Georgia Criminal Appellate Law Blog

Offering Insight and Commentary on Appellate Law and Criminal Trial Practice

The Economic Reason why Zero Tolerance Will Remain in Place at Public Schools

Posted in Opinions and Analysis

According to the American Bar Association Journal, public schools nationwide are backing down from entrenched zero-tolerance policies. While public school administrators may sincerely like to move toward a system where they can exercise discretion in the handling of serious disciplinary cases, I don’t foresee real change on the horizon because funding systems rewards expulsion of the students who get in serious trouble at public schools.

For all of the children I have represented before school tribunals, in appeals to local school boards and to the Georgia Board of Education, I recall receiving one inquiry in my career involving a serious disciplinary matter at a private school. Why is it that public schools have embraced zero tolerance and private schools seem to handle business in a more creative if not retention-oriented manner? My untested hypothesis is that it comes down to incentives.

I have long been a fan of Charlie Munger. In a lecture back in 1995, he spoke about the power of incentives in human misjudgment.  He cites as an example a time when Federal Express employees were paid by the hour. Nothing that the company worked to get packages through night facilities in a timely manner. Then FedEx changed its policy to one where employees were paid per shift. Immediately, the packages were processed in a more efficient manner.

So, here is likely why public schools are very much in the zero tolerance camp. Private schools have an incentive to do everything they can to keep students enrolled. After all, the student, or rather the student’s parents, are the customer. Student retention is customer retention. There is a high cost involved in converting a potential student into an enrolled student, and this cost is much greater in the middle of an academic year when new pupil enrollment is less likely. If a student were expelled from a private school halfway through the year, with expulsion comes the possibility that a tuition payment will no longer be coming to the school. Also, if it is a private school that serves kindergarten through 12th grade, the lost tuition from that student is whatever that student is being charged for tuition multiplied by the number of years he has remaining in primary or secondary education (with an assumption that tuition rates will rise over that time). The school has financial reasons to retain the student and find a creative solution to a disciplinary situation.

By contrast, a public school students is not a customer. A public school student is an expense — a metaphorical line item on the expense side of a budget. Public schools are allotted a set number of dollars at the beginning of the budgetary year. And that budget is set. The reduction in the number of pupils by the number of people who get in serious disciplinary situations is a cost savings. There are many places in the disciplinary process for incentives to play out. The principal takes on the role of prosecutor in the tribunal hearing. The role of judge is played by a disciplinary hearing officer or tribunal panel. However all of these individuals receive salaries from the same school board. They all work for the same agency. Presumably, each player in the tribunal process has a shared financial incentive to drop the student from the roll. 

I have been in tribunals, however, where the incentives worked differently, and I’ve come out ahead.  For instance, if the student has a good academic track record and tests well, she is likely to test well on future standardized tests. If the student will be tested again, and the test result comprises part of a performance metric for the school, then there is an incentive to keep the student in the data pool.

If the student is a star athlete or does something else that brings the school positive attention, then there may also be an incentive to keep the student around. If the student helps an athletic team perform well, the student’s continued enrollment may have in impact on ticket sales, concession sales, the ability to attract better coaches, etc.

A student who tests poorly, who is average in terms of extracurriculars, or who has an aptitude in something that makes little difference to the school’s image (say, a moderately above average member of the chess team), is fairly low on the asset side of the equation and fairly high in the liability column. This student likely has a losing tribunal ahead of him. Bring in all the pastors, karate teachers, aunts and uncles you want, the mitigation may not be the kind of mitigation that matters.

Students who are likely to drive the school’s overall standardized test results down may be better off, from the school’s perspective, out of the data pool. And a student who requires extra resources, such as special education services, is even more of a liability. Such a student would be well advised to mind her p’s and q’s

When looking at zero tolerance policies and why they exist in the public school setting, the reason may not be that administrators are myopic. It may well be that they are operating under a set of incentives either at the conscious and subconscious level.

If school boards or legislators are interested in putting an end to zero tolerance policies, then perhaps a reform might be for the State to fund a centralized school tribunal office or administer tribunal hearings through the Office of Administrative hearings. Or perhaps the neighboring school district could supply tribunal hearing officers. Of course, in that situation there could be an incentive to keep marginal students enrolled to the extent that the neighboring school district is competing in the athletic arena or for scarce resources that are rewarded through the result of test scores.

