ABA nominates new leaders, revises code of judicial conduct, among other actions at midyear meeting

Birmingham lawyer H. Thomas Wells Jr. was nominated to become president-elect of the American Bar Association at its midyear meeting in Miami last week. Judge Bernice B. Donald of Memphis was nominated to become secretary-elect and Boston lawyer Alice E. Richmond was nominated to be treasurer-elect. In addition, nine individuals were nominated for membership on the ABA's board of governors. The ABA House of Delegates will vote on all nominations in August. Click here for details on nominated individuals

Also during the meeting, the House approved revisions to the Model Code of Judicial Conduct dealing with judges' political activities, pledges or commitments regarding certain cases, conduct during elections and acceptance of gifts. Among its many actions, the House adopted resolutions urging bar associations to work with courts and executive branch officials to address the problems of homelessness; called for mandatory civil legal assistance for low-income active-duty service members; urged Congress to enact a pay raise for federal judges; and set new policy on out-of-state lawyers providing pro bono legal assistance in disaster-affected areas. For a summary of all actions taken, read this press release from the ABA:


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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


Court: TWCA


Marsha McShane Watson, Nashville, Tennessee, for appellant, Saturn Corporation

J. Anthony Arena, Nashville, Tennessee, for appellee, Robert Gill


This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court our findings of fact and conclusions of law. In this appeal, the employer, Saturn Corporation (Saturn), asserts that the forty-five percent permanent, partial disability to the body as a whole, awarded the employee, Robert Gill, by the trial court, was excessive. We conclude that the evidence presented does not preponderate against the findings of the trial court and affirm.


WILLIAM STEVIE HOLTON v. MARSHALL COUNTY and SUE ANN HEAD, Administrator for the Division of Workers' Compensation, Tennessee Department of Labor Second Injury Fund

Court: TWCA


D. Andrew Saulters, Nashville, Tennessee, for the Defendant-Appellant, Marshall County

Barbara G. Medley, Lewisburg, Tennessee, for the Plaintiff-Appellee, William Stevie Holton

Juan Villasenor, Assistant Attorney General, for the Appellee, Tennessee Department of Labor, Second Injury Fund


This is a workers' compensation appeal referred to and heard by the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. 50-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant contends that the court erred in finding a 13% anatomical impairment rating to be the appropriate anatomical impairment suffered by plaintiff and that a concomitant 90% vocational disability award for a back injury was excessive. The Tennessee Department of Labor, Second Injury Fund, adopts defendant's arguments and urges reversal of the trial court's decision. For the reasons set forth below we disagree and therefore, affirm the decision of the trial court.



Court: TCA


Melinda Meador, Matthew M. Scoggins III, and Edward C. Meade, Knoxville, Tennessee, for the appellants Delaware Savings Bank, F.S.B.; IMC Mortgage Company; Delta Funding Corporation; and Deutsche Bank NTC

Hudson Owen Maddux and Jason S. Mangrum, Chattanooga, Tennessee, for the appellee Carlton J. Ditto

Judge: LEE

This case involves the validity of a delinquent tax sale which occurred while the property owner had a bankruptcy petition pending and the bankruptcy court's automatic stay was in effect. The issues presented are: did a creditor of the bankruptcy estate have standing to challenge the tax sale, and if so, should the tax sale conducted in violation of the automatic stay be declared void? The trial court ruled that the creditor did not have standing to challenge the tax sale. After careful review of the record and applicable authorities, we hold that the creditor did have standing to challenge the validity of the tax sale, and because the sale violated the automatic stay, the sale is void and of no effect to transfer title of the real property to the purchaser.



Court: TCCA


Philip A. Condra and Quisha Light, Jasper, Tennessee, for the appellant, Jimmy Dale Pickett

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Steven Blount, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: OGLE

A Franklin County Circuit Court jury convicted the appellant, Jimmy Dale Pickett, of first degree premeditated murder and especially aggravated robbery, and the trial court sentenced him to concurrent sentences of life and twenty years, respectively. On appeal, the appellant claims (1) that he is entitled to a retrial because the State violated the rule of sequestration; (2) that the trial court erred by denying his motions to suppress his confessions; (3) that the trial court erred by allowing the jury to use a transcript, which had not been introduced into evidence, during deliberations; (4) that the trial court erred by refusing to give the jury a corpus delicti instruction; and (5) that the State committed prosecutorial misconduct during closing arguments. Finding no errors requiring reversal, we affirm the judgments of the trial court.



