April 2011

 

Georgia is getting a much-needed change to its evidence code, and Colin Miller’s Law Prof Blog has the post I’ve been wanting to read about it. Professor Miller does two things really well in his post. First, he points out that Georgia is finally catching up with the rest of the nation as we become the 43rd State to enact an evidence code modeled after the Federal Rules of evidence. Secondly, he discusses why Georgia’s evidence rules were long overdue for an overhaul.
Why were we due for an overhaul? The current rules of evidence were enacted in 1863. Changes in the way we do court as well as little technological developments like the invention of the automobile, airplane, and the internet, have taken us int a different world than the world inhabited by the framers of the evidence code. He cite to another of his posts, which demonstrates how antiquated the Federal Rules of Evidence are by reference to how to admit a computer printout under the Best Evidence Rule.
Why did it take so long? The move to change the rules began in 1986, and the legislation died “a thousand deaths in different committees” and faced “strong opposition from solicitors and prosecutors.” How did it get done this time? Professor Miller credits Representative Wendell Willard who pushed for adoption of the Federal Rules of Evidence in 2009. As the process began, he acknowledged the concerns of prosecutors. He convened a study committee, which discussed those concerns at length, highlighting the differences between the Georgia Rules of Evidence and the Federal Rules of Evidence. Eventually, the bill passed by an overwhelming margin, and we have a new evidence code on the way.
Here are some reasons why this development is good.
Regularity
Less Vagueness (bent of mind, course of conduct, res gestae)
A modern evidence code that fits the kinds of evidence lawyers seek to admit
A playing field that, for a brief time, will reward the prepared (and that’s generally the defense)
As Professor Miller noted, Georgia has now gotten its evidence code up to speed and has largely adopted (98% of it) the Federal Rules of Evidence. I’m going to keep following the Law Prof Blog as this provision moves forward

 

Square Peg Round Hole.jpgGeorgia is getting a much-needed change to its evidence code, and Colin Miller’s Evidence Prof Blog has the post I’ve been wanting to read. Professor Miller does two things really well in his post. First, he points out that Georgia is finally catching up with the rest of the nation as we become the 43rd State to enact an evidence code modeled after the Federal Rules of evidence. Secondly, he discusses why Georgia’s evidence rules were long overdue for an overhaul.

Why were we due for an overhaul? The current rules of evidence were enacted in 1863. Changes in the way we do court as well as little technological developments like the invention of the automobile, airplane, and the internet, have taken us int a different world than the world inhabited by the framers of the evidence code. Too often we were trying to match up the proverbial square peg and round hole. He cite to another of his posts, which demonstrates how antiquated the Federal Rules of Evidence are by reference to how to admit a computer printout under the Best Evidence Rule.

Why did it take so long? The move to change the rules began in 1986, and the legislation died “a thousand deaths in different committees” and faced “strong opposition from solicitors and prosecutors.” How did it get done this time? Professor Miller credits Representative Wendell Willard who pushed for adoption of the Federal Rules of Evidence in 2009. As the process began, he acknowledged the concerns of prosecutors. He convened a study committee, which discussed those concerns at length, highlighting the differences between the Georgia Rules of Evidence and the Federal Rules of Evidence. Eventually, the bill passed by an overwhelming margin, and we have a new evidence code on the way.

As Professor Miller noted, Georgia has now gotten its evidence code up to speed and has largely adopted (98% of it) the Federal Rules of Evidence. I’m going to keep following the Law Prof Blog as this provision moves forward.

I’ve been following this case closely because the Georgia Association of Criminal Defense Lawyers submitted an amicus brief on behalf of the Appellant.  In a nutshell, the trial court disqualified the former DeKalb School Superintendant’s law firm where there actually was no conflic; rather, there was the speculative potential for a conflict where the clients had waived a conflict in writing. We were alarmed about the precedent that could be set if prosecutors could freely choose their opposition. 

Today was the oral argument before the Georgia Court of Appeals. The Fulton Daily Report covered it, and Oral argument is available on video of today’s session. Beyond the fact that the issue is important, it is worth taking a look simply to see good appellate advocacy from Bernard Taylor. Here are three things I particularly enjoyed watching.

