Category Archives: Criminal Law

The Tennessee Bureau of Investigation Lacks Authority to Violate Court Orders, Rules Tennessee Supreme Court

Civil Procedure, Constitutional Law, Criminal Law, Expungement,

“The determination of whether an offense is eligible for expunction is an obligation entrusted to courts, not the TBI[,]” the Tennessee Supreme Court has ruled.  Accordingly, “the TBI lacked authority to refuse to comply” with a final and unappealed expungement order that no statute “authorize[d] the TBI to disregard or revise[.]”  The Tennessee Supreme Court’s unanimous opinion powerfully vindicates expungement rights under Tennessee law, the right of Tennesseans to sue the government for acting illegally, and citizens’ right to demand that the government comply with court orders.

The case arose out of a years-old expungement order that was entered by agreement of a District Attorney and approved by a judge following a diversionary plea agreement.  When such an expungement order is entered, Tennessee law obligates the Tennessee Bureau of Investigation to process it within sixty days of receipt.  In lieu of complying with the court’s order, though—and at the urging of Tennessee Deputy Attorney General Scott Sutherland and other misbehaving members of his office—the TBI opted to violate it, believing that the order was wrong.  “But no statute grants the TBI authority to independently review and decline to comply with a final expunction order it considers erroneous,” the Tennessee Supreme Court explained.  Further, as the Plaintiff noted, “willfully disobeying a final court order at the urging of counsel is ‘lawless behavior that would land any other contemnor in jail and would subject any other attorney to professional discipline.’”

Along the way to reaching this holding, the Tennessee Supreme Court forcefully affirmed Tennesseans’ rights to sue the government for acting illegally.  As relevant to the case, in 2018, the Tennessee General Assembly enacted a critical new statute—Tennessee Code Annotated § 1-3-121—that established the right of “any affected person” to sue the government “regarding the legality or constitutionality of a governmental action.”  In full, Tenn. Code Ann. § 1-3-121 provides that:

“Notwithstanding any law to the contrary, a cause of action shall exist under this chapter for any affected person who seeks declaratory or injunctive relief in any action brought regarding the legality or constitutionality of a governmental action.  A cause of action shall not exist under this chapter to seek damages.”

Despite the clarity of this statute, the Tennessee Attorney General’s Office spent the next several years arguing in transparent bad faith that the statute was meaningless; that it did not mean what it said; and that it did not permit any lawsuits to be filed against state government at all.  But “[t]he General Assembly clearly and unmistakably waived sovereign immunity by enacting Tennessee Code Annotated section 1-3-121,” the Tennessee Supreme Court explained, and “[t]he plain meaning of this text expressly recognizes the existence of causes of action ‘regarding the legality or constitutionality of a governmental action’ that seek declaratory or injunctive relief.”  Accordingly, the Tennessee Supreme Court ruled that the Plaintiff’s lawsuit against the TBI and its Director for willfully violating a court order was permissible, and it ordered a lower court to grant the Plaintiff’s claim for injunctive and declaratory relief, which the court had to that point denied.

“We appreciate the Tennessee Supreme Court unanimously vindicating our client’s expungement rights,” said Horwitz Law PLLC attorney Daniel A. Horwitz, who represented the Plaintiff along with co-counsel Lindsay Smith.  “However, we are disturbed that the Tennessee Attorney General’s Office had to be reminded by a court yet again that its job is to uphold the law, not to encourage government officials to violate it.  Having engaged in lawless behavior that would land any other contemnor in jail and that would subject any other attorney to professional discipline, we hope that Director Rausch and Attorney General Slatery won’t need to be reminded again.”

The TBI and its Director, David Rausch—who asserted the government’s entitlement to violate court orders—were unsuccessfully represented in the case by attorneys Rob Mitchell (BPR 32266), Miranda Jones (BPR 36070), and Mallory Schiller (36191) of the Tennessee Attorney General’s Office.  In advance of the Tennessee Supreme Court’s unanimous reversal, they opposed appellate review in the case on the basis that “there is no probability of reversal.”  Contact them at @TNattygen.

The Parties’ oral argument in the case can be viewed here.  The Plaintiff’s briefing in the case is linked below.

Principal Brief: https://horwitz.law/wp-content/uploads/Principal-Brief-of-Appellant-Stampfiled.pdf

Reply Brief: https://horwitz.law/wp-content/uploads/Appellants-Reply-Brief.pdf

Read the Tennessee Supreme Court’s unanimous opinion in Recipient of Final Expunction Order in McNairy County Circuit Court Case No. 3279 v. David B. Rausch, Director of the Tennessee Bureau of Investigation, and Tennessee Bureau of Investigation, authored by Justice Sharon G. Lee, here: https://www.tncourts.gov/sites/default/files/recipient.of_.finalexp.3279.opn_.pdf

Davidson County Chancery Court Orders Tennessee’s Board of Parole to Stop Violating the Reentry Success Act of 2021

Criminal Law, Judgments, Opinions,

Earlier this year, Tennessee enacted the Reentry Success Act of 2021 into law.  The Reentry Success Act overhauls Tennessee’s parole laws, and it was designed to reform several components of the parole hearing process, parole determinations, and parole eligibility.

