Tag Archives: Criminal Procedure

Following Horwitz Law, PLLC Amicus Brief, Tennessee Supreme Court Designates as “Not for Citation” Judge Tim Easter’s Opinion Precluding Review of Post-Conviction Claims Based on a Form Deficiency

Appeals, Criminal Procedure,

By Daniel A. Horwitz:

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  A recent indefensible decision—which the Tennessee Supreme Court has just designated “not for citation” after considering a Horwitz Law, PLLC amicus brief urging that result—illustrates the point.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.

Like ScotBlog?  Join our email list or contact us here, or follow along on facebook at https://www.facebook.com/scotblog.org.  You can also subscribe to the author’s aspirationally weekly newsletter on the Tennessee Court of Appeals—Intermediate Scrutiny—here: https://horwitz.law/intermediate-scrutiny-blog-signup-form/

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.

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

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

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

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?

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

Eighth Amendment Challenge Filed Against Tennessee’s “Drug Free School Zone” Law

Constitutional Law, Criminal Law, ,

Nashville, Tennessee—A groundbreaking constitutional challenge has been filed regarding Tennessee’s “Drug Free School Zone Act,” a flawed but well-intentioned law that has recently come under fire by several conservative groups because it “ensnare[s] many individuals who fall outside of the scope and purpose of the law” and has resulted in significant collateral consequences that have been “passed on to taxpayers without any public safety returns.”  The law has long been a target of criminal justice reformers, who have argued that the severe, mandatory minimum penalties contemplated by Tennessee’s School Zone law fail to make appropriate distinctions between people who sell drugs to children and people who don’t.  A recent poll of 531 registered voters in Tennessee indicated that 84% of Tennesseans support reforming the law, including 90% of Democrats and 80% of Republicans.  Among other things, the law operates to punish first-time, non-violent drug offenders more severely than defendants who are convicted of violent crimes like Rape and Second Degree Murder.

Calvin Bryant is a beloved former Hillsboro High School football star, a former Tennessee State University student, and a former Tennessean employee.  A decade ago, witnesses described him as a “model citizen” who had “impeccable” character, was “loving toward his family,” “took a great interest in the people who live[d] in his neighborhood,” and was “very generous” with the elderly.  In 2008, however, Mr. Bryant was indicted for selling ecstasy pills to an aggressive government informant who had contacted him repeatedly, reminded Mr. Bryant that “he had helped raise him,” insisted that he needed drugs to earn money to feed his family, and pleaded with Mr. Bryant to help him get some.

The government’s informant had thirty-nine (39) separate convictions on his record in Davidson County alone at the time of the drug sales at issue—many of them violent felonies.  Even so, the informant was paid more than $1,000 in taxpayer money and avoided jailtime in exchange for helping secure Mr. Bryant’s conviction.  Mr. Bryant’s first trial ended in a hung jury after several jurors concluded that Mr. Bryant had been entrapped.  After his second trial, however, Mr. Bryant was convicted of selling drugs.

Even though it was a first-time, non-violent offense—Mr. Bryant had no other criminal history of any kind—because Mr. Bryant’s residence was located within 1,000 feet of a school, Mr. Bryant received a mandatory minimum sentence of seventeen (17) years in prison.  As a result, Mr. Bryant received a considerably longer sentence for committing a first-time, non-violent drug offense than he would have received if he had committed a severe, violent crime such as Rape, Second Degree Murder, Aggravated Robbery, Aggravated Vehicular Homicide, or Attempted First Degree Murder.  Mr. Bryant has been incarcerated for the past decade.  He has at least six years in prison left to serve.

Given the extraordinary circumstances of his prosecution, Mr. Bryant has filed a novel constitutional challenge to the application of Tennessee’s intensely punitive Drug Free School Zone law to his case.  Notably, even the District Attorney who prosecuted Mr. Bryant has submitted an affidavit supporting his early release, stating that: “I fail to see how an additional six years of incarceration will improve Mr. Bryant’s amenability to correction or would be required to maintain public safety.  I additionally fail to see how his release at a time earlier than 2023—and after over nine years of incarceration—will deprecate the seriousness of the offenses for which he was convicted or significantly imperil public safety.”

Tennessee’s intensely punitive Drug Free School Zone law was designed to keep drugs away from children.  Nobody disputes that this is a laudable goal.  However, many people, including several elected officials and judges in Tennessee, have disputed whether the law was ever intended to apply to drug sales between adults inside an adult’s residence and outside of school hours—especially when a government informant has set up a drug transaction inside a school zone on purpose.  As one Tennessee judge has explained, for example:

I simply do not believe that the Tennessee legislature intended the scope of the Act to include drugs brought into the protected school zone by law enforcement’s own design. This concept of luring, which commonly takes the form of an undercover sting operation, is inconsistent with the legislative intent of the Act and defeats the overall purpose of “creat[ing] a drug-free school zone to reduce the occurrence of illegal drug activity in and around school facilities in order to enhance the learning environment.”

