Jason Bryant Statement on Recent Coverage Regarding Lillelid Murders

In the weeks leading up to a scheduled hearing on her petition for resentencing, Ms. Karen Howell—one of the co-defendants who pleaded guilty to the Lillelid murders—along with her co-defendant, Ms. Natasha Cornett, released a pair of lengthy, self-serving statements that several media outlets have since published unedited and without verification.  The Greene County District Attorney’s Office and its agents have since responded to those statements with statements to the media of their own.

Jason Bryant, the then-14-year-old child who has also filed a petition for resentencing on account of his being a juvenile at the time of his offense, has not sought to comment publicly on the case.  However, in response to the recent, prejudicial coverage relating to his upcoming proceedings, Daniel Horwitz, lead counsel for Jason Bryant, has released the following statement on Mr. Bryant’s behalf:

_______________

My heart breaks for the Lillelid family, which suffered what can only be described as a horrific and unspeakable tragedy.  It is, however, highly inappropriate for Karen Howell, Natasha Cornett, the Greene County District Attorney’s Office, or any other party involved in this case to attempt to litigate disputed legal issues through the media.  Those attempts have seriously prejudiced Jason Bryant’s right to a fair proceeding, and they will likely necessitate a change of venue when his hearing takes place.

Although Rule 3.6(a) of the Rules of Professional Conduct strongly counsels against public comment in cases like this, Rule 3.6(c) includes an exception permitting attorneys to make public statements when it becomes necessary to correct a misimpression in the public record due to “the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.”  Consequently, the purpose of this statement is to correct three such misimpressions.

First, Mr. Bryant did not shoot anyone, and no jury has ever determined that he did.

Second, former District Attorney General Berkeley Bell’s statement that “the co-defendants blamed the shooting on Bryant because he was the youngest of the group” is accurate, as is his statement that “Bryant wasn’t part of the group.”  In contrast, Karen Howell’s and Natasha Cornett’s self-serving statements assigning Jason Bryant the blame for the Lillelids’ murders are not.  When Jason Bryant’s adult co-defendants discovered that Mr. Bryant—who was the only outsider to the otherwise closely-knit group, and who was also the youngest member of the group by far—was actually a juvenile who had pretended to be significantly older than he was, one of his adult co-defendants instructed him that he had to take responsibility for the Lillelids’ slayings.  That individual then pointed a gun at Mr. Bryant, shot him in the hand, and threatened to kill him if he did not.  Mr. Bryant still has visible scars from this event where the bullet went through his hand and entered his leg.

Third, Mr. Bryant was threatened and coerced into joining the group plea bargain to life without the possibility of parole against his will and against his clear legal interests.  Jason Bryant was just a fourteen-year-old child at the time of the Lillelids’ murders, and thus, he was not eligible for the death penalty on account of his being a juvenile.  As such, Mr. Bryant gained nothing from accepting a group plea bargain to a life sentence without the possibility of parole, which served only to spare his adult co-defendants the death penalty.

It is our position that these facts and the U.S. Supreme Court’s recent Eighth Amendment jurisprudence establishing that it is nearly categorically unconstitutional to sentence juveniles to life without the possibility of parole entitle Mr. Bryant to a new sentencing hearing.  These issues, however, must be decided in a court of law, rather than in the court of public opinion.  Accordingly, this will be Mr. Bryant’s first and only public statement on this case.  We ask that the parties and the media respect the judicial process and refrain from further prejudicing Mr. Bryant’s right to a fair proceeding going forward.

_______________

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Metro Drops “Obscene Bumper Sticker” Citation Against Dustin Owens; Concedes Bumper Sticker Is Protected By the First Amendment

Nashville, Tennessee, March 13, 2017—In response to a lawsuit filed by Dustin Owens after he was cited for displaying what his arresting officer claimed was an “obscene bumper sticker,” lawyers for the Metropolitan Nashville Police Department have conceded that “Mr. Owens is correct that the bumper sticker at issue does not fit the criteria of ‘obscene and patently offensive’ as those terms are defined in Tenn. Code Ann. § 55-8-187 and under relevant First Amendment jurisprudence.”  As a result, Metro has agreed to dismiss Mr. Owens’ citation, and it will also submit to a declaratory judgment that the bumper sticker at issue “is protected by the First Amendment to the U.S. Constitution.”  Under the parties’ settlement agreement, Metro will also pay for the costs of Mr. Owens’ lawsuit.

Mr. Owens’ resounding legal victory comes after extensive local and national media coverage of his arrest for displaying the following crass but comical bumper sticker:

Said Daniel Horwitz, Mr. Owens’ lead counsel: “The statute under which Mr. Owens was cited is facially unconstitutional.  Hard-core censorship of this nature also has no place in a free society.  We’re ecstatic about this victory, and we appreciate Metro’s prompt concession that the position taken by Mr. Owens’ arresting officer was nakedly meritless.”

Added David L. Hudson, Jr., who also represented Mr. Owens in the lawsuit: “Mr. Owens’ bumper sticker is clearly protected speech, a form of parody, and not remotely close to obscenity.  I applaud Dustin’s courage in challenging his unconstitutional citation, and I am proud to have represented him.”

