Justice Department to begin indigent defense program

The Justice Department is on the verge of launching a new program to help low-income people receive legal help, to be called the Access to Justice Initiative. Professor Laurence Tribe, reportedly one of the top constitutional lawyers in the country, will take a leave of absence from Harvard to spearhead the project. Tribe will coordinate with judges and lawyers across the country with the goal of finding ways to help people who cannot afford a lawyer. The project will use a reallocation of money already in the Justice Department's budget, according to a Justice official.

Saying the system is in "crisis" recently at an indigent defense symposium in Washington, D.C., Attorney General Eric Holder added that, "Although they may stand on different sides of an argument, different sides of a courtroom, the prosecution and defense can and must share the same objective: Not victory, but justice."

Find out more from National Public Radio

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.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
06 - TN Court of Appeals
11 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

CHRISTINA ALTICE v. NATS, INC. ET AL.

Court: TCA

Attorneys:

Thomas J. Hendrickson III, Nashville, Tennessee, for the appellant, Christina Altice.

Stanley A. Kweller, Nashville, Tennessee, for the appellee, Mary Friddell.

Charles J. Friddell, Nashville, Tennessee, Pro Se.

Judge: BENNETT

Judgment creditor sued defendants to collect a judgment against a defunct nonprofit corporation, claiming defendants were the alter egos of the defunct corporation. In a prior appeal, this court instructed the parties to focus on whether certain transactions were or were not loans. If they were loans, then the plaintiff could not prove her case to make the defendants responsible for the judgment against the defunct corporation. The trial court found that the transactions were loans. We affirm.

http://www.tba2.org/tba_files/TCA/2010/alticec_022610.pdf


ELLEN JANE SIMON BARNETT v. ROBERT LYNN BARNETT

Court: TCA

Attorneys:

Robert Lynn Barnett, Johnson City, Tennessee, appellant, Pro Se.

Judith Fain, Johnson City, Tennessee, for the appellee, Ellen Jane Simon Barnett.

Judge: SUSANO

Ellen Jane Simon Barnett ("Wife") initiated this litigation by filing her complaint for divorce from Robert Lynn Barnett ("Husband"). Husband answered and coupled it with a counterclaim for divorce. By agreement, Wife was allowed to amend her complaint to add allegations that a trust created by Husband during the marriage was null and void and to add Karen Lewis, in her capacity of trustee, as a party defendant. On February 19, 2008, again by agreement of the parties, the trial court entered a judgment of divorce, certified as final pursuant to Tenn. R. Civ. P. 54.02, reserving ruling on all other issues. Shortly thereafter, the court granted a motion filed by Wife to declare that the trust was void ab initio, and that any property held in the name of the trust would be treated as the property of one or both of the parties. The court referred all property and child support issues to a special master who held an evidentiary hearing and issued a report and recommendation. Both parties lodged objections to portions of the special master's filing. On August 28, 2008, the trial court entered a judgment dealing with all property issues and incorporating a permanent parenting plan. On September 25, 2008, Husband, then proceeding pro se, filed a motion for new trial in which he re-argued almost every issue in the case. In an order filed November 6, 2008, the trial court denied Husband's motion for new trial, and ruled on other matters related to contempt of Husband and enforcement of the judgment. On December 4, 2006, Husband filed his notice that he was appealing from the judgment of "11/6/08." Wife asks that we find the appeal to be frivolous and charge Husband with her attorney's fees. We affirm the judgment of the trial court, and award Wife her reasonable attorney's fees and expenses for defending a frivolous appeal.

http://www.tba2.org/tba_files/TCA/2010/barnette_022610.pdf


IN RE: DRAVYN L.D.

Court: TCA

Attorneys:

Adam Wilding Parrish, Lebanon, Tennessee, for the appellant, Candis D.

Robert E. Cooper, Jr., Attorney General and Reporter and Douglas Earl Dimond, Senior Counsel, Office of Attorney General and Reporter, Nashville, Tennessee, for the appellee, State of Tennessee Department of Children's Services.