Mr. Bryant’s petition paints a heartbreaking picture of a law that was never intended for cases like his but which applied to him anyway.  In Davidson County, he notes, so-called “drug free” zones “cover[] almost every habitable portion of Nashville and [nearly] all of its urban core.”  As a result, based solely on a prosecutor’s discretion, the law can be applied “to virtually every drug sale that takes place in Nashville.”  Even so, in the approximately two decades since the law was enacted, only 62 defendants have ever been punished with the school zone sentencing enhancement in Davidson County, which upgrades a defendant’s conviction by a full felony class and renders defendants ineligible for parole for decades.  Although, as a general matter, the law has been used sparingly to punish dangerous or repeat offenders, Mr. Bryant’s petition notes that he has “the dubious distinction of being the only defendant in the history of this jurisdiction to receive Tenn. Code Ann. § 39-17-432’s sentencing enhancement for a first-time offense.”

Mr. Bryant’s petition also highlights the fact that “Davidson County’s own Grand Jury has observed that the [District Attorney’s] previous application of the school zone enhancement was arbitrary and capricious,” having formerly been applied in a way that turned substantially on a defendant’s poverty.  It explains:

“[G]iven the location-based nature of the sentencing enhancement at issue, Mr. Bryant’s sentence was also enhanced dramatically based on his poverty alone.  If, for example, Mr. Bryant had lived in a wealthy, residentially-zoned suburb like Belle Meade, then he likely would have been eligible for release after serving just two years and five months in prison for the exact same conduct.  Because Mr. Bryant lived in the Edgehill Housing Projects, however, Mr. Bryant must serve a mandatory minimum sentence of at least fifteen (15) years before he even becomes eligible for parole.”

Further, Mr. Bryant’s petition notes that before the new District Attorney reformed his office’s use of the school zone sentencing enhancement in 2014, “Davidson County’s application of Tenn. Code Ann. § 39-17-432 was unmistakably race-based.”  “Although there is abundant evidence that people of all races in Nashville use and sell drugs at roughly equal rates,” his petition explains, fully “87% of defendants in this jurisdiction who received enhanced sentences under Tenn. Code Ann. § 39-17-432 were people of color.”

Most importantly, however, Mr. Bryant notes that in the time since his conviction, Tenn. Code Ann. § 39-17-432 has been reformed both judicially and operationally to avoid precisely the type of strict liability penalty that applied in his case.  Consequently, if Mr. Bryant had committed the exact same offense today, then he would likely have been subject to a maximum sentence of between two and eight years in prison, rather than seventeen years.  Further, given his status as a first-time, non-violent offender, Mr. Bryant may well have avoided prison time at all.

Mr. Bryant has asked Davidson County Criminal Court Judge Steve Dozier to declare his sentence unconstitutional as applied to the unique circumstances of Mr. Bryant’s case, arguing that these circumstances render his sentence excessive under both the Eighth Amendment and Article 1, Section 16 of the Tennessee Constitution.  Mr. Bryant has also petitioned Judge Dozier for release while he submits an application for a pardon or commutation.  More than a dozen supporters—including Mr. Bryant’s own prosecutor, local politicians, business owners, friends, family members, and civil rights activists—have also filed affidavits in support of Mr. Bryant’s early release.  A hearing on Mr. Bryant’s petition is set for December 15, 2017 in Davidson County Criminal Court, Division 1.

“The fact that Tennessee law punishes first-time, non-violent drug sales more harshly than rape and murder is insane,” said attorney Daniel Horwitz, who is representing Mr. Bryant.  “Mr. Bryant was a promising young college student and a pillar of his community at the time of his conviction, and he made a single mistake that has already cost him a full decade of his life behind bars.  Mr. Bryant has more than paid his debt to society, and he deserves to be released.  This is the most unfair sentence I have ever seen.”

Read Mr. Bryant’s Verified Petition for Sentencing Relief here.

Selected Media Coverage

-Patch:  Nashville Case Highlights Drug-Free School Zone Reform Efforts

-Reason: How a Drug-Free School Zone Sent a Tennessee College Student to Prison For 17 Years

-Nashville Scene:  Council Members Petition Judge Over Drug-Free School Zone Case

-The Tennessean:  He got 17 years for selling drugs near school. Now 12 Nashville officials are fighting on his behalf

Selected Case Filings

–Calvin Bryant Petition for Sentencing Relief

–Appendix

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

 

 

Tennessee Advisory Committee to the U.S. Commission on Civil Rights Holds Comprehensive Hearing on Civil Asset Forfeiture