As soon as the Reentry Success Act took effect, however, the Tennessee Board of Parole began insisting that the Act would not be effective for a huge number of its beneficiaries. As grounds, Board of Parole staff attorney Rachel Hitt complained that “the Board does not have the ability or resources necessary to identify” those cases—part of Tennessee Governor Bill Lee’s PR-first, substance-last approach to criminal justice reform.  Accordingly, one inmate who was presumptively entitled to be released on parole under the Reentry Success Act of 2021 filed suit, seeking to compel the Board of Parole to comply with the law.

In a late Friday afternoon ruling, Davidson County Chancellor Anne C. Martin agreed that the Board of Parole had violated the Reentry Success Act of 2021.  “[T]he Court finds that the Board failed to adhere to the requirement of the Act, codified at Tenn. Code Ann. § 40- 35-503(i) and (j), when it denied [the Petitioner’s] June 23, 2021 request for a parole hearing earlier than July of 2022 and in reasonable proximity to his release eligibility date,” the Court’s ruling reads.  Accordingly, it is “ORDERED, ADJUDGED and DECREED that Mr. Hughes’ petition is GRANTED and this matter is REMANDED to the Board of Parole with instructions to DETERMINE his release eligibility date and SET A PAROLE HEARING within sixty (60) days of that date.”

“The Board of Parole has long been Tennessee’s most disgraceful government agency, and the Lee Administration should be ashamed of its two-faced approach to criminal justice reform,” said attorney Daniel A. Horwitz, who represented Mr. Hughes with Horwitz Law, PLLC attorney Lindsay Smith.  “Laws are not suggestions—even for unqualified patronage appointees and others who draw taxpayer-funded salaries.  We look forward to reuniting Mr. Hughes with his family by Christmas.”

The Court’s September 24, 2021 ruling can be found here: https://horwitz.law/wp-content/uploads/21-0618-II-9-24-21-SIGNED.pdf

Background on the Reentry Success Act of 2021 and its presumption of parole for eligible inmates can be found here: https://horwitz.law/wp-content/uploads/Reentry-Success-Act-of-2021-White-Paper-DAH-7-1-21.pdf

###

Daniel A. Horwitz is a Nashville based lawyer who represents clients across Tennessee.  He can be contacted at: [email protected]

Joseph Webster’s Wrongful Conviction Gets the “Undisclosed” Treatment

Criminal Law, Criminal Procedure

Joseph Webster—the Nashville man whose case earlier this year became the first in history to be approved for reinvestigation by the Davidson County District Attorney’s Conviction Review Unit—has officially gone national. After a series of explosive local stories by WPLN’s Julieta Martinelli and Fox 17’s Dennis Ferrier, the Undisclosed Podcast—a popular program dedicated to exploring wrongful convictions that is coming off a string of successful exonerations in Philadelphia—has aired the first episode of its new series on Joseph Webster’s case. The episode can be viewed here.

Webster’s conviction has attracted widespread coverage due in part to its sensational details—a man serving a life sentence for a crime committed by his brother—and in part because the evidence of his innocence is overwhelming. Since being convicted, the lone witness who identified him as a perpetrator has recanted her identification of Webster multiple times. Further, four separate witnesses—including the brothers’ mother and the real perpetrator’s ex-girlfriend—have come forward to say that Webster’s brother not only confessed to committing the murder, but also bragged about doing so. DNA testing has additionally excluded Webster as a potential contributor to the DNA found on the murder weapon. Further, new eye witnesses have come forward to provide evidence that exculpates Webster and a description of the killer that does not match Webster at all. Separately, a treasure trove of new evidence points to two other individuals—Mr. Webster’s brother and his longtime right hand—as having being the real perpetrators who committed the crime, which still remains an unsolved cold case as to the second individual involved.

Webster’s original conviction review application is available here. Selected local media coverage from the case appears below.

-WPLN: Nashville District Attorney Agrees To Review Conviction In 1998 Murder Case

-Fox 17: FERRIER FILES: Is Nashville man serving a life sentence innocent?

-Fox 17: FERRIER FILES: Nashville murder conviction investigation to be reopened

-Fox 17: FERRIER FILES: Imprisoned man’s DNA not on murder weapon

-The Tennessean: District attorney redesigns ‘burdensome’ process of searching for wrongful convictions

-News Channel 5: Nashville murder conviction being reopened

-WPLN: Investigation: After Pledging To Examine Innocence Claims, Nashville DA Has Yet To Open A Case

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White County, Tennessee Inmate Sterilization Program Terminated By Historic Order

Constitutional Law, Criminal Law, Criminal Procedure, , ,

Federal court orders that controversial sterilization program be rescinded; White County officials to pay Plaintiffs’ attorney’s fees, permanently enjoined from making or enforcing any sentencing determination that is based “in whole or in part upon a defendant’s consent—or refusal to consent—to becoming permanently or temporarily sterilized.”

