July 2010


Jay O’Keeffe, in his blog reports that he is bothered by a recent development involving a lawyer who has been summoned to show cause and explain comments he made in a lower court transcript about the Virginia Supreme Court.

Bothered is a mild way to describe my reaction to the story. Put more accurately, I think I feel hot water in the back of my mouth, and I don’t even practice law in Virginia. The story is the ultimate in “there but by the grace of God go I” cautionary tales for lawyer like myself.

So, here’s the story. A lawyer in Virginia was representing someone on a criminal case that was appealed successively. When the lower court asked the lawyer about an issue that the appellate court never reached on appeal, the lawyer responded that the appellate court had decided to “stuff it” because it “did not have the guts to handle it.”

Low and behold, the matter reached the Virginia Supreme Court and the powers that be read it. They were not amused and have summoned the lawyer to appear and explain himself in person. Did I mention the hot water in the back of my mouth?

The problem is that law is all about analyzing what and how judges and courts rule. Every brief contains those things more or less. One court revisits the analysis of a previous court. In fact, law could be reduced down essentially to a bunch of people criticizing each other. I’m not defending the “stuff it” language, but would he be in trouble had he said that the issue was a hot potato, and the Court did not appear to want to touch it.

Court of Appeals Rule 10

Under Georgia Court of Appeals Rule 10, “Personal remarks, whether oral or written, which are discourteous or disparaging to any judge, opposing counsel, or any court, are strictly forbidden.” I did some research, and it turns out that Rule 10 has only come up once in a published opinion. In Hampton v. Bank of LaFayette, a party tried to have the other side sanctioned for personal remarks made in a brief, and the Court declined to do so. They didn’t even include the remarks for our voyeuristic reading pleasure (although, I am sure the most honorable Court had a very wise reason for doing so, because our appellate court is very wise. We also have the most attractive court in all the land).

Our appellate bench seems to be a little more thick skinned than Virginia’s. Keep in mind, Virginians have always been about honor. I sure hope that the lawyer isn’t handed a dueling pistol when he arrives for his hearing.

 My Shameless Attempt to Capitalize in the Past.

A few years ago, an opponent was being obnoxious to me in a motion for new trial hearing. He was getting personal in one of those cases where it seemed kind of pointless to be that way. I had nothing. It was one of those cases that makes you miss Anders briefs. But I was getting annoyed by the gratuitous “go for the jugular” approach opposing counsel was taking.

Then came a little gift from the prosecutor. He turned his attention from me to appellate courts, and he commented that he could do his job if “those courts in Atlanta would just get their foot off my neck.”

With little else to argue on this appeal, I devoted a good portion of the statement of facts to his comments about the Court of Appeals. In fact, I think the brief began with a quotation about the appellate courts and a neck and some feet.

The Court affirmed the conviction without so much as a peep about the lawyers statement. Oh, to have been in Virginia. However, if I had made a comment like that, I wonder if it would have made a splash?


Of course, in Georgia I wouldn’t press my luck. There can sometimes be a fine line between criticism and being insulting. The key, I think, is to be critical of reasoning, application of precedent, and judgment without discussing motivations and personalities.

For instance, in motions for reconsideration, I always ask for reconsideration because I was unclear and failed to communicate the law in a good way. If the Court reached an erroneous decision, it came as a result of a failure in advocacy on my part.

I don’t think being passive aggressive is actionable under Rule 10. And I’m sure the ole malpractice carrier loves this language.


photo of files.jpgThese have been difficult days for the judiciary and for the Court of Appeals in particular. There are three openings on the Court and two branches of government that seem to view the court system as an inconvenient hurdle standing in the way of law enforcement. Add to the mix the fact that yesterday was the retirement ceremony for William L. Martin, III, the Clerk and Court Administrator of the Georgia Court of Appeals for almost 20 years. While the ceremony was about the excellent work of Mr. Martin, remarks judges made at his retirement demonstrate that these have been difficult days at the Court.

Yvette Miller, currently the Chief Judge, battled back tears at several points during her presentation. She and several speakers mentioned that there have never been as many open seats on the Court as there are right now.

