Blog

Tennessee Supreme Court supports indigent defense changes. Part 2

Two months ago, I wrote about the Tennessee Indigent Representation Task Force’s 204-page report that recommended changes to indigent defense in Tennessee.  This month, the Tennessee Supreme Court backed some of the recommendations in the report.  Specifically, the Court is supporting legislative changes that would raise the hourly compensation rate of appointed attorneys from $40/hr out of court and $50/hr in court to $65/hr.  The Court is also asking to raise the caps on felonies by $500 and juvenile matters by $250.

Further, the Court seeks to offset some of the additional costs by creating an appellate division of the public defenders’ offices and a conflicts division to handle cases that the public defenders conflict out of.  A proposed statewide commission would oversee these divisions and indigent representation in general.  Another way the Court seeks to offset the cost is through the modification of indigency forms.  These modifications would require judges to explain and certify the existence of a conflict before appointing private counsel.

Finally, the Court will implement periodic billing to address the problem of waiting long periods of time (sometimes years) to bill out a case.

My take on these proposed changes:

$65/hr is more than fair.  Honestly, $40/hr is fine.  The biggest issue at the moment is the case caps are not “calibrated” correctly for the number of hours a case takes.  For example, a misdemeanor general sessions case has a cap of $1,000.  Rarely, will anyone ever need to even come close to the cap.  On the other hand, a termination of parental rights is $1,000, even though this all but guarantees a full blown trial.  In my opinion, an attorney should go over the cap in most termination of parental rights cases.

My other issue with these changes is that they encourage attorneys to work fewer hours.  For example, a $1,500 felony at $40/hr takes 37.5 hours to cap out.  After these proposed changes, a $2,000 felony at $65/hr would only take 30.7 hours to cap out.  This just provides stronger incentive for attorneys to plea cases out.

Best Tennessee Legal Blogs

Here are the best legal blogs in Tennessee:

Raybin Tennessee Supreme Court Hot List

Raybin Tennessee Supreme Court Hot List is my favorite legal blog.  David Raybin, author of the three-volume Tennessee Criminal Practice and Procedure treatise, and Ben Raybin, former clerk for two U.S. Court of Appeals judges, edit this blog.  Not only do they keep me updated on Tennessee Supreme Court cases, but they also predict how the Court is going to decide.  These predictions are often accurate and sometimes useful in advising clients.

Herston on Tennessee Family Law

This blog is invaluable if you practice family law in Tennessee.  It is regularly updated and covers everything from our higher courts to lessons learned during divorce.  The author, K.O. Herston, graduated from the University of Tennessee College of Law, where he was on the editorial board of the law review, and has been practicing law in Knoxville for over 20 years.

Scotblog by Daniel A. Horwitz

More opinionated than the above blogs, Scotblog nonetheless provides valuable insight from a brilliant legal mind.  His scholarship has been published in numerous journals, including the Harvard Latino Law Review, the University of Memphis Law Review, the Tennessee Journal of Law and Policy, the SMU Science and Technology Law Review, the Tennesse Bar Journal, and the Nashville Bar Journal.  Notable for those of us in the Upper Cumberland, Horwitz has filed a lawsuit against the Honorable Sam Benningfield and Sheriff Oddie Shoupe, for the sterilization program that was in the news.

Other Valuable Blogs

Tennessee Defense Litigation by Jason Lee

Faughnan on Ethics by Brian Faughnan

Sentencing Law and Policy by Douglas Berman

Day on Torts by John Day

And last, but certainly not least, Scotusblog

What are some good blogs that I’m missing?

 

Adults are also at fault in juvenile sexual hazing cases

The Ooltewah rape case is still fresh in our memory.  Now, there are rape allegations that hit even closer to home.  Why are young men acting this way toward other young men?  When I was young, there was hazing.  But hazing meant you were picked on, or at worse, beaten up.  At no point in time did hazing ever mean sexually assaulting another young man.  The mere suggestion that one football player wanted to do that to another football player would have been grounds for a fight.  So, what’s happened in the past two decades to change how things were when I was young?

I should start by saying that I’m not trying to absolve the guilty.  Those individuals will have to deal with the legal and moral ramifications of their actions.  I’m just trying to figure out why these actions are even crossing the minds of our young men.

