Georgia Criminal Appellate Law Blog

Offering Insight and Commentary on Appellate Law and Criminal Trial Practice

A Connection and Valuable Lesson from the Alma Mater

Posted in Attorney-Client Relationship

Over the weekend, I received a package from my undergraduate school, Mercer University. Generally, when I receive correspondence from Mercer, Georgia State, or Emory, it’s alumni spam. This was in a hand-addressed manilla envelope. I have a recurring dream where a school I attended figures out I’m a credit short and revokes my degree. I also keep waiting for the Bar to rescore my exam to tell me that I didn’t make it after all.

I opened the envelope to find a small paperweight sort of a trophy. The date of the giving of the trophy was May 24, 1993, for service as a Mercer Ambassador in the 1992–1993 school year. Mercer Ambassadors function as young smiling faces for alumni events and certain school functions. I recall being involved in it my sophomore and possibly my freshman year. There must have been some sort of trophy presentation — perhaps at an awards day — that I missed.Trophy

There was a nice card enclosed from the Coordinator of Alumni Programs, a lady named Anneliese Newberry. The hand-written card said,

The enclosed award was found whle cleaning out an area of the office, and
we wanted to make certain it reached your hands. Being an Ambassador is
an honor, and you deserve the accolade!
Best Wishes,
Anneliese Newberry

I don’t remember much about being in that program. I recall that we wore Maytag Repairman looking blue blazers with a crest. The Mercer website shows that the bunch these days dress much more tastefully.

Nice NoteBut, all that aside, Ms. Newberry did, in a simple gesture, something more valuable than all of the slick alumni magazines I receive every few months could ever do. She made a connection with me. How easy would it have been simply to throw away the “award”? It’s likely that I would have done precisely that had I been cleaning out a closet and found it. After all, some person from 1993 must be in a retirement home by now or too out of it to comprehend the correspondence.

I’m sure that Ms. Newberry will raise a zillion dollars for the school, and I will take from this kind gesture a very valuable lesson in customer service.

The Dark Side of Referrals

Posted in Attorney-Client Relationship, Uncategorized

A few days ago, Seth Godin wrot about referrals and their true meaning in a profession. When they work well, a referral comes with it a high degree of trust. When you refer a client to another person, you stake some of your reputation on the person to whom you made the

imagereferral. In addition, the person to whom you made the referral will hold you at least somewhat responsible if the client turns into a pain in the neck or is a waste of time.

My best clients come from referrals. Good clients have found me through Avvo, this blog, or someplace on the internet, but most of my good clients have come from other lawyers, from judges, or from former clients. Where does my internet presence come in handiest? It helps the most when clients who have been referred to me start doing research.

But there is a dark side to referrals. Sometimes, a lawyer refers a potential client because the two lawyers have a special arrangement worked out as in “send me all of your personal injury cases, and I will send you all of my criminal defense calls.” Even worse, lawyers have arrangement to along the lines of “I’ll refer you every criminal case, but I expect you to send me 10% of every fee you get.”

At worst, those sorts of arrangements violate ethics rules. When a client pays a fee, the client should know if a portion of that money is going to a third party. And those funds should go to a person who is working on the case.

But even at best, referrals based upon an agreement between counsel shortchanges the client. After all, a referral is a lawyer’s way of saying that, while I am not the particular person for the particular matter and client right now, my colleague may well be the perfect person. The focus should be on getting the client the right lawyer, not just on securing business for a buddy and particularly not on securing a kickback.

When referrals work well, they are a wonderful thing. Referrals get a client access to the right professional and the professional a client who is a good fit for the practice. Referrals are  about trust. When they are solely about money, they do not work well at all. There is much to think about when it comes to referrals.

 

Vanity Fair Profile on Judy Clarke

Posted in News

Are you an attorney looking for inspiration? Are you a client who disagrees with your criminal defense lawyer’s tactics even though you see she’s working hard on your case? Run, don’t walk to pick up a copy of Vanity Fair, or read online Mark Bowden’s piece on death penalty defense lawyer Judy Clarke. It was just the motivation I needed for the middle of a tough week doing this job.

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

Posted in Opinions and Analysis
Jonathan McIntosh Flickr CC

Jonathan McIntosh Flickr CC

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 in The Atlantic Monthly, “[i]f the government puts a GPS tracker on you, your car, or any of your personal effects, it counts as a search—and is therefore protected by the Fourth Amendment.” This opinion could spell changes for Georgia’s regime of tracking persons in Georgia who have been designated as Sexually Dangerous Predators.