Mr. Owens’ Complaint against the MNPD and his Application for a Temporary Injunction are available here and here, respectively.  The individuals referenced in this release will be available for further comment at daniel.a.horwitz@gmail.com and davidlhudsonjr@gmail.com once the parties’ settlement agreement has been approved by the Court.

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Bill Introduced to Allow In-Home Beauty Services in Tennessee

Nashville, Tenn. – February 8, 2017 — State Senator Steve Dickerson, R-Nashville, and State Representative Sam Whitson, R-Franklin, introduced legislation today that would allow Tennesseans to purchase cosmetology services in the privacy of their own homes.

The reform comes after The Tennessee Board of Cosmetology and Barber Examiners filed a complaint last year against Belle, a popular Nashville-based technology company that provides on-demand health and beauty services.  The Board initially alleged that Belle was violating the state’s cosmetology laws, but withdrew its complaint after Belle formally contested the Board’s allegations.  The Board’s decision to withdraw its complaint was covered widely in local, state and national media including Forbes​, ​Yahoo, ​Reason, ​the Nashville Business Journal​ and ​​the Memphis Commercial Appeal, among others.

“As we move forward into the 21st century, we must update state rules and regulations to reflect the realities of the 21st century economy,” said Senator Dickerson.  “This bill will remove barriers that are denying Tennesseans the opportunity to develop and grow in their chosen profession. By removing these impediments, we allow the entrepreneurial spirit of Tennesseans to flourish, increase freedom and enhance choice for our state’s consumers.”

“The regulatory structure of our state must be thoughtfully crafted in such a manner as to allow for constant innovation and facilitate consistent growth in the new economy,” added State Representative John Ray Clemmons, D-Nashville, an early supporter of the reform.  “Tennessee must strive to attract entrepreneurial talent and new jobs.”

“Last fall, the Tennessee Board of Cosmetology unlawfully attempted to shut down one of Nashville’s most exciting new tech companies for the sole purpose of protecting an out-of-date industry competitor from competition,” said Daniel Horwitz, Belle’s attorney.  “This bill ensures that the Board will be prevented from engaging in such lawless behavior ever again.”

“The repeal of these outdated regulations means beauty professionals can freelance in a way that they see fit, and whether that’s with us or by themselves, I believe everyone has that right,” said Armand Lauzon, CEO of Belle. “This new legislation paves the way for further innovations and economic growth in Tennessee, and perhaps most importantly, it will allow consumers to have the right to make the choices they deserve.”

Read more about the case below:

Tennessee Regulators Drop Complaint, Won’t Block Beauty App From Operating

Tennessee Wants To Shut Down This Beauty And Health App For Offering ‘Highly Disturbing’ Competition

Regulators withdraw complaint against Nashville-based startups

Tennessee Cosmetology Board Admits it Doesn’t Have Authority To Regulate Tech Companies

How This Nashville Tech Company Challenged a State Regulatory Board and Won

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New in the February 2017 Tennessee Bar Journal: Safeguarding Crime Victims’ Private Records Following The Tennessean v. Metro

By Daniel Horwitz:

In March 2016, the Tennessee Supreme Court ruled 4–1 that law enforcement’s investigative files are categorically exempt from public disclosure under the Tennessee Public Records Act (TPRA) throughout the pendency of a criminal case. The underlying lawsuit pitted a vast media coalition spearheaded by The Tennessean against both law enforcement officials and a rape victim who intervened to protect her privacy interests under the pseudonym “Jane Doe.” Ultimately, the court’s majority opinion represented a resounding victory for law enforcement and a significant setback for Tennessee’s news media, which lost on every substantive claim presented. At present, however, how the court’s ruling will affect crime victims’ ability to protect their private records from public disclosure after criminal proceedings have concluded is uncertain.

Continue reading New in the February 2017 Tennessee Bar Journal: Safeguarding Crime Victims’ Private Records Following The Tennessean v. Metro

The Tennessee Supreme Court Has Agreed to Hear a Laughably Egregious Case of Economic Protectionism

The Tennessee Supreme Court has agreed to hear a laughably egregious case of economic protectionism in its upcoming term.  The case pits Vanderbilt Law School alumnus Maximiliano Gluzman – a preeminently qualified lawyer who graduated Vanderbilt’s LL.M. program with an almost impossible 3.919 GPA – against the Tennessee Board of Law Examiners, which has refused to allow Mr. Gluzman to take the Tennessee bar exam solely because he’s foreign.

Given the extraordinary facts of Mr. Gluzman’s case, the Board will struggle to mount a straight-faced claim that its decision to deny Mr. Gluzman the opportunity to take the Tennessee bar exam is based on anything other than its interest in protecting Tennessee’s native-born attorneys from competition—a result that benefits lawyers but harms consumers by artificially raising prices.  As a consequence, the case has the potential to extend Tennessee’s already-robust precedent on economic liberty to an industry that it has never reached before: legal services.

