(03/05/2005)
Governor Phil Bredesen announced that Nashville attorney Donna M. Fields will fill a position in the 30th Judicial District, Division VII Circuit Court. The position was vacated by Judge Robert Lanier upon his retirement Dec. 31, 2003. "I am confident that Ms. Fields will serve with honor and integrity as she fills this important position in Shelby County," Bredesen said.
"She brings tremendous experience and skill to the Circuit Court, and is admired for her work in the Shelby County legal community. I am pleased she has agreed to serve in this role."
Fields has practiced law in Memphis for nearly 28 years. She began her career in 1976 as an associate working for Memphis attorney James F. Schaeffer. From 1977 to 1980, she worked in private practice and as a staff attorney in the Shelby County Juvenile Court. For the next four years she continued to work in private practice, in addition to working as a part-time public defender in the Shelby County Criminal Courts. Since that time, Fields has worked in solo practice, primarily in civil trial law.
"I'm truly gratified the Governor has placed his trust in me and I intend to do my very best to serve well in this position, and to respect all litigants who will come into my courtroom," Fields said.
Fields, 55, holds a bachelor's degree in biology from the University of Tennessee at Knoxville, and a Doctor of Jurisprudence from Memphis State University. She is a member of the Memphis Bar Association, Tennessee and American Bar Associations, and the Tennessee and American Trial Lawyers Associations. She is a former vice president of the West Tennessee Division of the Tennessee Trial Lawyers Association and served on their board of directors for more than 10 years. She is a "Fellow" of the Memphis and Shelby County Bar Associations, as well as the Memphis Bar Foundation, the philanthropic arm of the Memphis Bar Association. Fields' community work includes serving on the advisory council and board of the Memphis Botanic Gardens and as a volunteer for St. Jude Children's Research Hospital.
Fields' Division VII Circuit Court appointment will become effective upon taking the oath of office. She will stand for election in August for the remainder of Lanier's unexpired term. There will then be an election for a full eight-year term in 2006. This marks Bredesen's ninth judicial appointment since taking office.
(03/04/2005)
The Tennessee Supreme Court has affirmed the felony murder conviction and death sentence Memphis jurors imposed on Andrew Thomas, who shot an armored truck guard in the back of the head, stole his victim's money deposit bag and went on a shopping spree.
Thomas was sentenced to death for the 1997 shooting of James Day, who died two years later from an infection resulting from the wound that damaged his spinal cord and caused other devastating injuries. Thomas, 24 at the time of the shooting, previously had been convicted of nine felonies, including eight aggravated robberies.
In an opinion written by Justice E. Riley Anderson, a majority of the court affirmed an earlier Court of Criminal Appeals decision. Chief Justice Frank F. Drowota, III, Justice William M. Barker and Justice Janice M. Holder concurred in the majority opinion upholding Thomas's conviction and sentence.
As required by state law, the court reviewed whether the sentence of death was disproportionate to the penalties imposed in similar cases, considering the nature of the crime and the defendant. Anderson and the majority held that the analysis used by the court to ensure that a death sentence is not "aberrant, arbitrary or capricious" is valid:
"In conducting this analysis, this court employs the precedent-seeking method of comparative proportionality review, in which we compare a case with other cases involving similar defendants and similar crimes," Anderson wrote. "We conclude that the death sentence as applied to the defendant in this case was not arbitrary, excessive or disproportionate when compared to defendants in other cases."
In a separate concurring/dissenting opinion, Justice Adolpho A. Birch, Jr., agreed with the majority that Thomas's conviction should be affirmed, but disagreed that the death sentence should be upheld. As he has in "a long line of dissents," Birch wrote that "the comparative proportionality review protocol currently embraced by the majority is inadequate to shield defendants from the arbitrary and disproportionate imposition of the death penalty."
The Supreme Court considered two other issues raised by Thomas in this direct appeal. The court found that the trial court judge did not err when he excused a prospective juror who said he could not impose the death penalty unless he witnessed the crime or the defendant confessed. Anderson wrote that the trial court did err when the judge refused to instruct the jury on lesser included offenses of felony murder, but concluded the error was "harmless beyond a reasonable doubt."
