Georgia Criminal Appellate Law Blog

Offering Insight on the Practice of Appellate Law and Commentary from the 11th Circuit Court of Appeals

Great Day for 4th Amendment With Unexpected Heroes

By Scott Key on Posted in News

Yesterday, was was the best day the Fourth Amendment has had in a decade. And, while Libertarians might not be surprised who the two heroes were, others might be taken aback. In one Fourth Amendment story, the hero was Associate Justice Antonin Scalia. And in the other, the hero was tea party Junior Kentucky Senator Rand Paul. In the first story, the heroism came in the upholding of the Fourth Amendment. In the second, the heroism came in its violation. Let’s start with the story of upholding.

In an opinion authored by Justice Scalia, the United States Supreme Court unanimously held that the government must get a warrant before placing a GPS tracking device on a person’s vehicle. In reaching this conclusion, the Court held that placement of a tracking device constitutes a search. Adam Liptak, of the New York Times summarized the opinion and noted that the divided rationale for the conclusion may raise as many questions as it answers. Writing the majority opinion, Justice Scalia reasoend that “the government physically occupied private property for the purpose of obtaining information.” Others have noted that the majority’s decision to base the opinion on concepts of trespass leaves unanswered more pressing questions about expectations of privacy in the digital realm. Still, this opinion is victory for supporters of the Fourth Amendment. And it is easy for a defense attorney fighting it out in the trenches to wonder if the Fourth Amendment has been abandoned. 

Also in the news yesterday was a story of Kentucky Senator Rand Paul’s run-in with TSA at an airport in Nashville. Sen. Paul set off a body scanner, with an alert to the knee area. TSA protocal calls for a frisk in this event, which the Senator refused and requested to go back through. TSA ordered him into a cubicle. When he then used his cell phone to call staffers to report that he would not make it to an event in Washington, he was told that he would be subjected to an even more intense screening. Talk about picking on the wrong guy. Writer Jerry Pournelle notes that TSA’s action violated more than the Fourth Amendment. It actually is a violation of Article I, Section 6 of the United States Constitution to arrest or detain for questioning a US Senator in his travels to attendance in a session.

The third unlikely hero in yesterday’s Fourth Amendment story was Fox News with its 6-minute interview of Senator Paul. Well worth a watch. Sen. Paul was told off the record by TSA officials that the machine is set up to randomly alert on people. So, the mandatory detention (TSA said it wasn’t a detention. Defense attorneys will recognize law enforcement’s attempts to make something not a detention simply by giving it a different label) and pat-down was required. And it was unacceptable to send him back through. 

And for every story with a hero, there must also be a villain. Here, it is actually the Obama White House, that issued a statement yesterday in support of the TSA. In fact, in supporting the TSA, the White House referred to Senator Paul as “the passenger.“ 

I’ve been a long-time Democrat. I’ve been willing to put up with their social programs because I’ve long thought that Democrats were the best hope for my civil libertarian views and for why I do my job everyday. It was certainly a good place for my hopes during the recent Bush administration. Ron Paul’s success in this primary season, Scalia’s stance on the Fourth Amendment, Rand Paul’s stand yesterday, and Fox New’s attention to the matter, is beginning to sway me. Republicans seem to be shifting to a consistent policy on small government in their opposition to large social programs and in their opposition to the ascendancy of a government police state. Where might my vote go in November?

 

The Implications of the New SCOTUS Eyewitness Case on Georgia Cases

By Scott Key on Posted in News, Opinions and Analysis
Adam Liptak of the New York Times reports that the Supreme Court has held that courts are not required to conduct pre-trial hearings to determine whether the circumstances of an eyewitness identification were so unreliable that the jury shouldn’t hear about the lineup. The Court has held that, only in instances of police misconduct in the identification procedure, should the judge exclude the evidence. Otherwise, the Court held that defendants should rely upon cross-examination to attack the reliability of eyewitness identification.

A dissent, written by Justice Sotomayor, reasons that improper identifications are the leading cause of wrongful convictions nationwide and that the judge should play a bigger role as gatekeeper to safeguard misidentifications.