In 2002, the United States Court of Appeals for the Sixth Circuit – which has jurisdiction over Tennessee – established ground-breaking federal precedent by holding that “protecting a discrete interest group from economic competition is not a legitimate governmental purpose” and violates the 14th Amendment to the U.S. Constitution.[1]  Significantly, though, the Tennessee Supreme Court boasts an even prouder history of protecting economic liberty under the comparable provisions of Tennessee’s state Constitution.  For example, in the 1956 case Consumers Gasoline Stations v. City of Pulaski, the Tennessee Supreme Court held that: “Although [a] city may have the right to regulate [a] business, it does not have the right to exclude certain persons from engaging in the business while allowing others to do so.”[2]  Additionally, more than half a century before that, the Tennessee Supreme Court held in Harbison v. Knoxville Iron Co. that:

“The ‘liberty’ contemplated in [the Tennessee Constitution] means not only the right of freedom from servitude, imprisonment, or physical restraint, but also the right to use one’s faculties in all lawful ways, to live and work where he chooses, to pursue any lawful calling, vocation, trade, or profession, to make all proper contracts in relation thereto, and to enjoy the legitimate fruits thereof.[3]

Of note, the Tennessee General Assembly has since expanded these precedents even further as a legislative matter by enacting the “Right to Earn a Living Act” in 2016,[4] which recognized that: “it is in the public interest to ensure the right of all individuals to pursue legitimate entrepreneurial and professional opportunities to the limits of their talent and ambition” without unnecessary governmental interference.

Ostensibly, bar admission rules are intended to protect the public from unqualified attorneys.  Historically, however, they’ve often been wielded to keep disfavored minorities—like Jews and women—from becoming lawyers instead.[5]  Barriers imposed between states themselves have also been used more often than not to “insulat[e] [in-state] practitioners from out-of-state competition,”[6] rather than being adopted for the purpose of promoting any actual public interest.  Such is the case with respect to Mr. Gluzman as well—a fact that the Tennessee Supreme Court is highly unlikely to overlook.

In Mr. Gluzman’s case, there can be no serious claim that he would pose even the slightest threat to the public if he were permitted to take the Tennessee bar exam.  In fact, during Mr. Gluzman’s hearing before the Board of Law Examiners, the Board itself conceded that Mr. Gluzman was “obviously a very, very qualified person.”  His extraordinary academic credentials also support this conclusion in full.  For example, while competing against Vanderbilt’s American JD students (in his second language, no less), Mr. Gluzman was able to graduate with an eye-popping 3.919 GPA—good enough to put him at the top of Vanderbilt’s Dean’s List each semester and quite possibly making him the most academically-qualified foreign applicant ever to apply to take the bar exam in Tennessee.  Two of Mr. Gluzman’s Vanderbilt Law School professors also provided expert testimony in support of his application to take the bar exam, with one observing that Mr. Gluzman was “one of the very best students I ever had the privilege of teaching in 20 years,” and the other testifying that he was “clearly top of the class.”  Mr. Gluzman’s application to take the Tennessee bar exam also comes after more than a decade of professional success as a corporate lawyer in Argentina.

Despite this sterling record of achievement, however, the Board of Law Examiners denied Mr. Gluzman not only the opportunity to become a lawyer in Tennessee—it told him that he may never even take the Tennessee bar exam.  The purported basis for the Board’s denial was that Mr. Gluzman’s undergraduate and legal education were not “substantially equivalent” to an American education: a conclusion that itself conflicts with an expert foreign credential evaluation report filed in his case that unequivocally concluded otherwise.  According to the Board, though, a foreign applicant like Mr. Gluzman must have earned “a degree that is equivalent to a Bachelor’s degree or higher followed by a degree that is equivalent to a Juris Doctorate degree,” which he did not.

Conveniently, because the vast majority of countries around the world combine undergraduate and legal educations into just a single degree over the course of a five- or six-year period, one expert witness testified that only “[foreign] students from nine Canadian provinces, a few Australian students, and a few Japanese students” may ever hope to win permission take the Tennessee bar exam under the Board’s current standard.  Attorneys from anywhere else in the world, however, are forever prohibited from becoming lawyers in Tennessee unless they opt to re-do their entire undergraduate and legal education in the United States.  Obviously, no foreign applicant is willing to forfeit the time (seven years) and money (hundreds of thousands of dollars at a minimum, factoring in opportunity costs) necessary to satisfy that requirement.  Instead, the only rational decision is to move to states like Texas, which makes an effort to accommodate foreign attorneys rather than placing insurmountable barriers in front of them for the purpose of curbing competition.

Exacerbating this groundless discrimination, LL.M. Degrees – which many states permit to “cure” any claim of insufficient foreign credentials – from law schools like Vanderbilt and the University of Tennessee are now disregarded as useless by the Tennessee Board of Law Examiners if an attorney does not hail from one of the three aforementioned countries with law schools that match American JD programs.  Thus, if permitted to stand, the Board’s decision would significantly undermine the integrity of the LL.M. programs offered by Tennessee’s two flagship law schools.  Fearing lasting and devastating consequences from the Board’s grievous error, the Board’s decision immediately prompted Vanderbilt University and UT to file a joint petition in support of Mr. Gluzman highlighting the seriousness of the problem that the Board had created.  Even then, however, the Board opted to ignore it.

