September 2010

Heroes seem few and far between these days, or maybe I’m just being a little cynical. I’m listening to the audiobook version of Edmund Morris’s The Rise of Theodore Roosevelt right now and wondering why more political leaders are not cut out of something resembling a similar mold of intergrity and leadership.

Since I’ve been practicing law, I’ve looked to Stephen Bright as an eloquent and fearless champion of the poor, the accused, and the convicted. His oral argument last year in the Weis case stands out as one of the best I have watched. When asked whether death penalty defense counsel should be compelled to defend their clients for free, Mr. Bright suggested that the justices on the Supreme Court, bailiffs, and prosecutors should be compelled to do so also.

His new blog, Second Class Justice, launched a few days ago with several hard-hitting posts about the deplorable state of indigent defense in the State of Georgia and the abyssmal state of death penalty defense in the State.

I will look forward to reading Mr. Bright’s new blog and hope that you will add Second Class Justice to your RSS feed. What he says is relevant to our justice system in Georgia.


Hearsay.JPGIf there’s one evidentiary issue that you will encounter in your next jury trial, it’s hearsay. It comes up all the time, and some lawyers and judges don’t have a firm grasp on it or its exceptions. Beyond that, trial lawyers often stop short of fully developing their record because they fail to make an objection under the Federal and Georgia Constitutional Confrontation Clause.

When you or some other appellate lawyer get ready to appeal a possible conviction, you will wish that the objection had been “constitutionalized” for appeal. As a start, just say, “Objection, the evidence that counsel is eliciting is hearsay. The testimony would also violate my client’s rights under the United States and Georgia Confrontation Clause.” If you think you might forget, you could also consider filing a motion to constitutionalize ever hearsay objection. Beyond that, it’s really important to get to know the Confrontation clause a little better. Below are some Confrontation Clause resources:

  • The Confrontation Blog. Professor Richard Friedman at the University of Michigan Law School has maintained a blog on the Confrontation Clause since 2004. It does not get updated as much as is it did in the heady days after the United States Supreme Court issued the Crawford v. Washington decision. But major developments since Crawford can be found there. 
  • Wikipedia. Don’t cite it in Court, but use it as a good starting resource for the Confrontation clause. Their entry on the Confrontation Clause and on the Crawford decision are good places to turn for an overview refresher on the subject. 
  • Key Cases. Read them and know them. Put them on your trial tool box. Obviously, Crawford is the biggest Confrontation case in the past 100 years. So have a copy ready in Court highlighted and underlined. There have been three other important cases since Crawford. One is Davis v. Washington, that clarifies what testimonial hearsay is (it generally is not a 911 call).  The other is the Melendez-Diaz case, from 2009, holding that sworn affidavits from a crime lab are testimonial in nature. In Giles v. California, the act of killing a witness is not a forfeiture of the right to be confronted unless a trial court finds that the motive for murder was to silence the victim’s testimony. 

The opportunities to develop the law in the area of Confrontation abound. Much appellate litigation remains in this area of the law. For instance, is every 911 call non-testimonial? What if it isn’t truly an emergency but an attempt to preserve a story? What about statements of confidential informants?

Bottom line, don’t just make a hearsay objection. Object under the Confrontation clause. And don’t just object under the Federal Confrontation Clause. Object under the Georgia Confrontation Clause as well. You’ll have more options for appeal than a simple hearsay issue, most of which are resolved under a prosecution-friendly standard of review. Let the key cases be a guide on how to voir dire witnesses and develop your arguments at the trial court level so that you have an opportunity to develop the law and win your case on appeal later.

preacher man.JPGI’m off tomorrow morning to speak to the Henry County, Georgia, Bar Association. The topic is a good one after wrapping up a week of trial. That topic is preserving the record for appeal. It seems like every seminar has the preserving the record speaker, the ethics speaker, and the professionalism speaker. You can tell when one of those speakers is up because the half of the room that is awake is out at the little snack area. Tomorrow, I am one of those speakers. And I’m on at 8:15 on the seminar’s second day — affectionally known in CLE parlance as “the hangover hour.”