Day, who was married and the father of a 12-year-old son, was shot as he was leaving a store with a money deposit bag. His wife testified that he worked two jobs to support his family.
"The defendant ran up, shot the guard in the back of the head, grabbed the deposit bag" and jumped into a car driven by co-defendant Anthony Bond, Anderson wrote. Bond was sentenced to life in prison for his role in the crime.
For the two years he survived, Day underwent numerous surgeries and required constant care.
"He was confined to one room, was unable to use the bathroom and became depressed," Anderson wrote.
Experts testified that his death was a direct result of the shooting. During the trial, Day's wife testified that when her husband died she lost her "confidant, lover and best friend."
"After reviewing the record, we conclude that the evidence in this case clearly supported the jury's finding that the aggravating circumstance, i.e., that the defendant had prior convictions for felonies whose elements involved violence to the person, was proven beyond a reasonable doubt," Anderson wrote. "Similarly, the evidence supported the jury's finding that the evidence of this aggravating circumstance outweighed the evidence of mitigating circumstances beyond a reasonable doubt."
The court set an Aug. 10, 2005, execution date for Thomas, who has state and federal appeals remaining. The legal process in death penalty cases is explained on the court system website at www.tsc.state.tn.us under "Information" and "Capital Case Information."
In a series of seminars sponsored by the Administrative Office of the Courts and supported by a grant from the Governor's Highway Safety Office, judges across the state are being educated about legal issues in the impaired driving cases they hear.
"These educational seminars are providing general sessions judges with updated information in areas such as evidence in impaired driving cases, the state's DUI law, toxicology and field tests used by law enforcement," said Connie Clark, administrative director of the state court system. "Experts, including appellate court judges, law enforcement officials and a TBI forensic scientist, are leading the sessions which are being held regionally to make it possible for more general sessions judges to attend."
Impaired driving seminars were held in Chattanooga and Murfreesboro in February. Upcoming sessions will be March 22 in Waverly; April 20 in Knoxville; April 22 in Bristol; May 24 in Cookeville; July 18 in Nashville; July 21 in Franklin; August 5 in Jackson; and August 12 in Memphis.
"It is necessary that a more holistic approach be taken toward combating impaired driving," said Chuck Taylor, director of the Governor's Highway Safety Office. "Beforehand, only law enforcement and the community-at-large had been the targets of DUI training and anti-drunk driving messages. These seminars bridge the gap and offer judges critical information necessary in hearing impaired driving cases with the goal of saving lives."
In 2003, there were 4,745 defendants convicted of DUI in Tennessee state trial courts. Department of Safety figures show that a quarter of all traffic fatalities in 2003 were alcohol related. That is the last year for which final figures are available.
(02/03/2005)
Governor Phil Bredesen appointed Williamson County attorney Jeffrey S. Bivins to fill a vacancy in Division III of the 21 st Judicial District’s Circuit Court, created by the retirement of Judge Donald Paul Harris. The 21 st Judicial District Circuit Court covers Hickman, Lewis, Perry and Williamson counties.
“Jeff Bivins is an accomplished, highly skilled member of the Williamson County legal community,” Bredesen said. “With his vast experience working as an attorney in private practice, having worked as former general counsel in the State Department of Personnel, and having formerly served as a Circuit Court Judge, I have absolute confidence in his abilities. I appreciate that he is willing to serve the State of Tennessee in the 21 st Judicial District.”
Jeff Bivins, of Franklin, has been an attorney for nearly 20 years. He currently works in private practice at Boult Cummings Conners & Berry, PLC, specializing mainly in civil litigation, arbitration and mediation and antitrust law. He also serves on the County Commission of Williamson County. He is a former Circuit Court Judge for the 21 st Judicial District, and has served as the Assistant Commissioner and General Counsel for the Tennessee Department of Personnel. He is a Rule 31 Listed General Civil Mediator.
