinion within the next six to nine months. The Court has requested briefing and oral argument from the parties and the State of Tennessee and granted a request from the Center for Urological Treatment to file an amicus brief. The Center for Urological Treatment is a defendant in a separate case pending before the Tennessee Court of Appeals in which the constitutionality of the non-economic damages cap is at issue. See Yebuah, et al. v. Center for Urological Treatment, PLC, No. M2018-01652-COA-R3-CV. The Center had previously filed an unsuccessful motion asking the Supreme Court to "reach down" to assume jurisdiction of the appeal to address the issue.

With the Court of Appeals for the 6th Circuit denying rehearing en banc in the Lindenberg decision, it remains to be seen whether the Tennessee Supreme Court will accept certification of questions regarding the constitutionality of the punitive damages cap in a future case, as it has done with the non-economic damages cap in McClay. Litigants should stay tuned for further developments.

— George "Buck" Lewis is a shareholder at Baker Donelson, past TBA president and former Chair of the TBA Appellate Practice Section.

— Buckner Wellford is a shareholder at Baker Donelson and chairs the firm's Advocacy Department. Wellford is also the former chair of its Health Care Litigation Group.

— Matthew S. Mulqueen is a shareholder at Baker Donelson. He represents clients in complex business litigation, with a particular focus on the financial and health care industries.
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Court to Consider Whether Shoplifting from Walmart Can be Considered Burglary

The Tennessee Supreme Court will consider whether shoplifting from Walmart stores more than once can be considered felony burglary instead of a shoplifting misdemeanor, the Knoxville News Sentinel reports. This comes after a policy instituted by Knox County District Attorney General Charme Allen in 2016, which seeks to curb multiple offenses and was adopted by several other counties in the state. The Court of Criminal Appeals recently ruled that Allen’s policy is sound, further stating that once a shoplifter has been banned from the store in writing, consent of public patronage has been revoked. Criminals Appeals Judge Camille R. McMullen wrote a dissension saying: “Unlike an individual who owns a building closed to the public, a retail store such as Walmart does not have its privacy invaded and is not terrorized or personally violated when a banned individual commits the offense of shoplifting or theft within one of its stores … by charging individuals in this way, prosecutors are creating an enhanced penalty for shoplifters and petty thieves. The court has not yet set a hearing date.

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Grundy Co. Sheriff Advocates New Trial for Adam Braseel

Grundy County Sheriff Clint Shrum last week joined others in requesting a new trial for a man serving a life sentence for a 2006 murder, the Knoxville News Sentinel reports. Adam Braseel was convicted of killing Malcolm Burrows solely on witness testimony even though no physical evidence tied him to the scene of the crime. Attorneys for Braseel maintain that the eyewitnesses mistook him for another man, Kermit Bryson, who not only bears a striking resemblance to Braseel, but his fingerprints were found at the crime scene as well, a fact Sheriff Shrum said led him to press for a new trial. A judge previously threw out Braseel's conviction in 2015, however, the Court of Criminal Appeals overruled that decision and ordered Braseel back to prison.

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Appellate Practice Section Member Pens Article on Oral Arguments

Tennessee Bar Association Appellate Practice Section member Richard Lynn recently wrote an article for The Nebraska Lawyer that is relevant to Tennessee lawyers as well. The article features observations by Lynn regarding oral arguments from attorneys in the court and judicial temperament, and provides useful practice tips. You can view the article here.

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Tennessee Board of Professional Responsibility Seeks Disciplinary Counsel – Litigation, Appeals

The Tennessee Board of Professional Responsibility is seeking a motivated attorney for the position of Disciplinary Counsel – Litigation Section, Appeals. The duties and responsibilities include: investigate and conduct discovery related to complaints of attorney misconduct; prepare pleadings and appear in disciplinary hearings before hearing panels; represent the Board in appellate proceedings before special judges in trial courts and before the Tennessee Supreme Court; prepare and present continuing legal education; and other duties as assigned.
Excellent written and oral communication required. Applicants must be licensed in Tennessee and have a minimum of seven (7) years experience in the practice of law. Must have significant experience in appellate advocacy. Practice before the Tennessee Supreme Court is preferred. You can find out more about the position including how to apply by using this link.
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Court of Criminal Appeals Boot Camp 2018

The Tennessee Bar Association’s Appellate Practice Section held its annual boot camp this past Wednesday. Produced by Section Chair Kyle Wilson and Vice-chair Leslie Price, this year’s boot camp was focused on criminal appeals. Attendees viewed oral arguments at the Court of Criminal Appeals and enjoyed a Q&A with the presiding judges. Following court, boot camp participants moved to the Tennessee Bar Center for a networking lunch and oral advocacy panel with the attorneys who presented arguments that morning discussing briefs, argument preparation and providing practice tips. The TBA would like to thank Kyle, Leslie and the TBA Appellate Practice Section for another successful program!

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Three Short Appellate Tips

1. Keep an APPEAL FILE on the counsel table in plain view.
"Be always sure you are right — then go ahead." – Davy Crockett
Write the word “APPEAL FILE” in big letters on the front of a file folder. Every time the judge does something you don’t like, write it down and make a big production about opening the appeal file and put your note in the APPEAL file. After a time, folks will get the message. Seriously, you want to keep things in a handy place that may have something to do with a possible appeal.
2. Always write down the dates of all your trial court proceedings and always get the name of your court reporter.  
A short pencil is better than a long memory —
Stick important information in your appeal file. Think about all the time you have wasted as a lawyer running around trying to remember when you had this hearing or that hearing and trying to figure out who the court reporter was for a particular proceeding. You cannot have an appeal without a transcript and you cannot have a transcript if nobody remembers the name of the court reporter.  
3. Protecting your Verdict.  
"I'm no idealist to believe firmly in the integrity of our courts and in the jury system — that is no ideal to me, it is a living, working reality. Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up." — The character, Atticus Finch, in his argument to the jury in To Kill a Mockingbird – Harper Lee, Author
Most modern trials have a verdict form. Attorneys should be careful to examine the jury form regarding the verdict to be certain that it is responsive to the issues while the jury is still in the box. In criminal cases, the jury form must be specific as the degree of the crime or designating the particular offense in a multiple count indictment or, for example, in theft cases, the value of the property taken. In civil cases, of course, the rules permit special verdicts which is a topic worthy of a separate presentation. Generally, see Tenn. R. Civ. P. 49.

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 Tennessee by the Tennessee Business magazine. Raybin holds degrees from Virginia Commonwealth University and the University of Tennessee College of Law.
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Appeals Court Reverses Gallatin Fossil Plant Coal Ash Cleanup Order

A federal appellate panel last Monday overturned an order that would have required the Tennessee Valley Authority to unearth and remove a massive amount of coal ash at the Gallatin Fossil Plant, The Washington Post reports. In a 2-1 decision, the 6th U.S. Circuit Court of Appeals maintained that leaks from unlined coal ash pits through groundwater into the Cumberland River are a “major environmental problem” but the Clean Water Act isn’t the “proper legal tool of correction” to address it. A district judge in 2017 ordered the coal ash to be excavated and removed, citing Clean Water Act violations regarding pollutants leaking into the Cumberland River. You can read the opinion here.

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