The governor is about to appoint two judges, and there is an open election for a third. Speaking of the governor, he appeared to be a silent character in yesterday’s events.

In describing Mr. Martin’s contributions to the Court over his tenure, Chief Judge Miller mentioned in particular his contributions over the past year. More particularly, she mentioned their trips together “across the street” to the state capitol where they had to meet with the legislative leadership to try to deal with sharp budget cut. She spoke of how she and Mr. Martin huddled up at her desk to find a way to keep the staff of the Court employed and to ensure the the work of the Court was done in spite of the fact that the House was gutting its budget (“gutting” is my word, not hers). Finally, when she presented Mr. Martin with the gift from the judges, she said in tears, “we all wanted you to have this, including Judge Bernes.”

His most recent great accomplishment was E-filing in the court, which has greatly streamlined the appellate process in that court and has benefitted my practice considerably. 

On a more general note, Judge Ellington spoke of how difficult the job of Court of Appeals clerk is. First, the Clerk is the one real point of contact most parties before the Court will have. For the advocate who has a case before the court occasionally and who might not regularly appear for Appellate Section events or Oral Argument, there may never be contact at all with the judges. The Clerk is the public face of the institution.

Judge Ellington went on to discuss the diverse array of difficult people the Clerk must work with, including lawyers, county court clerks, many of whom are hostile to the appellate process, and judges.

Speaking from experience, I found Mr. Martin to be very helpful to me in my early years practicing before Court. He was always quick to return my phone calls, eager to offer advice, and a cheerful voice at the end of the phone when I was knee deep with a brief due. It turns out that he was that person to hundreds of other people who called him about their cases.

At the same time, he was meeting with hostile legislators and a governor who has done more, perhaps to set back the idea of an independent judiciary than anyone in the history of that office.

Justice Carley of the Supreme Court of Georgia presented a gift to Mr. Martin — the decision to give it was the first action that the Court has taken in a while that wasn’t decided by a 4-3 vote.

It was a touching ceremony. It was also a telling ceremony. 

crystal ball.jpgIn the past week, I sat down with two potential clients and their families to discuss taking an appeal. I thought one case was “winnable,” and one I thought was not. I put “winnable” in quotation marks because defining a win in appeals law is difficult.

In one case , the prospective client recently entered a non-negotiated guilty plea to a violent crime. A non-negotiated plea is one where there is not recommended sentence by the State. The client stands before the judge, puts up his mitigating evidence, and the judge chooses the appropriate sentence. The sentence was tough, but it could have been worse. The other case involved a man who entered a plea to a very badly worded indictment and whose plea hearing was pretty messed up. By messed up, I mean that the judge did not ascertain whether the client understood the rights he was giving up by taking a plea and choosing to forego a trial. Both cases were dangerous.


Danger Often Lurks Ahead When You Mess with Guilty Pleas

These two cases had something in common though. They were a classic demonstration of the cliche — “be careful what you wish for because you just might get it.” Bad things were waiting for these prospective clients at the end of a successful appeal. For the guy with the defective plea, two counts that were originally dismissed would return from the dead to haunt the client on retrial. For the other prospective client, there were several potential counts for which he could have been indicted after a successful appeal, and the case was not going to be very easy to defend at trial.

The choice was theirs, but I advised that an appeal was likely a slow road to disaster. The sequel was going to be more along the lines of Caddyshack II than Return of the Jedi.


The Judge’s Power When Counts were Dismissed

But, you say, can the judge really punish you for a successful appeal? It depends. In the landmarks case of North Carolina v. Pearce, the Supreme Court held that a judge cannot increase a person’s sentence after a direct appeal unless there is a new objective reason to do so, such as bad conduct after the original verdict. Justice Potter Stewart wrote for the majority:

… we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

So, if the client went to trial and lost, then an appeal is a safe bet. However, if he entered a plea and, as part of the negotiations, one or more counts were dismissed, then the State can bring those counts back and a sentencing judge would be sentencing the client technically for the first time. So, we wouldn’t be an an Pearce situation. And if you want to argue Pearce in Georgia you better bring some Pearce facts to the game.

