June 2012

Readers of this blog may be surprised to know that I am a Scalia fan. Criminal defense lawyers who don’t like Jusice Scalia just don’t understand him yet. There is much to commend Jutice Scalia to a criminal defense attorney. He penned some of the most significant opinions in the last decade on the Confrontation Clause and criminal sentencing, if you are just judging him by results, which you shouldn’t do.

Results are not the reason to admire a judge (unless you are directly involved in a case and are on the winning side). In fact, you don’t have to agree with a judge’s philosophical approach to admire the judge. It is the fact that a judge has a principled approach to deciding cases that makes a judge great.

Lawyers who represent the accused on direct appeal and post-conviction and lawyers who regularly argue motions in trial courts are accustomed to judges with a philosophical-ish approach. And it isn’t textualism. It’s the approach that consists of finding a way to deny the motion or affirm the conviction because the defendant/appellant is a criminal defendant/appellant. It is the approach that looks to the State’s brief, in its 12 point Courier New glory with every other sentence in bold or italicized, to find a place to hang its hat.

So, Scalia’s and Garner’s book, which is written to encourage better judicial reasoning and decisionmaking, could be a welcome addition to the bookshelves of many judges.

Tony Mauro reviewed Reading Law: The Interpretation of Legal Texts at The National Law Journal. Mr. Mauro notes that the authors accuse judges of “loose and unprincipled decisionmaking that has tarnished the reputation of the judiciary.” And Mr. Mauro quotes a passage that seems to express the books’s central thesis:

The descent into social rancor over judicial decision is largely traceable to nontextual means of interpretation, which erode society’s confidence in a rule of law that evidently has no agreed-on meaning. … [o]ur legal system must regain a mooring that it has lost: a general agreed-on approach to the interpretation of legal texts.

Mr. Mauro notes that the book is “structured as a catalog of the canons of interpretation.” There are 57 of them in all. And the goal of it all is “to arrive at ‘one principled approach’ to interpretation through the analysis of a broad range of analytical methods.”

While many members of the public might see this book as a critique of “liberal” judicial activism or judicial legislation, it appears to be a broader critique of unprincipled judicial intrepretation of legal texts, no matter what motivates the abandonment of principle. Opinions on social issues, such as gay marriage or abortion, tend to make the news more than the daily grind of criminal cases. And it may be that the principled criminal law decision that leads to a bad factual result is the kind most likely to land on a newspaper’s front page. The 4th–6th Amendments of the Constitution die by a thousand tiny cuts. A principled approach to judging could save them.

And, with any luck, judicial readers of this new book will be just as textualist in their appraoch to the reading of transcripts, which could be the topic of another book. The abandonment of inconvenient facts in the record is every bit as big of a problem as the abandonment of the text of the law.

Adam Liptak has also reviewed the book, with an emphasis on how it might predict the outcome of the healthcare case.

Scalia/Garner’s book will hopefully cause judges to think about how they do the job of judging. Some of my favorite judges are the ones who rule on principle, even if in following that principle, they rule against me.

This won’t end well. Anthony Peters, the former Catoosa County assistant Magistrate Judge has filed a civil rights suit against the his former boss as well as the Sheriff of Catoosa County. When I read Joy Lukachick’s article (hat tip to her) in the Chattanooga Times Free Press about the lawsuit, I had to pull the Complaint off of PACER, the same way rubberneckers have to slow down to watch the traffic disaster in the oncoming freeway.

And, to my fellow rubberneckers, I offer this Complaint for your entertainment. Take a gander, and sleep well in the assurance that there is some lawyer out there who will file your lawsuit for you. No matter how many lawyers have turned you away, don’t be deterred. You will meet the right lawyer one day:  Peters Complaint (PDF).

Continue Reading Ex-Magistrate’s Lawsuit Blackens Eye of Ga. Judiciary

Williams v. Illinois, the newest Confrontation Clause case from the Supreme Court, leaves unresolved some key issues on the Confrontation Clause and its applicability to lab reports. Some things to note:

  • Williams has no majority opinion
  • It is very fact specific
  • A similar case with a better set of facts might go the other way

Stated with a bit more specificity, the plurality opinion is tied closely to the facts of the case. The two concurring justices believed that there were too many loose ends to state a definitive rule. Those two justices could possibly vote with the dissenters in a different case with more definitive facts.

Basis for the Opinion in Williams

  1. The expert testimony did not violate the confrontation clause because the expert did not testify to the truth of the matter asserted. Rather, she simply relied upon information about the profile of the evidentiary DNA to answer hypothetical questions about the likelihood of a person’s DNA profile being exactly the same as someone else’s. Since such testimony is neither substantive nor probative, it does not implicate the Confrontation Clause. Scott Greenfield calls this the “truthy” part of the opinion.
  2. The profile of the evidentiary DNA, nevertheless, was not testimonial because law enforcement did not profile the DNA in the semen to strengthen the State’s case. Rather, the evidentiary DNA was profiled with an aim to later identify a suspect from the world of unknown people whose profiles were in a database. In a case where a suspect has been already identified, we have a different matter.

