Supreme Court Affirms Death Penalty in Memphis Case
The conviction and death sentence a Memphis jury handed down for the 1997 murder of an off-duty Memphis police officer was affirmed Tuesday by a majority of the Tennessee Supreme Court in an opinion written by Justice E. Riley Anderson of Knoxville.
Timothy McKinney was convicted of premeditated first degree murder for the shooting death of Donald Williams, who was working at the time as a nightclub security guard. The court also upheld McKinney’s attempted second degree murder conviction for firing his gun at another off-duty police officer, Frank Lee.
The court considered six issues raised by McKinney in his direct appeal and also conducted a proportionality review, as required by state law. The review is designed to determine whether the death sentence was disproportionate to the punishment imposed on others convicted of the same crime. In conducting the review to identify aberrant, arbitrary or capricious sentencing, the court compared McKinney’s case with others involving similar defendants and similar crimes.
“We have repeatedly held that the pool of cases considered by this court in its proportionality review includes those first degree murder cases in which the state seeks the death penalty, a capital sentencing hearing is held and the sentencing jury determines whether the sentence should be life imprisonment, life imprisonment without the possibility of parole, or death,” Anderson wrote.
In a separate opinion, Justice Adolpho A. Birch, Jr., said he concurred with the majority decision to affirm the convictions, but would reverse the death sentence and send the case back to the trial court for a new sentencing hearing. Birch said he disagrees with the protocol used for proportionality review in death penalty cases and had “identified three shortcomings” in the process.
“The ?test’ we employ... is so broad that nearly any sentence could be found proportionate; our review procedures are too subjective; and the ?pool’ of cases which are reviewed for proportionality is too small,” he wrote in a 2000 Supreme Court Opinion, State v. Chalmers, and in the McKinney opinion.
“Although the dissent argues that the pool should include all first degree murder cases, we recently explained that the pool does not include first degree murder cases in which a plea bargain is reached with respect to the punishment or in which the state does not seek the death penalty,” Justice Anderson wrote for the majority.
He said proportionality review by the court considers numerous factors, including the means and manner of death; motivation; place of death; the victim’s age, physical and psychological condition; whether there was premeditation, provocation or justification; the defendant’s prior criminal record, age, race and gender; the defendant’s mental, emotional and physical condition; cooperation with authorities; and whether there is remorse and potential for rehabilitation.
McKinney, 23 at the time, was attending a party at the club where the victim worked part- time as a guard when he “became extremely upset because he could not find his car in the parking lot,” Anderson wrote. Williams attempted to calm him down and reassure him that his car was in the lot. McKinney left the scene, but repeatedly returned, including after he was told to leave by an on-duty police officer who had been called to the scene by Williams.
“Despite these warnings and ample time for cooling off," the defendant returned a third time and shot the unarmed victim in the back of the neck from close range,” Anderson wrote. “The defendant’s threats, his repeated departures and reappearances at the scene and the passage of time overwhelmingly supported the jury’s finding that the killing was intentional and premeditated. Moreover, neither the defendant’s anger regarding the whereabouts of his car nor his anger toward the victim provided any provocation or justification for returning to the scene and shooting the unarmed victim.”
In affirming a Court of Criminal Appeals decision upholding McKinney’s convictions and sentence, the majority found that the evidence was sufficient to support the jury’s findings that the aggravating circumstance - McKinney’s prior conviction for a violent felony - had been established beyond a reasonable doubt and that it outweighed evidence of mitigating factors.
“Accordingly, we affirm the judgment of the Court of Criminal Appeals and set the date of execution for the 26th day of July, 2002,” Anderson wrote.
McKinney has state and federal post-conviction appeals
remaining.
(02/14/2002)
Hicks to Appointed to 19th District Bench
Gov. Don Sundquist today announced that Ross H. Hicks, currently a partner with the Clarksville law firm Cunningham, Mitchell, Hicks, Patton, Peay & Rocconi, will fill the vacant seat in the 19th Judicial District. Hicks will replace Judge James Walton, who died on November 13, 2001 after 17 years on the bench.
