A couple of weeks ago, I had a critical witness who would be unavailable to attend a hearing. The Court insisted on a particular date, and the expert had travel plans and non-refundable plane tickets. We decided that we would take his testimony by Skype. Moments after making the decision to Skype the witness, I asked myself “How do you take a witness’s testimony by Skype?” And here is my story. Note, I refer to Skpe throughout this post. But there are other videoconferencing platforms out there.

Your jurisdiction may vary. But Georgia’s provision for taking a witness by Skype is Uniform Superior Court Rule 9.2. 9.2 (A) lists an assortment of situations where video conferencing may be done. The list includes such routine things as applications for search warrants and first appearance hearings. For my situation, there was one matter that applied to me, which was found at (A)(12), “post-sentencing proceedings in criminal cases.” And the catch-all provision applied as well.

For everything else, the place to look in 9.2 (C). There the rule provies:

In any pending matter a witness may testify via video conference. Any party desiring tocall witness by video conference shall file a notice of intention to present testimony by video conference at least (30) days prior to the date scheduled for such testimony. Any other party may file an objection to the testimony of a witness by video conference within ten (10) days of the filing of the notice of intention. In civil matters, the discretion to allow testimony via video conference shall rest with the trial judge. In any criminal matter, a timely objection shall be sustained; however, such objection shall act as a motion for continuance and a waiver of any speedy trial demand.

In a nutshell, if you want to take a witness by Skype, you should seek your opponent’s consent. And if you anticipate a problem, you should file the notice 30 days in advance. Your opponent’s objection (in a criminal case) is deemed a motion to continue. In my case, my opponent consented to take the witness by Skype.

Once you have your opponent’s consent or a court order for skype testimony, there are a few other things to worry about. Take a close look at (E), which sets out the technical mimimums for video conferencing testimony.

  1. All participants must be able to see, hear, and communicate with each other simultaneously;
  2. All participants must be able to see, hear, and otherwise observe any physical evidence or exhibits presented during the proceedings, either by video, facsimile, or other method.
  3. Video quality must be adequate to allow participants to observe each other’s demeanor and nonverbal communiction; and
  4. The location from which the trial judge is presiding shall be accessible to the public to the same extent as such proceeding would if not conducted by video conference. The court shall accommodate any request by interested party two observe entire proceedings.

In other words, when the witness appears on screen, there should be no difference between that experience and what it would be for the witness to be present in court. And, as techy as I consider myself to be, I am paranoid about technological fails in the courtroom. So, here is what I did.

Two weeks before my court date, I took my laptop and iPad to the courthouse (in a very rural area in Georgia). I used the empty courtroom to call my witness by Skype using the courtroom WiFi and my cellular connection as a backup. Everything worked. I check to see if the court had a video monitor. And the Court did. When I tested out the video, I noticed that I needed an hdmi adapter for my iPad and laptop. So I put those on my shopping list. I ran at test on Fast to make sure that I had a sufficient connection. It turns out that my cellular connection would be faster than the court’s WiFi.

In the intervening weeks, I made sure that the witness had a copy of every potential exhibit that might come up. The only glitch was that the witness was not at his office. I asked him to test out his Skype in the location he would be.

On the morning of court, I arrived early to do a final check. I made sure the court reporter could hear everything well. I noticed that there was a little lag, so I made sure the witness spoke slowly.

The judge had some questions during the testimony. And he was not close enough to the mic for the witness to pick up his voice. But this problem was largely solved by my repeating the questions. So, the next time I do a Skype witness, I will make sure that the computer can pick up the judge from across the room. This can either be solved by the location of the set up or perhaps an external microphone.

The overall experience was good. And it was great to be able to conduct a hearing with a witness off in Florida. Skype is certainly a potential solution to put up trial counsel’s testimony in habeas proceedings and in keeping down the cost of using an expert witness. However, it takes much more work to arrange for Skype testimony to pull off without a glitch than it does simply to have a witness there — particularly in more rural courtrooms where connectivity is a potential issue.

The American Bar Association has released a formal ethics opinion regarding how far attorneys may go in monitoring social media postings of jurors.

