January 2012

Yesterday, was was the best day the Fourth Amendment has had in a decade. And, while Libertarians might not be surprised who the two heroes were, others might be taken aback. In one Fourth Amendment story, the hero was Associate Justice Antonin Scalia. And in the other, the hero was tea party Junior Kentucky Senator Rand Paul. In the first story, the heroism came in the upholding of the Fourth Amendment. In the second, the heroism came in its violation. Let’s start with the story of upholding.

In an opinion authored by Justice Scalia, the United States Supreme Court unanimously held that the government must get a warrant before placing a GPS tracking device on a person’s vehicle. In reaching this conclusion, the Court held that placement of a tracking device constitutes a search. Adam Liptak, of the New York Times summarized the opinion and noted that the divided rationale for the conclusion may raise as many questions as it answers. Writing the majority opinion, Justice Scalia reasoend that “the government physically occupied private property for the purpose of obtaining information.” Others have noted that the majority’s decision to base the opinion on concepts of trespass leaves unanswered more pressing questions about expectations of privacy in the digital realm. Still, this opinion is victory for supporters of the Fourth Amendment. And it is easy for a defense attorney fighting it out in the trenches to wonder if the Fourth Amendment has been abandoned. 

Also in the news yesterday was a story of Kentucky Senator Rand Paul’s run-in with TSA at an airport in Nashville. Sen. Paul set off a body scanner, with an alert to the knee area. TSA protocal calls for a frisk in this event, which the Senator refused and requested to go back through. TSA ordered him into a cubicle. When he then used his cell phone to call staffers to report that he would not make it to an event in Washington, he was told that he would be subjected to an even more intense screening. Talk about picking on the wrong guy. Writer Jerry Pournelle notes that TSA’s action violated more than the Fourth Amendment. It actually is a violation of Article I, Section 6 of the United States Constitution to arrest or detain for questioning a US Senator in his travels to attendance in a session.

The third unlikely hero in yesterday’s Fourth Amendment story was Fox News with its 6-minute interview of Senator Paul. Well worth a watch. Sen. Paul was told off the record by TSA officials that the machine is set up to randomly alert on people. So, the mandatory detention (TSA said it wasn’t a detention. Defense attorneys will recognize law enforcement’s attempts to make something not a detention simply by giving it a different label) and pat-down was required. And it was unacceptable to send him back through. 

And for every story with a hero, there must also be a villain. Here, it is actually the Obama White House, that issued a statement yesterday in support of the TSA. In fact, in supporting the TSA, the White House referred to Senator Paul as “the passenger.” 

I’ve been a long-time Democrat. I’ve been willing to put up with their social programs because I’ve long thought that Democrats were the best hope for my civil libertarian views and for why I do my job everyday. It was certainly a good place for my hopes during the recent Bush administration. Ron Paul’s success in this primary season, Scalia’s stance on the Fourth Amendment, Rand Paul’s stand yesterday, and Fox New’s attention to the matter, is beginning to sway me. Republicans seem to be shifting to a consistent policy on small government in their opposition to large social programs and in their opposition to the ascendancy of a government police state. Where might my vote go in November?

 

Adam Liptak of the New York Times reports that the Supreme Court has held that courts are not required to conduct pre-trial hearings to determine whether the circumstances of an eyewitness identification were so unreliable that the jury shouldn’t hear about the lineup. The Court has held that, only in instances of police misconduct in the identification procedure, should the judge exclude the evidence. Otherwise, the Court held that defendants should rely upon cross-examination to attack the reliability of eyewitness identification.

A dissent, written by Justice Sotomayor, reasons that improper identifications are the leading cause of wrongful convictions nationwide and that the judge should play a bigger role as gatekeeper to safeguard misidentifications.

The news may actually be good for Georgia criminal defense attorneys for several reasonsIt can often be difficult to admit expert witness testimony on witness memory. The Supreme Court’s new focus on the courtroom as the crucible for testing witness memory could arguably open the door to in-court scientific testing of identifications. It will be increasingly important to educate the jury about identifications as the burden of testing reliability shifts from the judge to jurors.

