Georgia Criminal Appellate Law Blog

Offering Insight and Commentary on Appellate Law and Criminal Trial Practice

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.

What I’m Reading These Days

Posted in News

The podcasts I listen to cost me money. On a recent podcast, I caught an interview with Cal Newport, who discussed his new book, Deep Work. I’ve been taking a break from business books lately, but this one is very different. His thesis is simple. Our technology has created an expectation and a temptation that we work in shallow technological endeavors, miring us down in various inboxes, from our email, to our Facebook feed, to tweets, to photos on Instagram. Knowledge workers (I include lawyers in that category) are losing the ability to engage in deep work necessary to be truly successful at a time when it is more necessary than ever. And if we can reclaim the skill to engage in deep work, we will cultivate rare marketable skill. And he proposes some radical solutions to get there (I actually bought this book in a physical hardback form, versus a Kindle or iBooks download thinking that he medium is also the message. As a result of reading this book a bit obsessively, I’m revisiting many of my work habits.

From another podcast I have found Debt by David Graeber. I’m just past the introduction. But I’m already understanding the Occupy movement a little better. I’m not saying that I agree with Graeber (yet). But I’m challenged by the perspective.

Then, on a completely different note, a colleague on a mutual legal project asked me to go into Clarence Darrow’s closing argument in the Leopold and Loeb trial to pull out some quotations for us in our endeavor. This activity has gotten me obsessed with the Leopold and Loeb trial. And it’s inspired me to do something that I’ve never thought of doing before — finding old transcripts from famous trials. The entire Leopold and Loeb transcript is available online, and it’s amazing!

Pro-Tip on E-Filing at the Georgia Supreme Court

Posted in Uncategorized

Every now and then, I e-file things at the Supreme Court that require me to attach a set of exhibits. There are a few categories of things that require you to petition for the Court to take your appeal. And when you do that, you have to put together your own record into a sort of proffer of what the record would show if the appeal were granted.

In a way it’s much easier now than ever. There was a time, when this activity meant a trip to a copy shop or printer to make a huge set of binders with copies for each justice. Many trees died. Today, you e-file your exhibits.

E-filing the exhibits brings its own challenge. The Court prefers that you upload one big exhibit with internal tabs. Though the system is set up to take individually numbered exhibits. The problem there is that the numbers only go to ten, and sometimes there are more than ten exhibits. Another problem is that a multi-volume transcript may exceed the upload data cap. Then you must subdivide the exhibit. And it all gets confusing. pdfs, beyond a certain length, get kicked out of the system.

I learned yesterday from someone that you can e-file the discretionary application, await docketing, then log back in. At this point, when you upload your exhibit, the data cap goes away.

Today, as I nervously watched the status bar on my web browser go, I prayed. And voila. The Court took my 1,700-page exhibit packet.

My Interview Regarding Gun Control

Posted in News

Yesterday, I was interviewed by Zosha Millman regarding the Constitutionality of Obama’s proposed executive actions on gun control. She did a great job of explaining the proposals as well as the potential permanence of them and their ultimate constitutionality.

Take a look. I guarantee that it’s better than what’s currently in your Facebook feed from both sides of the debate. But maybe I’m a a tad biased.

Why I (Sort of) Like Atlanta Municipal Court

Posted in Opinions and Analysis
Flickr cc: Joe Robertson

Flickr cc: Joe Robertson

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 hour later I come out of the court with a healthy amount of respect for what it does. After thinking about it some, I sort of like Atlanta Municipal Court.