  • Time Management. Mr. Taylor managed his time well. He had his argument prepared and was able to get his main points out. He reserved plenty of time for a well-developed rebuttal and for the Court to ask questions. 
  • Strength of Argument. Mr. Taylor struck a nice balance between the scholarly tone necessary for appellate argument with the passion necessary for a case with issues like these. 
  • Answers to Hypotheticals. Appellate judges often warn lawyers away from the “those aren’t the facts of this case” response to hypotheticals. Mr. Taylor almost gives that answer at one point, but he does so by reference to law that conflict/disqualification isses are fact intense and unique. He then acknowledges that, under the hypthetical as framed, there might be “issues.” He struck a nice balance.

It is truly great that such a strong advocate is representing the Appellant in this important case.

paul-clement-375x500.jpgI’ve watched with interest the news regarding former Solicitor General Paul Clement’s resignation from King & Spalding, after the firm moved to withdraw from its representation of House Republicans in defense of the federal statute that prohibits same sex marriage. 

Every criminal defense lawyer should learn as much as possible about this story and save it up for your next cocktail party where there are a bunch of non-lawyers or prosecutors in attendance. 

The next time someone asks you the typical questions that criminal defense lawyers get about how you can defend someone charged with ____ (fill in heinous crime) or asks you how you can defend someone you know to be guilty, you can cite the inquisitive person to this chapter of Paul Clement’s career. A lawyer’s duty sometimes means defending rapists, murderers, and even House Republicans.

I wonder if those who pressured for K&S to withdraw from this case would support law and order types if they brought similar pressure to bear upon a law firm to withdraw from the appeal of a criminally accused or convicted. There’s lots of irony to go around in this story. 

maps.jpgAs I’ve mentioned before, I make many prison visits. It’s part of the job in Georgia appellate practice. All the appellate courts, the parole board, and most of the counties where convictions originate are in or near Atlanta. And most of the prisons are south of Macon. I’ve learned some things over time about how to do them right and how to do them poorly. Here are my tips for a successful prison visit.

  • Remember that it’s about the relationship as much as it is about the case. Representing a person on a major legal matter in a situation where you don’t get to talk that much is a formula for alienation, misunderstandings, and frustrations for both the lawyer and the client. So, make sure you carve out some time to learn some things about the person you’re representing as a person and not merely as a client.
  • Do some homework up front. When you can, tell the client that about your upcoming visit, list the things you would like to discuss, and ask him about the things he’d like to discuss. Prepare a loose agenda for your meeting.
  • Avoid scheduling visits near count time. Every prison does a count of all the inmates at least once a day. The count takes a while to do and can either delay your visit or shorten it. When scheduling your visit, be sure to ask when count is done.
  • Plan to wake up early or to stay overnight before. You have a long drive ahead. But it’s possible to have a visit early enough to make it back to the office for some quality time in the afternoon.
  • If you want to bring in a laptop or iPad, be sure to ask first. Even when you do, have a pad and pen ready in case the person at the gate didn’t get the memo. Every prison is different when it comes to allowing electronics into the facility, but most don’t allow them. 
  • Don’t bring in items from family or friends to give to the client. If you are going to give the client anything, be sure to clear it with the facility first. 
  • If you will need a document to be notarized, be sure to make arrangements with the facility
  • You’ll have three choices for lunch: something brought, something fried, or subway. If you want to sample local color, you’ll be going with fried. For years, I’ve been thinking of publishing a book for lawyers called habeas food, to serve as a guide for the best places to eat on a South Georgia Prison visit.
  • Bring in your keys, two forms of ID, your pen, and your paper. Leave everything else in your car.
  • Know your car tag number. You’ll have to write it on the sign in sheet.
  • Load the iPod with your favorite music or an audio book. Prison visits always bring out my inner Johnny Cash fan.

Above all, enjoy the road trip. It could be worse. There are much worse ways to practice law. Instead, you’re on the wide open road south of Macon.

what's your story.jpgAppellate writers face some of the same challenges that novelists and other artists face. Those things include procrastination, anxiety, self-defeating thoughts, and even alcoholism and other types of drug abuse. A brief is a peculiar type of artistic endeavor, and such things are tough. To make things worse, if you represent the appellant, the finder of fact (whether that was a jury or a judge) has largely taken your story away from you. All the facts are considered in the light most favorable to your opponent. And if you’re doing a criminal appeal, the appellee’s story is the story of a crime (Jay O’Keeffe warned in a blog post back in December that the appellant should never argue the facts presented because he is stuck with the facts found). How do appellate lawyers procrastinate? We check our email. We find six more cases on Westlaw or Lexis. We avoid the difficult work of finding a story we can tell – the alternative to the story about a crime. And when we lose a close case, it’s often because we never found or failed to tell the story. 

