Georgia Criminal Appellate Law Blog

Offering Insight and Commentary on Appellate Law and Criminal Trial Practice

A Big Lesson From a Short Failed Race

Posted in Attorney-Client Relationship, Writing

On Monday, I stood at the start line of a hot, humid, and crowded 10k. Before then, I had done longer races, including a couple of half marathons and a full about seven months ago. And over the last three months I had been working with a coach to up my game. I had even begun to see improvements in short spurts during speedwork. In weeks leading up to Monday, I had recorded splits a minute and a half to two full minutes faster than my normal pace. And, while the temperature and humidity had been climbing here in Georgia, I had made it a point to get my run completed at the coolest point in the day early in the morning.

So, on the Fourth of July I found myself in a starting wave at around 8:00 in the morning awaiting the signal to go. The start was consistent with the runner I thought I had become. For three full miles, I was running splits comparable to my new faster times. But in the back of my mind, I noticed a crack. I wasn’t feeling quite right, even on the downhills. I pushed through until the first uphill, which I hit at my newfound faster pace. But this uphill did not lead to a downhill. It instead led to a more graduated slope and into another uphill. And by the latter part of mile 4, I was in some trouble. A glance at the thermometer showed me that the temperature was 83, and I looked ahead to the bobbing of heads as thousands approached and made their way up another hill.

Within my brain was a debate centered around a single question: “what the hell do I do?” Stop entirely? Slow down my running? Change to a walk? Or try to gut it out at my goal pace? There was a voice in that internal dialogue that said that I would get off this course and never run again. Meanwhile, I was sweating. And I was getting dizzy. At this point in my running (I’ve been doing it for about a year and half, having come to the sport later in life), I am unclear on where the line is between toughing it out and foolishly putting myself into a medical situation.

I Slowed to a Walk

I salvaged a split at mile 4 that was slower than goal pace but one that would keep my overall goal finish time in reach. But mile 5 ended all hope of my finishing pace. I slowed to a walk, went for water at the next station, poured a cup on my head and drank another. At a few points along the way, I tried to resume a run. But it is hard to move back into a run once I am extremely fatigued and have walked some. At the beginning of mile 6, I started a run. And as mile 6 unfolded (and with the help of a downhill and the sight of imminent finish line), I began to get back to where I normally am when I run. I was even passing people at the end.

I finished in disappointment and with a sense of dread. It was a dread of telling people how I did. And it was a dread of synching my Garmin data from the watch to the app on my phone, at which point this would all be memorialized.

Lessons Learned

I synced my data and texted a screenshot of the run to my coach. And I felt compelled to also share in my commentary that “I know I am much better than this.” Wrong! He texted me back, “actually, what happened here is quite consistent, except for mile 5.” I showered, came home, and began to look at the numbers. It turns out he was quite right. My average minutes per mile in that race, almost to a second, was squarely on point with my average minutes per mile over most runs. The funny thing to consider was mile five, the mile that I walked. But for that mile, I would have finished a pretty significant deviation from my average, albeit still below the goal I had set for myself. The body and mind rather dramatically brought me crashing down to my average of training. Did I give up at mile five? I’m not sure how to answer that question. I did stay on the course. And I did resume a run on the last mile. I did, in fact, reach the finish line. But I spent a mile essentially giving up. So, the answer to the give up question depends upon mood and perspective.

But what did certainly happen is that my racing self ended up in a tie with my training self. And I think that there is a valuable lesson in that. It is very hard to outpace our training and a bit foolish to think that we can rally in a moment to outdo or undo our habits. Our bodies, minds, and spirits will revert to what we are generally like. That is not to say that we cannot change and improve. I thoroughly believe that the dial on my fitness and speed is moving to the right. But it is moving a slower pace than my hubris had led me to believe. When my training pace or habitual pace moves firmly to the right, so will the racing pace. Progress has come and will come over consistent effort, through showing up and giving it full effort on those Monday, Wednesday, Friday, and Saturday mornings. And perhaps to train for a race that, for me would kick off at 8:00 a.m. in high temperature and humidity, it might have been good to train in those conditions. I hadn’t crammed for the exam, exactly. It is just that I had prepared for the wrong one.

There’s a lesson here for the law practice and for clients. Just as a runner’s racing self will struggle to outrun his training self, a lawyer at a hearing, or writing a brief, or engaging in a jury trial will struggle to outperform the lawyer in his study, preparation, and practice for those events. Just as you cannot cram for a marathon, you cannot cram for a critical case moment.

Many of my clients commit crimes of addiction or crimes of impulsivity. And often the preparation for the judge involves a parallel effort to kick an addiction. Or that moment of impulsivity came from a lifetime of bad habits where the client lacked the requisite skills to react to a situation in a better way. But lawyers and their clients can improve. We improve by showing up. We improve by noticing that the needle can move, albeit at a pace that is almost undetectable and often at a pace that is slower than we think it has moved. We are the sum total of our habits and practices rather than the sum total of a small collection of aberrant moments.