  • This may be a good time to focus on jury charges. The Georgia Supreme Court has been on the cutting edge in this area for the last decade. It has eliminated the “level of certainty” charge, reasoning that witnesses are just as certain about misidentifications are they are about good identifications. Since the jury will now be the arbiter of eyewitness reliability, it is time for more jury charges to guide them in this endeavor.
  • The precedent isn’t really all that earth-shattering. You may be practicing in different places than the places I go, but judges haven’t been tossing identifications left and right. In fact, the pre-trial ruling has often placed a gold star around the identification, rendering in-trial rulings harmless along the way. The holding shifts the case from one big ruling before trial to a bunch of little rulings on jury charges, expert witness admissibility, and curative instructions. Also, since cross-examinations are now the be all and end all, judges are going to have to give lawyers wider latitude or risk reversal. It’s now time to push the envelope on cross-examination of eyewitnesses. In addition, since it’s now all about confrontation, it will be time to preserve objections under the Confrontation Clause.

So, moving forward, it’s a good idea to keep the case handy and cite to it as positive authority to attack the eyewitness at trial through cross-examination and through experts.

 

A blog post I wrote a week ago about GPDSC’s alliance with the Attorney General’s Office to oppose the Georgia Bar’s formal advisory opinion regarding imputed conflicts for indigent defendants inspired a few comments over on my Facebook page. A friend of mine who is a former assistant public defender commented:

The absence of conflict-free counsel is hardly the most shocking failure of the current system. When I was an APD, I carried 50-70 cases on a trial calendar at once. I had no idea which case would be tried when. I was expected to announce “ready” in the vast majority of my cases.

Assistant public defenders often carry a much higher caseload than ABA Standards would allow. I point out the state of affairs in no way with the intent to bash individual public defenders. Indeed, for many, the role of public defender is a noble calling. And some of the most talented appellate and trial lawyers are know are public defenders. My critique is more systemic.

Rather, the lack of resources for public defenders, in terms of money and personnel, is at the level of crisis in Georgia. We have a system in place operating without a committment to run it properly.

Unfortunately, for a defendant who finds himself convicted in the midst of this crisis, appellate courts are not going to be receptive to an ineffective assistance of counsel claim. Rarely, likely less than 5% of the time, does an IAC claim work because the standard for effectiveness it the ultimate low bar.

And the greater problem, at least in Georgia at the state level (there are a few county systems in Georgia that are wonderful), is that the free market is a greater delivery system for criminal defense representation than is the government. Of course, the indigent cannot enter the free market. Meanwhile, the government is quite a deadly deliverer of prosecutions.

I wonder if it isn’t time for a “no defendant left behind” model, which would provide government vouchers for indigents to hire criminal defense counsel.

 

Greg Bluestein, with the Associated Press, reports that the Judiciary could see more funding in 2012. The report echoes some of the discussion at the Appellate Practice Section luncheon several days ago. Mr. Bluestein reports that “[t]he judicial branch’s budget situation was so dire in 2009 that Georgia’s top judges considered whether to take emergency legal action to stop the state from cutting their funding.”

Judge John Pridgen, the chair of the Council of Superior Court Judges is “very much encouraged” by the support of a governor, who is a lawyer and who has a son who is a Georgia Superior Court Judge.

The governor’s budget request includes a “$10 million grant to fund a system of accountability courts for alternative treatment of some low-level offenders.” There are several other budget increases reportedly in the works

  • funding increases to allow for the hiring of more clerks, additional attorneys, and new equipment to reverse a backlog in court cases
  • $3 million for district attorneys
  • An infusion of cash for GPDSC (though GPDSC seems perfectly willing to deliver substandard representation, according to recent arguments at the Supreme Court)
  • A grant of $145,000 to the Supreme Court to fund a pay increase for staff attorneys and to create a dedicated clerk for death penalty cases
  • A $106,000 proposal to hire another investigator for the Judicial Qualifications Commission. This is good news for lawyers everywhere. Trial judges have been exceptionally polite lately since the JQC has become more active in the last few years
  • The Georgia Resource Center, which handles death penalty cases on appeal and in the post-conviction setting, woudl get enough funding to stay open in the wake of recent cuts that would have killed the organization

Of course, time and the legislative process will tell whether all of this funding comes through. But it is quite nice to have a governor in office who recognizes that there is a third branch of government.

