News

Shelby County Swears in First Female Chief Public Defender

Shelby County swore in its first female chief public defender yesterday, The Commercial Appeals reports. Phyllis Aluko has spent 25 years in the office where she began as a volunteer, then moving to the trial division for 10 years, later transferring to the appellate division. Judge Bernice Donald of the U.S. Court of Appeals for the Sixth Circuit said at the ceremony: "Phyllis Aluko is now, has been and will be an exceptional public defender … She understands the needs of the office, the needs of the community." Aluko replaces former Shelby County Public Defender Stephen Bush, who retired in February.
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7 New Job Postings on TBA’s Joblink

See who is hiring in Tennessee. Recent job postings this month offer opportunities in litigation, real estate, health law and more. See full listings or post positions in your firm on TBA’s Joblink.
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House Judiciary Committee Seeking Information for McGee Confirmation

The House Judiciary Committee next week will hold a confirmation hearing on Chancellor Carma Dennis McGee of Savannah, who Gov. Bill Lee has appointed to the Tennessee Court of Appeals, Western Section. As part of the process, the committee is asking attorneys who have had experiences with her to send any information they think is pertinent to help members prepare for the confirmation hearing to tennesseejudicialconfirmation@gmail.com. All information must be submitted to the committee by this Friday at 5 p.m. CDT. Under an amendment to the Tennessee Constitution passed in 2014, the governor’s appointments to appellate courts must be confirmed by the General Assembly. Once McGee is confirmed by the General Assembly, she will be subject to regular retention elections.
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McGee Appointed to Court of Appeals Vacancy

Gov. Bill Lee has appointed Chancellor Carma Dennis McGee of Savannah to the Tennessee Court of Appeals, Western Section. She will replace Judge Brandon O. Gibson, who was appointed as a senior advisor in the Office of the Governor earlier this year. McGee, 48, has served as the chancellor of the 24th Judicial District since 2014. Prior to becoming chancellor, she practiced law as partner in the firm of McGee & Dennis. She also served as a Rule 31 Listed Family Mediator for 10 years. “Chancellor McGee’s experience and knowledge will make her an excellent judge on the Court of Appeals,” said Lee. “Tennessee is fortunate to have her in the Western Section, and I am grateful she has accepted this high honor.”

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This Thursday: Litigation & Appellate Forum

It's not too late to join your colleagues for the 2019 Litigation Forum on April 18. This year’s event will include a Magistrate Judges panel, a session on social media in client intake, a review of the Business Court and much more. Earn up to four hours of general CLE and one ethics hour.
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Litigation, Appellate Practice Team Up for Power-packed Program

The TBA's Litigation and Appellate Practice Sections are collaborating to offer a full-day CLE containing essential and useful material for litigators and appellate practitioners alike. This year’s program will take place April 18 at the Tennessee Bar Center in Nashville. It includes a session on appellate procedure, a presentation on social media issues and client intake, a dual credit legal technology hour related to hold and preservation systems, a session discussing ethical issues in brief writing and brief strategies, both trial and appellate as well as a presentation on the reasonable certainty requirement for calculating damages. Earn up to three hours of general CLE and two hour of ethics CLE. Secure your spot by registering today!

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Applications Open for 13th District Criminal Court Judge

The Trial Court Vacancy Commission is now accepting applications to fill a criminal court judge vacancy in the 13th Judicial District, which covers Clay, Cumberland, DeKalb, Overton, Pickett, Putnam and White counties. This vacancy was created by the upcoming retirement of the Hon. David A. Patterson, who will end his service effective June 30. Qualified applicants must be licensed attorneys who are at least 30 years of age, have been residents of the state for five years, and are residents of the district. Application should be submitted to the Administrative Office of the Courts by noon CDT on April 17. Each candidate must submit an original as well as a digital copy of his or her application. Read more here.
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CCA Raises Issue Regarding State-Federal Concurrent Sentences

Tennessee Court of Criminal Appeals Judge Camille R. McMullen last week issued an opinion regarding state-federal concurrent sentences. In the opinion, the court sua sponte raised this issue and remanded the case to the trial court:
 
