The Tennessee Supreme Court will hear the Nashville Banner’s appeal seeking to unseal judicial records that may shed light on claims that Davidson County Criminal Court Judge Cheryl Blackburn—who suffered a stroke in 2021—is incompetent. The Tennessee Supreme Court’s order granting the Nashville Banner’s application for permission to appeal is available here: https://horwitz.law/wp-content/uploads/Banner-Rule-10-Grant.pdf
The case arises from a criminal proceeding in Davidson County. On April 8, 2024, Judge Blackburn entered an order “recus[ing] herself from further presiding over the above captioned case.” The order offered no explanation for Judge Blackburn’s recusal. Nor did the court’s docket suggest what may have prompted it.
The Nashville Banner—a news organization—then engaged in newsgathering. Although no sealed documents were identified on the court’s docket, the Davidson County Criminal Court Clerk later confirmed to the Banner that there were actually five sealed filings in the case that the court’s docket did not reflect. The Clerk identified three of those sealed documents—which were filed shortly before Judge Blackburn’s recusal order entered—as:
1. John Doe’s Motion for Disqualification of the Trial Judge and For Continuance
2. Affidavit of John Doe In Support of John Doe’s Motion for Disqualification and to Continue
3. Affidavit of Jane Doe In Support of John Doe’s Motion for Disqualification and to Continue
These documents had been sealed without explanation in contravention of local court rules and long-settled Tennessee sealing precedent. Nevertheless, when the Banner moved to unseal the documents, Criminal Court Judge Angelita Dalton—who was now presiding over the case following Judge Blackburn’s recusal—declined to do so. Judge Dalton’s order states:
[T]his Court further finds that the public disclosure of these particular documents, especially at this premature juncture, would likely result in the publication of claims that (a) are currently insufficiently supported, (b) would annoy, embarrass, oppress, or create undue burdens for involved persons, (c) deny involved persons their rights to substantive, procedural, and administrative due process, and (d) delay court proceedings. The Court further finds that any substantiated concerns related to judicial competency may also be addressed through other appropriate avenues, which counsel for the existing parties are sufficiently equipped to pursue if they have not already.
Following an initial round of appellate review, the Tennessee Court of Criminal Appeals declined to unseal the subject documents. In its ruling, though, the Court of Criminal Appeals determined—without any party asserting the position—that “Rule 10 specifically limits the opportunity to seek appellate review in criminal cases to the State and the Defendant,” meaning that the Court of Criminal Appeals ruled that intervening media entities have no right to pursue an immediate appeal of trial court sealing determinations. Tennessee Rule of Appellate Procedure 10 does not restrict intervenors’ right of appeal in this way, though, and previous appellate cases hold differently. See, e.g., State v. Montgomery, 929 S.W.2d 409, 411 (Tenn. Crim. App. 1996) (granting Rule 10 application for permission to appeal by intervenor “the Memphis Publishing Company” in criminal case).
The Tennessee Supreme Court has now granted review of the Banner’s application for permission to appeal. Thus, the Tennessee Supreme Court will hear just its third media case in a decade.
“We are proud to represent the Nashville Banner in this important case, and we look forward to vindicating the public’s right to transparency,” said Horwitz Law, PLLC principal Daniel A. Horwitz, the Banner’s lead counsel. “The public is entitled to review judicial records that include claims that a judge may be incompetent, and the Banner is committed to ensuring that such records are not sealed from public view improperly.”
Tim Easter was an unlikely candidate to become a judge for the Tennessee Court of Criminal Appeals. In his youth, while driving 54 miles per hour in a 35-mile-per-hour zone, the Williamson County jurist killed a woman on her way to church. According to Metro police officer William Bay, the skidmarks from the accident—which “stretched about 140 feet”—“indicate that he was speeding.” Nevertheless, “no charges were filed against Easter,” who was later sued in connection with the incident. In a judicial application filed by Easter decades later, he misleadingly described the wrongful death matter as an “[a]uto accident case that was settled and dismissed[.]”
It is fair to wonder whether someone who came from a less privileged background—or who looked different than Easter does—would have been prosecuted for vehicular homicide under the same circumstances. At any rate, Easter does not appear to have experienced any consequences whatsoever.