“I am pleased that Ross has agreed to accept this position,” Sundquist said. “He has a long and distinguished legal career here in Tennessee, and will bring a keen intellect and insight to this position.”
A native of Sweetwater, Tenn., Hicks joined his present firm in 1972, which was then Cunningham & Mitchell. Hicks became a partner in the firm of Cunningham, Mitchell & Hicks in 1974. Hicks’ practice has focused on litigation, education law, real estate, arbitration and mediation.
“I’m extremely honored that Governor Sundquist has asked me to take on such an important responsibility,” Hicks said. “I look forward to the opportunity of serving the people of Tennessee.”
Hicks received his B.A. in Political Science from Vanderbilt University in 1968, and his J.D. from the University of Tennessee in 1971. He has served in numerous leadership positions in Clarksville, including the Clarksville Area Chamber of Commerce, Leadership Clarksville, Clarksville-Montgomery County Metropolitan Charter Commission, the Clarksville-Montgomery County Economic Development Council and the Montgomery Country Tourist Commission. He was named by the Tennessee Supreme Court to the Hearing Committee Panel of Board of Professional Responsibility in 1999.
Hicks resides in Clarksville with his wife, Nancy.
(02/11/2002)
Supreme Court Authorizes Extension of Jury Reform Project
Judges involved in a jury reform pilot project in 10 courtrooms across the state have been authorized by the Tennessee Supreme Court to continue using some or all of the changes beyond the scheduled March 1 end of the experiment which was implemented to improve conditions for Tennessee jurors.
In a new order, justices said the project, which started Sept. 1, 2001, may continue in the pilot project courts “until further order.” The project will assess 14 recommendations of the Tennessee Bar Association Jury Reform Commission, created in 1998 to evaluate jury procedures in the state. A report on results of the pilot project will be submitted to the state Advisory Commission on the Rules of Practice and Procedure for consideration of the recommendations.
In a 1999 report, the TBA Jury Reform Commission cited areas of the jury system needing improvement. Reform objectives are:
Participants in the pilot project are Circuit Court Judges Robert Childers of Memphis, Creed McGinley of Savannah, Don Ash of Murfreesboro, Thomas Brothers of Nashville and Marie Williams of Chattanooga; Chancellor Steven Stafford of Dyersburg; and Criminal Court Judges Lillie Ann Sells of Cookeville, E. Shayne Sexton of Jacksboro, Richard Baumgartner of Knoxville and James Beasley, Jr., of Memphis.
In the pilot courts, the participating judges, jurors and
attorneys are answering questions on an anonymous questionnaire
concerning jury issues. The surveys are being analyzed at the
University of Tennessee College of Law.
(02/11/2002)
New Supreme Court Rule Helps State’s Foster Children
More than 7,700 Tennessee children who are in foster care because they were abused, neglected or dependent will benefit from a new state Supreme Court rule establishing guidelines for lawyers appointed to represent them as guardians ad litem.
“The guardian ad litem is appointed by the court to represent the child by advocating for the child’s best interests and ensuring that the child’s concerns and preferences are effectively advocated,” the court wrote in Supreme Court Rule 40. “The child, not the court, is the client of the guardian ad litem.”
In 1996, the court appointed a Permanency Planning Commission to review and assess the juvenile court process in cases involving dependent, neglected and abused children. The commission concluded there were “several barriers to permanency for these children within the judicial system,” the court wrote. The Supreme Court rule was adopted in response to the commission’s findings.
“Establishing and maintaining a relationship with the child is fundamental to representation,” the rule states. “The guardian ad litem shall have contact with the child prior to court hearings and when apprised of emergencies or significant events affecting the child.”
Under the rule, appointed lawyers are required to tailor their contact to the ages and development of the children they represent. They also are mandated to provide older children with information and advice, including explaining their rights and the court process.
Besides providing legal assistance, the guardians ad litem are required under the rule to assess the children’s needs and identify community resources available to meet them.
