Federal judge says 'Don't Ask, Don't Tell' is unconstitutional

A federal judge has ruled that policy prohibiting openly homosexual members from serving in the U.S. military is unconstitutional. U.S. District Court for the Central District of California Judge Virginia Phillips issued her ruling late Thursday in Log Cabin Republicans v. United States of America. "'The Don't Ask, Don't Tell Act' infringes the fundamental rights of United States service members in many ways," Phillips wrote in an 86-page opinion. She found that 'Don't Ask, Don't Tell' impeded both the Fifth and First Amendment rights of homosexuals and granted a permanent injunction barring enforcement of the law.

Law.com carried this National Law Journal story

TODAY'S OPINIONS
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RONALD A. BARKER v. TONY PARKER, WARDEN

Court: TCCA

Attorneys:

Ronald A. Barker, Tiptonville, Tennessee, pro se.

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

Judge: WITT

The petitioner, Ronald A. Barker, appeals from the habeas corpus court's summary dismissal of his petition for writ of habeas corpus. Discerning no error, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2010/barkerr_091010.pdf


STATE OF TENNESSEE v. NELSON AGUILAR GOMEZ & FLORINDA LOPEZ

Court: TCCA

Attorneys:

Nathan Moore, Nashville, Tennessee, for the appellant, Nelson Aguilar Gomez. Jeffrey Devasher, Assistant Public Defender, (on appeal); and J. Michael Engle and Mary Kathryn Harcombe, Assistant Public Defenders (at trial), Nashville, Tennessee, for the appellant, Florinda Lopez.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendants, Nelson Aguilar Gomez and Florinda Lopez, were charged with: Count One, first degree felony murder during the perpetration of aggravated child abuse; Count Two, first degree felony murder during the perpetration of aggravated child neglect; Counts Three and Four, aggravated child abuse occurring on or about March 3, 2007; and Count Five, aggravated child abuse occurring in February 2007. Aggravated child abuse is a Class A felony. See Tenn. Code Ann. section 39-15-402(b). The Defendants were tried jointly before a jury. Defendant Gomez was convicted of both counts of felony murder, Count One merging into Count Two, and sentenced to life with the possibility of parole. He was also convicted of all three counts of aggravated child abuse and sentenced as a violent offender to twenty-five years for each conviction. The trial court ordered him to serve his Count Three and Count Four aggravated child abuse sentences concurrently with each other and his life sentence, and ordered him to serve his Count Five aggravated child abuse sentence consecutively to his other sentences, for a total effective sentence of life plus twenty-five years in the Department of Correction. On her felony murder charges, Defendant Lopez was convicted of two counts of the lesser-included offense of facilitation of first degree murder, a Class A felony. See Tenn. Code Ann. section 39-11-403, -13-204(a). Count One was merged into Count Two. Defendant Lopez was also convicted of aggravated child abuse under Counts Three and Four. She was acquitted of aggravated child abuse as charged in Count Five. She was sentenced as a Range I, standard offender to twenty-five years for her facilitation of first degree murder conviction and sentenced as a violent offender to twenty-five years for each of her two aggravated child abuse convictions. The trial court ordered her to serve these sentences concurrently, for a total effective sentence of twenty-five years in the Department of Correction. In this direct appeal, Defendant Gomez contends that: (1) the trial court erred in admitting evidence of certain prior bad acts, in violation of Tennessee Rule of Evidence 404(b); (2) the State presented evidence insufficient to convict him and that the trial court therefore erred in failing to grant his motion for a judgment of acquittal; and (3) the trial court erred in ordering consecutive sentencing. Defendant Lopez contends that: (1) the trial court erred in denying her pre-trial motion to include non-citizens on the jury; (2) the trial court erred in preventing her from introducing an entire statement she made to police after the State impeached her using part of that statement; (3) the trial court erred in admitting evidence of Defendant Gomez's prior bad acts; (4) the State presented evidence insufficient to convict her; and (5) the trial court erred in imposing the maximum sentence for each of her convictions. After our review, we reverse and dismiss Defendant Gomez's Count Five conviction of aggravated child abuse. In all other respects, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/gomezn_091010.pdf


STATE OF TENNESSEE v. ANTHONY DEWAYNE HOOD

Court: TCCA

Attorneys:

Wesley D. Stone, Knoxville, Tennessee, for the appellant, Anthony Dewayne Hood.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; William Paul Phillips, District Attorney General; and Tracy Tipton Jenkins, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Anthony DeWayne Hood, appeals from his conviction by a jury in the Union County Criminal Court for sexual battery by an authority figure, a Class C felony, for which he was sentenced as a Range I, standard offender to six years in the Department of Correction. On appeal, the Defendant contends that: (1) the evidence is insufficient to support his conviction, (2) the trial court denied his right to a fair trial when it responded in the jury's presence to the Defendant's motion for judgment of acquittal that the burden had been met, (3) the trial court erred in allowing the State to introduce irrelevant, unfairly prejudicial, and improper character evidence, (4) there was prosecutorial misconduct because the State misstated the evidence during opening statement and closing argument and commented on the credibility of a witness, and (5) his sentence is excessive because the trial court misapplied an enhancement factor and denied alternative sentencing. We conclude that the trial court committed reversible error when it stated in the jury's presence that the State's burden of proof had been met. We reverse the judgment of the trial court and remand the case for a new trial.