The news may actually be good for Georgia criminal defense attorneys for several reasonsIt can often be difficult to admit expert witness testimony on witness memory. The Supreme Court’s new focus on the courtroom as the crucible for testing witness memory could arguably open the door to in-court scientific testing of identifications. It will be increasingly important to educate the jury about identifications as the burden of testing reliability shifts from the judge to jurors.

  • This may be a good time to focus on jury charges. The Georgia Supreme Court has been on the cutting edge in this area for the last decade. It has eliminated the “level of certainty” charge, reasoning that witnesses are just as certain about misidentifications are they are about good identifications. Since the jury will now be the arbiter of eyewitness reliability, it is time for more jury charges to guide them in this endeavor.
  • The precedent isn’t really all that earth-shattering. You may be practicing in different places than the places I go, but judges haven’t been tossing identifications left and right. In fact, the pre-trial ruling has often placed a gold star around the identification, rendering in-trial rulings harmless along the way. The holding shifts the case from one big ruling before trial to a bunch of little rulings on jury charges, expert witness admissibility, and curative instructions. Also, since cross-examinations are now the be all and end all, judges are going to have to give lawyers wider latitude or risk reversal. It’s now time to push the envelope on cross-examination of eyewitnesses. In addition, since it’s now all about confrontation, it will be time to preserve objections under the Confrontation Clause.

So, moving forward, it’s a good idea to keep the case handy and cite to it as positive authority to attack the eyewitness at trial through cross-examination and through experts.

 

Even More Reasons to Run From GPDSC and a Modest Proposal

By Scott Key on Posted in Attorney-Client Relationship, News, Opinions and Analysis

A blog post I wrote a week ago about GPDSC’s alliance with the Attorney General’s Office to oppose the Georgia Bar’s formal advisory opinion regarding imputed conflicts for indigent defendants inspired a few comments over on my Facebook page. A friend of mine who is a former assistant public defender commented:

The absence of conflict-free counsel is hardly the most shocking failure of the current system. When I was an APD, I carried 50-70 cases on a trial calendar at once. I had no idea which case would be tried when. I was expected to announce “ready” in the vast majority of my cases.

Assistant public defenders often carry a much higher caseload than ABA Standards would allow. I point out the state of affairs in no way with the intent to bash individual public defenders. Indeed, for many, the role of public defender is a noble calling. And some of the most talented appellate and trial lawyers are know are public defenders. My critique is more systemic.

Rather, the lack of resources for public defenders, in terms of money and personnel, is at the level of crisis in Georgia. We have a system in place operating without a committment to run it properly.

Unfortunately, for a defendant who finds himself convicted in the midst of this crisis, appellate courts are not going to be receptive to an ineffective assistance of counsel claim. Rarely, likely less than 5% of the time, does an IAC claim work because the standard for effectiveness it the ultimate low bar.

And the greater problem, at least in Georgia at the state level (there are a few county systems in Georgia that are wonderful), is that the free market is a greater delivery system for criminal defense representation than is the government. Of course, the indigent cannot enter the free market. Meanwhile, the government is quite a deadly deliverer of prosecutions.

I wonder if it isn’t time for a “no defendant left behind” model, which would provide government vouchers for indigents to hire criminal defense counsel.

 

Judicial Funding Likely to Increase in 2012

By Scott Key on Posted in News

Greg Bluestein, with the Associated Press, reports that the Judiciary could see more funding in 2012. The report echoes some of the discussion at the Appellate Practice Section luncheon several days ago. Mr. Bluestein reports that “[t]he judicial branch’s budget situation was so dire in 2009 that Georgia’s top judges considered whether to take emergency legal action to stop the state from cutting their funding.”

Judge John Pridgen, the chair of the Council of Superior Court Judges is “very much encouraged” by the support of a governor, who is a lawyer and who has a son who is a Georgia Superior Court Judge.

