TBA Law Blog


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Posted by: Donald Paine on Oct 30, 2008

If we had been alive in Memphis on Tuesday, March 10, 1891, around 11:20 a.m. at Main Street and South Court Alley, we would have witnessed lawyer Clay King murdering lawyer David Poston. Why did a lawyer kill a lawyer?

Henry Clay King was a prominent attorney. He compiled the Tennessee Digest in the nineteenth century, a copy of which I examined at the University of Tennessee Law Library. But Clay King was also a nut case.

Posted by: Donald Paine on Sep 26, 2008

My favorite contempt opinion is Dargi v. Terminix, 23 S.W.3d 342 (Tenn. Ct. App. 2000). Steven Dargi sued Terminix and others for termite damage to his home. Good friends of mine represented the plaintiff and the principal defendant. The latter lawyer somehow incurred the plaintiff's wrath, exacerbated by another defense lawyer.

Posted by: Donald Paine on Aug 21, 2008

In my August 2006 column I wrote about two of the 100-mile rules. There is a third rule that I should have included. Please let me make amends in this column.

Let's review the first two. Federal Rule of Civil Procedure 4(k)(1)(B) allows a summons to be served under Rule 14 (impleader, aka third-party practice) or Rule 19 (required joinder if feasible) at a distance of 100 miles from the courthouse of issuance, even if beyond the state line.

Posted by: Donald Paine on Aug 13, 2008

By Vincent Bugliosi | W.W. Norton | $49.95 | 1,612 pages | 2007

Should you read this expensive book that weighs 5 pounds? Probably so, but I have an alternative solution.

Order the abridged audio version read by Edward Herrman from Simon & Schuster. It will also cost you $49.95, and the compact discs run for 18 hours. But Mr. Hermann is a good reader and the abridgement is prudent.

Former prosecutor (Helter Skelter) Bugliosi obliterates every single one of the conspiracy theories. The truth is that Lee Harvey Oswald acted alone and fired three shots. The first shot missed, the second wounded Kennedy and Connelly, and the third blew out our President's brain.

Where were you on Friday, Nov. 22, 1963? Cynthia and I were en route from Infantry School in Georgia to JAG School in Virginia. We detoured to the Blue Ridge Parkway and perhaps were the last two Americans to know of the tragedy.

This is a classic book. You should read it, listen to it, or both.

Posted by: Donald Paine on Aug 13, 2008

Take another look at Tenn. Code Ann.  § §28-3-201 through 205, particularly at  §202. I recently did so and was impressed by the breadth of this defense:

Posted by: Donald Paine on Aug 13, 2008

While reading a new book about the Evelyn Nesbit/Stanford White/Harry Thaw love triangle (American Eve, by Paula Uruburu), I realized that I had erred in my March 1999 column on "The Red Velvet Swing Murder." I wrote that there was only one trial of Harry Thaw for shooting Stanford White. The truth is that Thaw was tried twice. Not much has been written about the retrial, so I decided to compose these paragraphs.

Florence Evelyn Nesbit was born on Christmas Day 1884 at Tarentum, Pa., near Pittsburgh. In 1900 she moved to New York City with her mother. Evelyn became a photographer's model and chorus girl. Soon she was spied by Stanford White, a renowned architect and notorious womanizer.

White had a three-story apartment behind a toy shop on West 24th Street. There he ravished Evelyn in August 1901; she was only 16 years old, he almost 50. He swung her in the red velvet swing, drugged her with champagne, and violated her when she passed out. Many consensual sex sessions followed.

Later Harry Kendall Thaw, a rich scion from Pittsburgh transplanted to New York, courted Evelyn. They toured Europe. In Paris she confessed her sexual past with White, which she thought made her unfit for marriage. But marry she did, at age 20, on April 5, 1905. Husband Harry seethed with hatred for the architect.