Mandatory Body Cameras on Law Enforcement: Just More of the Same

Posted in News

USA Today reports that a petition was submitted to the Obama administration advocating a policy that would require law enforcement to be equipped with a camera to record any interaction with the public. I suppose it would be something akin to a mandatory Google glass at all times for law enforcement. That sounds awfully good on paper. Certainly, the technology exists for law enforcement to audiotape if not video just about everything. However, such policy would not be a cure-all that it would sound like. Law enforcement already have the ability to record any conversation that takes place with a suspect or witness. Anybody with a phone, particularly a smart phone, has the ability to record a conversation practically any time. And many police cars are equipped with a camera that a police officer can manually initiate or which can initiate within seconds of the activation of emergency lights. Most police cars come equipped with a video camera to record interactions with the public after a traffic stop. The backseat of most police cars has recording equipment, and most police officers are equipped with the body might to record any interaction with the public.

And yet, I still encounter situations where law enforcement did not, for one reason or another, record what is reported to be an incriminating interrogation or, in the traffic stop situation, egregious driving behavior. In those situations, the police officer explains that he found himself somehow without the ability to record an event. Or the camera was out for repair. And when the recording equipment was not working so well, law enforcement agents report that my clients really began to incriminate themselves. It strains credulity to believe that there are so many mishaps with recording equipment in criminal investigations. But there it is.

And most of the judges before whom I appear are willing to believe this reported series of unfortunate events with law enforcement and recording technology. So for all of those proponents of body cameras, I offer countless examples from my own practice where the technology was in place but ceased to work somehow at the moment when it was needed the most.

Places to Eat and See on Prison Visits in Georgia

Posted in State Habeas Corpus

Part of the job I love the most is travel. I don’t mean exotic glamour travel. When I say travel, I’m talking about prison visits. And when I talk about prison visits, I’m talking about South Georgia (and sometimes Northwest Georgia). When I come back to the office, I can’t help but tell people about the restaurants and little oddities along the way. Those stories either earn me stares or the occasional interested exclamation of, “Tell me more. I’ll definitely check that place out if I ever find myself taking I-75 to Macon, then taking I-16 for 60 miles, exiting, driving on a two-lane road for an hour and a half, and I need a great lunch spot in a place that isn’t on the way to any place in particular.”

It has been suggested that I write a guidebook for habeas corpus attorneys for the best places to eat near Georgia prisons. Of course, I’m not sure that a publisher would agree to take on a book with an audience of about three people. That said, I do have some favorites. And maybe I can begin the first draft of that book here.

The Drug Store. Hands down, the very best prison visit food ever can be found at The Drug Store in downtown Reidsville, Georgia. That is actually the name of the drug store. It has an old school diner in the back. After a morning spent slugging it out with the Atty. Gen. or going through security, The Drug Store is a good way to return to the outside. The front of the place sells all of the things that women might give each other a bridal showers. There is lots of upscale University of Georgia merchandise, different bags and gifts, and other sundry that one might expect to find in a small town drugstore. But in the back at the grill you will find the best burger that you will find anywhere. The burgers there are absolutely huge. Note, do not go to the drugstore if you have to go back to court for further habeas corpus proceedings in the afternoon. You will fall asleep.

Zunzi’s. If you are lucky enough to have a client house at Coastal State Prison in Savannah, Georgia, then it is worth the trip on into town for lunch here. This place doesn’t look like much, but it sells pretty fantastic African food delivered to you in a Styrofoam box. Don’t miss the African Sweet Tea. This place is favored by Savannah College of Art and Design students and one hungry appellate and post-conviction lawyer. It is well worth the few extra miles down Interstate 16.

Paradise Garden. Now, to the other side of the state. This is not a restaurant recommendation as much as it is something to see. If you go to Hays State Prison, then you must go see the previous home and now Art Museum associated with primitive artist, Howard Finster. Weird and old time religious at the same time and utterly cool.

Yoder’s. This is a can’t miss restaurant for a visit to Macon State Prison in Oglethorpe/Montezuma, Georgia. It is a Mennonite restaurant serving up fine repast. Try to get there before the buses hauling elderly Baptist groups arrive. Even if you do, get in line. It’s worth the wait. Great grub, low prices, and a sincere waitstaff in period costume.