Attorneys or their representatives may monitor any activity that is publicly available, but they may not “friend” a juror in an effort to monitor their private social media postings. Nor may attorneys use a third person to friend jurors.

Further, when lawyers find evidence of juror misconduct, there are certain times when the lawyer must report it to the Court and other times when he is not:

The final question the new ABA ethics opinion addresses is what a lawyer should do if he discovers misconduct by a juror during his Internet review. “Jurors have discussed trial issues on ESM [electronic social media], solicited access to witnesses and litigants on ESM, not revealed relevant ESM connections during jury selection, and conducted personal research on the trial issues using the Internet,” the opinion notes.
Under Rule 3.3(b), a lawyer has an obligation to inform the court when the juror’s conduct is fraudulent or criminal. But if the lawyer learns of juror conduct that violates court instructions to the jury but does not rise to the level of criminal or fraudulent conduct, it is not clear if he is obligated to inform the court, the opinion says. For example, “innocuous postings” about jury service, such as the food served at lunch, may violate the jury instructions but fall short of criminal contempt.

If, by virtue of monitoring the juror’s social media postings, the juror is alerted, the lawyer has not contacted the juror. Rather, the social media service provider has initiated the contact.
Continue Reading New ABA Guidelines on Monitoring Jurors Via Social Media

Last week, a motion for new trial made news when Hon. Christopher J. McFadden granted a new trial after finding that the verdict was “strongly against the weight of the evidence.” The State’s reaction was three-fold. First, it appealed the decision. Secondly, the State made comments in the press. Third, the State moved to recuse the judge who entered the order. According to Bill Rankin and Steve Visser of the Atlanta Journal-Constitution, Judge McFadden came “Under Fire” for his decision. This has been a difficult story for me to follow. For one, I profoundly respect the professionalism and integrity of Mr. Ballard and Judge McFadden. I have cases against this particular DA and his office on a regular basis. In the years I have had cases with the DA and his office, I have never found a more professional, talented, and reasonable group. And I have known the judge since his time in private practice. He ran a grassroots campaign and won a contested state-wide election for the Court of Appeals. And to clear a little confusion up, Judge McFadden was an appellate judge who presided over this criminal trial by designation. I’m sure both of these men believe that they did the right thing in the case. It is certain that the DA firmly believes that the judge did not do the right thing. The other reason that this has been a difficult story to follow, is that while we lawyers are free to comment about the result of cases in speaking to the press, judges are not ethically at liberty to defend their actions in the press. All members of the public may not know that. So, when a judge does not respond, members of the public may draw all of the negative conclusions that they would typically draw when a person in a controversial matter “declines to comment.” Judges can’t discuss an ongoing case with the press and really shouldn’t. I could say why, but hopefully it’s self-evident.

Not Acting Like a Victim

There were a few other things of concern from this story. For one, the ABA Journal highlights a statement from the order granting the new trial and quotes it out of context. The article notes the finding that the complaining witness in the case was not “acting like a victim.” This statement could seem shocking if read out of context. And I do not know nearly enough about the case to comment about the exact import of that statement under this unique set of facts. However, having defended many cases like this at the trial and appellate court level, how the defendant and complaining witness act after an alleged rape can be important. If a complaining witness continues to be friends with an alleged rapist, delays in calling the police, or acts as if he or she is not frightened of the defendant for a period of time before reporting a rape, those facts can be important for a jury to hear. And in Georgia, by a long tradition in the law, a judge can act “metaphorically” as the 13th juror if he decides that the verdict is “strongly against the weight of the evidence.” So, judges can weigh the evidence and set aside a decision; it is part of the function of judges in the State of Georgia to do that.