Give our appellate courts the opportunity to wiggle around the holding in Pearce and they will, just as they did recently


Stare Deeply into the Crystal Ball

When you meet with a prospective client, there is one essential conversation you must have and it starts with a very basic question — what is your goal? Do you want to gear up for a new trial and risk battling sleeping giants so that you can walk away? Do you want to gamble that the State can’t put on a case now or that it will take its toys and go home? 

Put another way, invite the client to imagine what victory looks like to them by asking them to plan the 6 months that will follow a successful appeal. What will she be doing? Enjoying her newfound freedom or moving from a prison to a county jail to await a new trial that will be un-winnable? Planning for the next trial where she will kick the State’s butt this time? Negotiating a better deal than the one before?

If you can agree on what that image will be, then welcome aboard. If not, it may be a case best left untaken.

office supplies.jpgDonovan X. Ramsey at The Public Square, a Blog on Atlanta Politics and Newsreports that the City of Atlanta’s Public Defender’s Office receives less money for indigent defense than the Atlanta Mayor’s Office receives for office supplies. 

The Atlanta PD’s office is allocated about $1.1 million dollars for use in defending a projected 16,500 cases to be divided among 13 full-time employees, only 9 of whom are attorneys. I went to law school, but even I can see that this math is troubling, particularly when compared to what the ABA guidelines are for a public defender’s caseload. Mr. Ramsey quotes the recommendations from National Advisory Commission on Criminal Justice Standards and Goals on its advised caseload for public defenders as: 150 felonies, 400 misdemeanors, 200 juvenile court cases, 200 mental health cases, or 25 appeals annually. 

Mr. Ramsey makes one “flaw” in his reporting. He aggregates the number to 975 cases. Actually, the guidelines suggest a total cases load per category not an aggregate caseload of all types of cases. Still, even if one were to allow for an aggregate caseload, the numbers for Atlanta are pretty messed up.

There is pathetically little budgeted beyond salary to the office either. The margin between what is allocated for salary — $1,183,058 — and what is allocated for other expenses — $1,137,317 — is razor thin. So, lawyers can’t really do much with the cases they have such as order criminal histories, hire expert witnesses, investigate cases, or issue subpoenas. 

Adam Liptak in the New York Times, wrote an article criticizing the abyssal state of indigent defense for death penalty cases in Georgia. It turns out that Georgia’s 3rd World indigent system exists for the garden variety misdemeanor / felony lite case as well. Yet, the Constitution applies in Atlanta since Georgia was on the losing team in the Civil War.

It is a good thing that client autonomy is valued in the 6th Amendment because it appears that Georgia’s indigent defendants are on their own.

But the Atlanta Mayor will not go without staplers.

mountain climber assist.jpgFrom Bob Mabry at his blog, Courts and Writing, I learned about an article by University of Georgia law professor Erica J Hashimoto in the latest issue of the Boston University Law Review. According to Professor Hashimoto, the criminal client should have a complete right to represent himself at trial and on appeal. Also, when a client has a lawyer by appointment or whom he has retained, Hashimoto argues that the client should control all matters in the case including which defense to choose, which witnesses to call, which errors to enumerate on appeal, and how the appellate brief should be written. I agree with the professor generally. The client’s autonomy is important. Criminal counsel should communicate regularly and consider the client’s views. However, I cannot go so far as to agree with the specifics of her argument. The client should not have the power to control which issues are chosen for appeal or how the appellate brief should be structured or worded. 

Professor Hashimoto’s Argument

The general thrust of the article is that courts since Faretta v. California have taken an increasingly paternalistic view toward the client in a way that has undermined the client’s autonomy in violation of the Sixth Amendment. Hashimoto then proposes that courts return to regime where the client controls all issues in the case, with the advice and assistance of counsel. She argues that, when the 6th Amendment was drafted, few criminal defendants had lawyers, and that, when they did, the client called the shots on all major trial and appellate issues. So, the framers never envisioned a legal system where the acceptance of a lawyer meant a waiver of the right to control the flow of the case.