Judge: SUSANO

The Tennessee Department of Children's Services ("DCS") filed a petition to terminate the parental rights of Candis D. ("Mother") with respect to her minor daughter, Dravyn L.D. ("the Child"). The petition alleged multiple incidences of abandonment, substantial noncompliance with a permanency plan, and persistent conditions. The juvenile court terminated Mother's parental rights upon finding that each of the grounds alleged were established by clear and convincing evidence. Mother appeals. She contends that DCS's handling of the case effectively denied her the right to due process. She further challenges the juvenile court's finding that she was in substantial noncompliance with the permanency plan. We affirm.

http://www.tba2.org/tba_files/TCA/2010/dravyn_022610.pdf


IN THE MATTER OF: THE ESTATE OF ANNA SUE DUNLAP, DECEASED, RICHARD GOSSUM, ADMINISTRATOR CTA

Court: TCA

Attorneys:

James S. Haywood, Jr., Brownsville, Tennessee, for the appellants, Warner B. Dunlap, Jr. and Dr. Mary Fowler Dunlap Wells.

Richard Gossum, Trenton, Tennessee, for the appellee, The Estate of Anna Sue Dunlap, Deceased, Richard Gossum, Administrator.

Judge: FARMER

This dispute involves the administration of a decedent's estate. The chancery court removed the decedent's children as co-administrators of her estate because they were unable to peaceably complete their duties. The court appointed a successor administrator whose job was made difficult by continued infighting between the interested parties. Nevertheless, the successor administrator proceeded with his duties and proposed a final accounting five years after the estate was opened. The appellants responded to the proposed accounting with an objection and a motion for continuance. The chancery court denied the motion for continuance and approved the final accounting. The court later denied the appellants' motion to alter or amend or for new trial and closed the estate. We affirm.

http://www.tba2.org/tba_files/TCA/2010/dunlapa_022610.pdf


WANDA F. DYKES, INDIVIDUALLY AND AS THE EXECUTRIX OF THE ESTATE OF RONALD DYKES, BY AND THROUGH WANDA F. DYKES v. THE CITY OF ONEIDA ET AL.

Court: TCA

Attorneys:

Brandon K. Fisher, Clinton, Tennessee, for the appellant, Wanda F. Dykes.

Benjamin K. Lauderback and Sarah E. Larkin, Knoxville, Tennessee, for the appellee, The City of Oneida.

Judge: SUSANO

In this action, Wanda F. Dykes ("the plaintiff") filed suit against the City of Oneida ("the defendant") for the alleged wrongful death of her husband, Ronald Dykes. Her claim is based upon her allegation that police officers employed by the defendant were negligent in not calling for medical help when they responded to a call and found Ronald Dykes asleep and unresponsive in his home. They left him as they found him without calling for medical assistance. Mr. Dykes was found the next morning dead of a heart attack in the same recliner where the officers found him. The thrust of the complaint is that, had the officers summoned medical help, Mr. Dykes' heart attack and resulting death could have been prevented. The defendant moved for summary judgment asserting, among other things, that the plaintiff cannot prove her theory of causation. While the motion was pending, the trial court, on four separate occasions, continued the hearing with respect to it, in order to give the plaintiff an opportunity to find and produce an expert to make out her case. When the motion was finally heard, the record contained the affidavit of a medical doctor stating that the failure of the officers to seek medical treatment for Mr. Dykes "may have allowed his condition to worsen and cause his death." The record also contained the same doctor's deposition testimony wherein he testified that he could not say Mr. Dykes would have survived if he had received prompt medical attention. The trial court granted the defendant summary judgment. The plaintiff appeals. We vacate the trial court's grant of summary judgment and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/dykesw_022610.pdf


WILHELMENA SCOTT v. JAMES E. HOUSTON, INDIVIDUALLY AND DBA SHALLOWFORD AUTO SALES, INC. ET AL.