Among White's designs was Madison Square Garden, the tallest structure in the city. On the evening of Monday, June 25, 1906, a large crowd was enjoying entertainment on the rooftop of the Garden. It was the opening night for a new musical, "Mamzelle Champagne." Around 11 p.m. three revolver shots rang out. At a distance of less than two feet Harry Shaw shot Stanford White in the brain, in the nose, and in the right shoulder. The killer was immediately arrested and confined in the Tombs.

The first trial lasted for almost three months, ending with a hung jury on April 12, 1907. The panel was split seven for conviction of first degree murder versus five for acquittal.

The second trial began on Monday, Jan. 6, 1908. Presiding was Justice Victor J. Dowling, prosecuting was William Travers Jerome, and defending was Martin W. Littleton.

Evelyn Nesbit Thaw was again a defense witness. This time she omitted some of the seamy details of her earlier testimony, such as "blotches of blood on the sheets." But she added a new disclosure: Harry had attempted suicide with laudanum (morphine prepared from opium) after her confession. Prosecutor Jerome: "Did you tell this before?" Evelyn: "No, I did not. Mr. Delmas (defense counsel in the first trial) said it would make Harry out to be too crazy."

The retrial jury decided that Harry was indeed crazy. The New York Times reported that the following verdict was returned at 12:40 p.m. on Saturday, Feb. 1, 1908: "We the jury find the defendant not guilty of the charge in the indictment on the ground that he was insane at the time of the act."

Harry Thaw was taken by rail to the state hospital for the insane at Matteawan near Fishkill, northeast of West Point. On Aug. 17, 1913, he escaped to Canada. Returned to the United States, he was declared sane in 1915 and freed. But he was later reconfined in an asylum at Philadelphia for horsewhipping Fred Gump, a teenager. Thaw died in Miami in 1947.

Whatever happened to Evelyn? She gave birth to son Russell, supposedly conceived during a conjugal visit to Matteawan. Harry denied paternity. Following a divorce, Evelyn briefly married her dance partner Virgil Montani (aka Jack Clifford) in 1916. Again single, she moved to California to be with her son and his family.

Evelyn died in a convalescent home at Santa Monica in 1967. She was 82 years old.

Posted by: Donald Paine on Jun 25, 2008

By Hamilton "Kip" Gayden | Center Street | $22.99 | 330 pages | 2008

Anna Dotson, 32, of Gallatin was a married mother of a daughter and son. Her husband Walter was a prominent ear, nose and throat doctor. On the afternoon of Saturday, March 15, 1913, Anna rode a train to Nashville and walked into a barbershop at 819 Broadway. She pulled a pistol from her muff and fired four bullets into barber Charlie Cobb, who died upon arrival at the hospital.

Posted by: Donald Paine on Jun 25, 2008

By John Grisham | Doubleday | $27.95 | 355 pages | 2008

The title of this novel derives from the appeal of a $41 million verdict in a toxic waste trial to the Mississippi Supreme Court. During the appellate process a hotly contested election for one seat on that court takes place.

Special interest groups pour vast sums into each candidate's campaign coffers.

Posted by: Donald Paine on Jun 25, 2008

Tennessee Rule of Criminal Procedure 43(b)(1) provides that the defendant waives his right to be present at trial if he "voluntarily is absent after the trial has commenced." But State v. Kirk, 699 S.W.2d 814 (Tenn. Crim. App. 1985), upheld a verdict and sentence where the accused left the jurisdiction shortly before his scheduled trial date.

Where was Tim Kirk in April of 1983 while being tried in Morgan County for killing inmates and kidnapping guards at Brushy Mountain? He was in Florida with one of his defense lawyers, Mary Evans!

Posted by: Donald Paine on Jun 24, 2008

Lawrencia Ann ("Laurie") ("Bambi") Bembenek may have been too pretty for her own good. Looks coupled with poor judgement led to dire consequences.

Marrying Fred Schultz was a mistake. He treated Bambi badly. And he had a poor relationship with ex-wife Christine and sons Sean and Shannon.

Fred was a cop; Bambi was a cop. She was fired from the Milwaukee Police Department. That's where she got the moniker "Bambi" from a supervisor who could not pronounce her surname. She found a job with Marquette University as a public safety officer.


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