Monday, January 5, 2009

Role of Defense Attorneys

Last week the Tennessee Supreme Court ruled on a suppression issue in a murder trial. The defendant had been convicted on the basis of a confession obtained without benefit of the Miranda warnings. Basically, the police interrogated the defendant, obtained a confession, then obtained a waiver of rights and obtained a second confession. Both confessions were suppressed and the case was dismissed.

The noteworthy thing about this case, from my point of view, comes in the last couple of paragraphs, where the court discusses the fact that, although it is certainly bad to let the guilty go unpunished, it is worse if we permit the government to run roughshod over our rights. If the government itself cannot conform to the law, what authority does it have to compel law abiding behavior from its citizens?

In my opinion, the court didn't go far enough in this case in condemning the interrogation tactics used by the police. In the un-Mirandized interrogation, the police lied to the suspect by informing him that they had his fingerprints at the crime scene and employed other psychological techniques to entice the suspect into confessing. Even when properly Mirandized, it is simply human psychology to fall victim to these techniques and talk. And the police interrogators are being trained in how to break down a person's free will and obtain confessions.

This comes into play in the motion to suppress that I have filed in the Lauren Morrow case and her statement should be suppressed. One of these days I hope that the court takes up the issue of the use of psychological interrogation techniques in someone who has been properly Mirandized and gives us some guidance as to what is appropriated.

Until then, it is up to defense attorneys to do what we must to protect people's rights. I have another case that is quite troubling - the Jaron Taylor case. Mr. Taylor is charged with aggravated sexual exploitation of a minor for receiving, and remailing, child pornography on the internet (AOL). How did they catch him? Well, the US Congress established what they call an independent company - the National Center for Missing and Exploited Children. They say that it is not a government agency, despite the fact that high level justice department officials sit on its board of directors. The NCMEC has agreements with the internet service providers that the ISPs will scan people's e-mail and tip them whenever they find child pornography. The NCMEC then informs the local authorities, who obtain search warrants and seize the suspect's computer.

Since everyone maintains that the NCMEC is not a government agent, there is no Fourth Amendment violation. The central issue in the Taylor case is going to be whether the NCMEC is simply a disguised government agency.

It is unfortunate that we live in a time in which our essential and fundamental rights are being eroded. Often, the only thing standing between the awesome power of the state and the lowly defendant is the defense attorney. If we stop doing our job, everyone loses.

The Tennessee case can be found here:


Morrow Case Motions

Next week we have a hearing in the Lauren Morrow case over in Sumner County. That is the case of the young lady accused of conspiring with her boyfriend and another young man to kill her mother. The case drew national attention when it was first brought, but things have quietened down considerably.

The two motions concern suppression of her statement to the police and for severance of her trial from those of the others. The suppression issue is straightforward - she was never given her Miranda rights. The other two were - written waivers are in the file and you hear them being given on the recordings. But Lauren wasn't. That, combined with some questionable interrogation techniques, should provide a basis for suppression.

The severance motion is a little more complicated. If you read the Tennessee Rules of Criminal Procedure regarding joinder of defendants, you would think that severance is not something that is easily achieved. But, if you look at the federal and state case law, you find that severance almost always should be granted.

The main reason for this is that joint trials cannot be fairly had and preserve both the rights to assistance of counsel and confrontation of witnesses under the Sixth Amendment and the right not to testify under the Fifth Amendment. The scenario is as follows:

Suppose you represent a defendant who intends to place the blame on a co-defendant. In order to effectively present that defense you might want to call that co-defendant to the witness stand. Yet, in a joint trial, you can't do that. And while, in a separate trial, you might not be able to compel that testimony either, you can do one thing in a separate trial that you can't do in a joint trial - you can comment upon the fact that the co-defendant refused to take the stand.

If you try to comment on the refusal to testify in front of a jury that will decide the guilt of both defendants, and the judge permits you to do this, that defendant's Fifth Amendment rights have been violated. The only way that you can preserve your client's Sixth Amendment rights and the co-defendant's Fifth Amendment rights is to sever the trials and proceed separately.

It will be interesting to see the trial court's take on all of this. For anyone interested, I will try to find time to post the motions on JD Supra where they can be viewed. Otherwise, they are public record in the Sumner County Criminal Court.