Following an historic reversal at the United States Court of Appeals for the Sixth Circuit last month, an inmate sterilization program instituted by two White County, Tennessee officials has finally come to an end.  The landmark order comes nearly two years after a trio of inmates at the White County jail filed suit against White County General Sessions Court Judge Sam Benningfield—the architect of the program—and the White County Sheriff’s Office, alleging that the program violated the 14th Amendment’s Equal Protection and Due Process clauses.

A consent decree approved by the United States District Court for the Middle District of Tennessee earlier today formally terminates the controversial inmate sterilization program, compelling Judge Benningfield to rescind each of his standing orders regarding the program “in their entirety,” effective immediately.  The Court’s order also permanently enjoins both Judge Benningfield and the White County Sheriff’s Office “from making or enforcing any sentencing determination that is based in whole or in part upon a defendant’s consent—or refusal to consent—to becoming permanently or temporarily sterilized” at any point in the future.  Judge Benningfield and the White County Sheriff were further ordered to pay the costs of the lawsuit and the plaintiffs’ attorney’s fees, which the order provides “shall be donated by Plaintiffs’ counsel to the United States Holocaust Memorial Museum and the Tuskegee History Center.”  Each of the three inmates who sued after refusing to become sterilized also received a 30-day sentencing credit toward a future expungement.

“Inmate sterilization is despicable, it is morally indefensible, and it is illegal,” said Daniel Horwitz, a Nashville-based constitutional lawyer who represented the inmates along with Richard Brooks. “Let this historic order serve as a warning: Whether you are a sitting Judge, a Sheriff who is ‘just following orders,’ or any other government official, if you violate the Constitution, you will be held accountable.”

The Consent Decree and Final Order approved by the U.S. District Court for the Middle District of Tennessee and additional case documents regarding the program appear below.

–Consent Decree and Final Order

–6th Circuit Opinion Reversing District Court

–Plaintiffs’ Complaint for Injunctive and Declaratory Relief

–Plaintiffs’ Memorandum in Support of Summary Judgment

–6th Circuit Brief of Plaintiffs-Appellants

Selected Media Coverage:

-The Tennessean: Federal court order officially ends Tennessee ‘inmate sterilization’ program

-Vice: A Tennessee County Wanted to Sterilize Inmates for Shorter Sentences. That’s Over Now.

-Fox 17: Tennessee inmates win suit against judge who offered sentencing credits for sterilization

-IFL: Federal Court Ends Tennessee’s Controversial Inmate Sterilization Program

-News Channel 5: White County Inmate Sterilization Program terminated by federal ruling

-The Tennessean: Court revives lawsuit against judge who shortened jail time if inmates got ‘sterilized’

-The Washington Post: Tennessee judge reprimanded for offering reduced jail time in exchange for sterilization

-The Tennessean: 2nd lawsuit challenges Tennessee county’s inmate birth control practice

-WSMV Channel 4: Judge under scrutiny for offering reduced sentences for vasectomies, birth control implants

-BBC News: ‘We were guinea pigs’: Jailed inmates agreed to birth control

-ScotBlog: Lawsuit Seeks to End White County’s Ongoing Sterilization Program

Individual Rights Are Expanding In Tennessee

Constitutional Law, Criminal Law, Criminal Procedure, Defamation, First Amendment, Opinions, ,

By Daniel A. Horwitz

The past week has been an excellent one for individual rights in Tennessee, with improvements coming in several independent areas:

First, the Tennessee General Assembly has passed the State’s first meaningful anti-SLAPP law to protect Tennesseans’ right to free speech. The reform will instantly have the effect of deterring people from filing baseless lawsuits aimed at censoring critical commentary and severely punishing people who do. Thus, effective July 1, 2019, the Randy Rayburns and Linda Schipanis and Bari Hardins of the world will be able to wield a powerful protective weapon against foolish bad actors’ efforts to censor and intimidate them through frivolous, failed lawsuits.

Second, following a 2017 lawsuit to terminate a White County, Tennessee inmate sterilization program, the United States Court of Appeals for the Sixth Circuit has ruled that sterilization-for-sentencing-credits arrangements like White County’s are illegal. “Requiring inmates to waive a fundamental right to obtain a government benefit impermissibly burdens that right” in contravention of the Fourteenth Amendment, the Court’s opinion reads. “This decision sends a clear, important message that should never have been necessary in the first place: Inmate sterilization is illegal and unconstitutional,” the inmates’ attorney, Daniel Horwitz (the author), said in a statement to The Tennessean on the ruling.

Third, the Tennessee General Assembly passed one of Governor Bill Lee’s central legislative priorities—a substantial reduction in the current expungement fee that the state assesses people for the privilege of expunging convictions and diverted offenses on their criminal records. Tennessee’s expungement law, which enables people to expunge up to two qualifying convictions, provides an extraordinarily important mechanism for people to move on from an interaction with the criminal justice system and eliminate their criminal record history such that—as a matter of law—it “never occurred.” Although the reform does not wholly eliminate all applicable expungement fees, it reduces the total fee that people will have to pay to expunge a conviction or diversion from $280 to $100 going forward.