With a background like this, one might reasonably expect Judge Easter’s jurisprudence—which is limited to appeals in criminal cases—to include some measure of grace. That expectation, however, would be wrong. Quite to the contrary, Easter distinguishes himself year after year as one of Tennessee’s most aggressively graceless judges. A recent indefensible decision—which the Tennessee Supreme Court has just designated “not for citation” after considering a Horwitz Law, PLLC amicus brief urging that result—illustrates the point.
Andre Terry is serving a life sentence after being convicted at trial for serious crimes. After exhausting his direct appeal rights, Mr. Terry filed a pro se petition for post-conviction relief. Like many such petitioners, Mr. Terry overlooked a form requirement: he neglected to sign and verify his petition under oath. After Mr. Terry was appointed an attorney, that common oversight was corrected with “no objection” from the State. The parties then proceeded to hearing, and Mr. Terry was denied post-conviction relief on the merits of his claims.
On appeal, Mr. Terry asserted that he should have been granted relief, while the State asserted that relief was properly denied to him. These typical events are hardly worthy of note. What is unusual is what happened next.
Despite the State of Tennessee declining to raise any argument on the matter, the Court of Criminal Appeals sua sponte “ordered supplemental briefing” as to: (1) whether Mr. Terry’s pro se post-conviction was an incurable “nullity” because it was originally unsigned, and (2) whether the effect of being a “nullity” was to deprive the trial court of subject matter jurisdiction to adjudicate the claims presented in it. The unsigned order—which ostensibly was issued based on party-presentation rules—set out in detail the argument it wanted the State to brief. Put another way: The Court of Criminal Appeals invited and detailed an argument for the State to make that the State both had not made for itself and affirmatively waived. Afterward, Judge Easter’s opinion adopted the invited jurisdictional argument and ordered Mr. Terry’s petition dismissed for lack of subject matter jurisdiction because it was originally unverified.
To understate the matter, there are several problems with this approach:
First, rather than respecting party-presentation rules, Judge Easter violated them. As the Tennessee Supreme Court recently explained in its seminal party-presentation decision, the principle of party presentation “rests on the premise that the parties ‘know what is best for them, and are responsible for advancing the facts and argument entitling them to relief.” State v. Bristol, 654 S.W.3d 917, 923 (Tenn. 2022). Further, “in our adversarial system, the judicial role is not ‘to research or construct a litigant’s case or arguments for him or her, but rather to serve as ‘arbiters of legal questions presented and argued by the parties before them[.]’” Id. Suffice it to say that drafting an unraised argument for the State to brief, ordering the Parties to submit supplemental briefing on that argument, and then adopting the invited argument as the Court’s ruling is inconsistent with this principle. It also reasonably calls into question whether Easter, a former prosecutor, and his colleagues were acting as impartial arbiters or as advocates for a particular result.
Second, the argument that Judge Easter adopted has been rejected repeatedly by the Tennessee Court of Criminal Appeals in past cases, and it was foreclosed—at minimum—by binding Court of Criminal Appeals precedent. See Sexton v. State, 151 S.W.3d 525, 530 (Tenn. Crim. App. 2004) (“Although the comprehensive petition in the present case was not verified under oath, we do not believe the circumstances justified limiting the petitioner’s claims. . . . We conclude that the circumstances justify the petitioner’s claims being heard on their merits.”); see also Timberlake v. State, No. W2008-00037-CCA-R3-PC, 2009 WL 302294, at *2 (Tenn. Crim. App. Feb. 5, 2009) (“[t]he State, however, ignores the fact that we went on [in Sexton] to conclude that the post-conviction court should have allowed the petitioner the opportunity to verify her amended petition under oath instead of ruling it invalid due to lack of verification”). For whatever reason, though, Judge Easter’s opinion did not mention the precedent that foreclosed it along the way to changing Tennessee law in a way that precluded merits review of post-conviction claims due to a form deficiency.
