Georgia Criminal Appellate Law Blog

Offering Insight and Commentary on Appellate Law and Criminal Trial Practice

Rhetoric Aside, Most Inmates Have Cell Phones

Posted in Uncategorized

Over at Grits for Breakfast, is a post discussing that, while cell phones are rampant in Texas prisons, there are few prosecutions. The writer references a comprehensive story about the number of cell phones seized in Texas versus few actual prosecutions for those offenses. The Texas Tribune reports:

Prison officials said one challenge was linking the smuggled phones to prisoners or correctional officers for prosecution, because the devices were secreted away in spots that were hard to find, or found in common areas. And it falls to prosecutors in the rural, cash-strapped regions where prisons are typically located to decide whether to spend resources on criminals who are already in prison or on local law enforcement officers. Critics say that without serious consequences, there is little to stanch the flow of illicit cellphones — and the cash that goes with them — into Texas prisons.

“Phones can be hard to find, and there’s a lot of money in introducing contraband,” said Terry Pelz, a prison consultant and former warden who advocates tougher punishments for guards caught with contraband.

The same could be said about Georgia. Most Georgia prisons are located in rural areas. There are bigger things to prosecute. And there’s every reason for corrections officers not to aggressively deal with cell phone possession. First, corrections officers are not paid very well. Inmates and families can offer them extra money (generally in the form of a pre-paid debit card) to either turn a blind eye to cell phones or to actively participate in snuggling them into the facility. Inmates may also be more easy to manage if they have cellphones. There is little incentive to crack down on cel phone possession. Though Georgia DOC official press releases say otherwise.

Lawyers who do post-conviction work are going to get calls from prisoners on cell phones. And it creates something of a catch-22. There is little to no expectation of privacy on a prison cell phone. There is no assurance that the call isn’t being recorded or monitored by an opportunistic future jailhouse informant. There is also no real assurance that the person on the other line actually is the client unless there is a pre-arranged attorney-client call through the prison. And yet, there’s probably another lawyer, a competitor for instance, who is perfectly willing to take cell phone calls from inside.

Harvard Medical Professor would Take Firing Squad over Lethal Injection

Posted in News, Uncategorized

A professor of anesthesia at Harvard Medical School told the Washington Post that “Given these recurring problems with lethal injections, if I had to be executed, I would choose a firing squad.” That article and one in the ABA Journal details the problems with supply of lethal injection drugs throughout the nation.

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Congrats to Jeff Davis, Champion of Judicial Ethics

Posted in News

Jeff Davis has been appointed as the new Executive Director of the State Bar of Georgia. Before that, he was the Director of the Georgia JQC, the agency that governs ethics and Georgia judges.

Georgia lawyers and citizens should be proud. I don't know much about the JQC from before Mr. Davis was its director, but I know for a fact that the JQC had some teeth while he was in charge. In the last five or so years, the JQC has made the judiciary a better place. In fact, I would credit the JQC with bringing several judicial circuits not only into the 21st century but out of the 19th.

Under his leadership, many judges are gone who needed to go. And at approximately the same time that Mr. Davis's new job was being announced, the JQC was being recognized with a First Amendment Award for its work in ensuring that courtrooms were made more open to the public.

Congratulations to Jeff Davis. If you see him, thank him for his public service.

Governor Hands Private Probation Companies a Rare Legislative Loss

Posted in Legislation, News

Governor Deal has vetoed House Bill 837, legislation that would have limited disclosure about private probation companies from open records requests. The Peach Pundit provides exclusive coverage on the veto in an article describing all of yesterday’s vetoes and in a specific post addressing HB 837. Greg Bluestein has also covered the veto.