And the race doesn’t begin at the start line. It begins months before on some track or on a sidewalk in our neighborhood as we work to improve, not just this one split but the average of all our splits over a longer period of time, maybe even a lifetime.

We are Having the Wrong Debate

Posted in News

A good number of people in my Facebook feed are passionate about gun control right now. And it appears that I have friends or “friends” on both sides of the debate. It would be nice if this passion would transfer to other amendments such as the Fourth or the First.

Alas, much of it is painful to read. As, Facebook does not exactly lend itself to intelligent discussion of any serious issue — its as if the whole thing is system of bumper stickers in real time. I’ll lay out some things that make it tough and explains why this development in the news has led to more “unfollows” than even the election had to this point.

  • The discussion is a policy debate masquerading as a Constitutional debate. The government’s ability to regulate the purchase, manufacture, and possession of firearms and ammunition is not unfettered, but it is far-reaching. The Supreme Court of the United States said so in Heller. I have written about Heller in a past post. Most of the big questions related to the second amendment are settled as a matter of constitutional law. The question is not whether a ban on certain types of rifles or more rigorous background checks is constitutional. The real question is whether such policies ought to exist as a matter of law. Constitutional law should likely never be debated by memes on social media. But here, the whole exercise is a bit of a detour even if memes were intellectually a good idea. If only Facebook had a way to test its users on whether they have read Heller before allowing them to write “Second Amendment” in a post.
  • Nobody Seems to Know What an “Assault Weapon” is or What Kinds of Weapons are More Dangerous than Others. The AR-15 is at the center of the controversy. But perhaps this part of the debate is misplaced as well. In a closed fire setting such as a nightclub, a handgun seems a more deadly prospect than an AR-15. In close quarters, a handgun would be more difficult to grab versus a rifle. And a rifle offers little by way of an advantage where the target is close. In reality a handgun can be fired rapidly, can be concealed, and is more difficult to take from an assailant. Yet, much of the talk is about banning automatic or semiautomatic rifles. Why is there no discussion of handguns? It is likely because handguns aren’t as visually powerful as rifles and because more people are likely to have handguns than AR-15s.
  • Religious Fundamentalism is the Issue. More dangerous than the weapon used is the ideology of the man who held the weapon. Sam Harris, in his most recent podcast, notes that much of the Obama administration’s reaction to the nightclub shooting would not make sense if the weapon of choice had been a pressure cooker bomb similar to the one used in the Boston terrorist attack. Religious fundamentalism is the real problem. In its Islamic form, it has led to terrorist attacks around the world. In its Christian form, it has led to terrorist attacks around the world and to some some fairly discriminatory recent legislation.

In the political discussion around the Orlando nightclub shooting, we are missing an opportunity to have a First Amendment debate and are missing the opportunity to take a sobering look at the real cost of religious fundamentalism. The second amendment piece is largely settled.

Why Can’t the Bar Create an Internal JQC to Discipline Lawyers who are Judges?

Posted in Legislation

It appears that the big news from the State Bar’s annual meeting is that the Bar will do nothing to encourage voters to oppose the referendum that will gut the Judicial Qualifications Commission. In the wake of the last-minute vote to gut the JQC, its chair, Lester Tate, resigned. Mr. Tate called upon the Bar to do everything in its power to see that the voters defeated the initiative. The Bar will do nothing. It won’t even encourage bar members to tell their friends about it. So, when faced with the decision in the ballot box, voters won’t even understand what the whole thing is about. And it will be worded in a way that begs for a yes vote.

The Bar, through its legislative representatives, has explained the decision not to oppose the matter:

  1. They don’t want to oppose the restructuring because they want to have some input on making JQC proceeding more public. Of course, judges appear to want the proceedings out in the open, also. So, it looks like the meetings are going to open up regardless of what the bar does.
  2. The Bar estimates that it would cost $5 million to oppose the initiative. I’ve not seen a breakdown of where these figures come from.

This sounds sketchy, but I’ll assume it’s all true. I’ve been both supportive of and critical of the JQC in the past. Overall, I thought that the JQC has made the bench a better place. There are fewer circuits today than when I started practicing that were hours away in distance and 50 years back in time. And I fear that the number of circuits like that will grow under the new regime.

Here’s a thought. Why can’t the State Bar of Georgia promulgate a set of standards of professional conduct for lawyers who function as judges? The rules already have a set of special entries for prosecutors. Indeed, why couldn’t the State Bar incorporate into the Standard of Professional Conduct the Judicial Canons of Ethics? Then the State Bar could discipline judges as the JQC did in its heyday of about five years ago. The Bar could bring JQC investigator Richard Hyde on staff. The Bar could even create a staff devoted to judicial/lawyer discipline. The cost of bringing the JQC function in-house would be substantially less than $5 million, and the Georgia bench could either make it into the 21st century or at least not revert very far into the 20th.

Just a thought.