The governor’s budget request includes a “$10 million grant to fund a system of accountability courts for alternative treatment of some low-level offenders.” There are several other budget increases reportedly in the works

  • funding increases to allow for the hiring of more clerks, additional attorneys, and new equipment to reverse a backlog in court cases
  • $3 million for district attorneys
  • An infusion of cash for GPDSC (though GPDSC seems perfectly willing to deliver substandard representation, according to recent arguments at the Supreme Court)
  • A grant of $145,000 to the Supreme Court to fund a pay increase for staff attorneys and to create a dedicated clerk for death penalty cases
  • A $106,000 proposal to hire another investigator for the Judicial Qualifications Commission. This is good news for lawyers everywhere. Trial judges have been exceptionally polite lately since the JQC has become more active in the last few years
  • The Georgia Resource Center, which handles death penalty cases on appeal and in the post-conviction setting, woudl get enough funding to stay open in the wake of recent cuts that would have killed the organization

Of course, time and the legislative process will tell whether all of this funding comes through. But it is quite nice to have a governor in office who recognizes that there is a third branch of government.

Attorney General and Public Defenders Team Up to Support Double Standards for Poor People

By Scott Key on Posted in Attorney-Client Relationship, News

The writer Jerry Pournelle postulated The Iron Law of Bureaucracy. It goes like this. In a bureacratic organization, there are two types of people. First, there are the people who are devoted to the goals of the organization. Second, there are those dedicated to the organization itself. According to Pournelle, “in every case the second group will gain and keep control of the organization. It will write the rules …”

So, it came to pass that Michael Edwards, the leader of a circuit public defender’s office in South Georgia came to oral argument at the Supreme Court yesterday where he sat at the same table with an Assistant Attorney General, a prosecutor. Both the prosecutor and the the “public defender” appeared as co-counsel to argue against a bar rule regarding imputed conflicts in the representation of the poor.

One would expect this unusual alliance to be formed to oppose something really bad, or at least something pretty radical. But actually, no. Here’s the advisory opinion that they opposed. It was an opinion (PDF), by the way, that came from the State Bar of Georgia.

Lawyers employed in the circuit public defender office in the same judicial circuit may not represent co-defendants when a single lawyer would have an impermissible conflict of interest in doing so.

Mr. Edwards, nominally a public defender and a prosecutor (who has an incentive to win criminal cases) teamed up to argue that Conflicts should not be imputed within public defenders’s officers. And when is there a conflict? The law on that has been around for quite some time. It’s codified in Rule 1.7 of the Georgia Rules of Professional Conduct:

A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer’s own interests or the lawyer’s duties to another client, a former client, or a third person will materially and adversely affect the representation of the client.

The position of the statewide public defenders is literally: “this is a luxury the poor can’t have.”

What does all of this mean? In my office, I would be in serious trouble if I represented two defendants with adverse interests to one another. And, if I take the risk of representing co-defendants and a conflict arises later, I have to walk away from both clients. For instance, I can’t represent two defendants if there is a chance that one will take a plea and testify against the other. But the public defender standards councilwould like a special rule for the poor so that they don’t have to provide the poor with conflict-free representation.

As Bill Rankin of the AJC noted, Justice Nahmias asked a very good question yesterday: “Why are you asking us to treat public defenders offices differently?”

The answer, of course, is money. The legislature created the state-wide public defender system and doesn’t want to fund it adequately. And, instead of seeking adequate funding or saying that constitutional representation comes at a cost, the organization seeks to tell the poor that they better hire a lawyer if they want conflict-free counsel.

Mr. Edwards pointed out that he can’t afford to engage in egg-headed “philosophical” or “academic” discussions as a GPDSC bureaucrat. He has to be pragmatic about all this. We can’t afford to get off on this business about right and wrong. If you want conflict-free representation, then either stop getting accused of crime or stop being poor.

No matter how the Court might rule on this matter, the fact that the public defenders and prosecutors would team up to take this position should freak you out if you are accused of a crime. In fact, if you are technically indigent and there is a distant relative who could pay for a lawyer, I’d advise you to run, don’t walk, away from GPDSC. The Iron Law of Bureaucracy is alive and well in how the indigent are defended in Georgia.

Or you could leave it to Edwards and his ilk. He says that you can trust the Council. To quote him directly, “We are the experts in representing poor people.” They know what’s best for all poor people out there.

