Knox County Assistant District Attorney General TaKisha Fitzgerald during her opening remarks in the trial for Frank Gary Cooper, charged with first-degree murder in 2008 death of Selma Avenue great-grandmother Nola Atkins. Knox County Criminal Court Division 3 Judge Mary Beth Leibowitz is presiding Monday, Jan. 13, 2014. (MICHAEL PATRICK/NEWS SENTINEL)

SHARE Knox County Assistant District Attorney Phil Morton, left, and defense attorney T. Scott Jones, center, argue over evidence during a hearing for Christopher Drone Bassett Jr., seated bottom right, in Knox County Sessions Court Thursday, Feb. 25, 2016. (MICHAEL PATRICK/NEWS SENTINEL) Defense attorney Wesley D. Stone delivers his closing arguments Wednesday afternoon. Paul Jerome Johnson Jr., stands trial in Knox County Criminal Court before Judge Richard Baumgartner on felony murder charges in the July 2008 death of Joseph 'Jo-Jo' De'Jon Manning Jr. At one time the mother of the baby Aja McBayne was accused of the murder. The case is being prosecuted by Assistant District Attorney General Steven Sword and Ken Irvine. Wesley D. Stone is defending Johbnson with the help of an investigator Michael J. Cohan. (J. MILES CARY/NEWS SENTINEL) Defense attorney John M. Boucher representing Destiny Hurst delivers his closing arguments. Closing arguments were presented Thursday February 16, 2012, in the trial of Robert Wayne Hurst, and his wife Destiny Hurst accused of the September 2009 murder of Jim Mullins inside Mullins' discount store on Rutledge Pike in East Knox County. (J. MILES CARY/NEWS SENTINEL ) Related Coverage Ruling on gang law isn't stopping Knox prosecutions

By Jamie Satterfield of the Knoxville News Sentinel

At least 60 cases have been prosecuted in Knox County under a Tennessee law — struck down this week as unconstitutional — allowing harsher penalties for crime-committing gang members, officials said Friday.

Kyle Hixson, deputy to Knox County District Attorney General Charme Allen, said Friday the gang enhancement statute now deemed bad law has been used to boost penalties in at least 60 cases and used as a bargaining chip in the plea negotiations process in even more. He did not have an exact number Friday, just one day after the Tennessee Court of Criminal Appeals struck down the 2012 law.

Attorneys interviewed by the News Sentinel on Friday agreed the decision, if allowed to stand, would lead to new sentencing hearings for defendants whose penalties were enhanced by the law and whose cases are winding their way through the appeal process. It also could lead to new hearings for defendants whose appeals have run out under what's known as post-conviction relief.

PDF: Tennessee Court of Criminal Appeals decision

Jonathan Harwell, the appellate attorney for Knox County Public Defender Mark Stephens, said those who could wind up with no relief are defendants who opted to take plea deals simply because of the threat of the use of the gang enhancement statute.

"This has acted as a club or a threat, and that has affected a lot of plea negotiations in the past," Harwell said. "My guess is those people are not going to be able to benefit from it at all."

The potential impact of the ruling statewide was not immediately known. The Administrative Office of the Courts was trying to gather numbers at the newspaper's request Friday afternoon. But all of the state's other major cities — Chattanooga, Nashville and Memphis — also routinely make use of the law in prosecutions of gang members, so the fallout could include hundreds of cases.

Using a Knox County case as a backdrop, the appellate court ruled in an opinion released Thursday the state's gang enhancement law is so broad it allows gang members to suffer extra punishment for crimes that had nothing to do with the gang or gang activity and the misdeeds of other gang members in which they weren't even involved.

The court noted the law pushed by prosecutors and police was passed with good intent — to seek to quell gang violence — but was crafted so poorly it could apply to a member of a college fraternity. Like street gangs, fraternities use color schemes and symbols to show affiliation, and its members sometimes commit crimes that meet the law's overly broad definition of "gang-related crime," the court stated. The law defines "gang-related crime" as any offense in which a person either hurts or kills someone or threatens to hurt or kill someone while committing a crime. Hazing, the court noted, could qualify.

