Blog Posts in March, 2011

• Posted By Davis & Hoss, pc 31-Mar-2011

  TN Supreme Court Holds That Use Of Racial Derogatory Remark Against African American Officer Was Not Protected Speech

  STATE V. TEDDY RAY MITCHELL The events in this case concern an anti-immigration rally at the Hamblen County Courthouse grounds in Morristown, TN in 2006. Teddy Mitchell attended the rally and sought to park his car in a prohibited area at the court ...

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• Posted By Davis & Hoss, pc 30-Mar-2011

  CCA Vacates Judgment For Implied Consent Verdict By Jury

  State v. MacKinnon CCA holds that T.C.A. § 55-10-406(a)(5) gives to the trial court, not a jury, the authority for determining whether the noncriminal implied consent law was violated. Trial judges should not allow that decision to be delegated ...

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• Posted By Davis & Hoss, pc 30-Mar-2011

  White Lightning--Synthetic Forms Of Cocaine And LSD Are Not Prohibited By Current Tennessee Law

  Attorney General Opinion on Synthetic Cocaine and LSD. The TN Attorney General was asked whether Tennessee Law prohibits the production, manufacture, distribution, or possession of synthetic forms of the drugs LSD and cocaine, including the product ...

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• Posted By Davis & Hoss, pc 29-Mar-2011

  District Attorney's Office Not Liable For Brady Violation. $14 Million Dollar Judgment Overturned By Supreme Court

  CONNICK, DISTRICT ATTORNEY, ET AL. v. THOMPSON In this 5-4 opinion, the Supreme Court reversed a $14 million dollar judgment and found that a district attorney’s office may not be held liable under §1983 for failure to train its ...

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• Posted By Davis & Hoss, pc 28-Mar-2011

  CCA Reverses Trial Court And Allows Mail Box Rule Postconvition Petition to Proceed

  State v. Franklin The Tennessee statute says that when a post conviction petition is filed by or on behalf of a pro se petitioner incarcerated in a correctional facility, “filing shall be timely if the papers were delivered to the appropriate ...

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• Posted By Davis & Hoss, pc 26-Mar-2011

  U.S. Sentencing Commission Crack Cocaine Retroactivity Data

  U.S. Sentencing Commission Preliminary Crack Cocaine Retroactivity Data Report. The Fair Sentencing Act was passed by Congress and signed into law to address unfair disparities between sentences for powder and crack cocaine. As a result of the law's ...

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• Posted By Davis & Hoss, pc 25-Mar-2011

  Sixth Cicuit Finds No Plain Error In Use of Defendants Proffer Statements in PSR

  US v. Jackson Counsel for Jackson never objected to the presence of the defendant's proffer statements in his presentence report (PSR) at sentencing. While counsel did object to the enhancement under the guidelines that his statements resulted in, he ...

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• Posted By Davis & Hoss, pc 24-Mar-2011

  Should A 13 Year Old Child Be Given Miranda Warnings When Questioned By Police At School? Supreme Court Oral Arguments JDB v. NC.

  On Wednesday, March 23rd, the Supreme Court heard oral arguments in J.D.B. V. North Carolina. The transcript of yesterday's oral argument makes interesting reading as the Supreme Court takes on the question: Should a 13 year old be given Miranda ...

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• Posted By Davis & Hoss, pc 21-Mar-2011

  Supreme Court to Consider Whether State Court Judge Can Jail Person Without Appointing Counsel

  * Turner v. Rogers On Wednesday, the Supreme Court will hear oral argument in a case that will determine whether a state court judge can jail a person for contempt without appointing an attorney to represent him. In Turner, the Court will consider: ...

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• Posted By Davis & Hoss, pc 20-Mar-2011

  Eastern District of Tennessee Orders Million Dollar Restitution to Victim in Child Pornography Case

  Judge Collier Ordered restitution of over a million dollars in a recent sentencing of a child pornography defendant. This is a first for the Eastern District of Tennessee and is in following with trends across the country in child pornography ...

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• Posted By Davis & Hoss, pc 18-Mar-2011

  Sixth Circuit Reverses Promotion Money Laundering Charge and Affirms Mail Fraud

  US v. DARRELL CROSGROVE This case involves, in part, what is commonly referred to as a promotion money laundering case. Darrell Crosgrove appealed his conviction and sentence for conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371, ...

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• Posted By Davis & Hoss, pc 17-Mar-2011

  18 U.S.C. § 1446A(a)(2) not facially overbroad

  The overbreadth doctrine prohibits the government from banning unprotected speech if a substantial amount of protected speech is chilled in the process. In U.S. v. Jack Furman Dean, Jr. , the Eleventh Circuit held that the Defendant failed to meet ...

