Tag Archives: Daniel Horwitz

Tennessee Supreme Court Holds that Divorce Contracts Must be Enforced as Written

By Daniel Horwitz:

In a common-sense opinion that clarified a muddled conflict among lower courts, the Tennessee Supreme Court has held that fee-shifting provisions in divorce agreements must be enforced as written.  Offering a forceful defense of the right to contract, Chief Justice Bivins’ unanimous opinion in Eberach v. Eberach instructs all lower courts that they do not have any discretion to deny attorney’s fees to a prevailing party if a contract agreed to by both parties makes such an award mandatory.

Eberach involved litigation between a former husband and wife following their divorce.  In 2011, the couple divorced and entered into a “marital dissolution agreement,” or “MDA.”  In lay terms, an MDA is a binding contract that sets out the terms of a divorce.  Among other things, the parties’ MDA provided that:

“In the event it becomes reasonably necessary for either party to institute legal proceedings to procure the enforcement of any provision of this Agreement, the prevailing party shall also be entitled to a judgment for reasonable expenses, including attorney’s fees, incurred in prosecuting the action.”

Three years later, the ex-couple found themselves embroiled in litigation over the wife’s plan to relocate to Ohio with their three children.  Ultimately, the trial court granted the wife permission to move to Ohio and awarded her $20,000.00 in attorney’s fees.  Thereafter, the trial court’s decision was affirmed by the Court of Appeals, which upheld both the relocation and the trial court’s fee award.  However, the Court of Appeals declined to award the wife additional compensation for the attorney’s fees that she had incurred on appeal.

Upon review, the Tennessee Supreme Court observed that various tribunals of the Court of Appeals had “been inconsistent in their analysis of claims for attorney’s fees in cases in which the claim is based on a contractual provision in a MDA.”  One line of cases held that appellate courts have discretion to deny attorney’s fees to a prevailing party “even in the face of a controlling contractual fee provision requiring such an award.”[1]  Another line of authority held that “when a MDA fee provision mandates an award of attorney’s fees to the prevailing party, the Court of Appeals does not have discretion to deny an award of appellate attorney’s fees.”[2]  Additionally, a third line of cases “observed that an award of appellate attorney fees in Tennessee is within the court’s sound discretion,” but then went on “to award attorney’s fees on appeal solely on the basis of the parties’ MDA fee provisions without further discussion.”[3]

Clarifying this conflicting precedent, the Tennessee Supreme Court instructed with unmistakable clarity that “parties are contractually entitled to recover their reasonable attorney’s fees when they have an agreement that provides the prevailing party in a [lawsuit] is entitled to such fees.”   “In such cases,” the Court explained, trial courts “do[] not have the discretion to set aside the parties’ agreement and supplant it with its own judgment.”  The Court further instructed that “[t]he same is and must be true of our appellate courts.”  Thus, “[a]bsent fraud, mistake, or some other defect, our courts are required to interpret contracts as written.”

As a general matter, litigants in the United States must pay their own attorney’s fees regardless of whether they win or lose.  Under this so-called “American Rule”—to which Tennessee adheres—“a party in a civil action may recover attorney’s fees only if: (1) a contractual or statutory provision creates a right to recover attorney’s fees; or (2) some other recognized exception to the American Rule applies, allowing for recovery of such fees in a particular case.”[4]  “Otherwise,” as the Eberach court observed, “litigants are responsible for their own attorney’s fees.”  Of note, the general presumption that parties must bear their own legal fees places the United States at odds with the legal regimes of many European nations, which generally adhere to a “loser pays” framework.

The most common exception to the American rule is a private agreement between parties which provides that in the event of litigation, the loser must pay the winner’s attorney’s fees.  Significantly, in Eberach, the husband and wife had executed such an agreement.  Thus, the only question presented in Eberach was whether the Court of Appeals was required to enforce it.

Emphatically answering this question in the affirmative, the Court’s opinion in Eberach furthers Tennessee’s longstanding commitment to protecting the right to contract.  In Tennessee, the right to contract has constitutional origins, and it is enforceable as a fundamental right.[5]  Tennessee statutory law also provides that: “All contracts, . . . in writing and signed by the party to be bound, . . .  shall be enforced as written.”[6]  In keeping with this tradition, the Eberach court explained that “one of the bedrocks of Tennessee law is that our courts are without power to make another and different contract from the one executed by the parties themselves.”  As such, the Court mandated that the terms of the husband’s and wife’s MDA be enforced.

Having resolved that the wife was entitled to attorney’s fees for her successful litigation in the Court of Appeals, the Court then remanded the case to the trial court to “determine the appropriate amount of Wife’s reasonable attorney’s fees on the appeal.”  Additionally, applying its just-announced holding to itself, the Tennessee Supreme Court also explained that the attorney’s fee award must cover the costs of the wife’s appeal “to this Court” as well.  Thus, going forward, litigants in Tennessee—and divorcees in particular—can have renewed faith that the terms of their contracts will, in fact, be enforced as written.

Read the Court’s unanimous opinion in Eberach v. Eberach here.

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

[1] See Grisham v. Grisham, No. W2010- 00618-COA-R3-CV, 2011 WL 607377, at *11 (Tenn. Ct. App. Feb. 22, 2011) (holding that the trial court erred in failing to award wife her reasonable trial court attorney’s fees pursuant to MDA fee provision, but declining to award appellate attorney’s fees pursuant to the Court of Appeals’ discretion); Brown v. Brown, No. W2005-00811-COA-R3-CV, 2006 WL 784788, at *6 (Tenn. Ct. App. Mar. 29, 2006) (affirming the trial court’s award of trial court fees under the parties’ MDA, but equitably denying wife’s request for appellate fees pursuant to the Court of Appeals’ discretion); Elliott v. Elliott, 149 S.W.3d 77, 88 (Tenn. Ct. App. 2004) (affirming the trial court’s award of fees to wife pursuant to parties’ MDA fee provision, but denying wife’s request for appellate attorney’s fees); Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 WL 22071454, at *8, *10 (Tenn. Ct. App. Sept. 3, 2003) (affirming trial court’s award of attorney’s fees pursuant to MDA, but equitably declining to award either party attorney’s fees incurred on appeal).