Third, the argument is just wrong. There is a well-understood—and elementary—legal difference between “jurisdictional” rules (which are non-waivable and, when violated, deprive a court of authority to consider a litigant’s claim) and “claims-processing” rules (which are waivable and do not). There also are obvious reasons why the post-conviction verification requirement in question “represents a mere claims-processing rule”: a conclusion on which “virtually every court to consider the question” agrees. See Hughley v. Gov’t of Virgin Islands, 61 V.I. 323, 334–35 (2014) (collecting cases). Judge Easter’s opinion overlooked the entire concept, however, suggesting unawareness of the entire doctrine.
To understand why any of this matters, it is important to know that nearly every wrongly or unfairly convicted criminal defendant in Tennessee—including the Joseph Websters and Calvin Bryants of the world—relies on post-conviction processes for relief. Permanently foreclosing courts, on jurisdictional grounds, even from considering a defendant’s claims based on a technical form deficiency would consign such defendants to a fate where Tennessee’s courts are forever powerless to grant them relief even if courts agree their claims have merit. Initially failing to verify a post-conviction petition also is a common oversight, particularly given that post-conviction petitioners generally do not have the assistance of an attorney until after they file. Thus, Judge Easter’s opinion, if permitted to stand, would have cut off a huge number of defendants—including wrongfully convicted defendants—from court review and permanently deprived them even of the possibility of relief.
Given that our practice includes exonerating innocent clients through the post-conviction process, Horwitz Law cares about judicial efforts—like this one—to cut off our clients from receiving a hearing on their actual innocence claims. So we submitted an amicus brief detailing the severe flaws in Judge Easter’s opinion and asked the Tennessee Supreme Court to designate it non-citable. Fortunately, after considering Horwitz Law’s amicus brief on the matter, the Tennessee Supreme Court has now designated Judge Easter’s opinion “not for citation.” That uncommon designation renders it non-precedential and prevents it from causing any further mischief. Hopefully, in the future, Judge Easter won’t dangerously speed through controlling doctrine on the way to reaching a preferred destination, leaving skidmarks on the rights of the litigants whose cases he is charged with adjudicating impartially along the way.
Questions about this article? Contact the author at daniel [at] horwitz.law.
Malicious prosecution—a common law tort claim—is designed to afford civil redress to people who are subjected to maliciously false lawsuits or criminal charges. Between the two, being an innocent person who is wrongfully charged with a crime based on malicious falsehoods is worse. As the U.S. Supreme Court has observed, “[a]rrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.”[1] Put another way (as the Fifth Circuit has):
“[A] wrongful indictment is no laughing matter; often it works a grievous, irreparable injury to the person indicted. The stigma cannot be easily erased. In the public mind, the blot on a man’s escutcheon, resulting from such a public accusation of wrongdoing, is seldom wiped out by a subsequent judgment of not guilty. Frequently, the public remembers the accusation, and still suspects guilt, even after an acquittal.”[2]
With this context in mind, the tort of malicious prosecution exists to deter people from initiating knowingly baseless charges for malicious purposes and to enable those who are harmed by such charges to be made whole. Nobody seriously disputes the public policy value of such a tort. Indeed, independent of civil liability, it is a crime to initiate a knowingly false report to a law enforcement officer for a reason.[3]
By the same token, society has strong interests in encouraging people to report crimes and to insulate those who do so in good faith from retaliatory lawsuits. Nobody reasonably disputes this, either. That is why Tennessee (rightly) sets a high bar for malicious prosecution claims and recognizes multiple easy-to-prove defenses along with three separate (and overlapping) common law and statutory immunities from suit—all of which function to protect good-faith reporters from any serious fear of liability and enable them to recover their legal expenses whenever they are improperly sued.
As of yesterday, though, based on practical realities of the criminal justice system that the Tennessee Supreme Court’s unanimous opinion in Mynatt v. NTEUutterly fails to acknowledge, what was previously a high bar has become impossible to clear in nearly all criminal cases. The essential holding of the Court’s opinion is that “plaintiffs can pursue a claim for malicious prosecution only if an objective examination, limited to the documents disposing of the proceeding or the applicable procedural rules, indicates the termination of the underlying criminal proceeding reflects on the merits of the case and was due to the innocence of the accused.”[4] Because Tennessee’s criminal judgment form does not contemplate such a finding, though—and because innocent criminal defendants lack any power to force courts or prosecutors to declare their innocence on their dismissal documents—this standard is illusory as a practical matter. Thus, when a prosecutor determines that a defendant is innocent and opts to dismiss the charges against him as a result, a defendant who wishes to maintain a subsequent malicious prosecution claim must now object to the dismissal of the charges and demand a trial instead.