These important reforms each move individual rights in the right direction. They reduce private litigants’ ability to abuse the legal process, they curtail the government’s power to infringe upon people’s constitutional rights, and they help ensure that people will not suffer a life sentence for minor criminal convictions solely because they lack the ability to pay a few hundred dollars to expunge their qualifying convictions. Hopefully, progress like this is only a beginning.

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Tennessee Supreme Court Clarifies Sentencing Provision in Cyntoia Brown Case; Media and Public Badly Misunderstand the Court’s Opinion

Constitutional Law, Criminal Law,

By Daniel A. Horwitz

In an opinion released on Thursday, the Tennessee Supreme Court answered a certified question of law from the United States Court of Appeals for the Sixth Circuit in the high-profile case of Cyntoia Brown, the juvenile sex trafficking victim who received a life sentence after being convicted of murdering a John. The Court’s opinion concluded—unanimously and correctly by any reasonable determination—that Ms. Brown will become eligible for parole after serving 51 years in prison.

It should be noted that the Tennessee Supreme Court’s ruling that Ms. Brown is parole eligible after 51 years was the more lenient outcome available in her case—albeit not the one that Ms. Brown’s attorneys had sought for reasons unique to her circumstances. Nonetheless, a flood of national attention to Ms. Brown’s case and a significant misunderstanding of its posture led multiple commentators—Ana Navarro, for instance—to decry the Court’s ruling as “a travesty of justice,” which it most certainly was not:

Cynthia Brown was a 16 girl when she killed a 43 year-old man forcing her to have sex.
The Tennessee Supreme Court ordered she must serve 51 years.
THIS IS A TRAVESTY OF JUSTICE.
Folks, you need to flood Gov. @BillHaslam’s twitter feed and demand he do something about this. https://t.co/EUKdwQnS6J— Ana Navarro (@ananavarro) December 8, 2018

To put the fairness of her punishment in its proper context: Cyntoia Brown’s sentence is grossly unfair, and Tennessee Governor Bill Haslam should grant her clemency immediately. (People like Calvin Bryant and Randy Mills deserve clemency, too.) Indeed, Governor Haslam should have granted her clemency months ago when she first applied. Ms. Brown—a bright, capable young woman who was very much a victim herself and whose rehabilitation is no longer even questioned—has been punished enough, and her sentence should be commuted immediately to bring it into compliance with modern standards of decency.

As for her pending legal challenge, though: Ms. Brown’s case is far from unique. In fact, from a purely legal perspective, her sentence is considerably less severe than fourteen others in Tennessee. There is a material difference between a juvenile life without the possibility of parole sentence—which fourteen Tennessee defendants are serving right now—and a juvenile life with the possibility of parole sentence, which is what Ms. Brown received. (One of those defendants—who is serving three consecutive life without the possibility of parole sentences for felony-murder charges committed when he was 14—is the author’s client.)  Specifically: A life with the possibility of parole sentence includes the possibility of parole, while a life without the possibility of parole sentence does not. The issue in Ms. Brown’s case—which the Tennessee Supreme Court has now resolved—was whether her sentence included the possibility of parole.

Ms. Brown’s trial court ruled that she would be eligible for parole after 51 years. There also has never been any doubt that this was the actual sentence that Ms. Brown received. In its sentencing order, her trial court specifically stated that Ms. Brown “must serve at least fifty-one (51) calendar years before she is eligible for release.” The Tennessee Department of Correction similarly notes that Ms. Brown is parole eligible:

Nonetheless, Ms. Brown’s federal habeas claim sought to convince the U.S. Court of Appeals for the Sixth Circuit to hold that she was not eligible for parole at all. The claim—to put it mildly—was never likely to succeed. Nonetheless, in June, the Sixth Circuit gave the Tennessee Supreme Court the opportunity to clarify the perceived ambiguity in Tennessee’s sentencing scheme and determine whether or not Ms. Brown was parole eligible.

In its opinion on Thursday, the Tennessee Supreme Court concluded that Ms. Brown was indeed parole eligible. According to the Court, this result was dictated by Tennessee’s sentencing statutes, which the Tennessee Supreme Court determined were not in conflict. Even if Tennessee’s sentencing statutes were ambiguous, however, the “rule of lenity” would have required the same outcome. Under that rule, whenever there is an ambiguity in a criminal provision that can reasonably be interpreted in two ways—one that is more favorable to a defendant and one that is less favorable—precedent and fairness compel that the more lenient interpretation be applied.

Contrary to typical circumstances, Ms. Brown argued that she should have been given a sentence that was even harsher than the one she actually received. The reason why she lodged that claim? In a 2012 case—Miller v. Alabama—the U.S. Supreme Court ruled that juvenile life without parole sentences are presumptively unconstitutional. That decision was also held to be retroactive in 2016 following the U.S. Supreme Court’s decision in Montgomery v. Louisiana. As a result, if Ms. Brown had received a life without the possibility of parole sentence, then she would (at least theoretically) be entitled to have her sentence remedied.  In other words: Ms. Brown wanted the Sixth Circuit to hold that her sentence was even harsher than it was so that it would be presumptively unlawful.  To date, however, it is worth noting that none of Tennessee’s fourteen actual juvenile life without parole defendants have had their presumptively unconstitutional sentences corrected in any regard.