Judges at Appellate Practice Section Luncheon Laud New Governor’s Support of Judiciary

By Scott Key on Posted in News, Uncategorized

The Appellate Practice Section of the State Bar of Georgia convened as part of the Georgia Bar’s mid-year meeting. In spite of the fact that many participants came over from the swearing-in of Judge Boggs to the Court of Appeals, the luncheon was lively and well-attended. Originally intended to be a candidates’s forum for candidates to an open spot on the Supreme Court of Georgia, events changed the format. However several judges on the Court of Appeals and Supreme Court have seats up for re-election this year. And the meeting became an opportunity for brief comments from judges and justices. Without covering each mini-speech, I’ll highlight a few judicial comments about the nature of judicial elections and about what life is like for the judiciary under the leadership of a new governor.

It should come as no great surprise that the former governor did not have a particularly bright spot in his heart for the judiciary or even for lawyers. From the comments I heard, things appear to be better now.

Supreme Court Chief Justice Carol Hunstein noted that the new administration is “kindler and gentler,” in terms of budgetary support and basic understanding of what judges and lawyers do. Governor Deal is requesting $10 million for “accountability courts.” Accountability courts are focused on particular needs of a category of defendant. Accountability courts include drug courts, DUI Courts, mental health courts, and veterans courts. The Chief Justice noted that the governor’s son runs an accountability court and that the governor himself was once a juvenile court judge. She and former chief judge Yvette Miller, spoke of how difficult it was for the two appellate courts to make ends meet in the darkest days of the Perdue administration. Both were complimentary of the new governor, and the dark clouds of former days appear to have moved away.

Equally interesting was the general tone about the nature of judicial elections in Georgia. Chief Justice Hunstein, who faced down a well-funded challenge by Mike Wiggins in 2006 (PDF), noted optimistically that a judge’s job at election time is simply to “get the message out, and you can trust Georgia voters.” She looked back on her 2006 election as a time of fear that had she lost then every judge would be intimidated by special interest groups. And she hoped that the 2006 election proved that special interests can’t defeat a sitting judge. For candidates this year, she advised lawyers to inform the choices of non-lawyers. After all, if the judiciary is doing its job, judges should not be in the headlines. Hence, it should not be unusual for the general public to be unfamiliar with the judges.

To date, no challengers have announced an intent to run against any of the Court of Appeals judges or Supreme Court Justices who are up for election. The year ahead looks to be a time of stability for the appellate courts with apparently no contested elections and with a supportive governor in office.

The Top 2 Georgia Legal Stories of 2011 and the 1 Lesson They Teach

By Scott Key on Posted in News

This post was intended to be a top 10 list. Then it was intended to be a top 5 list. But as I look back at 2011, there are really only two big stories that stand out. Actually, there are two stories and one lesson. The stories are the JQC’s investigation of Judge Amanda Williams and the Execution of Troy Davis. And the lesson? There is no more powerful court in Georgia than the trial court. It’s an important lesson to keep in mind if you are a client thinking of where the resources should go. And it’s an important lesson if you are entering a case as a lawyer and are contemplating the days and months ahead. In fact, the lesson I take from both as well as my years as a lawyer is that your chances of success are inversely proportional to deeply your case goes in to the system.

Amanda Williams

Judge Amanda Williams resigned in the face of an investigation by the Judicial Qualifications Commission. But her troubles began long before the JQC got involved. Judge Williams was the subject of an hourlong program about her drug court on NPR’s show, This American Life. According to that story, her drug court was the toughest in the nation, and punishment for those in the program included such things as indefinite sentences. That story aired on March 25, 2011. On November 10, 2011, the JQC brought 12 charges of misconduct (PDF). I’ve been appearing in front of trial judges throughout the State for some time. And, though I am not familiar with Judge Williams and know only what I have read in the media, the sort of thing that aired in the NPR story is within the realm of arbitrary use of judicial power I have seen in other courtrooms. Most JQC complaints go nowhere, and the appellate process protects the discretion of the trial judge in most instance unless that discretion is abused. It is difficult to imagine more raw power by an official than that of a judge in the judge’s courtroom.

The story that emerged on December 15, 2011, may have been what proved to be the judge’s undoing. It was reported that drug court was used as much as a carrot as it was a stick. In the case of the relative of a prominent and power Sea Island business man, according to the story, drug court was the place for an accused child abuser to go to escape a harsher sanction. Shortly after this story surfaced, the judge resigned. It even made the New York Times.