And the case is tied to some fairly quirky facts, each of which is material to how the decision was made.

Factual Issues

In Williams a woman was raped in Illinois by an unknown assailant. After a rape kit was done, a scientist identified semen on the vaginal swabs. Law enforcement sent the sample to Cellmark Diagnostics Laboratory in Maryland for DNA testing. Cellmark conducted tests and produced a report with a DNA profile. Illinois law enforcement took the profile and compared it to a database of known DNA samples created to take the DNA profile of arrestees. The evidentiary DNA profile matched that of the petitioner. The victim then successfully picked the petitioner out of a lineup

The petitioner was tried by a judge. The victim identified the petitioner in open court. Then the State relied upon three forensic witnesses.

  1. The first testified that he had identified the presence of semen in the vaginal swab.
  2. The second testified that he drew the blood from the petitioner, and that he entered the profile into the database.
  3. The third testified how DNA profiles are developed from forensic evidence and how those profiles could be matched based upon the individual’s unique DNA code. She testified about Cellmark’s accreditation and how it is common for one DNA expert to rely upon another DNA expert. She talked about how the chain of custody was maintained in the shipping of the evidentiary DNA to Cellmark lab. Then, she testified about how she matched the profile from the database to the profile she obtained from Cellmark and how the profiles were the same. The Cellmark report was neither admitted into evidence nor shown to the factfinder. She did not quote from it or identify it as the source of any of the opinions she expressed.

For the plurality, there were several key facts that rendered the testimony not a violation of the Confrontation Clause

  1. Cellmark’s report was not admitted for the truth of the matter asserted. Unlike the report in Bullcoming that was admitted for its truth, the Cellmark report was never even admitted. The witness merely testified about a DNA profile she received from Cellmark and how it matched that of the DNA profile contained in the State database for the petitioner.
  2. No possibility of cross-contamination, and no testimonial analysis at Cellmark For the Court in Williams, it was important that Cellmark tested the semen without any particular suspect in mind. The test was not performed to incriminate or to strengthen the State’s case against a known suspect. And, for the plurality, it was important that “the admissible evidence left little room for argument that the sample tested by Cellmark came from any source other than the victim’s vaginal swabs.” In a case where law enforcement tests the DNA of an actual suspect for comparison with evidentiary DNA or where multiple DNA samples are on location at the same lab at the same time, the testing would be testimonial and the possibility of cross-contamination would be a possible area for cross-examination.
  3. Bench Trial versus Jury trial For the plurality, this distinction was key. From the plurality:

This case, however involves, a bench trial (author’s emphasis) and we must assume that the trial judge understood that the portion of Lambatos’ testimony to which the dissent objects was not admissible to prove the truth of the matter aserted. In a jury trial, the Cellmark profile might had been excluded or it would likely have been referenced but with a mandatory limiting instruction “that out-of-court statements cannot be accepted for their truth and that an expert’s opinion is only as good as the independent evidence that establishes its underlying premises.” And, if the State could not independently corroborate the foundational facts, then the expert’s opinion would be accorded no weight.

So, the advice for defense attorneys going forward should this issue arise — insist on a jury trial. With a jury present, we have a whole new ballgame.

Justice Breyer’s Appendix

There is an appendix to his concurring opinion that describes all of the steps in the DNA profiling process. This Appendix describes what happens in the process. The appendix is very helpful to practitioners looking to figure out the process or in trying to figure out which witnesses was not called by the State

In conclusion, much is left unresolved. A case where (a) a suspect’s DNA is tested for comparison with evidentiary DNA, (b) where all samples are tested together in the same lab; and (c) where the case is tried before a jury would appear to be a fantastic candidate for cert.

Today, the Savannah morning news has a fantastic article about the late Terry Jackson, a hero of mine and of many Georgia criminal defense lawyers. I did not know Terry until late in his life. He referred me some cases in the past couple of years, and I am working now on one of his last appellate cases.

Terry received the first Terry Jackson Friend of the Constitution Award from the Georgia Association of Criminal Defense Lawyers. And, as well as I got to know Terry through GACDL, I did not know just how many big cases he had handled in his life until I read the article.

If you knew Terry, this article is worth the read. And if you didn’t know Terry, stop what you are doing, and read the article right now to learn about him.

While working on a brief, we discovered a Georgia Supreme Court case that I was sorry to have missed when it came out (hat tip to Margaret Flynt). A paradigm shifted in 2010, and I completely missed it. From an optimistic viewpoint, this case shows that almost nothing adds up to ineffective assistance of counsel. To be less than optimistic, this case marked the end of the concept of ineffective assistance of counsel jurisprudence in Georgia.