While the DA in this case strongly disagrees with this particular judge’s assessment of the actions of the complaining witness in this particular case, he would not disagree that how a victim “acts” is an important component in a victim’s believability. This DA writes a popular column in a local newspaper. In a recent column, titled “The Game Within the Game,” the DA, Scott Ballard, wrote on that very subject. After some introductory comment about the case, the DA wrote about whether the defendant acted like a perpetrator and contrasted it with how the child acted like a victim:

In this case, the defendant lived a life that paid little regard to commonly accepted sexual boundaries. He had multiple partners. They did kinky stuff. You get the picture. It wouldn’t be a huge leap to believe that he would do prohibited acts with children.So, why would the child say this happened if it didn’t? Here the defense had real issues. For one thing, we had more than one victim. For another, the girls were too young to know much about sexual matters.The defense did what they usually do. They tried to inject adults into the mix. Adults were angry with the defendant and “coached” the children. To try to prove that, they look at the language the children used to report the abuse. Was it “age appropriate?” They probe into the circumstances of the report of abuse. Was it timed in a way to benefit some enemy of the defendant? How do we combat this defense? The children testify.So, Ben called the children to the witness stand and asked them to share with the jury the sickening things the defendant did to them. Let me give you a brief glimpse.A frail, thin girl—she looked about ten years old—walked slowly into the courtroom. Her hair was the color of a carrot. And she was scared.Ben asked her questions designed to assure everyone that she understood the importance of telling the truth. It was clear that she did. Then he asked her,“Do you remember meeting with me a few days ago and talking about how it would feel to come in here today?” The girl nodded gently. Ben continued. “I told you that you would probably be nervous and that I would be nervous, too?” The little auburn head nodded again.

The “game within the game” was the character and actions of the defendant versus the character and actions of the victim. Would it be a leap to believe that Thomaston, Georgia’s version of Caligula would molest a child? And would a frail thin girl who “nods gently” “walks slowly into the courtroom” and act nervously make up a story like this? The answer for this DA, under those particular circumstances, is “no.” Does the truth of the “game within the game” not apply the the benefit of the defendant and sometimes against the credibility of a victim’s account? Whether a particular witness acts “like a victim” was an important element in the case described in the column. And if we are to accept its importance in cases with a guilty defendant and innocent victim, the converse would also be true, no?

That one line is less shocking when placed in the larger context of the sixteen-page Order. The Order is worth reading in its entirety (PDF).

The Impartiality of the Court of Appeals

The press coverage also suggests that every judge on the Court of Appeals my have to recuse themselves when this case reaches that court. In particular, the article quotes Mr. Ballard as asking rhetorically about the prospect of the case getting to the Court of Appeals:

Ballard said he is now appealing that decision to the same appeals court on which McFadden sits. “How awkward is that?” Ballard asked.

The answer to “how awkward is that?” is “not very.” Judge McFadden wouldn’t participate in the Court’s consideration of this case, for several reasons. First, he would certainly recuse himself from the case in the appellate court. Secondly, the Court of Appeals works in three-judge panels. It is a rare case that goes to the whole Court. It is not unusual for an appellate judge to sit by designation over a trial court or for a trial judge to sit as a justice on the Supreme Court by designation. Indeed, when Judge McFadden was selected to hear the trial of this rape case by designation, it was not outside the realm of possibility that it would make its way to the Court of Appeals one day. Parties have the opportunity to object to an appellate judge sitting by designation in a trial. And if there might be some “awkwardness” down the road with the case going to the Court of Appeals, those parties may object before the trial starts. And if you don’t object going in, you waive the right to do so later. I don’t know if that happened in this case before the motion for new trial was granted or not.

More importantly, our appellate courts handle these sorts of things well. For instance, Judge Carla McMillian came to the Court of Appeals from her previous post as the judge in the State Court of Fayette County. Her rulings have made their way to the Court of Appeals, and her current colleagues have even managed to disagree with her on occasion. I’m not an insider at the Court, but none of that has seemed particularly awkward. She wasn’t on the panels that considered her judgment. Judge Michael Boggs came to the Court of Appeals from the Waycross Judicial Circuit. His decisions have made their way to the Court of Appeals in the early days of his tenure. If there’s been any awkwardness, I’m not aware. In all of the controversy surrounding his confirmation to the Federal bench, this subject has never come up. And, more recently, Justice Keith Blackwell has been appointed to the Supreme Court of Georgia after he was a judge on the Court of Appeals. This transition has not created a crisis of partiality.

Even in the trial court, Superior Court judges are frequently called upon to sign a search warrant, where that warrant is later the subject of a motion to suppress before the very same judge. And trial judges in every motion for new trial are asked to assess whether they committed judicial error as they presided over a case at trial. And yet our system works very well.

