There is an important new case that changes the law concerning motions to modify sentence in Georgia. In Gray v. State, a case published on August 26, 2019, the Court of Appeals held that trial courts lose jurisdiction, under O.C.G.A. Section 17-10-1(f), to modify criminal sentences following either 120 days after the remittitur where there was an appeal or one year after sentencing even if the motion to modify is filed sooner than those dates. I will provide some procedural history followed by analysis.

The defendant in Gray was sentenced by Judge A. He timely filed a motion to modify sentence, which was heard eleven months later by Judge B. Judge B granted the modification. Judge A, the original sentencing judge, found out what happened and, sua sponte, entered an order vacating the sentence.

Gray appealed, arguing that the order vacating was void. The Court affirmed, reasoning that the trial court lost jurisdiction to modify its sentence after the expiration of a year and after the end of the term of court in which the sentence was imposed. The Court ends the opinion pointing out nine cases allowing courts to modify sentence where the motions were filed within the statutory time and distinguishing (but not overruling) those cases.

Gray has petitioned to the Georgia Supreme Court for certiorari. The opinion in Gray raises a host of policy concerns. What exactly is the status of the line of cases “distinguished” in the opinion? Also, can a judge simply run out the clock by delaying a ruling on the case? What happens if the case is heard and the time runs out while it is under advisement? Finally, counsel will often advise clients to wait a while before filing motions to modify to let some time pass after sentencing, to allow for good conduct while in prison, for participation in programs, and other post-sentencing mitigation facts to develop. The law, as interpreted in Gray, places defendants in a position to file so soon that there is no opportunity to develop new mitigating evidence. Indeed, the modification statute has traditionally provided an incentive for good conduct after sentencing. Defendants who move to modify shortly after sentencing will be open to accusations of buyer’s remorse or the failure truly to accept responsibility.

This case presents excellent issues for certiorari and may prompt discussion at the Georgia legislature in the upcoming session.

Yesterday, appeared as an expert witness in the United States District Court for the Middle District of Tennessee on a 2255 hearing that involved a question of ineffective assistance of counsel at the plea bargaining stage. Essentially, the question for the Court was whether counsel’s advice led to Federal jury trial that should never have taken place. The Supreme Court held in Lafler a few years ago that there is the right to effective assistance of counsel at the plea bargaining stage — which makes sense. The criminal justice system is a system of pleas more so than a system of trials. This is particularly the case in Federal court where jury trials are rare. In the wake of Padilla and other cases, plea bargaining is a high stakes game with which comes a host of collateral consequences. I don’t make it a practice to comment directly here on the cases in which I am involved. So, I won’t do so here. However, my preparations for court yesterday caused me to reflect on some of the pitfalls criminal defense practitioners fact. And many of those pitfalls come from the curious intersection of criminal law and procedure and the mindset of the criminal defendant. I imagine the issues to involve three C’s — certainty, clarity, and completeness. All of these things sound easy on paper but are nearly impossibly complex in the trenches.

