For The Defense - TACDL · 2016. 12. 30. · Laura Dykes, Nashville Frank Lannom, Lebanon West Tennessee: Kamilah Turner, Memphis Michael Working, Memphis Claiborne H. Ferguson, Memphis

For The Defense In this Issue

Annual Meeting Recap and DUI Defense Spotlight

July—September 2014 Volume 28—Number 3

Tennessee Association of Criminal Defense Lawyers

A special thanks to TACDL members Jim Simmons and David Raybin for their photos of the Annual Meeting

DUI Defense Seminar and TrainingDUI Defense Seminar and Training

October 16October 16--17, 201417, 2014 The Chattanoogan Hotel

Chattanooga, TN Chattanooga, TN

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2 For the Defense Jul - Sep 2014

In this Issue:

3 President’s Message By: Sam Perkins 4 From the Executive Director By: Suanne Bone 5 TACDL Roundtables 6 News from Capitol Hill By: Nathan H. Ridley 8 State Case Law Update By: Chelsea Nicholson 10 Juvenile Defense Seminar Schedule

September 19, Knoxville 11 TACDL Membership Benefits 12 DUI Defense Seminar and Training October 16-17, Chattanooga 14 Federal Case Law Update By: Jonathan Harwell 19 Upcoming CLE Schedule

Editorial Board: Sara Compher-Rice Mary-Kathryn Harcombe Rob McKinney Chelsea Nicholson Mike Working

TACDL BOARD OF DIRECTORS 2014-2015

Samuel L. Perkins, President Paul J. Bruno, President-Elect Sara Compher-Rice, Treasurer Joseph Ozment, Secretary Mike Whalen, Past President East Tennessee: Marcos Garza, Knoxville Jonathan Holcomb, Morristown Jonathan Cooper, Knoxville Troy Bowlin, Morristown Keith Davis, Dunlap Jessica Greene, Knoxville Middle Tennessee: G. Jeff Cherry, Lebanon Mary-Kathryn Harcombe, Nashville Dana Ausbrooks, Franklin Bernie McEvoy, Nashville Laura Dykes, Nashville Frank Lannom, Lebanon West Tennessee: Kamilah Turner, Memphis Michael Working, Memphis Claiborne H. Ferguson, Memphis Lauren Fuchs, Memphis Ben Dempsey, Huntingdon Eric Elms, Memphis Committee Chairs Amicus Curiae: Jeff DeVasher CLE: Paul J. Bruno Death Penalty: Jim Simmons Finance: Patrick Newsom Forensic Experts: George Maifair Indigent Defense Funding: Collier Goodlett Joseph S. Ozment Innocence: Stephen Ross Johnson Juvenile Defense: Chris Kleiser Legislative: Melanie R. Bean G. Jeff Cherry Long-Range Planning: John G. Oliva Membership: Lisa Naylor Past Presidents: Ann C. Short Personnel: Laura C. Dykes Publications: Sara Compher-Rice Strike Force: Rich McGee TACDL Staff Suanne Bone, Executive Director Austin Brown, Communications Director

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From the President Sam Perkins

Those of us privileged enough to be in Memphis for the annual meeting leave with a tremendous sense of renewal. The law school at the University of Memphis was an absolutely top rate facility. Events included a great lunch at the Rendevous and a beautiful evening on a Beale Street balcony. But perhaps the most powerful moment for most attendees came as they each toured the National Civil Rights Museum. As we followed the museum tour to the balco-ny where Dr. King was cut down, a single theme emerged in exhibit after ex-hibit after exhibit. In each century, in each decade, in each state, the leaders and people struggling for civil rights have all been asking for justice.

On his last night in Memphis, Dr. King preached that he had been to the mountaintop, and he had seen the promised land. Dr. King said that he might not get there, but we would make it one day as a peo-ple. On their last night in Memphis, TACDL lawyers young and old were renewed and rededicated to continue the journey up the mountaintop. The call to justice is a heavy burden for those of us lucky enough to receive the calling. The jour-ney is never easy, but the heavy burden seems easier to carry when there are others standing with you and sharing the load.

As I took my own personal walk through the exhibits, I was struck by the similar message from the people that we were learning from inside the museum and those we were learning from at the law school. One exhibit was a lonely jail cell with chipped paint, rusty iron bars, and a simple cot with no sheets. I sat there looking at a bare cinderblock wall and listened to Dr. King reading his “Letter from the Birmingham Jail.” I was reminded of Lisa Naylor speaking that morning of how important it is to listen to our clients. How can we tell their story if we haven’t even heard it? How often are you excited to read your client’s “Letter from a Tennessee Jail?”

