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VOL. 132 | NO. 88 | Wednesday, May 3, 2017

Tennessee Supreme Court: End Hold Policy

By Bill Dries

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The Tennessee Supreme Court says Memphis Police should stop arresting people without probable cause on what is known as a “48-hour hold” in order to gather more evidence in investigations.


It is the second admonition from the court in three years and came Monday, May 1, as the court upheld the murder conviction and death penalty sentence for James Hawkins. A Shelby County Criminal Court jury convicted Hawkins of the February 2008 murder of Charlene Gaither.

Memphis Police continued to interrogate Hawkins after Hawkins said he didn’t want to talk to them anymore about Gaither’s disappearance. And as Gaither was being escorted out of the interview, he told an investigator that he didn’t know anything about Gaither’s murder but that he might have helped to cover it up.

The Supreme Court upheld the first-degree murder conviction and the jury’s decision to sentence him to death as part of the court’s mandatory review of death-penalty cases, ruling that it was a “harmless error beyond a reasonable doubt.”

Trial Judge Chris Craft ruled the hold was not a “seizure” of Gaither. The Supreme Court ruled it was.

The court agreed with the Tennessee Court of Criminal Appeals that Hawkins’ first statement that he might have been involved in a cover up was “sufficiently an act of free will to purge the primary taint.”

“Nevertheless, we take this opportunity to reiterate our earlier admonition that making arrests, without probable cause and using this 48-hour hold policy to gather additional evidence to justify the arrest would be unconstitutional and should be immediately discontinued,” reads a footnote in the Supreme Court opinion written by Justice Cornelia Clark.

The court’s prior admonition was in a 2014 opinion upholding the 2010 conviction of Courtney Bishop in another Memphis case on attempted robbery and first-degree murder charges.

The Memphis-Shelby Crime Commission criticized the practice, known as “On The Hook,” in 1999. Offense reports for those arrested under the policy bore a stamp with the letter “OTH” displayed prominently.

The issue isn’t holding someone for 48 hours, it is using that time in custody to gather evidence to make an arrest before the 48 hours is up.

Hawkins was convicted of stabbing and strangling his girlfriend in front of their 12-year-old child.

Police homicide detectives began focusing on Hawkins as a suspect in February 2008, two days after the body of Charlene Gaither was found in North Mississippi, with her head, hands and feet cut off.

Future Memphis Police Director Toney Armstrong, who was a homicide lieutenant at the time, ordered Hawkins taken to the Criminal Justice Center but not placed under arrest after he repeatedly called Hawkins to get Hawkins to come to the CJC to answer more questions.

Hawkins said he could not take time off from work. Armstrong had officers go to Hawkins’ workplace and they reported his car wasn’t there. Other police officers went to the apartment complex where Hawkins and Gaither lived with their children and stopped Hawkins in a car leaving the complex with the children in the car with him.

Armstrong ordered him taken into custody for questioning based on his behavior.

Separate police interviews with Hawkins and the children, with adult relatives present, turned up discrepancies and at a certain point Hawkins said he didn’t want to talk anymore.

“The investigators told him they still had more questions and needed clarification and continued to question him,” the court noted in its summary, adding that a police officer testified during the trial that “they would have taken the defendant home had he adamantly made the request, having had no reason to arrest him.”

Hawkins began talking to police at around 9 p.m. Feb. 15. By 3 a.m. the following morning, police were still questioning him and had an order from a judicial commissioner granting a 48-hour hold in jail. Hawkins was booked into the jail.

Later that same day, police investigators confronted Hawkins with evidence they found at his apartment and he was read his rights as a suspect. Hawkins denied any wrongdoing and police were returning him to the jail when he told an investigator “I didn’t do it, but I may have covered it up.”

Hawkins then blamed his 12-year-old daughter for the murder and dismemberment.

The child told police she had witnessed Hawkins and Gaither arguing when Hawkins killed her, and that as Hawkins dismembered her mother, Hawkins threatened her and made her hold her mother’s head. She also alleged that Hawkins repeatedly sexually abused her and that sex was what Hawkins and Gaither were arguing about at the time of the murder. The girl got pregnant before the murder and had a miscarriage, testifying later that Hawkins got her pregnant. DNA testing on the matter was inconclusive.

The Supreme Court ruling rejected Hawkins claim that the child was an accomplice.

“To the contrary, the evidence at trial established that (she) was yet another victim of Defendant’s control and domination,” the court ruled.

“By his own admission, the victim did not die immediately,” the opinion reads. “The motivation for the murder was to prevent the victim from reporting him to police for sexually abusing their daughter.

“The premeditated murder of the victim in the presence of her 12-year-old daughter and the subsequent mutilation of the victim’s body, again in the presence of the victim’s daughter and with (her) forced participation, makes this murder particularly horrific,” the court concluded.

Gaither had repeatedly told friends and family that she couldn’t get away from Hawkins in the months before her death. Hawkins reported her missing, saying she had simply left him and the children. Based on his conduct, the police officer who took the report filed a written missing persons report. The officer was reprimanded by a supervisor for filing the report.

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