Court: TCA

Attorneys:

Paul Hensley, Knoxville, Tennessee, for the appellants, James E. Houston, individually and dba Shallowford Auto Sales, Inc.

William J. Brown, Cleveland, Tennessee, for the appellee, Wilhelmena Scott.

Judge: SUSANO

Wilhelmena Scott ("the plaintiff") purchased a 1997 Lexus automobile from her employer, James E. Houston ("the defendant") in May 2003. The purchase was routed through a sales contract with Shallowford Auto Sales. The contract recites a purchase price of $18,3531 payable in 22 installments of $800 and a final payment of $753. The contract sets the interest rate at "0" but imposes a "late charge" of $100 for any payment more than five days late. The defendant repossessed the Lexus after the plaintiff had paid $18,600 and had asked for her title. Also, the repossession came after the plaintiff had cooperated with the FBI in securing the conviction of the defendant for operating an illegal gambling business and money laundering. The plaintiff sued the defendant alleging in her complaint that the repossession was wrongful and undertaken by the defendant in retaliation for the plaintiff's cooperation in his prosecution. The complaint included a demand for punitive damages. The defendant filed a counterclaim seeking what he claimed was a balance due based on late fees and the cost of repossessing the automobile. Following a bench trial, the court found (1) that the defendant waived the late fees by continually accepting late payments without protest, (2) that the repossession was wrongful and in retaliation, and (3) that the plaintiff sustained damages of $16,635.02. On post-trial motions, the court sustained its earlier order and held, additionally, that although the defendant's actions warranted punitive damages, the law did not allow them in this type of case. The defendant appealed, challenging both liability and damages. The plaintiff raises issues concerning the amount of damages and the trial court's refusal to consider punitive damages. We affirm in part and reverse in part and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/scottw_022610.pdf


STATE OF TENNESSEE v. CHRISTOPHER M. BLACK

Court: TCCA

Attorneys:

Richard Tennent, Nashville, Tennessee, for the Defendant-Appellant, Christopher M. Black.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth Bingham Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Deborah Housel and Roger Moore, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

Defendant-Appellant, Christopher M. Black, was convicted by a Davidson County Jury of two counts of aggravated rape, a Class A felony, and two counts of aggravated robbery, a Class B felony. For each aggravated rape conviction, Black received a twenty-year sentence to be served consecutively to one another. For each aggravated robbery conviction, Black received a ten-year sentence to be served concurrently with one another. The trial court ordered the aggravated rape sentences to be served consecutively to the aggravated robbery sentences, for an effective sentence of fifty years. On appeal, Black argues that (1) the evidence was insufficient to support his convictions; (2) the prosecution failed to establish a legitimate chain of custody for the evidence swabs collected from the crime scene; (3) it was constitutionally improper to allow a witness, Dwight Brewer, to identify Black at trial; (4) it was improper to admit proof of the original "CODIS hit" without establishing a chain of custody; and (5) the imposition of consecutive sentencing was improper. We affirm Black's convictions but remand for a resentencing hearing regarding Black's sentencing status with respect the 2005 sentencing act and regarding the issue of consecutive sentencing.

http://www.tba2.org/tba_files/TCCA/2010/blackc_022610.pdf


STATE OF TENNESSEE v. J. STEVEN BRASFIELD

Court: TCCA

Attorneys:

J. Diane Blount (at trial and on appeal), Trenton, Tennessee, and Tom W. Crider (on appeal), Trenton, Tennessee, for the Appellant, J. Steven Brasfield.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Sophia S. Lee, Assistant Attorney General; Garry G. Brown, District Attorney General; Hal Dorsey, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, J. Steven Brasfield, pled guilty to three counts of violating trapping regulations. The trial court sentenced the Defendant to serve thirty days of probation and ordered him to pay $5500 in restitution. On appeal, the Defendant contends that restitution is not proper in this case and that the trial court erred when it set the amount of restitution. After a thorough review of the evidence and the applicable authorities, we reverse and remand the case for the trial court, in determining the appropriate restitution in this case, to consider the Defendant's financial resources and ability to pay.

