Criminal

Accuser Says Johnson and Williams 'Were Like Animals,' in Her First Public Testimony

The woman at the center of rape allegations against two former University of Tennessee football players did not mince words in her testimony, telling jurors on Wednesday that A.J. Johnson and Michael Williams “were like animals” during the incident, The Knoxville News-Sentinel reports. The accuser maintains that she did not initially object when Johnson engaged in sex with her but refused when Williams joined in. The pair of ex-Vols contend the encounter was consensual.

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House Republicans Introduce Articles of Impeachment Against Rosenstein

Conservative lawmakers on Wednesday introduced a resolution calling for the impeachment of Deputy Attorney General Rod J. Rosenstein, The Washington Post reports. The effort was led by Reps. Mark Meadows, R-N.C., and Jim Jordan, R-Ohio, who are leaders of the conservative House Freedom Caucus. All 11 lawmakers who filed the resolution are members of the group. House Republicans have long been critical of the deputy attorney general, accusing him of withholding documents and being insufficiently transparent in his handling of the Russia probe led by special counsel Robert S. Mueller III. Tennessee Republican congressman Scott DesJarlais co-sponsored the impeachment resolution.

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Jury Selection Underway in the Trial of Former UT Football Player A.J. Johnson

Jury selection for the rape trial of University of Tennessee Football player A.J. Johnson is underway, with jurors being asked about controversial topics such as threesomes, interracial relationships, elitist athletes and the ‘Me Too’ movement, The Knoxville News-Sentinel reports. Johnson and former teammate Michael Williams are accused of raping a female UT athlete during a football victory party at Johnson’s South Knoxville apartment in November 2014. The profile of the case — involving a popular athlete and no eye-witnesses — has sparked concerns of a fair trial, with most of the potential jurors knowing Johnson’s name and the basics of the allegations against him.

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Gov. Haslam Considering High-Profile Clemencies

Gov. Bill Haslam is considering clemency in two high-profile cases prior to leaving office, The Tennessean reports. Among those being considered is Cyntoia Brown, who is serving a life sentence for a 2004 murder of Johnny Allen when she was 16. Brown’s case has been widely publicized, with advocates claiming that she was a victim of sex trafficking and killed Allen because she thought her life was in danger.
 
Haslam also received and is reviewing a request for clemency from Billy Ray Irick, who is scheduled to be put to death next month. Irick was convicted of the 1985 rape and murder of a 7-year-old girl in Knoxville but maintains that he was having a psychotic break at the time of the murder. His execution is scheduled for Aug. 9.

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Prior Crimes Not So Unique as to be Admissible Under TRE 404(b)

There are only so many ways that a particular crime can be committed, so how unique is a particular crime to another such that it is evidence of the identity of the perpetrator? TCCA ruled in State v. Peterson, Tenn. Crim. App. No. W2017-00308-CCA-R3-CD, Apr. 25, 2018, that the other crimes weren’t so distinctive or unique as to be admissible to prove identity in the case then-at-bar.
 
The court quoted several cases including State v. Roberson, 846 S.W.2d at 280 (Tenn. Crim. App. 1992).  “[M]ere similarity in the manner in which two crimes are committed does not produce the relevance necessary for admission — uniqueness does. For not only must the offenses have been committed similarly, but they must also have been committed in a unique and distinctive manner. Obviously, the more unique and distinctive the methods, the more appropriate is the inference. The converse also obtains that is, the less unique and distinctive the methods, the less appropriate the inference.”

Roger E. Nell serves as District Public Defender, 19th Judicial District and chairs the Tennessee Bar Association's Criminal Justice Section. 
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Brian Benczkowski Confirmed to Lead the Justice Department’s Criminal Division

The Senate on Wednesday voted 51 to 48 to confirm President Trump’s nominee Brian Benczkowski to lead the Justice Department’s criminal division, amidst the objection of Democrats who expressed concern regarding his representation of a Russian bank and lack of prosecutorial experience, reports The Washington Post. Benczkowski once represented Alfa Bank — a Russian firm that was referenced in a dossier containing allegations about Trump, his advisers and their possible Russian connections — at the request of a partner in his firm, Kirkland & Ellis. Benczkowski told lawmakers he would recuse himself from any matters involving the bank for two years and would permanently step aside from any matters that touched on his work for the institution.

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Suspect on Trial in Knox Craigslist Murder

A man who answered a Craigslist advertisement for a roommate is on trial this week in Knox County Criminal Court on charges of first-degree murder and abuse of a corpse, Knox News reports. Ryan Monroe Allen is accused of killing 42-year-old Kelly Shay Cozart inside the bedroom he rented and dumping her body in a creek in Monroe County just weeks after answering the online post. Prosecutors contend Allen beat Cozart to death inside the residence, but defense attorney Keith Lowe contends that all prosecutors can prove is that Cozart’s blood was in a bedroom where Allen once paid to sleep.

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ACLU of Tennessee Sues Mt. Juliet Over Civil Forfeiture

The ACLU of Tennessee on Tuesday filed a federal lawsuit against the city of Mt. Juliet, claiming that police there violated the U.S. Constitution when they seized a man's car during a criminal investigation of his son, The Tennessean reports. Officers took Lewis Cain's BMW after coming to his home with a warrant for his son. The ACLU-TN said the seizure was made without a search warrant or notice of a hearing, violating Cain’s Fourth Amendment rights. Police have defended seizing the car, saying they had spotted Cain's son selling drugs out of the BMW. You can read the complaint here.

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Legal Practice Tip: Prosecutor’s Ethical Duty to Disclose Broader than Brady

The Tennessee Board of Professional Responsibility issued an ethics opinion explaining that a prosecuting attorney’s ethical duty to disclose favorable information to the defense is broader than that required under federal constitutional law.“Tennessee Rule of Professional Conduct 3.8(d)" is a separate ethical obligation of prosecutors and was not meant to be coextensive with a prosecutor's legal disclosure obligations.  This ethical duty is separate from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders. A prosecutor’s ethical duty to disclose information favorable to the defense is broader than and extends beyond Brady.  Once a prosecutor knows of evidence and information that tends to negate the guilt of the accused, or mitigates the offense, or falls within RPC 3.8( d)’s disclosure requirement, the prosecutor ordinarily must disclose it as soon as reasonably practicable.” Formal Ethics Opinion 2017-F-163.

Roger E. Nell is the District Public Defender at 19th Judicial District of Tennessee and current Chair-Elect of TBA's Criminal Justice Section.
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Haslam Comments on Issues Surrounding Finalists for TBI Director Position

Gov. Bill Haslam says he understands issues that have been raised about the candidates he is considering to lead the Tennessee Bureau of Investigation and will be mindful of these concerns when personally interviewing each, The Chattanooga Times Free Press reports. Among the nominees are Acting TBI Director Jason Locke; former Bradley County Sheriff Tim Gobble and Knoxville Police Chief David Rausch.
 
Some of the issues raised regarding the nominees include a lawsuit brought against Gobble alleging violation of first amendment rights by his former finance director, the hiring of Locke’s son — a recent college graduate with no law enforcement experience — by the agency, sparking concerns of nepotism, and "professional courtesy" calls made by Rausch to then University of Tennessee head football coach Butch Jones about a rape investigation involving two players. Each candidate was approved by the independent TBI Nominating Commission for Haslam and will be subject to vetting by a retired FBI special agent to conduct background investigations on the nominees.
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