Why is this veto such a big deal? Many, if not most, state probationers who are serving misdemeanor sentences are supervised by private probation companies. Who are the folks most likely to end up on misdemeanor probation? Generally, that list would include persons convicted of possessing less than an ounce of marijuana, driving on a suspended license, DUI, theft, or family violence battery. But that list also includes the poor who get a speeding ticket or other low-level misdemeanor and who cannot afford to pay their fine on the day of court. These individuals are often put on probation until they pay off their fine. And this list includes people who were represented by the public defender (often a private law firm with a contract with the county to represent the indigent) who, upon conviction find that, poor or not, the lawyer wasn’t really free. When these defendants cannot afford to reimburse their public defender for his services (and the meter has been running the whole time) or pay the fine, the court’s “finance plan” includes being supervised on probation until these expenses are paid off. When the defendant needs a long time to pay off the debt to the State, time on probation increases dramatically. For instance, in a multi-count accusation, the defendant may take on consecutive 12-month sentences. For instance, defendants convicted of DUI were often stopped for speeding first. Such defendants are eligible for 24 months of probation. Continue Reading

New ABA Guidelines on Monitoring Jurors Via Social Media

Posted in Motion for New Trial, Opinions and Analysis

The American Bar Association has released a formal ethics opinion regarding how far attorneys may go in monitoring social media postings of jurors.

Attorneys or their representatives may monitor any activity that is publicly available, but they may not “friend” a juror in an effort to monitor their private social media postings. Nor may attorneys use a third person to friend jurors.

Further, when lawyers find evidence of juror misconduct, there are certain times when the lawyer must report it to the Court and other times when he is not:

The final question the new ABA ethics opinion addresses is what a lawyer should do if he discovers misconduct by a juror during his Internet review. “Jurors have discussed trial issues on ESM [electronic social media], solicited access to witnesses and litigants on ESM, not revealed relevant ESM connections during jury selection, and conducted personal research on the trial issues using the Internet,” the opinion notes.
Under Rule 3.3(b), a lawyer has an obligation to inform the court when the juror’s conduct is fraudulent or criminal. But if the lawyer learns of juror conduct that violates court instructions to the jury but does not rise to the level of criminal or fraudulent conduct, it is not clear if he is obligated to inform the court, the opinion says. For example, “innocuous postings” about jury service, such as the food served at lunch, may violate the jury instructions but fall short of criminal contempt.

If, by virtue of monitoring the juror’s social media postings, the juror is alerted, the lawyer has not contacted the juror. Rather, the social media service provider has initiated the contact.
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The End of the Death Penalty / The Rise of Deaths in Prison

Posted in News

The Economist reports that executions are on the decline and that fewer Americans support the death penalty today than they did in 1994. In fact, most death penalty sentences are handed down in narrow areas of the country:

Earlier this month a vote to repeal the death penalty narrowly failed in New Hampshire, but similar measures succeeded in six states between 2007 and 2013, reducing the number of capital-punishment states to 32. Among those states, 15 have carried out no executions since 2010. Just four—Texas, Virginia, Oklahoma and Florida—are responsible for roughly 60% of the executions since 1976. Texas alone carried out 37% of the total. Within capital-punishment states, a mere 15 counties are responsible for 30% of executions. (Although capital punishment is state law, generally the decision to seek the death penalty is made by district attorneys at the county level.)

60% of the executions in the country are carried out in just four states and merely 15 counties are responsible for 30% of the executions.

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Unintended Consequences of Georgia’s New “Guns Everywhere” Law

Posted in News

Governor Deal has signed into law the aptly-named “guns everywhere law” that increases the number of places in the State that guns will be allowed. Those places include churches (though the church must “opt in,” which may make for an exciting deacon/vestry meeting at a church near you), bars, schools, and even certain places within airports. CNN reports:

The bill, which easily navigated the state Legislature – by a 112-58 vote in the House and a 37-18 tally in the Senate – also earned the support of Democratic state Sen. Jason Carter, the grandson of ex-President Jimmy Carter and a 2014 gubernatorial candidate.

Even in old western movies, patrons were required to check their guns when entering saloons. Democratic candidate Jason Carter, grandson of former president Jimmy Carter, voted for this law. Though he claims that he helped to make it better than it was.

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Georgia Habeas Corpus and the 1st Amendment

Posted in Administrative Appeals, Opinions and Analysis

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

Professor Volokh give a little background about the first amendment and the courtroom setting:

Nonetheless, the Court has created a First Amendment right of access to certain judicial proceedings, especially criminal trials (Richmond Newspapers, Inc. v. Virginia (1980)), jury selection in criminal trials (Press-Enterprise Co. v. Superior Court (I) (1984)), certain preliminary hearings but not grand jury hearings (Press-Enterprise Co. v. Superior Court (II) (1986)), and possibly also civil trials (Richmond Newspapers). To determine which proceedings qualify, the Court generally looks to whether “the place and process have historically been open to the press and general public” and “whether public access plays a significant positive role in the functioning of the particular process in question” (Press-Enterprise (II)).