The Georgia Court of Appeals will handle this case with impartiality and professionalism, because this situation is not as unprecedented as a casual reader of the AJC article might think. And the Court has acted with impartiality and professionalism in those instances.

Conclusion

This case will run its course. I place great faith in our system. But that faith is only as strong as the public’s confidence in the integrity of an independent judiciary. The media component of things like this, with conclusions that get wrong the basics of how our appellate courts function, make me fear what lies ahead for our judiciary.

I recently finished the audio version of Stephen King’s On Writing: A Memoir of the Craft. It’s geared toward fiction writers, but there is much to commend it to lawyerly writing. The best writing advice I have heard in a while was something that a publisher wrote on a slip rejecting one of King’s early manuscripts. The advice was “draft two — same but 10% less.”

I am preparing to efile a brief in a few minutes. It has a single issue (most appeals boil down to one issue if the lawyer is honest about the case and doesn’t bow to pressure from the client to add more). Draft one was a modest 1,630 words.

Long briefs indicate either the most interesting case in the lawyer’s career, fear that the Court won’t understand the argument, or a search for “cover” for the inevitable pro se habeas. Since there can only be one most interesting case in a lawyer’s career, the odds are that any one brief isn’t part of that case. And fear is hardly a reason for an editorial choice.

I tried King’s advice and began searching for 163 words to excise. I found even more, and this brief is better for it. The final is 1,455 words long. Where are the 163 words in your next brief?

Last week, I had a post-conviction motion in a county where I never practice. The motion is under advisement, so I won’t go into the particulars about it or what happened at the argument. I write today about the things I did before the hearing started and I plan to do those things even when I find myself in court in more familiar places.

The first thing is that there is a sign in the hallway, just as you enter, warning you to turn your cell phone off. The sign said nothing of putting it on silent or on vibrate. Off means off. So, off it went. Next, I pulled out my laptop just long enough to get the files I needed for the hearing onto the desktop. Then, I did the worst thing I can ever do when I’m in a courtroom waiting for my case to get called and bored. I checked my email. I am reminded what productivity guru David Allen said about email: “Any email could be either a snake in the grass or a berry.” Many of my phone messages go to email. So, for me, checking email means also checking voicemail. And that day’s inbox was filled with snakes. But even berries were not what I needed to see at that moment.

I was dumb, but not that dumb. I saw from the snippets in the in-box that I had read too far. But I stopped before I opened any of them. In fact, it was time to close the laptop and step slowly away. I also knew I couldn’t trust myself so I turned off the wifi receiver on the laptop. With the phone off and its array of distractions away, I had three solid hours to sit there in this South Georgia Courtroom while the court handled other business. What, then, to do with my time?

I took a small notebook and a pen, and I moved from the jury box where I normally sit over to the pews, dead center of the courtroom where I could watch the lawyers, the judge, the witnesses, the court reporter, the bailiffs, and the clerk. I took notes on the things I saw. It was among the best two and a half hours I ever spent in a courtroom. I watched a pre-trial conference where two sets of pissed-off South Georgia family members would soon be pitted against one another in a jury trial without a lawyer to contest a will. I watched two motions to suppress, and I watched the calling of the calendar in its entirety.

With notebook in hand, I watched every objection, heard every argument, sized up how the judge talks to people in conferences, noted how witnesses are sworn (every courtroom is a little different. Sometimes the judge swears them in. Sometimes it’s the clerk. Sometimes it’s the lawyer. The oath is sometimes a little different, too). I noticed the atmosphere of the courtroom (the judge likes it to be quiet and orderly. There isn’t room for a lot of drama. The judge, not the lawyers, runs the courtroom. He quietly contemplates objections before ruling on them). I noticed where sequestered witnesses go before being called in (turns out, it’s in a room behind the bench and not out in the hall). I noticed a number of things I would not have seen had I been responding to email, fiddling with my phone, or going out into the hall to take calls.

There was a fifteen minute break between the first few cases and the next few before mine was ultimately called. I used that fifteen minutes to huddle with my client in the holding cell and my client’s family. We made a few changes to the game plan in light of what we observed.

