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Shoplifting from Wal-Mart can get you 12 years of prison time in Tennessee

The price of shoplifting at Wal-Mart isn’t always low.

Shoplifting from Wal-Mart can get you 12 years of prison time in Tennessee

The price of shoplifting at Wal-Mart isn’t always low.

Under Tennessee law, shoplifting items valued below $1,000 is a misdemeanor offense that carries a maximum jail sentence of one year. But that hasn’t stopped district attorneys in at least two counties from charging shoplifters who steal goods worth far less than that with burglary — a felony that can land someone in prison for up to 12 years and strip offenders of their voting rights.

On August 25, after reviewing a case in which a defendant was charged with burglary after she stole less than $100 in Wal-Mart property, the Tennessee Criminal Court of Appeals confirmed that such a charging scheme is “unreasonable, unjust, and violative of due process.”

In 2014, Danielle Chandria Jensen allegedly shoplifted items worth $72.17 from a Wal-Mart in Putnam County. Although she was initially charged with misdemeanor theft, misdemeanor assault, and misdemeanor trespass, the Putnam County District Attorney’s Office later dropped the trespass charge. At trial, Jensen’s jury could not reach a unanimous verdict and a mistrial was declared. Rather than drop the misdemeanor charges against Jensen, Assistant District Attorney Bret T. Gunn opted for a second trial one month later. He also decided to raise the stakes. A week before the retrial was scheduled to begin, the prosecutor added a third charge against Jensen: burglary, a felony offense.

Under Tennessee law, someone commits burglary if he or she “[e]nters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault.” Because it is a crime that has generally been understood to involve breaking into a closed business or home, burglary is widely viewed as a more serious offense than shoplifting — particularly shoplifting at a major retail chain that is open to the public 24-hours a day (like Wal-Mart).

Jensen’s attorney filed a motion before her retrial in an effort to have the case dismissed, arguing that the State was vindictively adding the felony charge “because [Jensen] chose to exercise her right to trial and defeated the State’s efforts to convict her.” Jensen’s attorney also questioned the propriety of adding new charges despite the facts of the case remaining the same.

In response, Gunn explained that following the mistrial, he was informed of another district attorney’s approach to prosecuting Wal-Mart shoplifters. Gunn claimed that during a prosecutor conference, an unnamed staff member from the Knox County District Attorney General’s office told him that their office charged repeat shoplifters for burglary instead of petty theft. Having learned after her original charges were filed that Jensen had previously been banned from Wal-Mart, Gunn decided to bring the more serious charge against her.

The trial court adamantly disagreed with Gunn’s handling of the case and dismissed the charges against Jensen. “A prosecuting attorney must act responsibly and use his authority and power to diligently seek justice. The resources of the Thirteenth District’s criminal justice system are not the prosecutor’s personal resources to be expended as he sees fit. Misdemeanor trials cannot be conducted as dress rehearsals for later felony trials,” the court said. “This case demonstrates poor investigation, poor charging choices, and poor presentation on the part of the State.”

The State unsuccessfully appealed the case. Judge Camille McMullen, writing for the unanimous three-judge panel for the Criminal Court of Appeals, upheld the trial court’s dismissal and sharply criticized the Putnam County District Attorney’s Office approach. “Historically, the crime of burglary served to protect people in their homes at night,” she wrote. “By charging individuals with burglary, a Class D felony, when they should only be prosecuted for misdemeanor theft or shoplifting, prosecutors are abusing their charging discretion by unilaterally and unreasonably expanding the reach of the burglary statute.”

Despite the forcefulness of the court’s ruling, this decision doesn’t appear to be enough to stop some other Tennessee prosecutors from bringing burglary charges in shoplifting cases. Indeed, as Knox County District Attorney General Charme Allen made clear, her office intends to keep charging repeat shoplifters with felony burglary.

“Citizens should be able to shop in Knox County without being exposed to chronic criminal activity,” one of Allen’s assistant prosecutors, Deputy Assistant District Attorney General Kyle Hixson, told the Knoxville News Sentinel. “These prosecutions have been a valuable tool as we seek to ensure that Knox County remains a safe place for businesses to operate.”

Whether the Knox County District Attorney’s Office’s approach will also be deemed a “unilateral and unreasonab[e] expan[sion]” of its otherwise broad powers remains to be seen.

Thanks to Jake Sussman.

Indiana law that allows law enforcement to seize vehicles of people not convicted of crime unconstitutional

Indiana law that allows law enforcement to seize vehicles of people not convicted of crime unconstitutional

An Indiana vehicle seizure law that allows police and prosecutors to seize vehicles before the owner has been convicted of a crime has been ruled unconstitutional.