Civil Procedure, Constitutional Law, Fourth Amendment, ,

By Daniel A. Horwitz

In what may well have been the most comprehensive hearing on civil asset forfeiture ever held, the Tennessee Advisory Committee to the U.S. Commission on Civil Rights held a day-long hearing on Tennessee’s forfeiture laws at the Nashville Public Library on Monday, July 24th.  The hearing featured testimony from District Attorneys past and present, police officers, legislators, attorneys, scholars, local and national advocacy groups, individuals affected by Tennessee’s forfeiture laws, and others interested in the topic.  Video footage of the Committee’s hearing is available at the links that follow:

U.S. Commission Opening Remarks and Introduction

Panel 1—Law Enforcement

Panelists: Glenn R. Funk (District Attorney, Nashville and Davidson County);  D. Michael Dunavant (District Attorney, Tennessee’s 25th Judicial District, President Trump’s nominee for U.S. Attorney for the Western District of Tennessee); Stephen D. Crump (District Attorney, Tennessee’s 10th Judicial District); Carlos Lara (Lieutenant, Metro Nashville Police Department)

Panel 2—Legislators

Panelists: State Representative Mike Carter (R-Ooltewah); State Representative John Ray Clemmons (D-Nashville); State Representative William G. Lamberth (R-Cottontown); State Representative Martin Daniel (R-Knoxville); State Representative Harold M. Love, Jr. (D-Nashville); State Representative G.A. Hardaway (D-Memphis)

Panel 3—National and State Organizations

Panelists: Vikrant Reddy (Senior Research Fellow, Charles Koch Institute); Lee McGrath (Senior Legislative Counsel, Institute for Justice); Hedy Weinberg (Executive Director, ACLU of Tennessee); Julie Warren (State Director, Tennessee/Kentucky Right on Crime)

Panel 4—Practitioners and Academics

Panelists: George Frank Lannom (Tennessee Association of Criminal Defense Lawyers);  Joy Radice (Professor of Law, University of Tennessee College of Law); John Morris Miles (Attorney, Union City); Ben Raybin (Attorney, Nashville); Kyle Mothershead (Attorney, Nashville); Elliot Ozment (Attorney, Nashville)

Panel 5—Advocacy Organizations

Panelists: Jackie Sims (Tennessee State Conference of the NAACP); Christopher M. Bellamy (President, Napier-Looby Bar Association); Samuel Lester (Street Outreach and Advocacy Coordinator, Open Table Nashville)

The hearing record will remain open for public comment until August 23, 2017.  If you would like to submit comments for consideration, please email Jeff Hinton, Southern Regional Director for the U.S. Commission on Civil Rights, at [email protected].  Following the conclusion of the public comment period, the Tennessee Advisory Committee will consider all commentary and prepare a final report and recommendation.

Selected press coverage of the hearing is available below.

-Fox 17:  Tenn. Attorneys say law enforcement wrongfully benefits from drug seizures

###

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

 

 

Update: White County Judge Rescinds Sterilization Order…Sort of

Constitutional Law, Criminal Procedure, ,

By Daniel A. Horwitz

Last week, news broke of White County General Sessions Judge Sam Benningfield’s wildly unconstitutional standing order that White County inmates who declined to submit to sterilization would receive an additional 30 days in jail.  In an order dated July 26, 2017, Judge Benningfield has formally rescinded his prior order with the caveat that he will still be handing out a eugenics discount to anyone who “demonstrate[s] to the court their desire to improve their situations” by being sterilized.

Even as partially rescinded, however, Judge Benningfield’s policy of determining the length of an inmate’s sentence based on whether the inmate has agreed to submit to sterilization remains illegal.  As previously explained:

 In America, reproductive freedom is a fundamental constitutional right, and the equal protection clause of the United States Constitution forbids the government from treating people differently based on whether or not they choose to exercise their right to reproductive freedom.  Tennessee’s criminal code also contains several specifically-designated mitigating factors and enhancement factors that judges are permitted to consider during sentencing.  Whether a defendant has submitted to sterilization is not among them.

White County’s backdoor eugenics program needs to be terminated in its entirety.  The program is a moral outrage and a blight on the entire legal profession.  Nobody—and certainly no member of the Bar—should tolerate it.  If Judge Benningfield will not resign his office, he should be removed.

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

 

 

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

Constitutional Law, Criminal Procedure, Tennessee Constitutional Law, , ,

Via Stephen Elliot, The Nashville Scene: (link)

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

Four years later, the same court changed its mind.

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

. . . .

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

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

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

Jason Bryant Statement on Recent Coverage Regarding Lillelid Murders

Constitutional Law, Criminal Law, Criminal Procedure, ,

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

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

_______________

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

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

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

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

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

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

_______________

###

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

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

Constitutional Law, Tennessee Constitutional Law, Uncategorized, Victims' Rights, , ,

By Daniel Horwitz:

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

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