Georgia Criminal Appellate Law Blog

Offering Insight on the Practice of Appellate Law and Commentary from the 11th Circuit Court of Appeals

Court Reporters and Digital Audio Recording: Time for a Change?

Posted in News, Opinions and Analysis

My new favorite law blog is Judge Richard Kopf’s Hercules and the Umpire. Lately, it’s been the first place I click on my reader. His blog is conversational and offers a view of the Federal Court from the other side of the bench.

A recent post of his was particularly spot on. It begins “For a long time now, I have used digital audio recording, rather than a court reporter. Digital audio recording is the marriage of a computer and a sophisticated sound system with multiple channels. It is monitored by the courtroom deputy in real-time eliminating the necessity of a court reporter.” 

The daily recordings are uploaded to CM/ECF so that any person, at a small cost, can listen to them. The lawyers have access to what was said, and a transcriptionist can render things on paper in the event of an appeal. There’s no need to fund a court reporter for take down, and the job of transcribing can be outsourced for quick turnaround. I am not sure what certifications are necessary, but presumably a court reporter anywhere in the world could be contracted to transcribe the proceedings as necessary.

I use Speakwrite to transcribe office documents or interviews when my office is too overburdened. Generally, within hours of upload, I have a transcript sitting in my email inbox. Presumably, such a system could be set up for court transcripts with folks certified to do them.

I don’t know how long it will take for such a system to catch on in Georgia, but I hope it happens soon. Such a system would change the landscape of appellate practice. Consider:

  • The wait for the transcript is the single longest part of the appellate process. Digital recording with upload to a central server expands the range of possible people who could do the work, virtually overnight.
  • Often appellate lawyers are waiting around for months or years for transcripts to arrive only to be bombarded with three or four at once.
  • That wait can be a great source of tension between the lawyer and the client. It is hard to explain to a client who is languishing in prison that it is not the lawyer’s fault that the court reporter is taking a year or more to type up the proceedings.
  • For matters where a transcript is not essential, the recording provides a way to impeach witnesses or review what is said. It provides a tangible record of what happened in situations when there is not time to get a transcript prepared or in situations where it would not be ordered.
  • It would save lawyers, clients, and the State money.
  • More will get recorded. Judges order their court reporter to go “off the record” with impunity. When that happens, something bad is going to transpire. Ordering a recording system to be turned off seems more Nixonesque somehow.

The idea of having a court reporter seated with a stenograph machine in the age of digital recording seems a tad antiquated. If one were designing a recording system for courts from the ground up today, we likely wouldn’t dream up the position of court reporter (a point made in the comments to the judge’s blog post). It likely made sense in the 1930s, but we are left with this vestigial court official.

Take a look at this new blog. And, if you are a reader with power to make digital recording happen in Georgia, please do so.

New Law Spares Life of Warren Lee Hill

Posted in News, Opinions and Analysis

Andrew Cohen at The Atlantic Monthly has a post up on how Georgia’s legislature created a law that spared the life (so far) of Warren Lee Hill, a man that the State has been trying to kill. It’s a must read if you are trying to teach someone the concept of irony.

This past year, the legislature enacted a law that made the identity of companies that provide drugs for execution a state secret. The problem came when Lundbeck, the Denmark Company that makes pentobarbital, a key component in the cocktail of drugs administered during lethal injection, refused to distribute the drug if it would be used in an execution. The supply that the Department of Corrections had on hand was set to expire.

Efforts the Georgia Department of Corrections have undergone to get its hands on drugs to kill Georgia inmates have proven to be a source of embarrassment in the past. In 2011, federal drug agents seized Georgia’s stockpile of sodium thiopental obtained from a shady British supplier that was “operating from the back of a driving school in England.” The stockpile had also come under scrutiny when it was alleged that state corrections officials violated federal law by not registering its shipment of the drug with the DEA.

The obvious way for the Georgia DOC to avoid embarrassment in the future would be to stop obtaining drugs from shady suppliers. The legislature decided not to go that route. Instead, to stop future such stories, the legislature decided to make the identity of the supplier a state secret. Supporters of the bill claimed that the purpose was to prevent the harassment of such companies. An alternate explanation is that secrecy would allow the Department of Corrections to seek out other shady suppliers without the fear of future embarrassment.