I also saw how the prosecutor responded to certain situations. And I likely saw several things that changed my approach beneath the level of consciousness. For a couple of hours, I took it all in.

Had I been someplace else, I might have read some advance sheets, edited a brief, or responded to some “pressing matters” on the phone or laptop while I waited. Had I been in a more familiar place, I might have “visited” with other lawyers. And, had I not moved, I would have “watched” the whole thing from the sidelines instead of moving to a place where I could see all the body language and facial expressions.

I am going to integrate the lessons in to future court appearance even in closer lands. After all, just as you “can’t step into the same river twice,” you never step into the same courtroom twice. A courtroom is a dynamic thing that changes with the mood of the participants, the types of cases on the calendar, the weather outside, the witnesses who appear, and what the drive to the courthouse was like. I hope to really be in the next courtroom I enter. In fact, the next time I go to a distant one, I think I’ll come down a few days before just in case I don’t get the gift next time of being last on the calendar.

I returned from vacation pleased to find in my in basket at the office a copy of Ryan C. Tuck’s article from the Georgia Law Review on the confusing state of the law as it relates to ineffective assistance of counsel in Georgia. The article is titled “Ineffective-Assistance-of-Counsel Blues: Navigating the Muddy Waters of Georgia Law After 2010 State Supreme Court Decisions.” This article is as good as its title is clever. The article centers on where the law in Georgia is after Garland and Moody.

And the news is not particularly good. And why am I excited about a law review article on a case I lost (sort of) and that demonstrates some issues with how we handle IAC claims in Georgia?

The reason is that maybe things will change. The way we do things in Georgia makes it tough to be a criminal appellate lawyer, disincentives trial lawyers from preserving issues for appeal, and needlessly separates the appeal from the trial in a way that interferes with attorney-client relationships and in a way that probably hurts the client in the long run. And this article give me some hope that the legislature will move Georgia to a system of handling IAC claims more akin to the majority rule.

Mr. Tuck picks up in a familiar place to me. Jim Bonner’s article in the Appellate Review, the Georgia Appellate Practice Section’s Newsletter covered some of the same ground.

What’s Wrong Now?

Under Georgia law, new counsel must raise ineffective assistance of counsel at the earliest possible moment, or he waives it. As claims go, IAC not really good. It’s rarely successful. I have litigated it more times than I can remember, and it’s worked on appeal exactly one time (it’s worked a few more times at the trial level, but generally with a wink and a nod as part of negotiations).

The problem is that clients think that it will work for them, and they pressure new counsel to raise it. There are many reasons why it should rarely be raised. For one, there rarely is a good claim. Secondly, it has a way of becoming the focus of the appeal. Third, even when it doesn’t it can be a big distraction from other real issues of merit. Fourth, analysis under the second prong of Stickland, invites trial courts to weigh in on how strong the evidence was against the defendant at trial. Such careful scrutiny of how good the State’s case was can have a spillover effect to other issues in the case making it that much easier to proclaim that other errors were harmless.

Pressures from the client and systemic pressures (raise it or waive it) can create a real conflict with the lawyer’s ethical obligations not to raise frivolous claims under Rule 3.1 of the Georgia Rules of Professional Conduct. To quote Mr. Tuck’s article,

By creating pressures for new appellate counsel to raise IAC claims against trial counsel, critics contend that Georgia’s approach contravenes this warning from Strickland [that there will be two trials. In the first, the defendant is tried. In the second, the lawyer is, as Mr. Tuck puts it “tried for IAC.”] and institutionalizes a level of antagonism between defendants and their attorneys that can be damaging to overall standards of representation. As one critic asserted, “[i]t causes hell for attorney-client relations if both know from the beginning that they will end up on opposite sides.

And from my experience, this issue marks the place where things can go bad between the attorney and the client. I don’t raise IAC unless I see at least a colorable issue and if it won’t hurt other claims by serving as a distraction and if the second prong won’t spill over into the harm analysis of other issues.

Where Should We Go From Here?

