March 2015

Jonathan McIntosh Flickr CC
Jonathan McIntosh Flickr CC

In a per curium opinion (pdf), the United States Supreme Court has held that the placement of a tracking device on a person is a search within the meaning of the Fourth Amendment, even if the person is compelled for life to wear the device as part of a sentence. As summarized by Robinson Meyer in The Atlantic Monthly, “[i]f the government puts a GPS tracker on you, your car, or any of your personal effects, it counts as a search—and is therefore protected by the Fourth Amendment.” This opinion could spell changes for Georgia’s regime of tracking persons in Georgia who have been designated as Sexually Dangerous Predators.

In Grady v. North Carolina, the Petitioner challenged a court order requiring him to wear a GPS tracking device for life as a violations of his right to be free from unreasonable search and seizure. The North Carolina courts rejected his claim, reasoning that the placement t of a tracking device was not a search. The United States Supreme Court’s per curium opinion held that the placement of a tracking device on the person of Mr. Grady was a search as defined by the Fourth Amendment. But the Court remanded the case for a determination of whether the search was an unreasonable one. This case could make its way back to the Supreme Court eventually.

What is the possible consequence for Georgia? Consider first the comparison between the way GPS tracking for sex offenders works in in North Carolina versus Georgia.

  • Under North Carolina law, a person convicted as a recidivist sex offender goes before a judge where, after a hearing, the decision may be made to place a lifetime tracking device on the person. In Georgia, all sex offenders with convictions, a move to Georgia, or a release from prison after 2006, will be reviewed by Georgia’s Sexual Offender Registration Review Board. The offender never has the right to a hearing.
  • The SORRB can choose to classify even a first-time offender as a Sexually Dangerous Predator and force the offender to wear a GPS monitor for life. And the SORRB can, and often does, rely upon police reports and other hearsay materials in reaching its conclusion. In North Carolina, GPS tracking for sex offenders does not become an issue until there is recidivist treatment.
  • In Georgia, there is an opportunity for judicial review in a Superior Court. However, the judge who considers the case may deny the petitioner the right to a hearing. In that case, the judge who decides whether to make a person wear an ankle monitor for life relies upon the hearsay that the SORRB used as well as the hearsay analysis that the SORRB prepared and sent over to the court. It will be interesting to see how those orders stand up in the wake of Grady.

For Georgia lawyers going forward,  a claim under Grady can be made on SDP appeals. And for folks who have already passed that point, there is room for a HABEAS challenge raising Fourth amendment grounds. As the process is set up in Georgia, with little meaningful judicial scrutiny, it would be hard for the government to demonstrate that the decision to violate a person’s Fourth Amendment rights was reasonable. After all, even for something as routine as a search warrant, a magistrate hears or considers sworn testimony. Not so in many SORRB SDP cases. For more on that process, consider my previous post.

Flickr Creative Commons  Dags's Bricks
Flickr Creative Commons
Dags’s Bricks

Jarvis Taylor was on trial for committing an armed robbery with an air gun. Because his prior criminal history included theft by receiving stolen property, possession of a tool for the commission of a crime, and aggravated assault for his actions during a jail riot, a conviction for the armed robbery would have meant a mandatory sentence of life without the possibility of parole.

Atlanta Judge Wendy Shoob instructed the jury (pdf) that a conviction for the offense would bring a mandatory life sentence without the possibility of parole. The jury ultimately convicted of the lesser included offense of robbery by intimidation. But not before the Fulton County District Attorney moved to recuse the judge from the case and not before the judge refused to grant the State a certificate of immediate review.

When I first read this story in the Fulton Daily Report, my reaction was that the judge made a gutsy and principled move but one with little basis in the law. I held this view until I read the Order.  I walked away from the order with the belief that the order is on a firm legal footing. Allow me to provide a brief overview:

  • Under the Georgia Constitution, “in criminal cases, the defendant shall have a public and speedy trial by jury; and the jury shall be the judges of the law and the facts.” Here, the State objected to an instruction to the jury about sentencing, arguing that the jury is responsible for guilt and innocence and the judge is responsible for sentencing. But, not so fast, said Judge Shoob. With mandatory minimum sentencing, the judge has no real power over the sentence. The sentence and the verdict are inextricably linked to one another. Hence, the jury ought to know the consequence of the verdict.
  • There is a historical basis for the power of the jury as a check against an overreaching government. Here, Judge Shoob actually cites The Federalist Papers to support a position that the jury has a tradition function to maintain free government. That function includes the right to nullify.
  • Recent United States Supreme Court decisions have stressed the importance of returning the jury “to appropriate constitutional powers and essential role within the Constitution’s system of checks and balances. Here she goes into recent Sentencing Guidelines Cases that have returned to the jury certain powers with respect to sentencing.
  • Finally, she reasons that the jury has the right to know about mandatory sentencing. First, “where the Court is bound by the statutory term of imprisonment, the jury essentially determines both the verdict and the sentence.” This last point sound a good bit like her first point. But, here, she references cases from around the country and she weaves two previous point together. “When the prosecution does not use its power carefully and equitably, and the judge is removed form sentencing decisions, the only thing that stands between the individual and the awesome power of the State is the jury system.”

A couple of points. I do not think I’ve ever received an order from a Georgia State or Superior Court judge that quotes The Federalist Papers. Also, the point that under a mandatory minimum regime, the verdict determines the sentence is a powerful and innovative one.

I will leave for another post the idea of prosecutors who use recusal motions when a judge does something that they do not like. It is trend I have noticed around the State lately.

Pro tip: weave Judge Shoob’s Order into motion or request to charge in your next case with a mandatory minimum.

