Criminal

This Week: Criminal Law Forum 2018

This year’s half-day Criminal Law Forum will feature a specialized format, allowing state and federal prosecutors, defenders and judges to take a deep dive into DNA evidence and analysis led by professionals at the forefront of the field. We will also examine the interaction between immigration and criminal law, identifying the often-overlooked collateral consequences that come into play. Rounding out the day will be an ethics presentation from a former judge who will share well-being tips for lawyers to incorporate into their life and practice. A networking lunch will be provided following the program. Don’t miss this opportunity to learn and tie-in with attorneys of a shared focus. Here are the key details:

When: Dec. 7, 8 a.m. – 12:45 p.m., CST
Where: The Tennessee Car Center, 221 Fourth Ave N., Nashville
 
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Memphis Reevaluates Its Pre-trial Bonding Process

The city of Memphis is evaluating changes to its bail bond system, The Commercial Appeal reports. The Shelby County Sheriff's Office (SCSO) received a MacArthur Foundation grant last year to help reduce jail overcrowding, especially related to pre-trial detention. SCSO will use a portion of the grant to update the Pre-Trial Services process, used for everyone brought in by law enforcement. The new system will focus on specific risk factors based on the individual's arrest record and likelihood that they will come to court, replacing current questions that focus on factors that may preference affluent suspects. The new screening process is expected to reduce the number of people jailed by 25 percent or more.

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Accused South Carolina Shooter is a Disbarred Lawyer

The man accused of shooting seven South Carolina law enforcement officers, killing one, is a 74-year-old Vietnam veteran and disbarred attorney, The Chattanooga Times Free Press Reports. Frederick Hopkins is accused of firing on officers from his Florence home on Wednesday while holding children hostage inside. The officers were at the home to carry out a search warrant investigating allegations that a 27-year-old person at the home sexually assaulted a foster child who lives there. Hopkins surrendered his law license in 1984 over $18,000 in wrongfully collected attorney fees in lieu of serving jail time. 

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Zagorski Sends Handwritten Note to Haslam Asking for Clemency

Condemned prisoner Edmund Zagorski has sent a handwritten note to Governor Bill Haslam pleading for clemency from his death sentence, WKRN reports. Zagorski was convicted in 1984 of the murders a year earlier of two men who were purchasing marijuana from him in Hickman County. His attorney Robert Hutton has requested that the inmate's death penalty be commuted to life without parole. Other attorneys involved in the case are seeking to halt the execution based on lingering questions about the drugs used for lethal injection. Zagorski’s execution is scheduled for Oct. 11.

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Three Charged With Murder in Shooting Death of Memphis Civic Leader

Three people have been arrested and charged in the shooting death of Memphis civic leader Phil Trenary, The Commercial Appeal reports. McKinney Wright Jr, Quandarius Richardson and Racanisha Wright, 16, have been charged with first-degree murder in perpetration of criminal attempted robbery and criminal attempted especially aggravated robbery. Trenary was shot as he was leaving a meeting of the Greater Memphis Chamber where he served as CEO. He was 64.

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Hamilton County RICO Defendant Pleads Not Guilty in Murder of State's Witness

One of the three men facing the death penalty for conspiracy in the murder of a state’s witness pleaded not guilty on Monday, The Chattanooga Times Free Press reports. Courtney High allegedly conspired with Andre Grier and Charles Shelton to kidnap and kill Bianca Horton who was to testify regarding a murder trial of another member of the Athens Park Bloods gang. Horton’s then two-year-old daughter was paralyzed during the slaying. All men are part of a 54-person RICO indictment in Hamilton County.
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Legal Practice Tip: Appellate Issues and the Armed Career Criminal Act

Criminal appellate attorneys should be aware of litigation currently working its way through the federal appellate system that may have substantial repercussions on how federal courts treat certain firearm offenses, violent crimes and drug offenses. 
 
Federal law prohibits certain classes of people from possessing firearms. 18 U.S.C. § 922(g). In general, violations of this ban can result in prison sentences of up to 10 years’ imprisonment. 18 U.S.C. § 924(a)(2). The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), provides that, for offenders with particularly notable criminal histories, this punishment is markedly increased. Specifically, if an offender has sustained three or more earlier convictions – state or federal – for a “serious drug offense” or “violent felony,” he or she will face a minimum prison term of 15 years and a maximum of life. 
 
Originally, the ACCA defined a “violent felony” as: any crime punishable by imprisonment for a term exceeding one year. . . that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
 
18 U.S.C. § 924(e)(2)(B) (2014) (emphasis added). In 2015, the Supreme Court addressed the italicized portion of the ACCA — colloquially known as the “residual clause” due to its general scope — on a challenge claiming that it was unconstitutionally vague. See Johnson v. United States, 135 S.Ct. 2551 (2015). The Court decided the residual clause was unconstitutionally vague and, consequently, unenforceable.
 
