October 2017

I heard some great advice a few days ago in an unexpected place — a county jail. I was there for a bond hearing and preliminary hearing. And it was the typical scene. Inmates were everywhere. Law enforcement agents were lining the walls as they awaited their hearing. The DA was there with a huge box of the day’s files. All of this activity was confined to a large stale institutional room inside of the jail.

It was there that I ran into a lawyer I had not seen in a while. The lawyer was one of many that you will encounter in small Georgia towns who practices “door law,” or whatever case comes in the door. On that day, it happened to be a preliminary hearing in a criminal case. We spoke for a few minutes. I observed that he was seated in one of the few chairs available in the room. He told me that he had been there for a while. And then he started telling me a story.

He once had a conversation with another small town lawyer, whom he described as the “elder statesman” of the county. This lawyer was known for arriving, on the day of court, as soon as the door was opened. And he would occupy a familiar spot in the jury box where he would watch all who had business enter the courtroom. The elder statesman had once told my friend, “when people pay you to handle their case for them, they do not need for you to give them one moment of anxiety. When it is time for court, you should always be there before they arrive. That way, they never have to wonder where you are.”

I am seldom late for court. And many criminal court calendars are like the one I just described — such bedlam that the judge would probably not notice your tardiness. With that said,  I often arrive somewhere between ten minutes before a hearing or right on time. And, as I thought back, I recall that there have been times when I’ve gotten seated and received a text from my office with something along the lines of “Did you make contact with the Smith family? They were looking for you.” This text will have been sent about 30 minutes before court. Of course, I wasn’t late, but I arrived later than the client.

I am doing to heed the advice of a “door lawyer” passed down to him by an elder statesman whose name he doesn’t remember and try reaching the courthouse before my client the next time we have court.

I make no judgment here about whether the Worth County Sheriff is a good man, a good sheriff, or whether it was a good idea to lock down a high school and conduct a massive drug search of the student body without probable cause (he sounds like he has poor judgment). I write about whether he is guilty of obstruction for what he did to stop the GBI from interrogating his son. Based on what I read so far, I’d take his case to trial.

The Sheriff’s son was arrested for possession of marijuana with intent to distribute and criminal trespass. The young man, who was seventeen years old at the time, was being questioned at the Worth County Jail when the Sheriff and his wife (an employee of the Sheriff’s Department) burst into a room where the boy was being interrogated to advise him to invoke his right to remain silent. At this point, the GBI agents ceased the interview.

Under Georgia law,  “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” Yet, for a youthful suspect, the absence or presence of a parent is a factor for voluntariness. And the young man had a right to remain silent (I bet the agents read to the young man from a form that said he had a right to remain silent). If a lawyer had been present, a lawyer would likely have advised him to remain silent. Would an attorney, giving the young man the exact same advice, be guilty of obstruction? Or, had the sheriff told his son not to go to an interview, would he be guilty of obstruction? What is different about these facts?

Finally, the fact that the agents chose to cease the interview makes the whole thing an inchoate act. We really do not know whether the young man would have taken dad’s advice. It may well be that the interview would have run its course. I wonder if the attorney general will seriously charge the Sheriff with criminal attempt to obstruct an officer.

Also, does the presence at the Worth County Jail make the difference? Could GBI agents come to the sheriff’s home, enter the son’s room and interview him? If so, would the same interruption be obstruction?

It is not as if the Sheriff ran in and tackled the agents to stop the interview. Here, the sheriff came inside a room at his sheriff’s department and gave his son a solid piece of advice that would be perfectly legal for me to give him as an attorney. Indeed, it is my job to “obstruct” interrogations per the Fifth and Sixth Amendment to the United States Constitution. How is it a crime for the Sheriff to do the same thing?