(02/05/2002)
Court Appoints Members to Boards, Commissions
Seven judicial system boards and commissions have new and reappointed members with terms effective January 1. The Supreme Court appointed members to fill expiring positions and also added two members to the expanded Board of Law Examiners.
New Board of Law Examiners members are attorneys Robert E. Cooper, Jr. of Nashville, Jimmy Carpenter Miller of Kingsport and Ricky E. Wilkins of Memphis, who succeeded Prince Chambliss of Memphis. Justice E. Riley Anderson serves as court liaison to the five-member board. The terms of other members have not expired.
The 12-member Board of Professional Responsibility has one new member and four who were reappointed by the court. Attorney W. Ferber Tracy of Chattanooga was appointed to succeed attorney Richard Fisher, whose term ended. Reappointed members are attorneys Johanna J. McGlothin of Knoxville; Charles Carpenter of Memphis; Rep. Kim McMillan of Clarksville; and Dr. Melvin Wright of Jackson. Other members’ terms expire at the end of this year or in 2003. Justice Adolpho A. Birch, Jr., serves as court liaison for the Board of Professional Responsibility.
Five members were reappointed to the Advisory Commission on the Rules of Practice and Procedure and the court made one new appointment. Attorneys Rose P. Cantrell of Nashville; David High of Nashville; Gail Mathes of Memphis and Sarah Sheppeard of Knoxville; and William L. Gibbons of Memphis were reappointed. Assistant District Attorney General Bates W. Bryan, Jr., of Chattanooga was appointed to a first term on the commission. Justice William Barker serves as the court’s liaison to the commission.
The Tennessee Lawyers’ Fund for Client Protection has two new members and one who was reappointed by the Supreme Court. Attorneys Teresa McCaig Marshall of Paris and Jack M. Vaughn of Kingsport were appointed to succeed Larry S. Banks and E. Lynn Dougherty. John T. McDaniel of Chattanooga was reappointed for a two-year term. The court’s liaison is Justice Anderson.
The Judicial Performance Program Committee has three new members. The court appointed Chancellor W. Frank Brown, III, of Chattanooga and attorneys Pamela L. Reeves of Knoxville and Mary Joe Price of Nashville to two-year terms. They succeed outgoing members Julia Howard, Natasha Metcalf and Judge Marie Williams. Justice Anderson is the court’s liaison to the committee.
DeCosta Jenkins of Nashville and attorneys Ann Rowland of Knoxville, Roger W. Dickson of Chattanooga and Paul E. Prather of Memphis were appointed to the Commission on Continuing Legal Education. Rowland was reappointed, while Jenkins, Dickson and Prather succeeded Elizabeth Owen, Derek Renfroe and Patricia Best Vital, whose terms expired. Jenkins is one of two non-attorney members of the commission. Justice Anderson serves as the court’s liaison to the commission.
The court also appointed new members to the Commission on Alternative Dispute Resolution. The appointees include Judges Robert E. Lee Davies of the 21st Judicial District and James F. Russell of the 30th Judicial District and attorneys Rosemarie L. Bryan of Chattanooga, Stephen E. Cox of Nashville, Gayden Drew, IV, of Jackson, Hayden D. Lait of Memphis and Howard H. Vogel of Knoxville. They succeed Judges George H. Brown, Jr. of Shelby County and Marietta M. Shipley of Davidson County, attorneys R. Larry Brown, Kimbrough B. Mullins, Robert R. Campbell and Shelby R. Grubbs and lay member Bettye D. Daugherty. Members J. Wallace Harvill of Centerville, D. Bruce Shine of Chattanooga and Dorothy J. Pounders of Memphis were reappointed. Justice Janice Holder is the Supreme Court liaison to the ADR commission.
01/25/2002
Specialized Courts Proving Successful
A growing number of so-called “designer” courts dealing with certain cases involving limited legal issues such as drugs, mental health problems, domestic violence or DUI are proving their worth in Tennessee with lower rates of recidivism and higher rates of rehabilitation, according to judges.