When a challenge to the state secrets law was heard in a trial court, “the judge asked the obvious question: How can the executive branch constitutionally conspire with the legislative branch to block the judiciary from considering all the relevant components of a planned execution?” How can the court system evaluate an 8th amendment claim to the death protocols of the DOC if the judge cannot know what those protocols are?

Because the court reporter did not have the transcript prepared in time for the case to make its way to the Supreme Court of Georgia, this matter could not be reviewed before Mr. Hill’s death warrant expired.

This past year I participated in my first hearing before the House Judiciary Committee to speak out against some unrelated legislation. The Atlantic Monthly writer is absolutely correct in his analysis of how the sausage is made. When I spoke and offered comments that I had researched and thought out I might as well have been Charlie Brown’s teacher. By contrast, the representatives of the Prosecuting Attorneys’ Counsel were treated like ex officio members of the committee.

In this case, they should have been careful what they wished for.

Lawyer Recounts First Appearance and Victory Before SCOTUS

Posted in Uncategorized

Last week, I had the pleasure of attending the Annual Meeting of the State Bar of Georgia. On Thursday, I was part of a quartet of lawyers who delivered the criminal and civil update of significant cases from the 11th Circuit and Georgia Appellate Courts. Thursday, at the appellate practice luncheon, Georgia family law attorney Michael Manely spoke to us about his journey to the Supreme Court of the United States in Chafin v. Chafin.

I enjoyed conversation with Michael before his talk, where he shared with me some of the details of the case as well as his business model his new model of practice, the Justice Cafe. And the talk detailed his journey from a family law trial court all the way to the nation’s highest court.

His talk is now available online.

Here was what I took away from Michael’s presentation.

  • With enough work and preparation it is possible for a lawyer to succeed at the Supreme Court with little previous experience practicing there. It is not just a court for specialists.
  • Oral argument, at its best, is conversational. Rather than come to the Court with talking points to use with the justices (as was suggested to him), he decided to be prepared to answer their questions. Michael figured that the justices likely knew how they would vote but were likely looking to oral argument for answers to remaining questions. He went for a dialogue.
  • He did not look at this as merely the opportunity to litigate a case in the Supreme Court or to be a part of a cutting-edge matter. Michael was focused on his client, whom he had represented from the beginning of the case. Appellate lawyers can become so focused on the record and the law that they lose sight of the human story at the heart of the case. Michael didn’t do that.
All in all, an engaging talk and a fascinating story.

 

Breaking Bad News

Posted in Attorney-Client Relationship

I found some good lawyering advice today in, of all places, The Annals of Oncology. There’s an article titled Breaking bad news in oncology: like a walk in the twilight. I’m not trying to be glib in making a comparison. Oncologists are oncologists, and lawyers are lawyers. But what we have in common is that we both must sometimes break horrible news to people. I’ve never thought myself to be good at this part of the job. And it is sometimes helpful to look to other disciplines to learn hard lessons.

Until I read this article I didn’t realize that I haven’t even thought about it very well. After all, what is bad news? “The expression ‘bad news,’ used to describe difficult communications, is open to interepretation and misunderstanding since it seems to refer to a one off communication instead of a process and because it evokes the idea of an impersonal transmission of information.” Did you hear that? Bad news is part of a process. We are not the anchorman on the nightly news?

Moving toward a better definition, “Bad news is defined as any information that produces a negative alteration to a person’s expectations about their present and future.”

The writer notes that communicating bad news is a matter of dialogue and not monologue. And choices must be made. “Does one give all the details of a clinical case or explain most of the case while holding back some details or be vague while at the same time not hiding the seriousness of the [matter]? Each of these approaches can reveal the truth; each can represent the way, the form, and the opportunity to communicate bad news.”

Which way do you go? All of that depends upon the case, the gravity of the situation, and “the patient’s [client’s] capacity to understand and sustain a conversation of this kind with his or her doctor [lawyer.].”

And yet, much also depends upon the lawyer.

Is he or she aware that in our finite condition it is not always possible to have an abolutely truthful exchange, that it is not always possible to tell everything? Absolute honesty is probably not even part of our relative, imperfect and unfinished human condition and it would therefore be a mistake to think that we can see and make others see everything clearly. However, a [lawyer] must at least try to say everything that can be said given the circumstance and so this becomes our everything.