This will never (and should never) happen. It also makes little sense to treat criminal defendants whose cases reach trial more favorably than those against whom evidence was so weak that a prosecutor agreed to dismiss charges without one. That is not just the author’s view, either. As Justice Kavanaugh explained for the United States Supreme Court when assessing the same issue under federal law just last year:
“[R]equiring the plaintiff to show that his prosecution ended with an affirmative indication of innocence would paradoxically foreclose a [malicious prosecution] claim when the government’s case was weaker and dismissed without explanation before trial, but allow a claim when the government’s evidence was substantial enough to proceed to trial. That would make little sense.”[5]
It is not entirely clear from the Tennessee Supreme Court’s opinion—which contains several glaring errors (like misstating the relevant statute of limitations applicable to criminal proceeding-based malicious prosecution claims and mischaracterizing the substance of the trial court order under review)—that even an acquittal after trial will suffice, either. As even the most naïve observers of the criminal justice process are aware, an acquittal does not actually reflect a judgment “due to the innocence of the accused,” which is what the Tennessee Supreme Court now says is the standard. To the contrary, an acquittal “does not prove innocence but, rather, indicates that the prior prosecution failed to meet its burden of proving beyond a reasonable doubt at least one element of the crime.”[6] Independently, because a separate element of malicious prosecution claims is that a charge must have been initiated without probable cause, charges that reach trial traditionally preclude malicious prosecution liability based on the “interim adverse judgment rule” on the ground that a charge “had sufficient potential merit to proceed to trial[.]”[7] A rule that acquitted criminal defendants may (maybe) maintain malicious prosecution claims—but that defendants whose cases were dismissed before trial cannot—is also asinine, “upside down[,]” and has the “perverse consequence of ensuring that some of the most deserving plaintiffs, those who are falsely accused and whose cases were dismissed early on, could not sue . . . .”[8]
All of this is deeply unfortunate. And the basis for the ruling—which overrules two centuries of Tennessee precedent in favor of adopting the standard for malicious prosecution claims that arise out of civil proceedings—is even worse. Unlike criminal defendants, civil defendants who are victimized by fraudulent civil litigation have a wide range of tools at their disposal under Tennessee law that enable them to be made whole—including the ability to pursue sanctions even after dismissal,[9] prevent non-merits dismissals merely by moving for summary judgment,[10] and obtain up to $10,000.00 following early-stage dismissals under Tenn. Code. Ann. § 20-12-119(c). To the extent that the Tennessee Supreme Court was concerned about exposing good-faith reporters to discovery, people who are sued for malicious prosecution for reports to law enforcement also have the ability to stay discovery—every time[11]—merely by petitioning under the Tennessee Public Participation Act, and they can win immediately (and recover their legal expenses) simply by demonstrating that they reported in good faith.
The practical result of the Tennessee Supreme Court’s ruling is that—with the exception of criminal defendants whose charges are dismissed at the earliest possible stage of proceedings for lack of probable cause—no Tennessee criminal defendant will ever be able to maintain a malicious prosecution claim. A person who falsely accuses, in bad faith, someone of committing a crime can also largely insulate themselves from subsequent malicious prosecution liability just by testifying falsely at a preliminary hearing or filing a false report that facially establishes probable cause. It goes without saying that society will not benefit from this standard or the perverse incentives it creates.
Considered broadly: If the Tennessee Supreme Court wants to shut the door to righteous civil claims—something it has been increasingly aggressive about doing—it should just say so. Pretending that claims are available when—as a practical matter—they are illusory compromises the judiciary’s integrity and misleads the public by suggesting that wrongs have remedies when they do not. Judges—who enjoy absolute immunity from nearly all such claims of wrongdoing—also are not likely to appreciate the genuine consequences of such an approach. Perhaps it will take a member of the judiciary being wrongfully arrested based on maliciously false criminal charges, suffering the personal and professional humiliation of a false-but-widely-publicized criminal accusation, and finding him or herself without redress after the charge is dismissed for that to change. Until then, Mr. Mynatt deserved better.