  • Certainty — There was an old joke in law school that all legal questions yield a single answer. And that answer is as follows: “that depends.” All clients and families are caught up in the trauma of the circumstances, even if that trauma is of their own making. And they seek certainty in their most essential questions. These are some but not all of the questions for which certainty is nearly impossible: What are my chances? Can you win this case? How can they go forward against me when they only have her claim about what I did but “no evidence” of my guilt? How long will this case take? Can’t you prove he’s lying? Worst case, what is going to happen to me? Best case, what is going to happen to me? Can you get me out of this? Clients will ask these questions, and you will say “It depends.” You will have a discussion. And a week later you will have the same discussion. They will then rephrase the question MMPI style. And if they don’t like your answer, they will sometimes seek to wear you down until you give a different response that soothes. Of course, you cannot spin reality to shape your words. And the temporary relief you experience from just saying what they want to hear will always revisit you ten-fold in misery when the case reaches its conclusion, particularly if the conclusion is unsatisfactory. “But Mr. Key, you told me ….” Key’s maxim number one: “never ever use the language of certainty when you are in an uncertain landscape.” If you think you’re right about the law and the State is wrong, you can say so. But you must do so with the additional proviso that the judge can and often does rule with the State when the State is wrong.
  • Clarity — But where the law provides clarity, you should so state the law. If a client is charged with two offenses for which the range of punishment is 1-20 years to serve, you should tell the client that he can expect a potential sentence of as little as a single year of probation or as much as 40 years to serve in prison. And you will not know the sentence until it is imposed. If you are taking a plea to ten years to serve in which the client will have parole eligibility, you should tell the client that parole is a matter of grace. You cannot say when or if the client will be paroled and that, in taking a plea to ten to serve he should be prepared for the possibility of serving every day of ten years on prison. Key’s Second Maxim: “where the law offers clarity, you should offer it, particularly where the clear possibility paints the bleakest landscape.” 
  • Completeness — Your advice should be complete and comprehensive. Yes, this seems an obvious point. Yes, this seems like a truism. But keep in mind, Key’s Third Maxim: Never provide legal advice where the environment does not allow for the giving of a complete answer. What do I mean by this? If the answer is better rendered in writing than orally, then do not try to answer without putting the answer in writing. And the answer should just about always be reduced to writing. Do not allow your opponent or the court to box you into a situation where the client has minutes to make a dramatic life-altering decision. Be mindful of the environment in which the question is posed, and be willing to refrain from answering the question until you can enter into the appropriate environment. A text message is virtually never the right environment to discuss a complex client matter. If circumstances allow for anything less than a complete response, then do not attempt a response. And if you have any doubts regarding whether the environment is proper for giving complete advice, then you are likely in the wrong environment.

Plea bargaining is tricky because often the biggest hindrance to you doing an effective job in explaining the plea is the client herself and her mental or emotional status. The client craves positive news and will sometimes push you to be more positive than you can be at the moment or ever. Which leads to Key’s Fourth Maxim: practice as if the glass is half full but advise as if it is half empty. In your preparation, presentations, and negotiations, you should be confident and positive in your abilities and command of the law. Be unstoppable in the courtroom. But in the conference room be candid and maybe even a little pessimistic.

I don’t know that I’m a serious meditator. I’d confidently call myself a dabbler in meditation who is hopeful to be more than that one day. I’ve experimented with various apps to assist me. And I give you this brief report from the field. Also, I’d be remiss if I didn’t relate this back to the broader subject of appellate practice. If you’re a lawyer, I commend to you a meditation practice. It will help you manage the stress of it all, to be more present with your clients and their work, and it will help to round of some of the rough edges of living this life. If you’re a client of the family member of a client, this will help you, too. If all of this interests you, sit for a few minutes and pay attention to the breath. And if you’d like check out some of the apps listed above.

To start, I realize that the whole idea of a meditation app may run counter to the spirit of meditation and the spiritual traditions from which the practice has arisen. Whether you’re a Buddhist interested in meditation from that way of life, a Christian who considers meditation to be a subset of prayer, or an atheist who is simply interested in paying better attention, the use of an app may well be a form of heresy. You don’t need an app or a phone to meditate. And the use of such technology can easily get in the way. I find meditation apps to be helpful to be helpful as a component of situating me to time and place. I also like the tracking component of these apps. With that said, all you need is your mind and your breath to be in business. Or you could time a session with an hourglass, the timer on your microwave, or an inexpensive clock. And you could track your sessions with a pen and paper if you even track at all. Alas, if you are thinking about apps, here are my thoughts.

Headspace This is the app I come back to. The creator of headspace is a former monk. And his is the voice on all of the guided meditation offerings on the app. The user interface for Headspace is a delight. It’s easy to navigate, and it offers topics and series that cover everything from anxiety, to sleep, to peak performance. On the iPhone, you can link the app to the health app to track your sessions. I love this app and have used it for years. After a few sessions, which are free, the rest require a paid subscription.