Earlier this month, U.S. District Judge Jane Magnus-Stinson ruled that seizing vehicles before an official forfeiture action violated the Constitutional right to due process.

“The Court concludes that the statutory provisions allowing for the seizure and retention of vehicles without providing an opportunity for an individual to challenge the pre-forfeiture deprivation are unconstitutional,” Stinson said in her ruling.

Indiana’s vehicle seizure law allows law enforcement to hold a vehicle for six months. Should prosecutors decide to file a forfeiture claim during that time, the vehicle is held until the criminal case that led to the forfeiture concludes, which can be months or sometimes years.

The class-action suit was filed last year against the City of Indianapolis, the Indianapolis Metropolitan Police Department and the Office of Marion County Prosecutor Terry Curry. The office of Indiana Attorney General Curtis Hill represented the defendants in the case. The defendants have not said if they will appeal Magnus-Stinson’s ruling.

The lead plaintiff, Leroy Washington, had been arrested and charged with selling marijuana, obstruction of justice and and resisting arrest in September, 2016. His vehicle was seized even though the criminal case against him was still pending.

Plaintiffs requested that seized vehicles be returned if the owner had not been convicted of a crime.

Search and seizure reform has picked up steam in recent years, gaining support from both the political left and right.

Last year, a bill that would have allowed people to get their vehicles back while their cases were pending passed in the Indiana Senate but died in the House.

Earlier this year, the U.S. Supreme Court ruled in Nelson v. Colorado that states were required to return material that had been seized by the government if that person had their conviction overturned on appeal. Colorado law required refund claimants to prove that they were factually innocent of a crime before the seizure could be reversed, and the Supreme Court found that to be a violation of due process.

In Slate, Perry Grossman said the Colorado ruling gave the U.S. Supreme Court a chance to make a point. “Specifically, the majority likely wanted to take a strong and unified first step toward addressing the Due Process rights of a larger group: people whose property is seized without having ever been convicted of any crime,” Grossman wrote.

Reforming civil forfeiture laws also has wide support from the public. A 2014 Rasmussen poll found that 70 percent are opposed to seizing property when there has been no criminal conviction.

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Orange County DA retaliated against subordinate, new claim alleges

Office of the Orange County District Attorney

Orange County DA retaliated against subordinate, new claim alleges

Embattled Orange County District Attorney Tony Rackauckas has another scandal on his hands.

A veteran prosecutor, Karen Schatzle, has filed a claim against Rackauckas’ office after the district attorney allegedly retaliated against her when she chose to unsuccessfully run against an incumbent superior court judge. Schatzle is seeking $5 million in damages.

Schatzle claims she was ordered not to run against Superior Court Judge Scott Steiner in 2016 because Rackauckas had an “unwritten policy” discouraging his prosecutors from running against incumbent judges. Rackauckas ended up endorsing Steiner in that election over his own subordinate.

Schatzle’s claim states that “She was specifically told that DA Rackauckas did not want her to run for election against incumbent Judge Steiner, and, further, that her ‘career’ as a prosecutor would be damaged if she chose to run for judicial office against him.”

Steiner had been censured by the Commission on Judicial Performance for having sex with two different women in his chambers, asking prosecutors to give one of the women a job, and failing to recuse himself from a case involving a personal friend.

But that scandal wasn’t enough for Schatzle to prevail; she lost the election by almost 13 points. At one point during the race, Schatzle remarked that her decision to run was “career suicide.

Schatzle claims Rackauckas punished her by transferring her to the office furthest away from her home, giving her assignments that she was overqualified for, denying her multiple chances at promotions, and denying her requests for transfers.

Rackauckas released a statement in response, saying that Schatzle has the same job and responsibilities she had before running against Steiner.

“Since 2015, (Schatzle’s) work assignment has been `team leader’ in Branch Court Operations,” Rackauckas said. “During this time, she has maintained the same job title, same salary schedule and same job duties.”

As In Justice Today has previously reported, Rackauckas has drawn a challenger for his 2018 reelection bid in the wake of numerous scandals.

He recently declined to charge a police officer who shot an unarmed black teenager, despite the fact that it was the second time that the officer fatally shot an unarmed man.

Rackauckas generated national attention after a judge ordered his office removed from the death penalty prosecution of Scott Dekraai because of his office’s failure to turn over evidence. Earlier this month, the same judge said Dekraai could not be sentenced to death because of the actions of Rackauckas and his office.

Several investigators in his office also claim that the district attorney interfered in multiple investigations and engaged in cover ups when law enforcement broke the law. A January 2016, a special committee that Rackauckas himself set up concluded that there was a “failure of leadership” within his office.

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