To top it all off, I have decided to do my presentation using Prezi. I’ve seen a few talks with this system, and it seems like a great alternative to Keynote, which is what I usually use. The free-flowing system appears to lend itself to conversation and questions.

The first order of the presentation was to define exactly what it means to preserve a record for appeal. And I think I hit upon a good definition for it that is very commonsense. So here goes the definition:

Giving the trial court the opportunity to make a decision now so that the appellate court can make a different decision later.

Later in the talk I will discuss how your likelihood of success on appeal is directly proportional to the rate of judicial decisionmaking that takes place at trial. At the same time, a criminal case is a play in two acts. Ideally, you want to win it in the first act, but if you don’t you need a script for the second act. Getting that script sometimes means getting yelled at in act one.

I was reminded this week of all that goes into trying to win act one while ensuring that there would be an act 2.

I’ve been the preserve the record guy at other CLEs in the past. After this week’s trial, I’m approaching it with more humility to the trial bar. I will be nowhere near as preachy on this topic as I have been in the past.

Teacher and students.JPGOn the first day of this week’s foray into criminal trial practice, I wrote about what a felony trial has been teaching me about appellate practice. Then a rejoinder form a commenter made me think that blogging during trial was not the greatest idea. Yesterday, the trial resulted in a mistrial. An hour into deliberations, the jurors were split 8-4. The judge sent the jury back to deliberate more, and the split became 7-5. The judge declared a mistrial after they reported that 7-5 was about as far as it was going to change. And since the trend appeared to be moving away from a agreement, the trial court declared them to be a hung jury.

I write, not to report that the jury was hung but about an interesting appellate lesson that I learned on day two of the trial and also what I learned when I spoke to the jurors after the action was over.

The case involved an indictment for child molestation. One of the biggest problems for the State was that the victim recounted the story to different people in inconsistent ways. To the police the complaining witness testified that my client entered the room once where the alleged act was committed. To the mother, she said that he entered the room only once. She made both statements on the same day.

The complaining witness testified that she might have said, at some time in the past, that he entered the room twice. Yet, she insisted on the stand that he came into the room once.

The State’s next witness was the complaining witness’s mother. The prosecutor knew that he had to deal with the mother’s written statement that the daughter told her that he entered the room twice before I made a big deal about it on cross-examination. He tried to offer up possible reasons why she might have written the two-visit version. Each time, it was a leading question. I objected. The objection was sustained. Finally, the witness sensed what she was supposed to try to do.

She blurted out, “I was upset. This whole thing was upsetting. I had to take my daughter to therapy.”

Victim impact evidence is wholly improper for guilt-innocence. I asked the jury to be excused, and I moved for a mistrial. The Court found that the prosecutor had not intentionally elicited the response about therapy but that the questions were such that they invited such a response. He warned counsel not to ask any more such questions. He then denied my motion. I renewed my motion because you must renew a motion for mistrial after the court admonishes counsel or takes any other corrective action. He asked me if I desired a limiting instruction. I said that I did though I believed that “no limiting instruction could undo the harm.” He gave the limiting instruction, and I renewed my motion.

The trial proceeded. I worried about the injection of therapy into the trial. It bolstered the idea that something had happened, and it injected victim impact.

Then I interviewed the jurors afterward. They said that the therapy stuff helped me. They wondered why the State failed to bring in the therapist as a witness. Which, of course, the State could have to rehabilitate with a prior consistent statement after I had impeached with prior inconsistent statements.

So, it turned out that I got to have my cake and eat it too. The State had gone into some forbidden evidentiary stuff. The State was admonished. The jury was given a limiting instruction. The issue was preserved for appeal. The jury promptly ignored the limiting instruction and used the evidence anyway. But they used it in a way that was helpful to me.

Sometrial the best objections are overruled and the best motions are the good ones that are denied. It would have been an interesting appeal. It turns out that the jury granted me a new trial (or hopefully not).