I spend hours of time at least once a month traveling to various prisons around the State of Georgia. Most of these facilities are far away and involve travel deep down Interstate 16. Very little substantive progress is made on cases in these visits. They tend to be venting/counseling sessions. And, for an hour or two of client discussion, the lawyer is away from the office for a day. It is difficult to mix a prison visit with productivity in other areas. Many times, I have had things arise where I had to work as a mobile office from a Subway, Cracker Barrel, or Public Library out in the hinterlands. It all works quite well except that there is still the matter of the multi-hour drive home. Added to the time-consuming nature of doing the prison visit is the fact that you need to set up the visit in advance by faxing paperwork and getting on the phone. Contrast this process with seeing an inmate at a county jail, which is generally local and able to handle drop-in visits. Also, in a pre-trial setting, the inmate has substantive help to offer such as assistance in pre-trial investigations or witness preparation. So, as I made my way to South Georgia, I thought of ten things that the Georgia DOC could do to make their lives and our lives better.

  1. Provide Secure Attorney/Client Video Conferencing on the JPay Pad. All inmates are given a free tablet. The inmates then “owe the company store” for every email, music file, and other meaningful use of the pad. Emails with everyone are monitored. However, it would be fairly simple to maintain a database of counsel fo record and allow secure video-conferencing between the client and the attorney. JPay could easily charge me a steep premium, and I would pay it to avoid all the driving around.
  2. Provide Secure Email Communications with Counsel. Ditto, everything I said in 1, but add email to it.
  3. Provide Secure Phone Communication with Counsel. Ditto, everything I said in 1, but add phone communication to it.
  4. Provide Document File Sharing of Attorney Files. Oh, the fights I have had with clients over the transcript, the discovery, and a broad category of materials known as “the file.” I’m paperless, so the file exists in sometimes terabyte-sized data packets. I don’t feel good sending a metallic disc into the prison. I don’t love the idea of printing thousands of pages of material. And that paper file is just the thing to educate a potential snitch in the preparation of his fictitious story of a confession. Not to mention that the sharing of the transcript will lead to a series of jailhouse legal treatises to counsel that cite the 1978 edition of ALR and the 1965 edition of Am Jur. A secured electronic file sharing service where the client has his own password would facilitate the sharing of materials.
  5. Collaborative Tools. I would love some sort of Google Drive or Microsoft Track Changes system where the Client could embed notes in written documents rather than sharing lengthy hand-written letters.
  6. A Uniform System for the Use of iPads/Laptops. I don’t have files in paper form. And that’s fine for half of the facilities I visit. They allow me to bring may electronic materials inside. However, there is no uniform policy. And many places do not allow me to bring in such materials. There should be a single standard. And the DOC should realize that the state of practice is such that laptops are a part of practice. Indeed, the lawyers who visit are working on an appeal or habeas, which are both writing-based endeavors.
  7. A Pre-Screening Process Such as the one that the TSA Uses. Alas, it has already been done. It is called Bar Fitness. We went through it before we took the bar.
  8. A Streamlined Way to Set Up a Visit. The current system in a mish-mash that inevitably involves blowing the dust off of a fax machine and sending down a copy of my bar card and driver’s license. There should be a centralized electronic place to request a prison visit where much of the necessary information is pre-populated with the information from item seven. You should receive an email confirmation of the approval of the visit.
  9. A Designated Attorney Conference Area in Each Facility. Oh, the number of times I’ve waited around for someone to find an office or set up a card table in a day room. If each facility had a designated spot, things would move faster.
  10. Delay of IAC claims Until Habeas With a Magistrate Screening of Habeas Claims Before Habeas Hearings. The Feds have this process totally figured out. And if we adopted it, the direct appeal would be a place for pure legal issues. And habeas would be the place to litigate IAC. But there would be a filtering process ethat level. The dockets would immediately begin to move efficiently.

Each step wouldn’t just make life better for the appeals lawyer. They would help the DOC as well. And I would spend less non-productive time in my car driving to the nether-areas of the state so that folks can vent their frustrations.

A few weeks ago, I assisted on a multi-day motion for new trial hearing in Barrow County, Georgia. My co-counsel used a PowerPoint to present his opening statement. I had not thought of using a PowerPoint in a bench proceeding, but I have frequently used them in jury trials. My colleague did such a great job using the technology to supplement his persuasive style, that I decided to use a PowerPoint in mine as well. I want to talk a little bit about why I did it and what I learned.