I watched a video of a young future congressman named John Lewis standing arm in arm with a group of brave citizens on a bridge in Selma, Alabama as they began a march to Montgomery. The marchers stood their ground as the full weight of a brutal government unloaded on the group with over-whelming force. Watching this brave stand and brutal beating made me remember how we, as defense attorneys are the only thing standing in the way to prevent the government from crushing our client. The only people making the government follow the law are defense attorneys.

I am so proud to be the president of this organization, but I am just as proud to be a member of TACDL. While I am honored to be your leader, I am just as honored to stand arm and arm with you to protect the citizens of this state. Let me encourage you to bring others to join us arm in arm. I hope that each of you can encourage one new member – just one – to stand with us for the people of Tennessee. More members means more people to learn from, more people to share with, and more lawyers advancing the cause of justice. My challenge to you all is to help grow this wonderful organization by one member. Together we will be even stronger as we stand arm in arm for liberty and justice for all.

Sam Perkins is an attorney practicing in Memphis. He may be reached at 901-523-8832.

From the Executive Director Suanne Bone

TACDL recently celebrated its 41st Annual Meeting and CLE Seminar on August 1-2 in Memphis. Attorneys from across Tennessee gathered for two days of training and camaraderie. The newly renovated Cecil C. Humphreys School of Law played host to the CLE seminar. A special thank you is offered to the mem-bers of the Memphis TACDL delegation who hosted a welcome reception on Thursday evening at the Jerry Lee Lewis’ Café & Honkey Tonk on Beale Street.

The seminar began on Friday morning with dynamic presenters – thank you to Lorna McClusky and her Memphis team for securing the slate of speakers. On Friday evening a dessert reception and tour was held at the newly reno-vated National Civil Rights Museum. The presentations resumed on Saturday morning.

The Annual Membership Meeting was held on Saturday at the Rendezvous. Mike Whalen handed the President’s gave to Sam Perkins (Memphis) and the following members were elected to serve on the Executive Committee: Paul Bruno (Nashville) as President-Elect, Sara Compher-Rice (Knoxville) as Treasurer, Joe Ozment (Memphis) as Secretary and Mike Whalen (Knoxville) as Past President. Thank you to the outgoing board mem-bers for their service to TACDL and welcome to the new board members who were elected to three year terms. During the luncheon the following individuals received awards. The Joseph B. Jones award was presented to Lor-na McClusky. The Robert W. Ritchie award was presented to Rob McKinney. The Capital Defense award was presented to Patrick McNally. The Massey McGee Trial Advocacy award was presented to Joseph McClusky, Taylor Eskridge, Bailey Harned and in memory of Glenn Shinaberry. The workhorse award was presented to Lar-ry Drolsum and Rich McGee.

The 7th Annual DUI Seminar and Training is right around the corner. The two day training will be held on October 16-17. Rob McKinney is taking the two day training – for the first time - to Chattanooga at The Chat-tanoogan Hotel. The first annual DUI workshop will also be held in conjunction with the seminar. Twenty –four attorneys will attend the workshop. This is the first time TACDL has attempted a two day specialty college! A complete copy of the seminar schedule is listed on pages 12 and 13 of this issue.

The TACDL Board of Directors meeting will be held on October 16, during lunch on day one of the DUI seminar. All TACDL members are invited to attend the board meeting.

As always, feel free to contact me with questions or concerns. I appreciate the guidance from all TACDL members and look forward to working with you in the future. Suanne Bone is the Executive Director of TACDL. She may be reached at [email protected] and 615/329-1338.

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Roundtables Nashville

1st Thursday of each month Rich McGee and Lisa Naylor

615-254-0202 [email protected] and [email protected]

Chattanooga 1st Thursday of each month

Myrlene Marsa and Rich Heinsman 423-756-4349 (Myrlene) and 423-757-9995 (Rich)

Williamson County

3rd Thursday of each month Kimberly & Ben Signer

615-794-4744 [email protected]

Memphis 3rd Thursday of each month

Lauren Fuchs 901-384-4004

[email protected]

Knoxville Last Thursday of each month

Mike Whalen 865-525-1393

[email protected]

Join fellow criminal defense professionals for discussion on pertinent legal issues and be entered into a drawing for a free CLE!