[8] Tr. of Oral Argument at 73:10–17, Thompson v. Clark, 142 S. Ct. 1332 (2022) (No. 20-659), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-659_lkgn.pdf.
[9] Menche v. White Eagle Prop. Grp., LLC, No. W2018-01336-COA-R3-CV, 2019 WL 4016127, at *10 (Tenn. Ct. App. Aug. 26, 2019).
[11]Cf. Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 734, 74 P.3d 737, 741 (2003) (noting that California’s anti-SLAPP law “potentially may apply to every malicious prosecution action”).
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.
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.
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.
Pound’s essential
premise was that, by the turn of the twentieth century, the American justice
system had devolved into little more than a game that focused not on adjudicating
controversies on their merits and meting out judgments that substantive justice
compelled, but looked instead to whether litigants had successfully navigated procedural
rules that had little bearing, if any, upon the actual case at bar. Pound decried:
“The inquiry is not: What do substantive law and justice require? Instead, the inquiry is: Have the rules of the game been carried out strictly? If any material infraction is discovered, just as the football rules put back the offending team five or ten or fifteen yards, as the case may be, our sporting theory of justice awards new trials, or reverses judgments, or sustains demurrers in the interest of regular play.”
None of this, of course, was to suggest that procedural rules are not important. Indeed, to the contrary, all agree that procedural rules—such as fair notice and a meaningful opportunity to be heard—are essential to protect substantive rights.
Frequently, however,
procedural rules are distantly removed from substantive protections. Under such circumstances—particularly when a
rule is unclear or an opposing litigant has not been harmed—the notion that
someone should lose their day in court due to technical non-compliance is corrosive
to the justice system’s fundamental purpose: To adjudicate the merits of controversies
and dispense justice based on litigants’ substantive rights.
Frustratingly, despite
many essential improvements over the past century that aimed to reform the
justice game, many judges’ disinterest in providing substantive justice
doggedly persists. Kennerly’s article
provides some recent examples in federal court, but Tennessee is a similar
offender. Tennessee’s intermediate
appellate courts, in particular, have long jumped to dismiss substantive claims
based on procedural technicalities that have little or no relation to litigants’
substantive rights—something that the Tennessee Supreme Court has repeatedly
intervened to chastise over, and over, and over again.
Consider, for instance, the Court of Appeals’ 2014 opinion in Arden v. Kozawa—a wrongful death case that the Court of Appeals dismissed because the plaintiff had delivered notice to an opposing party using FedEx instead of USPS (the Tennessee Supreme Court sensibly reversed). Or this case from a few weeks ago, where the Court of Appeals declined to consider a litigant’s argument on appeal because—although the issue was raised in the litigant’s briefing—“an issue may be deemed waived when it is argued in the brief but is not designated as an issue in accordance with Tenn. R. App. P. 27(a)(4).” Alternatively, consider the host of hyper-technical dismissals in Health Care Liability Act cases for which this author has blasted the Court of Appeals for “undermin[ing] the fundamental purpose of the civil justice system as an institution.” None of these opinions is even remotely concerned with whether the substance of a litigant’s claim has merit. Instead, the judgments turn on whether the litigants involved adhered to substantively vacuous “rules of the game.”
The Tennessee Court of Criminal Appeals, for its part, is just as guilty. Almost daily, defendants are treated to dismissive rulings based not on the merits of their claims, but based on (often unevenly applied) procedural flaws—waiver and abandonment, failure to preserve issues or exhaust remedies, failure to assert their claims quickly enough, and the like.
Perhaps no case better illustrates the Court of Criminal Appeals’ commitment to the justice game than this August 2018 case. There, a defendant sought to terminate his supposedly outstanding, decades-old court costs. He specifically invoked Tennessee’s ten-year statute of limitations for collecting on judgments as a defense to a District Attorney’s sudden and plainly retaliatory efforts to collect costs as many as twenty-six years after the fact. Unfortunately, the trial court dismissed the defendant’s claim on procedural grounds that both parties essentially agreed were wrong—finding that although the defendant had been served with multiple writs to execute on the judgments at issue, “no pending civil action existed” to collect on them. Thereafter, the defendant appealed.