The writer Jerry Pournelle postulated The Iron Law of Bureaucracy. It goes like this. In a bureacratic organization, there are two types of people. First, there are the people who are devoted to the goals of the organization. Second, there are those dedicated to the organization itself. According to Pournelle, “in every case the second group will gain and keep control of the organization. It will write the rules …”

So, it came to pass that Michael Edwards, the leader of a circuit public defender’s office in South Georgia came to oral argument at the Supreme Court yesterday where he sat at the same table with an Assistant Attorney General, a prosecutor. Both the prosecutor and the the “public defender” appeared as co-counsel to argue against a bar rule regarding imputed conflicts in the representation of the poor.

One would expect this unusual alliance to be formed to oppose something really bad, or at least something pretty radical. But actually, no. Here’s the advisory opinion that they opposed. It was an opinion (PDF), by the way, that came from the State Bar of Georgia.

Lawyers employed in the circuit public defender office in the same judicial circuit may not represent co-defendants when a single lawyer would have an impermissible conflict of interest in doing so.

Mr. Edwards, nominally a public defender and a prosecutor (who has an incentive to win criminal cases) teamed up to argue that Conflicts should not be imputed within public defenders’s officers. And when is there a conflict? The law on that has been around for quite some time. It’s codified in Rule 1.7 of the Georgia Rules of Professional Conduct:

A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer’s own interests or the lawyer’s duties to another client, a former client, or a third person will materially and adversely affect the representation of the client.

The position of the statewide public defenders is literally: “this is a luxury the poor can’t have.”

What does all of this mean? In my office, I would be in serious trouble if I represented two defendants with adverse interests to one another. And, if I take the risk of representing co-defendants and a conflict arises later, I have to walk away from both clients. For instance, I can’t represent two defendants if there is a chance that one will take a plea and testify against the other. But the public defender standards councilwould like a special rule for the poor so that they don’t have to provide the poor with conflict-free representation.

As Bill Rankin of the AJC noted, Justice Nahmias asked a very good question yesterday: “Why are you asking us to treat public defenders offices differently?”

The answer, of course, is money. The legislature created the state-wide public defender system and doesn’t want to fund it adequately. And, instead of seeking adequate funding or saying that constitutional representation comes at a cost, the organization seeks to tell the poor that they better hire a lawyer if they want conflict-free counsel.

Mr. Edwards pointed out that he can’t afford to engage in egg-headed “philosophical” or “academic” discussions as a GPDSC bureaucrat. He has to be pragmatic about all this. We can’t afford to get off on this business about right and wrong. If you want conflict-free representation, then either stop getting accused of crime or stop being poor.

No matter how the Court might rule on this matter, the fact that the public defenders and prosecutors would team up to take this position should freak you out if you are accused of a crime. In fact, if you are technically indigent and there is a distant relative who could pay for a lawyer, I’d advise you to run, don’t walk, away from GPDSC. The Iron Law of Bureaucracy is alive and well in how the indigent are defended in Georgia.

Or you could leave it to Edwards and his ilk. He says that you can trust the Council. To quote him directly, “We are the experts in representing poor people.” They know what’s best for all poor people out there.

The Appellate Practice Section of the State Bar of Georgia convened as part of the Georgia Bar’s mid-year meeting. In spite of the fact that many participants came over from the swearing-in of Judge Boggs to the Court of Appeals, the luncheon was lively and well-attended. Originally intended to be a candidates’s forum for candidates to an open spot on the Supreme Court of Georgia, events changed the format. However several judges on the Court of Appeals and Supreme Court have seats up for re-election this year. And the meeting became an opportunity for brief comments from judges and justices. Without covering each mini-speech, I’ll highlight a few judicial comments about the nature of judicial elections and about what life is like for the judiciary under the leadership of a new governor.

It should come as no great surprise that the former governor did not have a particularly bright spot in his heart for the judiciary or even for lawyers. From the comments I heard, things appear to be better now.

Supreme Court Chief Justice Carol Hunstein noted that the new administration is “kindler and gentler,” in terms of budgetary support and basic understanding of what judges and lawyers do. Governor Deal is requesting $10 million for “accountability courts.” Accountability courts are focused on particular needs of a category of defendant. Accountability courts include drug courts, DUI Courts, mental health courts, and veterans courts. The Chief Justice noted that the governor’s son runs an accountability court and that the governor himself was once a juvenile court judge. She and former chief judge Yvette Miller, spoke of how difficult it was for the two appellate courts to make ends meet in the darkest days of the Perdue administration. Both were complimentary of the new governor, and the dark clouds of former days appear to have moved away.