There is another story by the way. It’s usually the story of a trial or the story of a defense investigation. All the procedural things that went south won’t matter if you don’t make them into a story. And you won’t find the story if you don’t do the work. 

Steven Pressfield’s new book, Do the Work, offers a simple technique to find your story and your theme. It also offers a needed kick in the pants advice on how to get the work done. For a little more time, the Kindle edition of the book is available for free. But you can get the really important stuff from his blog. To go really in depth, you should check out his better known book The War of Art. To boil it all down to the bare essentials, take a few minutes to read about The Foolscap Method and The Three Act Structure

Mr. Pressfield advises that you take a legal pad (the old school legal pad with the long pages) and divide the story (in our case, the brief) into three acts. You’ll soon find that you can’t write act three if you don’t know what your theme is. And your theme is nothing more than a one-sentence description of what your case is about. Your theme is what you’d tell a non-lawyer at a barbecue in your back yard if he asked you about the caes you’re working on right now. 

Trust me when I say that taking the time to work out your case on a sheet of foolscap will make you feel immediately better about your case and give you some direction. A side benefit from reading about the three-act structure is that you’ll suddenly see the backbone behind every movie you watch, particulalry if you’re watching or listening to lots of Disney movies. 

Let me give you an example of what I’m talking about from a recent United States Supreme Court decision. In Cullen v. Pinholster, Justice Thomas wrote the majority opinion for a very divided court in an appeal of a federal habeas decision of a death penalty case. You’ll see the three-act structure as you read the opinion. And, yes, it’s the story of a crime. He dispenses with Act One in two sentence.

Scott Lynn Pinholster and two accomplices broke into a house in the middle of the night and brutally beat and stabbed to death two men who happened to interrupt the burglary. A jury convicted Pinholster of first-degree murder, and he was sentenced to death.

Act One ends with the California Supreme Court twice denying habeas relief. But the “villain” enters the scene at the beginning of Act Two when a Federal District Court grants Federal habeas relief and the Ninth Circuit affirms. By the end of Act Three, the United States Supreme Court reverses, and Mr. Pinholster will once again be under a sentence of death. 

There was another story, and it was compelling. From Mr. Pinholster’s brief:

Scott Pinholster’s trial attorneys were unaware that a death penalty phase would follow a guilty verdict at his murder trial; they had neglected to look in the file and read the state’s notice that it was seeking death. Six hours of preparation later, they presented one witness, Pinholster’s mother.

Later in act one, critical mitigating evidence isn’t found, such as the abuse he suffered as a child as well as head injuries in his early life. In Act II, the Federal district court and appellate court grant habeas relief. And the Third Act Mr. Pinholster wanted to see was a victory in the Supreme Court. 

For every story of a crime told by the Appellee, there’s a story of a trial or of a pre-trial investigation that you can find and develop (most of the time). From Mr. Pressfield, there is a good beginning technique to find and develop that story and to find the central theme of your case. But, above all, it’s a technique to use to get to it and write the thing. Which is often the biggest hurdle.

printing press.jpgBen Kerschberg, wrote yesterday about his experience as a paralegal in the mid-90s in the appellate litigation section of Sidley Austin. More particularly, he wrote about the process of getting briefs ready to file in the United States Supreme Court in the pre-pdf era. True, the technology has now developed to the extent that it is possible to produce professional qualify printed documents from a desktop computer and printer. Indeed, a book like Typography for Lawyers wouldn’t have even been relevant to the appellate bar a decade ago. Many of the concepts in a book such as that would have been lost on almost everyone except graphic artists and printers. 

But, in Mr. Kerschberg’s account of going to a professional printer and preparing appellate briefs for filing (granted, a US Supreme Court appellate practice is unlike any other appellate practice), I can’t help but wonder if the improvements in technology haven’t taken some of the craft out of being an appellate lawyer. We’re now wearing the hat of professional printer and lawyer. And we weren’t necessarily trained to be printers.

Take a look at his blog post and see if you don’t start feeling nostalgic for a time in history that really wasn’t all that long ago (during the Clinton administration, to give you a sense of how recent it was). My takeaway from it is that every brief, even and perhaps especially today, should be crafted and not merely written. 

typography.jpgSome weeks back I wrote about whether lawyers should write for the screen or for the page in the era of e-filing (you can e-file in the Georgia Supreme Court and Court of Appeals now). It turns out that there is a way to hedge your bets, at least in terms of font selection. Kendall Gray, over at The Appellate Record, has teamed up with Matthew Butterick (I wrote about his excellent book earlier) to figure out the best fonts to choose when your appellate panel may either print your brief out or read it on the screen. Part 1 gives you the short answer. Part 2 gives you the even nerdier explanation (and nerd is not a perjorative term spoken from this law-nerd).