Disclosure should be individualized, and it must put the client in a position to to make informed choices. A doctor’s and a lawyer’s world is made up of “two planets; one is epistemological and is therefore based on [law] and connected to his or her professional competency. The other is defined by the [lawyer’s] values, convictions, choices, and emotions.” The first step is to examine those two planets and face your own fears and not to confuse one with the other.

For the writer, “it is an extremely difficult task but if done properly it leads the [lawyer] to construct the therapeutic alliance which allows the [client] to listen to bad news without being overcome by it; to hear a possible truth, said with delicacy, without being dismissive or brutal and without shame.”

There’s a bit of practical as well as philsophical advice.

  1. Find the appropriate time and place to have the dialogue. Cell phone off or on silent. Figure out, with the client, whether to communicate with family or alone? Allow time and space to process.
  2. Use appropriate language that can be understood.
  3. Communicating bad news is as much about listening as it is about telling.
  4. Explain all options and the advantages and disadvantages of each.
  5. Summarize the conversation “mentioning again the agreements which have been reached” and outline the next steps.

This is never an easy thing, but it is best managed with a view toward forming an alliance with the client to work through the painful process together.

New Field Sobriety/Miranda Case Important at Several Levels

Posted in Georgia Court of Appeals, Opinions and Analysis, Uncategorized

The Court of Appeals, with a panel made up of Judges Dillard, Ellington, and Phipps, has reversed an order granting a motion to suppress from the State Court of Fayette County.

I write about this case because it further develops the law in the area of Miranda and field sobriety testing and because it illustrates how the standard of review on appeal can change when a significant part of the proof is on videotape.

In State v. Mosely, the Court of Appeals reviewed the field sobriety tests in a DUI case. The facts are fairly straightforward. Police responded to a call from a convenience store clerk who witnessed a dispute in the parking lot between a man and a woman. Police arrived to find a man and woman standing beside Mr. Mosley’s car, which appeared to have been involved in an accident.

At which point, the office became suspicious of DUI because the man had trouble walking and smelled of alcohol. A second deputy appeared who asked the man if he would take field sobriety tests. After some discussion, the officer said:

Listen, listen, listen to me – step back and lean on the bumper. Would you mind voluntarily doing field sobriety tests? … I’m saying I’m going to conduct some field-sobriety test, test your impairment to see if you are safe enough to drive and/or walk away.

It was all downhill from there. Mr. Mosely took the tests and was arrested for DUI.

The trial court (Judge Carla McMillan, who is now on the Court of Appeals) held that the request for field sobriety was custodial and that the officer should have Mirandized Mr. Mosely before proceeding.

The Court of Appeals reversed noting several things:

  • since the evidence was undisputed and was largely captured on videotape, the standard of review should be de novo;
  • since the officer told Mr. Mosley that the test was voluntarily, it was not compelled;
  • since the defendant was told that the detention would be temporary, it did not rise to the level of custody (what about the part where the officer said that he was going to conduct the tests and that the purpose was to see if he could walk or drive away. Sound pretty open-ended, no?)

There are a couple of important takeaways from this case.

  • If you can proceed to the appellate courts on undisputed facts or with videotaped evidence, you have a shot at winning with a less deferential standard of review;
  • Statements about what an officer is “going to” do does not imply a command. A statement that participation in field sobriety testing is necessary to see if a person is safe enough to leave is not necessarily a statement that the person is not free to leave or that successful completion of field sobriety testing is pre-requisite to leaving the scene.

This case also leaves a question. To what extent is a holding by an appellate panel or the Supreme Court to be viewed as precedent where the Court has reviewed a case de novo? Is the appellate court making a ruling of law, or it acting as a second trial court reviewing a unique set of facts under existing law?

If I’m at a suppression hearing and this case comes up, I’m going to say it’s the latter.

How to Defeat the State’s New Pre-trial Appellate Rights

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

HB 349 has been the subject of much discussion for its sentencing innovations. However, nestled within it are some significant changes to the appellate code. This post will familiarize you with the appellate provisions of HB 349 and provide some tips to get around them.