“I certainly want to thank Governor Bredesen for his confidence in appointing me,” said Bivins. “I’m looking forward to serving the citizens of the 21 st Judicial District and am excited to work as Circuit Court Judge once again.”
Bivins, 44, holds a bachelor’s degree in political science from East Tennessee State University, Johnson City, and earned his doctor of jurisprudence degree from Vanderbilt University Law School, Nashville. He is a member of the Williamson County, Nashville, Tennessee and American Bar Associations. He is a Fellow of the Nashville Bar Foundation. He is also a member of the John Marshall American Inns of Court, currently serving as president of the organization. He also co-chairs the Housing Task Force of Franklin Tomorrow and is a graduate of Leadership Franklin.
Bivin’s appointment is effective immediately, and he will stand for election to a full 8-year term in 2006.
The Tennessee Supreme Court has upheld a jury’s verdicts convicting a Memphis man and sentencing him to death for killing his wife by beating her in the head and face with a skillet and a horse shoe after she told him she wanted a divorce.
Justice Janice Holder, writing for a majority of the court, said issues raised by Robert Faulkner in his automatic direct appeal “do not warrant relief.” She was joined in the opinion, affirming a Court of Criminal Appeals decision, by Chief Justice Frank F. Drowota, III, and Justices E. Riley Anderson and William M. Barker.
Justice Adolpho A. Birch, Jr., wrote a separate concurring/dissenting opinion in which he agreed with the majority that Faulkner’s conviction for premeditated first degree murder should be upheld, but disagreed as to the sentence of death.
Faulkner killed his estranged wife, Shirley Faulkner, around midnight on Jan. 21, 1999. Three days earlier she had filed a complaint with the Memphis Police Department alleging her husband had hit and threatened to kill her.
Faulkner turned himself in to authorities on Jan. 24. He said he had wanted to reconcile with his wife, but she “just wanted the divorce.” He claimed he and the victim were arguing “and everything just exploded” so he began repeatedly striking her with the skillet and horse shoe.
“Faulkner estimated that he struck his wife between seven and eight times,” Holder wrote. “He acknowledged that the victim fell to the floor after the second blow and that he continued to hit her while she was on the floor. After the attack, Faulkner put the murder weapons in a bag and drove away in the victim’s car.”
At the penalty phase of Faulkner’s trial, the jury determined that the aggravating circumstance - his prior convictions for violent felonies - outweighed mitigating evidence presented by the defense, including testimony from a psychologist concerning the abuse and neglect Faulkner suffered as a child. His prior felony convictions were in 1976, when he was convicted of assault with intent to commit first degree murder, assault with intent to commit robbery and assault with intent to commit voluntary manslaughter, and in 1984 when he was convicted of four robberies and second degree murder.
In addition to issues raised by Faulkner and rejected by the Supreme Court, the majority found that the sentence of death was not “disproportionate to the penalty imposed in similar cases.” By state law, the Supreme Court conducts a “comparative proportionality review” of each capital case to determine if it is “plainly lacking in circumstances consistent with those in similar cases in which the death penalty has been previously imposed.”
Holder wrote that after an “exhaustive review” of the record in Faulkner’s case and reports concerning other death penalty cases, the sentence he received was not excessive or disproportionate.
“. . . Our review requires that we identify an aberrant death sentence by determining whether the case is plainly lacking in circumstances consistent with those in similar cases in which the death penalty previously was imposed,” Holder wrote. “. . . We are of the opinion that the sentence of death in this case is not excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.”
In his concurrent/dissenting opinion, Birch said the “protocol” used for comparative proportionality review is “inadequate to shield defendants from the arbitrary and disproportionate imposition of the death penalty.” He cited previous cases in which he has dissented because of his concerns about the method used for the review.
“As previously discussed, I believe that the three basic problems with the current proportionality analysis are that: (1) the proportionality test is overbroad, (2) the pool of cases used for comparison is inadequate, and (3) review is too subjective,” Birch wrote.
