Georgia Criminal Appellate Law Blog

Offering Insight and Commentary on Appellate Law and Criminal Trial Practice

Roderick K. Bridges, God’s Choice for State Court

Posted in News
Roderick Bridges. Handout Photo 3-4-2016

Roderick Bridges. Handout Photo 3-4-2016

Under Article Six, Section Three of the United States Constitution, “no religious test shall ever be required as a qualification to any office or public trust under the United States.” The Religious Tests Clause made good sense when it was passed. The Framers had in mind various Test Acts that were a part of British and colonial political life, whose purpose was to exclude from office anyone not a member of the Anglican Church. The required oaths meant that government officials had to swear that the monarch of England was the head of the church. In Silverman v. Campbell, 486 S.E.2d 1 (1997), the South Carolina Supreme Court held that a provision in the South Carolina Constitution providing that “[n]o person who denies the existence of a Supreme Being shall hold office under this Constitution,” was not enforceable.

This all makes good sense. It should not matter if a State Court Judge is a Druid, a Jew, an atheist, or a Christian. A judge should apply the law to the facts and reach a decision as dictated by the Constitution and various statutes. I thought this was all settled back in the eighteenth century when Charles Pinckney, from South Carolina (South Carolina!) proposed the Religious Tests Clause at the Constitutional Convention. Well, yes and no.

It is perfectly legal for judicial candidates to use religion to pander to their heart’s content, even if that campaign technique violates the spirit, if not the letter, of the religious tests clause.

In a DeKalb County Judicial Election,Roderick Bridges is making much of the fact that he is a Christian while the incumbent, Judge Dax Lopez, is a Jew. Mr. Bridges is taking some heat for this campaign’s tactic (from those liberal media elite media sources I peruse). Of course, Mr. Bridges is perhaps uniquely entitled to use religion in his campaign, since according to his website, he actually has the endorsement of “Jesus Christ, Lord and Savior”.

In some sense, there might be some value in having more judges like Roderick Bridges. As an advocate who sometimes is pressed into making an argument with little support in precedent, it might be good to preface my argument, with “Your Honor, let me bless you with an argument that the Lord has laid upon my heart.” Never mind the what the Supreme Court says, how could a judge endorsed by God possibly reject an argument that was dictated by his most powerful backer? Surely, no person would claim that God had authored something that that person actually thought up — not to win a case or something like an election.

In this election year, in this State, I am not at all shocked that such a campaign tactic is being used. I am actually astounded that it doesn’t happen more. The problem with this particular tactic is that Mr. Bridges has tried it in a county where many of the voters read. If he brings me on as a campaign advisor, I could direct him to a handful of counties where he can use his brochures as part of a pathway to a successful campaign. And I can give him my list of Facebook friends I have unfollowed to elicit campaign contributions.

Much Belated Thoughts on Changes to Georgia’s JQC

Posted in News

I meant to write a post on this topic at the end of the legislative session. Very late in the game, the Georgia General Assembly radically changed Georgia’s Judicial Qualifications Commission, the ethics watchdog agency for Georgia judges. Shortly after these changes were made, the head of the JQC very publicly resigned.

I have mixed feelings about the changes. And, full disclosure, I was amicus counsel on a fairly public JQC matter last summer. At times, the JQC acted a bit heavy-handed in they way they dealt with some judges. And, as I’ve commented here in the past, the agency had a certain Star Chamber quality to it.

However, they did fine work over the years. And, as a result of their stronger years, there are whole circuits that are not only more pleasant places to be, the Georgia bench as a whole seems somehow more advanced than it was when I first started practicing. I hope that we are not returning to what the bench was like back in the early 2000’s.

And I wish that the solution had been something other than gutting it and politicizing its process. Ideally, its work would have been done more in the open. It remains to be seen where the JQC is headed. But I don’t think that matters look good.