His background goes on to discuss Presley v. Georgia, a per curium opinion that held that a restriction on access to a DeKalb County, Georgia, courtroom during voir dire was unconstitutional.

A more interesting Supreme Court case might be made of the typical rural Georgia habeas corpus proceeding. It’s rare that I attend a habeas proceeding inside a courthouse anymore. There has been a move to conduct habeas proceedings inside of day rooms, cafeterias, and faux courtrooms inside the prison.

A recent habeas hearing I attended may illustrate the experience. The courtroom was inside a secured building with rows of fencing and razor wire. To get in, I had to push a button and announce over an intercom that I was a lawyer with a case. The gate opened, and I made my way into the area where I surrendered my car keys and identification for a visitor’s badge. A door made of bars slid open as I entered. Then I went through two sets of locking doors to find the courtroom, where a folding cafeteria table served as the judge’s bench and attorneys and witnesses were provided with plastic chairs. To be fair, I suppose that members of the public may have been let in had they just shown up and requested access. But the setting didn’t seem like an open courtroom. For one, we were not in the county seat. For another matter, we were in a privately-owned prison. The deputies and bailiffs were corporate corrections officials. Our courtroom did not bear the seal of the State of Georgia. Rather, a birthday banner celebrating the facility’s fifteenth birthday (who knew that prisons were born) was hung behind the judge.

Counsel for habeas petitioner must choose our battles. The battle is uphill as it is. I’ve never brought a first amendment challenge to the setting of habeas proceedings inside of prisons. If, for no other reason, I’ve anticipated the response might be, “Very well, Mr. Key. We will move Mr. Smith’s case over to the courthouse. Let’s see how your hearing goes now.” The last sentence in might not be spoken aloud. The judge’s response might be that any member of the public brave enough to walk the gauntlet into the courtroom would be welcome to attend the proceedings. Therefore they are open.

I’ve never had the right set if facts or the desire to sacrifice my client’s possible chances of success in a habeas year to the First Amendment principle. But there may be such a principle at stake in some of these proceedings.

The Judge as 13th Juror: Thoughts on the Fayette Rape Controversy

Posted in Georgia Court of Appeals, Motion for New Trial, News

Last week, a motion for new trial made news when Hon. Christopher J. McFadden granted a new trial after finding that the verdict was “strongly against the weight of the evidence.” The State’s reaction was three-fold. First, it appealed the decision. Secondly, the State made comments in the press. Third, the State moved to recuse the judge who entered the order. According to Bill Rankin and Steve Visser of the Atlanta Journal-Constitution, Judge McFadden came “Under Fire” for his decision. This has been a difficult story for me to follow. For one, I profoundly respect the professionalism and integrity of Mr. Ballard and Judge McFadden. I have cases against this particular DA and his office on a regular basis. In the years I have had cases with the DA and his office, I have never found a more professional, talented, and reasonable group. And I have known the judge since his time in private practice. He ran a grassroots campaign and won a contested state-wide election for the Court of Appeals. And to clear a little confusion up, Judge McFadden was an appellate judge who presided over this criminal trial by designation. I’m sure both of these men believe that they did the right thing in the case. It is certain that the DA firmly believes that the judge did not do the right thing. The other reason that this has been a difficult story to follow, is that while we lawyers are free to comment about the result of cases in speaking to the press, judges are not ethically at liberty to defend their actions in the press. All members of the public may not know that. So, when a judge does not respond, members of the public may draw all of the negative conclusions that they would typically draw when a person in a controversial matter “declines to comment.” Judges can’t discuss an ongoing case with the press and really shouldn’t. I could say why, but hopefully it’s self-evident.