The court set an Aug. 18, 2005, execution date for Faulkner, who has
state and federal appeals remaining. The legal process in death penalty cases
is explained on the court system website at www.tsc.state.tn.us under
“Information” and “Capital Case Information.”
Governor Phil Bredesen today announced that Fayette County General Sessions Judge J. Weber McCraw will fill a vacancy in part one of the 25th Judicial District's Circuit Court, created by the retirement of Jon Kerry Blackwood of Somerville. The 25th Judicial District Circuit Court covers Fayette, Hardeman, Lauderdale, McNairy and Tipton counties.
"Weber McCraw's 14 years as a General Sessions judge and six years in private practice have given him a broad view of the legal system of the 25th Judicial District," said Bredesen. "Throughout his years practicing law and serving as a county and city judge, McCraw has proven himself dedicated to the constant improvement of the judicial system in Tennessee. I am confident in his skill and knowledge of the law, and appreciate his commitment to serving our state in the Circuit Court."
McCraw, of Braden, has been practicing law for 20 years. He has served as Fayette County General Sessions Judge since 1990, when he won a contested race against the incumbent. He was re-elected to the post in 1998 without opposition. McCraw has also served as appointed city judge for several municipalities in Fayette and Tipton Counties. Prior to that, McCraw worked in private practice at Gordon, Forrester and Whitaker in Covington from 1984 to 1991.
"I'm honored that the Governor has appointed me to this position and appreciate his confidence in me," said McCraw. "I look forward to serving the citizens of the 25th Judicial District."
McCraw, 45, holds a bachelor's degree in business administration from the University of Tennessee, Knoxville, and earned his doctor of jurisprudence degree from the Cecil C. Humphrey's School of Law at Memphis State University, Memphis. He is a member of the Tennessee Bar Association and the Fayette and Tipton County Bar Associations. He is also a member of the Tennessee Bar Association's House of Delegates and the Tennessee General Sessions Judges Conference. In 1998, he was one of two juvenile court judges appointed to the Juvenile Justice Reform Commission, charged with reviewing and redrafting Tennessee code sections applicable to juveniles and the juvenile court system. McCraw's appointment is effective immediately, and he will stand for election to a full 8-year term in 2006.
(01/18/2005)
In a unanimous decision setting a new legal standard for finding
reckless infliction of emotional distress, the Tennessee Supreme Court has
cleared the way for a $68 million child sexual abuse lawsuit against the Roman
Catholic Diocese of Nashville to go forward.
“We hold that reckless
infliction of emotional distress need not be based upon conduct that was
directed at a specific person or that occurred in the presence of the
plaintiff,” Chief Justice Frank F. Drowota, III, wrote in the legal
precedent-setting opinion filed Tuesday.
The decision, which reverses Court of Appeals and trial court decisions, involves consolidated lawsuits against the Catholic Diocese by two boys who were sexually abused by a former priest with a long history of child molestation. The mother of one abuse victim also is a plaintiff.
Prior to the Supreme Court’s decision in John Doe 1 ex rel. Jane Doe 1, et al. v. Roman Catholic Diocese of Nashville, et al., the lower courts had held that “to be actionable under the tort of outrageous conduct, a defendant’s reckless or intentional conduct must have been directed at a particular plaintiff or the plaintiff must have had a close relationship to the individual at whom the conduct was directed."
In its decision, the Supreme Court sent the case involving John Doe 1 and John Doe 2 back to the trial court for further proceedings. Justices also directed the trial court to allow the plaintiffs to obtain additional information to support their case seeking damages for emotional distress resulting from abuse by former priest Edward McKeown.
McKeown, who is serving a prison sentence for repeatedly abusing a large number of victims, was no longer employed by the Diocese at the time he began molesting the two boys who are plaintiffs. The plaintiffs argued that even though the Diocese did not direct its conduct specifically at the plaintiffs, it should be held liable because church officials had direct knowledge of numerous previous instances of abuse, had been warned that McKeown was likely to continue to abuse children, but recklessly failed to prevent him from molesting other boys in the community. The plaintiffs allege that the Diocese engaged in a cover-up which included paying McKeown over $50,000 to remain quiet about child abuse after he was relieved of his duties with the Diocese.
