Sotomayor hearings cover sentencing, national security

Supreme Court nominee Sonia Sotomayor was questioned on a range of topics on this the second day of hearings -- under discussion was sentencing, national security and an explanation of a comment she had made using the term "wise Latina." The ABA Journal has hour-by-hour coverage.

Late in the day she indicated in response to a question that she disagreed with the man who appointed her to the high court. President Barack Obama has said that judges in difficult cases sometimes find the right decision based on what's in their heart, The National Law Journal reports. "I don't approach the issue of judging in the same way the president does," she said matter-of-factly. "Judges cannot rely on what's in their heart."

Eleven of 19 senators completed today's questioning with the remaining eight to go tomorrow before the committee breaks into a private session with Sotomayor. The questioning begins again tomorrow at 9:30 ET.
TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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IN THE MATTER OF: L.M.S.

Court: TCA

Attorneys:

Elizabeth L. Youmans, Lebanon, Tennessee, for the appellant, C.S.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Lindsey O. Appiah, Assistant Attorney General, for the State of Tennessee, Department of Children's Services.

Judge: CLEMENT

The mother of a ten-year-old child appeals the termination of her parental rights. The child was removed due to alleged sexual abuse of the child by the mother's husband and the fact that the mother could not or would not protect the child from further abuse by her husband and other registered sexual offenders in the mother's immediate family. After months of the Department's reasonable but unsuccessful efforts to help the mother remedy the conditions that led to the removal of the child, the Department filed a petition to terminate the mother's parental rights. Following a three day trial, the trial court found that the mother had failed to substantially comply with the requirements of the permanency plans, that the conditions that led to the removal persisted, and that termination was in the best interests of the child. The mother appealed contending the evidence was insufficient to prove the requisite grounds by clear and convincing evidence. We affirm.

http://www.tba2.org/tba_files/TCA/2009/lms_071409.pdf


STATE OF TENNESSEE v. CRAIG ABSTON

Court: TCCA

Attorneys:

William D. Massey and Lorna S. McClusky, Memphis, Tennessee (on appeal); and Alan Chambers and Handel R. Durham, Jr., Memphis, Tennessee (at trial), for the appellant, Craig Abston

Robert E. Cooper, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; Paul Hagerman, Assistant District Attorney General; Valerie Smith, Assistant District Attorney General, for the Appellee, the State of Tennessee.

Judge: WOODALL

Defendant, following a jury trial, was convicted of one count of second degree murder and two counts of attempted second degree murder. The trial court sentenced Defendant to twenty years for Count 1, second degree murder, twelve years for Count 2, attempted second degree murder, and eight years for Count 3, attempted second degree murder. Counts 1 and 2 were ordered to run concurrently to each other but consecutively to Count 3 for a total effective sentence of twenty-eight years. On appeal, Defendant argues: (1) the trial court erred in its remarks to the jury venire; (2) the trial court erred in allowing the testimony of Sergeant Berryman that Defendant had two gold teeth at the time he was interviewed; and (3) the trial court erred in imposing consecutive sentencing. After a thorough review of the record, we affirm the convictions. We reduce the sentence in Count 2 from twelve years to eight years. Further, we reverse the judgments only insofar as they order consecutive sentencing, and remand for a new sentencing hearing solely to determine whether consecutive sentencing should be imposed.

http://www.tba2.org/tba_files/TCCA/2009/abstonc_071409.pdf


STATE OF TENNESSEE v. JOHNNY L. BURNS

Court: TCCA

Attorneys:

Jeffrey DeVasher, Assistant Public Defender, (on appeal); Virginia Foard and Amy Goodwin, Assistant Public Defenders (at trial), Nashville, Tennessee, for the appellant, Johnny L. Burns.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Johnny L. Burns, was originally tried and convicted of one count of selling less than .5 grams of cocaine within 1000 feet of a school, a Class B felony. Due to an error in jury instructions, this Court reversed and remanded his case for a new trial. See State v. Johnny L. Burns, No. M2005-01945-CCA-R3-CD, 2007 WL 595632, (Tenn. Crim. App., Nashville, Feb. 26, 2007). The Defendant was retried and again convicted of one count of selling less than .5 grams of cocaine within 1000 feet of a school. In this appeal, he contends that the trial court erred because it: (1) denied his request for supplementary police reports that he claims contain exculpatory information; (2) refused to admit into evidence a photograph used by the defense in cross-examination; (3) denied his motion for a mistrial due to improper remarks made by the prosecutor during closing argument; and (4) failed to instruct the jury on the lesser-included offense of attempted sale of less than .5 grams of cocaine within 1000 feet of a school. After our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/burnsj_071409.pdf


STATE OF TENNESSEE v. MARICO FOWLER

Court: TCCA

Attorneys:

Larry E. Fitzgerald, Memphis, Tennessee, for the appellant, Marico Fowler.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Scot Bearup, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Marico Fowler, was convicted of aggravated assault, a Class C felony, reckless endangerment, a Class A misdemeanor, reckless endangerment with a deadly weapon, a Class E felony, and vandalism, a Class A misdemeanor. At the conclusion of the sentencing hearing, the trial court sentenced Defendant to concurrent sentences of eleven months, twenty-nine days for vandalism, eleven months, twenty-nine days for reckless endangerment, three years for reckless endangerment with a deadly weapon, and ten years for aggravated assault, for an effective sentence of ten years. The felony sentences are as a Range II multiple offender. The trial court ordered Defendant to serve his sentences in confinement. On appeal, Defendant argues that the trial court erred in denying his request for alternative sentencing. After a thorough review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/fowlerm_071409.pdf


