The front page story of today’s Atlanta Journal-Constitution accuses Georgia House Speaker David Ralston of using his position as speaker of the House to gain an advantage over the State in his criminal defense practice. An accompanying broadcast report cites “obscure law,” O.C.G.A. Section 17–8–2, as the evil tool that Speaker Ralston is using to hurt the rights of victims.

The statute give members of the General Assembly the right to a continuance or stay of any pending court case during “any regular or extraordinary session of the General Assembly and during the first three weeks following any recess or adjournment.” Another provision of that statute provides that “a continuance or stay shall also be granted for such other times as the member of the General Assembly or staff member certifies to the court that his or her presence elsewhere is required by his or her duties with the General Assembly.”

Johnny Edwards, the reporter who wrote the piece, managed to track down one of the clients, who admitted that he hired Ralston with continuances in mind, saying “[t]hat’s why I gave him 20,000 bucks.” A bit of commentary is in order here. I make no conclusion on whether Speaker Ralston is using his position as legislator to gain a tactical advantage over the State. Though the more likely scenario is that he’s just having trouble managing a law practice and being speaker of the house.

  • There was a time when most of the legislature was made up of attorneys. Legislative service was once something that young lawyers did for their community. Running for office was something akin to being in Rotary. It helped a young lawyer become known in the community. The legislature would do well to have more lawyers among its ranks. Lawyers are ideally suited to craft laws and are equipped to foresee unintended consequences of proposed laws. And there are far too few lawyers in the current legislature. The “obscure statute” allows lawyers to juggle a law practice and legislative service. And if there were no such statute, then it is likely that there would be even fewer lawyers in the legislature.
  • The article presumes that delays in cases hurt victims and help defendants. While that may well be the case some of the time, there is often nothing more terrible for the client and counsel than keeping a criminal file open for a long time. There is a reason why there is a constitutional right to a speedy trial. Perpetual jeopardy is very often agony. Also, critical defense witnesses can forget about facts and become unavailable over time. The article mentions nothing about the toll that time can take on a defense case. Defendants have a right to put up a case, too.
  • Speaker Ralston practices in a rural North Georgia area. It may well be that cases generally take quite a while to reach a resolution in a place like that where grand jury and trial terms are infrequent. The article does not compare how long it takes Ralston’s cases to resolve versus criminal cases overall. There was a missed opportunity in the research. I’d be interested to hear from the clerk of court or circuit public defender how long it takes, on average, for criminal cases to move from arrest to completion for defendants who are out on bond (I’ll assume that Ralston’s clients are on bond). Bonded clients are often a lower priority for trial than those in custody.
  • The article is very anecdotal. And there’s a bit of confirmation bias at play. For instance, where one of the victims in a case has trouble keeping her story straight, Edwards presumes that she has a poor memory as a result of the passage of time. However, it might actually be possible that Ralston’s client isn’t guilty and that the witness’s story isn’t true. One might actually be allowed to presume Ralston’s client to be innocent.

Again, I have no idea if Ralston is playing the rules to gain an advantage over the State. I’d like to see more facts. But, if we assume that he is, the solution is either for the Court to move his cases faster, or for the voters in his district to deliver a verdict through the ballot box. The problem does not lie with a sensible statute that allows lawyers to serve in the legislature.

In the most recent episode of This American Life, the show includes a discussion of the amendment on the ballot to reconstitute the JQC as a creature of the legislature and with the State Bar of Georgia taken out of the appointment process altogether. If you are undecided on this amendment, the segment is worth your time.

  • The episode begins with some background on how the JQC did its business with Richard Hyde as its chief investigator. He investigated complaints thoroughly. And when he was finished, he approached the subject of his investigation with his findings. As a case in point, the show details how he confronted Judge (and now co-sponsor of the JQC bill) Johnnie Caldwell with an incriminating tape to secure his swift resignation.
  • Then the show discusses the timeline for the bill (HR1113). The resolution seemed destined to fail at first. But late in the session, the speaker made it clear that either it would pass or no other legislation would.
  • Finally, a deal was cut for a democratic representative to cross party lines and vote for it. In exchange, the house voted to create a city (!) as a favor to the representative.
  • Part of the background was a long-standing grudge held by the speaker toward the State Bar of Georgia.

The story does give the other side. In particular, it discusses how the JQC treated two judges under investigation perhaps unfairly. But finally the story poses the question of whether such a radical overhaul was necessary to fix some of the procedural problems with the JQC.