The court’s decision is the first in the nation to hold that reckless infliction of emotional distress does not have to be based on conduct that was directed at a specific person or that took place in the presence of the plaintiff.
The trial court had dismissed the claims of the plaintiffs, meaning that their lawsuit could no longer proceed. In affirming the trial court's decision granting summary judgment for the Diocese, the Court of Appeals held that the plaintiffs' claim for reckless infliction of emotional distress must be based upon misconduct by the Diocese which had been directed specifically at the plaintiffs.
McKeown became a priest in 1970, and for 19 years he frequently served the Diocese in positions that brought him into contact with youth. In 1973, a boy attending a Catholic school informed a priest that McKeown had given him alcohol and forcibly molested him. Thirteen years later, after the victim’s parent told the bishop of the Diocese about the incident, the church official confronted McKeown, who admitted to the abuse.
In 1986, McKeown spent 10 days in Maryland undergoing a psychological
and medical evaluation and was diagnosed with pedophilia and ephebophilia, both
sexual disorders.
“Records of the evaluation indicate that McKeown
admitted that he ‘had sexual contact with approximately 30 boys over the
past 14 years’ and estimated that he ‘had sexual contact with
minors on the average of once or twice a month for the past 14
years,’” Drowota wrote in the court’s opinion. “The
typical age of his victims was stated to be 12 to 13 years old,” but he
had older victims as well.
A report sent to a church official said McKeown should not be “in the presence of teenagers unless another responsible adult is with him.” After receiving the evaluation of McKeown, the Diocese provided him with in-patient treatment at a facility in Connecticut in 1986-87. Again, the Diocese was cautioned that McKeown should not be given responsibilities that “would place him in frequent or ongoing contact with adolescents.”
“There is no cure for Father McKeown’s condition and so it is necessary that there be a continual program of therapy and monitoring to help him maintain the same degree of control that he has now into the future,” a treating doctor wrote to a Diocese official.
After returning to Nashville, McKeown resumed working for the Diocese, including hearing children’s confessions and participating in youth activities. McKeown was relieved of his duties in 1989 after officials learned that he had openly presented a condom to a minor boy at a Christmas party. He moved to a mobile home community and received monthly payments from the Diocese.
After his employment duties with the Diocese were discontinued, McKeown still continued to participate in youth and other activities in his parish where he was often in the company of adolescent boys.
“On a regular basis from 1990 until at least 1996, McKeown sexually molested numerous Diocesan boys . . .,” Drowota wrote.
He met plaintiff John Doe 2 in 1991 at the mobile home community
where they both lived. John Doe 2 was not Roman Catholic and did not attend
church or school within the Diocese. McKeown sexually abused the boy from 1994
until 1995 when the victim’s mother discovered the abuse and reported it
to the police. No police investigation was conducted at that time.
In
1995, McKeown met John Doe 1, who also lived in the mobile home community, and
began molesting him the same year. Although John Doe 1 also was not Roman
Catholic and did not meet McKeown through the Diocese, the boy alleges that he
frequently accompanied McKeown to watch athletic contests at a Diocesan school
and occasionally attended church with McKeown.
The boy revealed the sexual abuse to a friend and to his mother in 1999. The mother confronted McKeown, “who promptly confessed not only to the sexual abuse of John Doe 1, but also to a litany of abuse of many other boys over many years,” Drowota wrote. The abuse was reported to police, and McKeown was prosecuted, convicted and is in now in prison.
Governor Phil Bredesen today announced that 17th Judicial District Assistant District Attorney General Robert G. Crigler will fill a vacancy in part one of the District's Circuit Court, created by the retirement of William Charles Lee of Lewisburg. The 17th Judicial District Circuit Court covers Bedford, Lincoln, Marshall and Moore counties.
