Georgia Criminal Appellate Law Blog

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What Every Lawyer Can Learn from the Red & Black Controversy

Posted in News

I have no affiliation with the University of Georgia. But I have been glued to the controversy over its independent newspaper for the past week and a half. And if you are a lawyer who is interested in social media, you should learn this story and use it as a parable. It has much to teach about the importance of social media and its potential power as a tool of engagement. I don’t take sides here about who was right or wrong. But I want to look at how social media was a part of the story and how a group of college students used it to achieve their goals with the paper’s Board of Directors, most of whom appear to be seasoned journalists and successful businessmen.

Watching this story helped me to “get” social media a little bit better.

An Overview of the Controversy

The Red & Black is the college newspaper for the University of Georgia. It operates as a non-profit corporation in Athens and is governed by a Board of Directors. And the students have traditionally been in charge of the paper’s day-to-day operations. It has been in operation for over a century and is highly regarded. Many Georgia journalist worked on the paper when they were students. A week and a half ago, it editorial staff walked off the job in protest of what they claimed to be attempts from the “adult supervision,” professionals hired to guide the paper, to seize control of the paper’s editorial decisions. In particular, the controversy centered around a memo written by Board Member Ed Stamper (the exact meaning of this memo and its intended use remains still an issue).

From the student editor’s perspective, the memo was meant as a directive to guide prior review of stories. From Mr. Stamper’s perspective, the memo was a rough set of talking points to be used to “guide” the paper.

When this memo went public, the focus was on the memo’s emphasis on achieving “[a] balance of good and bad” stories. A “good” story was defined as “[c]ontent that is ABOUT our audience doing something unique, new, dramatic, ie scholarships for freshman” a “bad” story was defined as “[c]ontent that catches people or organizations doing bad things. ‘I guess this is journalism’ I think we are alighned on crime and ‘who started off the year with a police record.’ And that the freshman class lacks some minority demographics.”

The memo concluded with “If in question, have more GOOD than BAD.”

The students read the memo one way. Mr. Stamper believed he meant something else. Unfortunately for Mr. Stamper, his point of view did not come to light fully until Katheryn Hayes Tucker ran a story in today’s Fulton Daily Report..

By contrast, the students immediately started a WordPress blog, titled Red & Dead, a Facebook profile, and a presence on Twitter..

They interspersed journalism — you’ll find some stories there — with their message. They had a theme, and they stayed on it.

The story was eventually picked up nationally, including coverage by the New York Times..

Eventually, Mr. Stamper resigned along with another Board member, and the students got their jobs back.

How did these kids manage to run circles around the very professionals whom the board put in place and tasked with making the paper relevant and the content engaging? Could it be that the kids know more about that subject than the pros?

The Big Irony

There’s an irony in the middle of the whole thing. One of the memo’s aims was to engage the readers through social media. From the memo: “More of: Content that is FROM our audience, which automatically makes it of interest to our audience, ie comments, letters, comments, poll results, chatter from social media, reviews.”

According to Lindsey Cook, the students’s social media general, “[t]he reason I left Red & Black turned into The Red and Dead’s strength. It was cowboys versus indians; we had guns; they had bows and arrows. Within an hour, our brand was on Twitter, Facebook and WordPress. … We would win. I was sure.” And “By the time most of the world woke up, we had begun a rival news organization.”

Did you hear that? The students went back to their apartments and started an organization to rival an institution with a $4,000,000.00 endowment. And they did it with some iPads, phones, laptops and a wifi signal.

The Board relented, not because the students were more on message, not because they needed the students back. But had the students stuck it out, they’d have started a fiercely competitive rival newspaper.

I wonder if the students ever realized that the paper needs them more than they need the paper?

And for Ms. Cook, who had been waiting for permission from the grown ups to truly engage with the Red & Black’s readers, this was her opportunity to show the paper what it had been missing.

The irony is that the whole point of Mr. Stamper’s infamous memo was to achieve engagement with the reader. Turns out that the adults just didn’t understand the tools well enough use them. And, when the students were freed from the institution, they showed their true expertise.

They Still Don’t Get It

The Board had some good points and that Charles Russell, one of the members who resigned, stated some good reasons for his resignation. Indeed, the best pure journalism I’ve seen on this story is the Daily Report’s article.