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News from Capitol Hill Nathan H. Ridley

Legislative Process 101. The General Assembly has completed its work for 2014. Pursuant to HJR1192, the 108th General Assembly of the State of Tennessee stood in adjournment sine die at the close of business in both houses on April 17, 2014. The 109th Tennessee General Assembly will convene at noon on January 13, 2015.

Legislative Update, Top Five New Statutes for 2014.

Balanced Budget, almost. Chapter 919. The General Assembly balanced its use of recurring revenues with recurring expenditures except in the TennCare program where some reserves were used to patch over a portion of proposed provider cuts.

Wine. Chapter 554. Tennessee will become the 34th state to authorize the sale of wine in retail food stores in 2016 if local communities approve such by referenda. The earliest date for a referendum is the November 2014 election. If successful, wine may be sold in retail food stores beginning July 1, 2016. In the meantime, existing Tennessee package stores have been able to sell a host of new food, beverage and tobacco products in addition to wine and spirits since July 1, 2014.

Tennessee Promise. Chapter 900. This is the signature accomplishment of the Haslam Administration during the 2014 session. Most high school graduates will be able to attend a public two year college tuition free beginning in the fall semester of 2015.

Annexation. Chapter 707. Tennessee municipalities will no longer be able to annex territory without the prior approval of the property owner being annexed.

Pseudo-Ephedrine. Chapter 906. In an effort to reduce the production of methamphetamine and yet recognizing that Tennessee is the on the belt buckle of the allergy belt, the General Assembly reduced the amount of products containing ephedrine or pseudoephedrine that may be purchased in a month or a year without a prescription.

Bills of Note for the Defense. The 108th General Assembly enacted a number of bills affecting the crimi-nal justice system during the 2014 session.

Successes:

Chapter 902 which reduces the jail time for second and third time DUI offenders and substitutes treatment participation as part of the probationary period.

1A) Chapter 922 which corrects the 2013 statute that required defendants to secure a new bail bond upon entering a plea agreement or being convicted.

Chapter 804 re: Open Records maintained for sex offenses during trial and sentencing.

Chapter 618 which establishes a five year statute of repose for any action or suit against an at-torney.

SB 1727 / HB 1572 re: witness list disclosure was deferred indefinitely.

SB 1726 / HB 1524 re: admissibility of photographs during criminal trials was deferred indefi-nitely.


Jerry Richards & Associates, L.L.C.

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Relationship Building. The legislative process is built upon relationships. Using the TACDL legislative breakfast as a springboard, TACDL members and their legislative troops have worked to build relationships with the members of the General Assembly with a particular focus on the committee and subcommittee levels that directly affect the practice of criminal defense law. While we still take some punches, as a measure of success, TACDL now has legislators seeking our opinions on bills and amendments before they are considered.

Setbacks:

Chapter 820 which creates the criminal offense of being pregnant and addicted to narcotic drugs.

1A) Chapter 940 which creates the continuing sexual offense of a child.

Public Service Note. Howard Baker died on Thursday, June 26, 2014 at the age of 88. Two notable comments come to mind with all the kind words that have been spoken and written about him. First, anytime he was sitting across a desk from someone in disagreement, he told himself to keep in mind: You know - the other fellow might be right. Second, from of all people, Dan Quayle, when he was a senator summed it up: “There’s Howard Baker, and then there’s the rest of us senators.” We should all keep the Baker family in our thoughts and prayers as we celebrate a life well lived.

Calendar Notes: State offices will be closed Monday, September 1, 2014 for the Labor Day holiday. The last day to register to vote for the November general election is Monday, October 6, 2014. The November general election is Tuesday, November 4, 2014. The 109th General Assembly will convene on Tuesday, January 13, 2015. Nathan Ridley is an attorney with the Nashville firm, Bradley Arant Boult Cummings LLP. You may con-tact him by e-mail at [email protected].

mailto:[email protected]�

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State Case Law Update May—July 2014 Chelsea Nicholson