"I am pleased to appoint Robert Crigler to the 17th Judicial District Circuit Court," Bredesen said. "Robert has been a highly respected member of the legal community of Bedford and its surrounding counties for more than twenty years. As an assistant district attorney general in the 17th Judicial District, I am confident Robert has the experience, the skill and the knowledge of the legal system to serve well on the Circuit Court bench. I certainly appreciate his service to the State of Tennessee."
Crigler, a Bedford County native, has been practicing law for 24 years. He has been working as an Assistant District Attorney General in the 17th Judicial District since 1988. Prior to that, Crigler worked in private practice in Shelbyville from 1981 to 1988, working mostly in civil, criminal and domestic relations law.
"I appreciate the confidence Governor Bredesen has placed in me by appointing me judge, and I promise to serve the citizens of our judicial district to the best of my ability," said Crigler.
Crigler, 49, holds bachelor's degrees in religious studies and history from the University of Virginia, Charlottesville, and earned his doctor of jurisprudence degree from the University of Tennessee College of Law, Knoxville. He has been a member of the District Attorney Generals Conference since 1988, and previously was a member of the Tennessee Trial Lawyers, Tennessee Bar and the Shelbyville-Bedford County Bar Associations, the latter of which he served as secretary/treasurer and president during his time as a member. He is a member of the Shelbyville Benevolent Lodge No. 122. Crigler's appointment is effective immediately, and he will stand for election to a full 8-year term in 2006.
(01/06/2005)
For the first time, judges in Tennessee will have mandatory guidelines to use in deciding whether certain court records may be sealed - or kept confidential - under a rule adopted Thursday by the Tennessee Supreme Court.
The court entered an order adopting a number of amendments to the rules of procedure applying to cases in state trial and appellate courts.
“While most of these are technical changes, the adoption of new Rule 1A of the Tennessee Rules of Civil Procedure is a significant change,” Chief Justice Frank Drowota said. “Prior to the adoption of this rule, there were no written guidelines for judges to use in deciding whether or not to seal, or close, certain court records.”
The rule says it is “the public policy of this state that the public interests are best served by open courts and an independent judiciary.” Under the rule, court records are presumed to be open to the public and may be sealed only in limited circumstances, spelled out by the Supreme Court in its rule.
Rule 1A generally applies to all documents filed in connection with cases before any civil court, with three narrow exceptions. It also applies to settlement agreements not filed in court but pertaining to a filed civil case, if the agreement restricts the disclosure of “information concerning matters that have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government.” The monetary amount of settlements may be kept confidential.
The rule also applies to certain other documents not filed in court, but relating to civil cases filed in court if those matters “have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government.” Drowota said the provisions are designed to promote openness in court cases involving the administration and operation of government.
Procedures are set out in the rule for requesting that court records be sealed or unsealed. Non-parties also may participate in court proceedings involving the sealing or unsealing of court records, which are defined in the rule.
(01/04/2005)
The Tennessee Judicial Selection Commission will meet Jan. 10 in Franklin for a public hearing followed by private interviews with 12 attorneys who have applied to fill a Circuit Court vacancy in the 21st Judicial District, including Hickman, Lewis, Perry and Williamson counties.
The public hearing will begin at 8:30 a.m. at the Williamson County Administrative Complex Auditorium, 1320 West Main Street. Applicants hoping to succeed retiring Circuit Court Judge Donald P. Harris are William Landis Turner of Hohenwald; Derek Keith Smith, Robert H. Plummer, Jr., Jeffrey R. Kohl, Jeffrey S. Bivins, Coburn Dewees Berry, IV, Kim R. Helper and Kent W. Cochran, all of Franklin; John D. Schwalb, Connie L. Reguli and Victoria Krueger, all of Brentwood; and Robbie T. Beal of Thompson’s Station. The application deadline was Dec. 30.
The Judicial Selection Commission will submit the names of three applicants to Gov. Phil Bredesen, who will appoint a new Circuit Court Judge. Harris will continue to serve until Jan. 17, when he assumes senior judge status.