Accordingly, courts now consider whether a prior conviction qualifies as a predicate offense under the remainder of the ACCA, i.e., whether the offense of conviction (1) has an element the use or the attempted/threatened use of force (the so-called “use of force clause”); or (2) whether the offense is otherwise specifically listed in the statute (the “enumerated offense” clause). Appellate cases (and by extension, years of custody for a federal appellant) can – and often do – turn on this complex and nuanced analysis.   
 
Appellate advocates may be required to address in federal court whether a decades-old state conviction has “the use of force” as an element. This can present complicated questions. For example, what if a criminal statute sets out alternative elements by which a person may commit a crime, some of which contemplate the use of force, some of which do not? See Mathis v. United States, 136 S.Ct. 2243 (2016). Assuming a defendant is convicted under such a “divisible” statute, how can an attorney show which elements relate to her client’s past conviction? See id.; Shepard v. United States, 544 U.S. 13 (2005). What if a state statute criminalizes the reckless use of force – could this count as a “violent” predicate offense? See United States v. Verweibe, 874 F.3d 258 (6th Cir.  2017).  
 
Alternatively, appellate attorneys should be prepared to argue whether a prior conviction constitutes one of the four remaining enumerated offenses under the ACCA.  Although this seems like a straightforward task, it is anything but. Only those convictions with elements that are identical to, or narrower than, the “generic” crimes in the enumerated offense clause will qualify.
 
The most recent example involves Tennessee aggravated burglary, Tenn. Code Ann. § 39-14-403.  Despite being a “burglary” statute, the United States Court of Appeals for the Sixth Circuit has held that, because the elements listed in the Tennessee Code are broader than those of generic burglary, Tennessee aggravated burglary is not a “violent felony” within the meaning of the ACCA.  See United States v. Stitt, 860 F.3d 854 (6th Cir. 2017). Conversely, a prior conviction for “burglary,” Tenn. Code Ann. § 39-14-402, as a Class D felony, will qualify as a violent felony under the ACCA. United States v. Ferguson, 868 F.3d 514 (6th Cir. 2017). Put another way, the current status of federal law is: in Tennessee, aggravated burglary is not a violent felony, but Class D burglary is. 
 
The ACCA presents some of the most rapidly changing and nuanced criminal appellate issues, and appellate attorneys must be prepared to address them thoroughly. Trial attorneys should keep abreast of them, as well, so that they may appropriately advise their clients about potential significant future consequences. One tip to help stay on top of the developing law: sign up for the 6th Circuit’s free listserv, which will push daily opinions to your e-mail inbox as soon as they are released: http://www.ca6.uscourts.gov/opinions. The TBAToday newsletter also includes all published 6th Circuit opinions the day they are released.
 
The Armed Career Criminal Act is a substantial facet of federal criminal litigation. Despite the shifting legal landscape, one thing is certain: more guidance is coming. The Supreme Court has granted certiorari in Stitt, supra, and it will no doubt weigh in on these and other issues in the months to come. It’s anyone’s guess as to how profoundly the law may change, if at all, as a result. The only thing a skilled appellate advocate can do is be prepared.

— Kyle J. Wilson is the Section Chair for the TBA Appellate Practice Section.
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Memphis Man Shot by Police During Traffic Stop

A Memphis man was critically wounded after being shot by police during a traffic stop on Monday, The Commercial Appeal reports. Memphis police shot Martavious Banks after he allegedly fled the location of the traffic stop on foot towards a nearby house. MPD later posted a tweet stating: "An armed male driver got out of the vehicle and fled… Officers gave chase and a confrontation occurred. The driver was shot." A standoff developed following the shooting, in which members of Banks' family and the community appeared at the scene demanding answers from the officers.

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Children of Lorenzen Wright Maintain Their Mother Was Not Involved in His Murder

The children of slain basketball star Lorenzen Wright adamantly dispute that their mother, Sherra Wright, had anything to do with his murder, according to a story in The Los Angeles Times. Wright’s body was found badly decomposed in a Memphis field where he was left after being shot twice in the head and torso and once in his forearm. Wright was ordered in a parenting plan to maintain a $1 million life insurance policy, which authorities believe may have been a motive. The children created a GoFundMe account in late June to help bail out their mother, but had not raised any cash when the article was published.

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Save the Date: TBA Criminal Law Forum

The TBA Criminal Justice Section will present its annual Criminal Law Forum on Dec. 7 at the Tennessee Bar Center in Nashville. This year's program will feature timely topics such as DNA forensics, the interplay between criminal and immigration law, attorney well-being and more. Following the program we will have a reception, providing networking opportunities for attendees and Criminal Justice Section members. Stay tuned for more details.

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