The JQC’s action in this case does not underscore the point that judges can’t get away with stuff. Rather, it underscores just how far things have to go in Georgia before a judge is actually sanctioned. It is also interesting to note that none of the folks who were treated arbitrarily had controversies that made their way into the appellate courts.

If there is one lesson to be learned from the Amanda Williams story it is that the trial court is a powerful setting.

Troy Davis

The appellate setting is a different thing altogether. If witnesses start recanting, if prominent people start complaining that a convicted man is innocent, even if Big Boy shows up to protest, there is little that an appellate court can do or will do to undo a conviction and even a death sentence. The Department of Corrections ultimate executed Mr. Davis for a murder of a Savannah police officer in the 1990s. In the weeks leading up to that execution, there was much debate about how strong the evidence was against Mr. Davis at that original trial. It was a shame that all the effort that went into analyzing the evidence over a decade after the trial did not go into the trial itself. And others found out that hours before an execution was too late to try to get the death penalty abolished in Georgia. If such effort were sustained over a period of time while the General Assembly was in session, who knows what might happen.

Conclusion

These two stories demonstrate that the real power to shape a case’s outcome lies at the juries and judges who hear the trials and who handle justice at the evidentiary level. There is a real law of diminishing returns the deeper a case goes into the process. Even if a case ends up on appeal or before a habeas court, a lawyer’s ability to win can be significantly impaired by what happened before the trial court. That is the lesson I took from the two two stories of the year. The power of the courts to intervene diminishes the deeper you get into the system. And a judge has to go pretty far to be sanctioned for abusing it.

The Baader-Meinhof Phenomenon

By Margaret Flynt on Posted in Opinions and Analysis

For those of you who don’t know, the Baader-Meinhof Phenomenon is that weird occurrence where you hear about something for the first time and then encounter it again shortly afterwards. (Don’t worry, I didn’t know that term either until I searched for it on Google. And if there is any truth to this phenomenon you will come across this term again soon.) As a newly minted lawyer, many legal concepts that are second nature to seasoned attorneys are in the forefront of my mind, and my latest fixation is on ineffective assistance of counsel, with a twist.

About a week ago, I benched a moot court competition with a problem involving IAC at the plea bargaining stage. Unfortunately, it wasn’t a cut-and-dried Strickland and Hill issue, since the case involved a defendant who declined a favorable plea offer based on erroneous legal advice and proceeded to trial. In this fictional case, the defendant’s attorney advised him that evidence of shooting someone in the arm and leg would be legally insufficient to prove assault with intent to murder. The defendant was advised to reject a five-year plea offer and proceed to trial. He was later convicted (much to his surprise) and sentenced to a term three times longer than the plea offer.

This scenario doesn’t just occur in the closed universe of moot court briefs, however. In fact, one of the reasons I even agreed to bench the competition was because the problem closely mirrored one of my current cases. While I had thoroughly researched this issue at the state level, I was curious to see the arguments from both sides based on nationwide case law. After watching two hours of interesting debates, I left the competition wondering why the real Supreme Court has not yet decided this issue.

Last night, my question was answered when I ran across a news article discussing two cases involving ineffective assistance of counsel at the plea bargaining stage: Missouri v. Frye, No. 10-444, and Lafler v. Cooper, No. 10-209. While this may not seem strange to any of you, this particular article appeared on the sidebar of my South Georgia hometown newspaper’s website—hardly the proper venue for any academic legal commentary. (Sure, this may have been a coincidence, but I like to think that it’s the Phenomenon at work.) The Supreme Court of the United States heard oral arguments in both cases this morning.

In Lafler, the Sixth Circuit held that Cooper’s attorney was ineffective for convincing Cooper to reject a favorable plea bargain based on an erroneous understanding of the law. The court also ordered “specific performance” of the plea bargain, even though Cooper was later convicted at a fair trial. Here, Cooper was charged with assault with intent to murder and possession of a firearm by a felon after shooting a woman several times below the waist. Cooper was offered a plea of 51 to 85 months, but he rejected the plea offer after his attorney (wrongly) informed him that the state could not prove intent to murder since the shots were fired below the waist. Cooper was later convicted at trial and sentenced to 185 to 360 months in prison.