  • It is probably not for every case or every situation. What my case last week and the case in Barrow had in common were complex facts that could be simplified and packaged up in a persuasive package with graphics. In both cases, for instance, the timeline was critical to the case. And It was helpful to put some snippets from the pleadings and relevant statutes up for the judge to see while we spoke.
  • It is important to know your courtroom. I made the false assumption that the courthouse, an older building, did not have the technology built in for a presentation. It turned out that I was wrong. I posted on the local bar association’s Facebook and was pleasantly surprised to learn that the courtroom was equipped with a “smart tv.”

I made the sound decision to stick with my original game plan where it comes to courtroom technology. Allow plenty of time to test everything out, and leave ample time to practice. One of the worst things that can happen in court is that you have a technology problem right at the beginning of a hearing when all eyes are on you. I came an hour and a half early. And it was a good thing. The Smart TV did not have a port for VGA input. My only option was HDMI. But neither my computer nor tablet had a computer with HDMI port. And I did not have the HDMI adapter. A colleague from the courthouse, however, did have a laptop and was kind enough to assist. So, we hooked everything up and put the PowerPoint file on his laptop. And I practiced going all the way from the turn on of the computer to the beginning of the presentation 2–3 times before I left the courtroom to grab a quick lunch.

When it was “go time,” everything worked. But I cannot imagine how horrible it would have all been if I had shown up with my laptop and said, at the beginning of the hearing, “where do I plug this in?”

The other thing was that I was prepared to go “old school” had everything failed. However, everything went without a hitch, and I think that the PowerPoint was a big help.

I have now written a thank you note to the helpful attorney. And I have ordered an HDMI adapter for my laptop and tablet. And all is now well.

Today, I cut a weekend beach trip short to come to Macon to attend a one-day meeting and seminar for a group of Georgia DUI lawyers. My family returned home later, but I traveled up I–16 to a farm in Macon. Instead of the typical hotel ballroom environment, we met at a farm cabin on some property owned by a middle-Georgia personal injury lawyer. Chief among the lessons learned today was that I should be doing personal injury. Beyond that, I picked up a few valuable tips on regarding the inner workings of the Georgia Court of Appeals.

One of the day’s speakers was Hon. Brian M. Rickman of the Georgia Court of Appeals. Judge Rickman is relatively new to the Court, and this was my first opportunity to meet him and hear him speak. While the majority of what he shared comported with what I had heard from other judges at CLEs over the years, there were a couple of points that were new to me. I will focus on those.

  • The “Younger Judges” are doing most of their work electronically. Judge Rickman did not list out which judges he considered being among the youth of the court, but I have a fairly good idea of who they are. Given that many of the judges work at least a day or more from home, most review briefs and the record electronically on their computer. But here was the surprise. A good bit of the court’s work is done on iPad and even smartphones. For example, the judges receive an alert whenever a lawyer files a motion for extension or a request for oral argument. This alert pushes out the judge electronically, and the pleading can be read and approved on a phone or tablet. So, judges can handle some of the motions caseloads remotely. And most records and briefs are available in electronic form from anywhere. I googled the name of the software system I thought he cited, but I could not find any links to share.
  • Judge Rickman welcomes graphics and embeds of evidence (such as photographs and charts) in the briefs. Presumably, the judges who do most of their work in electronic form would see color exhibits and graphics in color (I am not sure if the judges who work in paper print out the briefs in color). If you file briefs with color graphics, you will likely stand out from your opponent and from most of the other lawyers.
  • There is a side benefit to requesting oral argument. Regardless of whether oral argument is granted, the request is an opportunity to provide your panel with a condensed version of your argument. For such a busy court, any opportunity to request that the court spend more time with your case — even if that time is spent reviewing a request for oral argument — is a chance to distinguish it from the mass of cases taking the court’s attention. Other judges have made this point before. What I didn’t know was that the judge gets a notification electronically when you file a request for oral argument. And the judge may review that request from a smartphone.

As I left the massive farm and pondered if it is too late for me to do personal injury, I also walked away with further insight into the Court of Appeals from one of its newest judges.