http://www.tba2.org/tba_files/TCCA/2010/brasfieldj_022610.pdf


STATE OF TENNESSEE v. ANTHONY J. FULMER

Court: TCCA

Attorneys:

Roger Eric Nell, District Public Defender; Collier W. Goodlett, Assistant Public Defender, Clarksville, Tennessee, for the appellant, Anthony Fulmer.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Anthony John Fulmer, was indicted in count one of the indictment for aggravated rape by vaginal sexual penetration, in count two for aggravated rape by anal sexual penetration, in count three for aggravated rape by vaginal sexual penetration, in count four for aggravated rape by cunnilingus, all Class A felonies, and in count five for aggravated burglary, a Class C felony. Following a jury trial, Defendant was found not guilty of aggravated rape as charged in counts two and four of the indictment. The jury found Defendant guilty of aggravated rape as charged in counts one and three. The trial court granted Defendant's motion for judgment of acquittal as to the aggravated burglary charge. The trial court sentenced Defendant as a Range II, multiple offender, to concurrent sentences of twenty-seven years for his two aggravated rape convictions, for an effective sentence of twenty-seven years. On appeal, Defendant challenges the trial court's instructions to the jury on the requisite mental state for the offense of aggravated rape. After a thorough review, we affirm the convictions and sentences but remand for entry of corrected judgments to reflect that Defendant is classified as a multiple rapist rather than a child rapist as indicated on the forms.

http://www.tba2.org/tba_files/TCCA/2010/fulmera_022610.pdf


STATE OF TENNESSEE v. CEDRIC JOHNSON

Court: TCCA

Attorneys:

Jeff Woods, Memphis, Tennessee, for the Defendant-Appellant, Cedric Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Rachel Newton, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Cedric Johnson, was convicted by a Shelby County jury of one count of reckless endangerment, a Class A misdemeanor, and was sentenced to eleven months and twenty-nine days of confinement at the county workhouse, with six months of the sentence to be suspended. On appeal, Johnson argues that the trial court erred in failing to set a minimum service percentage for his sentence. Upon review, we affirm the judgment of the trial court and remand for entry of a corrected judgment.

http://www.tba2.org/tba_files/TCCA/2010/johnsonc_022610.pdf


JAMES FRANCIS LORENZ v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Crystal Myers, Assistant Public Defender, Clarksville, Tennessee, for the appellant, James Francis Lorenz.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner pleaded guilty to rape in December, 1961, and a jury sentenced him to life imprisonment. He now appeals the judgment of the Montgomery County Circuit Court denying post-conviction relief. The petitioner asserts that his constitutional rights were violated in 1961 when he (1) was not represented by counsel at a juvenile court hearing, (2) was not informed that he could appeal the juvenile court's decision to bind him over to criminal court, (3) was represented by ineffective counsel in criminal court, and (4) pleaded guilty involuntarily. Following our review of the record and the parties' briefs, we affirm the judgment of the post-conviction court denying relief.

http://www.tba2.org/tba_files/TCCA/2010/lorenzj_022610.pdf


STATE OF TENNESSEE v. LANDON McCONAUGHY

Court: TCCA

Attorneys:

Daniel J. Taylor, Jackson, Tennessee, for the Defendant-Appellant, Landon McConaughy.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Jerry Woodall, District Attorney General; and Brian Gilliam, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Landon McConaughy, was arrested after a valid traffic stop, and various contraband was seized from his person and his vehicle. He filed a motion to suppress all evidence seized as a result of the traffic stop, which was denied by the Madison County Circuit Court. McConaughy subsequently pled guilty to possession of methamphetamine with intent to sell, a Class C felony, and possession of drug paraphernalia, and possession of a prohibited weapon, both Class A misdemeanors. He received an effective sentence of five years. Pursuant to Tennessee Rule of Criminal Procedure 37, McConaughy properly reserved three certified questions of law alleging violations of his rights under the Fourth Amendment of the U.S. Constitution and Article 1, Section 7 of the Tennessee Constitution: (1) "whether the scope of his detention following the traffic stop was exceeded by [the arresting officer], without reasonable suspicion or probable cause;" (2) "whether [the arresting officer] had sufficient reasonable suspicion that McConaughy was armed in order to justify a Terry style pat- down;" and (3) "whether [the arresting officer] exceeded the scope of a Terry pat-down." Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/mcconaughyl_022610.pdf