http://www.tba2.org/tba_files/TCCA/2010/hooda_091010.pdf


CHRIS JONES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John E. Talbott, Henderson, Tennessee, attorney for appellant, Chris Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Chris Jones, appeals his denial of post-conviction relief. The Petitioner pled guilty to two counts of sale of cocaine in an amount more than .5 grams, a Class B felony, and one count of sale of cocaine in an amount less than .5 grams, a Class C felony. Pursuant to a plea agreement, the Petitioner received sentences of 12 years for each of the Class B felonies and 6 years for the Class C felony. The trial court ordered the sentences to be served concurrently with one another but consecutively to a ten-year sentence imposed in a separate case. In this appeal as of right, the Petitioner contends that he received the ineffective assistance of counsel at his guilty plea hearing. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/jonesc_091010.pdf


STATE OF TENNESSEE v. EVETTA MAI McGEE

Court: TCCA

Attorneys:

Robert L. Marlow, Shelbyville, Tennessee, for the Appellant, Evetta Mai McGee.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; Charles Crawford, District Attorney General; Michael D. Randles, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Evetta Mai McGee, pled guilty to rape, and the trial court sentenced her to eleven years. On appeal, the Defendant contends the trial court erred when it enhanced her sentence beyond the statutory minimum without explanation. After a thorough review of the record and applicable law, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2010/mcgeee_091010.pdf


STATE OF TENNESSEE v. MICHAEL DESHAY PEOPLES, JR.

Court: TCCA

Attorneys:

David Scott Wilder, Nashville, Tennessee, for the appellant, Michael Deshay Peoples, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshaea Dulany Faughn, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Rob McGuire, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Michael Deshay Peoples, Jr., was charged with one count of first degree felony murder, one count of especially aggravated robbery, a Class A felony, two counts of aggravated robbery, a Class B felony, and one count of aggravated kidnapping, a Class B felony. See Tenn. Code Ann. sections 39-13-403(b), -402(b), -304(b)(1). One count of aggravated robbery was "nol prossed" by the State prior to the Defendant's trial. Following a jury trial, the Defendant was convicted of all four remaining offenses as charged. In this direct appeal, the Defendant contends that: (1) the State presented evidence insufficient to convict him; and (2) the trial court erred when it allowed testimony regarding the count of aggravated robbery that was "nol prossed" prior to the Defendant"s trial. After our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/peoplesm_091010.pdf


PATRICK JOSEPH RIGGER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Jason Hunnicut, Assistant District Attorney General, for the appellant, State of Tennessee.

Mark E. Stephens, District Public Defender, for the appellee, Patrick Joseph Rigger.

Judge: WITT

The petitioner, Patrick Joseph Rigger, appeals from the Knox County Criminal Court's denial of post-conviction relief from his general sessions court guilty-pleaded convictions of misdemeanor evading arrest and misdemeanor possession of a weapon. Although the post-conviction court determined that the Knox County General Sessions Court's procedure of communicating to defendants en masse the litany of constitutional rights prior to accepting pleas of guilty did not satisfy the rigors of due process principles, the post-conviction court denied relief to the petitioner. The petitioner appeals and claims that the lower court erred in failing to find that his guilty pleas were involuntary, unknowing, and/or unintelligent. He also claims that the warrant alleging his illegal possession of a weapon inadequately charged an offense and that his actual innocence of that charge entitled him to post-conviction relief. Because the record supports the post-conviction court's order, we affirm.

http://www.tba2.org/tba_files/TCCA/2010/riggerp_091010.pdf


HARLEN ROY L. ZIRKER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Harlen Roy L. Zirker, pro se, Only, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Sharon Reddick, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Petitioner, Harlen Roy Lamont Zirker, of two counts of rape of a child and four counts of aggravated sexual battery, for which he was sentenced to a total, effective sentence of seventy-two years to be served at 100%. The Petitioner appealed, and this Court affirmed his convictions and sentence. State v. Harlen Roy L. Zirker, aka Anthony Lamont Zirker, No. M2003-02546-CCA-CCA-R3-CD, 2005 WL 1122646 at *1, *16 (Tenn. Crim. App. May 12, 2005), perm. app. denied (Tenn. Oct. 31, 2005). Subsequently the Petitioner filed a petition for post-conviction relief and two amended petitions thereafter, which he then voluntarily dismissed. Shortly after the dismissal, the Petitioner filed a second petition for post-conviction relief, which the post conviction court summarily dismissed because it was the Petitioner's second such petition and because it was untimely. The Petitioner now appeals the summary dismissal of his second petition. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/zirkerh_091010.pdf