A few days ago, I was preparing for cross-examination. The event never happened because the  hearing was terminated on a technical point before the other side could put on any witnesses. But court preparation is never a waste. All the research you do for it keeps until later. Here are a few things I learned about refreshing recollection as an alternative to putting up substantive impeaching evidence.

I anticipated crossing the adverse party in what would have been a pivotal moment in the trial. The witness had previously given a recorded interview with two law-enforcement agents. I knew that the witness would contradict the previous statement in a significant way (because the relief she sought depended upon an alternate version). And there was great impeachment material to be found on this audio recording. However, it was doubtful that I would be able to have the agents produced for this hearing. So, I had to prepare to use the recordings without the witnesses who recorded the interview. And my witness had no incentive to cooperate with any effort to authenticate the recording.

In addition, the witness had sent some texts to my client that I wanted to use. had the cell phone company’s records of these texts that my client had downloaded from the cell phone provider’s website. I also had some texts that I wanted to use that law-enforcement had extracted from her phone  But, again, we did not necessarily want to pay to bring in subpoena compliance folks from the cell phone provider due to cost concerns

Refreshing Recollection to The Rescue

Here is how I prepared. First, I made a detailed and indexed digest of the recording with minute and seconds noted for all the things I would need to use. Then I practiced with the audio file on the computer until I could reach any spot instantly. I also had a transcript prepared of the entire interview.

I called a friend of mine who teaches trial advocacy and who is an excellent trial lawyer. He confirmed that I could get where I needed to go by refreshing recollection. He gave me some helpful tips to plan this cross-examination. First, he told me to preface each question about the statements using the phrase “do you recall…” The use of the word “recall,” put us in a memory framework.

The second piece was to build up the interviews themselves. In fact, in planning the cross-examination, I built several chapters up to point the witness to that time, place, and circumstances of the interview. I wanted to direct the witnesses attention to the fact that the witness knew that the interview was being recorded. And I wanted to establish, in the witnesse’s own words, that the interview was important in its nature and scope.

Rule 612 and Available Materials

Some judges mistakenly believe that a witness can only have recollection refreshed with a document the witness prepared. The reality is that a witness’s recollection can be refreshed with anything. “As long as the witness is willing to swear from his memory as refreshed, his memory may be refreshed from any kind of stimulus, ‘a song, or a face, or a newspaper item.’” Bianchi v. State, 327 Ga. App. 440 (2014). If you use a written document, then there are a few other things to keep in mind — you need to make the writing available for opposing counsel to review under Rule 612. When it came down to time to impeach, I would simply have said “would it refresh your recollection of the interview if I showed you a transcript of it.” Of course many objections could come at this point. The adverse lawyer could question the authenticity of the transcript. In which case, my response would have been that I am just showing the transcript to see if it refreshes her recollection. I could then give the judge and the witness the option of my playing the interview itself in the specific portion that is relevant to refresh recollection.

Over time, the witness looks bad by having her recollection refreshed. The fear is that the witness will hear herself on the recording and pretend her recollection is not refreshed. At this point, you probably win because the witness loses all credibility.

Setting the Stage

The other piece involved an early arrival in court. I came to court two hours early to use the audio equipment and have everything ready to go. Had it been necessary use the recording, I wanted to move to the computer quickly and I wanted the audio to be sufficiently clear for tn judge to hear it.

Again, the hearing ended before we could hear evidence. But all the work I did will be helpful for a future Court date

Last night, I attended the Griffin Historical Society’s “Drink in History” event at the old Griffin Jail, featuring the fine products of the Jailhouse Brewery. I had spent my entire afternoon at the new Spalding County Courthouse, and this event was in a building that was once the old Spalding County Courthouse, from approximately 1860 unit approximately 1914. In 1914, the county converted the building into a county jail. The building functioned as the jail until 1984, when the Sheriff’s department opened another facility across town. The whole facility was open for a tour, including all the creep showers, the two solitary confinement cells, the women’s unit (with six beds), and the gallows. On the third floor, there was a trapdoor. You could look up to see the eyelet hook for the rope. And the lever for the trapdoor was there as well. I was told that there is no record of the gallows ever being used, as the public preferred outdoor hangings in the field out in front of the old courthouse.
I had forgotten that there was a time when the counties did not outsource their executions to the Georgia Department of Corrections. At one time, hangings were a local spectacle. Standing on the trapdoor (even with the device cemented over) gives one a queasy feeling. Also, this was the first time I have visited a jail in a while where I did not have the overwhelming feeling that they were going to find my name on the computer system and attempt to keep me. It is a recurring nightmare that many in our profession have.

