September 2011

There’s an old bright line rule about whether judges should mention the appellate process to juries. The subtext is that you shouldn’t do it at all. The literal rule is that you shouldn’t do it in a way suggesting that the defendant is going to lose the trial. The Supreme Court recently reaffirmed on old line of cases on this point. But a dissent in that case followed by a concurrence in an even more recent case, suggests that this rule is changing. This is a tale of two cases enveloped within a tale of even more cases, dating back to the nineteenth century. Keep reading, it’s way more fun than I’m making it sound.

The Faustian Bargain

If you pull up Gibson v. State on Lexis, you’ll see that there is now a big ole yellow triangle in the heading. Click on the triangle, and you’ll arrive at State v. Clements. When you get there, you’ll see that Justice Nahmias and Carley, the dissenters in Gibson, are the reason that the yellow triangle appears. The issue in both cases is whether judges should be in the business of talking to juries about the appeals process and what should happen to their reversal rate when they do.

In Gibson, the jury wanted to read some statements during deliberations that had been tendered at trial. The judge said no, and then he elaborated: “They are supposed to be read like any other testimony, and it would be reversible error for me to give you all the exhibits.” The Court reversed, reasoning that the comment intimated that the defendant was guilty and would need to “appeal his forthcoming conviction.”

It turns out that there is a history of this sort of thing. The Court in Gibson cited the 1966 case of Faust v. State where it reversed a conviction after the judge told the jury that “there are certain which cannot be removed from the indictment, and I am of the opinion it would be improper and maybe reversible error by the Appellate Court if I allowed you to see the indictment with these several entries hereon.”

But there is even a longer history than that. In 1857, when a fictional Scarlett O’Hara would not have even had her learner’s permit to drive the wagon yet, a trial judge told a jury that he “was responsible to the Supreme Court, if he committed an error; that he was a fallible being and liable to err, and that they might under the statute, decide against his opinions of the law, if they thought proper to do so.” Of course, these facts are unique on their face. Indeed, there is likely no other time in the history of Georgia when a Superior Court judge referred to himself or thought of himself as a “fallible being” or “liable to err.” Nevertheless, it is interesting to note that the Supreme Court did not reverse but gave the trial judge a good scolding: “all reference to the Supreme Court, with by trial court or counsel, by way of menace or otherwise, except to cite its decisions, had best be dispensed with.” Ah, yes. The judicial scolding. Nothing signals the offending party that they’re about to get away with something like a judicial scolding. And the dissenters have picked up on it. The 19th-century Supreme Court and the modern Georgia juvenile court share this quality. For you new lawyers out there, when the juvenile judge starts yelling at pee wee, slip a note to mamma telling her to chill out, because pee wee’s going home.

For the dissenters in Gibson, the trial court’s “good talkin’ to” was dicta and serves as a fairly bad foundation for the kind of bright line rule that the Court in Faust constructed. Equally shifty, according to the dissent, was the foundation provided by the 1944 Bryant case, where a prosecutor withdrew an objection to a question posed by the defense, adding “I will withdraw my objection; the Supreme Court – I am scared of the Supreme Court.” Again, the case was factually unique. When was the last time a prosecutor changed course out of fear of a Georgia appellate court? Again, the dissent notes that the prosecutor got a lecture but no reversal of the conviction. Did you note the irony? In Georgia history, lawyers and judges who said that they were afraid of the Supreme Court were told that they should be afraid of saying that they were afraid of the Supreme Court.

Before Gibson, the dissenters reason, the admonition: “don’t be a bonehead. There’s no reason for you to start talking about appeals with a jury” was merely aspirational. With the rule in Gibson, it’s now the law.

Having dispensed with the foundation for Faust, the dissenters then turned to analysis of  how little the average juror knows about the process.

Take the Average Juror (Please)

For the dissenters, it is a real stretch to assume that the jury would really know that all that talk about appeals means that the judge thinks that the defendant is about to lose the trial. Justice Nahmias writes, “my own experience is that many lay people are unaware of it and some are surprised by the notion that the State does not have the same ability as the defendant to appeal a verdict.” But even if we assume that they know the law in this area, the dissent goes on, how would talking about the appeals process harm the defendant? It might encourage jury nullification, after all, since the State has no remedy for an acquittal, and the jury owes nobody an explanation for its verdict.