Pre-HB 349

Under the soon to be old law, any party in a criminal case who wants to appeal must do so by following a two-step process:

  1. Get a certificate of immediate review from the trial court within 10 days of the ruling that the party wants to appeal.
  2. File a discretionary appeal application with the appellate court.

New Law

Under Section 1 of HB 349, O.C.G.A. Section 5–7–1 (5) has been created, which provides that:

An appeal may be taken by and on behalf of the State of Georgia from the superior courts, state courts, and juvenile courts and from such other courts from which a direct appeal is authorized to the Court of Appeals and the Supreme Court of Georgia in criminal cases and adjudication of delinquency cases in the following instances

From an Order, decision, or judgment excluding any other evidence to be used by the state at trial or on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the defendant being out in jeopardy, whichever occurs first if:
(A) Notwithstanding the provisions of Code Section 5–6–38, the Notice of appeal filed pursuant to this paragraph is filed within two days of such order, decision, or judgment; and
(B) The prosecuting attorney certifies to the trial court that such appeal is not taken for purpose of delay and that the evidence is a substantial proof of a material fact in the proceeding

In plain English, the new law provides

  • the State may directly appeal a pre-trial order excluding its evidence or on any motion filed at least 30 days before trial
  • if it is ruled on before jeopardy attaches or the jury is impaneled
  • if the state files a notice of appeal at least 2 days before trial, and
  • the State certifies that the appeal is not for purpose of delay and is material

Ways Around It

  1. Avoid filing motions in limine when you can. There are certain motions that must be filed within 10 days of arraignment. The rest may be filed at any time, even during trial. Where possible, hold those motions until after the jury is impaneled. As soon as the jury is sworn, file your motions and ask for a hearing.
  2. Defer rulings, when you can. If the hearing on your motion to suppress or on the State’s motion appears to be going well, ask the court to defer its ruling until jeopardy attaches.
  3. Get a “tip” instead of a ruling. Then request that the Court not formally enter its ruling until it’s too late for the State to appeal. At the conclusion of the motions hearing, move to hold the ruling until the matter is proceeding is beyond the reach of the new law. Ask the Court, not to rule, but whether the Court is inclined to rule your way.

Conclusion

The new appellate provisions in HB 349 are about as hole-laden as Swiss cheese. Unfortunately, they encourage a sense of trial by ambush as important matters are deferred until juries are sworn or jeopardy has attached. It also encourages litigation by nods, winks, and guesses in an effort to fix something that was never broken.

Alas, here are a few ways around the new law. Let me know if you have other ideas.

Ray Lewis, Facebook, and the Justice System

Posted in Attorney-Client Relationship, News

Ray Lewis’s retirement has made for an interesting time to be a criminal defense lawyer.

Many of us who defend people for a living lead two lives. In one, we are in and out of jails, explaining things to clients. We are in the hallway huddled with families after a loved one was led out of the courtroom in handcuffs. We engage in dark humor with colleagues because it’s the only way to maintain a sense of sanity. We nod and smile politely as judges yell at us or the folks we represent.

In the other life, we spend time with our friends and family, for whom the inside of a jail or a courtroom are as foreign as Timbuktu.

For me, those two lives also involve working in Decatur, a blue-state island within red-state Georgia, and living in my little neighborhood in Griffin. My neighborhood  is a white Republican red-state enclave within a blue-state city.

The same Facebook that freaked me out about the political process last October is now freaking me out about the criminal justice system. The Court of Facebook is even harsher than the Court of public opinion. I’ve seen Lewis tried by status update and comment. The Facebook environment encourages participants to do something they’d never do in public — shout uninformed opinion over a megaphone. The system of “likes” is the modern-day amen corner. For weeks I’ve been thinking of deactivating my account. Yesterday, the straw broke the camel’s back.

While I agree that the acclaim that Ray Lewis has been getting is overblown, I watched a lot of that trial when it happened. The lawyers on that case (even the assistant D.A.) were true all stars to me, and I wanted to learn from them. I set my VCR every morning and watched the trial at night when I came in from my summer law job. It didn’t take long for an interested viewer to learn that this case should never have gone to trial.

The case had some real problems. Ultimately, Lewis was offered a plea to a misdemeanor. The trial continued against his less celebrity co-defendants, who were all acquitted. The sequel to this trial being played out around watercoolers and online is a different animal entirely. There, the evidence doesn’t matter. The strength of the case doesn’t matter. He must have done it, or they’d have never arrested him. Who does he think he is with his emotional behavior before and after the game?