In addition to disregarding Mr. Gluzman’s surpassing personal qualifications, the reality that the Board of Law Examiners is not actually focused on protecting the public from unqualified lawyers is revealed by the fact that it has taken no apparent interest in the declining bar passage rates posted by Nashville School of Law in recent years.  The last time the bar exam was administered in Tennessee, for example, fully 72% of Nashville School of Law graduates failed it—a fact that did not visibly cause the Board of Law Examiners even the slightest concern.  Now, however, an indisputably qualified Vanderbilt Law School graduate wants to sit for the bar exam, but because he’s foreign, the Board won’t even let him take it?  Plainly, the Board’s motives have little and less to do with protecting the public from unqualified lawyers, and a great deal more to do with protecting American attorneys from foreign competition.  Whether the Board’s decision – and all of its attendant consequences – will be permitted to stand, however, only time will tell.

Gluzman v. Tennessee Board of Law Examiners is expected to be heard in the Spring or Summer of 2017.  Read Mr. Gluzman’s brief before the Tennessee Board of Law Examiners here.

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[1] Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002).

[2] 292 S.W.2d 735, 737 (Tenn. 1956).

[3] 53 S.W. 955, 957 (Tenn. 1899).

[4] See Tenn. Code Ann. § 4-5-501, et seq. (2016).

[5] See Deborah Rhode, Moral Character As A Professional Credential, 94 Yale L.J. 491, 497-502 (1985) (noting that State bars historically have excluded women, Jews, those of Eastern European decent, religious fanatics, Communists, and adulterers, among others, because these allegedly socially unacceptable or radical political behaviors were said to have demonstrated a propensity to violate professional norms).

[6] Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 278 (1985).

U.S. Supreme Court to Hear Tennessee Sixth Amendment Case on Immigration-Related Plea Bargains

By Daniel Horwitz:

The United States Supreme Court has agreed to hear a Sixth Amendment case out of Tennessee in its March 2017 sitting.  The case – Jae Lee v. United States[1] – focuses on the Sixth Amendment’s guarantee of effective assistance of counsel when plea bargains trigger deportation consequences.  Specifically, Jae Lee will determine whether a defendant who would likely have been convicted if he had proceeded to trial is prejudiced by ineffective counsel when he accepts a guilty plea on the basis of erroneous legal advice that he will not be deported.

The facts of Jae Lee are not in dispute.  In 1982, Mr. Lee legally immigrated to the United States from South Korea.  Thereafter, Mr. Lee completed high school and moved to Memphis with his family, where he became a successful restaurateur.  As the Sixth Circuit noted, however, Mr. Lee “also became a small-time drug dealer,” and in 2009, he “was charged with possession of ecstasy with intent to distribute” in violation of federal drug laws.  If convicted, Mr. Lee would immediately become deportable.  Unfortunately for Mr. Lee and his family, the case against him was also very strong.

After being indicted, Mr. Lee’s criminal defense attorney advised him to plead guilty in exchange for a lighter sentence.  Mr. Lee’s attorney also advised him that if he accepted a guilty plea, he would not be deported.  On the basis of that advice, Mr. Lee decided to plead guilty.

Unfortunately for Mr. Lee, the advice that he received from his attorney turned out to be spectacularly wrong.  Notwithstanding his attorney’s advice to the contrary, Mr. Lee’s guilty plea actually did render him deportable, and he was immediately subjected to removal proceedings as a result.  Had he avoided a criminal conviction or been convicted of a different offense, however, Mr. Lee would have been permitted to remain in the country.

Understandably upset that he had pleaded guilty based on legal advice that turned out to be completely incorrect, Mr. Lee sought to withdraw his guilty plea on the basis that he had received the ineffective assistance counsel.  Under the standard for ineffective assistance of counsel established in Strickland v. Washington,[2] a defendant must satisfy two separate requirements in order to prevail.  First, a defendant must demonstrate that his attorney’s performance was “deficient” in that it fell below prevailing professional norms.  Second, the defendant must demonstrate that he suffered legal “prejudice” as a consequence of his counsel’s deficient performance.  Both requirements must be met in order to win a claim of ineffective assistance of counsel, which – if successful – would have allowed Mr. Lee to withdraw his guilty plea and proceed to trial instead.

Because the government conceded that Mr. Lee’s attorney had rendered deficient counsel by misadvising him about the deportation consequences of accepting a guilty plea, the only question remaining was whether Mr. Lee was legally “prejudiced” by his attorney’s erroneous advice.  Typically, a defendant challenging a conviction on the basis of ineffective assistance of counsel must prove that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”[3]  Importantly, however, when it comes to plea bargaining, the test for prejudice is slightly more favorable to defendants.  Generally, to withdraw a guilty plea on the basis of ineffective counsel, a defendant must show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”[4] As this author explains in his 2016 Harvard Latino Law Review article on this subject, however, following the U.S. Supreme Court’s landmark 2010 decision in Padilla v. Kentucky,[5] immigration-related pleas have a different standard still.  Specifically:

“In the context of deficient immigration counsel, [] the test is whether ‘a decision to reject the plea bargain would have been rational under the circumstances.’ It is not yet clear whether, or to what extent, there is a substantive difference between these standards, and indeed, the Government occasionally ‘wobbles between the two standards for allowing the withdrawal of one’s guilty plea upon belated discovery of the deportation threat.’  What is clear, however, is that the test for prejudice under Padilla is not whether a defendant would have been deported anyway.  Instead, it is whether the defendant would rationally have rejected the offered plea bargain and either proceeded to trial or negotiated an alternative plea bargain if the defendant had received the competent immigration counsel to which all immigrants are constitutionally entitled.”[6]

