Rochelle Gelpin and her daughter Shay stand in the spot at their Hixson apartment complex where in 2016 Mrs. Gelpin was arrested without probable cause and charged with disorderly conduct. A grand jury dismissed the case. The window of opportunity for Mrs. Gelpin to sue the Chattanooga cop closed after one year after she failed to assert her rights and her claim to injury from false arrest and perjury. (Photo David Tulis)
An area of judicial reform in Tennessee is the adequacy of charging instruments. No one should face a criminal charge without there being particular reference to the statutes given.
Police in Chattanooga regularly file criminal charges absent citations of statute.
Another missing element in virtually every criminal charge filed in Hamilton County and the other 94 counties in the state is that of intent.
The mens rea, or guilty mind, statute in Tennessee requires that intent be alleged in every charge and in every element of a charge. “A person commits an offense who acts intentionally, knowingly, recklessly or with criminal negligence, as the definition of the offense requires, with respect to each element of the offense.” Tenn. Code Ann. § 39-11-301(a)(1).
The police citation of Diana Watt in her July 7, 2018, commercial transportation arrest fails to cite the statute under which she is being charged. She has no idea what the charges are and where to find them in the Tennessee code annotated. There is also no allegation in the officer’s narrative that she intentionally and with guilty mind transgressed the eight laws under which she was initially charged.
‘Essential elements’ must be stated
It is routine for attorneys and members of local bar associations to overlook grievous faults with state-originating criminal claims against members of the public and the citizenry. The federal courts tell what is expected of indictments and charging instruments.
“No essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment, or implication, and the charge must be made directly and not inferentially, or by way of recital.” United States V. Hess., 124 U.S. 483, 8 S. Ct. 571.
It is elementary that every ingredient of the crime must be charged in the bill, a general reference to the provisions of the statute being insufficient. The Schooner Hoppet & Cargo v. United States, 7 Cranch, 389, 3 L.Ed. 380; Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419; United States v. Standard Brewery, 251 U.S. 210, 40 S.Ct. 139; 64 L.Ed. 229. And “if the negation of an exception in the enacting clause of a statute is essential to accurately describe the offense, then the accusations of the indictment must show that the accused is not within the exception.” Weare v. United States (C.C.A. 8th) 1 F.(2d) 617, 620; United States v. Cook, 17 Wall. 168, 174, 21 L.Ed. 538; Ledbetter v. United States, 170 U.S. 606, 611, 18 S.Ct. 774, 42 L.Ed. 1162; 31 C.J. 720.
A citation “is not sufficient to set forth the offence in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished *** . ” United States v. Carll, 105 U.S. 611, 612.
David Tulis is live on the air weekdays 7 a.m. to 11 a.m. on NoogaRadio 96.9 FM and other NoogaRadio Network stations, covering local economy and free markets in Chattanooga and beyond. Nothing here is legal advice; if you want legal advice, find a law firm downtown or on another planet — where the law actually matters.