Because the Tennessee Supreme Court has now determined—correctly and by necessity—that Ms. Brown is and always has been parole eligible, her entitlement to resentencing under Miller and Montgomery is not straightforward. She can, and will, continue to argue that she received a “de facto” life without parole sentence because few people will survive 51 years in prison. Nonetheless, anyone who decries the Tennessee Supreme Court’s clarification is, in a literal sense, demanding an even harsher outcome in her case: That Ms. Brown is never eligible for parole at all. The notion that the Tennessee Supreme Court’s failure to embrace that outcome is a “travesty of justice” is farcical, and outrage about the Court’s decision should be tempered accordingly.

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Tennessee Supreme Court Releases Trio of Decisions Restricting Criminal Defendants’ Rights

Constitutional Law, Criminal Law, Criminal Procedure, , ,

By Daniel A. Horwitz

Late last week, the Tennessee Supreme Court issued a trio of critically important decisions on criminal-constitutional issues.  Continuing a recent trend on the topic, criminal defendants got walloped.

1. Further Restricting Coram Nobis Relief

In Nunley v. State of Tennessee, the Court significantly restricted the measure of relief available under the writ of error coram nobis.  Coram nobis is a procedural vehicle used to help remedy wrongful convictions based on new evidence that is discovered after a defendant has been convicted.  Regrettably, the Court’s unanimous decision in Nunley narrowed the writ’s already limited scope even further.

Nunley involved a defendant who was convicted of aggravated rape in 1998 and alleged that DNA testing proved that he was innocent of the crime.  Mr. Nunley further alleged that in 2014, he discovered that the State had withheld critical exculpatory evidence when the Shelby County District Attorney’s Office included four previously-undisclosed exhibits in a responsive pleading that it filed in opposition to his petition for DNA testing under the Post-Conviction DNA Analysis Act.

Upon review, the Court rejected Mr. Nunley’s plea for relief.  Three critical, novel holdings are worthy of emphasis:

First, the Court held that the writ of error coram nobis cannot be used to advance claims under Brady v. Maryland, 373 U.S. 83 (1963).  A “Brady” claim is a claim that a defendant’s right to a fair trial was violated because the State withheld exculpatory evidence that it is constitutionally required to provide to defendants.  This oft-overlooked violation can be characterized as pervasive in Shelby County and other areas in Tennessee.  Further, when Brady violations are acknowledged—even in capital cases—the Board of Professional Responsibility of the Tennessee Supreme Court has given District Attorneys little more than a slap on the wrist.  Henceforth, however, Brady claims will no longer be cognizable via the writ of error coram nobis.  Instead, they must be brought via the Tennessee Post-Conviction Procedure Act.

Second, the Court held that “timeliness under the statute of limitations is an ‘essential element’ of a coram nobis claim that must appear on the face of the petition.”  Unless tolled, a writ of error coram nobis must be filed within one year of the date of a defendant’s conviction or it will be forever unavailable as time-barred.  Given, among other things, the overwhelming difficulties associated with reinvestigating one’s case from prison and Tennessee’s structurally deficient indigent defense system, this time limitation is so short that it renders the writ practically useless.  According to the National Registry of Exonerations, criminal defendants who were exonerated in 2017 “spent an average of 10.6 years incarcerated for their convictions.”  Similarly, in 2016, “[a]lmost two-thirds of the DNA exonerations in 2016 were murder cases, and the average time from conviction to exoneration was 21 years.”  Accordingly, absent rare and extraordinary circumstances, the one-year statute of limitations will operate to foreclose virtually all meaningful opportunities for relief under Tennessee’s coram nobis statute.

Third, and most significantly, the Court held that “coram nobis petitions with inadequate allegations are susceptible to summary dismissal on the face of the petition, without discovery or an evidentiary hearing.”  Importantly, the vast majority of coram nobis petitions are filed by pro se inmates who have no right or ability to have an attorney assist them.  As a result, this easily-overlooked bombshell will essentially end coram nobis relief across Tennessee, because vanishingly few pro se litigants will be able to draft a petition that successfully navigates the procedural morass necessary to state a cognizable claim for relief on their own.  Thus, when coram nobis petitions are filed, nearly all of them will now be dismissed summarily: (1) without a response; (2) without a hearing; and (3) without the opportunity to have an attorney file an amended petition to correct any shortcomings in the inmate’s pleadings.  As a consequence, for nearly all practical purposes, the writ of error coram nobis is now dead.