“We are constrained to note that the state judgments in this case show that the Petitioner’s . . . sentences . . . are to be served concurrently with a previously imposed federal sentence . . . .  There are two ways in which the federal sentence may be made concurrent with the state sentence (1) the Bureau of Prisons (“BOP”) may designate the state prison as the place of confinement for the federal term of imprisonment or (2) the BOP, in its discretion, may accept a state prisoner into federal custody when state officials offer to transfer a prisoner who has not fulfilled the state term of imprisonment.  . . .  [T]here was no testimony at the guilty-plea hearing or the post-conviction hearing as to how the Petitioner settled his federal case, the extent to which there was coordination between federal and state counsel to resolve the matters, or whether the federal court agreed to allow the Petitioner to serve his anticipated state sentence in a federal facility.  While serving a concurrent state and federal sentence is not prohibited by our law, . . . [it] has been roundly criticized by this court for its pitfalls. . . .  Accordingly, we must remand this matter to the post-conviction court for a hearing to determine whether the Petitioner was advised of the consequences of entering a guilty plea based upon the agreement that his state sentence be served concurrently with a prior federal sentence.”  Marty Holland v. State, Tenn. Crim. App. No. W2018-01517-CCA-R3-PC (Mar. 27, 2019).
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SCOTUS Denies Push to Halt Ban on Bump Stocks

The U.S. Supreme Court officially denied an appeal from gun rights advocates seeking to stop a Trump administration ban on bump stocks, NPR reports. Gun rights groups had filed separate appeals to Chief Justice John Roberts and Justice Sonia Sotomayor, requesting a temporary hold on the ban. Roberts denied one appeal earlier this week; Sotomayor referred hers to the full court, which denied it today, allowing the ban to proceed while challenges to it move through the courts. The ban requires bump stocks to be destroyed — such as by melting, shredding or crushing — or handed over at an office of the Bureau of Alcohol, Tobacco, Firearms and Explosives.
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Registration Now Open for TBA Convention in Nashville, June 12-15

 
The TBA's annual Convention returns to downtown Nashville this summer! Mark your calendars for June 12-15 and prepare for four days of CLE, networking, entertainment and more at the Renaissance Hotel, 611 Commerce Street. Registration is officially open, with early bird rates available until April 30.
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House Passes Bill to Bypass CCA in Death Penalty Cases

The Tennessee State House last week passed legislation that removes the appeal to the Court of Criminal Appeals in death penalty cases, instead sending the cases straight to the Tennessee Supreme Court, The Commercial Appeal reports. The "Sgt. Daniel Baker Act" — named after a Dickson County sheriff's deputy killed in the line of duty — was proposed out of concerns that the current system drags out the death penalty process. Court of Criminal Appeals Presiding Judge John Everett Williams said of the bill: "We are not the reason these cases are taking 30 years,” further stating that the cases are given priority and are normally handled in a three to five-month timeframe. The legislation is still being considered by the Senate.
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Grundy Co. Sheriff Advocates New Trial for Adam Braseel

Grundy County Sheriff Clint Shrum last week joined others in requesting a new trial for a man serving a life sentence for a 2006 murder, the Knoxville News Sentinel reports. Adam Braseel was convicted of killing Malcolm Burrows solely on witness testimony even though no physical evidence tied him to the scene of the crime. Attorneys for Braseel maintain that the eyewitnesses mistook him for another man, Kermit Bryson, who not only bears a striking resemblance to Braseel, but his fingerprints were found at the crime scene as well, a fact Sheriff Shrum said led him to press for a new trial. A judge previously threw out Braseel's conviction in 2015, however, the Court of Criminal Appeals overruled that decision and ordered Braseel back to prison.

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Legal Practice Tip: 'Transferred Intent' Does Not Work for Voluntary Manslaughter

In a recent case, a defendant was convicted of voluntary manslaughter of an unintended victim.  The unintended victim was in another room when the defendant shot at the intended victim. The intended victim provoked the defendant to the point that he shot at her but missed her. The bullet travelled through a wall and killed the unintended victim, with whom the defendant had had no confrontation. 