Court: TCCA


David L. Raybin, Nashville, Tennessee (on motion for new trial and on appeal); and Patrick Johnson, Nashville, Tennessee (at trial), for the Appellant, Mark A. Schiefelbein

Robert E. Cooper, Jr., Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Mary Katharine White, Assistant District Attorney General, for the Appellee, State of Tennessee

Judge: WITT

A Williamson County Circuit Court jury convicted the defendant, Mark A. Schiefelbein, of seven counts of aggravated sexual battery and one count of especially aggravated sexual exploitation of a minor. The trial court imposed a 12-year sentence for each conviction and ordered consecutive service, thereby yielding an effective sentence of 96 years. Aggrieved of the convictions and sentences, the defendant appeals and raises the following issues: (1) the trial court erred by failing to require the State to furnish discovery materials to the defendant; (2) the trial court committed reversible error by configuring courtroom seating to shield the public from viewing certain exhibits; (3) the trial court improperly instructed the jury, sua sponte, to disregard certain truthful testimony of the defendant; (4) the trial court's repeated questioning of State's witnesses created an appearance of judicial bias and improperly bolstered the State's case; (5) the trial court committed reversible error in excluding defense-proffered medical testimony that a physical examination of the victim rebutted the occurrence of sexual penetration, contact, or injury; (6) the trial court permitted the introduction of inadmissible and highly prejudicial hearsay and opinion testimony; (7) the trial court erroneously permitted the State to examine the defendant about his knowledge that a "voice stress analysis" could detect stress in an individual's voice; (8) the trial court erroneously instructed the jury that the defendant could be guilty of aggravated sexual battery if he acted intentionally, knowingly, or "recklessly"; (9) the trial court erroneously instructed the jury that the State could prove the mental state for aggravated sexual battery in the disjunctive by showing that the defendant acted intentionally, knowingly, "or" recklessly; (10) the trial judge should be disqualified from further involvement in the case; and (11) the defendant's effective sentence is excessive, illegal, and unconstitutional. As an adjunct to the issues raised on direct appeal, the defendant also pursues Appellate Procedure Rule 10 interlocutory review to bar future prosecution of three related child-rape charges that were severed, over his objection, from trial of the aggravated sexual battery and especially aggravated sexual exploitation of a minor offenses. After thorough review of the record and careful consideration of the parties briefs, their oral arguments, and the applicable law, we hold that none of the errors require reversal of the defendant's convictions for aggravated sexual battery or for aggravated sexual exploitation of a minor. However, we hold that the incarcerative 96-years' sentence is inconsistent with the purposes and principles of sentencing and does not provide a fair sense of predictability of the criminal law and its sanctions; therefore, we modify the defendant's effective sentence from 96 years to 36 years. We order that the trial judge who presided at trial is disqualified from conducting any further proceedings in this cause. Finally, we dismiss the child-rape offenses, as improperly severed, and hold that further prosecution on such charges is barred by principles of double jeopardy.



Court: TCCA


Andrew Jackson Dearing, III (at trial and on appeal), and Michael J. Collins (at trial), Shelbyville, Tennessee, for the appellant, Kimberly Paige Smith

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Charles F. Crawford, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: OGLE

The appellant, Kimberly Paige Smith, pled guilty in the Marshall County Circuit Court to aggravated burglary and was sentenced as a Range I, standard offender to four years in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court's denial of alternative sentencing. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.



Court: TCCA


Mitchell G. Tollison, Jackson, Tennessee, for the appellant, Donnie Thompson

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Jerry Woodall, District Attorney General and James Thompson, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: SMITH

The appellant, Donnie Glenn Thompson, was indicted on one count of stalking his ex-wife. The appellant applied for pretrial diversion, and this request was denied by the district attorney general. The trial court denied the appellant's petition for writ of certiorari, holding that the district attorney general had not abused his discretion by denying pretrial diversion. This Court accepted the appellant's application for interlocutory appeal and issued a judgment in which we reversed the trial court's decision and remanded the issue for further consideration by the district attorney general. The district attorney general denied the appellant's application for pretrial diversion a second time. The appellant filed a second petition for writ of certiorari, which the trial court again denied. We have accepted the appellant's second application for interlocutory appeal. Because the district attorney general considered the proper criteria when evaluating the appellant's application for pretrial diversion, including evidence favorable to the defendant and because he articulated sufficient grounds for denying the appellant's request for pretrial diversion, we affirm the trial court's conclusion that the district attorney general did not abuse his discretion.


