July 2010

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

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.


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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.


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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

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. 


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