You can learn a great deal about appeals from doing a trial. And I also learned that appeals have taught me much about doing trials. It’s been a fun and tiring week.



Boots.jpgThis week, I am trying a criminal case. My practice is predominantly appellate, but I have brief forays into the work of criminal trial practice. And today began such a case. While it’s not appropriate to go deeply into the particulars, I think that jury selection today was particularly instructive. I don’t know whether this case I am trying will eventually turn into an appellate case. If it does, I am trying not to waive anything. 

I try to avoid the three-part essay, the three point speech, or the five paragraph essay. But it turns out that there were three appellate lessons that I learned today. The overarching lesson was that it is sometimes important to do a trial to remember just what it is like. But more specifically, I take the following three lessons from day one of my trial:

  1. Get the court reporter to take everything down. In the average Georgia felony jury trial, the court reporter will take down only the evidence, objections, and the charge conference. Ordinarily, that may be enough. But if you have a case where the topic is sensitive and where jurors are likely to be biased, it is best to have the voir dire taken down. Today’s voir dire wore me out. The case is a child molestation, and there are inevitably people who just don’t want to be on a case like that. There are also man who bring baggage with them into the trial. I had to work hard to get some jurors excused for cause with the Court and the State fighting to “rehabilitate” the jurors. In the end, I had to burn only one strike. Three jurors were struck for cause. The take-down was key. Don’t know what would have happened otherwise, but the court reporter probably was a big help in how the questioning went. She may have gotten those jurors struck. Don’t let the proverbial tree of error fall in an empty forest.
  2. Effective assistance of counsel requires frequent attorney-client communication followed by recitations on the record. There are two decisions that only the client can make — whether to go to trial and whether to testify. Both must be informed decisions. So, get ready to explain. Also, get ready to summarize some things for the record either way. I’ve done lots of writing, calling, asking questions, answering questions, and stating things for the record this week.
  3. It’s hard to try a case with an eye to an appeal. My best appellate issues so far have been deprived from me because the judge ruled my way. Well-founded objections get you one of two things — a fair trial or a shot on appeal. This trial reminds me of what a mental challenge a trial is. It is quite difficult to Sunday morning quarterback. It is much easier to play quarterback on Monday.

I’m sure more lessons will follow as this trial progresses.

witness.jpgThere’s a side effect of having a robust appellate practice in Georgia. If you handled the appeal, and your client has a lengthy prison sentence, you will likely become a witness as your former client tries to demonstrate your ineffectiveness. In Georgia, the client has the right to effective assistance of counsel during the trial and during the direct appeal. You cannot raise your own ineffectiveness as an issue at trial. If you are new counsel on direct appeal, any issues of ineffective assistance are waived if you don’t raise them. So, if you do not raise the issue at all, you’ve waived your client’s right to raise it. Or if you raise it one way, you waive it with respect to other possible ways you could assert it.

The trouble is that Georgia’s system is a veritable pressure cooker for appellate counsel to raise ineffective assistance of counsel. The trouble is that it is hard to prove ineffective assistance of counsel. The law is extremely deferential to the trial lawyer. Strategy, even bad strategy, is not actionable in an ineffective assistance of counsel plea. Even demonstrable mistakes are not actionable unless there is a likelihood that they had an impact on the trial’s outcome.

No trial lawyer conducts a perfect trial. Mistakes get made along the way. Some things just don’t work, and we don’t realize that they won’t until trial is over. And some trials just aren’t going to go well for the defendant unless you manage to perfect time travel and remove the client from the crime scene before anything bad can happen.

Here’s the point where the attorney client relationship is most delicate. It’s a rare convicted appellate client who thinks his trial lawyer was awesome. I allow for the possibility that he messed up and engage in a dispassionate search for mistakes. When I find things, I raise them. When I don’t, I don’t. Sometimes, trial counsel will agree that he made a mistake in one area or that he “just didn’t consider” something but will won’t to fight you on some other issue. At that point, you have to jettison some issues to secure trial counsel’s cooperation on others.