One of the attendees recalls visiting clients in that old facility. And he
said that it looked pretty much the same now as it did then — peeling paint and all. He says that there were no attorney booths. You just pulled your chair up to a cell and had a talk. Otherwise, the place had a familiar feel to it. The more things change the more they stay the same. I just wish that all jail visits included jailhouse beer.

There has been much talk in the media about Olevik v. State. My algebra teacher long ago would make me “show my work” on tests and sometimes at the chalkboard. I’ve linked to the opinion where you can see where the Supreme Court has shown its work in 49 pages of legal writing.  But I’ll highlight a few key points.

The holding in Olevik is that the Georgia State Constitution’s protections against self-incrimination apply to acts of the accused that generate incriminating evidence as well as to statements made that are incriminating — and providing deep lung air is an incriminating act as defined by the Georgia Constitution. Under Article 1, Section 1, Paragraph VI of the Georgia Constitution, “no person shall be compelled to give testimony tending in any manner to be self-incriminating.” Note, the Georgia Supreme Court has not touched upon the Fifth Amendment of the United States Constitution. And the Georgia Supreme Court has overturned a line of cases going back to a case called Klink (aptly named).

The Court makes it clear that some acts are testimonial and are essentially the same as words when it comes to self-incrimination. Some examples from the case:

Self Incriminating Acts

  • Forcing a Defendant to put his feet on footprints located near a crime scene;
  • Requiring a Defendant to stand up at his trial so that the witness could verity that the defendant’s leg had been amputated in a way that corresponded to tracks left at a crime scene;
  • Forcing a driver to drive his truck onto scales to see if his rig is overweight.
  • Forcing a suspect to provide a handwriting sample.

Not Self-Incriminating Acts

  • Requiring the accused to be present so that law enforcement an undress him to remove bloodstained clothes;
  • Requiring the accused to stand in place to be photographed;
  • Requiring the accused to provide a DNA sample;
  • Taking an impression of the teeth of the accused;
  • Requiring the accused to undergo surgery for the removal of a bullet.

Blowing hard into a breath machine is a self-incriminating act because the defendant has to do some work to produce air from deep in his lungs to produce a sample. If you’ve ever taken one of these, either at a jail or at some booth at a beer festival where a DUI lawyer was a sponsor, you will know what I mean. If scientists ever perfect a technology that will allow police to extract fog from a mirror to test for blood alcohol, then future drunk drivers will be in big trouble. For now though, the method of extraction is an incriminating act.

What Does it All Mean?

It all means nothing to Mr. Olevik, who lost his appeal anyway. Future defendants, however, can testify at a motion to suppress hearing and say “when I heard what the police officer read that card, I felt like he was forcing me to give him a breath sample.” And, if the trier of fact finds that the statement is truthful, then the evidence of the breath test is inadmissible. However, if the police extract a blood sample, then there is no self-incriminating act. And if the finder of fact finds that a suspect voluntarily gave a breath sample, then there was no self-incriminating act. However, it is very likely that when a suspect refuses to provide a breath sample then the State will not be allowed to comment on such refusal at trial. A thornier question will be whether the State can comment upon the refusal to take a blood test.

And there, in a nutshell, is Olevik. By the way, this is not a Fifth Amendment case. It is only good in Georgia. Because it is an interpretation of the Georgia Constitution.


I cut my teeth in law school on Terrance McCarthy’s cross-examination methods. During my 2L year, I recall preparing for a national mock trial competition. During our first practice of the year, our coach popped in a cassette (yes, a cassette.It was the year 2000) of Terry giving a talk in Las Vegas to a NACDL group. I thought the guy on the tape was about the coolest dude I’d ever heard. In a booming Irish/mid-western accent and in between references to getting drunk and a set of the most politically-incorrect jokes you can imagine was a blueprint for great cross-examination that I have taken with me to this day. When we advanced to the final round, who was on the bench in Chicago but the man himself, Terry McCarthy. And I got to do some Terry McCarthy stuff in front of Terry McCarthy. It was the courtroom equivalent of my son having LeBron James as a referee in a little league basketball game. I take the lessons from that cassette with me to this day. I’m sure that many of my clients would be in prison somewhere but for the lessons from Terry that I have retained.