I. Court of Criminal Appeals CONFRONTATION CLAUSE State of Tennessee v. Charles Sharp, W2013-00330-CCA-R3-CD, Shelby Co., 7/28/14, The Defendant was indicted for one count of especially aggravated sexual exploitation of a minor, four counts of rape, one count of sexual battery by an authority figure, one count of statutory rape, and one count of vandalism under $500. The Defendant was acquitted of all charges ex-cept especially aggravated sexual exploitation of a minor, on which the jury was hung. See State v. Sharp, 327 S.W.3d 704, 708 (Tenn. Crim. App. 2010). The Defendant was tried again on the charge of especially aggravated sexual exploitation of a minor and convicted. Id. This court reversed the Defendant’s conviction and remanded for a new trial based on the State’s having read a witness’s testimony from a prior trial into evidence without having shown the witness’s unavailability. Id. at 709-712. The Defendant was tried twice more on the charge of especially aggravated sexual exploitation of a minor, and the juries were unable to reach a ver-dict. In this case, the Defendant was tried and convicted again on the same charge and sen-tenced to 12 years of incarceration. The Defendant appealed. The CCA affirmed the Defend-ant’s conviction but concluded that the Defendant’s sentence violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and therefore, modified the Defend-ant’s sentence from twelve years to nine years. DUI State of Tennessee v. Larry Mitchell Brooks, M2013-00866-CCA-R3-CD, Maury Co., 6/6/24, The Defendant was indicted for one count of DUI, one count of violation of the open container law, one count of violation of the registration law, one count of violation of financial responsi-bility law, and one count of failure to maintain control. Prior to trial, the Defendant filed a mo-tion to suppress the blood sample evidence on the basis that the State was unable to provide proper chain of custody for the sample. After a hearing, the trial court granted the motion to suppress. The trial court entered an order of nolle prosequi. The State filed a notice of appeal on the same day that the order of nolle prosequi was entered. The CCA determined that Tenn. Code Ann. § 55-10-410 does not require the certificate of the blood draw to include the person who took the blood specimen in order to establish chain of custody and that the evidence at the hearing on the motion to suppress adequately established the chain of custody. The trial court was reversed.

http://www.tsc.state.tn.us/sites/default/files/sharpcharlesopn.pdf�http://www.tsc.state.tn.us/sites/default/files/brookslarrymitchellopn.pdf�


State of Tennessee v. Marvin Roscoe, W2013-01714-CCA-R9-CD, Shelby Co., 7/11/14, This was an interlocutory appeal by the State of the trial court’s granting in part the Defendant’s mo-tion to suppress. The Defendant was indicted for DUI and DUI over .08%. The Defendant filed a motion to suppress any evidence seized or statements made as a result of his stop and arrest. The trial court entered an order granting in part the Defendant’s motion to suppress. The State appealed arguing that the trial court erred. The CCA reversed the judgment of the trial court. In this case, the officer submitted that the Defendant ran through a stop sign and was pulled over. The officer stated that he smelled alcohol when the Defendant rolled down his window. He asked the Defendant to step out of his vehicle and perform field sobriety tests. The Defendant was subsequently arrested for DUI. The trial court found that while the investigatory stop was constitutional, “that Officer Thomas lacked probable cause to arrest the defendant following the preliminary HGN test.” The trial court suppressed any evidence or statements pertaining to or obtained after the Defendant’s arrest. The CCA reversed finding, “although the trial court was correct in concluding that the odor of alcohol alone was insufficient to establish probable cause, the combination of the odor of alcohol with other signs of intoxication supports a finding of probable cause for the DUI arrest.” II. Tennessee Supreme Court DOUBLE JEOPARDY State of Tennessee v. Glover P. Smith, M2011-00440-SC-R11-CD, Rutherford Co., 6/19/14, The Defendant was indicted on two counts of fabricating evidence and on six counts of making a false report arising out of the disappearance of his wife. A jury convicted the defendant on all counts, and the trial court imposed a sentence of one year in the county jail followed by six years on probation. After a hearing on the Defendant’s motion for new trial, the trial court af-firmed the convictions for making a false report but dismissed the convictions for fabricating evidence after concluding that no investigation was “pending” when the Defendant fabricated evidence. Both the State and the Defendant appealed. The CCA reinstated the Defendant’s con-victions for fabricating evidence, dismissed as multiplicitous two convictions for making a false report, and affirmed the remaining convictions and sentences. The TNSC granted the De-fendant permission to appeal. The TNSC affirmed the CCA’s reinstatement of the Defendant’s convictions for fabricating evidence and concluded that two of the Defendant’s convictions for making a false report should be dismissed because the evidence was insufficient to support these convictions. The TNSC also concluded that three of the Defendant’s convictions for mak-ing a false report are multiplicitous and therefore dismissed two of those convictions. The CCA was affirmed in all other respects. Chelsea Nicholson is a criminal defense lawyer, who practices in Nashville, Tennessee. She can be reached at [email protected] or 615-256-0138.

http://www.tsc.state.tn.us/sites/default/files/roscoemarvinopn.pdf�http://www.tsc.state.tn.us/sites/default/files/smithglover_opn.pdf�mailto:[email protected]�

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Juvenile Defense Seminar September 19

University of Tennessee College of Law, Knoxville Approved by the TN CLE Commission for a maximum of 7.00 credit hours: 5.00 general, 2.00 dual

Call 615-329-1338 or visit www.tacdl.com to register today!