Waking Up Sam Harris has put in a bunch of work on this app. I used it and subscribed to it for months. Sam Harris also has a podcast that I love. I’m a regular listener. While I was at first all in on this app, it wasn’t the best fit for me over time. Sam has a point that he’s trying to make. Or at least he has a pedagogical perspective about the nature of consciousness, the notion of free will as a fiction, and the way illusion of the self. While I love exploring and engaging these topics, I don’t love it being so obvious while I’m in the act of meditation. I wouldn’t exactly say that there’s an agenda in the mediations, but I started to sense something like an agenda that was getting in the way. I’m now back on Headspace. With that said, it’s an excellent app. And it keeps getting better. After a few sessions, which are free, the rest require a paid subscription. But Sam says that if you email him and tell him you cannot afford the subscription, it can be offered at no cost.

Enso Enso is a timer with many great features. There are no guided meditations there. Enso is a beautiful and wonderful app that chimes you into and out of sessions. You can adjust the time of sessions as well as the “lead in” and “lead out” to sessions. It also interacts with the phone’s health data to help you track trends over time. There’s no subscription beyond the cost of the app.

If you’re interested in meditation and want to use your phone or tablet as a guide, the above three apps may be helpful you. And, of course, none are necessary.


It’s not an easy gig to be a ref. And it gets harder every day. That is the thesis of “Ref, You Suck!” an episode in Michael Lewis’s new podcast series, Against the Rules. The episode explores a set of dilemmas, summarized in a perfect tagline courtesy of Lewis’s child: “Don’t pick sides, unless it’s my side.” We want an arena, a boardroom, a market, and a courtroom that is fair. That’s all well and good in the aggregate. But when we put on our advocate’s hat we are just like Michael Lewis’s son. In that instance it can be at least a little nice if the referee or judge picks our side.

But Lewis pushes an even bigger point. In just about every arena, referees are under attack. Go to any little league game, watch the news, or look at the relationship between the executive and legislative branch of government at the federal level, you will see that those who are tasked with ensuring fairness are increasingly under attack from those who want their side to be picked.

Lewis spends most of the episode interviewing officials in a New Jersey review center that analyzes instant replays in NBA games. The existence of a replay center, itself, suggests that we are in a new era. At one time, Lewis points out, the referee was God. And the existence of a replay center indicates that the referee is not the be all and end all to enforce fairness. But we soon learn that, even with a replay center, the NBA is “trying to do the impossible: adjudicate fairness.” What could go wrong with a system where a replay center can get the calls perfect? Consider these issues:

  • The $15 million dollar replay center reviews, on average, only two calls per game. The vast majority of the calls are never reviewed. But the presence of that center is suggestive that refereeing is inherently biased and unfair.
  • Referees must endure constant criticism. And yet, statistical trends persist. On average, calls tend to go in favor of the team that happens to be losing when the call is made. And calls also go in favor the home team. Trials, by the way, mirror this practice. In criminal cases, calls tend to favor the home team. The State, after all, has its office in or near the courthouse. I’ve found in many trial transcripts an interesting trend. Once the judge believes that the defense is losing the trial, calls will tend to go in favor of the defendant. Why risk the error in the event of an appeal? An experienced trial judge tends to know which way the wind is blowing and will start ruling for the defendant on routine evidentiary matters.
  • Referees have never been as good as they are today (NBA refs are more physically-fit and demographically diverse than ever before). Yet referees have never before been so under attack. NBA refs routinely receive death threats and require security escorts after the game. While refs can be freely attacked in the press, they cannot go on air and defend themselves. Judges have a similar gig.
  • Refs come under the most attack when they make purported mistakes at the end of the game. Questionable calls at the beginning of the game have the exact same impact as those at the end. But there is a greater perceived sense of injustice at the game’s end. We probably pay more attention to what judges do during jury trials than in pre-trial motions. But pretrial motions have way more impact on the trial’s outcome than some random “asked and answered” objection. And the time to make critical objections would have been better before the trial started. A really talented attorney I know says that trial objections are kind of pointless, but he files extensive pretrial motions packets and argues the case to death in the months before a potential jury trial commences.
  • The stars are the players who raise the biggest ruckus by getting in the referee’s face. Lewis pivots from this point about the NBA to make a more universal point. He references a study that demonstrates that an increased sense of privilege correlates to a sense that the rules don’t apply (drivers of junky cars tend to yield to pedestrians more than drivers of high end cars). I’ve seen, in many instances in my career, prosecutors who have moved to recuse judges, not for any particular issue related to judicial ethics but because they felt outraged by a ruling. More rulings by trial courts have gone against me than for me, but I’ve never gone near a recusal motion.