The federal Circuits are deeply divided on whether it can ever be “rational” for an obviously guilty defendant to reject a plea bargain and instead attempt to “throw a Hail Mary” at trial in the hopes of avoiding near-certain deportation consequences.[7]  After acknowledging this split of authority, the Sixth Circuit reaffirmed its prior holding in Pilla v. United States that “no rational defendant charged with a deportable offense and facing ‘overwhelming evidence’ of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence.”  Accordingly, the Sixth Circuit denied Mr. Lee an opportunity to withdraw his guilty plea, and the Supreme Court granted review.

The problem with the Sixth Circuit’s (and several other Circuits’) take on this issue, however, is that it misapplies the standard for prejudice under Padilla and also violates the bedrock constitutional requirement that a guilty plea must be entered voluntarily.  As Judge Posner of the Seventh Circuit wrote in a similar case, for example, “[j]udges and prosecutors should hesitate to speculate on what a defendant would have done in changed circumstances,” and “a criminal defendant cannot be denied the right to a trial, and forced to plead guilty, because he has no sturdy legal leg to stand on but thinks he has a chance that the jury will acquit him even if it thinks he’s guilty.”[8]  Additionally, as this author explains in his Harvard Latino Law Review article referenced above, “several commentators have recognized the reality that in most instances, non-citizen defendants are likely to view deportation as a far more serious punishment than a conviction that results in incarceration.” Thus:

By any metric, a defendant who accepts a guilty plea as a consequence of [] affirmative misadvice [that he will not be deported]—only to learn later on that he is to be deported anyway—has suffered serious prejudice in the form of a criminal conviction due to his counsel’s incompetence.

This sort of bait-and-switch—which, incidentally, occurred in Padilla itself—represents a classic case of ineffective assistance of counsel. Indeed, on this point, even the two concurring Justices in Padilla enthusiastically agreed. As Justice Alito explained:

when a defendant bases the decision to plead guilty on counsel’s express misrepresentation that the defendant will not be removable[,] . . . it seems hard to say that the plea was entered with the advice of constitutionally competent counsel—or that it embodies a voluntary and intelligent decision to forsake constitutional rights [at all].

Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 19 (2016).

Consequently, given that fully seven of the Supreme Court’s eight current Justices have held that a defendant cannot be denied the opportunity to withdraw a guilty plea under these circumstances, it seems likely that Mr. Lee – and his excellent Tennessee attorney Patrick McNally – will ultimately prevail.

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[1] 825 F.3d 311 (6th Cir. 2016), cert. granted, No. 16-327, 2016 WL 4944484 (U.S. Dec. 14, 2016).

[2] 466 U.S. 668, 687 (1984).

[3] Id. at 694.

[4] Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

[5] 559 U.S. 356 (2010).

[6] Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 15 (2016) (citations omitted).

[7] Compare Pilla v. United States, 668 F.3d 368, 373 (6th Cir. 2012); Haddad v. United States, 486 Fed. Appx. 517, 521–22 (6th Cir. 2012); Kovacs v. United States, 744 F.3d 44, 52–53 (2d Cir. 2014); United States v. Akinsade, 686 F.3d 248, 255–56 (4th Cir. 2012); and United States v. Kayode, 777 F.3d 719, 724–29 (5th Cir. 2014), with United States v. Orocio, 645 F.3d 630, 643–46 (3d Cir. 2011), abrogated on other grounds by Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); DeBartolo v. United States, 790 F.3d 775, 777–80 (7th Cir. 2015); United States v. Rodriguez–Vega, 797 F.3d 781, 789–90 (9th Cir. 2015); Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir. 2015).

[8] DeBartolo v. United States, 790 F.3d 775, 778-89 (7th Cir. 2015).

Grading Nashville Policymakers on Criminal Justice Reform: A Report Card

By Daniel Horwitz:

As voters and thought leaders of all political stripes move toward consensus that the American experiment with mass incarceration has failed, bipartisan coalitions aimed at reforming the criminal justice system have emerged in cities and states across the nation.  The localized nature of this movement is hardly a surprise, given that – as the Washington Post has noted – “most criminal-justice policy happens at the state and local level.”  In addition to the fact that state and local prisons and jails account for the overwhelming majority of the incarcerated population, reform of any kind generally begins at lower levels of government before coming to pass in the (in)famously deliberate halls of the United States Congress.

Nashville, for its part, is no stranger to the influences of the criminal justice reform movement, as indicated by the recently-announced partnership on criminal justice reform between the ACLU, the Beacon Center, the Chamber of Commerce, and Goodwill Industries.  However, perhaps the most telling evidence that voters are beginning to demand sensible criminal justice policies is that policymakers have begun to campaign on them.  For example, in recent election cycles, Metro Councilmembers, the District Attorney, and the Mayor have all advanced platforms specifically dedicated to criminal justice reform in an attempt to curry favor with an eager electorate.  This report card attempts to grade these officials’ performances since taking office based on their campaign commitments.