The answer is that, as long as you are submitting your brief as a pdf, you don’t have to use a screen-optimized font. Now, as to what font is best for a brief, take a look at Typography for Lawyers. It’s even reviewed over at MacSparky, my very favorite law-nerd sight (David Sparks doesn’t focus on the fact that he’s a lawyer, but it comes out a lot in his writing and in his Mac Power Users Podcast).

crossed fingers.jpgA few days ago, I met with two perspective families of potential parole clients. They had different kinds of problems. I had seen both problems before. The first had a loved one who was ten years into a twenty-year sentence for armed robbery. The second had a loved one who was puzzled that he had been in prison for more than four years already for a ten-year prison sentence for possession with intent. In the first case, a competing attorney I had never heard of had offered an outstanding deal to represent them for parole on the armed robbery conviction. In the second instance, the legal advice came pre-plea. The law had negotiated a trafficking charge into a lesser offense for possession with intent to distribute. The lawyer advised the client to take it because he would be out after serving a third of his prison time. The family wanted a lawyer to work on parole but also to figure out what the hold-up was. In these two clients, I encountered the three things people don’t know about parole in Georgia.


Continue Reading Three Things You Should Know About Parole in Georgia

Calendar.JPGAs a father of three children (one still in a car seat and one in a booster) and as an appeals lawyer in Georgia, I get two recurring and related questions. From the children, on car trips, I frequently hear, “Are we there yet?” From my clients and their families, I frequently hear, “when will the court decide my case?” For the former, there never really is an answer. Atlanta traffic mandates that today’s twenty-minute trip will be tomorrow’s three hour journey. But for the client’s question, there’s a pretty straightforward answer. And I always have to look it up. But after I finish this post, I won’t have to look it up again and neither will you.

One caveat. I’m speaking of direct appeals only in this post. The timing for applications from habeas, cert. petitions, interlocutory applications, or applications for discretionary review is a good subject for another post. And if any of those things get anywhere, though, you’ll find yourself back in a situation where merits briefs have been submitted, the case has been argued, and you’re waiting for a decision. Then you’ll get this question. And when you find yourself there, this post is for you.

 

The Two-Term Rule

We’re lucky here in Georgia. If cases aren’t decided in two terms of court in the Georgia Court of Appeals or Supreme Court of Georgia, they’re affirmed by operation of law. In the whole history of Georgia, a case has never been affirmed this way (cases have been remanded and docketed creatively as a work-around, but such a situation is truly rare).

Our two-term rule is a creature of the Georgia Constitution. In Article 6, Section 9, Paragraph 2 of the Georgia Constitution, you will find this language: “The Supreme Court and the Court of Appeals shall dispose of every case at the term for which it is entered on the court’s docket for hearing or at the next term.”

 

When Does the Countdown Start?

The clock starts running in the term that the case would be set for oral argument, if oral argument were held. This provision is a little tricky. What if you don’t get oral argument or don’t ask for it? Check out your docketing notice. It will tell you when oral argument would take place if such were set. Regardless of whether you have oral argument, the clock starts ticking in the term of court oral argument would happen, if at all (regardless of whether oral argument ever actually does happen).

The Court must come to a decision in your case in the term of court when argument is set or the term of court immediately afterward.

 

But What are the Terms of Court?

The Supreme Court of Georgia and the Georgia Court of Appeals each have the following three terms every year:

  • The January Term begins the first Monday in January (the January term ends on April 14; 15 days before that is March 31)
  • The April Term begins the third Monday in April (the April term ends on July 31; 15 days before that is July 16)
  • The September Term begins the first Monday in September (the September term ends on December 16; 15 days before that is December 1)

By law, no second term case can be decided within the last fifteen days of the term, except upon a motion for reconsideration. So, if your case reaches the term, do the math accordingly (or check out the parentheticals above).

If you want to cite to something more authoritative than Scott Key’s blog (yes, there could be such a thing), the terms of court and their closing dates may be found at OCGA Section 15-2-4. And the law that makes the terms of the Supreme Court and Court of Appeals the same is OCGA Section 15-3-2.