I’d be willing to bet that the “prosecutors” in this new trial couldn’t name the victims or Lewis’s co-defendants. Details don’t matter, when you’ve made up your mind about something from a 30-second news blip on ESPN.

Bill Rankin, at the AJC, did a great story on the case and its many problems. Over on Facebook, this case and the world are much more simple. But here is what the former lead homicide detective from that case has to say about it today:

The investigation remains raw with Ken Allen, who had just been promoted to his dream job as an Atlanta homicide detective. Allen was put in charge of the investigation but saw it hijacked by political forces, which ultimately caused the case to collapse at trial.

“The focus of the case was Ray Lewis, not necessarily because of the evidence but because he was a celebrity,” said Allen. “It was like they were star struck and saw this as a case that could make a career.”

In my line of work, I’ve had the misfortune of defending folks whose cases have attracted media coverage. Inevitably, the court of public opinion convicts people instantly. And I’ve represented people who were acquitted or who had their charges dropped only to call me later when a potential employer chose not to hire them simply because of the arrest (“he must have done something wrong or he’d never have been arrested”). They ask me what I can do to help, and I soon find myself running out of answers early in the conversation.

One day I’d like to buy my friends and my “friends” a beer and tell them some stories about how some of the judges treat me and my clients and about some past jury selections that have begun with rural jurors presuming my client to be anything but innocent.

I enjoy my job very much, but it’s not always a picnic. The Nancy Graces of the world don’t help things.

At the end of the day, I choose to keep my faith in the system even when I know that the same weak prosecution case would likely have worked against a poor defendant without the means to hire the very best defense counsel and investigators.

The invective I’ve heard at barbecues, at cocktail parties, and over Facebook reminds me of how fragile this system is. It’s a wonder that the State ever loses.

Recently, I completed the new biography on Thomas Jefferson. We are very lucky he was born in Virginia in the 18th century. He’d have never been elected today. We’re equally lucky that the Constitution was ratified then. A modern-day Bill of Rights would likely have only the Second Amendment in it.

I’d miss this system if it changed significantly. But I don’t think I’ll miss Facebook.

10% Fewer Words

Posted in Attorney-Client Relationship, Motion for New Trial

I recently finished the audio version of Stephen King’s On Writing: A Memoir of the Craft. It’s geared toward fiction writers, but there is much to commend it to lawyerly writing. The best writing advice I have heard in a while was something that a publisher wrote on a slip rejecting one of King’s early manuscripts. The advice was “draft two — same but 10% less.”

I am preparing to efile a brief in a few minutes. It has a single issue (most appeals boil down to one issue if the lawyer is honest about the case and doesn’t bow to pressure from the client to add more). Draft one was a modest 1,630 words.

Long briefs indicate either the most interesting case in the lawyer’s career, fear that the Court won’t understand the argument, or a search for “cover” for the inevitable pro se habeas. Since there can only be one most interesting case in a lawyer’s career, the odds are that any one brief isn’t part of that case. And fear is hardly a reason for an editorial choice.

I tried King’s advice and began searching for 163 words to excise. I found even more, and this brief is better for it. The final is 1,455 words long. Where are the 163 words in your next brief?

New Procedure at the Court of Appeals

Posted in Georgia Court of Appeals, Oral Argument

Today, I had my first oral argument at the Court of Appeal in perhaps two years.

Argument is granted more frequently in civil cases than criminal ones at the Georgia Court of Appeals. So, most of my arguing is at the Supreme Court down the hall.

The presiding judge began most of the cases with a summary of the facts. I wasn’t sure if the purpose of the summary was to inform the public of the context or if it was to help move the argument along.

I assumed it was the latter and truncated my presentation. Many of the advocates I heard today went forward with the factual presentation they intended to give. I think I did the right thing, but I’m not completely sure.

I found it helpful. And if you haven’t argued there in a while, you might take note (though don’t rely on it. Not every case had a summary). I don’t know if every panel is doing it or not. And I don’t know how long this practice has been in place.

If you practice in the Ga. COA, please leave a comment to share your experience.