Let me tell you the story. In the case, two parents were tried for murdering their 8-year-old child. The facts were fairly bad, with a history of child abuse. But the prosecutor’s trial tactics were also fairly horrible. During her closing, she clicked her fingers, which signaled a deputy to dim the lights. An associate prosecutor produced a birthday cake with the victim’s name written on it. The cake had eight candles on it, which were then lit. And the prosecutors sang happy birthday to the victim during the closing (if you were paying attention to the opinion, you’d note that the victim was already eight years old. To blame the defendants for the fact that there would never be an 8th birthday party requires that we scold them for not perfecting time travel.).

Defense counsel never objected or moved for a mistrial. And appellate counsel raised the failure to object as ineffective assistance of counsel. On the stand, trial counsel defended the decision not to object as “sound trial strategy.” Trial counsel gave the standard defense that he “didn’t want to call attention to” the spectacle by objecting. This display, and attempts to call attention to it make me think of Frank Drebin from the movie, Naked Gun. How could you possible call more attention to what is already a P.T. Barnumesque event?

The case reads like self-parody. Have you ever thought that you were reading The Onion only to realize that you were reading an actual news story? The Smith case reads like a satirical version of an IAC narrative written by a person trying to make a point about the state of ineffective assistance of counsel jurisprudence.

I am trying to imagine the backstory. I think, for instance, about the meeting where this idea orgininated. Prosecutors, the true believers anyway, say that they are in it for justice for the victims and not merely to win. So, I wonder if the actual intent of the cake and stuff was to honor the victim’s memory and things just got out of hand. That such a display would trivialize the victim or come off as a little offensive might have been overlooked.

I would also be willing to bet that the bailiffs and courtroom staff ate the cake during a break in the proceedings.

As I imagine the backstory, I think about all of the times that the brakes could have been applied. Like maybe when the prosecutor was at the Kroger bakery. As the details were being ironed out with the baker, you would almost expect an epiphany along the lines of, “did I get all this education and study for the bar so that I could be here doing what I’m doing right now?” But alas, no.

Or maybe a great opportunity was when the prosecutor told the deputy, “Hey, man. Listen. During my closing argument, I’m going to snap my fingers. When I do that, I need you dim the lights for me.”

I’m trying to imagine a defense attorney attempting a similar conversation with a Georgia courtroom deputy. It would never happen. It’s scary to imagine starting that conversation. The defense attorney would be summoned into chambers and yelled at. At the very least the deputy would get offended and say something like “I don’t work for you.”

But while we are on the subject of double standards, I want us to think about this case alongside an earlier IAC case, Nejad v. State. In that case, trial counsel testified that he was ineffective when he ordered his client not to testify at trial.

In a concurring opinion, a Georgia COA judge chided trial counsel, questioned his honesty, and noted that there should be some sanction for lawyers who testify that they made a mistake at trial:

I concur fully in the majority opinion, but write separately to point out an area of increasing concern in claims of ineffective assistance of counsel. Trial counsel’s testimony in this case demonstrates a worrisome trend with serious implications for the bar and the administration of justice. …

Typically, trial counsel in such situations testify primarily to the factual details of their conduct and decisions, and admit errors only with reluctance and with due regard for their professionalism and pride in their work. The developing trend of emphatically and even eagerly testifying to one’s own incompetence or misconduct is dangerous to the administration of justice, particularly if it is allowed to continue without any consequences for the testifying trial counsel.

By contrast, the majority in Smith spends about a paragraph dispatching the IAC claim. The dissent, even in taking defense counsel, the trial court, and the DA to task, never questions the honesty of the “trial strategy” claim or suggests that there should be consequences to such testimony.

Defense attorneys who testify “with pride in their work” at motions for new trial get the same hedge of protection as cops who testify at suppression hearings. The defense attorney who defends his conduct at an appellate or post-conviction hearing enjoys the same treatment as the police officer who explains how he smelled two ounces of raw marijuana that was wrapped in layers of packing, within a closed trunk. Such evidentiary moments assume a willing suspension of disbelief, reminiscent of Samuel Coleridge. Trial courts hear and accept such fictions on a regular basis, and those findings are accorded an extremely deferential standard of review on appeal. The defense attorney is celebrated as an officer of the court until he says that he made a mistake.

Strickland reached the end of its road. Today, we take an opportunity to mourn its passing. I’m headed to the Wal-Mart bakery right now to buy a cake for the birthday that it will never celebrate again.

Last week, I closed out an armed robbery case quite successfully. The case was reduced down to robbery, the client was sentenced under Georgia’s First Offender Act (meaning that he has the opportunity to come out of this with no conviction on his record), and after completing a one-year residential program, he is on probation. There were a number of things that made this outcome possible, but one factor stands out. The client never bonded out. He was arrested ten months ago, and we never even sought a bond.