At a time in which judging is the best it’s ever been (take a look at Georgia appellate opinions from the 1850s or 1950s and compare them to opinions from today), judges have never been more under attack. And, alas, complain as we will, there is no perfect justice.

And Lewis leaves us with the big issue: “when you have a weak referee, you have a big problem. … one day you’ll eventually wake up in a world that seems not just unfair but actually sort of rigged. It’s incapable of becoming fair because the people who benefit from the unfairness have the power to preserve it.”

I am in the business of appealing the decisions of one set of referees — trial judges — to another set — appellate judges. And when I appear in front of trial judges, this fact is kind of a standing awkward joke. But my experience appealing judges has never been an issue of discord. Having reviewed thousands of trial transcripts in nearly two decades I have a respect for what a hard and often thankless task it is to be the referee, from the little league umpire to the trial judge. And Lewis’s podcast reminds me of how important the job of the referee is. We should think twice before we, in any form, chant, “Ref, you suck!”

It may be that putting pen to paper is the perfect way to compose first drafts. Tim Ferriss’s interview with Neil Gaiman has made me rethink my approach to drafting briefs and motions. Neil Gaiman is my favorite fiction author. And I loved much of his approach to writing, from the habits he uses to stay focused to his craft of putting pen to paper. Not until I listened to the podcast did I know about the notebooks and fountain pens.

Gaiman composes his first drafts in a nice notebook using fountain pens.. In an earlier interview, he described how the switch to notebooks changed everything for him. “I was sparser, I would think my way through a sentence further, I would write less, in a good way. And when I typed it up, it became a very real second draft – things would vanish or change. I discovered that I enjoyed messing about with fountain pens, I even liked the scritchy noise the pen nib made on the paper.”

There is much here for legal writers to emulate. When I was in my first year of seminary, I enrolled in a seminar course on religion and literature. The professor started off the class with a writing exercise. We wrote by hand for a few minutes (laptops were rare then), crumpled up our page, and threw them to the middle of the table. Then we started again. His rationale was that the warm up phase of writing was not likely to produce much in the way of quality. The secondary lesson was that nobody ever needs to see a first draft. In legal writing, the court will absolutely never see your first draft because only pro se people and sovereign citizens turn in handwritten stuff.

I’ve experimented with handwritten motions, pleadings, letters, and this blog post. And there is something relaxing — almost luxurious about it. Also, the typing draft bears little resemblance to its handwritten ancestor. It is difficult to type an exact duplicate without implementing changes.

I’m reminded of other writers who draft with pen and paper. Civil War historian Shelby Foote took it to another level, with an elaborate process that involved a dip pen. At one point in time, he is said to have purchased up all remaining dip pens in the country. He said in an interview:

I use a dip pen. Everybody on earth used to have one. They were in every post office in the land. I like the feel that a pen or pencil gives you, being in close touch with the paper and with nothing mechanical between you and it. The very notion of a word processor horrifies me. When I’ve finished a draft, I make changes in the margin. Then I make a fair copy. I also edit the fair copy somewhat when I type it on big yellow sheets so I can see it in print for the first time. I correct those outsized yellow sheets, then retype them on regular eight and a half by eleven pages for the printer. I’ve had poet friends tell me they never type a poem until they are really satisfied with it. Once they see it in print it is very different from what it was in longhand. It freezes the poem for them.