STATE OF TENNESSEE v. GARY LYNN MORGAN

Court: TCCA

Attorneys:

Melissa L. Thomas, Fayetteville, Tennessee, for the appellant, Gary Lynn Morgan.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Charles Crawford, District Attorney General; and Ann L. Filer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Gary Lynn Morgan, pleaded guilty, just prior to trial and in front of the jury, to two counts of evading arrest, one a felony and the other a misdemeanor. He proceeded to trial on the remaining counts of the indictment, and the jury found the Defendant guilty. On appeal, the Defendant argues that, because the trial court failed to question him in accordance with constitutional and supervisory authority mandates, the trial court erred by denying his request to set aside his guilty pleas. Finding no reversible error, we affirm the judgments of the Lincoln County Circuit Court. We remand solely for the purpose of entry of corrected judgments.

http://www.tba2.org/tba_files/TCCA/2010/morgang_022610.pdf


TERRANCE D. NICHOLS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

R. Andrew Hutchinson and Matthew S. Lyons, Memphis, Tennessee, for the appellant, Terrance D. Nichols.

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

Judge: WILLIAMS

The petitioner, Terrance D. Nichols, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief. The petitioner is currently serving a sentence of life with parole following his conviction for first degree murder. On appeal, he raises the single issue of whether the post-conviction court erred in concluding that he received the effective assistance of counsel. The State argues that the petition for post-conviction relief was untimely and, despite being heard and ruled upon by the post-conviction court, asserts this court lacks jurisdiction to entertain review. We agree that the record supports this argument; therefore, the appeal must be dismissed.

http://www.tba2.org/tba_files/TCCA/2010/nicholst_022610.pdf


STATE OF TENNESSEE v. CALVIN JEROME OLIVER

Court: TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Calvin Jerome Oliver.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

On June 19, 2002, Defendant, Calvin Jerome Oliver, entered pleas of guilty to aggravated robbery, a Class B felony; aggravated burglary, a Class C felony; two counts of attempted aggravated robbery, a Class C felony; and three counts of aggravated assault, a Class C felony, with sentencing determinations left to the trial court. The trial court merged the two attempted aggravated robbery convictions into the aggravated robbery conviction and sentenced Defendant as a Range II, multiple offender, to eighteen years for his aggravated robbery conviction. The trial court sentenced Defendant to seven years for the aggravated burglary conviction and eight years for each aggravated assault conviction, all to be served concurrently to each other but consecutively to the eighteen-year sentence, for an effective sentence of twenty-six years. Defendant's convictions and sentences were affirmed on appeal. State v. Calvin Jerome Oliver, No. M2002-02438-CCA-R3-CD, 2003 WL 21997736 (Tenn. Crim. App., at Nashville, Aug. 21, 2003). The denial of Defendant's petition for post- conviction relief was affirmed on appeal. Calvin Jerome Oliver, No. M2004-01564-CCA- R3-PC, 2005 WL 552897 (Tenn. Crim. App., at Nashville, May 3, 2005), perm. to appeal denied (Tenn. May 23, 2005). Defendant filed a petition for habeas corpus relief in federal court. The United States District Court for the Middle District of Tennessee held that Defendant received ineffective assistance of counsel at the sentencing phase because his trial counsel failed to introduce expert medical testimony concerning Defendant's mental condition as a mitigation factor in determining the length of Defendant's sentence and remanded for a new sentencing hearing. Calvin Oliver v. Tony Parker, Warden, No. 1:05- 00058, 2007 WL 4570355, at *1 (M. D. Tenn. Dec. 21, 2007). Following a resentencing hearing, the trial court again sentenced Defendant to an effective sentence of twenty-six years. On appeal, Defendant argues that the length of his sentences violate the principles of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). After a thorough review, we conclude that the trial court improperly considered enhancement factors other than Defendant's prior convictions in determining the length of Defendant's sentences. Accordingly, we remand for resentencing on all convictions in compliance with Blakely, Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856 (2007), and State v. Gomez, 239 S.W.3d 733 (Tenn. 2007).