In a series of previous cases—every single one of them involving a pro se litigant—the Court of Criminal Appeals had deprived similar litigants of their day in court and held that a denial of a motion to terminate court costs cannot be appealed under Tenn. R. App. P. 3(b), which governs criminal appeals.[1] Accordingly, the defendant made clear over and over again in his briefing that he was filing his appeal under Tenn. R. App. P. 3(a)—which governs civil appeals and guarantees litigants an appeal “as of right”—instead. The defendant’s argument also made particularly good sense in the context of his case, given that Tennessee law provides that taxes, costs, and fines that arise out of criminal cases are collectable “in the same manner as a judgment in a civil action.”[2] As an alternative to considering the merits of his appeal under Tenn. R. App. P. 3(a), though, pursuant to longstanding precedent that provides that the relief sought by a pleading—rather than the title assigned to it—controls its treatment, the defendant asked the Court of Criminal Appeals to convert his appeal into a catch-all writ of certiorari instead if Tenn. R. App. P. 3(a) did not afford him a right to appeal after all.[3]
In a cursory, four-page opinion, the Court of Criminal Appeals dismissed the defendant’s appeal on the basis that Tenn. R. App. P. 3(b)—Tennessee’s criminal appeal provision—did not allow it. (Tenn. R. App. P. 3(a) was never mentioned.) The Court also declined the defendant’s request to adjudicate the merits of his appeal as a writ of certiorari—even though the same court routinely extends the government that benefit under similar circumstances.
Given that—as noted above—the defendant had repeatedly indicated that he was appealing under Tenn. R. App. P. 3(a), not Tenn. R. App. P. 3(b), one reading of the Court of Criminal Appeals’ opinion might be that the Court misread the defendant’s claims. Alternatively, a less charitable conclusion might be that—in its haste to dismiss yet another defendant’s appeal on purely technical procedural grounds—the Court of Criminal Appeals didn’t read them at all.
Laudably, the
Tennessee Supreme Court has frequently served as a bulwark against hyper-technical
procedural dismissals of this sort. Consequently,
time and again, it has intervened to reverse and remind Tennessee’s intermediate
appellate courts that courts must not “exalt[] form over substance to deprive a
party of his day in court and frustrat[e] the resolution of the litigation on
the merits.”[4]
Encouragingly, Kendall Southall’s appeal to the Tennessee Supreme Court, in which he asks the Court to order the Court of Criminal Appeals to adjudicate the merits of his claims, still remains under review. For the sake of substantive justice—rather than just the sport of “the justice game”—everyone should hope that the Tennessee Supreme Court intervenes and affirms, yet again, the judiciary’s obligation not to “exalt form over substance”—something that our Supreme Court has repeatedly held that it “refuses to do.”[5]
[1]See State v. Johnson, 56 S.W. 3d 44, 44 (Tenn. Crim. App. 2001)
(“Christopher Joseph Johnson, pro se.”); State v. Hegel, No.
E2015-00953-CCA-R3-CO, 2016 WL 3078657 (Tenn. Crim. App. May 23, 2016) (“James
Frederick Hegel, pro se”); Boruff v. State, No. E2010-00772-CCA-R3CO,
2011 WL 846063 (Tenn. Crim. App. Mar. 10, 2011) (“Douglas Boruff, pro
se”); Hood v. State, No. M2009-00661-CCA-R3-PC, 2010 WL 3244877
(Tenn. Crim. App. Aug. 18, 2010) (“Jonathon C. Hood, Clifton, Tennessee,
pro se”); Lewis v. State, No. E2014-01376-CCA-WR-CO, 2015 WL
1611296 (Tenn. Crim. App. Apr. 7, 2015) (“Stephen W. Lewis, Wartburg,
Tennessee, Pro Se”).