Next she argues that the plain language of the 6th Amendment envisions that the client can call the shots on everything with the assistance of counsel.

Finally, she points out that control of the trial is the last major opportunity the accused has to control his destiny before going to prison and ceding all control over day to day activities to prison officials.

While there are some things I like about this article, there are some things about it which, if true, would make it difficult to professionally represent clients on appeal.


Continue Reading Client Autonomy on the Front Lines as a Georgia Appeals Lawyer

paintbrush.JPGWhen I succeed in my brief writing or at oral argument (I measure success by writing a good brief and by fluid conversational delivery at argument — not necessarily by result), it is because I stop to think about my audience. More particularly, I remember that my audience includes a set of staff attorneys and judges or justices with a stack of briefs to read that hopefully don’t look exactly like mine.

An article in today’s legalnewsline.com reminded me of the fact that the people who hear my argument and who read the briefs that I write are people with interests beyond my particular cases. They even have interests beyond the law. 

According to the article, Justice Robert Benham of the Georgia Supreme Court “has his own woodworking shop, [where he makes] objects like toys and music boxes with his two sons.” He also “builds birdhouses for Habitat for Humanity.” 

Those facts humanize him and tell me more than his official biography does. Official biographies, like resumes, start looking the same after a while. But to know that someone makes toys, music boxes, and birdhouses for Habitat tells me that one member of the audience is compassionate. It also tells me that workmanship and craft are important to him. I should be very precise and concise in the future.

Justice Antonin Scalia and Bryan Garner make it a point to tell lawyer how important it is to know about your judge before you present your brief, try your case or show up for oral argument. In their book, Making Your Case: The Art of Persuading Judges. Scalia and Garner advise:

“learn as much as you readily can about the judge’s background. Say you’re appearing before Judge Florence Kubitzky. With a little computer research and asking around, you discover that fly-fishing is her passion; that her father died when she was only seven; that her paternal grandparents, who were both professors at a local college, took charge of her upbringing; that she once chaired the state Democratic party; that she enjoys bridge … and so on. … you might well find some unpredictable use for this knowledge over the course of a lengthy trial.”

Most importantly, they add, “at the very least, these details will humanize the judge for you, so you will be arguing to a human being instead of a chair.”

Keeping in mind that your audience consists of people and not a judicial machine will help you write better briefs that help them decide the case. If yours is the 53rd brief in a stack of 100 that looks exactly like the others, then your judge might get bored, might skim your text, or might just affirm the conviction because that is a nice safe default. 

Of course, not all judicial hobbies are good. I suppose that when you find bad hobbies, you have a nice new enumeration of error to raise for your client and and the opportunity for a new judge with a healthy life and more wholesome hobbies. 

politician.JPGBill Rankin at the AJC reports that the 11th Circuit Court of Appeals has reversed a Federal District Court’s dismissal against former Clayton County District Attorney for an alleged violation of his First Amendment right to Free Speech. This is the latest chapter in what was a debacle of a tenure for. Mrs. Scott as the District Attorney in Clayton County, Georgia. Mrs. Scott and husband Lee Scott were both elected to DA and Chair of the Board of Commissioners respectively. Both lost overwhelmingly in 2008. Their tenure in Clayton County accompanied a wholesale change in leadership in that county, including the election of Victor Hill as Sheriff, who promptly fired many sheriff’s department employees. As those employees left the building, Mr. Hill posted snipers on the roof of the law enforcement complex. When she began serving as DA, she had never tried a case to a jury. Mr. Hill’s time in office led to Federal suits as well.

In this particular instance, Ms. Scott’s chief investigator Earl Randall announced that he wanted to run against Ms. Scott’s husband, Lee Scott, for Chair of the Board of Commissioners. Mr. Scott reportedly pounded his fists on a table when he heard the news and demanded that his wife fire Mr. Randall and vowed to “destroy” him. Yes, sometimes the truth is stranger than third-rate melodrama. I’m sure that, when the lawsuit goes forward, we will find out that he exclaimed, “bwahahaha” shortly afterward.

Mr. Randall was fired, and he filed suit againt Ms. Scott individually, in her official capacity as DA, and against the current DA in her official capacity. 