Removing the Stigma When You’ve Done Your Time

Posted in News, State Habeas Corpus

Last week, I was able to help a young man stay in the country rather than be deported to a land where he has few ties. The young man is officially a citizen of a foreign country. But he is practically an American, having grown up in Georgia and with all of his family here. Several months ago, he was stopped in a small Georgia town by a local police officer. The officer found marijuana in his car. And my client was charged with a felony. He hired a lawyer who incorrectly advised him that he could enter a plea under Georgia’s First Offender Act and he would not be deported. The advice was wrong. And when my client hired me, he was one roadblock or stop sign violation away from detention and deportation. I filed a habeas corpus petition and began a series of meetings with the prosecutor. The habeas was granted and we ultimately arrived at a disposition that will likely work for him, according to his immigration lawyer.

This case is a reminder of what it means to be convicted of a crime. These cases are about far more than repaying your debt to society. A criminal conviction is a debt on which many default. In today’s New York Times, there is an editorial that discusses labels and the harm they do to citizens who have been convicted of crimes. Labels like “felon” or “ex-con” last long after the sentence is complete. And the potential collateral consequences of a conviction, even for some misdemeanors, is staggering.

In my case, it took my efforts, the help of an immigration lawyer,  a reasonable prosecutor, and a merciful judge to bLunt the impact on a young man and his family of a youthful mistake.

Yo Gotti: Making the Henry County Judiciary Famous

Posted in News

Rapper, YoGotti, recently released a video shot in a Henry County, Georgia, courtroom and throughout the courthouse. Henry County government officials are not amused. An official is on the record saying that the video, featuring a small claims lawsuit involving a hair weave that went up in flames, does not accurately represent “Henry County values.” Never in the history of statements have I ever wanted to hear a speaker unpack a statement more than this one. How so, Henry County official?

Yo Gotti did capture accurately the racial composition of a Henry County trial jury though. Well done, Yo Gotti. Well done!

How Not to Solicit Campaign Contributions

Posted in News

I’m all for democracy, but election season is not fun for lawyers. This year, unlike any other, I  have been spammed by lawyers running for office:

  • whom I do not know and don’t think I’ve ever met;
  • In counties where I seldom practice; and
  • who delivered a prepared telemarketer-style speech when they get me on the phone.

It’s tricky to deal with someone who is running for DA, Solicitor, or Judge because the person hitting you up for money may one day sit in judgment over your case or act as prosecutor to your client. It is even trickier when support for this candidate will be recorded as a matter of record and available if the person you support loses that bid. Then the competitor will see you as a person who was against her. It all feels strangely akin to a protection racket.

Even worse is the way I’m being pitched this year. And it’s gone down like this. I get a message from my assistant that Mr. Smith with the X County District Attorney’s office would like for me to call him. The person was vague about what the call was about. Or I get that Judge Jones would like for me to give him a call. The person does not have a name that I immediately recognize, and I’m pretty sure that we don’t have a case together. Again, it’s vague. But who wouldn’t call a prosecutor or judge back?  Sometimes DAs or judges call because they are referring a case or because they want to brainstorm a legal issue. So, I call back. In no less than 5 times in the past month, I’ve called the person only to get solicited for a campaign contribution.

I’m chairing one judicial campaign. In that instance, the candidate is someone I believe in and whom I’ve known for a long time. We aren’t spamming people.

So, here’s my statement of policy. If you are running for judge or to be an elected prosecutor and I don’t know you, you need to announce the actual reason for your call when you leave a message for me. If you don’t, then I will assume that you play fast and loose with the truth and are unsuitable for the office you are seeking. I think you are misusing your current office to get me on the phone to create a situation where I donate money to alleviate an awkward social situation that you have created. If you get me on the phone, I’ll just let it be awkward. I’ll exit the conversation quickly, and you won’t hear back from me.

The Conscription of Apple Engineers into Government Service

Posted in News, Opinions and Analysis

Before this week, I had never heard of the All Writs Act of 1789. As I understand from the news accounts I have read this week, a Federal Magistrate cites it as authority to order Apple to develop software that law enforcement can then use to break into an iPhone. For anyone who’s ever dealt with this on their phone, here’s what happens. If you try repeatedly to enter the password to unlock an iPhone, successive unsuccessful attempts result in a delay. So, you can’t try to log in for a set period of time, which increases with each attempt. Eventually, try enough times, and the iPhone wipes out all of the contents. This protects iPhone owners from a brute force attack or a program that tries random characters until it reaches the right combination.

In an open letter, Apple CEO Tim Cook has explained that it complies with court orders and subpoenas to provide materials in its possession.