[3]See, e.g., Norton v. Everhart, 895
S.W.2d 317, 319 (Tenn. 1995) (“the trial court should have treated the petition
as one for a writ of certiorari. It is
well settled that a trial court is not bound by the title of the pleading, but
has the discretion to treat the pleading according to the relief sought.”); Estate
of Doyle v. Hunt, 60 S.W.3d 838, 842 (Tenn. Ct. App. 2001) (“A trial court is
not bound by the title of a pleading, but rather the court is to give effect to
the pleading’s substance and treat it according to the relief sought
therein.”); Hill v. Hill, No.
M2006-01792-COA-R3CV, 2008 WL 110101, at *3 (Tenn. Ct. App. Jan. 9, 2008)
(same).
[4]Jones v. Prof’l Motorcycle Escort Serv.,
L.L.C., 193 S.W.3d 564, 573 (Tenn. 2006).
See also In re Akins, 87
S.W.3d 488, 495 (Tenn. 2002) (“we . . . avoid exalting form over substance.”); Childress v. Bennett, 816 S.W.2d 314,
316 (Tenn. 1991) (“it is the general rule that courts are reluctant to give
effect to rules of procedure which seem harsh and unfair, and which prevent a
litigant from having a claim adjudicated upon its merits”); City of Chattanooga v. Davis, 54 S.W.3d
248, 260 (Tenn. 2001) (overruling a prior decision that “exalted technical form
over constitutional substance in a manner rarely seen elsewhere.”); State v. Henning, 975 S.W.2d 290, 298
(Tenn. 1998) (“To hold otherwise would exalt form over substance.”); Henley v. Cobb, 916 S.W.2d 915, 916
(Tenn. 1996) (“it is well settled that Tennessee law strongly favors the
resolution of all disputes on their merits”); Norton, 895 S.W.2d at 322 (Tenn. 1995) (emphasizing “the clear
policy of this state favoring the adjudication of disputes on their merits”).
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.
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.”
Nashville, TN—The Estate of Jocques Scott Clemmons, the Nashville man who was fatally shot in the back by Metro Nashville Police Officer Joshua Lippert on February 10, 2017, has filed a lawsuit regarding the MNPD’s successful efforts to search his social media accounts following his death.
Days after Mr. Clemmons was killed, MNPD Officer Danny Satterfield filed three separate search warrant applications seeking “any/all data contained and/or stored within” Mr. Clemmons’ Facebook account, Instagram account, and cellular telephone. 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 also sought nearly identical information from Mr. Clemmons’ Instagram account and cell phone.
Mr. Clemmons was already deceased at the time of Officer Satterfield’s warrant applications. Accordingly, he was not subject to arrest for any crime. Even so, Officer Satterfield claimed that the warrants were necessary to investigate an “aggravated assault” that Mr. Clemmons had committed against Officer Lippert. Notably, however, video released prior to Officer Satterfield’s warrant applications had already revealed that the altercation that Officer Satterfield claimed to be investigating had not occurred.
Officer Satterfield’s 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 evidence of Mr. Clemmons’ supposed aggravated assault against Officer Lippert. In a subsequent statement, however, the MNPD acknowledged that whether Mr. Clemmons’ social media accounts or cell phone contained any relevant evidence was, in fact, “unknown.” Based on the warrants’ lack of probable cause and several other constitutional deficiencies, Mr. Clemmons’ estate has filed suit seeking the return of all property seized as a result of Officer Satterfield’s defective search warrants.
“Mr. Clemmons’ Facebook and Instagram accounts had no conceivable bearing on the supposed crime that the MNPD claimed to be investigating, and Officer Satterfield’s comically unconstitutional warrant applications did not even bother to pretend that they did,” said Nashville attorney Daniel Horwitz, who filed the lawsuit on behalf of Mr. Clemmons’ estate. “Further, at the time that Officer Satterfield applied for the search warrants at issue, there was literally nobody on earth who was less likely to be arrested than Mr. Clemmons, who had been deceased for nearly a week. These search warrants could not have been any less valid if they were written in crayon.”
“We hope that the Mayor and the MNPD will do right by Mr. Clemmons’ family by returning his cell phone and relinquishing whatever private information they pulled from his social media accounts in their effort to assassinate his character,” Horwitz added.
The lawsuit was filed in the U.S. District Court for the Middle District of Tennessee. The plaintiff’s pleadings are copied below.