In my view, access by children to violent pornography and gore is the problem.  I’m not going to glorify the myriad of hardcore websites by linking to them.  Just be aware that, if your child has a smart phone, he can easily watch sex acts that would make your spouse blush in the bedroom and Mexican cartel videos that make ISIS execution videos look tame.  And yes, your child watches these videos.  90% of children age eight to sixteen have watched pornography at least once and teenage males are pornography’s largest consumers.  While there aren’t statistics on what percentage of children watch gore, given the popularity of some of the sites, young men are watching.

It is well-established that young people are affected by what they watch.  But, it shouldn’t take a doctor to tell us this.  I remember watching the Teenage Mutant Ninja Turtles as a kid and then going out and reenacting the Teenage Mutant Ninja Turtles.  I remember watching Michael Jordan soar through the air and then going out, lowering the basketball goal, and imagining that I was playing the NBA.  My brain didn’t process that I was too short, slow, and white to play in the NBA.  I was a child.  Today, how are young people’s brains processing violent porn and torture videos?

We’ve let the most vulnerable in society view the most horrific videos.  This isn’t to excuse what happened but it is to say that it will happen again until society protects its children, especially the ones vulnerable to reenact what they see.  I have little doubt that the good people of Grundy County would change the law if they could.  Sadly, our federal courts find rights in the constitution that have our founding father’s rolling over in their graves.  So, it’s unlikely that this type of material is coming down anytime soon.

In the meantime, if your child must have a phone, get him a flip phone.

Simple Possession or Casual Exchange Lawyer in Celina, TN

If you’ve been charged with simple possession or casual exchange in Clay County, Tennessee, it’s important that you contact an experienced attorney.

Simple possession or casual exchange is an A misdemeanor.  T.C.A. § 39-17-418.  That means someone convicted of simple possession or casual exchange could receive up to 11 months, 29 days in jail and up to a $2,500 fine.  T.C.A. § 40-35-111.  There are also mandatory minimum fines to consider.  T.C.A. § 39-17-418.  If the drug involved is marijuana or hashish, the minimum fine is $250 for the first offense, $500 for the second offense, and $1,000 for the third or subsequent offense.  If the conviction is for another drug, the minimum fine is $750 for the first offense, $850 for the second offense, and $1,000 for the third or subsequent offense.

Some drugs carry extra penalties.  T.C.A. § 39-17-418.  For example, if you have two or more prior convictions for simple possession or casual exchange and the current violation involves heroin, then you’re on the hook for an E Felony.  Even if its your first offense, if the violation is for meth, there is a thirty day minimum jail sentence (although, at least the simple possession or casual exchange of meth is just an A misdemeanor).

The penalties get much harsher if you’re an adult who casually exchanges drugs to a minor two years younger than you who you know is a minor.  T.C.A. § 39-17-418.  In that case, you’re punished as if you violated T.C.A. § 39-17-417 (felony manufacture, sale, or delivery).

So, is there any good news (other than your high)?  Yep.  Most simple possessions plea out to 11 months, 29 days, all suspended to supervised probation.  If you have good facts, you may be able to get 6 months supervised probation, 5 months & 29 days probation so long as you have your costs and fines paid off.  Finally, depending on the facts of your case, you may be able to get some of those costs or fines waived.  The details are very fact dependent, and you should never just assume because most people get a certain offer, that you will.  It’s critical that you talk with an attorney to help guide you through the process and speak with the local district attorney on your behalf.

DUI Lawyer in Cookeville, Tennessee

If you’ve been charged with driving under the influence, you need an attorney that is knowledgeable about the law, the field sobriety tests, and the local judges and district attorneys.

DUI Law

T.C.A. § 55-10-401 forbids driving a motor vehicle under the influence of any drug or intoxicant or with a blood alcohol content (BAC) of 0.08% or more.  If the vehicle is a commercial motor vehicle, the statute forbids driving with a BAC of 0.04% or more.

A person found guilty of violating T.C.A. § 55-10-401 first offense can be sentenced to up to eleven (11) months and twenty-nine (29) days in the county jail.  T.C.A. § 55-10-402.  Also, the person must serve at least 48 hours in jail.  If the person’s BAC is 0.20% or more, the person must serve at least seven (7) days in jail.

Further, the minimum jail times increase with each DUI offense.  Second offense DUI requires a minimum of 45 days in jail.  Third offense DUI requires a minimum 120 days in jail.  Fourth and fifth offense DUI requires 150 days minimum in jail, and the offense is now a felony.  The sixth or subsequent DUI conviction is a C Felony.