Mr. Russell believed that the decision to walk out on the paper at deadline time was a firing offense. It’s a valid point. And it’s a point that was never made until now. After that, though, Mr. Russell doesn’t do so well.

From the Daily Report:

Russell said students “have no idea how deep” the threat to the newspaper industry goes, but he acknowledged the students’ skill in teaching their elders a lesson this week. Said Russell, “We don’t know how to manage getting lynched on social media.”

Lynched? Was this a high tech lynching of uppity Board members? The claim of victimhood pales more here than it did in the Thomas confirmation hearings.

Threat to the industry? In less than a week, the students started an organization from scratch and had more pageviews than the Red & Black. The Board might count itself lucky to have those students back and let them keep doing what they’re doing.

The same tools employed by the students were available to the Board members. In fact, they are free. And the fact that the students were better able to use them does not make them parties to a lynching. But it may help explain the dire financial straits in which the paper now finds itself. The Board appears hopelessly out of touch with the very social media engagement that the students used to beat them.

The Parable for Lawyers

I see this struggle as a fight between folks who get it and folks who don’t. The Board clearly didn’t. The students did. There is a similar divide among lawyers when it comes to social media.

There are a bunch of snake oil salemen out there who are trying to profit from lawyers who want to get into social media. But there is no shortcut to engagement. It’s as simple as diving in and learning from the people who are good at it. And to be humble enough that the people who are best at it may be way younger than you.

To quote Mr. Stamper’s memo, the students should “Beg them to engage with us.” How many telemarketing calls and emails have lawyer received promising that, if you hire the person on the other end, that you’ll be able to get more clients through social media. The strategy is essentially an invitation to “beg” engagement. You cant beg people to engage with you any more than you can beg someone to be your friend or beg a girlfriend to not break up with you.

The trick is simply to dive in and engage. Engage your audience. Engage your current clients. Engage them when they call and write. The trick is not pandering but true engagement.

When the students came back on the job, they said that they were now empowered to engage. So, I tested them out. I tweeted this questions to them “What lesson do you think other traditional media outlets can learn from your story from last week.”

Within hours came this answer, “The power of social media mainly; what works and what doesn’t. Too often news orgs forget social media is social, a conversation.”

Substitute the word lawyer of law firm for “news orgs.” and you will have your social media marketing stategy for the next five years.

JQC Zaps Another Magistrate Judge

Posted in News

Robin McDonald of the Fulton Daily Report notes in a story today that Murray County Magistrate Judge Bryant Cochran resigned his post as Chief Magistrate Judge. His resignation letter departs from they typical fare of this genre — quivery sharky handwritten script, tendered to Richard Hyde. He doubled the average sentence length to two whole sentences. And the content is different, too.

Judge Cochran made clear that his resignation was not related to allegations that he used the power and prestige of the office of Magistrate Judge to pick up girls (Indeed, one would think that being a county magistrate judge would be an impediment to wooing. You’d want to say vaguely that you are a “judge” or more vaguely “I work at the courthouse.”).

He also noted that the resignation was related solely to the fact that he handed out signed blank warrants to law enforcement. In a written statement that his lawyer forwarded to the Daily Report, Cochran said, “I accept full responsibility for the warrants that were pre-signed.”

It appears that Judge Cochran’s practice was only a slight departure from the way things typically work in the warrant-granting process statewide. You’re suppose to rubber stamp the warrant after the cop fills it out, not before. Judge Cochran’s departure saddens me more than any of the 8,000 other judicial resingations in the last 3 years because his practice was a rare honest statement about how the role of magistrate works. This is the very practice of judicial efficiency and economy that we heard so much about in law school.

Indeed, I was hopeful that the original story was true that his staff actually controlled the issuance of the blank warrants. I would think that a law enforcement agent would actually have work to get a warrant from a clerk.

Interview with Fox 5 News Yesterday

Posted in News

It’s rare that the media (particularly the broadcast media) remain interested in a case after it gets into the appellate stage. I’m involved in one of those cases right now. Chris Shaw with Fox 5 News in Atlanta did a thorough job speaking with us about the implications of a recent indictment in a case related to a case we are appealing right now out of DeKalb County.

At the risk of doing two posts in a row that might be interpreted as self-promotional, I encourage you to check out the story. It’s a good chance to meet some of the other folks in my new office, at the very least.