The Way Atlanta Municipal Court is Different from Other Municipal Courts

  • They Don’t Do Trials or Contested Motions. If you file a motion to suppress or want a bench trial, the Court will immediately bind your case over to the State Court of Fulton County. That’s right, Atlanta Municipal Court exists for one purpose only: to put you in a position to take a plea or to choose to go elsewhere for a better offer or to litigate your case. They won’t hear any contested form of anything.
  • Things Run on a Timetable. When the case is initiated there, there is an organized process that moves you through the court, where a plea offer must be conveyed in writing, and where a decision point eventually arrives.
  • It Doesn’t Pretend to be Something’s it’s Not. Municipal courts are the Rodney Dangerfields of the Georgia criminal justice system. They exist to generate revenue for the municipality they serve. That’s why the procedure to appeal a municipal court conviction is so byzantine. That’s why you will see cash registers in the courtroom. However, nearly all of these courts operate under a delusion that they are an actual court of record. That’s why cases often take so long to process there. The ones that do bench trials place either clueless pro se defendants or the occasional client with a lawyer before a judge who is an employee of the same outfit that employs the cop who wrote the ticket. What follows is a short and swift bench trial or contested motion. When the judge convicts, he generates revenue for the city. When the judge acquits, he turns money away and tells a fellow employee that he is wrong. Guess where the incentives are. Generally, a lawyer in Municipal court understands the game and tries to cut a deal that appeals to the profit motive of the system to the mitigation advantage of the client. Most municipal courts pretend that they are a real court of law with fair trials before a neutral and detached arbiter of facts and law. Atlanta Municipal appears not to harbor that illusion. So, the case moves fast. The municipal courts that have trials aren’t really in the trial business either. They just don’t acknowledge this fact.

When I say that I like this Court, I mean I like it to the extent that I like any Georgia municipal court. It’s a great place unless you’re innocent or poor. Within the context of a city/county justice system, it’s pretty difficult to get a trial at all there. When you bind the case over, you have a two-year wait ahead of you to get a case into court and an even longer period of time if you want a trial. It’s also probably not fun to be a poor person in any municipal court. In a system that values a defendant’s money so much, it is bad to have nothing you can offer. But as municipal courts go, Atlanta has the whole thing down to an art.

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

Posted in Opinions and Analysis

Lyndon_Johnson_and_Richard_Russell1I 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 Georgia Senator Max Cleland. He defended Senator Russell’s legacy and argued that we should not judge Senator Russell’s views by our more evolved views on segregation.

The Federal courthouse in Atlanta is one of many public works bearing the name of Richard B. Russell. A US Senate Office Building bears his name. Several dorms and other buildings at colleges in Georgia are named after him, as are several schools, roads, lakes, dams, and an airport. Senator Russell’s legacy is more than one of racism. His was a life of achievement and public service in several areas. I knew little about him until I read and became fascinated with Robert Caro’s volumes of biography about Lyndon Johnson. After finishing a book on Robert Moses, Caro has devoted his life and career to telling the story of LBJ. He’s still not finished. That story contains many biographies with the biography, Senator Russell’s being one of them. Caro tells the story of Senator Russell so well that I came away feeling a sense of connection to him. Many of my friends and colleagues who are fans of Caro came away with a similar feeling. Senator Russell created the school lunch program and was a saving figure in his leadership over the committee that investigated the firing of General Douglas MacArthur (the importance of what he did in that episode is beyond the scope of this post). He had a distinguished career in the Senate.  He was instrumental as a new dealer as a young governor of Georgia. To read Caro is to get a sense of the man. The Senate he dominated was a vibrant and strong institution. Personally, he was a life-long bachelor who never amassed great wealth in his years of public service. He also was a man of Georgia and carried proudly a family name with a  father who was also an accomplished public servant.

So, to the issue at hand, I actually disagree with the Federal Defender who advocates removing Senator Russell’s name from the Federal Building AND Senator Cleland. It is perfectly appropriate to judge Senator Russell for his stance on race and segregation. By any contemporary standard, Senator Russell’s views are shocking and disturbing. And even by the standards of his times, his views were out of touch with the majority. He was a master of the minutiae of Senate Rules — particularly the filibuster. And he used those rules, along with the Southern bloc of Senators, to defeat integration when the will of the majority of senators was to end it. He deserves to be judged for those actions. It is not enough to excuse such views as those of a “man of his times.” He was out of touch even with the time in which he lived on the issue of race. So, I disagree with Senator Cleland on his main argument.

