August 2010

Lost Guy.JPGIt’s one thing to get practice tips from judges at a seminar or in a bar publication. Court of Appeals Chief Judge Yvette Miller has some tips in appellate advocacy in this Month’s Georgia Bar Journal (PDF page 28 – worth the wait for it to download). It’s quite another thing to get advocacy advice in an appellate opinion telling you how you ignored the rules and how confusing your brief was to read.

Such is the case in the August 27 opinion of McCombs v. State. Before the Court of Appeals reaches the case’s merits, they begin by explaining why they had trouble with the appellant’s case:

As a threshold matter, we note that McCombs has failed to comply with Court of Appeals Rule 25 (c) (1), which requires that the sequence of arguments in a brief follow the order of the enumeration of errors and be numbered accordingly. McCombs includes three enumerations of error, but only two argument sections. Moreover, the arguments do not coincide with the numbered enumerations, and do not follow the order of the enumerations. As we have previously held,


Rule [(25)] (c) (1) is more than a mere formality. It is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration. By failing to comply with the rule, [McCombs has] hindered the Court’s review of [his] assertions and [has] risked the possibility that certain enumerations will not be addressed.

We learn two valuable lessons from this opinion. One, is that briefs should comply with the Rules of the Court of Appeals. There aren’t many, and they are easy to find.

The other lesson is that you shouldn’t make the Court work to figure out what or where your argument is. Things are hard enough already for the appellant. Energy and precious resources the Court could spend being persuaded by you should not be spent flipping pages.

Even if Rule 25 did not exist, wouldn’t you want to do what the Court advises anyway? Ever read a book where the chapters were in a different order from the way they were listed in the table of contents?

Maybe Mr. McCombs’s conviction would have been affirmed anyway. But confusing the Court to the point that they start an appellate opinion giving you practice tips was certainly no help to the cause.

So, in short, read the rules. And write with the reader in mind with a resolve to make things easy. It’s important in any written work. It is particularly so when you are trying to convince a judge that she should order a person to receive a new trial.


jury summons.jpgProfessor Ellen S. Podgor reports in her White Collar Criminal Prof Blog that the 11th Circuit Court of Appeals has reversed several convictions in Kottwitz.pdf because of a trial court’s failure to charge the jury on the defendants’s good faith reliance upon an accountant’s advice. The Court has also held that, regardless of the strength of the government’s case, issues of fact should be decided by a jury and not by an appellate or trial court. Professor Podgor found particularly significant the Court’s reasoning that:

A trial court is not free to determine the existence of the defendant’s theory of defense as a matter of law; it is established by the defendant’s presentation of an evidentiary and legal foundation and, once established, the defendant is entitled to jury instructions on that defense theory.

Carl Lietz and Paul Kish also provide some helpful commentary on this case in their excellent Federal Criminal Lawyer Blog. From a practice perspective, they point out the importance of requesting a reliance upon professional advice charge in white collar cases where it is factually applicable.


A More General Takeaway from the Decision

Jury charges should be an important of a lawyer’s approach to a criminal trial. The charge conference is probably the single best place to plant appellate issues in your record because charging errors are seldom harmless.


The Georgia Court of Appeals Should Adopt a Similar Harm Analysis

The Georgia Court of Appeals appears to be of two different minds about how to analyze harm in jury charge issues. In a recent case, they reasoned that a failure to charge on a lesser included instruction authorized by a defendant’s testimony was harmless. Yet, in a slightly less recent theft case, the Court held that harm was practically presumed from a charging error even where the defense was “incredible.”

The case demonstrates how important jury charges should be to preserving the record for appeal and how the jury’s power to function as factfinder is at stake when it comes to analyzing harm from charging errors.

Sweeping.jpgIt appears that the best place in the State to skirt the edge of the law is the judicial chambers of a Georgia court. If your crime catches the attention of the Judicial Qualification Commission and they investigate first, then you might lose your job. But that’s about it. Brian K. Finnicum, the Editor of the News Observer in Blue Ridge, Georgia, has a piece up in today’s paper describing how JQC has refused to release any information about former Superior Court Judge Harry Doss to DA Danny Porter, effectively shutting down his investigation for what may be criminlnal conduct.