1. The Metro Council:  C

Since Nashville’s 40-member Metro Council took office in 2015, few would argue that criminal justice reform has been a centerpiece of its agenda.  A notable exception to that, however, was the Council’s successful and resoundingly popular push to help steer low-level marijuana offenders away from the criminal justice system. Rather than having marijuana users arrested and prosecuted, the first-of-its-kind bill, spearheaded by District 35 Council Member Dave Rosenberg, empowers law enforcement to issue offenders civil fines or require community service instead.  (Note: contrary to a a misguided opinion by the Attorney General’s office, police officers and prosecutors have always enjoyed discretion not to pursue charges at all, and the bill does not constrain law enforcement or conflict with still-applicable state law in any way.)  The Council’s discretionary decriminalization bill was also supplemented by laudable efforts to track officers’ use of their newfound discretion for the purpose of “prevent[ing] potential bias from playing out with the new law.”

All-in-all, however, Metro Council Members have largely devoted their attention elsewhere.  This reality is disappointing, since the consequences of criminal justice policy are absolutely devastating to those affected by it.  Additionally, voting to militarize the local police force through a supplemental purchase of $1 million in ballistic armor (drawn from a reserve fund) while appropriating a fraction of that amount to fund critical programs like Legal Aid represents a disappointing reflection of the city’s criminal justice priorities.

Individual Council Members who are due credit for taking the lead on criminal justice reform efforts and attempting to make them a priority include Dave Rosenberg (District 35), Freddie O’Connell (District 19), Fabian Bedne (District 31), and Bob Mendes (At-Large).  Overall, however, the Metro Council gets a C.

2.  The District Attorney:  B+

In 2014, Nashville District Attorney Glenn Funk campaigned for office under the slogan that he knew “the difference between a bad person and a good kid in trouble.”  Since then, local media coverage of his tenure has largely been dominated by hiring and firing decisions, disputes about the ethics of a release-dismissal agreement and a pension arrangement, and other matters unrelated to substantive criminal justice policy.  Lost amid the coverage, however, has been any meaningful assessment of Funk’s substantive criminal justice reform efforts, which are significant.

As Nashville Scene criminal justice writer and Washington Post contributor Steven Hale has written, Funk represents “an example of a politician who actually kept the promises he made while rolling through the neighborhood during the campaign.”  Significantly, many of his promises were also specific and measurable.  To explore two examples, during his campaign, Funk detailed his views on driver’s license charges and Drug Free School Zone penalty enhancements – two critical issues affecting thousands of prosecutions – as follows:

  1. “Good public policy demands that all drivers are licensed. Everyone drives. When policy creates barriers to keeping a license, other problems are created. For one, unlicensed drivers don’t have insurance, and if a wreck happens, we want the at fault driver to have insurance. Another issue is safety of police officers who pull over a motorist. If that motorist is licensed, the officer knows who has been stopped and their history. For these reasons and others, we should be helping people obtain and keep driver’s licenses.
  1. “I will work with the legislature to tighten the language of the school zone law so that it protects schools and children without causing widespread incarceration beyond the substantial punishments already on the books for narcotics offenses. Assistant DAs will enforce the law but use prosecutorial discretion to seek fairness and justice.

After taking office, Funk immediately made good on both of these promises and several others, such as increasing diversity in the District Attorney’s office (the DA’s office is now several times more diverse than it has been at any point it its history).  He also took substantial heat for doing so.  With respect to (mostly) doing away with criminally prosecuting people who lack driver’s licenses, for example, Funk was harshly criticized by Nancy Amons of Channel 4 News for failing to seek jail time as a matter of course.  In response, this author (and others) vigorously defended the move as a laudable reform that keeps families together, saves money, and minimizes the consequences of a law that literally fabricates criminality, punishes poverty, and operates only a single step removed from a debtor’s prison.

Funk also implemented a top-down office policy of pursuing school zone enhancements only when drugs are actually sold to kids or on school property.  This little-noticed reform, too, carries enormous importance.  Because the overwhelming majority of Nashville qualifies as a “school zone,” and because the law applies broadly even to sales that take place between adults on the highway at 2:00AM during summer break, the law could technically apply to almost every drug sale, thereby dramatically increasing potential penalties for nearly all non-violent drug offenses.  Prior abuse of the school zone enhancement was used coercively to influence plea bargaining, and it resulted in many spectacularly long sentences for non-violent drug offenders who refused to plead guilty.  Significantly, the law also generated outrageous racial disparities.  For example, although white people are statistically more likely to deal drugs, nearly 90% of defendants who were punished with the school zone enhancement in Nashville were people of color, and many received decades-long sentences for first-time, non-violent drug offenses.  Funk’s reform on the use of the Drug Free School Zone enhancement eliminated the worst of these abuses overnight.