 

Upcoming Speaking Engagements

Posted in News

First, it’s been about three weeks since my last post. Between getting moved into the new office in Decatur and a family vacation, I have been on a bit of a blogging hiatus. I’ve spent time getting accustomed to a new commute and schedule. After so many years in truly solo practice, it is great to have colleagues down the hall. And what great colleagues these guys are!

So, the blogging frequency is now returning to 2 or so posts per week.

And, I want to let you know about two upcoming talks I will be giving. On September 7, Doug Peters and I will be speaking at a Seminar titled Crack the Code. The seminar will help lawyers prepare for the new evidence code, which will go into effect in just four months. Our talk will focus on how the new evidence code affects expert witness testimony. But other speakers include Don Samuel, Mike Hawkins, and Jack Martin. The seminar will be at the Bar headquarters in Atlanta.

And on September 21, I will give the criminal caselaw update at the late summer seminar of the Henry County Bar Association, at the Ritz Carlton at Reynolds Plantation. It’s been an eventful year in the U.S. Supreme Court and in the Georgia appellate courts in the area of criminal law. I’m excited about the opportunity to hit the highlights in an hour of conversation.

I’m looking forward to many great conversations going forward, and I hope to see some of you at these upcoming seminars.

Up and Running in a New Space

Posted in News

Appellate lawyers can work pretty much anywhere. We’re the professional writers and advisors of the legal world. I’m writing this post from my home office at 5:30 a.m.

At the same time, there is something to be said for where you do business and where the shingle hangs. This week, the shingle has moved. The Fulton Daily Report did an article about the move. The article is behind a pay wall, but it is quite good if you can read it.

Starting today, my practice is in the same office as Peters Rubin & Sheffield. I still have my own practice. And in that practice, I am doing the same things and going to the same places. Most of the real work of crafting briefs and pleadings is done in this chair at approximately this time. I live pretty far from metro Atlanta and commute in.

But moving the shingle is a significant event, because it changes the people you see everyday. I went solo about 5 years ago vowing always to be solo. Then I worked on an amicus project on a case where Doug was counsel. From there, I began working with his partners, Bob and Jason. We have been working on cases for a few years now. For instance, I worked very hard behind the scenes in State v. Hemy Neuman, and I am contining my work on that case for the appeal. And, while I still have my solo practice, I am working closely with Peters, Rubin & Sheffield on some great cases in addition to my own great cases.

I am with them on so many cases now, that it made sense to move my office to Decatur. And while my practice continues to grow alongside theirs, the fundamentals remain the same.

Our phone number remains the same. Our email is the same. And this blog will continue to be here. Most importantly, I’ll still be here early in the morning, doing the craft. My clients come to me from all over the State, so some of them may not notice that the shingle has moved. For everyone else, I make this announcement. And I’ll see you soon at the new digs.

Congratulations Justice Blackwell

Posted in Georgia Court of Appeals, News, Supreme Court of Georgia

Governor Deal has announced that Judge Keith Blackwell will be the Supreme Court’s newest Justice. He will fill the vacancy created by Chief Justice Carley’s retirement.

I have gotten to know Judge Blackwell through my work on the Appellate Practice Section. He will be a great addition to the Georgia Supreme Court.

Scalia’s and Garner’s New Book Suggests Principled Approach

Posted in Opinions and Analysis, Writing

Readers of this blog may be surprised to know that I am a Scalia fan. Criminal defense lawyers who don’t like Jusice Scalia just don’t understand him yet. There is much to commend Jutice Scalia to a criminal defense attorney. He penned some of the most significant opinions in the last decade on the Confrontation Clause and criminal sentencing, if you are just judging him by results, which you shouldn’t do.

Results are not the reason to admire a judge (unless you are directly involved in a case and are on the winning side). In fact, you don’t have to agree with a judge’s philosophical approach to admire the judge. It is the fact that a judge has a principled approach to deciding cases that makes a judge great.

Lawyers who represent the accused on direct appeal and post-conviction and lawyers who regularly argue motions in trial courts are accustomed to judges with a philosophical-ish approach. And it isn’t textualism. It’s the approach that consists of finding a way to deny the motion or affirm the conviction because the defendant/appellant is a criminal defendant/appellant. It is the approach that looks to the State’s brief, in its 12 point Courier New glory with every other sentence in bold or italicized, to find a place to hang its hat.