Sunday, January 4, 2009

Scientific American

It is rare that an article about a legal topic would appear in a science magazine, but this month's Scientific American contains an article about the famous Scopes trial (held over in Dayton, Tennessee). For anyone interested in legal history, the article is worth reading. You can fine it here: .


Why Me?

The same client who asked me about wins and losses also asked me why he should hire me and not some other lawyer. I didn't have a ready answer, but I have given it some thought over the past couple of days.

Instead of reasons to hire me, I thought of reasons that you shouldn't use as the deciding factor in hiring me.

You shouldn't hire me because I am a sharp dresser. I'm not. In fact, most days you will find me at the office in jeans and a T-shirt (unless you catch me coming or going to court). I'm just a regular guy who happens to be a lawyer.

You shouldn't hire me because I have a big, downtown, office. I am downtown, but the town is quite small. The office is nice, though, and getting nicer as I make some improvements to it.

You shouldn't hire me because I have TV commercials that promise I will win you more money than another lawyer, or have past clients talk about how much money they got. I will never run that kind of commercial. I think most TV lawyer ads are sleazy.

You shouldn't hire me because of any of those reasons. I guess the reason to hire me is that I get good results in most of my cases. I try hard. I don't like to lose.

If those reasons aren't good enough, then you're probably better off going to one of the TV lawyers, I suppose.


Saturday, January 3, 2009

Wins and Losses

A potential client asked me last week what my win/loss record was. I had to admit that I didn't really know. I also had to ask what he meant by wins and losses.

Law isn't exactly like the football game I am watching while I write this. It isn't a matter of who is ahead on points when time expires. What is a win and what is a loss is different for different matters.

Take, for example, the case I tried in Rutherford County a few months ago. My client was charged with criminal contempt for failure to pay child support. He was over $20,000.00 in arrears. There was no doubt that he owed the money, no doubt about the amount. The only issue was ability to pay.

Prior to trial, I offered to settle the case by agreeing to the amount and setting up a payment schedule. The agreement would have provided that a jail sentence would kick in should he miss a single payment (which was calculated as enough to pay the current amount due as well as an additional sum to reduce the arrears). The other side refused the offer and we tried the case.

The judge ruled that the arrearage was the amount of our offer, found him in contempt, imposed a jail sentence then suspended the sentence upon condition that he begin making payments. The amount of the payment was nearly identical to my offer.

Was this a win or a loss? You could look at it either way. It was a win because the result was good for the client. He avoided jail and was given time to get his act together and pay the support. It was a loss because the client was, technically, found guilty of criminal contempt.

Most cases I have handled fall into this category. You can look at them as wins because the results are good. You could look at them as losses because, technically, the other side prevails on its issue.

I tend to count cases like the one above as wins. It is the result for the client that matters, not the technicality of the judge's ruling.


Thursday, January 1, 2009

Collection Tactics

This week I had two reports of collection agency tactics that violate any number of federal and state laws. One of them called the debtor and informed her that the caller was a deputy with her local sheriff's department. He went on to say that if she didn't make full payment before 4:00 he would be at her home to arrest her. After she called me I traced back the phone number to New Jersey. It was registered in a company name, but there is no record of that company being incorporated in any of the jurisdictions I searched. When I looked up the corporate address, it appears to be simply a mail drop.

The second incident involved a young man who was called and told that his pay would be garnished at midnight if he didn't give them a bank account number from which they could withdraw funds. He declined. Tracing back the call led to similar results.

Although the Congress passed the Fair Debt Collections Practices Act many years ago, it has done nothing to curtail the aggressive tactics of the collection agencies. In the first place, the law has no teeth. You can only obtain actual damages or the statutory damage amount of $1,000.00. These claims are too small to permit a debtor to hire an attorney and file suit.

In the second place, the collectors have simply placed themselves outside the jurisdiction. They hide - many of them, I am convinced, are offshore, with their phones simply routed through US numbers.

What needs to happen is to rethink the damages section of the FDCPA. Instead of $1,000.00 statutory damages, let's make it three times the amount of the debt. We can subject it to offset for the debt amount, but a collector who violates the law would find itself owing two times the amount of the debt to the debtor. After getting hit with a few of those, they'd clean up their act.

Then make it illegal for the collector to operate without a physical address at which they can be found. And require them to post a bond equal to the amount that they collect in a year, with that bond being used to satisfy any judgments against them. If you can't find a collector, the debtor may elect to proceed against the bond.

Now that would be a law that would have some teeth and which would help clean up an unsavory business.