_____________

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8:00

Registration and breakfast

sponsored by UT Legal Clinic

8:30

10 Supreme Court cases every juvenile defender should know

Maya Sheppard & Wendy Bach (.75 gen)

9:15

Adolescent Development JTIP Curriculum

Theodora Pinnock, MD & Jennifer Hall

(1.50 gen)

10:45

Break

11:00

Cracking open juvenile appeals in TN: roundtable discussion

Randee Waldman, Tim Arnold, Penny White

moderated by Chris Kleiser (1.25 gen)

12:15

Lunch (provided)

1:00

Critical Issues with Guilty Plea and Dispositional Planning. The ethics of plea counseling with the

youth client

Wendy Back, Chris Kleiser & Susan Kovac (2.00 dual)

3:00

Break

3:15

Motion Practice– JTIP Curriculum

Randee Waldman & Jerry Black (1.50 gen)

4:45

Wrap Up

5:00

Adjourn


Membership Benefits ———————————————————

Amicus: Members monitor the appellate courts and file briefs on issues concerning criminal law.

Continuing Legal Education: Provides 80+ hours of CLE across the state annually.

Criminal Justice Policy: Members serve on the Judicial Selection Commission, Judicial Evaluation Commission, Bench-Bar Relations Commission, Domestic Violence State Coordinating Council, and various short-term task groups to represent the criminal defense bar.

Forensic Experts: Database of expert witnesses for use by members.

Legislative: Employs a lobbyist to monitor and work with legislative committees, who informs members of issues in the Legislature and other policy-making bodies.

Resource Library: Educational materials and videos available for purchase from past semi-nars.

Member Network: Members provide assistance to each other in practicing criminal law through the Members-Only listserv. Also, a new attorney mentoring program is available upon request.

Publications: Publishes a quarterly newsletter entitled For the Defense, a weekly on-line news-letter entitled The Weekly Writ, and Tennessee death penalty manuals.

Strike Force: Specifically designated members provide free counsel to other members facing criminal contempt charges in the courts for “zealously” representing clients’ rights.

Website: Information pertaining to TACDL, its Board of Directors, current membership list, a listing of all CLE seminars for the year and links to research sources.

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The Chattanoogan Hotel 1201 Broad Street

Chattanooga, TN 37402

October 16-17, 2014

Tennessee Association of Criminal Defense Lawyers

DUI Defense Seminar and Training

One Day Both Regular, Sustaining: $250 $495

Affiliate: $250 $495

Pub Defender: $200 $395

New: $200 $395

Post 1993 Life: $100 $195

Pre 1993 Life: $0 $0

Law Students: $75 $150

Non-Members: $325 $650

Seminar Materials only: $75

Registration Fees HOTEL ACCOMMODATIONS: TACDL reserved a block of rooms with the

Chattanoogan Hotel If you are interested in a room, please contact the hotel at

800-619-0018 or by visiting www.chattanooganhotel.com by September 22, 2014 and advise the hotel you are with the Ten-nessee Association of Criminal Defense Law-yers, using Group ID: 517052 for the group

rate.

The rate is $119 /day.

Pending approval by the TN CLE Commission for 15.00 credit hours (11.75 gen, 3.25 dual)


SEMINAR SCHEDULE

Call 615-329-1338 or visit www.TACDL.com/

upcoming-events to register today!

Wednesday, October 15th

8:30 Welcome reception at The Foundary Sponsored by:

Thursday, October 16th

7:15 Registration

8:00 Preparing for the Preliminary Hearing Jerry Summers (1.0 gen)

9:00 Preparing to Win without Experts Judge Mark Fishburn (1.25 dual)

10:15 Break

10:30 DUI Case Law Update Sara Compher-Rice (1.25 gen)

11:45 Lunch & TACDL BOD meeting

1:15 Warrantless Searches & Seizures Jay Steed (.75 gen)

2:00 Topic TBA Marcos Garza (1.0 gen)

3:00 Break

3:15 Topic TBA Andrea Hayduk (1.0 gen)

4:15 Observations from 30 years in the trenches Ed Fowlkes (.75 gen)