"It simply cannot be maintained that a statute ostensibly intended to deter gang-related criminal conduct through enhanced sentencing is reasonably related to that purpose where the statute in question is completely devoid of language requiring that the underlying offense be somehow gang-related before the sentencing enhancement is applied," the opinion stated.

Attorney Stephen Ross Johnson, who has served as president of both the Tennessee Association for Criminal Defense Lawyers and the National Association for Criminal Defense Lawyers, said the two organizations had been preparing a joint brief in support of striking down the law when the opinion was released. He said the court's ruling was sound in the groups' view.

"(The appellate court's) finding at the end of the day is this is just a fundamentally unfair penalty provision," he said.

Hixson said Allen's office "respects the court's opinion, although we certainly hoped for a different outcome.

"The criminal gang enhancement statute has been a valuable tool."

The Tennessee Attorney General's Office, which handles appeals for state prosecutors, can ask the Tennessee Supreme Court to review the ruling, though the high court is under no obligation to do so. Harlow B. Sumerford, spokesman for that office, said a decision has not been made. The office has 60 days to file for the review.

In its Thursday ruling, the Court of Criminal Appeals said Tennessee largely stands alone in the nation for punishing criminals simply for being in a gang. Gang membership, even a criminal one like the mob, is not illegal in the United States. Florida enacted a similar law, but the Florida Supreme Court struck it down in 1999 for the same reasons now being cited by the Tennessee appellate court.

"Nearly all gang enhancement statutes in this country contain specific language limiting the reach of those statutes only to offenses that possess a nexus to a defendant's gang affiliation, and therefore, a defendant's own criminal conduct," Appellate Judge Timothy Easter wrote.

Ironically, the Knox County case that laid the foundation for the ruling involved gang violence.

Jonathan Dyer was a teenage member of the Five Deuce Hoover Crips street gang in May 2012 when fellow gang members Devonte Bonds, Thomas Bishop and Jason Sullivan paid a visit to his home in the Arbor Place Apartments on Townview Drive, according to the appellate opinion.

Dyer, according to the opinion, failed to put money into the jail commissary account of another gang member who insisted he was Dyer's "big homie," or handler. Dyer insisted the jailed Five Deuce Hoover Crip was not, in fact, his "big homie" so he refused to contribute to the commissary account. Bonds, Bishop and Sullivan believed otherwise and decided Dyer would be kicked out of the gang via a formal ceremony known in gang parlance as a "beat out," similar to the "beat in" gang initiation rite of passage. In both instances, fellow gang members beat their compadre for a set amount of time, usually two to 10 minutes.

Dyer was beaten so badly he was in a coma for nine days. Bonds, Bishop and Sullivan were convicted in a trial before Knox County Criminal Court Judge Bob McGee of attempted second-degree murder and aggravated assault for the beating. Prosecutors TaKisha Fitzgerald and Phil Morton, who head up DA Allen's gang unit, used the gang enhancement law to boost the trio's penalty ranges.

Bonds wound up with a 23-year sentence while Bishop and Sullivan, both of whom have much more extensive criminal records, received sentences of 37 years and 40 years, respectively.

Attorney John Boucher Jr., representing Bonds, Wesley Stone and Timothy Jones for Bishop, and Sullivan's attorney, Les Jeffress, appealed. Among the issues they raised was an attack on the constitutionality of the gang enhancement law.

The appellate court left the convictions intact, opining there was ample proof to support them. But the court said the sentences boosted through the gang enhancement statute could not stand since the law was constitutionally flawed — even though the trio's crimes fit the intended purpose of the statute. Good facts, the court held, don't negate bad law.

"Although we sympathize with the state's argument because it is amply apparent that the underlying offenses in this case were gang-related, we refuse to read a nexus requirement into the statute to eliminate its constitutional shortcomings," the opinion stated. "We respect the General Assembly's efforts to combat the scourge of criminal gang activity in our state, but it is not within our authority to rewrite this statute."