Things got tough along the way. The client implored his family to seek a bond for him, and the pressure on them was difficult. Things got particularly difficult during the holiday season. But we never petitioned the court for a bond. And, by the time 10 months passed and this case was at its “resolution point” in court, we had 10 months served under our belt. The client, a very young man, had suffered some consequences, and he had seen some things. He had seen folks get released only to return back to jail. He saw enough of the inside to wake him up but not enough to embitter him. He and his family would likely tell you that he did more than 10 months of growing up in the last 10 months.

Our plea was non-negotiated, and when the judge pronounced sentence, he told my client that he likely would never have agreed to my recommendation had he not served a great deal of time already. The family’s decision regarding bond reflected well on them. Judges are often more willing to take a chance on a person when they know that the family can provide structure upon release. And their decision to leave the client in jail during the pretrial months reflected well on their ability to provide structure once this young man was out on probation.

When I became the lawyer 10 months ago, I advised my client not to seek a bond, and I told the family to try their best to resist when the asking got tough. And I had to remind them of these things a few times throughout the year. But when I made the strategic decision not to seek a bond a year ago, I imagined that things might come together like this by the time we resolved the case. The decision paid out.

Please don’t hear me to say that it is usually a good idea to leave a loved one in jail. Rather, I share this story with you to let you know that there may arise a case, from time to time, where bonding a person out is not the best thing for the client. All cases are, of course, different, and whether to make bond is one of those decisions best thought through with your lawyer. But here are some things to think about when it comes to deciding whether to post a loved one’s bond.

Are people counting on the loved one for support?

Obviously, if a client is the provider for a family, it is likely better for the client to fulfill his duties to those she loves. If a prolonged pre-trial incarceration will make others suffer or result in lost employment, then by all means incarceration for any length of time is not the best idea. But for a youthful defendant without such responsibilities, particularly if the defendant is on a road to increasing criminality, some extra days of pre-trial incarceration can help the client “get it” and may take him away from friends, from drugs and alcohol, and other opportunities to get in worse trouble.

Is the case beatable, or will a conviction inevitably mean probation?

If the case is defensible, is likely to be reduced, or will likely result in probation, then it makes little sense to prolong pre-trial incarceration. However, if the case is one of those that will be plead one day, if there is minimum incarceration involved, and if a judge will likely believe that the client should do some time eventually, it can make sense to remain in jail and not make a bond. There are a couple of harsh things about incarceration and how it works on the human psyche.

  • We can get accustomed to just about anything in short order. But it can be torture to dread something. Everytime I go to a swimming pool, I look like a big wuss. I hate jumping into water that feels the least bit cold. But once I’m in, I’m fine. The dread of the cold is much worse than the cold itself. Once a person is in jail, it sucks, but it’s a level of suckiness that can be tolerated for a few days. And as bad as it is to spend another day there, there is one thing worse — to leave there and think about coming back. That dread can lead to irrational decisions and disastrous no-win trials.
  • The devil you know. People generally prefer to do time in their home town over going through diagnostics and doing time in the prison system. So, doing time on the front end can be preferable. Of course, this advice is not intended as one size fits all. If you live in Mayberry where Aunt Bee is preparing biscuits for the inmates, you’d probably prefer to do your time there. If you just got arrested in Fulton County, then you may prefer to do your time on the back end of the sentence or in one of those places you see featured in the show Locked Up, Abroad.

Think about what your bargaining chips are

Defense counsel gets to bargain with two kinds of chips. First, you can bargain over likely outcomes of a hypothetical trial. Part of your job as defense counsel in a negotiation is to portray trial as a losing proposition for your opponents. Obviously, you do that through your giftedness with the English language, your ability to perceive weaknesses in your opponent’s case, and your ability to strengthen your own. The risker the bet trial becomes for you opponent, the more likely you are to work this all out with minimal damage.

The other bargaining chips consist in debating the seriousness of the conduct, the relative goodness of your client, and the number of people who can say that he will never do this sort of things again. When you are talking about things like this, you are really bargaining about what the case is worth. In a civil case, “worth” is measured in terms of dollars. In the criminal context, “worth” is measured in terms of punishment. And, it can be very powerful to tell a prosecutor or a judge that he’s been punished already. So, being able to take on a sentence pre-trial, may give you greater bargaining power when others try to demand that your client go to jail. There’s no better argument than “he’s already been there, and he never asked to come out until now.” In money parlance, a few months in a county jail can be a very good “investment” that minimizes your client’s net sentence.

Again, I am not claiming that most people should remain incarcerated pretrial. Rather, I want to suggest that the question of whether to make bond can sometimes be more nuanced than it might appear.