When it’s all said and done, you will likely end up as a witness on a habeas if your appeal was unsuccessful. And when you do, the subject matter will likely be your decision not to raise ineffective assistance of counsel at all or your decison not to raise it on other issues.

If you were the trial lawyer, you may end up on the witness stand also. As I said above, sometimes mistakes get made.

As a guy who raises ineffective sometimes and who has taken his turn on the witness stand, I have thought of seven things that go into being a “good” witness. By good, I mean you are being honest, assisting your former client where you can, but taking pride in your hard work.

  1. Work hard on appeal. I’m sure that you already are. But really work hard. Find the best issues. Research them every way you possibly can. Write. Then rewrite. Then rewrite again. Make your appellate brief a work of literature.
  2. Paper the file. Criminal lawyers often are retained on a flat fee. So, we really don’t have the incentive to document our time the way civil lawyers do. Change that. I started managing my practice on RocketMatter. RocketMatter has a nifty feature where you can turn on a timer every time you speak to a client. Use it. Whenever you decide to exclude an issue, write about it. Whenever you decide that you will not pursue some issue your client suggests in a letter, write it down. Note why you are excluding. Make your file bad-ass.
  3. Answer ever letter your client sends. Even if it is to say, “Dear Mr. Smith. I received your letter of August 2, 2010. I have read it and will consider carefully the important issues you have raised.” Then see item 2 aboce.
  4. Read Jones v. Barnes. Then read Jones v. Barnes again. It is an appellate lawyer’s best friend. Thank you, Justice Burger. Thank you, too, Justice Jackson, for you eloquent words that made it into the opinion. It’s good when trial lawyers get on the United States Supreme Court
  5. If habeas counsel calls you, by all means call back. See where he is coming from. Be honest. Help if you can. But I don’t advocate “falling on the sword.” People who fall on the sword die.
  6. Take pride in your work. Be a craftsman in all that you do.
  7. Dress up for the hearing. You’re a lawyer when you testify. So, dress like one. Even though you are driving as far as the interstate goes. Then you are exiting. Then you are driving on a two-lane road. Then you are driving down a dirt road. Then you are hacking your way to the parking lot at Shawshank with a machete, dress like a lawyer. Your not just any witness. You’re a lawyer who takes pride in your appearance. If you’re really feeling on your game, wear a bow tie.

Be a good lawyer, so that you can be a good witness. Reward the habeas counsel who calls you and prepares. Take a good hard look at your work. Be honest. And wear a red tie. Even if it’s a red bow tie

Decline.JPGLaw is a business. But it’s not just a business. It’s a calling that brings with it certain duties to advise with the client’s best interest above the lawyer’s profit motive. If there’s a theme that runs throughout the stories clients and families tell me at consultation, it’s hopelessness combined with desparation and mistrust.

By the time people are exploring a habeas, there’s been a trial and an appeal. Obviously, nothing has gone well. There has been either a lengthy period of incarceration or a frustrating number of dead end attempts to find jobs, obtain a license, or gain admittance into a school. Right or wrong, there is a sense of frustration. It would be easy to cash in on that with false promises or through pitting client versus trial counsel.

Don’t do it.

I don’t want to sound like a judge at a CLE, but it is important to consider the lawyer’s ethical responsibilities in such a situation. Here’s Rule 2.1 of the Georgia Rules of Professional Responsibility and a Comment.

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

I think that this is the Bar’s way of saying, “dude, don’t act like a used car salesman” (with apologies to used car salesman). We aren’t just selling services. We’re dispensing honest professional advice, and the responsibilites must outweigh our profit motive. The comment is even more telling


A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

It doesn’t get more unpleasant than telling someone with a life sentence or virtually a life sentence that perhaps the money that could go to hiring you would be better used elsewhere, but I believe that many situations call for this advice.

The difficulty is learning when you should discourage representation. Lately, I’ve used this method when someone comes to me about getting hired.