And now I combine my McCarthy stuff with what I learn from Posner and Dodd on cross-examination. The Pozner and Dodd book on cross-examination is like the Bible. I have tried to read both from cover to cover, and it has never quite worked out. But both books work well for regular study, particularly as life events dictate that you dive into particular things. Both are canonical works. Both can seem unwieldy at times. Posner and Dodd have worked out a method for just about everything a lawyer might encounter on cross examination. For instance, there is an entire chapter dedicated to “The Crying Witness.” (Preview:  there is much in there about using silence as a control technique.) But more to the big point from today’s dive into P&D. And that point is to forget you ever knew Matlock, Perry Mason, or Jack McCoy — fictional characters who all clean somebody’s clock on cross in the last ten minutes of a tv show.

No matter what method you use for cross, they all have one thing in common. All good cross-examination techniques emphasize planning. And all the cross-examination gurus would tell you to forget that you ever saw a tv lawyer doing a cross-examination. Don’t go for drama. Don’t go for the gotcha. A spectacular cross-examination might seem utterly un-dramatic at the time. Good crosses are planned crosses:

Many lawyers believe that it is possible to perform good cross-examination without a script. This is undoubtably true. It is also possible for a visitor to find her way in a city without a map, but it would be quicker and safer if she had one. It would be easier if she had studied the map and outlined a route in advance. … The lawyer works from a script in cross-examination, so she can avoid the “Oh no”! syndrome. [where cross-examination has been completed and] the lawyer returns to the counsel table where she looks down at her list of things she has to cover and sees one or more things she forgot completely to address. The lawyer says to herself, “Oh no!” (or worse).

Walk into any courtroom on any hearing or trial day and you are much likely to encounter a lawyer attempting to be Perry Mason than trying to be Terrance McCarthy, Larry Posner, or Roger Dodd. From time to time the former will get lucky. But more often than not, Matlock, Perry Mason, and Jack McCoy techniques only work where a team of writers have paid a tv jury for their verdict. The rest of us are better off being methodical planners. And with that, I’m off to continue planning a cross-examination for later this week.

At the beginning of the summer, I signed up for a marathon in Chattanooga. And I spent most of June through August training for it. At about the halfway point in my training (mid-August), school started back. Then I had a fairly slammed schedule of deadlines and work-related things. As a result, I began missing training runs. In the past, I would have moved an event like this over to the loss column. Instead, I reached out to the event organizers and asked them to move me over to the half marathon. So, Saturday morning, I took my older two children, and we headed up to Chattanooga. We had a blast at the expo, which included meeting Lazarus, the director of the famous Barkley Marathons. We also met some friends of ours who were running in the event. We had a great dinner Saturday and were up Sunday.

At about 7:00 yesterday morning, I saw my friend off on the full marathon. And at about 7:15, I was off on my half marathon adventure. This journey took me over the Tennessee River 4 times, in some of the most beautiful scenery you can hope for in a running event. Along the way, I met a bunch of great people. And though it wasn’t the full marathon and it was not my best time, I felt a sense of accomplishment when I crossed the finish line. And even better, I was at the finish line to cheer on some friends when they finished the half marathon and full marathon. I’m already looking down the calendar at some events on Thanksgiving Day.

Is there a practice lesson from this? I think it’s this. Even when things do not work out as perfectly as you planned them out in your mind, you can make changes and still achieve a perfect moment. Also, it is important to not let some expectation you have for the future get in the way of making forward progress. I could have stayed home this weekend. Instead, I had one of the best weekends of my life, had two great meals with friends, took in some Tennessee scenery, and had some great conversations with my children. Would it be bad to say that I’m looking forward to falling short of some more big plans in the future?