A Radical Fundamentalist By Any Other Name is Still a Radical Fundamentalist

Posted in News

Since the Orlando Night Club shooting, Trump and others have criticized the President for not using the magic words “Radical Islam” in discussion of the news. According to NBC News:

When Donald Trump blasted President Obama for failing to make reference to Islam in connection with the Orlando nightclub massacre, the GOP’s presumptive presidential nominee was renewing a longstanding criticism of the White House’s carefully calibrated rhetoric about terrorism.

Obama “disgracefully refused to even say the words ‘Radical Islam’,” Trump said in a statement Sunday. “For that reason alone, he should step down. If Hillary Clinton, after this attack, still cannot say the two words ‘Radical Islam’ she should get out of this race for the Presidency.”

Trump repeated his criticism on TODAY Monday morning, saying Obama was “not addressing the issue, he’s not calling it what it is.”

Although the Orlando gunman pledged allegiance to ISIS, Obama didn’t mention Islam in his remarks about the mass shooting Sunday. In televised remarks at the White House Monday, Obama said the killer had been influenced by “extremist ideology,” but the president did not use the modifier “Islamic.”

This is an interesting argument. Obama uses the word “extremist” instead of referencing “radical Islam,” and the price he should pay is resignation or impeachment. He no longer gets to be President for failing to use those exact words.

And yet neither Mr. Trump nor anybody else asked the President to use similar terms to describe radical militant Christian terrorist Robert Lewis Dear when he acted from motives of, well radical militant Christianity. Mr. Dear went into a Planned Parenthood clinic last Fall where he killed 3 people, including law enforcement. He wounded 9 more in an intensive multi-hour standoff. His motives were purely religious in nature. He called himself a “warrior for the babies.”

The New York Times profile describes his religious views in depth.

“Turn to JESUS or burn in hell,” he wrote on one site on Oct. 7, 2005. “WAKE UP SINNERS U CANT SAVE YOURSELF U WILL DIE AN WORMS SHALL EAT YOUR FLESH, NOW YOUR SOUL IS GOING SOMEWHERE.”

A number of people who knew Mr. Dear said he was a staunch abortion opponent. Ms. Micheau, 60, said in a brief interview Tuesday that late in her marriage to Mr. Dear, he told her that he had put glue in the locks of a Planned Parenthood location in Charleston.

“He was very proud of himself that he’d gone over and jammed up their locks with glue so that they couldn’t get in,” she said.

And, similar to accounts of many Islamic fundamentalists who killed for their faith, he saw holy martyrdom as a goal. A person who knew him said, “she can’t believe he was capable of such things, and I think that’s what’s upsetting her most,” the relative said about Ms. Bragg. “He believed he was doing God’s will, and I’m sure he probably wanted to die in the process of carrying out what I’m sure he thought was right.”

Yet, to read news accounts describing what Mr. Dear did, his actions are seldom described as terrorism (though he certainly is a terrorist). He is described as a mentally ill man who committed a criminal act (which, it appears, he is and did).

But one must look hard to find any description of him as a radical militant Christian. In fact, when pressed, Mr. Trump would not use the words “radical militant Christian.” He said on Meet the Press:

“I think it’s terrible. I mean, terrible. It’s more of the same. And I think it’s a terrible thing. He’s a maniac,” Trump said on NBC’s “Meet the Press.”

“I think he’s a sick person,” he added. “And I think he was probably a person ready to go. We don’t even know the purpose. I mean, he hasn’t come out, to the best of my knowledge, with a statement as to why it happened to be at that location.”

He still has refused to acknowledge that the man who did this awful thing was radical, a Christian, or even a terrorist for that matter. Maybe he should drop out of the race.

Fundamentalism is fundamentalism no matter what the name for God is at the center of it all. And generally if a person is shooting up or blowing up a large group of people, you can bet that he  thinks that his scripture calls for it or God has requested that he do it. When fundamentalist Christians kill for their views, the action is deemed a criminal act by a crazy person. And there seems to be a very nuanced conversation calling into question whether the person was really a Christian, since the New Testament would not really call for actions such as theirs. Yet, when a Muslim commits an act for religious motives, the person is clearly a terrorist acting out the tenets of his faith. And any condemnation of the person’s actions that does not bear witness to this truth is grounds for impeachment.

If one compares The Bible to the Quran, the Bible is a much more violent document, by far. So, perhaps, if we are to ban any group on the basis of religion, we should keep a close eye on Christians (which I am), particularly the Fundamentalists among us. Yet, I don’t expect such a call to come from the presumptive Republican nominee since Christian Fundamentalists are such a big part of the Republican base.

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

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

Roderick Bridges. Handout Photo 3-4-2016

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

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

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

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

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

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

Much Belated Thoughts on Changes to Georgia’s JQC

Posted in News

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

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

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

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

Removing the Stigma When You’ve Done Your Time

Posted in News, State Habeas Corpus

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

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

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

Yo Gotti: Making the Henry County Judiciary Famous

Posted in News

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

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

How Not to Solicit Campaign Contributions

Posted in News

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

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

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

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

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

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

The Conscription of Apple Engineers into Government Service

Posted in News, Opinions and Analysis

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

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

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

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

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

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