The jury convicted the defendant of voluntary manslaughter of the unintended victim. On appeal, the Court of Criminal Appeals found that no evidence existed in the record to demonstrate that the unintended victim provoked the defendant prior to her death. Because the unintended victim did not provoke the defendant, the evidence is insufficient to support a conviction of voluntary manslaughter. “Transferred intent does not apply in cases of voluntary manslaughter.” State v. Jenkins, Tenn. Crim. App. No. W2017-02222-CCA-R3-CD, Feb. 15, 2019.


Roger E. Nell is the District Public Defender at 19th Judicial District of Tennessee and current Chair of the TBA Criminal Justice Section. Formerly an Assistant Attorney General for the State of Tennessee, Nell also served in the U.S. Army where he completed numerous assignments on active duty and in reserves, including Deputy Legal Counsel (Reserve), Office of the Chairman of the Joint Chiefs of Staff; retiring with the rank of Colonel, Judge Advocate General's Corps, U.S. Army. 

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Appellate Practice Section Member Pens Article on Oral Arguments

Tennessee Bar Association Appellate Practice Section member Richard Lynn recently wrote an article for The Nebraska Lawyer that is relevant to Tennessee lawyers as well. The article features observations by Lynn regarding oral arguments from attorneys in the court and judicial temperament, and provides useful practice tips. You can view the article here.

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Litigation & Appellate Forum Set for April 18

Make plans to join your colleagues for the Litigation & Appellate Forum on April 18. This year’s event will include a session on appellate procedure, a presentation on social media issues and client intake, a dual credit legal technology hour related to hold and preservation systems, a session discussing ethical issues in brief writing and brief strategies for both trial and appellate as well as a presentation on the reasonable certainty requirement for calculating damages. Earn up to three hours of general CLE and two hour of ethics CLE.
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Attorneys Needed for April 27 Expungement Clinic & Resource Fair in Nashville

 
The Music City Community Courts have another Expungement Clinic & Resource Fair scheduled for Saturday, April 27 at Magness – Potter Community Center (Salvation Army’s Red Shield East Campus – 611 Stockell St. Nashville, TN 37207).
 
The clinic will have check-in for the pre-registered participants from 9:00 a.m. -9:30 a.m. and the Clinic will start at 10:15 a.m. All volunteer attorneys are asked to arrive at 9:30 a.m. – 10:00 a.m. for orientation and the run of the day.
 
Please email if you are able to volunteer, even if you can only stay an hour.
 
The Criminal Court Clerk’s office will have computers and the ability to process the expungement paperwork right on the spot. We anticipate the clinic ending around 12:30 p.m. As usual, there will be coffee and snacks provided to the volunteers and we look forward to having another great event!
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Investiture Ceremony Set for Moskal

An investiture ceremony for Patricia Head Moskal, who was appointed to the Davidson County Chancery Court by Gov. Bill Haslam will be held March 28. The ceremony will take place at the Davidson County Courthouse in Nashville at 3 p.m., with a reception immediately following. Moskal was appointed following the retirement of Chancellor Claudia Bonnyman.
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Several Organizations Fight Tennessee Family Over Estate

A Tennessee family‘s estate that has been passed down through six generations has become part of a heated battle between the family and several non-profit organizations, the Tennessean reports. The last heir, Barry Blackburn Sr., died unexpectedly in 2014, with his will specifying that properties be held in a lifetime trust for his son, then passed along to that son’s children. The will also includes a provision that should Blackburn Sr.’s son die before him, the trust would pass to his sister's three children. A failure of beneficiary clause was included stating that if there were no surviving beneficiaries, the estate would be equally divided among Nashville Christian School, Harpeth Presbyterian Church, the University of Mississippi law school and Boykin Spaniel Rescue. Blackburn Sr.’s son, Christopher Blackburn, died the following year at 21, having no children. The nonprofits now argue that the will, read literally, bequeaths property to them since the son died after the father. A Mississippi judge last year sided with nieces and nephew involved, calling the matter a "scrivener's error," however, the organizations have appealed that decision. The properties, including working farms in Mississippi and Alabama and acres of property along Pickwick Lake, are worth millions and were given to the family by President Andrew Jackson.