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• Posted By Davis & Hoss, pc 16-Mar-2011

  Aggravated Child Neglect Convictions Overturned By Court of Criminal Appeals

  STATE OF TENNESSEE v. WANDA ELAINE BROCK The Court of Criminal Appeals reversed a Sullivan County jury verdict. The court held that there is insufficient evidence to support the convictions of aggravated child neglect and dismissed those counts ...

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• Posted By Davis & Hoss, pc 14-Mar-2011

  Post Conviction Tolls One Year Statute of Limitations for Federal Habeas Claims, says the Supreme Court

  WALL, DIRECTOR, RHODE ISLAND DEPARTMENT OF CORRECTIONS v. KHOLI Wall v. Kholi is a 9-0 decision where the Supreme Court held that “a properly filed application for State post-conviction or other collateral review with respect to the pertinent ...

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• Posted By Davis & Hoss, pc 14-Mar-2011

  Freedom of Information Act (FOIA) Requests and Reports

  FOIA.GOV After the recent Supreme Court decision in MILNER v. DEPARTMENT OF THE NAVY I have been asked about the Freedom of Information Act: what it is, how it works, and what information is available. This is a brief look at FOIA. The Supreme Court ...

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• Posted By Davis & Hoss, pc 12-Mar-2011

  A Freedom of Information Act (FOIA) request to the Navy Can't be Blocked by Exemption 2 Says Supreme Court

  MILNER v. DEPARTMENT OF THE NAVY In an 8 to 1 decision the Supreme Court reverses a Navy denial of a Freedom of Information Act request. Justice Kagan delivered the opinion of the court. The Freedom of Information Act (FOIA), 5 U. S. C. §552, ...

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• Posted By Davis & Hoss, pc 11-Mar-2011

  Material Witness: Detention v. Pretext

  New York Times on today's Opinion page. Should a former attorney general be held personally liable for brazenly misusing the material witness statute when he was in office to hold an American man in brutal conditions on the pretext that he was a ...

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• Posted By Davis & Hoss, pc 9-Mar-2011

  Metro Nashville police use GPS to track gang members

  GPS units to track gang members in Nashville. Historically, Global Positioning Systems have been used to monitor sex offenders in many counties in Tennessee. In Wednesday's Tennessean Brian Haas reports: " Metro police have begun using GPS units ...

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• Posted By Davis & Hoss, pc 9-Mar-2011

  Tennessee (fill in the blank) Patrol

  The Tennessee Highway Patrol got sponsorship today from the Senate Transportation Committee to change its name. Some troopers or at least Sen. Steve Southerland of Morristown thought it worthy of state time to sponsor legislation that would rename ...

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• Posted By Davis & Hoss, pc 8-Mar-2011

  Eleventh Circuit holds Rule 35 Order Did Not Reset Clock on Statute of Limitations for Motion to Vacate Sentence

  ROBERT MARSHAL MURPHY v. UNITED STATES In Murphy the district court held that its Rule 35(b) order did not reset the clock and dismissed the petitioner’s § 2255 motion. The issue before the Eleventh Circuit is whether a district court ...

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• Posted By Davis & Hoss, pc 7-Mar-2011

  Supreme Court Reverses Michigan Supreme Court and Allows Victim's Statement

  MICHIGAN v. BRYANT Admission of police testimony at trial of a statement by a dying victim did not violate confrontation clause. The Court held that the victim Covington’s identification and description of the shooter and the location of the ...

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• Posted By Davis & Hoss, pc 7-Mar-2011

  DUI and DUI Per Se Convictions for Single Incident Must Merge Says TN Supreme Court

  State v. Cooper The Tennessee Supreme Court finds in Cooper that two judgments of conviction are not permissible for DUI and DUI per se (.08 or higher BAC) in a single indictment alleging a single act. Previously, the court notes in State v. Conway, ...

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• Posted By Davis & Hoss, pc 7-Mar-2011

  Supreme Court Allows DNA to be Sought By Civil Rights Claim in Some Cases

  Skinner v. Switzer SCOTUS reports today that DNA may be sought under a Civil Rights Claim. Lyle Denniston writes: After seeming to close the door in 2009 to constitutional claims by convicted individuals that they were wrongly denied access to DNA ...

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• Posted By Davis & Hoss, pc 6-Mar-2011

  Sunday NYT Features a Story on Juvenile Crime and Age for Prosecution as Adults

  States Prosecute Fewer Teenagers in Adult Courts In Sunday's New York Times Mosi Secret writes an in depth front page article about juvenile crime examining issues concerning the age threshold for prosecuting juveniles as adults: 16, 17 or 18 ...

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• Posted By Davis & Hoss, pc 5-Mar-2011

  TN Supreme Court Repeals Rule 37 in its Entirety Effective March 2, 2011

  Tennessee Supreme Court Repeals Rule 37 : Mandatory Mediation Program for Appeals in workers' compensation cases no longer. The Tennessee Supreme Court repealed Rule 37 in its entirety, effective March 2, 2011. For all pending appeals governed by ...

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