So, Scalia’s and Garner’s book, which is written to encourage better judicial reasoning and decisionmaking, could be a welcome addition to the bookshelves of many judges.

Tony Mauro reviewed Reading Law: The Interpretation of Legal Texts at The National Law Journal. Mr. Mauro notes that the authors accuse judges of “loose and unprincipled decisionmaking that has tarnished the reputation of the judiciary.” And Mr. Mauro quotes a passage that seems to express the books’s central thesis:

The descent into social rancor over judicial decision is largely traceable to nontextual means of interpretation, which erode society’s confidence in a rule of law that evidently has no agreed-on meaning. … [o]ur legal system must regain a mooring that it has lost: a general agreed-on approach to the interpretation of legal texts.

Mr. Mauro notes that the book is “structured as a catalog of the canons of interpretation.” There are 57 of them in all. And the goal of it all is “to arrive at ‘one principled approach’ to interpretation through the analysis of a broad range of analytical methods.”

While many members of the public might see this book as a critique of “liberal” judicial activism or judicial legislation, it appears to be a broader critique of unprincipled judicial intrepretation of legal texts, no matter what motivates the abandonment of principle. Opinions on social issues, such as gay marriage or abortion, tend to make the news more than the daily grind of criminal cases. And it may be that the principled criminal law decision that leads to a bad factual result is the kind most likely to land on a newspaper’s front page. The 4th–6th Amendments of the Constitution die by a thousand tiny cuts. A principled approach to judging could save them.

And, with any luck, judicial readers of this new book will be just as textualist in their appraoch to the reading of transcripts, which could be the topic of another book. The abandonment of inconvenient facts in the record is every bit as big of a problem as the abandonment of the text of the law.

Adam Liptak has also reviewed the book, with an emphasis on how it might predict the outcome of the healthcare case.

Scalia/Garner’s book will hopefully cause judges to think about how they do the job of judging. Some of my favorite judges are the ones who rule on principle, even if in following that principle, they rule against me.

Ex-Magistrate’s Lawsuit Blackens Eye of Ga. Judiciary

Posted in News, Opinions and Analysis, Supreme Court of Georgia

This won’t end well. Anthony Peters, the former Catoosa County assistant Magistrate Judge has filed a civil rights suit against the his former boss as well as the Sheriff of Catoosa County. When I read Joy Lukachick’s article (hat tip to her) in the Chattanooga Times Free Press about the lawsuit, I had to pull the Complaint off of PACER, the same way rubberneckers have to slow down to watch the traffic disaster in the oncoming freeway.

And, to my fellow rubberneckers, I offer this Complaint for your entertainment. Take a gander, and sleep well in the assurance that there is some lawyer out there who will file your lawsuit for you. No matter how many lawyers have turned you away, don’t be deterred. You will meet the right lawyer one day:  Peters Complaint (PDF).

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Williams v. Illinois Asks More Questions than it Answers

Posted in Opinions and Analysis

Williams v. Illinois, the newest Confrontation Clause case from the Supreme Court, leaves unresolved some key issues on the Confrontation Clause and its applicability to lab reports. Some things to note:

  • Williams has no majority opinion
  • It is very fact specific
  • A similar case with a better set of facts might go the other way

Stated with a bit more specificity, the plurality opinion is tied closely to the facts of the case. The two concurring justices believed that there were too many loose ends to state a definitive rule. Those two justices could possibly vote with the dissenters in a different case with more definitive facts.

Basis for the Opinion in Williams

  1. The expert testimony did not violate the confrontation clause because the expert did not testify to the truth of the matter asserted. Rather, she simply relied upon information about the profile of the evidentiary DNA to answer hypothetical questions about the likelihood of a person’s DNA profile being exactly the same as someone else’s. Since such testimony is neither substantive nor probative, it does not implicate the Confrontation Clause. Scott Greenfield calls this the “truthy” part of the opinion.
  2. The profile of the evidentiary DNA, nevertheless, was not testimonial because law enforcement did not profile the DNA in the semen to strengthen the State’s case. Rather, the evidentiary DNA was profiled with an aim to later identify a suspect from the world of unknown people whose profiles were in a database. In a case where a suspect has been already identified, we have a different matter.

