December 2016

Georgia superior court judges have pursued some polarizing changes to the way they are regulated. Now, they want to impose strict restrictions on the public’ ability to record what happens in open court. On January 17, 2017, they will begin considering a new superior court rule that will give Georgia judges unprecedented control over their courtrooms. I have never been a superior court judge and don’t feel qualified to know the ins and outs. Judges have done a great job of getting their way with the legislature, and they have put in a sustained effort to clamp down on attempts to record what they do in the courtroom. So, it may not matter what critics or the public think.

Judges say that their position is credible because they like to have power over the people who come before them, whether parties, their lawyers, jurors, reporters, or spectators who want to come in and watch what happens. And judges have the ear of powerful legislatures, as a recent episode of This American Life demonstrates. Georgia jurists did not like the idea of an ethics committee telling them how to run their courtroom. So, they convinced some friends in the legislature to put the ethics committee under the legislature’s control.

Now, they are pushing new revisions to rule 22. This rule would give judges the power to hold in contempt a spectator in a courtroom who turns on a recording device (for instance, just about any smartphone). Even if the recording process is not disruptive, a spectator who records a judge, if the rule is enacted, could be summarily jailed:

(3) Spectators: All spectators while in a courtroom must turn the power off to any recording device while present in a courtroom. No use of any recording device is permitted unless authorized by the Court.

There are all sorts of arcane rules for spectators or attorneys to ask to use recording devices in the courtroom. And judges have great discretion to say “no,” upon such vague ideas that the act of recording would be “undignified.”

Critics claim that the rule is essentially a power grab. They are suspicious that judges are going to such lengths to shut down efforts to record what happens in their courtrooms. They reason that if judge have nothing to hide, why would they care if proceedings are recorded? These critics believe that there are some fairly ridiculous problems within the rule. For instance, spectators absolutely must power off recording devices in the courtroom. And they can only record upon proper request if they somehow learn how to make a proper request.

Critics think that this new rule is a thinly veiled attempt to prevent judges from getting caught doing things they should not do, such as the Cobb County Judge who was caught engaging in conversation with prosecutors about criminal cases while the defendants’ lawyers were not present. In fact, the superior court is harshest on attempts to record in a courtroom while court is not in session — exactly the setting for the Cobb County judge’s misdeed.

The rule is friendlier to parties or attorneys who want to record. But critics of the proposed rule would point out that parties and attorneys are least likely to rock the boat by asking to do so. They want to stay in the judge’s good graces because the judge will either decide the case, will decide what evidence the jury gets to hear, or will decide how long somebody goes off to prison. A spectator, on the other hand, has no dog in the fight. A spectator is not out to impress the judge and could care less if the judge is angry at her. And, wouldn’t you know it, spectators would be most restricted from recording if the rules passes.

Judges just think that that the critics of the rule are trying to interfere with their courtrooms. They’re the judge, so we should trust them with maximum control.

Personally, because I have to practice in front of these judges, I endorse the proposed rule change. But I note that many people are appalled by it. And many critics find it ironic that judges attacked the JQC because they claim  it sanctioned judges in a Star Chamber environment. But for the people who appear in front of those judges, the Star Chamber is just fine, thank you very much.

In today’s New York Times, former Chief Justice Norman Fletcher has written an editorial denouncing the upcoming execution of the Georgia inmate sentenced to death in 1990. Chief Justice Fletcher is particularly concerned about the fact that the inmate lost out on the possible federal review of this case. The inmate, while representing himself, missed the deadline for federal habeas corpus by eight days. Georgia is one of the states that fails to recognize the right to counsel after the direct appeal, even on sentences of death.

For Chief Justice Fletcher, the tragedy is even worse because there were potential issues of merit in the habeas corpus.

Justice Fletcher sheds light on not only a troubling issue in death penalty cases in Georgia. He also discusses the fact that there is no right to counsel at the habeas corpus stage in spite of the fact that habeas corpus is a complex process that is confusing even to attorneys. In Georgia, the defendant must raise ineffective assistance of counsel at the motion for new trial phase if new counsel is appointed to the case or if the defendant is pro se on his direct appeal. In the event that the same lawyer who handles the appeal also handled the trial, then ineffective assistance of counsel is relegated to the habeas corpus stage, where the inmate does not have the right to counsel.

Georgia should have a regime in place and allows a person under the sentence of death to have the right to counsel at every stage of the proceedings. And there should be a process where a court could appoint counsel on potentially meritorious habeas corpus cases.. The judge could act as a clearinghouse for those cases where an appointed attorney could be of assistance (similar to what exists in the federal system). Right now, where inmates cannot afford counsel, habeas corpus petitioners either must go it alone or rely upon a volunteer lawyer. When no volunteer lawyer is available, then a person with potentially meritorious issues could be literally killed for want of a lawyer.

As the legislature considers criminal justice reform, the right to counsel in at least some habeas cases is worth a look.

Yesterday, I spoke at a continuing legal education conference for the Georgia Association of Criminal Defense Lawyers. The topic was searches of cell phones incident to arrest.  I also discussed the  Application of the fifth amendment protection against self-incrimination when a suspect is compelled to provide a passcode to unlock a cell phone or to decrypt hard drive data.

Please contact me if you have questions or comments. Or you may comment here.