And, the dissent continues, it would be quite a leap to assume that the mere mention of the appellate process by a judge presumes that the judge thinks that the defendant will be convicted or that such a presumption would even matter since even the densest of jurors would understand at some point that the juror, not the judge, is the trier of facts.

The part about the average juror, to me, is the most slippery part of the dissent. “Average people” think all sorts of crazy stuff about the appeals process. I know, because I find myself trying to explain my job quite a bit in social settings to non-lawyers who ask me about my job. Even after explaining that I’m in private practice, lots of people ask me if I prosecute or defend people. And when I explain that I do criminal defense but that it is mainly post-conviction or appeals work, I get either a nod of understanding (from the PBS watching crowd), a blank stare (from the Entertainment Tonight watching crowd) or a full plate of “how can you sleep at night? These criminals get too many appeals? I can’t believe all these people get off on technicalities” (from the Fox News watching crowd).

The trouble is that this is Georgia. And there aren’t enough strikes available to winnow out the Fox News people. And when they hear the word “appeal,” they are thinking something very different than the other average jurors.

Indeed, it’s hard to disabuse clients, no matter how hard one might try, of the notion that you can’t appeal on the basis of “Officer Rogers was a big fat liar.” And most people have unrealistically high expectations of how easy it will be to win the appeal. Do we assume that the average juror knows how hard it is for a convicted defendant to win on appeal? Can we presume that they know the odds any better than the average appellate client? The real harm on mentioning an appeal is that the average juror will not realize just how big the stakes are for the guy on trial. It’s not like football games in the backyard where there’s a disputed call. The appeal is not a “do-over.” And I know that. Does the jury?

So What?

The dissent in Gibson is getting some traction. Hence, the big yellow triangle. In the concurrence in Clements, the dissenters from Gibson note that the Court is going where they should have gone when they decided to that case, with “don’t mention appeals” as an advisory goal and not as a legal rule. And if you look at the reasoning from the majority in Clements, they are exactly right.

The problem is that it is a dangerous thing to start telling jurors about the appeal. And it really is unnecessary. Advisory rules, such as “don’t eat sweets,” are nice. But they don’t have the force of law. And I’m not sure why you shouldn’t just mandate to judges not to talk about the appellate process? Why the big need?


I stopped blogging several weeks back. You won’t have to look hard to see a gap in the rate of posts on this blog from July until a few days ago. And if you look at the post I did earlier in the week, you’ll see something worse than no blog at all. You’ll see a spineless report of some cert. grants with no analysis, thought, or expression of opinion. I think what I finally wrote was much worse than what I didn’t write. Then I thought, again, about no longer blogging. Confused? If you are still reading at this point, then let me explain.

A few weeks ago, a person attempted publicly to use some of my blog posts, via a verbatim recitation, against me. They were read out of context mind you. And the tactic didn’t work. Still, it was not fun. The general theme of the criticism was that I was failing to follow my own playbook.

Nothing I write here is legal advice. And I don’t pretend to think that this or any blog could ever be an A to Z guide on handling criminal appeals. Such an endeavor is not possible. And if it were, I am not qualified to pen it. There are certain patterns in the law that arise repeatedly (hence, the need for precedent), but no two clients or cases are absolutely alike (hence, the need for lawyers and a justice system administered by thoughtful listening human beings). So, at the most logical of levels, it is a mistake for any blog writer to think too much of himself when he says anything in this medium. And it is a bigger mistake for the reader of a blog to believe that any writer has all the answers or for a reader to take the words in a blog as anything strictly prescriptive. I don’t have a playbook on paper, on screen, or in my head for appellate success in all cases. And, in case I have suggested something otherwise, my appellate batting average is not 1.000.

Yet, I stopped blogging for a while because public criticism, whether well intended, well founded, and properly contextualized or not, isn’t fun. There’s quite enough of it in just doing the job, in standing up to make an argument for a client who has already been deemed guilty by a jury of his peers, in standing up before an appellate panel and taking tough questions, in the humbling experience of filing a brief knowing that it will be read by a group of very professional and highly critical audience. Why set myself up by putting my opinions before an audience that might not get it, might become confused to see me trying out an idea in one post and later abandoning it in another, and who might use those words in a less than charitable way.

But this question, I have discerned through some discussions with people I respect, is not just a question about blogging. Why engage at all, really? Why write articles? Why speak at CLEs or Rotary clubs or bar luncheons? Why try to explain to people at barbecues and parties what you do for a living or why you are so passionate about it? For that matter, why did you endure being called on in your 1L year or choose to take on a vocation that isn’t always fun and is often quite messy to do?