Equally interesting was the general tone about the nature of judicial elections in Georgia. Chief Justice Hunstein, who faced down a well-funded challenge by Mike Wiggins in 2006 (PDF), noted optimistically that a judge’s job at election time is simply to “get the message out, and you can trust Georgia voters.” She looked back on her 2006 election as a time of fear that had she lost then every judge would be intimidated by special interest groups. And she hoped that the 2006 election proved that special interests can’t defeat a sitting judge. For candidates this year, she advised lawyers to inform the choices of non-lawyers. After all, if the judiciary is doing its job, judges should not be in the headlines. Hence, it should not be unusual for the general public to be unfamiliar with the judges.

To date, no challengers have announced an intent to run against any of the Court of Appeals judges or Supreme Court Justices who are up for election. The year ahead looks to be a time of stability for the appellate courts with apparently no contested elections and with a supportive governor in office.

This post was intended to be a top 10 list. Then it was intended to be a top 5 list. But as I look back at 2011, there are really only two big stories that stand out. Actually, there are two stories and one lesson. The stories are the JQC’s investigation of Judge Amanda Williams and the Execution of Troy Davis. And the lesson? There is no more powerful court in Georgia than the trial court. It’s an important lesson to keep in mind if you are a client thinking of where the resources should go. And it’s an important lesson if you are entering a case as a lawyer and are contemplating the days and months ahead. In fact, the lesson I take from both as well as my years as a lawyer is that your chances of success are inversely proportional to deeply your case goes in to the system.

Amanda Williams

Judge Amanda Williams resigned in the face of an investigation by the Judicial Qualifications Commission. But her troubles began long before the JQC got involved. Judge Williams was the subject of an hourlong program about her drug court on NPR’s show, This American Life. According to that story, her drug court was the toughest in the nation, and punishment for those in the program included such things as indefinite sentences. That story aired on March 25, 2011. On November 10, 2011, the JQC brought 12 charges of misconduct (PDF). I’ve been appearing in front of trial judges throughout the State for some time. And, though I am not familiar with Judge Williams and know only what I have read in the media, the sort of thing that aired in the NPR story is within the realm of arbitrary use of judicial power I have seen in other courtrooms. Most JQC complaints go nowhere, and the appellate process protects the discretion of the trial judge in most instance unless that discretion is abused. It is difficult to imagine more raw power by an official than that of a judge in the judge’s courtroom.

The story that emerged on December 15, 2011, may have been what proved to be the judge’s undoing. It was reported that drug court was used as much as a carrot as it was a stick. In the case of the relative of a prominent and power Sea Island business man, according to the story, drug court was the place for an accused child abuser to go to escape a harsher sanction. Shortly after this story surfaced, the judge resigned. It even made the New York Times.

The JQC’s action in this case does not underscore the point that judges can’t get away with stuff. Rather, it underscores just how far things have to go in Georgia before a judge is actually sanctioned. It is also interesting to note that none of the folks who were treated arbitrarily had controversies that made their way into the appellate courts.

If there is one lesson to be learned from the Amanda Williams story it is that the trial court is a powerful setting.

Troy Davis

The appellate setting is a different thing altogether. If witnesses start recanting, if prominent people start complaining that a convicted man is innocent, even if Big Boy shows up to protest, there is little that an appellate court can do or will do to undo a conviction and even a death sentence. The Department of Corrections ultimate executed Mr. Davis for a murder of a Savannah police officer in the 1990s. In the weeks leading up to that execution, there was much debate about how strong the evidence was against Mr. Davis at that original trial. It was a shame that all the effort that went into analyzing the evidence over a decade after the trial did not go into the trial itself. And others found out that hours before an execution was too late to try to get the death penalty abolished in Georgia. If such effort were sustained over a period of time while the General Assembly was in session, who knows what might happen.

Conclusion

These two stories demonstrate that the real power to shape a case’s outcome lies at the juries and judges who hear the trials and who handle justice at the evidentiary level. There is a real law of diminishing returns the deeper a case goes into the process. Even if a case ends up on appeal or before a habeas court, a lawyer’s ability to win can be significantly impaired by what happened before the trial court. That is the lesson I took from the two two stories of the year. The power of the courts to intervene diminishes the deeper you get into the system. And a judge has to go pretty far to be sanctioned for abusing it.