South Central Correctional Facility RFP

TN Attorney General Opinions

Date: 2007-02-12

Opinion Number: 07-12


Termination of Sexual Offender Registration and Residency Requirements

TN Attorney General Opinions

Date: 2007-02-12

Opinion Number: 07-13


Constitutionality of Tennessee Plan

TN Attorney General Opinions

Date: 2007-02-12

Opinion Number: 07-14


Prevailing Wage Rates in State Construction Contracts

TN Attorney General Opinions

Date: 2007-02-12

Opinion Number: 07-15


Employer's Fee for Compliance with Garnishment

TN Attorney General Opinions

Date: 2007-02-12

Opinion Number: 07-16


Constitutionality of Ban on In-Session Contributions

TN Attorney General Opinions

Date: 2007-02-13

Opinion Number: 07-17



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New filings in aging case critical of former U.S. attorney
Depositions filed in a lawsuit last week offer a rare glimpse into the inner workings of the federal prosecutor's office in Nashville -- an office marred by allegations of discrimination and retaliation under the leadership of former U.S. Attorney Jim Vines.
Read more in the Nashville Scene
Inadequate pay hurts judicial morale says Justice Kennedy
In remarks before the U.S. Senate Judiciary Committee today, Supreme Court Justice Anthony Kennedy said the pay of federal judges is too low and that the situation damages morale and could undermine judicial independence. He commented that in his 30 years on the bench he has never seen his colleagues more "dispirited than now." His comments echo remarks made by Chief Justice John Roberts, who recently called the pay issue a "constitutional crisis," the Associated Press reports.
Read his prepared remarks
Judge calls for court audit
Lenoir City Judge Terry Vann said he plans to ask the state comptroller to audit municipal court financial records after accusing the city clerk, who manages the court's billing and collections, of failing to turn outstanding fines over to a collection agency. The court has $347,889 in outstanding collections dating back to 1998.
The News Sentinel has more
Ford Jr. to join Merrill Lynch
Former U.S. Congressman Harold E. Ford Jr., D-Tenn., will join Merrill Lynch as a vice chairman and senior policy adviser effective March 5. He will work in the Global Markets and Investment Banking Group and maintain offices in New York and Nashville. While in the U.S. House of Representatives, Ford served on the Budget Committee and co-chaired the Congressional Savings and Ownership Caucus, a bi-partisan coalition dedicated to advancing policies to build savings and assets. The Memphis Business Journal reported the news this afternoon.

Opinion: kids forgotten in juvenile court dispute
Shelby County Commissioner Mike Carpenter writes in today's Commercial Appeal that the Juvenile Court's refusal to address fundamental issues impedes its ability to rehabilitate children and families. While acknowledging that a second judge alone is insufficient to solve all of court's problems, he contends that adding a new judge would change the dynamic and be a catalyst for meaningful reform.
Read his thoughts
County AG says gathering did not constitute meeting
Knox County Attorney General Randy Nichols said yesterday that five county officials who met briefly in the mayor's office before a press conference did not violate the state Open Meetings Act. The statement came in response to allegations by County Commission Chairman Scott Moore that the gathering violated the law.
The News Sentinel has the story
Jury sides with composer over song snippets
A Nashville jury yesterday found that the word "dog," along with the phrase "yippee yo, yippee yay," when sampled in a rap song, constituted copyright infringement. It was the second Nashville federal court ruling involving sampled snippets and financial penalties. The decision awarded $111,225 to the composer of a 1982 song whose lyrics were used in a 1998 work by rap group Public Announcement. The band's label, Universal Music Group, is expected to appeal.
The Tennessean has more
Students to participate in court project
Monroe County students and teachers will participate in an educational program initiated by the Eastern Section of the Tennessee Court of Appeals next week. On Feb. 23, the group will hear oral arguments in three cases pending before the court. Local attorneys will brief students prior to the hearing and will answer questions after the session. When opinions in the cases are issued, court clerks will return to the schools to discuss the findings. The Court of Appeals Affecting Student Education, or CASE Project, is designed to educate young people about the judicial branch of government.

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Legislators already have filed a number of bills of interest to Tennessee attorneys. The TBA Watch and Action lists will keep you up to date on what has been filed.
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Memphis lawyer censured
The Tennessee Supreme Court on Feb. 9 censured Ronald L. Coleman for collecting excessive attorney's fees in a suit brought by a corporation in which his wife had substantial ownership. Coleman submitted a guilty plea in exchange for the censure. The court determined that his actions violated Rule 1.5 and 8.4(a)(d) of the Tennessee Rules of Professional Conduct.
Read the BPR release
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