However, the password to the evidentiary phone at issue is not in Apple’s possession. The phone is not in Apple’s possession. It cannot provide material it lacks. Until this week, I would have thought that this would be the end of the story. But alas no. A Federal Magistrate Judge has ordered Apple to create software that would unlock the encryption on this phone and provide that software to the government.

I’m new to the All Writs Act of 1789, but this seems, at first blush, like complete lunacy:

  • It seems odd to me that the government could conscript software engineers to code up anything and give that code to the government. This feels like indentured servitude.
  • It’s a bit unsettling that the argument from the government is, “make this software for us and give it to us. We’ll just use it for this one special case. Trust us. We’re the government.”
  • It’s only a matter of time before this software, once created, gets into the hands of bad guys or bad governments.

Maybe I’m missing something here. And I’m open to having my mind changed. But this sounds dangerous.

The Future of Twitter

Posted in News

Over at Simple Justice, Scott Greenfield has a post about the future of Twitter (with a scatalogical title). In summary, the problem with Twitter and several other “tools” is that, while it has attracted many eyeballs, it is difficult to turn those eyeballs into money.

I can’t speak to the broader economic trends. I can only speak to my use of Twitter and how it is changing. In the broader sense, I’m making similar changes in my use of Twitter, Facebook, and Instagram. I’ve not quit these services (yet). I have, however, taken all of the apps related to these sites off of my phone. At a practical level, it is difficult to write briefs and prepare for court when the Siren’s call of these things is a click away. And with all of these services, I’m reminding myself that I’m not the customer; I’m the product.

I’m getting more work done, I don’t miss these things one bit.

The Nomination Plot Thickens

Posted in News

I’ve obsessively read as much as I could find over the weekend about the upcoming confirmation battle to replace the late Justice Scalia. And there is much to read. Saturday’s news and what unfolds over the next weeks will be the subject of many books, if not movies, to come.

  • Scott Greenfield focuses on two things: (1) the President’s Constitutional duty to submit a nominee and (2) the fact that political operatives did not observe much of a respectful time before beginning to maneuver.
  • The NY Times has an editorial up arguing that Senator McConnell may suffer negative political consequences for categorically refusing to allow the Senate to even vote on a nominee.
  • Just where is that ranch anyway? USA Today ran a story today about Justice Scalia’s final hours and about the ranch where he was staying.
  • Bill Rankin has a blog post up regarding Justice Nahmias’s reaction as former law clerk to Justice Scalia.
  • The Wall Street Journal has much inside baseball nomination analysis.
  • Slate and many others have some analysis up about what happens in the event of a 4-4 tie on a vote (bound to happen).
  • Needless to say, this event is right in the SCOTUS Blog’s wheelhouse.

This is an interesting time. I have not been much of a news junkie about the presidential election. For the past several days, I have been all over the news and will be for what will be an exciting several weeks ahead.

The Bar Isn’t the Same

Posted in News

imageRecently, I heard the Executive Director of the State Bar of Georgia mention that his job included running a parking lot. One of the benefits to membership in the State Bar of Georgia is use of free parking near Phillips Arena and the Georgia Dome (and soon to be the new home to the Falcons). The parking deck is also available for use at bar CLEs.

The parking deck was perviously manned by an actual person in a booth at the entrance and exit. When you left, there was a nice man there who looked at my bar card, took my parking ticket, and told me to drive carefully. They’ve eliminated his position and replaced him with a little machine. You also have to remember to bring your ticket inside for validation. This way is probably more efficient, but I will miss the parking lot attendant telling me to drive safely.

Thoughts on Justice Scalia’s Passing

Posted in News

We’re away for the weekend. And I happened to look up and see the news on television at a restaurant. And it still does not quite seem real.

When I was a law student, Scalia opinions were the first ones I remember reading and enjoying. I won’t say that I agreed with them all. But they were all brilliant. And his originalist philosophy was always consistent. So, occasionally it took him to pro-defendant places. Crawford v. Washington is the first one that comes to mind.

As a lawyer, I suppose that these things resonate with me more profoundly than they might in the general public. But this is one of those “I remember where I was when I heard” sorts of news events.

In a while, I will start to think about what is next. But today I reflect on the end of an era.