In Missouri, respondent Frye was arrested for his fourth violation of driving with a revoked license—a class D felony with a four-year maximum sentence. The prosecutor conveyed two offers to Frye’s counsel. The first choice was that Frye could plead guilty and the state would recommend three years, agree with the court if it gave probation, but would ask that ten days be served in “shock” incarceration if probation was granted. The second option would change the charge to a misdemeanor with a maximum one-year sentence, and the State would recommend a 90-day prison sentence. Rather than informing his client about the plea offers, Frye’s attorney entered an “open” guilty plea. Frye was sentenced to three years in prison.

Both cases are important to defendants and criminal defense lawyers alike because they actually address the real-world implications of the plea bargaining process. It is easy to rely on a plain reading of the Sixth Amendment and argue that because there is no constitutional right to a plea bargain, an attorney’s ineffective assistance at the plea bargaining stage does not deprive a defendant of any constitutional rights. But this argument would ignore what really happens in criminal cases. The majority of criminal charges are disposed of by plea bargains, not by trials. For many criminal defendants, a plea bargain is not only a crucial part of the process; it is the only part of the process that involves real deliberation.

After the Court’s decision in Padilla v. Kentucky last year, I have hope that the Court will continue to recognize the real dangers of ineffective assistance of counsel at the plea bargaining stage. The second-prong of Strickland is not only met when a defendant would have insisted on going to trial had he been properly advised at the plea bargaining stage; a defendant is also prejudiced when he would have accepted a plea if he had been properly advised. If SCOTUS agrees, the opinions in Lafler and Missouri will not only change the way lawyers think about their representation during the plea bargaining process, but their whole approach to IAC claims as well.

A few months from now, my fascination with IAC at the plea bargaining stage will subside as my caseload inevitably grows and new issues occupy my mind. The issues presented in Lafler and Missouri will fade away as I am faced with unique questions and research new problems for my clients. Then, one day, I will browse my hometown newspaper’s website and see “SCOTUS Decides Bad Plea Advice Cases” on the sidebar. And the Phenomenon will begin again.

 

Amanda Knox, the Appeals Process, and Moneyball

By Scott Key on Posted in News, Opinions and Analysis, Preservation of Error, Uncategorized

Today, my recent post on Amanda Knox was quoted by Ronald V. Miller in his Maryland Injury Lawyer Blog. He picks up on my point about the Knox case and other high-profile cases with an unexpected result. For clients and potential clients, such cases reinforce the often mistaken idea that, if you keep on slugging until there is no procedure left, no matter what the odds, you will eventually win. I thought about Mr. Miller’s post all day. And I decided to add a few point here about the idea of “fighting” through to the bitter end and what it means for the appellate process. There’s nothing wrong, in criminal cases, with fighting it through to the bitter end. Unlike in the civil arena where the central issue is money, in criminal law the issue is liberty. For a person with a lengthy prison sentence, the slimmest of odds may be worth the effort. When the issue is money, the time to stop is the point where the resources it might take to win begin to are outweighed by the odds of losing. So, let’s assume that any criminal case is worth taking the appellate and habeas process as far as you could possibly go, there is still an important question to ask. When does the client make the decision that he is in it for the long haul? For too many, that decision comes at the moment the jury files into the courtroom and delivers a guilty verdict. It’s a good decision that comes too late.

You don’t begin the appeal when the verdict comes, you begin the appeal when you open the case at the trial level. Part of client counseling involves planning for appeal. Unfortunately, nobody wants to talk about a guilty verdict at that stage. It’s one thing to purchase life insurance. But nobody wants to purchase life insurance from his doctor. But if you’re the trial lawyer, your job is to win the trial and make a record for appeal.

The movie Moneyball is applicable here. If you’ve not read the book or seen the movie, an important issue is how much traditional baseball stats really tell you about a player. For instance, RBI (runs batted in) is not the stat that you might think it is, because a player who doesn’t often bat with runners on base doesn’t get the same number of opportunities to hit RBIs as a batter who has other hitters in the line up. To drive a run in without base runners requires the batter to hit a home run.