http://www.tba2.org/tba_files/TCCA/2010/oliverc_022610.pdf


ROLAND R. SMITH v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Roland R. Smith, Whiteville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Matthew Bryant Haskell, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Pamela Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Roland R. Smith, was originally indicted for multiple crimes involving a minor victim, including six counts of rape of a child and nine counts of statutory rape. The original indictment was amended, omitting the six counts of rape of a child, and the jury found him guilty of the remaining charged offenses. On direct appeal, this Court reversed and dismissed the charge in one of the Petitioner's statutory rape convictions and reversed and remanded for retrial four of the Petitioner's statutory rape convictions. Upon motion by the State, the trial court subsequently dismissed the four charges of statutory rape that had been remanded by this Court. While the Petitioner's direct appeal was pending, the Petitioner filed a motion to expunge his record of the six counts of rape of a child, which the trial court denied after finding that the Petitioner was statutorily ineligible for the expungement he sought. The Petitioner then filed a petition for writ of certiorari, requesting that the trial court reconsider its order denying his earlier motion. The trial court dismissed the petition, finding that the Petitioner's remedy was to appeal its previous order denying his motion for expungement. The Petitioner filed this appeal contending that he was never made aware of the order denying his motion for expungement and that we should review his petition for writ of certiorari and grant his request for expungement. After a thorough review of the record and applicable authorities, we reverse the judgment of the trial court and remand for entry of an order of expungement of all public records relating to the six counts of rape of a child and five counts of statutory rape.

http://www.tba2.org/tba_files/TCCA/2010/smithr_022610.pdf


STATE OF TENNESSEE v. MICHAEL STEWART

Court: TCCA

Attorneys:

Robert W. Jones, District Public Defender; Barry W. Kuhn, Assistant Public Defender, Memphis, Tennessee, for the Defendant-Appellant, Michael Stewart.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel General; William L. Gibbons, District Attorney General; and Bryan Davis, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Michael Stewart, was convicted of destruction or interference with utility lines, a Class E felony, following a bench trial in the Criminal Court of Shelby County. He was sentenced as a multiple offender to three years and three months in the county workhouse. On appeal, Stewart claims the evidence was insufficient to support his conviction because the State did not rebut his defenses of duress and necessity beyond a reasonable doubt. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/stewartm_022610.pdf


TODAY'S NEWS

Legal News
Politics
Disciplinary Actions
Legislative News
TBA Member Services
TennBarU CLE