Cracker Barrel and Subway. I don’t love it, but if your prison visit doesn’t yield a great stop like some of the ones listed above, then you will end up at a Subway or Cracker Barrel. Either that or you will end up at that ubiquitous stable of small-town breakfast, lunch, dinner, snacks that is the downtown Dairy Queen. If you’ve really taken a drubbing from the Atty. Gen., a dipped cone on your way back north up interstate I 16 can make things seem somehow better. Two bites into this chocolate and vanilla goodness, and you’ll be saying to yourself, “that wasn’t so bad. After all, the judge didn’t say no. He wants to read a brief, and I just know I can turn him around with that brief.”

There are other haunts that I love on prison visits and habeas corpus trips. Perhaps I will post others on a slow blog day. But these are my absolute top. Feel free to post any suggestions you have for prison visit gems.

 

An Initial Problem about Initials

Posted in Writing

A lawyer wrote me yesterday with an interesting question. The lawyer is writing a Brief of Appellant where the client was convicted of child molestation. The lawyer’s question was whether it was proper to use the victim’s name in the Brief. Are there any rules or traditions that govern the use of the victim’s name?

Of course, how you label or name people is an important strategic consideration no matter what the age of your prosecuting witness. It is also a strategic consideration when you are referencing the judge in the lower court, the prosecutor, witnesses and other components of your appellate cast of characters. The government thinks about this stuff, also. It’s why your client is called “the defendant” before the lower court and the “appellant” in the Court of Appeals. It’s why you call the person that the State calls “the victim” the “complaining witness” or the “prosecuting witness.”

Most of the time, the trial court is the “court below.” A few years ago, the judge in “the court below” had been removed from office by the JQC, the agency that governs judicial ethics. The whole matter became a public spectacle. By the time that case reached the appellate courts, the lower court was changed to the judge’s name, a name I used throughout the brief. Sometimes, my opponent is the “appellee,” sometimes my opponent is “the State” or “the Government.” Recently, in a case where a DA had met a similar fate to the judge in the JQC matter, the State had a name, too.

When it comes to minors, it’s generally best to be classy and respectful. My default is to use initials. Although how you reference the minor is really a matter of preference as long as the name of the witness is listed in the indictment and is referenced in the transcript. The cat is already out of the bag, so to speak. If the complaining witness is a very young child, and the issue is that she was victimized by folks who influenced her memory and testimony for their own ends, then initials are the way to go. In that instance, perhaps the word “victim” is okay, too. She was victimized by those who twisted her words or memory to lie about  your client. If the complaining witness is older, perhaps a teen, and your defense is that she has fabricated a story for some selfish reason, then perhaps it would be okay to use the name. If you want to emphasize maturity and sophistication, then Ms. Jones or Ms. Smith is the way to go. A “Ms.” sounds older than a first name, after all, and much older than a Miss. But even then, I’d use the same sparingly and for those witnesses with the most serious of palpable credibility problems.

There’s no real rule here. What do you do in these situations? Would love to see some comments in this regard.

The Tyrannical Weight of Tradition in the Law

Posted in News

Cory Doctorow has a post up at Boing Boing about a copyright dispute (of sorts) between the Harvard Law Review and Carl Malamud. Parker Higgins and Sarah Jeong have written a commentary on the whole mess, calling out the Harvard Law Review as a copyright troll:

Of course, far be it from us to call the Harv. L. Rev. a repulsive troll squatting on a small but nonetheless key component of equal access to the law, profiting off a slavish attentiveness to convention instilled in lawyers during law school, much to the detriment of the public. Far be it from us indeed.

Carl Malamud is known for is work to help make the law and essential public documents available to the public. The Harvard Law Review’s lawyer wrote him a cease and desist letter when he posted an HTML version of the Bluebook on his website. Who knew that what is in some courts and in all law reviews a mandatory system of citation in the law was subject to copyright? Should a portion of filing fees in legal pleadings go to the Harvard Law Review? And if Malamud is infringing on copyright in his efforts, what about every law librarian, law professor or CLE speaker who puts together handouts or powerpoint slides to help students and practitioners figure out this Byzantine complex system of citation? In fact, why are we even using the Bluebook in this day and age?