But those questions are probably bigger than the ones that came immediately to mind. A little too deep. A little too fru fru. The real questions I was asking myself were more in the neighborhood of seeking an excuse. The real question was a question of motivation. And the scarier question was exactly what is the nature of this medium and how I was using it.

I began imagining a spectrum, with a scholarly law review article on one end and with a seedy full-page yellow pages ad on the other (with a picture of me in front some law books and a clip-art scale of justice depicted) and wondering where my blog fit on it.

So why have I been blogging?

  • To find business? I wouldn’t mind if it happened. But there are easier ways, probably, to get business than this. If you realize business from blogging, it’s likely to come over a long period of time from a blog that is credible and by referrals from other lawyers who know and have critically evaluated your work. Blogging is probably the least important way to get that. You earn business one transcript page at a time, one argument at a time, one paragraph at a time. But you can get that through blogging too, if done with integrity. But it isn’t easy, and it is not for the impatient. Better to design the yellow pages ad and get on with what you normally do in the day. The business I get directly from the blog usually comes in the form of requests to represent people for free. The most dreaded words in the law, I think are “I found you on the internet.” Because what follows is typically a story of a purported injustice that I should be so shocked to hear about that I would never consider seeking compensation for my time and expertise to take it on.
  • Fame? On my very best day, it is pretty depressing to click on Google Analytics. I think that a criminal appellate law blog is not exactly a ticket to fame. When people tell me that they read this blog, I’m often tempted to say, “so you’re that guy.”
  • To engage other lawyers, to think a little more about issue so importance, to try out (and maybe discard) some ideas about the craft, and to have fun. Those are the reasons to do this. And there’s one more that comes when I stumble into doing it well.
  • To take risks. Stick your head up enough and you’ll get hit. And in the short term, it’s better to keep your head down. But in the long term it just sucks to do that.

In deciding whether or how to blog, whether or how to practice law, and whether and how to live, it always seems easier and more comfortable to lock the door and close the blinds. But it isn’t very fun.


The Supreme Court has granted two petitions for certiorari and one application for discretionary appeal so far this month. Below is an overview of each case

Bunn v. State

In its Order granting Cert., from September 6, 2011, the Court notes that it is particularly concerned with the following issue:

Does the Child Hearsay Statute allow a witness to testify as to what one of the defendant’s victims said she saw done to a second victim? See OCGA Section 24-3-16; Woodard v. State, 269 Ga. 317 (1998); Assad v. State, 195 Ga. App. 692 (1990). See also Crawford v. Washington, 541 U.S. 36 (2004).

The opinion form the Court of Appeals may be accessed here. The COA opinion was authored by Judge Smith, who wrote for a unanimous panel with Judges Mikell and Adams.

The Cert. petition has been pending for approximately 9 months from the time that the COA denied reconsideration on December 14, 2010

Jones v. State

On September 12, 2011, the Court entered an Order granting cert, noting that it wished to consider two issues:

  1. Did the Court of Appeals err in upholding the trial court’s denial of Jones’ request for a subpoena? See Yeary v. State, 289 Ga. 394 (2011).
  2. Did the court of Appeals err in holding that the trial court was authorized to conclude that Jones’ encounter with the police trooper at Jones’ truck was consensual?

The opinion cannot be found because the Court of Appeals Ordered that it not be officially published. Judge Ellington wrote for a unanimous panel joined by Andrews and Doyle. This case is another in a continuing saga by defense attorneys to obtain the source code for the intoxilyzer machine, a popular device used by law enforcement to measure blood alcohol concentration, with an added twist of a Fourth Amendment issue.

Notice of Intent was filed on March 17, 2010, and the cert petition was pending approximately 5 months before cert. was granted.

Harper v. State

On September 23, 2011, the Court granted an interlocutory appeal on this case. The case comes to the Court by way of transfer from the Court of Appeals because there is a constitutional questions involved. The Petitioner is indicted for a violation of RICO, involving allegations of theft from Glock, the company that manufactures firearms. The constitutional issue is whether the provision that extends the statute of limitations for offenses where a victim is over the age of 65 violates equal protection where, as here, the victim is a senior citizen who is a multimillionaire, runs a multi-billion dollar corporation, and is likely heavily armed (I editorialized the heavily armed stuff. It’s not really part of the opinion). Justices Nahmias and Carley dissented from the grant of interlocutory appeal.