2.  Growing Expansion of “Good Faith” Exception to Unlawful Searches

In State v. Lowe, the Tennessee Supreme Court addressed a suppression issue in a gruesome case involving two murdered newborns.  The contested search warrant involved a magistrate’s “simple and good-faith clerical error of incorrectly indicating on one of three copies of the warrant that it was issued at 11:35 ‘PM’ while correctly indicating on the other two copies that it was issued at 11:35 ‘AM.’”  Although there is an extremely good reason why law enforcement is required to state the time of issuance on a search warrant—it helps “ensure that the warrant is obtained [legally] before the search is conducted, not [illegally] afterwards”—the error in Lowe genuinely appeared to have been a clerical one committed in good faith.

Following a similar set of circumstances, in 2011, the Tennessee General Assembly enacted the “Exclusionary Rule Reform Act,” which provides that evidence “shall not be suppressed” if the court determines that the violation was the result of a good faith mistake or “technical” violation.  In a holding that would traditionally be important, the Tennessee Supreme Court unanimously determined that, in enacting the ERRA, the General Assembly encroached upon the exclusive province of the judiciary in violation of the Tennessee Constitution’s separation of powers doctrine.  Accordingly, the Court held that “the ERRA represents an impermissible encroachment by the legislature upon this Court’s authority,” and it invalidated the ERRA as unconstitutional.

Even so, the Court nonetheless did precisely what the ERRA instructed, and it adopted its central legislative demand as a matter of Tennessee common law.  Notably, this is the second time in three years that the Tennessee Supreme Court has “asserted” its authority under the separation of powers doctrine, only to “acquiesc[e] to the standard proposed by the General Assembly” and adopt as a matter of Tennessee common law precisely what the legislature had promulgated as a matter of statute.

In sum: finding that “the magistrate’s good-faith mistake was inconsequential,” the Court held that “the exclusionary rule should not be applied under these circumstances,” and it declined to suppress the evidence gathered as a result.

3.  Wholesale Embrace of the “Good Faith” Exception

Third and finally, in a case relying on its just-released decision in Lowe, the Tennessee Supreme Court took up State v. Daniel, a decision involving whether the “good faith” exception should apply when law enforcement fails to provide a defendant with a copy of a search warrant at all.

One scholar has written about the Tennessee Supreme Court’s breakneck sprint toward a wholesale “good faith” exception in Tennessee.  Somewhat less noticed has been the fact that Tennessee Supreme Court has also changed the Tennessee Rules of Criminal Procedure to accommodate it, bolstering its permanence.  Effective July 1, 2018, Rule 41 was amended to afford trial courts discretion to determine whether to exclude evidence that was gathered pursuant to a search warrant that is noncompliant with Rule 41.  See 2018 Tenn. Ct. Order 0002, No. ADM2017-01892 (Tenn. 2018).  The amendment altered the critical language of subsection (g)—which had stated that a motion to suppress “shall be granted” if a search warrant is defective—to read instead that the motion “may” be granted.  This rule change, however, is merely a matter of formality, having already been adopted informally by judicial fiat.  In 2015, in a cursory section on page 32 of its decision in State v. Corrin Reynolds, the Tennessee Supreme Court expressly held that the notion that the word “shall” in Rule 41 ever actually meant what it said “would be peculiar indeed.”

With this context in mind, the Court easily concluded that the “good faith” exception to unlawful searches applied in Daniel, finding that although the search warrant at issue was not provided to the defendant, the mistake was an honest one and did not result in any prejudice.  As a consequence, while continuing to characterize the good faith exception as a “narrow” one despite decision after decision indicating otherwise, the Court determined that the evidence would not be suppressed.

***

Taken together, the Tennessee Supreme Court continues its steady campaign to restrict the rights of the criminally accused.  As a result, criminal defendants in Tennessee—particularly those who are innocent—may be forced to turn to federal courts for habeas corpus relief under equitable exceptions that excuse defendants’ failure to comply with inadequate state processes instead.

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Supreme Court Solicits Comments on Proposed Rule Changes

Constitutional Law, Contract Law, Criminal Law, Tennessee Court Rules, , ,

By Daniel A. Horwitz

Following the demise of proposed Rule 8.4(g) last month—a well-intentioned but dangerous and constitutionally infirm speech code—two additional rule changes have been proposed to the Tennessee Supreme Court for consideration.  The court is currently soliciting comments on both proposals.

The first proposal is a petition to amend Rule 25, governing the Tennessee Lawyers’ Fund for Client Protection.  The proposed changes are detailed here.  I have a problem with one of the proposals, which caps attorney compensation at the randomly low amount of $500.00.  Such a rule would significantly interfere with what is typically a strongly-enforced right to contract.  It would also have no result other than ensuring that clients can’t get legal representation to handle qualifying fraud claims.  Simply stated: lectures on lawyers’ duties aside, no lawyer will work a complex case with a potential value of up to $250,000.00 for just $500 plus expenses, and there are other matters that are significantly more worthy of pro bono assistance.  My concerns about this portion of the proposed change are detailed in this Twitter thread, and the text of the change at issue is as follows:

18.01. No lawyer shall charge or accept compensation for prosecuting a claim on behalf of a claimant unless approved by the Board (a) on a contingency basis or (b) in excess of a flat fee of $500.00 plus reimbursement of expenses. Lawyers owe a duty to the public to assist individuals wronged by members of the profession and may count hours spent assisting a claimant in the prosecution of a claim as pro bono hours if conducted without receiving a fee.

https://twitter.com/Scot_Blog/status/994589523223941121

The second proposed change is to amend Rule 13 to adjust the hourly rates and per-case caps for appointed indigent criminal defense work.  $9.7 million in additional and much-needed funding was recently appropriated for indigent defense in Tennessee, which is currently in a state of crisis.  The proposed changes are available here, and the TBA is soliciting input here.  The changes, if adopted, would modestly increase case caps and compensate both in-court and out-of-court work at $50/hour.