However, I also disagree with the idea that his name should be removed from the Federal Building or any of the places that bear his name. He achieved much. His legacy as a Senator and a Georgian are worthy of remembrance into the future. Generations to come should know who he is and what he did. Those who might be prompted to learn who he is from seeing his name on buildings, schools, roads, lakes, and other public works should also come to learn of his racism and how he bent the rules of the Senate to block integration. To erase his name from the historical record is to deny even the chance of a discussion of who he was, for good or for bad. Georgia’s history, maybe even its present, is not the best on issues of race. But it is important to keep our historical figures in sight and in mind and even on the names of buildings, if for no other reason to learn about them and to engage in dialogue about them. There is a danger in the loss of dialogue about who we were — we lose sight of who we are and can be in the process.

To Prepare For Court, First Prepare Your Opponent’s Argument

Posted in Oral Argument
Ash If CC

Ash If CC

There is a psychological concept known as the curse of familiarity or the mere exposure effect. So the theory goes, we can develop a certain myopia with regard to things for which we have become intimately familiar and gathered expertise. This familiarity can make us see the world through that lens only. Then we lose sight of the fact that others may not be as familiar with the facts as we are. Our arguments can become old friends, and we can sometimes underestimate the value of our opponent’s argument. Also, we tend to gravitate toward the familiar and reject different ideas, not for their inferiority, but simply because those ideas are different.

The Perils of Overestimating Your Argument and Underestimating Your Opponent’s Position

This priciple is no more dangerous than when it happens with our argument or our position in a case. Over time, lawyers can fall so in love with our own argument that we cannot even wrap our head around our opponent’s. The result is that we do not see the strength of the argument and cannot plan to meet it. We make the mistake of preparing for the weak version of the argument that we perceive in our mind. Unfortunately, when we miscalculate the strength of our opponent’s position, we come to court unprepared. When it’s game time, find ourselves pitted, not against the straw man we trained for, but against the real opponent with the real argument. Suddenly, things come at us we did not anticipate.

My Pre-Argument / Pre-Court Ritual

I have a ritual that I do before every major court appearance or appellate oral argument. Instead of starting by  preparing to present my argument in outline form (presumably I know my argument already). I begin my preparation by pretending that I am my opponent. And I prepare his argument. What points would I lead with? What points would I de-empasize. What witnesses would I call? How would I attack me, if I were my opponent? Once I have prepared as my opponent, I truly understand that I am up against. Having put my own materials aside, I take out my opponents brief, my opponent’s main pleadings, transcripts of arguments for my opponent, and I spent the time it takes to get a full and very sympathetic grasp of my opponent’s argument. I try to resist the temptation to cut this exercise short or get dismissive. I pretend that I will be presenting my opponent’s argument. The exercise generally brings with it rude awakenings.

When I’ve truly gained an understanding of how my opponent will try to beat me, I change hats. I put on my judge hat and think of mine and my opponent’s argument from the point of view of a neutral third party.This process has prompted me to make last-minute shifts in my argument.

40 Questions

From there, particularly if I have an oral argument coming up, I will write out the top 10 tough questions I might expect to face during the argument. I then turn to draft the top 10 tough questions my opponent might get. After I’ve done this task, I will draft what I believe the top 10 softball questions are for my opponent and for myself. By softball question, I mean those questions that would help push my argument along if those questions were to come from a friendly judge or jury. A knowledge of these 40 or so questions helps me know what lies ahead in terms of challenges and strengths. I try to come up with an answer to all 40.

Then, and only then, will I prepare the outline of my argument. The outline of my argument is a whole separate post. But that outline is always better if I have prepared my opponent’s argument first.

Have a big argument coming up or brief due? Spend a few minutes walking in your opponent’s shoes. I think you’ll learn something valuable that will help you with your own argument if you do that.

When Opposing Counsel Tries to Bully You

Posted in Attorney-Client Relationship
OLYMPUS DIGITAL CAMERA

Flickr CC

Part of the fun of doing appeals and post-conviction work is hearing from colleagues with questions about things that arise in cases. Recently, I spoke with an attorney with an unusual situation. The lawyer was defense counsel on a serious child abuse matter. The prosecutor, when she supplied statutory discovery, told the lawyer that he was not allowed to show the discovery to the client, upon possible risk of prosecution. The prosecutor is obviously wrong, but this was a dangerous situation, at least from my perspective as a risk averse person.