In Grady v. North Carolina, the Petitioner challenged a court order requiring him to wear a GPS tracking device for life as a violations of his right to be free from unreasonable search and seizure. The North Carolina courts rejected his claim, reasoning that the placement t of a tracking device was not a search. The United States Supreme Court’s per curium opinion held that the placement of a tracking device on the person of Mr. Grady was a search as defined by the Fourth Amendment. But the Court remanded the case for a determination of whether the search was an unreasonable one. This case could make its way back to the Supreme Court eventually.

What is the possible consequence for Georgia? Consider first the comparison between the way GPS tracking for sex offenders works in in North Carolina versus Georgia.

  • Under North Carolina law, a person convicted as a recidivist sex offender goes before a judge where, after a hearing, the decision may be made to place a lifetime tracking device on the person. In Georgia, all sex offenders with convictions, a move to Georgia, or a release from prison after 2006, will be reviewed by Georgia’s Sexual Offender Registration Review Board. The offender never has the right to a hearing.
  • The SORRB can choose to classify even a first-time offender as a Sexually Dangerous Predator and force the offender to wear a GPS monitor for life. And the SORRB can, and often does, rely upon police reports and other hearsay materials in reaching its conclusion. In North Carolina, GPS tracking for sex offenders does not become an issue until there is recidivist treatment.
  • In Georgia, there is an opportunity for judicial review in a Superior Court. However, the judge who considers the case may deny the petitioner the right to a hearing. In that case, the judge who decides whether to make a person wear an ankle monitor for life relies upon the hearsay that the SORRB used as well as the hearsay analysis that the SORRB prepared and sent over to the court. It will be interesting to see how those orders stand up in the wake of Grady.

For Georgia lawyers going forward,  a claim under Grady can be made on SDP appeals. And for folks who have already passed that point, there is room for a HABEAS challenge raising Fourth amendment grounds. As the process is set up in Georgia, with little meaningful judicial scrutiny, it would be hard for the government to demonstrate that the decision to violate a person’s Fourth Amendment rights was reasonable. After all, even for something as routine as a search warrant, a magistrate hears or considers sworn testimony. Not so in many SORRB SDP cases. For more on that process, consider my previous post.

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

Posted in News, Opinions and Analysis
Flickr Creative Commons  Dags's Bricks

Flickr Creative Commons
Dags’s Bricks

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 mandatory sentence of life without the possibility of parole.

Atlanta Judge Wendy Shoob instructed the jury (pdf) that a conviction for the offense would bring a mandatory life sentence without the possibility of parole. The jury ultimately convicted of the lesser included offense of robbery by intimidation. But not before the Fulton County District Attorney moved to recuse the judge from the case and not before the judge refused to grant the State a certificate of immediate review.

When I first read this story in the Fulton Daily Report, my reaction was that the judge made a gutsy and principled move but one with little basis in the law. I held this view until I read the Order.  I walked away from the order with the belief that the order is on a firm legal footing. Allow me to provide a brief overview:

  • Under the Georgia Constitution, “in criminal cases, the defendant shall have a public and speedy trial by jury; and the jury shall be the judges of the law and the facts.” Here, the State objected to an instruction to the jury about sentencing, arguing that the jury is responsible for guilt and innocence and the judge is responsible for sentencing. But, not so fast, said Judge Shoob. With mandatory minimum sentencing, the judge has no real power over the sentence. The sentence and the verdict are inextricably linked to one another. Hence, the jury ought to know the consequence of the verdict.
  • There is a historical basis for the power of the jury as a check against an overreaching government. Here, Judge Shoob actually cites The Federalist Papers to support a position that the jury has a tradition function to maintain free government. That function includes the right to nullify.
  • Recent United States Supreme Court decisions have stressed the importance of returning the jury “to appropriate constitutional powers and essential role within the Constitution’s system of checks and balances. Here she goes into recent Sentencing Guidelines Cases that have returned to the jury certain powers with respect to sentencing.
  • Finally, she reasons that the jury has the right to know about mandatory sentencing. First, “where the Court is bound by the statutory term of imprisonment, the jury essentially determines both the verdict and the sentence.” This last point sound a good bit like her first point. But, here, she references cases from around the country and she weaves two previous point together. “When the prosecution does not use its power carefully and equitably, and the judge is removed form sentencing decisions, the only thing that stands between the individual and the awesome power of the State is the jury system.”

A couple of points. I do not think I’ve ever received an order from a Georgia State or Superior Court judge that quotes The Federalist Papers. Also, the point that under a mandatory minimum regime, the verdict determines the sentence is a powerful and innovative one.