The overall culture of the DA’s office has also undergone a dramatic makeover during Funk’s administration, receiving commendations from a defense bar that was previously accustomed to walking into what often felt like a warzone.  Although some prosecutors definitely missed the memo, and although there’s certainly still room for improvement, speaking personally, the author and many others have also found the Funk administration as a whole to be accessible, reasonable, and not unduly committed to bringing the full force of the law down on anyone and everyone without reason.  Funk’s personal support for causes like improving expungement access and ensuring LGBT equality within the criminal justice system are similarly praiseworthy, though his prosecutors don’t always adhere to those views.  While the author would love to see movement on issues like bail reform and a wrongful conviction integrity unit going forward, to date, the District Attorney’s office receives a B+.

3.  The Mayor:  D-

If promises were policy, Mayor Barry would receive the A+ on criminal justice reform that she campaigned on.  From ending the criminalization of homelessness, to mandating police body cameras, to improving expungement access, to taking the lead on marijuana decriminalization, to rolling out Metro ID cards in order to facilitate successful re-entry, to “waking up every day and being able to make a difference in someone’s life” who is being crushed by the weight of an unfeeling criminal justice system, criminal justice reform advocates unquestionably had their candidate in Megan Barry.  Unfortunately, however, promises are not policy, and the reality has not come even close to matching the rhetoric.

On criminalizing homelessness, Mayor Barry’s administration began by declaring that it did not “anticipate the need for arrests or criminal citations” for homeless people living in a tent-city style encampment at Fort Negley.  Unfortunately, however, it quickly arrived at “not ruling out arrest as an option” for those same people, forcibly disbanding the homeless encampment thereafter, and then in fact arresting some of its occupants in the process.  More recently, the Mayor’s office has inexplicably defended the Nashville Downtown Partnership’s recently-exposed policy of purchasing one-way tickets to bus homeless people – many of whom have mental illness – to other cities in an effort to solve Nashville’s homelessness problems.  To say the least, anti-homelessness advocates are not thrilled.

On police body cameras, the Mayor went from vocally supporting them as “really important” during her campaign to growing conspicuously silent about their previously-recognized merits during her first year in office.  More recently, under mounting pressure, she has re-committed to funding a police body camera program in next year’s budget.  Given that the program has not yet come to fruition, however, to date, progress remains non-existent, meaning that video footage is not available following use-of-force incidents.   Meanwhile, the Mayor’s office did take the lead on ensuring that $1 million was appropriated from a reserve fund to purchase military-grade ballistic armor for the Metro Nashville Police Department.  When it comes to criminal justice policy, the Mayor’s reticence to challenge her police chief on almost any issue even when confronted with evidence of racially discriminatory policing has also caused activists to question whether the MNPD is the proverbial tail wagging the dog.  Thus, suffice it to say that those concerned about preventing excessive or unnecessary use of force by law enforcement are not thrilled, either.

On expungement access, the Mayor’s pledge of support was similarly full-throated: “No individual should be unfairly penalized simply because they didn’t have the time, resources, or understanding of the law to have a charge expunged from their record,” she proclaimed.  In practice, however, while both Memphis and Chattanooga have committed resources to facilitating expungement access, Barry’s administration has done little more than deploy its legal department to oppose expungement access at virtually every opportunity.  This pledge, too, has not reflected reality, and expungement advocates are livid.

On marijuana decriminalization, the Mayor’s previous support also retrenched to such an extent that she “avoided taking a specific position” while an actual bill to decriminalize marijuana was coming down the pipeline (she ultimately signed it).  The silence was unexpected and curious, and even at the time, right-leaning Sheriff Daron Hall mustered the political courage to support it.  Thereafter, even after the reform passed, as activists called on the Mayor to use the power of her office ensure that the measure was actually implemented by the Metro Police Department, her office described such demands as “Nixonian.”  In sum: drug policy reform advocates have not been unduly impressed with the Mayor, either.

Additionally, efforts to develop municipal ID cards have fallen by the wayside entirely, another forgotten promise of a candidate who made many to the criminal justice reform community.  Fortunately, though, there has at least been recent movement on this issue from the federal government.  Whether Metro ID cards will become a reality here in Nashville under Mayor Barry’s administration, however, is anyone’s guess.

Taken together, evaluating her first year in office, the Mayor’s tenure with respect to criminal justice policy has been a frustrating disappointment.  Her recent commitment that Nashville will not become a jurisdiction that leverages its police force to enforce federal immigration law serves as a rare but significant bright spot.  Overall, however, the Mayor gets a D-.

For the sake of all affected – a population that includes all taxpayers and hundreds of thousands of people (and their families) in Nashville alone – let us all hope that our policymakers commit to meaningful reform in 2017.

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Tennessean Op Ed: Right to counsel a fundamental constitutional right

By Daniel Horwitz:

Across the world, whether people who have been accused of committing crimes should have the right to an attorney is something of a disputed question.  Certainly, North Korean “Supreme Leader” Kim Jong-un, Turkish dictator Recep Erdogan, and any number of other modern fascists hold strong views on the matter.  In America, however, the answer to this question has long been settled by the Sixth Amendment to the United States Constitution, which declares with unmistakable clarity that: “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.”