My favorite presidential historian, Robert Caro, uses a hybrid process of outlines and handwritten prose for his first drafts. “First you fill it in in handwriting, and then you sit there for weeks going through the files, putting in the best anecdotes,” he says.

I like my experiment so far. It is relaxing to write by hand with a fountain pen. My tool of choice is a Dryden Design fountain pen I received as a gift. And I have some notebooks ready for briefs and other large-scale writing projects. For everything else, I love the feel of Docket Gold legal pads. The paper is heavy, and the cardboard backing has heft. You can take notes without much need to press the legal pad onto anything else. Also, paper does not receive texts or twitter notifications. And there is no newsfeed to pull you away from writing. My favorite writers may be on to something. I write this after spending about a decade moving to a paperless process.

On the subject of peak competitive performance, I heard pretty much the same advice from two very different places this week — a seasoned appellate lawyer in one venue and a seasoned athlete in another.

This semester, I’m teaching Georgia Appellate Practice and Procedure with Chief Judge Stephen Dillard of the Georgia Court of Appeals. This week, our featured speaker was Michael Terry. He spoke on his top ten tips for preparing for oral argument. Oddly enough, his number one tip was all about parking. Yes, parking! He led with that. Mike says that your top priority for oral argument should be to figure our how you will arrange your transportation to oral argument (He assumes you’ve done all the other things necessary to prepare for the argument itself. Literally, plan how you will get there and where you will leave your car. If you’re interested, Mike takes Lyft.

The issue is stress and energy management. He says that all of this is hard enough as it is. And you don’t need to add stress to the mix by worrying about something like traffic or parking. You should focus your energy on the task at hand. If you worry about making it to court on time, you’re being foolish with your energy. Having done this for years, I’ve had my share of traffic and parking mishaps. And it has never helped. It is a bad use of energy best directed elsewhere.

Now to Mo. I track my running with the Nike Run Club App. I’m pretty sure that I’ve given Nike way more data about me than I’ve given Google (And yet, based upon my splits, they have not referred me over to Rockport). A feature of this app is coaching from famous athletes and coaches. During a run of a set duration or distance a person gives coaching direction into your speaker or headphones.

And it’s as right around minute 20 that Mo Farah’s advice made me think of what Mike said. His number one tip for competitive running is to start slowly. He speaks of what a mistake it is to spend energy that could be devoted to an event with nervousness before it starts doing something unproductive like psyching yourself out.

And here the wisdom of Michael Terry and Mo Farah converged. For both, the number one tip had more to do how you manage the trip to the starting line than what happens after you cross it. Whether it’s running or an oral argument, the lesson is the same. How you manage the case or the event depends on how you manage yourself leading up to it.

The best advice from two sages from different professions is to start slowly and arrive with a sense of calm. Take care of your self as you approach the starting line, and you are more likely to be happy what happens when you reach the finish.

In a follow up story to the one published in last’s weeks AJC, Chris Joyner and Johnny Edwards have doubled down on some of the flaws from the original story. The writers continue to blame defense counsel Speaker Ralston solely for delays in his criminal cases. They take the additional step of taking him to task for being a criminal defense attorney — something merely suggested in the original article. The writers quote the leader of Georgia’s Tea Party to make that attack. And, rather than investigating the case files in the North Georgia courts where the matters are pending, the reporters focus on Ralston’s legislative colleagues and discuss whether those colleagues continue to support him or are backing away from him. What started as a criminal justice story for the AJC, is now clearly a political story (maybe this has been a political story all along). Unfortunately, the flaws serve to further undermine a better public understanding of how the system works and the role of defense counsel in an adversarial system in which the prosecutor brings the case and the judge sets the schedule.

An interesting follow-up to the story would have been to explore the cases in a more in-depth way to see if the state opposed requests for continuance. Judges and prosecutors serve a pivotal role in the scheduling and pace of a case from indictment to conclusion. And I cannot stress enough that we have an adversarial system. Frequently, the state and defense counsel argue motions to continue matters. And even when the defense and the prosecution agree to continue cases, the judge may ultimately decide whether a case proceeds to trial in a way that makes neither side happy. Every trial lawyer has a set of war strories on this topic.  Additionally, there are tools available where the parties, for whatever reason, have difficulty getting a case resolved.