We should require that IAC claims be held until collateral proceedings and take them out of the direct appeal except in the rare case when it can be resolved from the record itself. And, the failure to raise it should not act as a waiver of the issue. It would better the system and make it easier to practice criminal appellate law. And, above all, it would protect the clients from going for a low percentage issue at the cost of other issues of merit, which provide a better chance of success even if they don’t quite understand those issues.

Above the Law has a good recent post on the use of video arraignments and how judges find that the process makes them feel safer. I don’t know whether video Arraignments make the process any safer or not. But the process certainly makes the process more efficient. In fact, many of the rituals of court aren’t just antiquated. They’re anachronistic. The other part of the article that I liked was a link to a story from a few months ago about Judge David Emerson’s decision to allow a defense attorney to call a witness at trial via Skype. These posts point to a good future for those of us who participate in the appellate and post-conviction process in Georgia.

There is an annoying thing you sign up for when you do post-conviction work in Georgia. And that is a clientele located hundreds of miles from where the lawyers and most of the witnesses are. Chances are that your appellate client will be located in South Georgia, and there will be an issue of whether to produce him for court. For the client, being produced for the hearing and returning to prison means starting back at square one as a new inmate at the facility. That situation can result in a complete upheaval of the client’s life, essentially representing a move to a new dorm with different cellmates. For the court, it means expense and potential security issues.

When the case ends, appellate counsel often becomes the witness in the former client’s habeas case, entailing another drive to a distant city. In fact, the whole show travels south, with assistant attorneys general driving down for court with boxes of files. The whole thing is needlessly inefficient and expensive.

There is no reason that much of the process couldn’t be done over Skype. Already, oral arguments at the Supreme Court are being done that way (not via Skype but by video feed from satellite locations in south Georgia). Arraignments and probation hearings are being done that way.

Why couldn’t attorney visits be done via Skype? And certainly why couldn’t court be done that way. The process would have several other advantages.

  • It would allow for more frequent meetings. Right now, a single visit requires a day (and sometimes two if you have to stay over) away.
  • It would make court run faster.
  • It would provide for better security. There would be fewer people in the room to protect.
  • The personnel cost savings would be significant.
  • Cases would move more quickly
  • There would be fewer appellate issues involving transfers and other weird little things that arise in the habeas setting right now.
  • There would be fewer continuances due to lawyer and witness unavailability.

In fact, it would allow appellate practices to be more efficient. Right now, many appellate lawyers face a tough choice. Do they want to put the work into working on these tough cases, which the clients want their lawyers to do. Or do they want to take time out from writing the briefs and reviewing records to meet with and reassure the client about the work that isn’t getting done during the day it takes to drive to the prison and have the meeting? Right now, there are tough choices to be made between working on the cases and driving around the state merely to talk things over with clients and family. The adoption of video could really eliminate some of these tough choices.

We can only hope that prisons and habeas courts will follow Judge Emerson’s excellent example.

Empty chair.jpgThe state of Georgia once brought us the Leo Frank trial, the Andersonville prisoner of war camp, and a series of lynching over the years. I never knew that Georgia law was so traditionally weighted against the State. The legislature seems to think otherwise. Yet, the legislature of late has enacted new laws that have taken away historic provisions that have traditionally protected the accused, including: historic provisions that gave the defense more jury strikes than the prosecution; recent legislation that took away the defense’s right to give a closing to the jury last; and a set of minimum mandatory sentences that presume that Georgia is a bastion of liberal judges. One would think that, in the midst of all the hangings that have taken place in Georgia’s history, that we haven’t coddled criminals too long. Most recently, the law has relegated criminal appellants to the role of distant correspondents as the lawyers battle out their case in a courtroom, sometimes hundreds of miles away. We’ve only recently gotten there, but there may be a way to change things.

Two things have happened to bring about this turn of events. First, the legislature recently took away the right for criminal appellants to remain in the county jail while their appeal was pending. Not many lawyers even knew that the law provided such a right, and many judges simply ignored it. But, for me, keeping my client in a local jail was very helpful on appeal. It allowed me to build an attorney-client relationship, and it provided my client with a sense that he had a voice in his case. Trial lawyers have this right from the very beginning when their clients are incarcerated. But the legislature took this right away – proving that the appellate process is the red-headed stepchild of the criminal justice process in Georgia. 

