By Daniel A. Horwitz:
On May 27, 2010, Terrence Feaster savagely beat his housemate, dragged her into a bedroom, tied her feet to an entertainment center, and threatened to kill her if she moved. Mr. Feaster was subsequently arrested and indicted for his crimes. Following a trial, a jury convicted him of voluntary manslaughter, aggravated assault, and false imprisonment. Over Mr. Feaster’s objection, the trial court declined to “merge” any of his convictions, meaning that it did not eliminate any of them for being duplicative.
Approximately two years after Mr. Feaster’s crimes, the Tennessee Supreme Court decided State v. Watkins. Watkins adopted a new test for determining when multiple convictions for offenses that arise under different statutes must be merged in order to avoid violating Tennessee’s Double Jeopardy clause. Importantly, Watkins also expressly abandoned the earlier (four-factor) merger test that the Tennessee Supreme Court had established in State v. Denton. For various reasons, the Denton rule was more favorable to criminal defendants than the Watkins rule, which is now in effect today. Under the current Watkins standard, courts must conduct the following three-factor inquiry to determine whether a defendant’s convictions must be merged:
First: “Tennessee courts must focus upon ascertaining legislative intent. If the General Assembly has expressed an intent to permit [or not to permit] multiple punishment, no further analysis will be necessary, and multiple convictions should be upheld against a double jeopardy challenge.”
Second: Continue reading Tennessee’s Double Jeopardy standard may be applied retroactively, holds Tennessee Supreme Court
By Daniel A. Horwitz
Yesterday, Judge Monte Watkins declared a mistrial in the consolidated prosecutions of Cory Batey and Brandon Vandenburg, which have come to be known collectively as “the Vanderbilt rape case.” Judge Watkins’ eight-page mistrial order is accessible here. As explained in detail in this post from last week, Tennessee law presumes jurors to be biased when they give false statements or fail to be forthcoming in response to questions asked during jury selection, and under such circumstances, a new trial is appropriate regardless of the strength of the evidence that was presented. In this case, the juror in question appears to have lied several times in response to a wide array of questions that he was asked during voir dire. For example, in page six of Judge Watkins’ ruling, he explains: “[I]t would be difficult to believe that Juror #9 did not [recall] his involvement in a statutory rape case when sexual assault, rape, and unwanted sexual touching [were] mentioned over one hundred and four times during the course of voir dire.”
Following Judge Watkins’ mistrial declaration, several observers have inquired whether the Double Jeopardy clause of the Fifth Amendment prohibits the government from re-trying the two defendants. It does not. According to the U.S. Supreme Court, barring bad-faith or prosecutorial misconduct, “a mistrial ruling explicitly contemplates reprosecution of the defendant.” United States v. Jorn, 400 U.S. 470, 476 (1971). As the Supreme Court has explained: Continue reading No, the Double Jeopardy Clause does not prevent re-trial in the Vanderbilt rape case.
By Daniel A. Horwitz
A few weeks ago, Lindsay Boyd penned a fun article for the Beacon Center TN Blog about Nashville’s new Airbnb ordinance entitled “My Dog Has More Freedom Than You Do.” Contrasting Nashville’s newly enacted “Short Term Rental Property” regulations with the comparatively regulation-free environment available to short term dog sitters, Ms. Boyd explains:
“[T]hose of us residing in Nashville will no longer have the same freedoms that our pets do to shop for accommodations or open our homes to prospective vacation renters. This spring, the city of Nashville announced a new policy for Airbnb operations.
Now, not only do Airbnb operators have to pay the same taxes as hotels, but those whose homes are used strictly for “short term rentals” (or Airbnb business) must also stand in line to vie for a limited number of licenses granted by the city—available to a mere 3% of households per census tract. Those who fail to obtain these permits and adapt their services to adhere to further regulations on the number of sleeping rooms, signage, parking, and food service, will simply be out of luck—or become outlaws if they continue to operate unabated.”
After reviewing the provisions of Nashville’s short term rental property ordinance, however, I began to wonder: can Nashville’s Airbnb regulations withstand constitutional scrutiny? From my vantage point – at least with respect to the provision of the ordinance that caps the total number of short term rental permits at “[n]o more than three percent of the single-family or detached two-family residential units within each census tract” – the answer is no. Continue reading Is Nashville’s Airbnb Ordinance Constitutional? Maybe not.