  • Special Setting. Judges can specially set cases. When a case is specially set, the parties are directed to show up on a particular date and time to try a matter. In the normal course of events, a large set of cases will be called in on a Monday morning. And the Court decides, from among the group of cases, which ones will go to trial that week. Of the maybe hundred or so cases who appear, one or two will be tried that week. By contrast, when a case is specially set, a particular case is called in for trial. When a judge specially sets a case, the parties know when their case will be tried. And, because the parties have generally agreed to a special setting, they are hard pressed to bring a continuance. Years ago, when I worked as an associate for a very busy criminal defense attorney, the judges in a particular jurisdiction were frustrated by all of my boss’s scheduling conflicts. To help everybody out, I tried two misdemeanor cases before a jury one week, picked a jury on a third, and resolved a fourth. If someone as busy as the speaker of the house is defense counsel, it seems like his cases would be perfect for special setting. I wonder if the State or the Court ever tried something like that in Ralston’s cases. Seems like the story should have explored this question. Instead, the writers decided to go to Ralston’s legislative colleagues to figure out if they want to condemn him, support him or enforce what the AJC calls a “code of silence.”
  • Scheduling Orders. Another tool to move cases is a scheduling order. When a judge imposes a scheduling order, the parties come together early in a case to decide when motions will be due, when motions will be heard, and when trial will commence. When the scheduling order is discussed, the parties bring their calendars and work out proposed dates for various milestones in the case. Scheduling orders are routine in Federal Court. And they work as a sort of contract for the the case’s resolution. In some Georgia jurisdictions, the use of scheduling orders is regulated by local rules and customs. The scheduling order can be a powerful tool for the Court where a case proves tricky to schedule and resolve. And if someone with a schedule such at that of Speaker of the House is defense counsel, it would seem that scheduling order would be just the thing. Was there ever a scheduling order in Ralston’s case? We have no idea, because the journalists chose not to explore this question.

Trial law is not governed like a baseball game. In a baseball game, an umpire will call every pitch a ball or a strike. In law, either the pitcher or the batter has to request a ruling. And if defense counsel requests a continuance, the prosecution has every right to oppose the request. Further, if a case is taking too long to resolve, it is up to the party who most wants it resolved to speak up. Again, it’s an adversarial system. And the defense attorney’s job is to win his client’s case. Defense counsel does not represent the victim. So, if defense counsel’s motions for continuance are always granted by the judge and never opposed by the State, who is to blame — the team who brought the charges, the team defending the charges, or the umpire who controls how the game is played?

But why go in depth on the criminal justice angle when you’re writing a political piece? The AJC unveils in the follow-up article what was merely implied in the first one. Ralston’s crime is that he defends the accused at all; but he’s guilty of an ever bigger one, which may be why all of this started. The article quotes Debbie Dooley, the President of the Atlanta Tea Party: “They [the Republican leadership] rubber stamp him protecting accused child molesters and rapists and those that like to beat up women. … is that really what Republicans in the Georgia House really want to stand for?” In other words, do you want someone who defends the accused to be a political leader?

With the quote from Ms. Dooley, we learn what Ralston’s real offense is. It’s that he’s the wrong kind of attorney. Or perhaps, from the decision to interview political figures in Atlanta instead of local folks in the jurisdictions where the cases are pending, maybe the real crime is that Ralston is the wrong kind of Republican.

I haven’t had an argument at the Georgia Court of Appeals in quite some time. It was good to be back. I won’t comment on the substance of a pending case before the Court. Instead, I’ll mention time management. My fifteen minutes went by quickly. And, as I tried to wrap up, there were additional questions. The Court gave me two additional minutes for rebuttal. And those minutes came in handy. If I had the argument to do over again, I would have stopped sooner than I did. I seldom do rebuttals. But this one was necessary.

I’ll close by recognizing opposing counsel for his professionalism to me throughout this case.