5:00 Insights from a former DUI Officer Ron Lucarini (.50 gen)

5:45 Adjourn

6:30 Cheese & Wine Tasting Reception at DeBarge Vineyards & Winery

Friday, October 17th 7:30 Ethics at Sunrise Panel Discussion (1.0 dual) 8:30 Blood Alcohol Issues Deandre Grant (1.25 gen) 9:45 Break Sponsored by: 10:00 DRE Doug Murphy (1.25 gen) 11:15 Lunch 12:30 Drugged Driving Issues Dr. Jimmie Vanetine (1.0 gen) 1:30 Updates on 2013 SFST changes Tony Corrato (1.0 gen) 2:30 Break 2:45 Trial Skills that work Panel Discussion (1.0 general) 3:45 Ethics TBA (1 dual) 4:45 Adjourn

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Federal Case Law Update July-August 2014

Jonathan Harwell The Supreme Court closed out its term with a couple of good opinions, the cellphone decision in Riley and the death penalty decision in Hall -- both the kind of cases that seem like they should be straightforward but which the Court so often gets wrong due to misunderstanding or ignoring the technological or scientific reality. I also enjoyed Justice Scalia’s words in Abramski, sadly in dissent, on the rule of lenity, a rule that in my experience is often given short shrift by judges. As he wrote, quoting Chief Justice Marshall, the rule of lenity is “founded on the tenderness of the law for the rights of individuals.” Abramski v. United States, 134 S.Ct. 2259 (2014): Addressing issues relating to straw purchasers of guns from licensed dealers. The defendant purchased a firearm from a licensed firearm dealer. Pursuant to an ATF form, he was asked “Are you the actual transferee/buyer of the firearm(s) listed on the form?” He answered yes and certified the correctness of his answers, even though the purchase of a Glock 19 was for his uncle. He was indicted for a violation of 18 U.S.C. §§922 and 924. The Supreme Court, in an opinion written by Justice Kagan, affirmed the conviction. The defendant’s primary argument was that the federal gun law is not concerned with straw purchasers, and so long as the person at the counter is eligible to purchase a gun, there is no vi-olation. The Court acknowledged that federal gun laws do not directly address transactions be-tween licensed dealers and straw purchasers. It reasoned, however, that the defendant’s argu-ment, if accepted, would “virtually repeal” the core provisions of the gun law: “And no part of that scheme would work if the statute turned a blind eye to straw purchases—if, in other words, the law addressed not the substance of a transaction, but only empty formalities.” If a straw buyer could appear at a dealer, be directed to purchase a specific weapon by a felon, and pro-vided money to do so, then the background check requirement would be rendered useless. The same would be true of the requirements that the buyer appear in person and that the dealer re-tain information regarding the purchaser. The Court also noted that this conclusion was con-sistent with its “standard practice” of “ignoring artifice” in identifying the parties to a transac-tion. The Court also rejected the defendant’s arguments that the statutory scheme allowed for guns to be purchased as gifts, and chose not to regulate secondary (non-dealer) transfers of guns. The Court thus concluded that the defendant had made a material misrepresentation in filling out the form and thus had violated §922(a)(6). The Court also rejected the alternative


argument that there was no violation when the ultimate purchaser (i.e., the uncle) was himself eligible to purchase a firearm, and thus the falsity was not material. Finally, as to his convic-tion under §924(a)(1)(A), making a false statement with respect to records required to be kept by a firearms dealer, the Court also disagreed with the defendant’s argument that the infor-mation on the form did not fall under that statute. Justice Scalia, joined by Chief Justice Roberts, and Justices Thomas and Alito, dissent-ed, essentially for the reasons offered by the defendant as set forth above. He also gave an ex-pansive discussion of the rule of lenity, which he termed a “liberty-protecting and democracy-promoting rule.” Hall v. Florida, 134 S.Ct. 1986 (2014): For a defendant arguing that he or she is not eligible for the death penalty due to intellec-tual disability, an IQ test score of greater than 70 does not render him or her automatical-ly eligible. The defendant, along with an accomplice, kidnapped, raped, and murdered a woman in 1978. He was sentenced to death. He was resentenced in order to be permitted to present evidence of non-statutory mitigating circumstances. At that re-sentencing, he presented “substantial and unchallenged evidence of intellectual disability” (formerly known as “mental retardation”), ex-acerbated by “horrible family circumstances.” The jury nonetheless voted to sentence him to death again. After Atkins v. Virginia, holding that the Eighth Amendment prohibited the exe-cution of intellectually disabled individuals, Hall filed another motion. At a hearing, he pre-sented evidence including an IQ test with a score of 71. The state court denied his motion, finding that an IQ below 70 was a threshold requirement. The Supreme Court, in an opinion written by Justice Kennedy, reversed and remanded. He began by noting the policies behind the prohibition on execution of the intellectually disa-bled. On the question of how to define intellectual disability, he turned first to medical experts. He concluded that the Florida court’s interpretation of state law, establishing a hard-and-fast 70 threshold, was contrary to medical expertise. He wrote:

Florida's rule disregards established medical practice in two interrelated ways. It takes an IQ score as final and conclusive evidence of a defendant's intellectual capacity, when experts in the field would consider other evidence. It also relies on a purportedly scientific measurement of the defendant's abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise.

He emphasized that many states take into account the standard error of measurement of the IQ test (i.e., that the IQ score is essentially a range, to be refined by other evidence), which Florida does not. He wrote: “[I]n 41 States an individual in Hall's position—an individual with an IQ score of 71—would not be deemed automatically eligible for the death penalty.” The Court also interpreted Atkins as being consistent with this conclusion: “The clinical definitions of intellectual disability, which take into account that IQ scores represent a range,

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not a fixed number, were a fundamental premise of Atkins.” Finally, it again noted the “unanimous professional consensus” against an absolute cut-off. It thus concluded:

This Court agrees with the medical experts that when a defendant's IQ test score falls within the test's acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.

Justice Alito, joined by Chief Justice Roberts, and Justices Scalia and Thomas, dissent-ed. He criticized the reliance on professional societies, such as the American Psychiatric Asso-ciation, in conducting the Eighth Amendment’s evolving-standards analysis. He noted that At-kins had left to the states the task of determining “which offenders are in fact retarded.” He ar-gued that the supposed trend in other states was overstated by the majority. Loughrin v. United States, 134 S.Ct. 2384 (2014): §1344(2) does not require that defendant intended to defraud a financial institution. The defendant executed a scheme of stealing checks out of the mail and forging signatures. He would take the stolen checks to a retailer and use the check to purchase merchandise, which he would immediately return for cash. Six checks were passed in this way to Target. The defend-ant was charged with six counts of violating 18 U.S.C. §1344(2), executing a scheme to obtain money of a financial institution under false pretenses. At trial, he argued that the jury should be instructed that it could convict only if it found that he acted “with intent to defraud a financial institution.” (The idea being that he acted only with intent to defraud Target, not any financial institution.) That instruction was not given. The Supreme Court, in an opinion written by Justice Kagan, affirmed the conviction. She noted that §1344(1), which was not in question here, defined the violation of intending “to defraud a financial institution.” If §1344(2), the portion at issue here, was interpreted to in-clude the requested intent requirement, it would merely duplicate §1344(1). She also rejected the argument that, without such a requirement, the federal statute would reach every “garden-variety con” normally within state jurisdiction. She reasoned that §1344(2) already has a limi-tation to avoid this problem, namely that the defendant must acquire the bank property “by means of” the misrepresentation in question. Thus situations in which banks are involved merely fortuitously are not covered by the statute. Justice Scalia, joined by Justice Thomas, concurred in part, stating that he would hold open whether the “by means of” limitation should be read in the way offered by the majority. Justice Alito also concurred in part. Riley v. California, 134 S.Ct. 2473 (2014): Warrant required to search a cellphone seized pursuant to arrest. Defendant Riley was stopped and arrested. A search pursuant to arrest uncovered a cell phone (a smartphone). An officer examined the phone and determined that some words were


preceded by “CK,” a gang term. Subsequently, another officer also examined the contents of the phone closely, finding, among other things, a photograph of Riley standing in front of a car believed to have been used in an earlier shooting. Riley was later charged in that shooting, and after the denial of a motion to suppress, testimony regarding the contents of his phone was in-troduced. In a separate case, defendant Wurie was seen to make an apparent drug sale. Upon ar-rest, a flip phone was taken from him. That phone later began ringing with calls from “My house.” That number was then traced. A warrant for the address associated with that number was obtained, and drugs and guns were found. Wurie was convicted of drug offenses and of being a felon in possession. The Supreme Court, in an opinion written by Chief Justice Roberts, considered the law-fulness of these warrantless searches of cellphone seized pursuant to lawful arrests. The Court noted the importance of this question given the ubiquity of cellphones, which are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Drawing on precedent (Chimel, Robinson, Gant), the Court held that two important concerns for searches incident to arrest are harm to of-ficers and destruction of evidence. It concluded that neither of those are significantly present in the cellphone context. As to the first, the Chief Justice wrote: “Once an officer has secured a phone and elimi-nated any potential physical threats, however, data on the phone can endanger no one.” As to the destruction of evidence, the Court noted that the phones could have been secured pending issuance of a warrant, and therefore the defendants could not have destroyed any evidence on them. As to the proffered danger of “remote wiping,” by which a third party could remotely remove data from the phone, the Court noted that there was no indication that such was a “prevalent” problem, and could be prevented by removing the phone’s battery or putting it in-side aluminum foil. As to the privacy interests at stake, the Court reasoned that “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's per-son,” given the amount and type of information contained on a smart phone.

