U.S. attorney talks on the record after DOJ firing

Fired U.S. Attorney Carol Lam of San Diego told Stanford Lawyer in her first on-the-record interview since her dismissal that the Justice Department's decision to oust nine federal prosecutors has created devastating uncertainty and demonstrated the failure of DOJ management. A Stanford alum, Lam said in the Q-and-A article that the events show why the Justice Department and its prosecutors need to have independence. Read a synopsis from the ABA Journal.
TODAY'S OPINIONS
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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2007/certlist_102207.pdf


MARLON FITZGERALD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ryan B. Feeney, Memphis, Tennessee, for the Appellant, Marlon Fitzgerald.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Anita Spinetta, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Marlon Fitzgerald, appeals the denial of his petition for post-conviction relief by the Shelby County Criminal Court. Fitzgerald was convicted by a jury of first degree premeditated murder, felony murder, and theft of property. On direct appeal, this court affirmed the convictions and held that there was sufficient evidence to support the convictions and that the trial court's failure to charge the jury with lesser-included offenses was harmless error. Fitzgerald then filed a petition for post-conviction relief, alleging the ineffective assistance of counsel, which the post-conviction court denied following an evidentiary hearing. After a review of the entire record on appeal and the arguments of the parties, we affirm.

http://www.tba2.org/tba_files/TCCA/2007/fitzgeraldm_102207.pdf


STATE OF TENNESSEE v. EDWARD BUCK FRANKLIN

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the appellant, Edward Buck Franklin.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Mike McCown, District Attorney General and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Edward Buck Franklin, pled guilty to two counts of failing to report in person as a sex offender, a violation of T.C.A. section 40-39-204. He was sentenced as a Range II multiple offender to three years for each offense. The trial court ordered the sentences to run consecutively, for a total effective sentence of six years. Appellant argues on appeal that the trial court erred by denying him a community corrections sentence. Because the record demonstrates that Appellant is not a suitable candidate for community corrections pursuant to T.C.A. section 40-36-106(a)(1), and because the record fails to demonstrate he is eligible for special needs placement pursuant to T.C.A. section 40-36-106(c), we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/frankline_102207.pdf


BRYAN C. HESTER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee, for the appellant, Bryan C. Hester.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Amy H. Eisenbeck and Pamela Sue Anderson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

A Davidson County Criminal Court jury convicted the petitioner, Bryan C. Hester, of second degree murder, and the trial court sentenced him as a Range I, violent offender to twenty-five years in confinement. This court affirmed the petitioner's conviction and sentence. See State v. Bryan Christopher Hester, No. M2003-00503-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 436 (Nashville, May 12, 2004), perm. to appeal denied, (Tenn. 2004). Subsequently, the petitioner filed a petition for post-conviction relief, and the post-conviction court denied the petition after an evidentiary hearing. On appeal, the petitioner contends that he received the ineffective assistance of counsel because his trial attorney (1) failed to request a jury instruction on causation; (2) failed to include a pretrial motion hearing transcript in the direct appeal record, precluding this court's review of the trial court's denial of the motion; and (3) failed to prepare for trial adequately because counsel failed to obtain the victim's medical records earlier. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/hesterb_102207.pdf


ISAAC OBA KING v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David Hopkins, Nashville, Tennessee, for the Appellant, Isaac Oba King.

Robert E. Cooper, Jr., Attorney General & Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kyle Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The post-conviction petitioner, Isaac Oba King, appeals the Davidson County Criminal Court's summary dismissal of his petition. That court ruled that the petitioner's claims of an unknowing guilty plea and of ineffective assistance of trial counsel were based upon allegations that trial counsel "failed" to inform the petitioner of the effect of a conviction upon his immigration status. The court held that counsel's failure to inform the petitioner about the potential of his deportation did not state a legal claim for post-conviction relief. Because we determine that the petition also alleged that counsel "erroneously" advised the petitioner about deportation, we reverse the post-conviction court, vacate the order of dismissal, and remand for an evidentiary hearing.

http://www.tba2.org/tba_files/TCCA/2007/kingi_102207.pdf


STATE OF TENNESSEE v. JAMES C. OSBORNE, III

Court: TCCA

Attorneys:

J. Robert Hamilton, Lebanon, Tennessee, for the appellant, James C. Osborne, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Jason Lee Lawson and Howard Lee Chambers, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, James C. Osborne, III, was convicted of attempted aggravated child neglect, a Class C felony, and child neglect, a Class A misdemeanor, by a Wilson County Criminal Court jury. See T.C.A. sections 39-12-101 (attempt); 39-15-402 (2004) (amended 2005) (aggravated child neglect); 39-15- 401 (2004) (amended 2005, 2006) (child neglect). The defendant was sentenced to six years in the Department of Correction as a Range I, standard offender for the felony conviction and eleven months and twenty-nine days in the county jail for the misdemeanor conviction. The sentences were imposed consecutively. In this appeal, the defendant challenges the length of the effective six-year, eleven month, and twenty-nine day sentence. We hold that the trial court arrived at the proper sentences and affirm its judgments.

http://www.tba2.org/tba_files/TCCA/2007/osbornej_102207.pdf


STATE OF TENNESSEE v. REGINALD CORTEZ RICHARDSON

Court: TCCA

Attorneys:

Ken Seaton, Selmer, Tennessee, for the Appellant, Reginald Cortez Richardson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Cameron Williams, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Reginald Cortez Richardson, was convicted by a McNairy County jury of two counts of Class B delivery of cocaine and was sentenced, as a Range II offender, to concurrent twelve-year sentences in the Department of Correction. On appeal, Richardson raises the single issue of whether the evidence is sufficient to support his convictions. Following review, the judgments of conviction are affirmed.

http://www.tba2.org/tba_files/TCCA/2007/richardsonr_102207.pdf


STATE OF TENNESSEE v. WILLIAM TYLER RYAN

Court: TCCA

Attorneys:

Joseph H. Crabtree, Jr., Sweetwater, Tennessee, for the appellant, William Tyler Ryan.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; J. Scott McCluen, District Attorney General; and FrAttorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, William Tyler Ryan, pled guilty to one count of reckless endangerment with a deadly weapon, a Class E felony. Following a sentencing hearing, the trial court denied the defendant's request for judicial diversion and ordered the defendant to serve his sentence of one year on supervised probation. On direct appeal, the defendant argues the trial court erred in denying judicial diversion by failing to state its reasoning for denial on the record. After review, we reverse the sentencing decision of the trial court and remand the matter to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2007/ryanw_102207.pdf


STATE OF TENNESSEE v. EDWARD EUGENE SWAFFORD, Sr.

Court: TCCA

Attorneys:

Emma Rae Tennent, Assistant Public Defender, Nashville, Tennessee, for the appellant, Edward Eugene Swafford, Sr.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kristen Shea, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Edward Eugene Swafford, Sr., pled guilty to driving under the influence but reserved the right to appeal a dispositive certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(A) -whether his arrest was supported by probable cause. We conclude that there was probable cause to arrest the Defendant and that therefore the trial court did not err in denying his motion to suppress evidence obtained after he was arrested. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/swafforde_102207.pdf


TODAY'S NEWS

Legal News
Knox Term Limits
Passages
Upcoming
TBA Member Services

Legal News
State Supreme Court: Payne's execution date stands
The Tennessee Supreme Court denied a request today to void a scheduled December execution date of Pervis T. Payne. Payne argued that the execution date should be voided, awaiting the U.S. Supreme Court's hearing of a Kentucky case on the constitutionality of lethal injection, as well as awaiting the state's appeal of a federal judge's order that Tennessee's lethal injection protocol was unconstitutional. Read the unanimous order here.
The City Paper has the story
Deadline tomorrow: 5 more added to list for appeals court
Recent applicants for the Court of Appeals vacancy created by the death of Judge Cain are: Appellate Court Clerk Michael W. Catalano, Nashville; 22nd Judicial District Deputy District Attorney Richard Hannah Dunavant, Pulaski; Nashville attorney John D. Kitch; Russell Taylor Perkins, Tennessee Attorney General's Office, Whites Creek; Nashville attorney Mary Martin Schaffner; and Assistant Attorney General Juan Gonzalo Villasenor, Nashville. There are now 12 applicants for the position. The deadline for applicant questionnaires to be received by the Administrative Office of the Courts is tomorrow, Oct. 23.
Find out more or download forms
Circuit court docket to be heard at law school
In support of Domestic Violence Awareness Month, Judge Bill Swann will hold the Fourth Circuit Court docket at the UT College of Law on Oct. 25. Court will begin at 8 a.m. with a lecture by Judge Swann about domestic violence and orders of protection. Hearings are scheduled to begin at 9 a.m. and will continue until 4:30 p.m., with a break for lunch. Swann and two special masters are likely to hear matters involving the granting of civil protection orders as well as contempt proceedings, UT's newsletter, The Informant, reports. Issues likely to arise include domestic abuse, substance abuse, family law, criminal assault, and civil procedure. All events will be open to the public.