According to Mr. Finnicum, Danny Poter, who was appointed as a special prosecutor to investigate whether former Judge Doss was involved in criminal activity, has closed his investigation after the JQC refused to provide him or his investigators with any information.

When Mr. Porter began investigating Judge Doss, the JQC told him that it would turn no information over to him voluntarily and would resist any of his efforts to obtain it voluntarily. So, Mr. Porter has packed up his tools and is refocusing on Gwinnett County. He said, “I have my own circuit to deal with. I entered into [the investigation] with the assurances from the investigaor that I would have cooperation, and that didn’t happen. I don’t have time to do anything further.”

From the perspective of someone who represents people who have been convicted of crimes, this whole system is disturbing. I already wrote about it last week.

The things that JQC chooses to sweep under the rug may be vital to people whose lives were impacted, perhaps ruined, by judicial decisionmaking. There may be reversible error at stake in both civil and criminal cases. A judge who may have committed a crime might have had an incentive to come down hard on criminal defendants in certain cases to please local law enforcement.

Not to mention the horrible double standard. My clients, whether accused or convicted, lose everything. They lose their job. They lose their freedom. Some lose licenses. Their reputations are often irretrievably trashed. And the whole think is officiated by Georgia judges. Yet, those same judges get punished by other judges, and the whole thing is suppressed, not only from citizens and the media, but from an elected District Attorney charged with investigating and prosecuting crimes.

And even if these people are innocent of crimes, the whole thing hurts the judiciary and the system as a whole. And it was bad enough before this all started.

Clerk's Office.JPGI have been E-filing in the Georgia Court of Appeals and the Georgia Supreme Court since both courts started offering it. I can’t tell you enough about how great it is to be able to upload a pdf rather than do all of the other archaic stuff that is involved in paper filing a brief. I’m still pretty amazed that so much of the practice of law involves printing out stuff on bond paper, making a blue million copies, physically taking it to the courthouse to get a stamp on it, then transmitting physical copies of the paper to people. I like Atticus Finch, but I’m not all about filing things the way he did when he filed motions in limine in Mississippi v. Tom Robinson.

In fact, there is one Georgia courthouse that is so anti-technology that even lawyers can’t bring laptops or smartphones into the courthouse. They have big ugly yellow signs at all the entrances warning you not to bring “that kinna stuff in heah.” When I leave there, I always think that the world is going to turn black and white, and I start craving a malted at the drug store soda counter.

So, I am really not whining about the fact that the Supreme Court does it better than the Court of Appeals. I’m just glad that they’re doing it at all.

So, a few weeks in for the Supreme Court and a few monhs in for the Court of Appeals is a good time to compare the two systems.

  • Instructions — The Supreme Court gets the nod here. Their website includes instructional videos. Granted, they are all in a NOAA weather radio voice. Still, very informative. Over at the Court of Appeals, there aren’t any instructional videos. Sometimes you find out you messed up when you get an email telling you that you messed up.
  • Range of Stuff You Can File — Again, the Supreme Court gets the nod. You can file things in the Supreme Court that do not have a pre-existing case number. For instance, you can file an interlocutory application or a petition for certiorari. In the Court of Appeals, interlocutory applications still have to be filed in the way they were in the 50s
  • Integration into Your Practice — Docketing notices and the like are all still snail-mailed to you from the Court of Appeals. In the Supreme Court, once you sign up, you start living in the e-filing world. Docketing notices, orders, notices that opposing counsel has filed something, etc. will start coming to you by email. The Supreme Court has clearly gone all-in on the electronic thing
  • Filing Fees — Big nod to the Supreme Court. You can mail in your check, thereby bypassing the whole “convenience charge” deal that you get over in the Court of Appeals. Ironically, this part of the Surpeme Court is still old school. But it’s old school in a way that saves you money.