Moby's Photo - Flickr Creative Commons
Moby’s Photo – Flickr Creative Commons

It’s a scene I have witnessed hundreds, if not thousands, of times. At a first appearance hearing, a magistrate judge calls the calendar as twenty or so inmates in orange or green jumpsuits are brought out chained to one another. The look on their faces is one of shock or of last night’s drugs or alcohol. The judge reads out a list of basic rights and criminal charges. The group is then taken back to a holding cell. Some will get bond immediately. Others will remain in jail another week or more for a lawyer to be assigned or retained. Generally, if I am on the case at the first appearance stage, I am the only retained lawyer in the room. Most lawyers are not retained yet at this stage. The arrest came unexpectedly and there wasn’t time to get the lawyer arranged yet. If I’m retained before first appearance it is because I was retained when my client learned that he was the target of a criminal investigation or because I was reached late the afternoon or night before. Invariably, I will have some ducks in a row, which means that I will likely get a better bond than the folks in jumpsuits who stand before the judge alone trying to fend for themselves. Those who don’t get a bond or for whom bond is set in an unattainable amount may be stuck with what happens to them. Weeks down the road, the Superior Court judge will be reluctant to second guess what the earlier judge did, even if the earlier judge didn’t have the benefit of a thorough presentation.

In a post titled “Bail me out, bro,” A Public Defender discusses a report from The Constitution Project. The findings confirm what I have witnessed from an anecdotal perspective my entire career. As reported by A Public Defender, “very few people have the benefit of counsel, which leads to high bail amounts, greater incarceration and increased numbers of people pleading guilty simply to get out of jail.”

Though not discussed in the blog post, the problems likely do not end there. Often, the defendant who takes a plea just to get out of jail sets himself up for failure by taking on sentencing conditions that he is not prepared to meet (for instance, the addict who signs up for random urine tests or the homeless person who now must register as a sex offender).

Bond hearings are tricky and can be complicated. The lawyer who appears for a bond hearing needs to know things like the amount of equity in a home (and we are coming out of a period of history where equity is at an all time low), the number of character witnesses who can vouch for the defendant, or enough about the defendant’s background to demonstrate that she has sufficient ties to the community not to pose a significant flight risk. Sometimes the smart thing to do is advise the client to remain locked up a few more days so that a defense can be presented at the bond hearing. On complicated or serious cases, a bond hearing can be every bit as tricky as a suppression hearing or pretrial motion in limine.

Bond has a trickle-down effect to other portions of the case.

  • It is easier to defend a client on bond. The client can come to the office to review discovery without the risk of a potential snitch reading it in prison.
  • Trial preparation is smoother with a bonded client. The client is free to come to the office to meet with counsel and prepare for testimony.
  • A client on bond can get mental health or addiction treatment in a way that a client in jail cannot.
  • A client on bond can maintain contact with family and can continue to work, while an incarcerated client may have his life literally fall apart while in jail awaiting trial.

Access to counsel at a bond hearing is every bit as important as having a lawyer at trial and at sentencing. The fact that representation by counsel at bond is an exception rather than the rule is disturbing. When a client loses a bond hearing, he is likely to lose other critical components of his case as the matter unfolds.

I just read at Bitter Lawyer and The Lawyerist about a show cause order issued by the United States Supreme Court for the submission of a certiorari petition that was hard to read and which departed significantly from the Supreme Court rules. What happened? The lawyer allowed the client to draft the certiorari petition.

I don’t know the back story, but I can imagine what it is. I don’t assume the lawyer was being lazy. Rather, I imagine that the lawyer was “beaten down” and just gave up. Appellate clients can have strong opinions about what should be included in the brief, what arguments should be raised, and what facts should be emphasized. These views are often reinforced through limitless time with little else to do, the influence of fellow inmates with optimistic views of various statutes and precedent, and access to out of date legal materials. Imagine what it would be like for a conscious patient to have access to a medical library during a surgical procedure and a voice to advise on procedural components as the case unfolds. Or imagine if a passenger in row 15C of a plane had a microphone connected to the pilot’s headset. That’s what criminal appellate practice can be like.

The United States Supreme Court is clear how it should work. The lawyer makes decisions on which issues to raise on appeal, the order in which they should be raised, and even which potentially meritorious issue to leave out. The client has the right to be consulted and to have the client’s input considered. It sounds simple on paper, but it plays out in complicated ways as the appeal progresses and can be a true sense of frustration for the lawyer and likely for the client as well.

  • If the lawyer was retained, rather than appointed, the client is technically the customer. In that circumstance, it can be easy for the client to imagine the lawyer as a scribe with a law degree, whose job it is to write down, in lawyerly prose and with a lawyer’s signature the arguments the client wants to raise.
  • If the lawyer was appointed, the client and lawyer may be stuck on this boat together. The judge will be hesitant to support the client’s inclination to represent himself and will not want to appoint a different lawyer. The client will often try to bait the judge into allowing the lawyer off the case to create an appellate issue.
  • Often, it can be tempting to simply paste the client’s language into the brief as a way of buckling the pressure.

This problem is even more difficult in Georgia. The issue you opt to leave out of your brief can come back to haunt you in a habeas petition. However, if you fold in the wake of pressure to include the client’s pet issues, you are open to attack for failing to exercise professional judgment: “You listened to me. Therefore, you were ineffective.”

The lesson from the recent development in the United States Supreme Court is that you cannot abdicate your responsibility as the appellate lawyer. As tempting as it might get to say, “Okay, since you don’t like my ideas, I’ll just put your stuff in the brief.” If you do, you will be held responsible.