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Category Archives: Opinions and Analysis

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New 11th Circuit Interpretation of a Portion of the Sentencing Guidelines

Posted in 11th Circuit Court of Appeals, Opinions and Analysis

One of the hats I wear is that of the Federal opinions editor for a caselaw update that the Georgia Association of Criminal Defense Lawyers publishes monthly. It has been a slow month for Eleventh Circuit Opinions. But there is one that I will be writing up. And this blog post will pull double duty… Continue Reading

Ninth Circuit Refuses to Lift Stay of Republican Administration’s Travel Ban

Posted in News, Opinions and Analysis

Moments ago, the Ninth Circuit Court of Appeals ordered that the temporary restraining order imposed on the Republican presidential administration’s travel ban will remain in place. The Court has found that the states of Washington and Minnesota have standing to challenge the ban, that the Republican administration is unlikely to prevail on the merits in the… Continue Reading

Trump Administrative Order on Travel Likely to Withstand Legal Challenge

Posted in News, Opinions and Analysis

Adam Liptak has a comprehensive article in today’s New York Times over nationwide appellate proceedings regarding President Trump’s Executive Order banning travel from several Middle Eastern nations. The article tracks the progress of an order from the United States District Court for the Western District of Washington staying enforcement of much of the Executive Order…. Continue Reading

How Might Judge Gorsuch Decide Criminal Cases on the Supreme Court?

Posted in News, Opinions and Analysis

At the start of this week, I penned a post critical of how President Trump handled the firing of Sally Yates. Today, I write to commend his nomination of Judge Gorsuch for the United States Supreme Court. Textualists and the criminal appellate bar are natural allies. And such is the case with this pick. I want… Continue Reading

The Sane Branch of Government

Posted in News, Opinions and Analysis

We live in strange times. But I still have faith in the judiciary and in lawyers. It took us just over a week of the Trump presidency to reach our first constitutional crisis, and the judiciary seems to be keeping its head. That branch of government will be tested in the months and years to… Continue Reading

Best Argument For And Against Recording in the Courtroom

Posted in News, Opinions and Analysis

Georgia superior court judges have pursued some polarizing changes to the way they are regulated. Now, they want to impose strict restrictions on the public’ ability to record what happens in open court. On January 17, 2017, they will begin considering a new superior court rule that will give Georgia judges unprecedented control over their… Continue Reading

Cell Phones, The Fourth Amendment, and the Fifth Amendment

Posted in Opinions and Analysis

Yesterday, I spoke at a continuing legal education conference for the Georgia Association of Criminal Defense Lawyers. The topic was searches of cell phones incident to arrest.  I also discussed the  Application of the fifth amendment protection against self-incrimination when a suspect is compelled to provide a passcode to unlock a cell phone or to… Continue Reading

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… Continue Reading

Why I (Sort of) Like Atlanta Municipal Court

Posted in Opinions and Analysis

Picture it. It’s 7:30 in the morning. I’m downtown in Atlanta. It’s about to rain again. It’s the week between Christmas and New Years. I pull into a parking deck that I have to myself. And I walk over to court for what is now my third appearance on a misdemeanor case. And about an… Continue Reading

The Atlanta Federal Courthouse Should Retain its Name as The Russell Building

Posted in Opinions and Analysis

I have read two editorials in the Fulton Daily Report in the last week or so. The first was written by a Federal Defender who believes that the building should not be named after former Georgia Senator Richard B. Russell because of his legacy in support of segregation. The second was a response by former… Continue Reading

New SCOTUS Case Will Have Big Impact on Some Georgia Sex Offenders

Posted in Opinions and Analysis

In a per curium opinion (pdf), the United States Supreme Court has held that the placement of a tracking device on a person is a search within the meaning of the Fourth Amendment, even if the person is compelled for life to wear the device as part of a sentence. As summarized by Robinson Meyer… Continue Reading

Does the Jury Have the Right to Know About Mandatory Minimums?

Posted in News, Opinions and Analysis

Jarvis Taylor was on trial for committing an armed robbery with an air gun. Because his prior criminal history included theft by receiving stolen property, possession of a tool for the commission of a crime, and aggravated assault for his actions during a jail riot, a conviction for the armed robbery would have meant a… Continue Reading

If Juries Could Impose the Sentence

Posted in Opinions and Analysis

In Georgia, juries generally don’t get to decide the sentence. Only where the State is seeking death does the jury get a hand in sentencing. Not only do Georgia juries not get a say in sentencing decisions, our law is designed not to let them know a great deal about what might happen at sentencing…. Continue Reading

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… 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… Continue Reading

Georgia Habeas Corpus and the 1st Amendment

Posted in Administrative Appeals, Opinions and Analysis

The Volokh Conspiracy has post up about Strine v. Delaware Coalition for Open Government, Inc., a case the tests whether a Delaware statute that provides that judges may act as arbitrators in civil cases is constitutional under the First Amendment where the arbitration sessions are closed to the public. Professor Volokh give a little background… Continue Reading

Where Fundamentalism and the Law Meet Somebody is Headed to Prison

Posted in News, Opinions and Analysis

Legislators in Virginia are contemplating changes to the law in response to MacDonald v. Moose (4th Cir. 2013), a case that struck down Virginia’s law that prohibited non-genital sex generally. Specifically, legislation has been introduced that would make it a felony for an adult to engage in non-genital sex with a minor between age 15… Continue Reading

Court Reporters and Digital Audio Recording: Time for a Change?

Posted in News, Opinions and Analysis

My new favorite law blog is Judge Richard Kopf’s Hercules and the Umpire. Lately, it’s been the first place I click on my reader. His blog is conversational and offers a view of the Federal Court from the other side of the bench. A recent post of his was particularly spot on. It begins “For… Continue Reading

New Field Sobriety/Miranda Case Important at Several Levels

Posted in Georgia Court of Appeals, Opinions and Analysis, Uncategorized

The Court of Appeals, with a panel made up of Judges Dillard, Ellington, and Phipps, has reversed an order granting a motion to suppress from the State Court of Fayette County. I write about this case because it further develops the law in the area of Miranda and field sobriety testing and because it illustrates… Continue Reading

Video Interview: Discussing Gun Control & the Second Amendment in the Supreme Court with LXBN TV

Posted in News, Opinions and Analysis

Following up on my post on the subject, I had the chance to speak with Colin O’Keefe of LXBN regarding just how far gun control can go under the Second Amendment and when this was last tested by our country’s judicial system. In the interview, I discuss Heller v. District of Columbia, the last Second Amendment… Continue Reading

How Far Could Gun Control Constitutionally Go?

Posted in News, Opinions and Analysis

In light of recent events, gun control is the subject of discussion. My practice touches upon guns. Generally it arises in the context of clients who have been accused or convicted of being felons in possession of a firearm or of being in possession of a weapon during the commission of a crime. I have… Continue Reading