Not complaining about either one. It’s great that e-filing is an option. Just interesting to point out that the Supreme Court wins the e-filing smackdown.

therapist.jpgThis week we had to take our son to see his pediatrician. He, like many little guys his age, has a tendency to get ear infections. We love our doctor. And it would be easy for anyone who observed her to know why. She is fantastic in the nuts and bolts of medicine. Beyond that, she has a knack for getting my children, not the easiest patients in the world, to participate in exams and tell her what’s wrong. Add to that, she has a clear sense of who her “patients” are. She knows that diagnosing and treating our children is about half of the job. The rest involves answering our questions, calming us, and patiently listening and politely responding if I ever venture into amateur doctoring based upon something I saw in the news, read on the internet, or heard somewhere. In short, she is effective because she realizes that being a doctor to a Key child includes being a doctor to a crazy dad with a big mouth and asks a bunch of questions.

So, it is in criminal appellate practice. You client is a person locked up in some rural part of your State. Bur your client will also be a spouse, a mom, a dad, a brother, a pastor, and a best friend. Your job will be, at its heart, nuts and bolts law. But it will be so much more.

And, to do it right, you will manage those two most dreaded phrases in the client of family member vocabulary: “Mr. Key, I was doing some research on the internet …” and “Mr. Key, I found these twelve cases in the law library.” Rarely, are these phrases uttered with the intent to offend or overstep. Generally, they are uttered with a genuine desire to help or out of a hopeless desperation or an understandable to assert some control over her life where control has been taken away. When it gets frustrating, remember who your patient is and who your patients are. Some people can never be happy, but most of them will respect you and appreciate what you are doing. 

coins in a graph.JPGYesterday, I E-filed two briefs in the Georgia Court of Appeals. At the log in screen I was greeted by a message from the clerk’s office indicating that they are going to tack on a $15.00 “convenience fee” for every case you e-file in the Georgia Court of Appeals, effective September 6.

The explanation offered is that the increase in the filing fee from $80 to $300 in 2009 has resulted in an increase in the “cost of processing the transaction charged by the credit card companies.” They go on to explain that the cost is still cheaper than paying a courier or shipping overnight. I love the honest acknowledgement that lawyers who practice before the Georgia Court of Appeals wait until the last minute.

I’m not mad at the Court (and it really wouldn’t matter if I were.). Submitting something the old fashioned way is a pain in the briefs. The old fashioned way entails buying those backings that you only see when you are sending off a brief or on Law and Order when Jack McCoy gets served with a motion to suppress by this week’s guest actor filling in as this the slimy clueless defense attorney.You don’t have to buy those things anymore, and Law and Order can have the rest of them as far as I am concerned.

Filing the old fashioned way also means spreading a bunch of copies out all over the place and having the staple jam as you try to staple the little packets together. Then you have to use the right ninja force to try to get the next staple to go through while covering up the old staple hole. So, $15 is worth the “convenience.”

When you e-file, you only have to print out the copy for the DA because those guys largely don’t e-file or even email for that matter. But still, e-filing makes things easier.

But I can’t help but notice that criminal appellate attorneys are bearing the burden for the civil bar’s fee increase. Our filings fees are still $80. Why are we paying an increased convenience fee? Also, aren’t we subsidizing the Court’s convenience also. After all, the Court does not have to administer the handling of so much paper as the files are maintained and moved around from judge to judge.

The sad part of all of this is that the judiciary could never explain to the legislature that it should finance e-filing because the amount of money spent in increased credit card fees is more than saved in administrative costs. Such conversation would be lost on the party in power in Georgia, most of whom would like Georgia to have only two branches of government anyway.

Still, it’s $15 worth paying to help yourself and the Court to go paperless, but not with a smile.

cans.jpgScott Greenfield wrote a good story a few days ago in his blog, Simple Justice. I say “good” in the sense that it made me evaluate the part of practicing law where it can be easiest to drop the ball. 

In the post, he tells the story of a call he received from the relative of a person in custody. She began the call saying “I need a lawyer.” She said that even though she had a lawyer. The lawyer had spoken to her about the case but she did not understand what he was saying. Mr. Greenfield was not particularly interested in taking it on, so he called the other lawyer on the client’s behalf.

