Sep 2, 2021 | Civil Rights, Criminal Defense, Tennessee Supreme Court
The Tennessee Supreme Court in a unanimous opinion clarified the standard of appellate review for a trial court’s decision regarding judicial diversion, the Administrative Office of the Court reports. When a case is appealed, the court must determine what standard of review applies. In the case State v. King, the defendant argued that the Court of Criminal Appeals used the wrong standard when reviewing the trial court’s decision to deny judicial diversion. The Tennessee Supreme Court upheld the ruling of the Court of Criminal Appeals, adopting as the appropriate standard of review for judicial diversion rulings “abuse of discretion with a presumption of reasonableness.”
Aug 31, 2021 | Immigration Crimes, Tennessee Supreme Court, TN Supreme Court
If you get a crime wiped off of your record through an expungement, you’re safe from that crime being used against you in the future, right? Unfortunately, this might not be the case if you are an immigrant who is facing possible deportation, as your guilty plea from the expungement can still be used against you by the federal court that is making the deportation decision. This was made apparent from a decision issued earlier this month by the Tennessee Supreme Court. In this case, the Supreme Court determined that an immigrant who had pleaded guilty to a crime in exchange for expungement was later not eligible for post-conviction relief because of the fact that he technically did not have a “conviction” on his record. The Associated Press and The Chattanoogan reported on this decision. To read the court’s decision directly, click here.
The Tennessee Supreme Court involved a Mexican immigrant who was married to a U.S. citizen and who has been in the United States for nearly a decade. The immigrant had pleaded guilty to the charge of patronizing a prostitute in exchange for the ability to have his criminal record expunged, according to the news reports on the case. All he had to do was follow all of the court’s orders as part of the judicial diversion process. After he completed the court’s requirements, he obtained an expungement for his criminal record in January 2010 (meaning that the state cleared the crime from his record). Later in 2010, a new law called the Post-Conviction Procedure Act made it a legal requirement for lawyers to tell their immigrant clients that their immigration statuses could be harmed if they chose to plead guilty to crimes. The law provided a form of post-conviction relief for these misinformed immigrants.
Later, after the enactment of this law, the Mexican immigrant in the Tennessee case then went back and asked the court to get rid of his guilty plea since his previous lawyer did not properly inform him of the immigration-related ramifications he would face. His argument was that he never would have provided a guilty plea had he known about the negative impact. In response, the trial court ruled that the man had waited too long to try and reopen his case.
The case then moved on to the Court of Criminal Appeals, which agreed with the trial court’s decision. The Court of Criminal Appeals also stated that the case could not be reopened anyway since the expungement made it so that there was technically no “conviction” to obtain relief for. The Tennessee Supreme Court ultimately backed the appellate court’s decision. Now that the ruling has been made, an immigration judge is free to use the Mexican immigrant’s previous guilty plea as part of its consideration of whether or not to deport the man.
In its article, the Associated Press noted that this Supreme Court ruling “closes an avenue” for immigrants to undo the damage of poor legal advice they obtained in past criminal cases. The article also noted that the ruling demonstrated the disconnect between state and federal law concerning the effect of expungement on criminal records.
If you are an immigrant who is dealing with a criminal matter, it is vital that you turn to a defense attorney who actually understands how your criminal case intersects with immigration law. We can provide you with this type of legal assistance at Davis & Hoss, PC, considering that our Chattanooga criminal defense attorneys handle immigration crimes. Contact our firm today so we can provide you with high-quality counsel!
Aug 27, 2021 | Criminal Defense, Murder, Tennessee Supreme Court
The Tennessee Court of Criminal Appeals today issued a decision validating our trial victory on behalf of Twanna Blair. “Our client is innocent of anything to do with the tragic Valentines Day Triple murders. Despite facing the death penalty at one point, a jury trail, re-indictment by the state on murder charges, and now this appeal’s court decision, our trial team has never wavered in Twanna Blair’s defense. Today’s decision is welcome and hopefully the end of a misguided prosecution by District Attorney Steve Bebb and now District Attorney Steve Crump’s office”; said her attorney Lee Davis.