I’ll write more on this case later, but I wanted to provide a quick update on a recent case. This week, the Supreme Court of Georgia held that the State cannot use against defendants in DUI trials evidence of their refusal to take a chemical test. While the United States Supreme Court has held otherwise, under Georgia’s constitution, which provides its citizens with additional protections not provided by the Federal Constitution.

Several months ago, the Georgia Supreme Court requested amicus briefs from the Georgia Prosescuting Attorney’s Counsel, the Office of the Solicitor-General, and the Georgia Association of Criminal Defense Lawyers. Those groups briefed the case well, and it was an honor to present argument on behalf of GACDL. Over my career, it has been my privilege to be amicus counsel on important cases before the Court. And this was was particularly satisfying.


The front page story of today’s Atlanta Journal-Constitution accuses Georgia House Speaker David Ralston of using his position as speaker of the House to gain an advantage over the State in his criminal defense practice. An accompanying broadcast report cites “obscure law,” O.C.G.A. Section 17–8–2, as the evil tool that Speaker Ralston is using to hurt the rights of victims.

The statute give members of the General Assembly the right to a continuance or stay of any pending court case during “any regular or extraordinary session of the General Assembly and during the first three weeks following any recess or adjournment.” Another provision of that statute provides that “a continuance or stay shall also be granted for such other times as the member of the General Assembly or staff member certifies to the court that his or her presence elsewhere is required by his or her duties with the General Assembly.”

Johnny Edwards, the reporter who wrote the piece, managed to track down one of the clients, who admitted that he hired Ralston with continuances in mind, saying “[t]hat’s why I gave him 20,000 bucks.” A bit of commentary is in order here. I make no conclusion on whether Speaker Ralston is using his position as legislator to gain a tactical advantage over the State. Though the more likely scenario is that he’s just having trouble managing a law practice and being speaker of the house.

  • There was a time when most of the legislature was made up of attorneys. Legislative service was once something that young lawyers did for their community. Running for office was something akin to being in Rotary. It helped a young lawyer become known in the community. The legislature would do well to have more lawyers among its ranks. Lawyers are ideally suited to craft laws and are equipped to foresee unintended consequences of proposed laws. And there are far too few lawyers in the current legislature. The “obscure statute” allows lawyers to juggle a law practice and legislative service. And if there were no such statute, then it is likely that there would be even fewer lawyers in the legislature.
  • The article presumes that delays in cases hurt victims and help defendants. While that may well be the case some of the time, there is often nothing more terrible for the client and counsel than keeping a criminal file open for a long time. There is a reason why there is a constitutional right to a speedy trial. Perpetual jeopardy is very often agony. Also, critical defense witnesses can forget about facts and become unavailable over time. The article mentions nothing about the toll that time can take on a defense case. Defendants have a right to put up a case, too.
  • Speaker Ralston practices in a rural North Georgia area. It may well be that cases generally take quite a while to reach a resolution in a place like that where grand jury and trial terms are infrequent. The article does not compare how long it takes Ralston’s cases to resolve versus criminal cases overall. There was a missed opportunity in the research. I’d be interested to hear from the clerk of court or circuit public defender how long it takes, on average, for criminal cases to move from arrest to completion for defendants who are out on bond (I’ll assume that Ralston’s clients are on bond). Bonded clients are often a lower priority for trial than those in custody.
  • The article is very anecdotal. And there’s a bit of confirmation bias at play. For instance, where one of the victims in a case has trouble keeping her story straight, Edwards presumes that she has a poor memory as a result of the passage of time. However, it might actually be possible that Ralston’s client isn’t guilty and that the witness’s story isn’t true. One might actually be allowed to presume Ralston’s client to be innocent.

Again, I have no idea if Ralston is playing the rules to gain an advantage over the State. I’d like to see more facts. But, if we assume that he is, the solution is either for the Court to move his cases faster, or for the voters in his district to deliver a verdict through the ballot box. The problem does not lie with a sensible statute that allows lawyers to serve in the legislature.