Not Acting Like a Victim

There were a few other things of concern from this story. For one, the ABA Journal highlights a statement from the order granting the new trial and quotes it out of context. The article notes the finding that the complaining witness in the case was not “acting like a victim.” This statement could seem shocking if read out of context. And I do not know nearly enough about the case to comment about the exact import of that statement under this unique set of facts. However, having defended many cases like this at the trial and appellate court level, how the defendant and complaining witness act after an alleged rape can be important. If a complaining witness continues to be friends with an alleged rapist, delays in calling the police, or acts as if he or she is not frightened of the defendant for a period of time before reporting a rape, those facts can be important for a jury to hear. And in Georgia, by a long tradition in the law, a judge can act “metaphorically” as the 13th juror if he decides that the verdict is “strongly against the weight of the evidence.” So, judges can weigh the evidence and set aside a decision; it is part of the function of judges in the State of Georgia to do that.

While the DA in this case strongly disagrees with this particular judge’s assessment of the actions of the complaining witness in this particular case, he would not disagree that how a victim “acts” is an important component in a victim’s believability. This DA writes a popular column in a local newspaper. In a recent column, titled “The Game Within the Game,” the DA, Scott Ballard, wrote on that very subject. After some introductory comment about the case, the DA wrote about whether the defendant acted like a perpetrator and contrasted it with how the child acted like a victim:

In this case, the defendant lived a life that paid little regard to commonly accepted sexual boundaries. He had multiple partners. They did kinky stuff. You get the picture. It wouldn’t be a huge leap to believe that he would do prohibited acts with children.So, why would the child say this happened if it didn’t? Here the defense had real issues. For one thing, we had more than one victim. For another, the girls were too young to know much about sexual matters.The defense did what they usually do. They tried to inject adults into the mix. Adults were angry with the defendant and “coached” the children. To try to prove that, they look at the language the children used to report the abuse. Was it “age appropriate?” They probe into the circumstances of the report of abuse. Was it timed in a way to benefit some enemy of the defendant? How do we combat this defense? The children testify.So, Ben called the children to the witness stand and asked them to share with the jury the sickening things the defendant did to them. Let me give you a brief glimpse.A frail, thin girl—she looked about ten years old—walked slowly into the courtroom. Her hair was the color of a carrot. And she was scared.Ben asked her questions designed to assure everyone that she understood the importance of telling the truth. It was clear that she did. Then he asked her,“Do you remember meeting with me a few days ago and talking about how it would feel to come in here today?” The girl nodded gently. Ben continued. “I told you that you would probably be nervous and that I would be nervous, too?” The little auburn head nodded again.

The “game within the game” was the character and actions of the defendant versus the character and actions of the victim. Would it be a leap to believe that Thomaston, Georgia’s version of Caligula would molest a child? And would a frail thin girl who “nods gently” “walks slowly into the courtroom” and act nervously make up a story like this? The answer for this DA, under those particular circumstances, is “no.” Does the truth of the “game within the game” not apply the the benefit of the defendant and sometimes against the credibility of a victim’s account? Whether a particular witness acts “like a victim” was an important element in the case described in the column. And if we are to accept its importance in cases with a guilty defendant and innocent victim, the converse would also be true, no?

That one line is less shocking when placed in the larger context of the sixteen-page Order. The Order is worth reading in its entirety (PDF).

The Impartiality of the Court of Appeals

The press coverage also suggests that every judge on the Court of Appeals my have to recuse themselves when this case reaches that court. In particular, the article quotes Mr. Ballard as asking rhetorically about the prospect of the case getting to the Court of Appeals:

Ballard said he is now appealing that decision to the same appeals court on which McFadden sits. “How awkward is that?” Ballard asked.

The answer to “how awkward is that?” is “not very.” Judge McFadden wouldn’t participate in the Court’s consideration of this case, for several reasons. First, he would certainly recuse himself from the case in the appellate court. Secondly, the Court of Appeals works in three-judge panels. It is a rare case that goes to the whole Court. It is not unusual for an appellate judge to sit by designation over a trial court or for a trial judge to sit as a justice on the Supreme Court by designation. Indeed, when Judge McFadden was selected to hear the trial of this rape case by designation, it was not outside the realm of possibility that it would make its way to the Court of Appeals one day. Parties have the opportunity to object to an appellate judge sitting by designation in a trial. And if there might be some “awkwardness” down the road with the case going to the Court of Appeals, those parties may object before the trial starts. And if you don’t object going in, you waive the right to do so later. I don’t know if that happened in this case before the motion for new trial was granted or not.