The show ends with the reporter noting that this bill and the way it came about is not democracy at its finest but is likely how democracy works. Therein lies the problem. Voters are not likely to have a clue what the JQC is or what this amendment provides. So, passage is likely. I’ve told everybody I know. And when I tell the background, I see the lightbulb turn on.

But my microphone is only so loud. And the State Bar of Georgia is to this bill as Paul Ryan is to Donald Trump. The State Bar has compromised its integrity on this one, opting not to take stand on a bill that is clearly bad for judicial ethics and which removes its say on who the commissioners are.

If there is any hope in defeating this amendment, it will come with just telling the story to as many people as possible before they vote. I suppose that the people get the government we deserve.

It appears that the big news from the State Bar’s annual meeting is that the Bar will do nothing to encourage voters to oppose the referendum that will gut the Judicial Qualifications Commission. In the wake of the last-minute vote to gut the JQC, its chair, Lester Tate, resigned. Mr. Tate called upon the Bar to do everything in its power to see that the voters defeated the initiative. The Bar will do nothing. It won’t even encourage bar members to tell their friends about it. So, when faced with the decision in the ballot box, voters won’t even understand what the whole thing is about. And it will be worded in a way that begs for a yes vote.

The Bar, through its legislative representatives, has explained the decision not to oppose the matter:

  1. They don’t want to oppose the restructuring because they want to have some input on making JQC proceeding more public. Of course, judges appear to want the proceedings out in the open, also. So, it looks like the meetings are going to open up regardless of what the bar does.
  2. The Bar estimates that it would cost $5 million to oppose the initiative. I’ve not seen a breakdown of where these figures come from.

This sounds sketchy, but I’ll assume it’s all true. I’ve been both supportive of and critical of the JQC in the past. Overall, I thought that the JQC has made the bench a better place. There are fewer circuits today than when I started practicing that were hours away in distance and 50 years back in time. And I fear that the number of circuits like that will grow under the new regime.

Here’s a thought. Why can’t the State Bar of Georgia promulgate a set of standards of professional conduct for lawyers who function as judges? The rules already have a set of special entries for prosecutors. Indeed, why couldn’t the State Bar incorporate into the Standard of Professional Conduct the Judicial Canons of Ethics? Then the State Bar could discipline judges as the JQC did in its heyday of about five years ago. The Bar could bring JQC investigator Richard Hyde on staff. The Bar could even create a staff devoted to judicial/lawyer discipline. The cost of bringing the JQC function in-house would be substantially less than $5 million, and the Georgia bench could either make it into the 21st century or at least not revert very far into the 20th.

Just a thought.

This year, I am the new legislative chair of the Georgia Association of Criminal Defense Lawyers. A big part of that job involves evaluating bills before Georgia’s General Assembly and reporting on them to our membership and to our lobbyist. When I make those reports, I am also going to take what I am learning and discuss it here.

One of the most tragic moments I see in the average criminal calendar (and there is much from which to choose) is the forfeitures section. Generally, it comes at the end of the morning. The DA picks up some files and sounds for the forfeiture cases. At which point either nobody answers and the property or money is forfeited to the state by default. Or some unrepresented person stands up. Often, the person who stands is a mom or a dad whose son was arrested for drugs. And the person is the owner of the car. Generally, that person loses before he knows what hit him because he either didn’t file an answer or failed to follow some arcane technical procedure from within the forfeiture code.

HB 233 seeks to reform Georgia’s forfeiture statute and fix some of the things that are wrong with it. I don’t think I’ll ever get my wish to do away with forfeiture altogether. Georgia’s law enforcement will continue to have a license to steal. Under the new statute, the stealing is going to get a bit more fair and possibly much less corrupt.

This Bill is a monster. It’s 111 pages long. I’ll summarize a few points below. And you can check out some of the background. Politifact has noted that Georgia’s current forfeiture statute is among the worst in the country and the worst in the South. The Savannah Morning News has called civil forfeiture “Georgia’s Dirty Little Secret.” The article goes on to point out:

Georgia is one state where the property can be seized and held even if it does not belong to the perpetrator of the crime. If the criminal is driving the parent’s car, for example, or conducting drug deals in a home owned by someone else, that property can be seized. And the legitimate owner’s fight for its return can be lengthy and expensive. Meanwhile, the owner is deprived of the use.