  1. Information gathering. This is the really basic stuff. When was the conviction? What was the crime? Was it a plea or a trial? If a plea, was it non-negotiated? What county? What court? Where is the potential client incarcerated? What’s the goal? Is it to set the conviction aside and take negotiate something better, or is it to take a crack at beating the charge at trial? Who was the trial lawyer?
  2. Issue spotting. Sometimes you can do this in the office. If the conviction was from a plea, you can sometimes review the plea proceedings and make a determination.
  3. Getting retained for exploratory purposes. If you cannot determine what the issue is from an office visit and the process of finding out could be lenghty, sometimes I will agree on a fee to investigate the case to see if there are any issues that would merit a habeas. Sometimes, I agree to make a few phone calls informally to figure it out. Different cases demand different levels of exploration.
  4. Exploration. In the bigger cases, I like to read the original record, speak with the client in person or on the phone, call trial counsel for an interview. Calling trial counsel is generally a must. Trial counsel will tell you a great deal about what issues might remain, why a course of action was taken, whether there were problems in the attorney-client relationship, whether the lawyer is amendable to considering an ineffective assistance of counsel plea. Sometimes, I will try to speak with the prosecutor to test out amendability to a consent. Sometimes, I choose to wait on that conversation.
  5. Reporting back. I then will report back with an honest assessment of whether I believe that there are issues of merit. If we choose to go forward, then I am retained to do the habeas case.

If I could put a big huge star by anything above, it would be the part about talking to the trial lawyer. Don’t wait until the day of the habeas proceeding or until days before to contact trial counsel about the case. Engage early and often. You may get a completely different version from what the client has told you. It may be the same. Sometimes the lawyer will seem more credible. Sometimes, the client may seem more credible. Sometimes, you can corroborate one claim over another. Sometimes the lawyer screwed over the client. Sometimes, the client was unreasonable and this conversation will save you from engaging in a similar relationship.

Often, the lawyer will be of assistance to you and save you hours of investigation and work.

And if I could put an even bigger star by anything above, it would be the duty to tell the truth, even if it means turning the fee away. I believe that in the end, 2.1 can be your guide. I also believe that you will profit more from the kind of reputation that rule 2.1 will give you than from any one fee — particularly if you shirk your responsibilities and get a reputation in the Courts as a guy who’ll bring any old case for a fee. Plus, the talks you’ll have to have later in the case when your client realizes that the gig is up outweigh even a huge fee.

voter.jpgLinda Greenhouse’s post on the Opinionator Blog at the New York Times website is disturbing. She cites a recent Pew Research Center poll where people were asked the current chief justice of the United States. To make the result even more disquiting, the test was multiple choice. And here were the choices:

  1. John Roberts
  2. Thurgood Marshall
  3. John Paul Stevens
  4. Harry Reid

53% of those polled had no idea. 28% chose John Roberts. Thurgood Marshall came in second. That is the result from a poll where the alternatives to Roberts were fairly ridiculous. What’s more, that is the result of a poll involving the United States Supreme Court, which is ever in the public eye.

Now, let’s think about the current election for the Georgia Court of Appeals. Unless you work in the legal profession, have a case where an appeal is pending or is likely, or are a total news hound, you don’t hear much about the Court of Appeals. Yet, when you vote in November, you will have your choice of six possible candidates. The average voter will know as much about those candidates as I know about the choices for public service commission (I vote against anyone, by the way, who has a nickname that makes it onto the ballot in quotation marks. If you go by “buddy” or “skeeter” on the ballot, I’m not voting for you. The PSC race seems to attract people with nicknames)

Often, friends and family will ask me whom I would recommend for appellate seats and choices for other contested judicial elections. Perhaps others in Georgia ask lawyer friends to recommend a choice. But many will not.

Yet, the office of judge is such an important one and hopefully will continue to be in Georgia. Here is the point where I could switch to Public Service Announcement mode and talk about the need for voters to refrain from voting in races where they do not understand who the candidates are. But, instead, I am going to sound undemocratic and maybe snobby. People aren’t going to suddenly start researching judicial candidates.

Which is why I don’t think these decisions should be made by voters. At least initially. I believe an appointment system for open seats and perhaps either a retention election or an election against an incumbent after terms of 10-15 years would be best.