Teachers of Bible class trained in First Amendment
In Wilson County, high schools now offer an elecitive course about the Bible, which sparked debate earlier this year when the school board approved it. Teachers of the class have been instructed extensively on the basics about the separation of church and state and the free exercise of religion. East Tennessee lawyer Oliver Thomas, a national expert on religious liberties, instructed teachers on how they could avoid problems with the separation of church and state. Thomas is also a minister, author and a consultant with the First Amendment Center.
The Tennessean has the story
Hamilton magistrates to be selected this week
Hamilton County's four judicial commissioner slots must be filled by the end of the month when the contracts for current magisrates expire; the decision will be made Wednesday. Each of the members of two Hamilton County Commission panels on Friday named his top candidates. The only one of the 16 applicants to receive a vote from all six members of the Legal and Legislative and Security and Corrections committees was Yolanda Mitchell, a Chattanooga attorney and former assistant district attorney. Current Chief Judicial Commissioner Bob Meeks and Assistant District Attorney Larry Ables each received five votes. Judicial Commissioner James Anderson received four votes.
Read more in the Chattanooga Times Free Press
Miss. judge in trouble for giving litigants legal advice
The Mississippi Supreme Court has ordered a public reprimand for a judge who improperly encouraged a woman to file charges in his court against two men accused of trespassing and malicious mischief. On Thursday, the Supreme Court also suspended Monroe County Justice Court Judge Robert Earl Fowlkes without pay for one month.
The Commercial Appeal has more
Miller named chair of ABA committee
Memphis attorney Rebecca Miller of Crone & Mason PLC was recently appointed chair of the Child Support Committee for the Family Law Section of the American Bar Association. The ABA Family Law Section has more than 10,000 lawyer, associate and law student members across the country and worldwide.

Knox Term Limits
Editorial: Open meetings law is for public, not just media
Chattanooga Times Free Press Publisher and Executive Editor Tom Griscom summarizes the recent Knox County lawsuit between commissioners and the News-Sentinel in this editorial. He writes that the "Tennessee law as it relates to open meetings is not for the media; it is for the public, and it is for accountability in government." Citing Knox County elected officials' suggestion "that public notice advertisements that are printed in the Knoxville News-Sentinel should be stopped," he writes that "when the forces of government are even raised as a threat to stop public inquiry and public dialogue, it is time for the public to say, 'Enough.'"
Read the editorial in the News Free Press
Passages
Former attorney general Deatherage dies
H. Kenneth Deatherage, who served as attorney general for the 4th Judicial District from 1970 to 1982, died Thursday in Knoxville. He was 84. In lieu of flowers, the family requests that donations in his honor be made to the Operation Freedom Fund at the First Baptist Church, Kingston, or to The King's Academy, (865) 573-8321, 202 Smothers Road, Seymour, TN 37865.
Read more in the News Sentinel
Upcoming
Pet costume contest to benefit advocacy center
Law Women and the UT Animal Law Project will host a Pet Halloween Costume Contest Oct. 28 in Knoxville's Victor Ashe Park at 1:30 p.m. Entry fee is $5 for each pet. All proceeds will benefit the Victim's Advocacy Center and the local humane society. Register by Oct. 25 by emailing Sarah White (include your pet's name and your contact info). Prizes for first, second and third places will be awarded.

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