I will leave for another post the idea of prosecutors who use recusal motions when a judge does something that they do not like. It is trend I have noticed around the State lately.

Pro tip: weave Judge Shoob’s Order into motion or request to charge in your next case with a mandatory minimum.

Study Shows that Few Have Counsel for Bond Hearings

Posted in Attorney-Client Relationship
Moby's Photo - Flickr Creative Commons

Moby’s Photo – Flickr Creative Commons

It’s a scene I have witnessed hundreds, if not thousands, of times. At a first appearance hearing, a magistrate judge calls the calendar as twenty or so inmates in orange or green jumpsuits are brought out chained to one another. The look on their faces is one of shock or of last night’s drugs or alcohol. The judge reads out a list of basic rights and criminal charges. The group is then taken back to a holding cell. Some will get bond immediately. Others will remain in jail another week or more for a lawyer to be assigned or retained. Generally, if I am on the case at the first appearance stage, I am the only retained lawyer in the room. Most lawyers are not retained yet at this stage. The arrest came unexpectedly and there wasn’t time to get the lawyer arranged yet. If I’m retained before first appearance it is because I was retained when my client learned that he was the target of a criminal investigation or because I was reached late the afternoon or night before. Invariably, I will have some ducks in a row, which means that I will likely get a better bond than the folks in jumpsuits who stand before the judge alone trying to fend for themselves. Those who don’t get a bond or for whom bond is set in an unattainable amount may be stuck with what happens to them. Weeks down the road, the Superior Court judge will be reluctant to second guess what the earlier judge did, even if the earlier judge didn’t have the benefit of a thorough presentation.

In a post titled “Bail me out, bro,” A Public Defender discusses a report from The Constitution Project. The findings confirm what I have witnessed from an anecdotal perspective my entire career. As reported by A Public Defender, “very few people have the benefit of counsel, which leads to high bail amounts, greater incarceration and increased numbers of people pleading guilty simply to get out of jail.”

Though not discussed in the blog post, the problems likely do not end there. Often, the defendant who takes a plea just to get out of jail sets himself up for failure by taking on sentencing conditions that he is not prepared to meet (for instance, the addict who signs up for random urine tests or the homeless person who now must register as a sex offender).

Bond hearings are tricky and can be complicated. The lawyer who appears for a bond hearing needs to know things like the amount of equity in a home (and we are coming out of a period of history where equity is at an all time low), the number of character witnesses who can vouch for the defendant, or enough about the defendant’s background to demonstrate that she has sufficient ties to the community not to pose a significant flight risk. Sometimes the smart thing to do is advise the client to remain locked up a few more days so that a defense can be presented at the bond hearing. On complicated or serious cases, a bond hearing can be every bit as tricky as a suppression hearing or pretrial motion in limine.

Bond has a trickle-down effect to other portions of the case.

  • It is easier to defend a client on bond. The client can come to the office to review discovery without the risk of a potential snitch reading it in prison.
  • Trial preparation is smoother with a bonded client. The client is free to come to the office to meet with counsel and prepare for testimony.
  • A client on bond can get mental health or addiction treatment in a way that a client in jail cannot.
  • A client on bond can maintain contact with family and can continue to work, while an incarcerated client may have his life literally fall apart while in jail awaiting trial.

Access to counsel at a bond hearing is every bit as important as having a lawyer at trial and at sentencing. The fact that representation by counsel at bond is an exception rather than the rule is disturbing. When a client loses a bond hearing, he is likely to lose other critical components of his case as the matter unfolds.

Lawyer Who Let Client Write Brief Faces Sanctions from SCOTUS

Posted in Attorney-Client Relationship, News

I just read at Bitter Lawyer and The Lawyerist about a show cause order issued by the United States Supreme Court for the submission of a certiorari petition that was hard to read and which departed significantly from the Supreme Court rules. What happened? The lawyer allowed the client to draft the certiorari petition.

I don’t know the back story, but I can imagine what it is. I don’t assume the lawyer was being lazy. Rather, I imagine that the lawyer was “beaten down” and just gave up. Appellate clients can have strong opinions about what should be included in the brief, what arguments should be raised, and what facts should be emphasized. These views are often reinforced through limitless time with little else to do, the influence of fellow inmates with optimistic views of various statutes and precedent, and access to out of date legal materials. Imagine what it would be like for a conscious patient to have access to a medical library during a surgical procedure and a voice to advise on procedural components as the case unfolds. Or imagine if a passenger in row 15C of a plane had a microphone connected to the pilot’s headset. That’s what criminal appellate practice can be like.