Legal News
NALP's summer associate changes not as drastic as predicted
The board of the National Association for Law Placement (NALP) decided today to back off a plan that would delay the summer associate offer process by as many as four months. Instead, it adopted two smaller changes to the recruiting guidelines: The deadline for students to accept offers will drop from 45 days to 28 days, and the deadline for students who have completed a summer program to accept job offers will move from Nov. 15 to Nov. 1.
Get the details from the National Law Journal
Andrew Young: Economics is next civil rights battle
Andrew Young, an activist who worked alongside Dr. Martin Luther King Jr., told about 200 who gathered Thursday for a program honoring King that black college students should pursue degrees in economics rather than law. Decades ago, black legal minds of the likes of Supreme Court Justice Thurgood Marshall helped modify the nation's laws so they could have meaning to people whose ancestors were slaves, Young said. But now, "we're in a system of capitalism and enterprise, but we do not have access to capital. There's another battle."
Read more in the Commercial Appeal
Holder, Gates tell Congress restrictions on terrorism prosecutions unwise
Attorney General Eric Holder and Defense Secretary Robert Gates are urging Congress not to restrict the executive branch from prosecuting terrorism defendants in federal courts or in reformed military commissions in the United States. Congressional restrictions on terrorism prosecutions would be unwise and set a dangerous precedent, they wrote in a joint letter. "In order to protect the American people as effectively as possible, we must be in a position to use every lawful instrument of national power -- including both courts and military commissions -- to ensure that terrorists are brought to justice and can no longer threaten American lives," they added.
WATE.com carried this AP story
Monday is last day to apply for ABA appointments
Applications are available for lawyers interested in being appointed to any of the more than 600 positions for which the American Bar Association (ABA) president makes appointments. The deadline for submitting applications is March 1. The Tennessee Bar Association's ABA Resource Committee is offering assistance to lawyers interested in applying for service on the various committees, commissions and other entities to which the ABA president appoints members. Contact ABA Resource Committee Chair Jonathan Cole or ABA State Delegate Randy Noel for further information about ways in which the committee can be of assistance.

Sign of the times?
If you have changed your mind about your chosen career, be warned that attempting to sell your law school diploma on Craigslist has already been done. Here is the listing: "Though I spent over $100,000 on it I am willing to sell it for the bargain basement price of $59,250, which is the current value of my remaining student loan balance."
Above the Law reports
ABA president 'disappointed' with appeal of Red Flags decision
American Bar Association President Carolyn Lamm today announced her disappointment in the Federal Trade Commission's decision to appeal its loss of Red Flags litigation in District Court. "The D.C. Circuit Court of Appeals resoundingly upheld the ABA's lower-court victory in 2005 against the commission in the Gramm-Leach-Bliley lawsuit, and we are anticipating no less a victory in this case," Lamm said.

Politics
Kyle drops out of gubernatorial race
State Sen. Jim Kyle of Memphis ended his bid for the Democratic gubernatorial nomination today, citing the ban on raising campaign cash and difficulties of campaigning during the legislative session. He remains the Senate's Democratic leader and is only 15 months into a four-year term in the Senate, where he's served since 1983. Kyle's withdrawal leaves only Jackson businessman Mike McWherter and former state House Democratic leader Kim McMillan of Clarksville in the Democratic primary.
The Commercial Appeal has more
Indictment returned for man extorting Stanley
A Nashville grand jury has returned an indictment against a man charged with trying to extort money from then-Sen. Paul Stanley over an affair with a legislative intern. The indictment, filed today, accuses Joel Palmer Watts of extorting Stanley, of Germantown. Stanley resigned last year after he admitted to investigators that he'd had an affair with his 22-year-old intern.
The News Sentinel reports
Disciplinary Actions
2 lawyers reinstated
Buffalo, N.Y., lawyer Mark Anthony Carey and Florida lawyer Charles Powell Jackson III have been reinstated to the practice of law in Tennessee after complying with requirements for continuing legal education. Carey was suspended on Sept. 4, 2009, for failing to meet 2008 CLE requirements. Jackson was suspended on Jan. 8, 1997.

Legislative News
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service
TBA Member Services
Get Connected: Sign up for TBA Connect today
Join several hundred of your colleagues who have already joined in to the TBA's Social Networking platform for members called TBA Connect. This service provides many of the same features of mainstream sites such as Linked In or Facebook, but access is limited to members of the Tennessee Bar Association and approved guests.
Join TBA Connect now
TennBarU CLE
TennBarU online offers hundreds of course 24/7
Still need CLE credits before the March 1 deadline? TennBarU has hundreds of online video and interactive text courses available for you to take at your convenience. From ethics sessions to technology courses and programs on interesting topics such as the Duke Lacrosse case, TennBarU has a wide range of offerings to help you meet your CLE requirements and become a better-educated lawyer.
See the full catalog of courses available now

 
 
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php

Questions, comments: Email us at TBAToday@tnbar.org

About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

© Copyright 2010 Tennessee Bar Association