More importantly, our appellate courts handle these sorts of things well. For instance, Judge Carla McMillian came to the Court of Appeals from her previous post as the judge in the State Court of Fayette County. Her rulings have made their way to the Court of Appeals, and her current colleagues have even managed to disagree with her on occasion. I’m not an insider at the Court, but none of that has seemed particularly awkward. She wasn’t on the panels that considered her judgment. Judge Michael Boggs came to the Court of Appeals from the Waycross Judicial Circuit. His decisions have made their way to the Court of Appeals in the early days of his tenure. If there’s been any awkwardness, I’m not aware. In all of the controversy surrounding his confirmation to the Federal bench, this subject has never come up. And, more recently, Justice Keith Blackwell has been appointed to the Supreme Court of Georgia after he was a judge on the Court of Appeals. This transition has not created a crisis of partiality.

Even in the trial court, Superior Court judges are frequently called upon to sign a search warrant, where that warrant is later the subject of a motion to suppress before the very same judge. And trial judges in every motion for new trial are asked to assess whether they committed judicial error as they presided over a case at trial. And yet our system works very well.

The Georgia Court of Appeals will handle this case with impartiality and professionalism, because this situation is not as unprecedented as a casual reader of the AJC article might think. And the Court has acted with impartiality and professionalism in those instances.

Conclusion

This case will run its course. I place great faith in our system. But that faith is only as strong as the public’s confidence in the integrity of an independent judiciary. The media component of things like this, with conclusions that get wrong the basics of how our appellate courts function, make me fear what lies ahead for our judiciary.

Where Fundamentalism and the Law Meet Somebody is Headed to Prison

Posted in News, Opinions and Analysis

Legislators in Virginia are contemplating changes to the law in response to MacDonald v. Moose (4th Cir. 2013), a case that struck down Virginia’s law that prohibited non-genital sex generally. Specifically, legislation has been introduced that would make it a felony for an adult to engage in non-genital sex with a minor between age 15 and 17, while vaginal intercourse is a misdemeanor. Vaginal sex among 15-17 years olds is perfectly legal, while non-genital sex would be a crime. Prostitution would be a misdemeanor as long as the prostitute and the john engage in vaginal intercourse; any other type of sex would be a felony.

In Georgia, we draw equally if not more draconian distinctions between genital and non-genital sex. For instance, public indecency covers “an act of sexual intercourse” in a public place. That crime is a misdemeanor under O.C.G.A. § 16-6-8. However, the offense of sodomy in a public place is a felony punishable by not less than one and no more than 20 years to serve in prison. Bowers v. Hardwick struck down Georgia’s sodomy law, but only to the extent that it applies to that sexual act in a private place. Public acts of sodomy are still illegal. See Mauk v. Ga. A few years ago, I was unsuccessful in an 8th Amendment challenge to a 10 year (without parole) sentence for a young man who was convicted for a voluntary act of non-genital sex with another teen.

Professor Volokh writes this about proposed changes to the law in Virginia:

I realize that some people … view nongenital sex as immoral — but even those people, I assume, are uninclined to outlaw things (unkindness, dishonesty, not honoring your father and mother, coveting your neighbor’s wife or property, and the like) just because they are immoral. Indeed, even people who view premarital sex generally as immoral tend not to be inclined to pass new laws banning all fornication. What is there about nongenital sex that makes it more properly subject to outlawing, especially given the perverse incentives that such a prohibition would create?

If the legislation passes, then Virginia, like Georgia will treat non-genital sex with a harsh sentencing scheme versus acts of vaginal sex. It is unclear why the legislature would incentivize teenage intercourse at the risk of unwanted pregnancy and the spread of disease, other than that such a scheme is an expression of the fundamentalist religious beliefs of individuals in power (welcome to our little red state). Of course, it’s difficult to justify the lengthy incarceration of teens based upon the decision to violate the religious sensibilities of state representatives and senators. Nevertheless, in a moment of passion between teens or between adults in certain situations, the message from our wise legislators is that the actors had better “go all the way.”