The District Court dismissed the suit, reasoning that there is not First Amendment right to campaign for election, that Ms. Scott was protected by qualified immunity, and that the Complaint did not satisfy pleading requirements. Then the case went to the 11th Circuit, and the plot thickened.


Continue Reading 11th Circuit: Lawsuit Against Clayton County, GA DA Can Move Forward

Judge Debra BernesThe Honorable Debra Bernes has died of cancer at the age of 54. Bill Rankin at the Atlanta Journal Constitution has posted an article on her passing and her career. Judge Bernes will be remembered for many things including her illustrious, albeit too short career on the Georgia Court of Appeals.

Before beginning her service on the Georgia Court of Appeals, Judge Bernes was a long time appellate attorney with the Cobb County District Attorney’s Office. After a brief stint in private practice as an appellate lawyer, she ran for an open seat on the Georgia Court of Appeals.

Judge Bernes was elected to her seat after defeating Howard Mead, a candidate who greatly outspent her. Judge Bernes ran a grassroots campaign and won through a recount and a blitz of advertising by her opponent. Most importantly, she ran a clean and ethical campaign for judge. She showed that the high road actually works in statewide elections.

 I appeared in front of her for argument many times and wrote many more briefs where she was either on the panel or where she wrote the opinion. She was everything an advocate could ever want in a judge, particularly on the appellate bench. She was intelligent, hard-working, and she had a sense of compassion for the people who appeared in front of her. Above all, she treated you like a professional

Judge Bernes ruled against me much more often and she ruled for me, but every opinion was soundly reasoned, thoroughly researched, and reflected her best effort to apply the law as she believed it to be to the facts of the case. In a year of misconduct in Georgia that has given the judicial branch a black eye, she was a shining example of who a judge could and should be.

 Aly Palmer with the Fulton Daily report has also posted an obituary.


Blank Slate.jpgThere are two big stories in the Georgia Supreme Court’s decision in Jackson v. State. The first is that the rule of causation for felony murder that had been in place for thirty years has been changed. The second is that the majority has provided a framework for any appellant to use in future cases to use to attack the concept of precedent itself. While it probably is intended as a tool for the State to use against persons charged and convicted of crimes, it is worth a try on your client’s behalf. Precedent doesn’t mean what it used to mean, and by “used to” I mean before the Jackson opinion came out.

This opinion has several moving parts. So many, in fact, that I wrote up a State v. Jackson mindmap.pdf for use in interpreting and following it. 

Facts and Procedural Posture

Factually, the case reads like a case out of a law school exam. Carlester Jackson, Warren Smith, and Jerold Daniels decided to rob a drug dealer. Daniels approached the intended victim with a handgun with Jackson nearby in a getaway car. The victim and Daniels exchanged gunfire and Daniels was killed by the victim who was acting in self defense. The State charged Jackson with felony murder for causing the death of co-conspirator Daniels while all three were engaged in the felony act of armed robbery.

In short, the issue in the case was whether a co-defendant can be charged with, prosecuted, and convicted for the death of a co-defendant at the hands of a victim who kills another co-defendant in self-defense.

The trial court followed precedent and dismissed the charges. The State appealed the dismissal specifically to ask the Supreme Court to overrule Crane v. State, the case that said that such a prosecution could not be brought.

The Supreme Court reversed the trial court, overruled Crane, and set up a new test — a meta-test — to use to determine which precedents are worthy of standing and which ones ought to go. 

Continue Reading A New Approach to Felony Murder and a New Template to Attack Precedent in Georgia

hourglass.JPGOne of the problems with appellate law is that clients either show up too late or early. Some clients show up too late and too early.

Too late is after the trial attorney has screwed things up, after a deadline has passed, or after the client took things into his own hands and dabbled in his appeal.

Too early, is when the conviction has just happened and the transcript is not ready yet where nobody can say exactly what the errors were, if any.

Too late and too early is after the trial lawyer screwed things up, no transcript is available yet, and the deadline to file the motion for new trial is four hours away.