And the case is tied to some fairly quirky facts, each of which is material to how the decision was made.

Factual Issues

In Williams a woman was raped in Illinois by an unknown assailant. After a rape kit was done, a scientist identified semen on the vaginal swabs. Law enforcement sent the sample to Cellmark Diagnostics Laboratory in Maryland for DNA testing. Cellmark conducted tests and produced a report with a DNA profile. Illinois law enforcement took the profile and compared it to a database of known DNA samples created to take the DNA profile of arrestees. The evidentiary DNA profile matched that of the petitioner. The victim then successfully picked the petitioner out of a lineup

The petitioner was tried by a judge. The victim identified the petitioner in open court. Then the State relied upon three forensic witnesses.

  1. The first testified that he had identified the presence of semen in the vaginal swab.
  2. The second testified that he drew the blood from the petitioner, and that he entered the profile into the database.
  3. The third testified how DNA profiles are developed from forensic evidence and how those profiles could be matched based upon the individual’s unique DNA code. She testified about Cellmark’s accreditation and how it is common for one DNA expert to rely upon another DNA expert. She talked about how the chain of custody was maintained in the shipping of the evidentiary DNA to Cellmark lab. Then, she testified about how she matched the profile from the database to the profile she obtained from Cellmark and how the profiles were the same. The Cellmark report was neither admitted into evidence nor shown to the factfinder. She did not quote from it or identify it as the source of any of the opinions she expressed.

For the plurality, there were several key facts that rendered the testimony not a violation of the Confrontation Clause

  1. Cellmark’s report was not admitted for the truth of the matter asserted. Unlike the report in Bullcoming that was admitted for its truth, the Cellmark report was never even admitted. The witness merely testified about a DNA profile she received from Cellmark and how it matched that of the DNA profile contained in the State database for the petitioner.
  2. No possibility of cross-contamination, and no testimonial analysis at Cellmark For the Court in Williams, it was important that Cellmark tested the semen without any particular suspect in mind. The test was not performed to incriminate or to strengthen the State’s case against a known suspect. And, for the plurality, it was important that “the admissible evidence left little room for argument that the sample tested by Cellmark came from any source other than the victim’s vaginal swabs.” In a case where law enforcement tests the DNA of an actual suspect for comparison with evidentiary DNA or where multiple DNA samples are on location at the same lab at the same time, the testing would be testimonial and the possibility of cross-contamination would be a possible area for cross-examination.
  3. Bench Trial versus Jury trial For the plurality, this distinction was key. From the plurality:

This case, however involves, a bench trial (author’s emphasis) and we must assume that the trial judge understood that the portion of Lambatos’ testimony to which the dissent objects was not admissible to prove the truth of the matter aserted. In a jury trial, the Cellmark profile might had been excluded or it would likely have been referenced but with a mandatory limiting instruction “that out-of-court statements cannot be accepted for their truth and that an expert’s opinion is only as good as the independent evidence that establishes its underlying premises.” And, if the State could not independently corroborate the foundational facts, then the expert’s opinion would be accorded no weight.

So, the advice for defense attorneys going forward should this issue arise — insist on a jury trial. With a jury present, we have a whole new ballgame.

Justice Breyer’s Appendix

There is an appendix to his concurring opinion that describes all of the steps in the DNA profiling process. This Appendix describes what happens in the process. The appendix is very helpful to practitioners looking to figure out the process or in trying to figure out which witnesses was not called by the State

In conclusion, much is left unresolved. A case where (a) a suspect’s DNA is tested for comparison with evidentiary DNA, (b) where all samples are tested together in the same lab; and (c) where the case is tried before a jury would appear to be a fantastic candidate for cert.

Savannah Morning News Recognizes Terry Jackson’s Life

Posted in News

Today, the Savannah morning news has a fantastic article about the late Terry Jackson, a hero of mine and of many Georgia criminal defense lawyers. I did not know Terry until late in his life. He referred me some cases in the past couple of years, and I am working now on one of his last appellate cases.

Terry received the first Terry Jackson Friend of the Constitution Award from the Georgia Association of Criminal Defense Lawyers. And, as well as I got to know Terry through GACDL, I did not know just how many big cases he had handled in his life until I read the article.

If you knew Terry, this article is worth the read. And if you didn’t know Terry, stop what you are doing, and read the article right now to learn about him.