The United States Supreme Court is clear how it should work. The lawyer makes decisions on which issues to raise on appeal, the order in which they should be raised, and even which potentially meritorious issue to leave out. The client has the right to be consulted and to have the client’s input considered. It sounds simple on paper, but it plays out in complicated ways as the appeal progresses and can be a true sense of frustration for the lawyer and likely for the client as well.

  • If the lawyer was retained, rather than appointed, the client is technically the customer. In that circumstance, it can be easy for the client to imagine the lawyer as a scribe with a law degree, whose job it is to write down, in lawyerly prose and with a lawyer’s signature the arguments the client wants to raise.
  • If the lawyer was appointed, the client and lawyer may be stuck on this boat together. The judge will be hesitant to support the client’s inclination to represent himself and will not want to appoint a different lawyer. The client will often try to bait the judge into allowing the lawyer off the case to create an appellate issue.
  • Often, it can be tempting to simply paste the client’s language into the brief as a way of buckling the pressure.

This problem is even more difficult in Georgia. The issue you opt to leave out of your brief can come back to haunt you in a habeas petition. However, if you fold in the wake of pressure to include the client’s pet issues, you are open to attack for failing to exercise professional judgment: “You listened to me. Therefore, you were ineffective.”

The lesson from the recent development in the United States Supreme Court is that you cannot abdicate your responsibility as the appellate lawyer. As tempting as it might get to say, “Okay, since you don’t like my ideas, I’ll just put your stuff in the brief.” If you do, you will be held responsible.

Are Conservatives Better than Liberals at Criminal Justice Reform?

Posted in Uncategorized

red stateThe Federalist has a piece up positing that Conservatives are outdoing Liberals at criminal justice reform. Until recently, I would not have taken an article like this seriously. I’m now a few weeks into my time as the Legislative Chair of the Georgia Criminal Defense Lawyers. In that time, I’ve watched a groundbreaking new eyewitness identification bill make it out of the Senate unanimously. And I testified as a witness before a subcommittee of the Georgia House Judiciary Non-Civi Committee on a very progressive DUI implied consent bill to limit forced blood draws to only the most serious cases. I was impressed with the level of engagement as well as the pushback when a line of prosecutors testified.

We may be permanently a red state, but I’m pleasantly surprised. And I think the Federalist society may be right.

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. The idea is that jurors might be swayed by sympathy in the guilt-innocence phase of the trial if they knew what was in store for the defendant after a guilty verdict. For instance, an armed robbery conviction in Georgia carries with it a minimum mandatory ten years to serve without the possibility of parole. For certain repeat offenders, a guilty verdict means life without the possibility of parole. Jurors are not told about minimum mandatory sentences unless they stay to watch the sentencing hearing.

Scott Greenfield posted at Simple Justice about a Federal Judge who consulted with the jury on what a fair sentence ought to be in a case. Turns out that most jurors would sentence well below the sentencing guidelines. And I imagine, on the State side, that jurors would often sentence below the minimum mandatory.

A few months ago, I tried a case in Federal Court where the jury reached a guilty verdict. I noticed that many of the jurors were crying as they walked into the courtroom (never a good sign). After it was all over, they asked me to come back to the jury room to talk to me about their decision. They then asked the prosecutor to be lenient.

In between the verdict day and the ultimate sentencing date, I consulted with many colleagues who regularly practice in Federal Court about whether it would be a good idea (or even ethical) to invite jurors back to testify in mitigation. Opinions varied, but the consensus was that I should not do it. There was no way to know how a judge might respond to this kind of testimony or whether such a move might appear to be a stunt. I ultimately decided against doing it, thinking that the potential downside outweighed the potential good. After all, the judge saw the same trial they did. And he hopefully saw things the way they did.

When it was all over, my client received a sentence significantly below the guidelines.

Scott Greenfield’s blog post raises an interesting question. Should jurors have a role in the sentencing process in more cases? And could jurors be consistently be counted on to recommend or impose a sentence below guidelines or below a mandatory minimum?

Philosophically, I don’t think I’m into the idea of jurors imposing sentence. There’s a reason that we give jurors their job and judges theirs. However, it’s appealing to me to wonder if legislatures would be as prone to enact mandatory minimums if they were taking the sentencing power away from jurors rather than judges? I’m not sure what the answer is. I suppose they would do in the sentencing world what they’ve done to damage caps in the civil world. However, the minimum mandatory universe makes me a little less certain about whether juries should have a hand in the sentencing process. Perhaps outraged jurors would put pressure on their legislature to eliminate some mandatory minimums.