Turns out that what the other lawyer had said was technically correct. The problem is that it was not being put in a way that the client could understand. The client had done some things to worsen her prospects of being released, and those facts had not been discussed very well. He goes on:

This is not about telling the client what she wants to hear, but about telling the client what she needs to hear. This is the client’s life, and they must understand what’s to become of it. Some clients will understand quickly, while others will take more time and care. It’s the lawyer’s responsibility to find a way to communicate that works for the client. Use an interpreter. Get another lawyer to help if you can’t seem to get past the communication wall. Use a different approach. Spend the time to make it happen.

The chilling thing about this story is the end. He points out that, had he wanted the client he could have had her, and the lawyer on the case would never have understood why. 

Things had gotten this bad with the lawyer and he was one of the minority of lawyers who was actually returning phone calls and doing all the necessary work. Think of the potential trouble those lawyers are in.

Now, take all of the dynamics at play in the story and magnify them. Welcome to appellate practice. Your client may be in prison hundreds of miles away from you. In the early stages of the case, you may not have met your client. He has just taken a loss at trial, and there are few small losses in Georgia criminal trials. As the case progresses, there are several things that will happen that just about virtually guarantee attorney-client alienation.

  • The client will turn the case over and over in his head because there is little else to do and will initiate conversations with you on the assumption that you are doing the same.
  • The client will go to the law library, and he will sometimes go down the wrong path. When he does, he will make “suggestion” to you about the direction of his case that are overly-optimistic and uninformed.
  • The transcript will not come as quickly as you or he will like.
  • Your client will think that the appeal is just like the trial. While you focus your efforts on whether the trial court should have given request to charge number 17 and whether the 911 call was covered by Crawford v. Washington, your client will expect you to prove to the appellate court that Officer Jones was lying.
  • The temptation to speak to your client in legal jargon will only increase because appellate law lends itself to it way more than trial does.
  • Appellate work makes you feel like a writer, and writing is largely a solitary activity. Plus, you are going to be busy, and all of the usual things you do to communicate when you are busy, like send a quick text or an email, will not be available for you to speak with your client. You will be doing a lot of letter writing — 19th century style. Visiting a single client will sometimes take an entire day. Phone calls have to be arranged and scheduled with the prison way in advance. All of this stuff is very alienating.

You have to work extra hard to make sure your client understands the appellate process and the differences between it and trial. You have to be a patient listener and understand that you will often be the lightning rod for many frustrations. You cannot take it personally. And, when you think you have explained it clearly, you may find that you haven’t

But Mr. Greenfield is right. Your job is to find away to communicate. It’s particularly so when your client is so far away from you and getting legal advice from other people in lock up.

kangaroo.jpgR. Robin McDonald is on a roll. She reports in the Fulton Daily Report’s ATLAW Blog that The Georgia Public Defender Standards Council has retained the previous president of the State Bar of Georgia “to investigate whether an affair between former Griffin Superior Court Judge Paschal English and Kim Cornwell, a Griffin Circuit public defender, compromised any of Cornwell’s cases that were adjudicated by English.” Bill Rankin, of the Atlanta Journal Constitution reports, “there are as many as 450 cases in question.”

According to Mack Crawford, the outgoing Director of GPDSC and incoming replacement for one of the two defrocked Superior Court Judges, hired former president Cavan because “I felt like it needed to be someone who wasn’t associated with the circuit.” In other words, he wanted someone independent. Ms. McDonald does not report whether Cavan got his money up front. Other lawyers retained by GPDSC have found that the agency doesn’t always pay up or arbitrarily cuts the bill

It is quite the development.

So, just to make sure I understand this, it might be a good idea to parse it out. GPDSC, an agency that lacks sufficient funding to provide lawyers to many Georgians, an agency that was just sued for letting indigent appellants languish in jail without a lawyer, and an agency that refuses to pay appointed death penalty defenders, has hired the former president of the Georgia Bar as its attorney. Its own attorney is now going to bill some hours to the agency to determine whether several years worth of cases that one of its own public defenders handled should be re-opened. If they are to be re-opened, GPDSC’s “independent” counsel will say so, and GPDSC will then be responsible for paying to represent these defendants again. Oh, and if GPDSC’s lawyer finds out that cases were compromised by its public defender, it will self-report and open itself to civil exposure in malpractice and maybe a civil rights suit — perhaps even a class action. And, as a coincidental aside, the director that hired Mr. Cavan is an incoming Superior Court Judge in the Judicial Circuit where the investigation will take place. 