In the 6th Judicial District (Knox County), a grant-funded drug court is helping minor offenders get their lives back together without doing hard time in jail or prison, said Criminal Court Judge Richard Baumgartner.
“If you ask them how many times they committed a crime before getting into the program, they will respond, ‘daily,’” he said. “Now they’re working, paying taxes and taking care of their kids. But they have to want to be in the program.”
Those who qualify – nonviolent offenders such as forgers, shoplifters, prostitutes and small-time drug dealers referred to the program – must go to treatment three days a week, do three hours of weekly community service work and come to court once a week. And, they have to work. If they get a dirty drug screen, they serve 48 hours. For a second dirty screen, the sentence is a week and the third time, their opportunity to be in the program may be revoked.
Next, Baumgartner said he hopes the district will have a court to deal with offenders who have both substance abuse and mental health problems.
A year-old mental health court in Davidson County, which also has a successful drug court, has received widespread praise and recognition for its rate of success. Just one of five like it in the nation, the court is presided over by General Sessions Judge Mark Fishburn.
The Davidson County drug court offers both inpatient and outpatient treatment for nonviolent felony offenders and has a recidivism rate of less than 15 percent. Criminal Court Judge Seth Norman said it is the only one of 600 drug courts nationwide operating its own residential treatment facility.
Other specialized courts are located in rural as well as urban areas of the state. In the 23rd Judicial District, including Cheatham, Dickson, Houston, Humphreys and Stewart counties, Judge Robert Burch said there are drug and DUI courts operating. And, in the 18th Judicial District (Sumner County), Judge Jane Wheatcraft said federal funding was obtained for a drug court to serve as a “two-tier misdemeanor and felony program.”
Domestic violence courts are operating in both the 30th (Shelby County) and 16th (Cannon and Rutherford counties) districts, where there also is a drug court described by Circuit Court Judge Don Ash as “very successful.”
In Blount County, a drug court has been operating at the trial level since 1999 when it was started with a federal grant. Most participants are multi-substance users with a 10-year or longer chemical dependency history, said Circuit Court Judge Kelly Thomas.
Environmental courts fill a niche in several cities, including Nashville, Chattanooga and Memphis, while family, probate and separate juvenile courts also are operating in some areas across the state with even more kinds of specialized courts expected in the future.
01/22/2002
Cultural Diversity Evident in Courthouses
Tennessee’s changing cultural composition is providing new challenges for judges and court officials as they endeavor to ensure that language barriers are not barriers to equal justice.
“The judicial system strives to serve and administer justice equally for all Tennesseans7, whether their ancestors were native to the region, arrived in horse-drawn wagons or whether they are new residents from across a state line or across an ocean,” Chief Justice Frank F. Drowota, III, said. “It is important to adapt the system as needed and we have taken some important steps to do that.”
Like many Tennesseans, the state’s new residents sometimes turn to the courts for help or services, such as orders of protection. Others may find themselves before a judge to face criminal charges or resolve a civil dispute. The system can be confusing for anyone who uses it, but for those who do not speak or understand English and have no experience with courts in this country, it also may be frightening.
In response to the state’s increasing diversity, the Tennessee Supreme Court, the Administrative Office of the Courts (AOC) and judges statewide are taking steps to provide assistance to court-users whose primary language is not English.
Significant action is being taken to establish standards for court interpreters for spoken foreign languages. Testing for prospective interpreters will begin Saturday in Nashville with additional testing Feb. 18 in Memphis. Registration information for the tests and a two-day workshop is available by calling Janice Rodriquez at the Tennessee Foreign Language Institute, 615-741-7579.
In addition, two proposed Supreme Court rules dealing with standards and ethics for foreign language court interpreters are posted on the court system website for review and comment. The deadline for comments is March 15.