My Take on Georgia’s Forfeiture Legislation

Posted in Legislation

This year, I am the new legislative chair of the Georgia Association of Criminal Defense Lawyers. A big part of that job involves evaluating bills before Georgia’s General Assembly and reporting on them to our membership and to our lobbyist. When I make those reports, I am also going to take what I am learning and discuss it here.

One of the most tragic moments I see in the average criminal calendar (and there is much from which to choose) is the forfeitures section. Generally, it comes at the end of the morning. The DA picks up some files and sounds for the forfeiture cases. At which point either nobody answers and the property or money is forfeited to the state by default. Or some unrepresented person stands up. Often, the person who stands is a mom or a dad whose son was arrested for drugs. And the person is the owner of the car. Generally, that person loses before he knows what hit him because he either didn’t file an answer or failed to follow some arcane technical procedure from within the forfeiture code.

HB 233 seeks to reform Georgia’s forfeiture statute and fix some of the things that are wrong with it. I don’t think I’ll ever get my wish to do away with forfeiture altogether. Georgia’s law enforcement will continue to have a license to steal. Under the new statute, the stealing is going to get a bit more fair and possibly much less corrupt.

This Bill is a monster. It’s 111 pages long. I’ll summarize a few points below. And you can check out some of the background. Politifact has noted that Georgia’s current forfeiture statute is among the worst in the country and the worst in the South. The Savannah Morning News has called civil forfeiture “Georgia’s Dirty Little Secret.” The article goes on to point out:

Georgia is one state where the property can be seized and held even if it does not belong to the perpetrator of the crime. If the criminal is driving the parent’s car, for example, or conducting drug deals in a home owned by someone else, that property can be seized. And the legitimate owner’s fight for its return can be lengthy and expensive. Meanwhile, the owner is deprived of the use.

What’s Good

Here are some of the main improvements in the new forfeiture bill by reference to line number.

  • lines 120 ff. I like that law enforcement has to make a reasonable effort to seek out the innocent owner of a vehicle. I’ve seen many moms and dads lose vehicles without ever getting served or otherwise getting notice of a pending forfeiture;
  • Lines 183 ff. The forfeiture lien is a less drastic alternative to seizure of real property.
  • Lines 238 ff. The option to sell a perishable or depreciating asset or an asset whose value may be greatly reduced over time is a much needed improvement. I’ve seen property owners prevail in forfeitures only to see the value of the property eaten up by impound fees.
  • Lines 390 ff. This may be the best improvement of all. If the answer is defective in some way, the State must file a motion asserting what the defect is. And the claimant can amend the answer. This corrects the biggest evil in the current statute. As it stands now, the forfeiture is confusing with a set of Byzantine procedures. It’s really a big game of “gotcha.” It’s a rare calendar that doesn’t feature some poor pro se forfeiture claimant who loses by default over some technical thing or another. This is a major fix to current law.
  • 407 ff. There is no right to discovery. However, upon good cause, the court con order that discovery be had. There’s obviously good and bad here. The good, is that a criminal defendant need not be placed in a position where he has to choose between his 5th amendment rights and defending the forfeiture. It’s bad in the sense that I’ve often used the discovery process in a forfeiture to get discovery for the criminal case. This would come in particularly handy where the forfeiture involved something of nominal value.
  • 668 ff. I like that the judge has some discretion over where the money goes. Forfeiture is less a “license to steal” under the proposed new regime than the old law.
  • 797 ff. I like the annual report feature. Forfeiture funds are less of a “slush fund” than under current law. And there’s way more accountability
  • 740 ff. We shall call this section of the Bill the “David McDade Memorial Passage.” This section will make it illegal to pay for staff with forfeiture funds. Much needed improvement

What’s Still Bad

There is still a good bit about forfeiture that is not very good.

  • The bill needs language that explicitly requires the attorney who brings a forfeiture be either an elected DA or an assistant DA working on salary. I’ve always found the hired gun / plaintiff’s lawyer on contingency system to be offensive. There is a small cottage industry of lawyers who set themselves up with local DAs on contingency arrangements. This bill doesn’t put them out of business.
  • I don’t think that the bill goes far enough to dis-incentivize the outright theft of private property. Ideally, the local law enforcement agency should not be allowed to keep what they take. This system would be less corrupt if the seized assets could all go to a centralized statewide pool of funds to be awarded at the discretion of a non-local board in the form of grants. As long as the seizing agency has the first claim on the property, there’s an incentive for corruption. I suppose that the sheriff’s and police chief’s lobby is too powerful to do anything about this.

The best news would be the elimination of forfeiture or for the local seizing agency to give what they take to a statewide pool. However, short of that, the new forfeiture bill makes many steps in a better direction.