Compensating in-court and out-of-court work at the same rate is a marked and arguably legally mandated improvement.  However, as a whole, the changes are not nearly significant enough to address the catastrophic problems and perverse incentives involved in Tennessee’s indigent defense system.  In particular, retaining case caps ensures a serious and rapid conflict of interest in appointed cases, because after attorneys spend between 10-60 hours on a defendant’s representation (depending on the type of case), the attorney stops getting paid.  For instance, under even the improved case caps, a lawyer defending a client charged with First Degree murder will only be paid for the first 60 hours of work.  Further, even if the case at issue is deemed especially “complex or extended”—a characterization that should apply to every serious felony case—a lawyer will only be compensated for a maximum of 120 hours of work no matter how long the case lasts.  For cases that can often take years to resolve, the economic pressure to push a client to plead guilty after the cap has been hit is enormous.

For anyone interested in providing commentary on the proposed rules, written comments may be emailed to [email protected] or mailed to:

James Hivner, Clerk
Tennessee Appellate Courts
100 Supreme Court Building
401 7th Avenue North
Nashville, TN 37219-1407

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Tennesseans for Sensible Election Laws: It Shouldn’t Be a Crime to Make Fun of Your State Representative. In Tennessee, It Is.

Constitutional Law, Criminal Law, First Amendment, ,

Republished with permission from Tennesseans for Sensible Election Laws, a new organization seeking to ensure that Tennessee’s election statutes, policies, and regulations protect the rights of all Tennesseans to participate in democracy and support candidates of their choosing without unreasonable governmental interference.

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If you decide that you’ve had enough of the nonsense in Nashville and you send postcards to potential voters claiming your representative “has cauliflower for brains”—or if you publish or distribute any other “campaign literature in opposition to any candidate in any election” that you know to be false—police can arrest you for committing a Class C misdemeanor, lock you in a cage for a month, and fine you for every postcard you send.  Frighteningly, if Tennessee House Representative Karen Camper (D-Memphis) and Tennessee Senator Reginald Tate (D-Memphis) get their way, the “crime” of distributing false campaign literature would be elevated to a Class A misdemeanor, allowing the state to lock you up for nearly a year.

What country is this, and what happened to America?

The often-misunderstood Citizens United v. FEC case turns eight years old this year.  In that case, the Supreme Court ruled that the First Amendment protects people from being thrown in jail for exercising their right to free speech.  What better time is there to explore why the ideas behind Tenn. Code Ann. § 2-19-142 are so bad?

It goes without saying that giving government officials the power to imprison people who criticize or make fun of them is a dangerous, slippery slope.  With that context in mind, it is also worth noting that the Camper/Tate bill that the General Assembly is considering this legislative session helps nobody more than it helps Rep. Camper and Sen. Tate.  If you can’t write that your representative has cauliflower for brains, what can you write?  You can write a bunch of boring technical, legal, or public policy jargon that most people don’t understand.  When people read those kinds of things, they either vote for people who already hold office—like Rep. Camper and Sen. Tate—or they get frustrated and don’t vote at all.  Either way, incumbents win.

In a case involving an Ohio state law that criminalized political speech the same way that Tenn. Code Ann. § 2-19-142 does, Cato Institute constitutional scholar Ilya Shapiro once argued to the Supreme Court that “‘truthiness’—a ‘truth’ asserted ‘from the gut’ or because it ‘feels right,’ without regard to evidence or logic—is . . . a key part of political discourse.”  He also recognized that “the government [is not] well-suited for evaluating when a statement crosses the line into falsehood.”  That’s doubly true for people who have both the power to make laws and a personal interest in the outcome of their next election.  (And ultimately, Shapiro proved right: Ohio backed away from trying to enforce its unconstitutional law against a nonprofit that wanted to put up a billboard.)

Further, Tenn. Code Ann. § 2-19-142 ignores that saying nasty things about the other guy or gal is as American as apple pie.  When Thomas Jefferson ran for president in 1800, he accused President John Adams of “trying to start a war with France,” “importing mistresses from Europe,” and committing that cardinal sin of “trying to marry one of his sons to a daughter of King George.”  Adams, a known verbal pugilist, repaid Jefferson in kind, saying that if people elected the man who wrote the Declaration of Independence, their homes would spontaneously combust.  (And thanks to Lin-Manuel Miranda, many people now know that Adams also called Alexander Hamilton a “Creole bastard”—but that was actually true!)