Aug 23, 2021 | Chattanooga Police, Civil Rights, Sixth Circuit
The New York Times discussed the case of a college senior from Texas, Maxwell Birnbaum, who was arrested for possession of ecstasy during his freshman year while on a road trip with college buddies. Birnbaum agreed to a pretrial diversion program and has since undergone counseling and drug tests, checking in with a judge every six months to update him on his progress. When he’s done his record will be wiped clean, meaning that by the time he graduates he can apply for jobs without a blemish on his record. Well, except one.
Though legally Birnbaum’s record will be clean, a quick search online uncovers several different for-profit websites with copies of Birnbaum’s mug shot. In fact, the top four results for “Maxwell Birnbaum” on Google were mug shot websites.
Though the sites sometimes claim to serve a civic-minded purpose of allowing individuals to check out the potentially unsavory backgrounds of those they come in contact with, the fact is the websites clearly place making money ahead of any other objectives. The Times discovered that rather than insist that mug shots remain online for concerned citizens to view, the sites will almost always agree to pull a picture, assuming you are willing to pay a price. The fees to remove a mug shot can vary from $30 to $400, and even higher in some cases.
Many have argued that this approach amounts to extortion. Those with mug shots online argue that the websites offer evidence of an arrest that can haunt someone’s reputation for years even if the case was ultimately dropped or they were found innocent. Birnbaum noted how he lost a job as an intern with a state representative after an assistant in the office uncovered his mug shot.
In response, a class-action lawsuit was filed last year by an attorney in Ohio who argues that the websites violate the state’s right-of-publicity statute, which gives residents some amount of control over how their name and likeness can be used in a commercial context. The class-action case also alleges that the takedown charges violate the state’s extortion law. The lead attorney says the law is clear that you are not entitled to threaten to embarrass someone unless they pay you money.
Some states have taken action to curb the power of these websites. Just this summer the governor of Oregon signed a bill that requires all mug shot sites to remove the image of a person within 30 days, for free, if they are able to show that they were exonerated or that their record was expunged. Georgia passed a similar law in May while legislators in Utah passed legislation that prevented county sheriffs from handing out mug shots to sites that will charge to delete them.
Source: “Mugged by a Mug Shot Online,” by David Segal, published at NYTimes.com.
Aug 19, 2021 | Murder, Sixth Circuit
Jasubhai K Desai v. Raymond Booker
This case begins with a doctor, Jasubhai Desai, and a nurse, Anna Marie Turetzky, agreeing to open a medical clinic together back in the 1970s. Their business did exceedingly well as their personal relationship soured. The two fought constantly, sometimes even physically. The two tried to remedy the situation by operating out of different branches of their clinic, but that only worked for a short time. Finally, the two decided to dissolve their partnership with Desai agreeing to repay Turetzky for her share of the enterprise.
Just over a month later police found Turetzky’s body in the front seat of her car in a motel parking lot. She had been strangled and police initially were clueless about a potential suspect. A year later, the police learned that an associate of Desai’s admitted before a grand jury that a friend who had worked at Desai’s clinic confessed to murdering Turetzky on Desai’s behalf for a few thousand dollars.
The case moved on to trial where the jury heard that Desai had solicited a hit man, took out life insurance on Turetzky, asked investigators about whether Turetzky’s body had been found before it was discovered, drove to the crime scene that day and gave the alleged hit man $2,000 after the murder.
The jury found Desai guilty of first-degree murder and the judge imposed a life sentence. The conviction was then affirmed on the state level and appealed to a federal district court. That court ultimately decided that the admission of Desai’s co-defendant’s non-testimonial statement against interest violated the Confrontation Clause, something that was appealed and rejected by the Sixth Circuit, which then remanded the case for reconsideration.
Desai then argued that the admission of confession by his hit man given to the mutual friend ought to be excluded given that it is unreliable and that it violates the Due Process Clause of the 14th Amendment. The district court agreed with Desai a second time, claiming that the evidence ought to have been excluded from trial.
However, the case was again appealed to the Sixth Circuit, which yet again disagreed with the district court and reversed the decision. The Sixth Circuit determined that Desai was unable to identify any valid Supreme Court precedent that would support his claim that the statements ought to be excluded. Instead, the Sixth Circuit said any mention by the Supreme Court that unreliable testimony might violate the Due Process Clause is contained only in dicta and even then, is incredibly vague. As a result, the admission will stand as will Desai’s conviction for first-degree murder.
To read the full opinion, click here.