Ideally, the client comes in after being convicted, with the trial transcript in hand, with a referral from an excellent trial attorney who made all the necessary objections, filed all the right motions, and received bad rulings from the trial court on every one of them. The lawyer filed a motion for new trial, the hearing on it is three months away, and the client is out on an appeal bond. Really ideally is when the trial lawyer brings me on to assist with legal issues with a mind toward making the best possible record and with a mind of handing the ball to me if the client gets convicted. The trouble is that most clients don’t want to think about dealing with a conviction until they are convicted and don’t think it will happen to them.

When people come to see me for an appeal, it is often with variations on one of two scenarios. I’ll give you the most extreme examples of each.


Scenario One

The husband/brother/son/nephew/friend was convicted in 1998 and is serving a life sentence. He had new counsel represent him on appeal. Counsel was unsuccessful, and the conviction was affirmed in 2001. At that point, husband/brother/son/nephew/friend was fed up with lawyers and filed a pro se federal habeas petition, which he unsuccessfully appealed to the 11th Circuit Court of Appeals. He then filed a pro se State habeas in 2003, which was denied and unsuccessfully appealed to the Supreme Court of Georgia and another pro se habeas petition in 2005, which was dismissed.  He really knows a lot about the law now after all these years. He’s drafted his third habeas, and wants me to be his co-counsel.


Scenario Two

The wife/sister/daughter/niece/friend was convicted 29.5  days ago. The person who comes to see me did not see the trial because the rule of sequestration was invoked, but he thinks the wife/sister/daughter/niece/fried was railroaded. They don’t understand how this could have happened. They hired the lawyer in town who worked on Uncle Jake’s will and who closed the loan on their house. After they hired him, he quit taking phone calls, and all the discussions of the case were in the hallway on the way into or out of court at arraignments and calendar calls. One day, they got a call at 10:30 on a Tuesday morning to come to court. Low and behold, the judge made them start the trial. Now, she’s got a life sentence. All the witnesses lied. The judge was really mean. So was that 24 year old prosecutor who said this was her first case after passing the bar. They are tired of getting the run around from lawyers. They heard you do appellate law. They will hire you, but they want to know right now if you can win. And they are going to watch you like a hawk because they see how lawyers can act. Oh, and they don’t have any money left because trial lawyer dude got $250,000 already for the trial. Oh, and can they sue the lawyer/judge/prosecutor/bailiff/guy at the metal detector?


Managing Client Expectations

Appellate courts are for the correction of error. Meaning, if the State did something wrong, the defense lawyer complained to the judge, the judge ruled against the defense lawyer on the complaint, and the mistake made a difference in the outcome, then the appellate courts are there to say that the judge ruled improperly and give you a new trial. In really limited circumstances, if the trial attorney made a specific identifiable mistake, and that mistake was something that could reasonable impacted the outcome, then the appellate courts exist to grant a new trial.


There are a wide range of things not included in the list in the paragraph above. Consider some of the things not included in that list. One would be something the state did wrong, where the defense attorney never complained about it, or where the defense attorney complained about it but where the judge did not make a ruling. And also excluded is a situation where the State did something wrong, the defense objected, the court made a bad ruling, but where the court determines that it did not have any impact on the verdict. Also excluded are all the general things that a client did not like about the attorney but that cannot be reduced to a concrete demonstrable mistake. Certainly excluded would be such things as whether witnesses lied or were credible.


Bottom Line

The bottom line is that an appellate lawyer cannot clean up the mess left behind by a bad lawyer and cannot use the appellate process to retry a case that wasn’t tried well the first time. It is even more difficult to clean up a mess created by a pro se client who has dabbled in his own appeal before an appellate lawyer gets on board.

The way Georgia judges hand out sentences under fairly draconian mandatory minimums or because they are just plain mean, clients have no choice but to appeal. And the great thing is that judges and prosecutors in Georgia make mistakes. Every 7 seconds in Georgia a trial judge commits reversible error in a criminal case (a statistic I just made up but which is probably true). Issues are often there.

However, more appellate lawyers need to make the expectations clear early on, and clients need to be able to enter the process with a realistic outlook of what an appeal involves and what lies ahead.