Criminal

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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Man Arrested for 46-Year-Old Monroe County Murder Seeks Bond, Name of Accuser

The lawyer for a Monroe County man arrested last month for the 1973 killing of John Raymond Constant has asked that a bond is set for his client and that the state release the name of its secret witness, arguing that his client has the right to face his accuser, The Knoxville News Sentinel reports. Max Benson Calhoun is accused of killing Constant — who was a rumored runner for the “Dixie Mafia" — leaving his truck riddled with bullet holes and shooting him at least 17 times with a high-powered rifle or machine gun. There was previously an arrest regarding the case in 1982 after a witness provided testimony under hypnosis, which did not materialize in court and the charges were subsequently dismissed. No trial date has yet been set in Calhoun’s case.

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Tour Death Row in This Unique CLE Opportunity

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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Lawyer for Nashville Police Officer Delke Questions DA's Handling of Evidence

The lawyer for Nashville police officer Andrew Delke, who was charged with first-degree murder after shooting Daniel Hambrick during a foot chase, filed a document on Thursday accusing District Attorney Glenn Funk of flip-flopping when considering the seal of evidence in the case, The Tennessean reports. Attorney David Raybin filed the reply to the state’s position regarding discovery, questioning Funke’s stance that evidence in the case be made public before the trial, highlighting his office’s position on the recent rape case against Vanderbilt football players where the state attorney general submitted a brief to seal the evidence until the case was adjudicated. "Now the very thing District Attorney Funk recently contended would 'present a serious threat to a defendant's constitutional right to a fair trial' in another case is being touted by the same district attorney general as 'required to ensure the citizens of Davidson County are confident that the judicial process is fair and that all persons are treated equally,” Raybin wrote in the filing. "It is unclear why the state believes the right to a fair trial outweighs pretrial transparency in a case against violent sexual predators but not in a case against a Nashville police officer.” A spokesman for the prosecutor's office told the paper "The district attorney's office will respond to Mr. Raybin's filing in open court on Tuesday."

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Clarksville Bounty Hunter Accused of Murder Accepts Plea Agreement

One of the bounty hunters and bondsmen accused in the 2017 murder of a Clarksville man who they mistook for a fugitive and opened fire on his vehicle has accepted a plea agreement, The Leaf-Chronicle reports. Jonathan Schnepp Jr. pleaded guilty to three counts of aggravated assault, with the state dropping 13 other charges against him — including first-degree murder and especially aggravated kidnapping — because of his continued cooperation with prosecutors. Five other defendants in the case are expected to stand trial in July, with another entering a memorandum of retirement agreement last December. 

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Nashville Police Oversight Board Holds First Meeting

Nashville’s new Community Oversight Board held its first meeting at the Metro courthouse last week to discuss leadership and staffing needs, The Tennessean reports. The board includes diverse members of the community, along with former police officers tasked with examining claims of racial bias and police misconduct in the city. Among the board members are former Davidson County Circuit Court Judge and Baker Donelson attorney Matt Sweeney and former Tennessee Attorney General Bob Cooper, who was elected secretary of the group. Voters overwhelmingly approved the establishment of the board in November 2018 despite opposition from Metro Police Chief Steve Anderson and the Nashville Fraternal Order of Police who expressed concerns that it may create a divide between law enforcement and the public. Chattanooga is also considering the adoption of a similar committee to oversee its police force.

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Matthew Charles Interviewed by NBC Nightly News After Second Release from Prison

Matthew Charles — the man who was released from prison, then sent back pending appeal of his case  — was interviewed by NBC Nightly News on Tuesday, making his first public remarks since being re-released, NBC News reports. Charles was convicted in 1996 for selling crack and illegal possession of a firearm, labeled a “career offender” because of prior criminal convictions, then sentenced to 35 years in prison. A federal judge granted Charles early release in 2016; however, prosecutors appealed that decision and he was subsequently returned to prison around two years later. His case became part of the national discourse on criminal justice reform after attention from members of Congress and celebrities including Kim Kardashian West, and is believed to be the first person released because of the First Step Act.

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Memphis Attorneys Keep Clothes on Hand for Clients Who Cannot Afford Dress Attire

The Shelby County Public Defender’s Office has taken a novel approach to criminal defense, maintaining a closet of clothing for defendants who cannot afford dress attire to wear in court, The Commercial Appeal reports. On whether what a defendant wears to court matters, attorney and supervisor for Shelby County Public Defender’s Office Gregg Carman said that "It probably shouldn’t. But jurors can’t always set aside appearance. As soon as a client walks into a courtroom with a jury, that jury is making judgments about them from the way they present themselves, whether it’s their demeanor their attitude, their walk, or their clothing, their hairstyle." The Shelby County District Attorney General's office also has a clothes closet for victims and witnesses, but declined to comment on the story.

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