What’s Good

Here are some of the main improvements in the new forfeiture bill by reference to line number.

  • lines 120 ff. I like that law enforcement has to make a reasonable effort to seek out the innocent owner of a vehicle. I’ve seen many moms and dads lose vehicles without ever getting served or otherwise getting notice of a pending forfeiture;
  • Lines 183 ff. The forfeiture lien is a less drastic alternative to seizure of real property.
  • Lines 238 ff. The option to sell a perishable or depreciating asset or an asset whose value may be greatly reduced over time is a much needed improvement. I’ve seen property owners prevail in forfeitures only to see the value of the property eaten up by impound fees.
  • Lines 390 ff. This may be the best improvement of all. If the answer is defective in some way, the State must file a motion asserting what the defect is. And the claimant can amend the answer. This corrects the biggest evil in the current statute. As it stands now, the forfeiture is confusing with a set of Byzantine procedures. It’s really a big game of “gotcha.” It’s a rare calendar that doesn’t feature some poor pro se forfeiture claimant who loses by default over some technical thing or another. This is a major fix to current law.
  • 407 ff. There is no right to discovery. However, upon good cause, the court con order that discovery be had. There’s obviously good and bad here. The good, is that a criminal defendant need not be placed in a position where he has to choose between his 5th amendment rights and defending the forfeiture. It’s bad in the sense that I’ve often used the discovery process in a forfeiture to get discovery for the criminal case. This would come in particularly handy where the forfeiture involved something of nominal value.
  • 668 ff. I like that the judge has some discretion over where the money goes. Forfeiture is less a “license to steal” under the proposed new regime than the old law.
  • 797 ff. I like the annual report feature. Forfeiture funds are less of a “slush fund” than under current law. And there’s way more accountability
  • 740 ff. We shall call this section of the Bill the “David McDade Memorial Passage.” This section will make it illegal to pay for staff with forfeiture funds. Much needed improvement

What’s Still Bad

There is still a good bit about forfeiture that is not very good.

  • The bill needs language that explicitly requires the attorney who brings a forfeiture be either an elected DA or an assistant DA working on salary. I’ve always found the hired gun / plaintiff’s lawyer on contingency system to be offensive. There is a small cottage industry of lawyers who set themselves up with local DAs on contingency arrangements. This bill doesn’t put them out of business.
  • I don’t think that the bill goes far enough to dis-incentivize the outright theft of private property. Ideally, the local law enforcement agency should not be allowed to keep what they take. This system would be less corrupt if the seized assets could all go to a centralized statewide pool of funds to be awarded at the discretion of a non-local board in the form of grants. As long as the seizing agency has the first claim on the property, there’s an incentive for corruption. I suppose that the sheriff’s and police chief’s lobby is too powerful to do anything about this.

The best news would be the elimination of forfeiture or for the local seizing agency to give what they take to a statewide pool. However, short of that, the new forfeiture bill makes many steps in a better direction.

 

Governor Deal has vetoed House Bill 837, legislation that would have limited disclosure about private probation companies from open records requests. The Peach Pundit provides exclusive coverage on the veto in an article describing all of yesterday’s vetoes and in a specific post addressing HB 837. Greg Bluestein has also covered the veto.

Why is this veto such a big deal? Many, if not most, state probationers who are serving misdemeanor sentences are supervised by private probation companies. Who are the folks most likely to end up on misdemeanor probation? Generally, that list would include persons convicted of possessing less than an ounce of marijuana, driving on a suspended license, DUI, theft, or family violence battery. But that list also includes the poor who get a speeding ticket or other low-level misdemeanor and who cannot afford to pay their fine on the day of court. These individuals are often put on probation until they pay off their fine. And this list includes people who were represented by the public defender (often a private law firm with a contract with the county to represent the indigent) who, upon conviction find that, poor or not, the lawyer wasn’t really free. When these defendants cannot afford to reimburse their public defender for his services (and the meter has been running the whole time) or pay the fine, the court’s “finance plan” includes being supervised on probation until these expenses are paid off. When the defendant needs a long time to pay off the debt to the State, time on probation increases dramatically. For instance, in a multi-count accusation, the defendant may take on consecutive 12-month sentences. For instance, defendants convicted of DUI were often stopped for speeding first. Such defendants are eligible for 24 months of probation. Continue Reading Governor Hands Private Probation Companies a Rare Legislative Loss