The fines also go up with each offense.  T.C.A. § 55-10-403.  A person convicted of first offense DUI is subject to a $350 to $1,500 fine.  Second offense DUI has a $600 to $3,500 fine.  Third offense DUI has a $1,100 to $10,000 fine.  The fourth or subsequent offense DUI has a $15,000 fine.  Also, there is an additional fine if a child is in the car (and likely problems with the Department of Children’s Services, but that’s for another blog).

Also, a person convicted of DUI will lose his license for one year for a first offense, two years for a second offense, six years for a third offense, and eight years for a fourth or subsequent offense.  T.C.A. § 55-10-404.

Field Sobriety Tests

The field sobriety tests are often critical in DUI cases, particularly when there are no blood test results.  Therefore, it is important that your lawyer is knowledgeable about these tests.  Police officers use a number of non-standard and standard tests.  Non-standard tests do not have the same reliability as the standard tests, and yet, many police departments continue to use them.  These nonstandard tests include:

The Finger to Nose Test

In this test, the officer asks the subject to close his eyes and touch the tip of his nose, first with one hand and then with the other hand.  The officer checks to see if the subject touches the tip of his nose and whether the subject sways, opens his eyes, or fails to keep his head tilted back.

The Finger Count Test

The finger count test requires the subject to touch each of his fingers to his thumb while counting.  The officer looks for (1) slurring of numbers, (2) incorrect order of numbers, (3) incorrect matching of numbers with finger to thumb movement, and (4) failure to touch finger to thumb.

The Hand Pat

The subject of a hand pat test has to alternate between patting the top and bottom of his hand while counting.  The officer may ask the subject to speed up or slow down.  DUI clues include (1) failure to turn the hand back and forth, (2) sliding or flopping the hand, (3) hesitating, (4) failing to count properly, and (5) failing to accelerate.

Coin Pickup

In the coin pickup test, the officer drops coins on the ground and asks the subject to pick them up.  While the subject is picking up the coins, the officer is looking for (1) balance, (2) hand/eye coordination, and (3) dexterity.

The Alphabet Test

The alphabet test requires the subject to recite the alphabet from A to Z, sometimes backwards.  The officer looks for (1) pauses, (2) missing and skipped letter(s), and (3) a slow pace.

Reverse Counting

In this test, the officer has the subject to count backwards, up to 25 numbers.  The officer looks for (1) failure to start or end on the designated numbers, (2) repetition of a particular number, and (3) poor pronunciation.

Writing/Drawing/Tracing Tests

In these tests, the officer has the subject write his name, draw shapes, and/or trace a shape.  The officer looks for accuracy and neatness.

The Romberg Test

The subject of the romberg test is required to stand with feet together, eyes open and hands by the side (and sometimes have his head titled back).  Then, the subject closes his eyes and the officer observes for up to a minute.  The officer looks for swaying, asking for additional instructions, opening eyes, and failing to keep the heals together or head tilted back.

In addition to the above nonstandard tests, there are a number of standard tests.  These include:

One-leg Stand Test

In this test, the subject has to balance on one leg and count for thirty seconds.  The officer looks for (1) swaying, (2) using arms for balance, (3) hopping, and (4) putting a leg down too soon.

Walk and Turn Test

The walk and turn test requires the subject to take nine steps heel-to-toe down a straight line, turn, and return in nine-steps.  The officer looks for the following clues: (1) cannot maintain balance, (2) starts too soon, (3) stops while walking, (4) fails to touch heel-to-toe, (5) steps off the line, (6) uses arms to balance, (7) turns improperly, and (8) takes an incorrect number of steps.

Horizontal Gaze Nystagmus Test

This test requires the subject to follow a slowly moving object, such as a pen, horizontally with his eyes.  The officer looks for (1) lack of smooth pursuit in either eye, (2) sustained nystagmus (uncontrolled movement) in either eye, and (3) nystagmus prior to 45 degrees in either eye.

Local Practice

As seen above, a DUI conviction can lead to the loss of your license for one year or more.  However, often people who lose their license can apply to the judge for a restricted license.  Some judges require you to pay all of your fines and court costs before approving your restricted license.  Other judges allow you to make payments to get your restricted license.  It’s also important to know what the local district attorney want.  In some counties, the assistant district attorneys will let you plea to the 48-hour mandatory minimum jail sentence with 11/29 probation.  In other counties, the assistant district attorneys will want more jail time.  That’s why it is critical not only to know the law and the tests but also the local practice.

If you’ve been charged with a DUI in Cookeville or in a surrounding town, reach out to a local DUI attorney today.