 

Empty chair.jpgThe state of Georgia once brought us the Leo Frank trial, the Andersonville prisoner of war camp, and a series of lynching over the years. I never knew that Georgia law was so traditionally weighted against the State. The legislature seems to think otherwise. Yet, the legislature of late has enacted new laws that have taken away historic provisions that have traditionally protected the accused, including: historic provisions that gave the defense more jury strikes than the prosecution; recent legislation that took away the defense’s right to give a closing to the jury last; and a set of minimum mandatory sentences that presume that Georgia is a bastion of liberal judges. One would think that, in the midst of all the hangings that have taken place in Georgia’s history, that we haven’t coddled criminals too long. Most recently, the law has relegated criminal appellants to the role of distant correspondents as the lawyers battle out their case in a courtroom, sometimes hundreds of miles away. We’ve only recently gotten there, but there may be a way to change things.

Two things have happened to bring about this turn of events. First, the legislature recently took away the right for criminal appellants to remain in the county jail while their appeal was pending. Not many lawyers even knew that the law provided such a right, and many judges simply ignored it. But, for me, keeping my client in a local jail was very helpful on appeal. It allowed me to build an attorney-client relationship, and it provided my client with a sense that he had a voice in his case. Trial lawyers have this right from the very beginning when their clients are incarcerated. But the legislature took this right away – proving that the appellate process is the red-headed stepchild of the criminal justice process in Georgia. 

I average about 5 travel days a month so far in 2011. All the prison in Georgia are located far away from me. And the clients still need to be seen. Relationships still need to be formed and maintained. While this process is good for the folks at audible.com from whom I purchase many audio books and from Exxon from whom I purchase gas at around $4.00 a gallon. It is not good for my overall productivity. Because for every 3-4 hours I spend driving there is maybe 1 good hour of meeting time with my client. And, as the law is developing, I may be on the road even more. 

The trend started earlier but has culminated in the Mantooth. This is the total bad facts make bad law package. The lawyer was given every opportunity to proffer to the trial court a reason to produce his client for the motion for new trial hearing, and he passed up, baldly claiming that he wanted his client to attend the motion for new trial hearing. Out followed the holding that a non-death penalty defendant has not right to attend a motion for new trial motion hearing unless he can show his presence would contribute to the “fairness of the proceedings.” Of course, the whole test seems circular. When is it ever fair to holding a hearing on a person’s life and status as a felon while the defendant is involuntarily absent? Never mind the fact that the opinion appears to misconstrue the holding in some earlier cases. Andthe whole body of caselaw that has developed in Georgia ignores United States Supreme Court precedent in Snyder v. Massachusetts (thanks, Jim Bonner, for telling me about this case). My client should see and hear his hearing. And, when evidence is introduced, it is important for me to be able to consult with my client, likely the only person at counsel table with me who was present at the trial and in pretrial meetings and proceedings to know what to ask witnesses at the motion for new trial hearing. Georgia courts are moving in the other direction, it appears. 

Take this Issue Up

One thing to keep in mind is that the Georgia jurisprudence in this area is not particularly well developed. Yes, there are many cases to reach this issue. But seldom has there been much analysis. When the Supreme Court has reached it, it has typically done so in a very short paragraph. So, there has never been a better time to start moving this issue to the Supreme Court of Georgia. 

Preserve This Issue by Motion

After all, for an appellate lawyer, the next best thing to winning a motion at the trial level is losing motion of the trial level. So, I would encourage lawyers, at motions for new trial, to file motions to produce the end where you assert why your client’s presence at his motion for new trial hearing is essential to the fairness of the proceeding. Allege it on due process on and sixth amendment grounds.

Affidavits are Your Friend in this Regime

In addition, seize the opportunity to use the absent client introduce evidence that cannot be cross examined. If the court will produce your client, then the trial court leaves you no choice but to present evidence from your client in the form of an affidavit. Since the courts tend to do with state wants, then the Court will likely produce your client to give the State the opportunity to cross-examine your client. If not, then use this wrinkle in the law to put up some evidence that is beyond the reach of the State’s questions. Second best, an affidavit will likely get your client produced.

Above all, this is an area of law that needs to be further developed. So, start filing motions to produce. You’ll plant issues in your case and show your client that you are fighting to give him his day in court at the appellate level. Better yet, you might have a way of putting up evidence beyond the State’s cross-examination or maybe show how eager some trial judges are to produce your client when the State needs him but not when you do.