If there is an industry or profession that is less innovative than the law, I am not sure what it is — perhaps primitive Baptists. Ponder these points:

  • Our whole system of citation to case law is antiquated. For the uninitiated, when lawyers or courts cite to a case in the form of, let’s say Strickland v. Washington, 466 U.S. 668 (1984), they are referring to a book’s volume and page number. To what book are they referring? They are referring to an official dead tree compilation of cases (here, volume 466) and a page number (here page 668). Where might one find these books? Today, virtually nowhere. There may have been a time when many law firms kept a complete set of these volumes in a law library. But now you would be hard pressed to find a law firm with these books. And even in large law firms that may have them, they are probably gathering dust until some crusty partner insists on picking one up. If you see these volumes at all in a law firm, they are there for decoration along with those handsome leather-bound and overpriced case books (themselves antiquated) they sold you in law school. They look quite handsome next to the brass globe and the bankers lamp. Yet, our entire system of citation works by reference to books that neither the writer of the brief nor the reader of the brief owns any longer. And it’s a pain. if you pinpoint cite to a page number within a case, you have to look in the online copy or the printout of the case to find the anachronistic page number to reference it. And the judge who reads your brief and wants to find the page number himself will not look to a page number in the case but will have to go on a similar needle in a haystack search for the page number in his printout because he will likely not have the book in front of hims since he doesn’t own a copy. Surely, there’s a better way.
  • Even though Georgia’s appellate courts allow you to efile your briefs, they actually charge you a higher filing fee to file online than they do if you file the brief in person the old fashioned way. Though surely efiled briefs are easier for the court to handle.
  • Speaking of efiling, Georgia has over 150 counties, each with their own “traditions” for what you do when you file papers. There’s no uniform system that would allow for efiling such as exists in the federal system. A bill to move toward that came crashing down from clerks of court who opposed it. So, if you are a lawyer in Savannah and a client comes to you on an emergency matter with something that needs to be filed in Atlanta, you better have someone available who can drive it up there or you better have a day to get the filing sent by FedEx, or you can’t help that person.
  • Even the experience of finding case information on the docket varies by county. Want information about a case on the docket in Cobb or DeKalb County? You’re in luck. You can go to their online docket and see an index of filings. In some counties, though, you will find yourself driving to the clerk’s office and literally opening a huge leather-bound book and looking up a party name in an antiquated hand-written index. In some, you’ll be looking at a dot-matrix printout that’s held together in a circa 1980s book report cover.
Why are we still doing court like this? Why are we still preparing briefs like this? Why are the proceedings in court taken down by a scribe still? The issue between the Harvard Law Review and Carl Malamud is an example of a bigger issue of the weight of tradition in the law and how frustrating it is.

 

Rhetoric Aside, Most Inmates Have Cell Phones

Posted in Uncategorized

Over at Grits for Breakfast, is a post discussing that, while cell phones are rampant in Texas prisons, there are few prosecutions. The writer references a comprehensive story about the number of cell phones seized in Texas versus few actual prosecutions for those offenses. The Texas Tribune reports:

Prison officials said one challenge was linking the smuggled phones to prisoners or correctional officers for prosecution, because the devices were secreted away in spots that were hard to find, or found in common areas. And it falls to prosecutors in the rural, cash-strapped regions where prisons are typically located to decide whether to spend resources on criminals who are already in prison or on local law enforcement officers. Critics say that without serious consequences, there is little to stanch the flow of illicit cellphones — and the cash that goes with them — into Texas prisons.

“Phones can be hard to find, and there’s a lot of money in introducing contraband,” said Terry Pelz, a prison consultant and former warden who advocates tougher punishments for guards caught with contraband.

The same could be said about Georgia. Most Georgia prisons are located in rural areas. There are bigger things to prosecute. And there’s every reason for corrections officers not to aggressively deal with cell phone possession. First, corrections officers are not paid very well. Inmates and families can offer them extra money (generally in the form of a pre-paid debit card) to either turn a blind eye to cell phones or to actively participate in snuggling them into the facility. Inmates may also be more easy to manage if they have cellphones. There is little incentive to crack down on cel phone possession. Though Georgia DOC official press releases say otherwise.

Lawyers who do post-conviction work are going to get calls from prisoners on cell phones. And it creates something of a catch-22. There is little to no expectation of privacy on a prison cell phone. There is no assurance that the call isn’t being recorded or monitored by an opportunistic future jailhouse informant. There is also no real assurance that the person on the other line actually is the client unless there is a pre-arranged attorney-client call through the prison. And yet, there’s probably another lawyer, a competitor for instance, who is perfectly willing to take cell phone calls from inside.