STATE OF TENNESSEE v. JESSE WADE GLOVER

Court: TCCA

Attorneys:

Joseph P. Atnip, District Public Defender, Dresden, Tennessee, for the appellant, Jesse Wade Glover.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and Jim T. Cannon, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Jesse Wade Glover, was indicted in count one for initiation of a process to manufacture methamphetamine by beginning the extraction of an immediate methamphetamine precursor from a chemical product, a Class B felony, in count two for promotion of methamphetamine manufacture by possessing more than 9 grams of an immediate methamphetamine precursor with the intent to manufacture methamphetamine, a Class D felony; in count three for promotion of methamphetamine manufacture by acquiring a chemical and an ingredient that could be used to produce methamphetamine knowing that it would be used to produce methamphetamine, a Class D felony; and in count four for possession of drug paraphernalia, a Class A misdemeanor. Defendant was tried jointly with co-defendant, Britt Alan Ferguson. Co-defendant Ferguson's case is not part of this appeal. Following a jury trial, Defendant was found not guilty of the charges in counts one, two, and four, and guilty of the lesser-included offense of facilitation of the promotion of methamphetamine manufacture, a Class E felony, in count three. The trial court sentenced Defendant as a Range II, multiple offender, to four years. On appeal, Defendant argues that the evidence was insufficient to support his conviction of facilitation of promotion of methamphetamine manufacture. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/gloverj_071409.pdf


WILLIAM M. PUTMAN v. RICKY BELL, WARDEN

Court: TCCA

Attorneys:

William M. Putman, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Cameron L. Hyder, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The pro se petitioner, William M. Putman, challenges the summary dismissal of his petition for writ of habeas corpus. Following our review, we affirm the dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2009/putmanw_071409.pdf


KENT GARY TISCHER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jerry W. Matthews, Woodbury, Tennessee, for the appellant, Kent Gary Tischer.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William Whitesell, District Attorney General; and David L. Puckett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Kent Gary Tischer, appeals as of right the Cannon County Circuit Court's denial of his petition for post-conviction relief. The Petitioner alleges that his guilty pleas to two counts of aggravated vehicular homicide, Class A felonies, were not voluntarily, knowingly, and understandingly made due to the ineffective assistance of counsel. Specifically, he contends that he was not able to consult with his newly appointed co-counsel prior to the sentencing hearing, thereby prohibiting him from making an informed decision to plead guilty. After the appointment of counsel and a full evidentiary hearing, the post-conviction court found that the Petitioner failed to prove his allegations by clear and convincing evidence and denied the petition. Following our review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/tischerk_071409.pdf


TODAY'S NEWS

Legal News
Passages
Disciplinary Actions
TBA Member Services

Legal News
75 apply for judicial commission so far
With two more weeks to go before the July 31 cutoff for application to serve on the new Judicial Nominating Commission, 75 people have put themselves forward as candidates. The TBA Board of Governors will hold a special meeting on Aug. 13 to make its recommendations on filling the commission seats designated for lawyers.
Details on how to apply are on the AOC web site
CLE not TBA-approved, as marketed
A Florida company marketing continuing legal education seminars through emails has agreed to remove misleading language from its promotions. The emails said the seminars were "Tennessee Bar Approved," but in fact are not endorsed by the Tennessee Bar Association. A company spokesperson told TBA Executive Director Allan Ramsaur that the intended message was that the the seminars were approved by the Tennessee Commission on Continuing Legal Education and Specialization, not the TBA, and agreed to change the wording.

To much information in voir dire could send lawyer to jail
You really need to consider what you're going to ask a potential juror in voir dire -- and how you're going to ask it. A federal judge has found patent lawyer John van Loben Sels in contempt of court and threatened him with a 48-hour jail sentence for a question he asked during voir dire. Van Loben Sels asked potential jurors in a patent infringement suit whether they had "a problem with a company that puts its headquarters offshore on a Caribbean island in order to avoid paying U.S. taxes."
ABAJournal.com connects reports
Restaurant owners steel against new law
Nashville-area restaurant owners are preparing for a new law allowing guns in Tennessee restaurants and bars unless owners opt out and ban firearms in their establishments. The law took effect at midnight after a Davidson County chancellor denied a request to issue an injunction as part of a legal challenge presented Monday.
The Tennessean has the story
Congressional investivation possible in al-Qaeda cover up
Did former Vice President Dick Cheney order the CIA to keep Congress in the dark about a program to capture or kill al-Qaeda leaders? NPR Senior Washington Editor Ron Elving, Reps. Jan Schakowsky and Peter Hoekstra discuss a potential congressional investigation.
NPR's Talk of the Nation explores
Passages
Nashville lawyer Jimmy Dale dies
Nashville lawyer James Crosswy (Jimmy) Dale III died July 10. He was 73. After serving in the Navy, he graduated from Vanderbilt School of Law in 1963. A memorial service was held at First Presbyterian Church yesterday. In lieu of flowers, the family requests that donations be made to Nashville School of Law, 4013 Armory Oaks Drive, Nashville, TN 37024.
Read more about him
Disciplinary Actions
Chattanooga lawyer suspended
Chattanooga lawyer Jes Beard was suspended from the practice of law July 9 for two years. Beard violated disciplinary rules by failing to properly draw a final decree, by giving advice to his client to settle for $10,000 without first reading the memorandum opinion that the court had already rendered and which was in Beard's possession, and by filing false pleadings and a false affidavit of his client.
Read the BPR release
TBA Member Services
Discounts from Office Depot
Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from Office Depot.
Find out more

 
 
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