Well, an appellate lawyer is essentially a batter who comes to the plate with two outs already recorded. Even the biggest power hitters will hit home runs infrequently. Take Hank Aaron, for instance. Aaron is remembered for hitting 755 home runs in his career. His total is impressive because he earned it at a time when players weren’t using steroids. But it’s important to consider his home run total in the context of his total career at bats. He had 12,364 career at bats. So the odds of hitting a home run, even for Hammerin’ Hank, were pretty low on average.

If the trial lawyer made a good record for appeal, through objections, motions, and rulings, then the appellate lawyer comes to bat with the bases loaded. At which point, the goal is simply to put the ball in play. It is helpful to look at appeals as analogous to RBIs. An appellate lawyer can hit home runs, but generally it’s much easier to appeal with a good record.

Now comes the part where the analogy breaks down. In baseball, the appellate lawyer can bat in more than one place in the lineup. In the past year or so, I’ve been fortunate enough to be brought into cases to handle motions and objections at the trial level. It’s great to be an appellate lawyer on a trial team. I have a particular role. I’m focusing on the record. The trial lawyer gets to smile for the jury and do all the other stuff trial lawyers do. And the appellate lawyer gets to put himself on base and hit himself in.

Unfortunately, I’m very often called in to pinch hit with two outs where I have to hit a home run to win. Hopefully more trial lawyers will start putting an appellate person on the trial team or at least start learning to see the game through an appellate lens. Hopefully more clients and trial lawyers will take a lesson from Moneyball and not from the Amanda Knox case, where the appeal was a “do-over” and not a detached examination of the errors at trial.

 

Managing Expectations in the Wake of the Amanda Knox Win

By Scott Key on Posted in News, Opinions and Analysis

I’ve already been asked about it several times. For the criminal trial lawyer, the Casey Anthony verdict was the result that made it difficult to counsel clients on whether to accept a negotiate plea rather than risk a trial against an overwhelming case. Several colleagues have told me that clients have balked in the face of solid legal advice, reasoning “that girl in Florida got off.” Amanda Knox is, I fear, the appellate lawyer’s Casey Anthony. It doesn’t matter that it’s a different legal system in a foreign country. The comparisons are coming. It is time to prepare with some key points when you face the inevitable comparisons.

An Italian legal expert I am not, but the New York Times piece from today highlights key differences between the two systems that are worth noting and highlighting for the practitioner or for the prospective appellate client.

  • The appellate court in Italy acquitted a criminal defendant. Appellate courts in the United States do not acquit criminal defendants. The nearest equivalent in the US is a finding that there was insufficient evidence to convict and a reversal on that basis. In US Courts, a verdict will be upheld on the facts unless the evidence, when considered in a light most favorable to the prosecution, was insufficient for any reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Appellate courts in the US neither investigate the case nor “reweigh” evidence on appeal.
  • International media attention appears to have had an impact on the Italian appellate court’s decision. In the U.S., at least in Georgia, media attention doesn’t necessarily help. But sometimes it can have a direct impact. Here, it’s a toss-up.
  • The appellate process in Italy “evaluates both procedural questions and can reopen the investigative phase.” What’s done is done in the American appellate process. The record is set in stone in an American appeal. The focus here is almost exclusively on procedural questions. Unless there is evidence of misconduct on the part of the State or a significant error from defense counsel, a new investigation won’t help. And in the American system, it is important to file motions and raise objections early and often so that there are procedural things to raise at the appellate level.
  • Critics noted that the legal system in Italy was “medieval or barbaric.” Our system is entirely too young to be described as medieval. The process in Italy doesn’t seem so barbaric from our perspective, given that there is not a comparable post-conviction process here to re-weigh the evidence. And they don’t kill their defendants in Italy.
  • The appellate panel was made up of six citizens and two judges. The role of citizens in the U.S. system ends with the verdict, and an acquittal here cannot be appealed as, apparently can the acquittal in Italy.

Again, I am no expert in the Italian legal system. But there is enough of a difference between what happened in the Knox case and what could ever happen in Georgia, to make it an apples and oranges comparison. You’ll get questions from clients assuming that an appellate do-over is possible. And you’ll hear about Amanda Knox. With some preparation, that moment can be a teachable moment.