The current system is, at best, a crap shoot and at worst, favors people who have the good fortune of having a name beginning with the letter “A.” That person appears at the top of the ballot and has a big advantage in an election with multiple candidates.

A few years ago, John Grisham wrote a novel about a contested appellate judicial election where some powerful interests group chose a candidate for office. The groups then poured money into the election and ran it the way a candidacy for a higher profile office would be run. They got their guy elected easily.

That fictional story could easily become reality with candidates making “pledges” about what they will do when they get on the bench. Incumbent judges who follow the Constitution into unpopular places could also potentially come under fire.

That is, if the electorate pays attention.

Dating.JPGSince I’ve started this whole blogging thing, I’ve made it a point to put fantastic bloggers who are great at it into my RSS Reader. Kendall Gray’s Blog, the Appellate Record, is a great resource even though he does his craft over in Texas. He always has something to teach me about writing, appellate strategy. He even has fascinating stuff to say about bow ties.

In his latest blog post, Write As I Say, Not As I do, Mr. Gray writes about dating. Before he gets there, he pins bad lawyer writing on judges who wrote the old judicial opinions that we read in law school. He also thinks that many of the writing tips judges dispense at seminars and in bar journals aren’t actually followed in judicial writing. And bad judicial writing just leads to more bad writing from lawyers.

Getting Convicted in a Sunday Morning Sort of Way

Then he moves to his example of bad writing. And if it were a sermon, this Baptist lawyer would say that he “feels convicted.”

Lawyers and judges really suck at writing about when things happened. Or, as Mr. Gray puts it, “More than once I have wanted to hurl myself from the office window upon reading work product whose only reason for being was to regurgitate a chronology from the trial lawyer’s three ring binder.”

Do you know what he’s talking about? Have you ever read or have you ever written a statement of facts that starts out like this: “On or about October 13, 2006, Officer Smith pulled over John Davis’s car. He ultimately searched the car and found suspected cocaine. On December 20, 2007, the crime lab tested the substance.” Then you start talking about the trial, and you start saying stuff like, “The trial commenced on May 3, 2009, and the jury reached its verdict on May 17, 2009.”

I’ll tell it all (back to Baptist speak). I’ll give my testimony. Why do we lawyers sometimes write like this. It’s some straight up bad storytelling technique. But we’re not trained to be storytellers. If we were, it was beaten out of us in the first year of law school when we started viewing people’s life events as “fact patterns.”


Relative Dating (It’s Not the Same Thing as Dating Relatives)

Bad chronology is a good way to get a Statement of Facts on paper with minimal effort.

The alternative? Gray suggests, “relative dating.” Don’t worry, I’m not making an Alabama reference. Relative dating, he explains, involves

put[ting] events in relation to each other and giv[ing] useful information about the passage of time where it matters, such as: before, after, very shortly, or more than two years after the accident

So, think twice before you put a date in your brief. Does the date advance your narrative or your client’s cause (the way it might in a Speedy Trial Demand or Statute of Limitations issue). Otherwise, you might want to consider relative dating to get the story out there.

Review.JPGThe Supreme Court of Georgia is back in full swing. The Court has already heard oral argument in several sessions. Yesterday, the Court granted certiorari petitions on three criminal cases. Each case has important implications for the criminal defense bar. While I am not entirely thrilled with some of the decisions the Court has made recently in criminal cases, this Court’s level of engagement has been quite intense, and the writing has been good. The odd thing is that, while I obviously do not favor pro-prosecution decisions, I have always had a secret enjoyment of conservative judicial writing. Scalia opinions, for instance, great to read. I also root for the bad guy in movies.

I just happen to think those opinions are more fun to read as dissents. On the bright side, an engaged court perhaps seems more relevant to the other two branches of government in Georgia. In recent years, it seems like the other two branches of government would like to be the only two branches of government.

So, here is a summary of the three certs granted by the Court this week:

Continue Reading Supreme Court of Georgia Grants Cert. Petitions in Three Criminal Cases