Harvard Medical Professor would Take Firing Squad over Lethal Injection

Posted in News, Uncategorized

A professor of anesthesia at Harvard Medical School told the Washington Post that “Given these recurring problems with lethal injections, if I had to be executed, I would choose a firing squad.” That article and one in the ABA Journal details the problems with supply of lethal injection drugs throughout the nation.

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Congrats to Jeff Davis, Champion of Judicial Ethics

Posted in News

Jeff Davis has been appointed as the new Executive Director of the State Bar of Georgia. Before that, he was the Director of the Georgia JQC, the agency that governs ethics and Georgia judges.

Georgia lawyers and citizens should be proud. I don't know much about the JQC from before Mr. Davis was its director, but I know for a fact that the JQC had some teeth while he was in charge. In the last five or so years, the JQC has made the judiciary a better place. In fact, I would credit the JQC with bringing several judicial circuits not only into the 21st century but out of the 19th.

Under his leadership, many judges are gone who needed to go. And at approximately the same time that Mr. Davis's new job was being announced, the JQC was being recognized with a First Amendment Award for its work in ensuring that courtrooms were made more open to the public.

Congratulations to Jeff Davis. If you see him, thank him for his public service.

Governor Hands Private Probation Companies a Rare Legislative Loss

Posted in Legislation, News

Governor Deal has vetoed House Bill 837, legislation that would have limited disclosure about private probation companies from open records requests. The Peach Pundit provides exclusive coverage on the veto in an article describing all of yesterday’s vetoes and in a specific post addressing HB 837. Greg Bluestein has also covered the veto.

Why is this veto such a big deal? Many, if not most, state probationers who are serving misdemeanor sentences are supervised by private probation companies. Who are the folks most likely to end up on misdemeanor probation? Generally, that list would include persons convicted of possessing less than an ounce of marijuana, driving on a suspended license, DUI, theft, or family violence battery. But that list also includes the poor who get a speeding ticket or other low-level misdemeanor and who cannot afford to pay their fine on the day of court. These individuals are often put on probation until they pay off their fine. And this list includes people who were represented by the public defender (often a private law firm with a contract with the county to represent the indigent) who, upon conviction find that, poor or not, the lawyer wasn’t really free. When these defendants cannot afford to reimburse their public defender for his services (and the meter has been running the whole time) or pay the fine, the court’s “finance plan” includes being supervised on probation until these expenses are paid off. When the defendant needs a long time to pay off the debt to the State, time on probation increases dramatically. For instance, in a multi-count accusation, the defendant may take on consecutive 12-month sentences. For instance, defendants convicted of DUI were often stopped for speeding first. Such defendants are eligible for 24 months of probation. Continue Reading

New ABA Guidelines on Monitoring Jurors Via Social Media

Posted in Motion for New Trial, Opinions and Analysis

The American Bar Association has released a formal ethics opinion regarding how far attorneys may go in monitoring social media postings of jurors.

Attorneys or their representatives may monitor any activity that is publicly available, but they may not “friend” a juror in an effort to monitor their private social media postings. Nor may attorneys use a third person to friend jurors.

Further, when lawyers find evidence of juror misconduct, there are certain times when the lawyer must report it to the Court and other times when he is not:

The final question the new ABA ethics opinion addresses is what a lawyer should do if he discovers misconduct by a juror during his Internet review. “Jurors have discussed trial issues on ESM [electronic social media], solicited access to witnesses and litigants on ESM, not revealed relevant ESM connections during jury selection, and conducted personal research on the trial issues using the Internet,” the opinion notes.
Under Rule 3.3(b), a lawyer has an obligation to inform the court when the juror’s conduct is fraudulent or criminal. But if the lawyer learns of juror conduct that violates court instructions to the jury but does not rise to the level of criminal or fraudulent conduct, it is not clear if he is obligated to inform the court, the opinion says. For example, “innocuous postings” about jury service, such as the food served at lunch, may violate the jury instructions but fall short of criminal contempt.

If, by virtue of monitoring the juror’s social media postings, the juror is alerted, the lawyer has not contacted the juror. Rather, the social media service provider has initiated the contact.
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