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Council Sends 3 Names to Lee to Fill Court of Appeals Vacancy

After holding a public hearing and conducting public interviews today, the Governor’s Council for Judicial Appointments selected three applicants to forward to Gov. Bill Lee for his consideration to fill the judicial vacancy in the Court of Appeals - Western Division. Moving forward will be Jackson attorney Steven Wayne Maroney, Savannah attorney Carma Dennis McGee and Memphis attorney Mary L. Wagner. The Court of Appeals vacancy was created by the appointment of Brandon O. Gibson as Senior Advisor in the Office of the Governor. Fourteen applied for the position.
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Justice Kagan: SCOTUS Considering Ethics Code

U.S. Supreme Court Chief Justice John G. Roberts Jr. is considering whether to create an ethics code for Supreme Court justices, Justice Elena Kagan told a congressional committee this week. The ABA Journal reports Kagan made her statements during an appearance with Justice Samuel A. Alito Jr. before a House appropriations subcommittee that is reviewing the Supreme Court’s budget. Kagan made the disclosure in response to questioning about judicial accountability in the #MeToo era. Kagan and Alito also fielded questions about televising oral arguments. Both said they were against the idea.
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Tort, Insurance and Appellate Practice Forum Set for March 21

The TBA Tort and Insurance and Appellate Practice sections are presenting a joint forum with six hours of CLE, offering essential and practical material for tort and insurance attorneys and appellate updates from seasoned practitioners in that arena. The program will address the intangibles of litigating against an insurance company and highlight recent updates in medical malpractice law designed to keep you on top of trends and developments in this field. An interactive judicial panel and a focused dive into attorney well-being will round out the day. This event will take place at the Tennessee Bar Center, a change from its previously announced location at the AT&T Building.
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Don't Sleep, Space is Limited: Criminal Law Basics 2019 and Prison Tour

The Tennessee Bar Association’s Criminal Justice Section will hold its annual Criminal Law Basics Forum at the Tennessee Bar Center on May 22. This annual favorite features the intangibles for criminal law practitioners, including timely updates on both a state and federal level. We will cover appellate issues, attorney well-being and ethics, ending the day with a guided tour of the Riverbend Maximum Security Institution, presented by Warden Tony Mays and attorney David Raybin who will discuss representing a death row inmate through execution. Don’t miss out on this unique, enriching CLE opportunity. Here are the key details:
 
When: Wednesday, May 22, registration at 8 a.m., CDT; prison tour at 2 p.m., CDT
Where: Tennessee Bar Center, 221 Fourth Ave N.; Riverbend Maximum Security Institution, 7475 Cockrill Bend Blvd, Nashville
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Legal Practice Tip: Parking Outside of a Drug House is Not Probable Cause

A defendant stopped at a known crack house. There was no testimony that he participated in a drug deal at the house, either minutes before the stop, or during the weeks of surveillance on the house prior to his arrest. There was no testimony that he exited his vehicle while it was at the house or that another person came up to the vehicle while it was parked at the house. TCCA concluded that he was seized without any specific and articulable facts tying him to any illegal activity, in the past or at the present. State v. Hogan, Tenn. Crim. App. No. M2017-02256-CCA-R3-CD, Feb. 19, 2019.


Roger E. Nell is the District Public Defender at 19th Judicial District of Tennessee and current Chair of the TBA Criminal Justice Section. Formerly an Assistant Attorney General for the State of Tennessee, Nell also served in the U.S. Army where he completed numerous assignments on active duty and in reserves, including Deputy Legal Counsel (Reserve), Office of the Chairman of the Joint Chiefs of Staff; retiring with the rank of Colonel, Judge Advocate General's Corps, U.S. Army. 
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Interviews for Court of Appeals Opening Set for Jackson

Interviews of the 14 candidates who have applied for the Court of Appeals opening in the Western Division will be held March 11 at the Jackson Supreme Court Building, #6 Highway 45 By-Pass in Jackson. The Governor’s Council for Judicial Appointments will hold a public hearing starting at 8:30 a.m., followed by the interviews. Both are open to the public.

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Court Amends Uniform Judgment Document

The Tennessee Supreme Court today issued an order amending the uniform judgment document as set forth in Tennessee Supreme Court Rule 17. The court received five comments on the changes, first proposed in September.
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