Working with a grant from the Office of Criminal Justice Programs, the AOC has produced videos in English and six foreign languages judges say they hear most often in their courtrooms. The professionally produced videos in English, Spanish, Arabic, Kurdish, Lao, Russian and Vietnamese, will explain basic rights of defendants; orders of protection and the rights of parents in abuse and neglect cases. They will be available in courthouses and other locations across the state. The AOC contracted with the Tennessee Foreign Language Institute to provide translation services.
In another move to help immigrants, the AOC received a grant from the National Center for State Courts to translate basic criminal practice forms into the same six languages. In addition, the court system has included information and other forms in Spanish on its website.
Judges also are becoming better acquainted with readoption requirements as increasing numbers of Tennessee families expand to include children from orphanages in other countries. Judges involved in the legal process of adopting or readopting foreign-born children say it is among the most satisfying of their judicial responsibilities.
“They’re just beautiful children,” said Circuit Court Judge Royce Taylor of Murfreesboro, who has handled several readoptions, including children from Russia, Romania and China. “All of them had a story. There were Romanian twins who had been malnourished and a little girl from China who was found in a stable. I give all adoptees a toy frog - I keep a supply of frogs - and one child told me how to say frog in Russian.”
Even Supreme Court Justice Adolpho A. Birch, Jr. performed one readoption of a foreign-born child – a legality and ceremony normally handled by circuit and chancery court judges. The justice formalized the adoption of Inara Abernathy, the first baby adopted out of Azerbaijan, a former Soviet Republic. The new little Tennessean and U.S. citizen is the daughter of Bill and Kimi Abernathy of Bell Buckle.
(01/11/2002)
Commission Submits Three Names to Governor
One of three Clarksville attorneys recommended Friday by the state Judicial Selection Commission will be appointed by Gov. Don Sundquist to fill a circuit court vacancy in the 19th Judicial District, including Montgomery and Robertson counties.
As required by law, the 17-member bipartisan commission
conducted a public hearing and interviewed five applicants before
making its recommendations. All five applicants were from Clarksville.
The three applicants to be considered by the governor are Ross Hicks,
Mark Rassas and Dan Brollier.
(01/04/2002)
State Judges Getting New Online Research Tool
For the first time, all Tennessee trial and appellate judges have the ability to conduct fast efficient legal research via the Internet. The Administrative Office of the Courts has signed a contract with LexisNexis to provide state judges across Tennessee with online access to cases, statutes, Shepard’s, Tennessee Jurisprudence, law review articles and other state, national and international resources.
LexisNexis is one of the largest online libraries of state and federal primary law including case law, statutes and administrative/regulatory material. Additionally, the Nexis portion of the program offers access to domestic and international news sources. Also, as the exclusive home of the Shepard's citations service and with the Michie and Matthew Bender line of treatises, LexisNexis is a leader in secondary law coverage.
“This is going to be a tremendously helpful tool for judges and others in the judicial system who do legal research,” said Cornelia Clark, administrative director of the courts. “Our goal in negotiating this contract was to make courts more efficient. We are constantly looking at affordable technological and other advances to improve our system of justice.”
Previously, some trial judges had locally funded access to online legal research tools, while others did not. Under the new contract with LexisNexis, the AOC will have licenses available for all state judges and staff who need the service.
(01/03/2002)
Commission to Recommend Applicants for Judicial Vacancy
The state Judicial Selection Commission will meet at 9 a.m. Jan. 11 at the Holiday Inn (Exit 4) in Clarksville to conduct a public hearing and interview five attorneys applying for a Circuit Court vacancy in the 19th Judicial District, including Montgomery and Robertson counties.
Oral and written public comments concerning the applicants will be accepted by the commission. Applicants also will be invited to speak at the meeting. The five applicants are Clarksville attorneys Dan Brollier, Mark Rassas, Robert Bateman, Ross Hicks and Kenneth Goble, Jr.
The 17-member commission will submit three applicants’ names to Gov. Don Sundquist, who will appoint a successor to Judge James E. Walton. Judge Walton died Nov. 13 after 17 years on the bench. The governor’s appointee will serve until August 2002 when voters will elect a judge to fill the unexpired term, which ends in 2006.