[I]t is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate…. Allowing the police to scru-tinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.

The Court noted that: “Privacy comes at a cost,” but concluded: Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,”…. The fact that technology now allows an individual to carry such infor-mation in his hand does not make the information any less worthy of the protec-

__________________________________________________________________


tion for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.

Justice Alito concurred. Selected Sixth Circuit Cases: United States v. Babcock, 753 F.3d 587 (6th Cir. 2014): §4B1.5’s enhancement requiring that instant offense be committed “subsequent to” prior sexual offense contains no time limitation, and applies even to 15-year-old prior convictions. United States v. Dado, --- F.3d ----, 2014 WL 3360853 (6th Cir. July 10, 2014): Rejects argu-ment that mandatory minimum for 1,000 marijuana plants under §841(b) requires finding that defendant’s knew there were 1,000 plants. Explicitly declines to hold whether this strict liability mandatory minimum would survive due process scrutiny. Judge Merritt. Harris v. Haeberlin, 752 F.3d 1054 (6th Cir. 2014): Defendant not automatically entitled to pre-vail as a matter of law where prosecutors can no longer recall reasons for peremptory strike in post-trial Batson enquiry (conducted many years after trial), particularly where there was other circumstantial evidence for the trial court to rely upon. United States v. Jackson, 751 F.3d 707 (6th Cir. 2014): Sentence reduction under §1B1.10 can-not produce a sentence below the minimum of the amended guideline range. Concurrence by Judge Merritt lamenting that “It looks like no one with authority to correct the injustice is will-ing to do anything, and thousands of mainly black defendants will remain in prison unjustly for many more years.” Kennedy v. United States, --- F.3d ----, 2014 WL 2853848 (6th Cir. 2014): No right to counsel for preindictment plea negotiations, and thus there can be no ineffective assistance claim. McCarley v. Kelly, --- F.3d ----, 2014 WL 3360833 (6th Cir. July 10, 2014): Granting condition-al writ in case where testimonial statements of three-year-old were read into evidence by a child psychologist. Disagreeing with the state court on the issue of whether the admission of this evi-dence was harmless. United States v. Musgrave, --- F.3d ----, 2014 WL 3746811 (6th Cir. July 31, 2014): Error for District Court, in white-collar case, to consider “four years of legal proceedings, legal fees, the likely loss of his CPA license, and felony convictions that would follow him for the rest of his life” to support a lessened sentence (of 1 day). United States v. Payton, 754 F.3d 375 (6th Cir. 2014): Where recidivist bank robber’s guideline


range was 17 to 22 years, and the Government requested 25 years, the District Court’s sentence of 45 years was unreasonable, particularly in light of its failure to address the defendant’s argu-ments for a lesser sentence. United States v. Phillips, 752 F.3d 1047 (6th Cir. 2014): Conviction for third-degree burglary under Florida statute is a violent felony for Armed Career Criminal purposes under the residual clause, due to the potential danger for a violent encounter with passersby. Judge Rogers dis-sented: “When pilfering a few stray eggs from the fenced yard of a chicken coop is considered ‘violent’, the term ‘violent’ becomes unmoored from its meaning.” United States v. Reid, 751 F.3d 763 (6th Cir. 2014): No reversible error when trial court mistak-enly gave defendant only 9, and not 10, peremptory challenges, where defendant did not ex-haust all the challenges that he had been given. Jonathan Harwell practices law in Knoxville. He can be reached at [email protected] or at (865) 637-8900.

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Documents

For The Defense - TACDL · 2016. 12. 30. · Laura Dykes, Nashville Frank Lannom, Lebanon West Tennessee: Kamilah Turner, Memphis Michael Working, Memphis Claiborne H. Ferguson, Memphis