Here’s what made it tricky. At first blush, my thought was to tell the lawyer to tell the prosecutor to go kick sand or simply to ignore the warning. The prosecutor was more wrong than a football bat. But there’s nothing more dangerous in a quasi law enforcement agent (these folks have badges) than a zealous belief combined with an unsound opinion. The prosecutor was either being a bully, actually believed that it is against the law to provide the client with discovery, or both. In either event, this person has the right to take pretty much anything to a grand jury, seek an indictment, and place the colleague’s career and life in jeopardy. The colleague would likely prevail in the end, but the journey would not be a fun one. So, I didn’t advise ignoring the prosecutor or giving the prosecutor a well-deserved middle finger. Here’s what I advised.

  1. Get the prosecutor to commit the threat to writing. I advised that the lawyer send an email to the prosecutor to confirm that the prosecutor actually held that position. Something along the lines of “Dear Eliot Ness. I’m just following up on our conversation about the Smith case. I want to see if it is still your position that you believe I am not allowed to share the discovery with Mr. Smith. Do you still believe that I cannot share it with my client? Do you still believe that I would break the law if I did so? In the event that I shared the discovery with my client, what would the State’s position about what should happen to me? I will assume that if I do not hear from you within 5 days, that you are holding course on what you told me, which is ‘_________.'” With any luck, the prosecutor will change course at this point and say so in writing. However, if the prosecutor maintains the same position, you have a statement in writing, which will be useful in point two.
  2. File a Motion. I advised that the lawyer then take the issue to the judge. The lawyer said what many lawyers say when I suggest filing a motion, which was “there’s a motion for this?” And I said, “yes, you can move for anything. Draft a motion entitled ‘Motion to Allow Defense Counsel to Provide Discovery to His Client.'” I suggested that the motion be constitutionalized, with a particular emphasis on the right to effective assistance of counsel under the Sixth Amendment and due process under the Fifth and Fourteenth Amendment. Remember the email that I advised the lawyer to get from the prosecutor? Attach it as Exhibit A. This email will prevent the DA from coming to court and saying, “I don’t know what Mr. Defense attorney is talking about. I never told him he couldn’t share discovery with his client.” The filing of the motion may force the DA to change course. If not, have a hearing.
  3. The Hearing. Hearings end one of two ways. You win or you lose. I told the lawyer that either is really good for his client. If the lawyer wins, further bullying from this DA might stop. The DA will likely be embarrassed. And the lawyer will come out of the hearing as the one with more credibility than his opposing counsel. If there are further discovery disputes, the defense attorney will likely be presumed right, and the DA will be operating under a cloud.
  4. If the Judge Rules with the DA, Oh What Fun! However, if the lawyer loses, then oh the fun that will be had as things unfold in the case. First, the lawyer will have planted reversible error in the record. Secondly, the lawyer will have a fun little tool to use at various stages as the case progresses. At the calendar call, if there’s some deadline to have decided whether to accept the State’s offer, the lawyer can say something like “Your honor, I understand that today is the deadline. However, I cannot advise my client whether to take the plea. Since he can’t view his discovery, he cannot assess whether this is a good offer or not.” If you get to trial, announce, “Judge, I cannot advise the client whether to testify. He is not allowed to see his discovery, and he cannot exercise this decision.” Even if the client takes a plea, the lawyer can say, “He feels hamstrung, judge. He’s taking this plea because he is afraid of facing a trial where he cannot know what is in his discovery.”
  5. Stop Subsequent Non-Written Communications with this DA. I advised this course for future cases. There are few DAs with whom I do not get along. However, for those, I limit person to person contact and conduct plea negotiations in writing. It actually makes life much more easy. I get what I need for the Court. And anything hinky can just get an exhibit sticker on it one day.
  6. A Kind Voice Turneth Away Wrath. So goes the Proverb. The louder, angrier, and less reasonable the DA is, the softer, happier, and more reasonable shall the defense attorney be. Don’t get in a spat with a DA in court. Efficiently and calmly make your record. Also, if the DA makes you mad, wait at least a day before deciding whether you will respond in kind. As Warren Buffett recently advised a young author, you can always tell them to go to Hell tomorrow. In other words, if you are going to take a harsh track, wait a day to see if you aren’t caught up in the emotion of the moment. You probably are.