If politicians want to literally handcuff themselves from being able to joke about some of the more cartoonish candidates for Tennessee governor and U.S. Senate this year, I suppose they can be my guest—because that’s exactly what Tenn. Code Ann. § 2-19-142 does.  Of course, Tennesseans who support sensible election laws shouldn’t let this happen.  Vote against Rep. Camper and Sen. Tate in the next election.  After all, they have cauliflower for brains.

Paid for by Tennesseans for Sensible Election Laws.  George S. Scoville III, Treasurer.  Not authorized by any candidate or candidate’s committee, but we don’t think it should be a crime not to tell you that.

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Tennesseans for Sensible Election Laws is a non-partisan, non-profit group of concerned citizens who care about protecting Tennessee’s democratic process.  Our mission is to ensure that Tennessee’s election statutes, policies, and regulations protect the rights of all Tennesseans to participate in democracy and support candidates of their choosing without unreasonable governmental interference.

We work toward this mission by supporting pro-democracy candidates for public office, initiating strategic litigation, engaging in direct lobbying, and promoting public awareness.   Follow us on Facebook and Twitter, and please click here to support our work.

Estate of Jocques Clemmons Secures Return of Phone; Deletion of Social Media Data Procured by MNPD

Constitutional Law, Criminal Law, Criminal Procedure, Fourth Amendment, ,

In an important win against investigative abuse, the Estate of Jocques Clemmons has secured all of the relief that it sought in a February 9, 2018 lawsuit concerning the Metro Nashville Police Department’s efforts to search Mr. Clemmons’ cell phone and social media accounts following his death.  The MNPD and MNPD Detective Danny Satterfield—who procured the warrants at issue and was similarly sued by Mr. Clemmons’ estate—also formally acknowledged that the search warrants that were sought against Mr. Clemmons could “be construed as overbroad.”

Following a settlement agreement reached on March 2nd, the MNPD agreed to relinquish Mr. Clemmons’ cell phone to his mother, which it had refused to turn over for more than a year following Mr. Clemmons’ death.  Yesterday, in keeping with the parties’ settlement agreement, the MNPD also filed a Declaration of Compliance certifying that the defendants had “administratively expunged and destroyed all data in their possession retrieved from Jocques Clemmons’ Instagram account and Facebook account.”  Accordingly, earlier this morning, the U.S. District Court for the Middle District of Tennessee issued a Final Order terminating the case.

The lawsuit arose out of a fatal officer-involved shooting on February 2017, during which Mr. Clemmons was shot in the back.  Days after Mr. Clemmons was killed, MNPD Detective Danny Satterfield filed three search warrant applications seeking “any/all data contained and/or stored within” Mr. Clemmons’ Facebook account, Instagram account, and cell phone.  Without any stated time or content limitation whatsoever, the warrants specifically sought Mr. Clemmons’ “pictures, videos, audio, text messages, incoming/outgoing Facebook Messanger [sic] conversations, voicemails, chat logs, contact information, call logs, emails, internet data, Wi-Fi data, IP address(es), search history, maps, locations, GPS data, drafts, deleted files/folders, etc.”

Officer Satterfield’s search warrant applications stated under oath that he had probable cause to believe that all of the data on Mr. Clemmons’ social media accounts and cell phone contained “certain evidence” of a crime committed by Mr. Clemmons, who was by then deceased and not subject to arrest.  A month later, however, the MNPD acknowledged that whether Mr. Clemmons’ social media accounts or cell phone contained any relevant evidence was actually “unknown.”   Disturbingly, such efforts to rifle through decedents’ social media accounts and cell phones in search of damaging information after controversial officer-involved shootings are not isolated.

“While we remain disappointed that these three wildly overbroad and comically unconstitutional search warrants were ever sought or approved in the first place, we appreciate that the MNPD has now taken the steps necessary to remedy those prior illegalities,” said attorney Daniel Horwitz, who represented Mr. Clemmons’ estate. “The Clemmons family is very happy to have back his phone—which contains several cherished family photos—and it is satisfied that the MNPD has now destroyed the data that it unlawfully obtained from Mr. Clemmons’ social media accounts following his death.”

Selected Case Documents:

–Clemmons Complaint & Exhibits (MNPD Social Media Warrants)

–*Settlement Agreement

–Defendants’ Declaration of Compliance

–Final Order

Selected Media Coverage:

-Patch: After A Year, Nashville Police Return Jocques Clemmons’ Phone

-The Tennessean: More than a year after Jocques Clemmons died, police returned his phone to family

-News Channel 5: Metro Police Return Clemmons’ Cell Phone After Lawsuit Is Filed

-The Tennessean: A year after Jocques Clemmons’ death, police still have his phone. His family wants it back.

-The Nashville Scene: It’s Been One Year Since the Jocques Clemmons Shooting

-The Nashville Scene: Why Does MNPD Need to Search Jocques Clemmons’ Social Media?

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