Given the fundamental importance of the right to counsel in our constitutional democracy, the Republican National Committee’s disgraceful charge that “America deserves better” than a vice president who has represented the criminally accused should be swiftly and forcefully repudiated by all. Continue reading Tennessean Op Ed: Right to counsel a fundamental constitutional right

No, Justin Timberlake Did Not Break the Law By Taking a Ballot Selfie

By Daniel Horwitz:

Demonstrating his laudable commitment to participating in the political process and encouraging others to do so as well, international music sensation and Memphis-bred popstar Justin Timberlake recently posted an instragram photo of himself rocking the (early) vote at his polling place in Memphis, Tennessee.  That terrible offense, unfortunately, has earned him a rebuke from the Shelby County District Attorney’s office, which is currently conducting a criminal investigation into his scandalous conduct.  The reason?  Tennessee’s poorly-worded “Use of Mobile Electronic and Communication Devices at Polling Place for Informational Purposes” statute, codified at Tenn. Code Ann. § 2-7-142(b), which provides that:

“Any voter using a mobile electronic or communication device . . . shall be prohibited from using the device for telephone conversations, recording, or taking photographs or videos while inside the polling place.”

Violating this provision is theoretically a Class C misdemeanor punishable by up to 30 days in jail and a $50.00 fine.  The law, however, is unconstitutional.

The practice of taking “ballot selfies” – photographs of one’s ballot that may or may not also include the voter – has become increasingly popular among voters in recent years.  Celebrities from Beyoncé to Sean Hannity to Kim Kardashian have also gotten in on the action.  Unfortunately, however, the celebratory practice of posting ballot selfies – which should be welcomed and perhaps even encouraged in a political climate in which many voters, especially young voters, never vote at all – has also drawn the attention of overzealous state regulators.  During the November 2014 election, for instance, “approximately 35 states prohibited ballot selfies in one form or another,” and several states – Tennessee among them – “have since followed suit.”

At least one prominent election law scholar has supported the bans both as a policy matter and as a constitutional one, characterizing them as “a threat to democracy” because they could ostensibly facilitate vote-buying or coercion schemes.  As this author explained in his 2015 SMU Science and Technology Law Review article A Picture’s Worth a Thousand Words: Why Ballot Selfies Are Protected by the First Amendment, however, that conclusion is woefully misguided, and ballot selfies are safely protected by the First Amendment.  Importantly, every single court that has evaluated the issue to date – which includes the U.S. District Court for the District of New Hampshire, the U.S. Court of Appeals for the First Circuit (upon review of the District Court of New Hampshire), the U.S. District Court for the Southern District of Indiana, and the U.S. District Court for the Southern District of Michigan – has also agreed that states cannot lawfully prohibit ballot selfies without running afoul of the First Amendment, unanimously striking down various states’ ballot selfie prohibitions on free speech grounds.  Thus, as far as the federal judiciary is concerned, Tennessee’s ballot selfie prohibition cannot withstand constitutional scrutiny.

Three main reasons, detailed extensively in this article, support the conclusion that ballot selfies may not lawfully be prohibited without violating the First Amendment.

First, ballot selfie bans unnecessarily restrict a substantial amount of constitutionally protected speech (like Mr. Timberlake’s) that is completely unrelated to vote buying, while simultaneously doing nothing to prevent far simpler forms of vote buying, such as absentee ballot fraud (which can be accomplished outside of the comparatively well-surveilled atmosphere of a polling place).

Second, the “compelling” nature of the Government’s interest in enacting broad-based laws to guard against vote buying is subject to considerable doubt, because vote buying is statistically non-existent even in jurisdictions where it is easy to accomplish.

Third, and most importantly, because voters have the ability to change their vote even after taking a ballot selfie, ballot selfies are a useless tool for promoting vote buying anyway—rendering the entire premise behind such laws baseless.  That reality is exposed, for example, by this set of pictures (click on the photo to enhance it) that the author took during the 2015 Nashville mayoral election, which collectively illustrate just how easy it is to change one’s vote after making an initial selection:

photo

In other words, because ballot selfies do not provide a prospective vote-buyer any level of certainty that a ballot has actually been cast in a particular way (an absolute prerequisite to any effective vote-buying scheme), ballot selfies are a useless tool for committing fraud, and banning them serves to do nothing but interfere with the political speech of innocent voters who want to do nothing more than celebrate the fact that they voted.

In sum: Justin Timberlake should be applauded for his activism and his decision to celebrate the right to vote, which is fully protected by the First Amendment.  As such, today – like most days – JT’s an American hero.

Update, 5:07 PM: To the surprise of nobody, Justin Timberlake’s prosecution for violating Tennessee’s ballot selfie ban won’t go forward.

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Slate: An Attorney and a DA Are Seeking Justice for Tennesseans Convicted of “Homosexual Acts”

By Mark Joseph Stern, for Slate:

Nashville attorney Daniel Horwitz was helping a man expunge his criminal record when he discovered something unexpected: a conviction for violating Tennessee’s Homosexual Practices Act—from 1995.

“Subject was engaged in sexual intercourse with another male subject,” the misdemeanor citation reads. The charge could have landed the defendant—whom I’ll call John Doe—in jail. Instead, Doe took a plea deal and avoided jail time by admitting that he had, indeed, had sex with a man, a practice forbidden by the law. Horwitz told me he was “aghast” to see the charge.

Continue reading Slate: An Attorney and a DA Are Seeking Justice for Tennesseans Convicted of “Homosexual Acts”