School Fees

TN Attorney General Opinions

Date: 2010-09-10

Opinion Number: 10-96

http://www.tba2.org/tba_files/AG/2010/ag_10_96.pdf

TODAY'S NEWS

Legal News
Supreme Court Report
Election 2010
Upcoming
Correction
TBA Member Services

Legal News
Cooper proposes art collection move to Frist
Tennessee Attorney General Bob Cooper submitted a proposal in Davidson County Chancery Court today that would remove the renowned Stieglitz Collection from the Fisk University campus and install it in the Frist Center for the Visual Arts. Cooper is under court order to come up with a proposal that would keep the $74 million art collection in Nashville. "This is only a temporary arrangement," Cooper said in a statement.
The Tennessean has more
Memphis attorney Curbo found dead in office
A clerk found the body of Charles R. Curbo, 55, in his ninth-floor office in the 100 North Main building in Memphis today. With the cause of his death undetermined, Memphis police began a death investigation and the Shelby County Medical Examiner's Office will perform an autopsy. Funeral arrangements for Mr. Curbo are pending at Brantley Funeral Home in Olive Branch.
Learn more from the Commercial Appeal
PDs beg court not to add more cases, as more needed
As state budgets shrink and more defendants qualify for free legal counsel, concerns about a deteriorating, overwhelmed public defender system in this country are increasing. A Missouri case has caught national attention when the public defender's office pleaded with the judge, repeatedly, not to assign it another case. The case is now in the state's Supreme Court over the issue of whether the state's public defender system is in such dismal shape that it ought not be forced to represent him.
The New York Times reports
UT Law grad earns top alumni award
UT College of of Law alum Joel A. Katz was today presented the University of Tennessee Distinguished Alumnus Award. The chairman of the Global Entertainment, Media & Sports Practice for Greenberg Traurig, Katz "has been a devoted friend and avid supporter of the College of Law and UT for many years," said Douglas A. Blaze, dean of the College of Law at the University of Tennessee Knoxville, in his letter nominating Katz for the award.
Read more from CNBC
Law may affect new Room in the Inn facility
A new state law that allows only two sexual offenders per address may cause a problem for homeless shelters, including Room in the Inn's brand-new, $13 million building in Nashville. The law, sponsored by Rep. Mike Turner, D-Old Hickory, was aimed solely at residential halfway houses. The new law forbids more than two registered sex offenders from living in the same residence. Thirty-eight homeless men will be housed in their own low-rent apartments in the new building, including two paid for personally by Gov. Phil Bredesen -- who recently signed the legislation into law -- and his wife, Andrea Conte.
Read more in the Tennessean
Drug court asks for a hand-out
Drug Court officials in the 21st judicial district say it is operating on a margin of just enough to stay open, with staff members sometimes having to buy their own office supplies and equipment. The court recently put out a request for donations in its first e-newsletter, saying that the one man covering all four counties could do a lot more good if he just had to go to two.
Read more in the Tennessean
Bradley County Courthouse adds security
Visitors attending courts or having business to conduct with clerks of the courts at the Bradley County Courthouse have an extra step now: a security check. This involves the individual and their belongings passing through a magnetometer, which uses the same principle as metal detectors in major airports.
Read more in the Cleveland Daily Banner
For $23 million, cupola should still be shiny
The cupola on the George Jaynes Justice Center in Jonesborough is starting to discolor -- not news except that it's only been there for about one year. The top of the dome is part of the $23 million Justice Center project that officially opened last November.
The Johnson City Press reports
Supreme Court Report
Kagan recuses self in 21 cases
The Supreme Court's newest justice, Elena Kagan, "quietly recused herself" in 10 more cases this week, bringing her total recusals to 21, according to
The BLT: The Blog of Legal Times.
Election 2010
Shelby Democrats want to put election lawsuits together
The Shelby County Democratic Party is backing lawsuits by losing candidates, arguing that the Election Commission made so many mistakes that the results are invalid and should be thrown out. Now they would like to consolidate the suits into one, they told Chancellor Kenny Armstrong in a hearing. A lawyer for the Republican-controlled commission, John Ryder, said his side will oppose the motion to combine the cases. Another round of hearings in the litigation is set for Sept. 17.
The Commercial Appeal has more
Upcoming
NPR legal reporter Totenberg to speak at MTSU
National Public Radio's award-winning legal affairs correspondent, Nina Totenberg, will speak at Middle Tennessee State University on "Establishing Justice: The New Supreme Court" on Sept. 22. Totenberg's reports on the Supreme Court air regularly on All Things Considered, Morning Edition and Weekend Edition. She is also a regular panelist on Inside Washington, a weekly public affairs television program. The event, at MTSU's Tucker Theater, is from 4:30 to 5:30 p.m., and is free and open to the public.

Correction
An item in yesterday's TBA Today omitted a sponsor of a free legal clinic being held tomorrow in Memphis. The clinic, set for 9:30 a.m. to noon at the Ben Hooks Library, is sponsored by International Paper and the law firm of Butler, Snow, O'Mara, Stevens & Cannada PLLC.

TBA Member Services
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