[2] See, e.g., Beem v. Beem, No. W2009-00800-COA-R3-CV, 2010 WL 1687782, at *9-10 (Tenn. Ct. App. Apr. 28, 2010) (affirming trial court’s award of fees pursuant to MDA and holding that wife was entitled to attorney’s fees on appeal pursuant to the parties’ MDA); Treadway v. Treadway, No. M2014-00898-COA-R3-CV, 2015 WL 1396652, at *7 (Tenn. Ct. App. Mar. 24, 2015) (awarding appellate attorney’s fees pursuant to the parties’ MDA); Brinton v. Brinton, No. M2009-02215-COA-R3-CV, 2010 WL 2025473, at *6 (Tenn. Ct. App. May 19, 2010) (same); Corbin v. Corbin, No. W2008-00437-COAR3-CV, 2009 WL 454134, at *7 (Tenn. Ct. App. Feb. 24, 2009) (same); Waugh v. Waugh, No. M2006-021540COA-R3-CV, 2007 WL 2200278, at *4 (Tenn. Ct. App. July 30, 2007) (same); Hogan, 1999 WL 1097983, at *4-5 (reversing trial court’s denial of attorney’s fees, and awarding attorney’s fees to Mother for trial court and appellate level proceedings pursuant to the parties’ MDA).

[3] Wilkinson v. Wilkinson, No. W2012-00509-COA-R3-CV, 2013 WL 614708, at *10 (Tenn. Ct. App. Feb. 19, 2013); (citing Archer, 907 S.W.2d at 419) (emphasis supplied)). See also Hanna v. Hanna, No. W2014-02051- COA-R3-CV, 2015 WL 1951932, at *4 (Tenn. Ct. App. Apr. 30, 2015) (stating its discretion then awarding fees on appeal based on the parties’ MDA requiring that the “court shall award reasonable attorney’s fees to the party seeking to enforce [the MDA]”) (alterations in original); Williams v. Williams, No. M2013-01910-COA-R3-CV, 2015 WL 412985, at *14 (Tenn. Ct. App. Jan. 30, 2015) (affirming the trial court’s award of fees pursuant to the parties’ MDA, stating its discretion and determining that wife was entitled to attorney’s fees on appeal pursuant to the parties’ MDA); Dodd v. Dodd, No. M2011-02147-COA-R3-CV, 2012 WL 3193339, at *6 (Tenn. Ct. App. Aug. 6, 2012) (holding that Mother was entitled to recover her trial court attorney’s fees pursuant to the parties’ MDA, but using its discretion and concluding that Mother was justified in recovering attorney’s fees).

[4] Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009) (citing Fezell, 158 S.W.3d at 359; John Kohl & Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 534 (Tenn. 1998)).

[5] See Tenn. Const. art. XI, § 2; Tenn. Const. art. I, § 20.  See also ARC LifeMed, Inc. v. AMC-Tennessee, Inc., 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005) (“equity respects and upholds the fundamental right of the individual to complete freedom to contract”) (quotation omitted).

[6] Tenn. Code Ann. § 47-50-112(a).

Nashville Scene: “The Tennessee Supreme Court Keeps Reversing Itself, and Criminal Defense Attorneys Are Worried”

Via Stephen Elliot, The Nashville Scene: (link)

In 2012, the Tennessee Supreme Court ruled that a defendant who pleads guilty to a crime can appeal the judgment if exculpatory evidence is discovered later.

Four years later, the same court changed its mind.

What occurred in the intervening four years to necessitate such a pivot by the state’s highest court? Nothing, according to Justice Sharon G. Lee.

. . . .

“Since 2014, the Tennessee Supreme Court has aggressively sought to federalize Tennessee law by striking down state-specific protections that prior iterations of the court had developed under Tennessee’s state constitution and civil rules,” says Daniel Horwitz, a Nashville attorney and the editor of ScotBlog, a website devoted to the state Supreme Court. “A few significant state-level protections still remain. However, given that prior precedent — no matter how recent or firmly established — has had virtually no influence on the Tennessee Supreme Court’s decisions to overturn its previous rulings, it stands to reason that these protections are vulnerable to being abandoned as well.”

Read more: http://www.nashvillescene.com/news/features/article/20857900/the-tennessee-supreme-court-keeps-reversing-itself-and-criminal-defense-attorneys-are-worried

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

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.

_______________

###

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

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.

Selected media coverage regarding the case is available at the following links:

Selected Media Coverage:

-Patch: Obscenity Charges Dropped In Nashville Stick Figure Sex Case

-Faultlines: Nashville Cops Hate Stick Figure Sex (and the First Amendment)

-Heat Street: Tennessee Cops Back Down on Fine For ‘Obscene’ Bumper Sticker of Stick Figures

-TechDirt: Driver Sues State After Receiving Ticket For ‘Obscene’ Stick Figure Vehicle Decal

Case Filings:

Plaintiff’s Complaint

Plaintiff’s Application for Temporary Injunction

*Order Granting Judgment to Plaintiff

###

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

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

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

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

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.

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

[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.

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

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.

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org