Some Musings on Visiting Incarcerated Clients

Posted in Attorney-Client Relationship

Over the holidays, I have taken the time to reflect on the direction of my practice and this blog. I’d like to address a few things in the coming year. First of all, the paucity of posts from 2012 is something I would not like to repeat in the coming year. I’ve taken the time to discover some new blogs I really like and to rediscover some I’ve learned from in the past. My new favorite blog is Philip Greenspun’s Weblog. Mr. Greenspun promises “A posting every day; in interesting idea every three months.” He actually succeeds in posting an interesting idea more than every three months even if he doesn’t post every day. I read his posting for several hours. He seems like a very interesting person; and I feel emboldened to write some posts that are technically off topic this year. I’ve also thought about branching out into some serious non-legal writing (non-legal as in not relating directly to the law not in the sense of illegal material) and have begun following a few blogs of literary agents. Though they seem to paint a bleak picture of publishing. Sometimes I do posts here and immediately hear the sounds of crickets chirping. But I don’t know that I’ve been posting enough to hear much else. I have some resolutions for 2013, most of which I don’t intend to announce here because I’d actually like to achieve some of them.

Also, I received a note of congratulations from a lawyer in one of the bigger Atlanta firms for making Georgia Trend’s 2012 “legal elite.” I did not know that I had made this list or that there even was such a thing. I’ve been dubious of such things since I made Who’s Who in high school and learned that this list exists so that the people who are on the list can purchase plaques from the people who produce it. But, if you’re a potential client, and you’re into that sort of thing, here’s a link. if my being a legal elite helps you to decide to hire me, I’ll take a portion of your fee and buy a plaque (I won’t raise your fee to pay for it either.).

The other thing I did over the holidays was watch The Lincoln Lawyer again. I noticed something in this viewing that only a criminal appellate lawyer would notice. This movie begins with Mickey Haller, played by Mathew McConaughey, going into and out of gritty courthouses and jail holding cells to visit his trial-level clients. He drops in on about 5 of these folks in the first 10 minutes of the film. But when he goes to see his client, who is in the post-conviction stage of his case, he has to get on an airplane to reach that facility. And his post-conviction client is the one who spits at him during the visit. For all of the stuff in the movie that is not true, the producers were able to get a good bit of this part right.

Post-conviction clients are far away from their lawyers (turns out that California has its own version of South Georgia, I suppose. But at least you can fly to those facilities. To fly to them in Georgia would require boarding a crop duster).

My wife and I watched season two of Downton Abbey, too. The part I found strikingly similar to appellate practice was the means of communication and the way it adds drama to the plot. The characters write letters to each other, and the letters take a while to deliver; the means of communication leads to some miscommunication. Such is the life of the Appellant and his lawyer. With these ideas in mind, I thought it appropriate to pose a few thoughts on successful client visits to prisons.

  • Have an agenda or some other agreed-upon list of points for discussion. I’m not a big fan of free-form meetings. And it’s particularly important that your visit have a purpose. If it’s to brainstorm with the client, make that agreement going in. If it’s an editing session, make sure to send the brief down in advance. Try to set the meeting a few weeks in advance and agree upon discussion points.
  • Set the meeting up with the prison well and advance. You generally have to do this in writing, and they usually want you to fax down photo id and a bar card.
  • If you are bringing anything or anyone with you other than a legal pad, you will need to get that approved in advance. This includes a laptop, iPad, files, an assistant, an investigator, or an intern. Don’t set yourself up for surprises at the door of the facility.
  • Set your arrival time at least thirty minutes ahead of when you plan to meet with your client. If you plan to meet the client at 10:00, and you show up at 10:00, you likely won’t clear security and get seated with the client until 10:45 or 11:00. Arrive at 9:15-9:30.
  • Try not to set a visit that overlaps with a “count.” I’m not sure what a count is, but they often interrupt or end your interview earlier than you anticipated.
  • Be exceptionally polite from the moment you walk in the door until the time you leave even if the staff is being less than exceptionally polite. You will find that the staff can’t do much to you, but there is a lot they can do to your client after you leave. And you’ll find that a “kind voice turneth away wrath.”

Those are my pointers for prison visits. I plan on doing a lot more of these in the coming year, and I’m hoping to see you here at this blog more often in 2013 than in 2012.