And this, Mr. Crawford, explains, is an independent investigation. So, if I hire a lawyer to perform a task, have I retained someone who is independent of me? I thought that I was the legal representative of my clients for all these years.

What is Mr. Cavan’s assignment as the agency’s new lawyer? It is “to look at the situation and report back to the chairman of the [Standards] council as to how or what if the council needs to take any action of any kind.”

I know that only the government can gamble legally in Georgia. But does anyone want to place a friendly wager about what the answer to that question will be? 


Last week’s song was about a guy moments away from the ultimate penalty. This week’s song is about a man with some interesting multi-jurisdictional issues whose central crime is “borrowing” a car. But he also awaits trial in California, it appears. No appeal here, necessarily, but perhaps it might be good to work out some concurrent time in Bakersfield and maybe a sentence modification or parole packet in Tennessee.


The real crime is that not enough people appreciate John Hiatt as a songwriter and as a singer.

Enjoy the weekend.

execution.JPGRobin McDonald’s article poses the question of why the Georgia’s Judicial Qualifications Commission has zapped so many judges this year. The simple answer is that they deserved it. But, read a little more, and the story is pretty disturbing.  While the commission has taken out some judges who had it coming, I can’t say that its Star Chamber structure is exactly a good American idea. It’s also a little disappointing that it takes a Georgia judge actually getting indicted or acting like a character on Mad Men to get him removed, where plain old rudeness, unfairness, and reprehensible conduct on the bench has been ignored.

Put another way, it seems like it matters more to the JQC what a judge does in chambers with his zipper down than his conduct on the bench with his robe on and his zipper (presumably) up.


Take Caldwell

Seems Caldwell had a penchant for dirty texting and crude Georgia game tailgating behavior. And there was so much more. So, it appears that someone from the Star Chamber payed him a visit and he scrawled out a letter to the governor resigning his position.

If you think that was bad, you should have seen him in court. He was rude to defense attorneys, had a tendency to swivel his chair around and let you know he wasn’t listening when you spoke, didn’t rule on objections (other than to say “okay” or “I note your objection”). He once told me “if you want to argue, I guess I can’t stop you.”). His court was not a place you looked forward to going because you weren’t going to be treated professionally, particulalry if you weren’t the State. He would yell at attorneys appearing before him. He’d make it a point to embarrass you if he could.

Had I complained to JQC, they would have thrown the Complaint in the trash. It’s what happens off the bench that counts.


Enter The Star Chamber

JQC Chair, Benjamin Easterlin said that “I would not necessarily reach the conclusion that we have a bunch of bad judges out there based on the recent flurry,” and neither is it “a matter of us ratcheting up any investigative efforts.”

But I bet the numbers have always been high. We also have a governor in office who’s not a big fan of the judiciary who has gotten the opportunity to appoint a bunch of judges. Those things, I am sure Mr. Easterlin would explain, are coincidental.

Of course, we’re never really going to know what’s going on with JQC. Since 2008, only six judges have ever been publicly charged. It’s long-standing practice is to squeeze the judge to get a resignation, or in Easterlin’s parlance, to “give the judge an opportunity to resign.”

When asked about whether the public had the right to be informed about the Commission’s actions, Mr. Easterlin said that such things are just gossipy: “I’m not sure what the public benefits from knowing that somebody did something bad.”

They are serious about the smoke-filled room thing. If you complain to the JQC and tell anybody about your complaint, you can be held in contempt for talking about it. Gerald Weber, former director of the ACLU in Georgia, sued the JQC on behalf of a jury foreman who had complained about a judge who fell asleep during a trial. The JQC fought that suit vigorously.

The other problem with squeezing judgees into retirement like that is that it presumes that the JQC is right and deprives the public of knowledge of misdonduct and parties who might have been harmed of their right to know.

I hate it, even if it got some people who deserved it.