I average about 5 travel days a month so far in 2011. All the prison in Georgia are located far away from me. And the clients still need to be seen. Relationships still need to be formed and maintained. While this process is good for the folks at audible.com from whom I purchase many audio books and from Exxon from whom I purchase gas at around $4.00 a gallon. It is not good for my overall productivity. Because for every 3-4 hours I spend driving there is maybe 1 good hour of meeting time with my client. And, as the law is developing, I may be on the road even more. 

The trend started earlier but has culminated in the Mantooth. This is the total bad facts make bad law package. The lawyer was given every opportunity to proffer to the trial court a reason to produce his client for the motion for new trial hearing, and he passed up, baldly claiming that he wanted his client to attend the motion for new trial hearing. Out followed the holding that a non-death penalty defendant has not right to attend a motion for new trial motion hearing unless he can show his presence would contribute to the “fairness of the proceedings.” Of course, the whole test seems circular. When is it ever fair to holding a hearing on a person’s life and status as a felon while the defendant is involuntarily absent? Never mind the fact that the opinion appears to misconstrue the holding in some earlier cases. Andthe whole body of caselaw that has developed in Georgia ignores United States Supreme Court precedent in Snyder v. Massachusetts (thanks, Jim Bonner, for telling me about this case). My client should see and hear his hearing. And, when evidence is introduced, it is important for me to be able to consult with my client, likely the only person at counsel table with me who was present at the trial and in pretrial meetings and proceedings to know what to ask witnesses at the motion for new trial hearing. Georgia courts are moving in the other direction, it appears. 

Take this Issue Up

One thing to keep in mind is that the Georgia jurisprudence in this area is not particularly well developed. Yes, there are many cases to reach this issue. But seldom has there been much analysis. When the Supreme Court has reached it, it has typically done so in a very short paragraph. So, there has never been a better time to start moving this issue to the Supreme Court of Georgia. 

Preserve This Issue by Motion

After all, for an appellate lawyer, the next best thing to winning a motion at the trial level is losing motion of the trial level. So, I would encourage lawyers, at motions for new trial, to file motions to produce the end where you assert why your client’s presence at his motion for new trial hearing is essential to the fairness of the proceeding. Allege it on due process on and sixth amendment grounds.

Affidavits are Your Friend in this Regime

In addition, seize the opportunity to use the absent client introduce evidence that cannot be cross examined. If the court will produce your client, then the trial court leaves you no choice but to present evidence from your client in the form of an affidavit. Since the courts tend to do with state wants, then the Court will likely produce your client to give the State the opportunity to cross-examine your client. If not, then use this wrinkle in the law to put up some evidence that is beyond the reach of the State’s questions. Second best, an affidavit will likely get your client produced.

Above all, this is an area of law that needs to be further developed. So, start filing motions to produce. You’ll plant issues in your case and show your client that you are fighting to give him his day in court at the appellate level. Better yet, you might have a way of putting up evidence beyond the State’s cross-examination or maybe show how eager some trial judges are to produce your client when the State needs him but not when you do.

help.jpgWhen appellate lawyers talk about judges, we ordinarily talk about how wrong they often are and about how to preserve their mistakes for later use. Otherwise, we don’t much speak of the trial judge. Yet, at least in Georgia, every direct appeal begins at the trial court level where appellate lawyers have the unenviable task of convincing trial judges that they made mistakes so bad that the your client should get a do-over. Trials are expensive. Dockets are full. And lawyers and judges aren’t fond of being convinced that they made a mistake. For all of those reasons, it is pretty difficult to win motions for new trial. But when you signed up to handle the appeal, you signed up to do the new trial motion, too. So you might as well do it right.

Having done more of these motions than I can count, I have found that judges take them seriously most of the time. There are a number of good reasons why. If a mistake was made, there is no better time for that fact to come to light than on a motions calendar. Mistakes exposed under the bright light of a published opinion are less preferable. Also, when the average case on the docket calls upon a judge to decide whether the wife gets the tupperware and whether the husband gets the Ginsu knife set, the prospect of taking some time to engage in a dialogue on transferred intent and transferred justification feels like weighty stuff.

In fact, just a few days ago, I presented a legal issue that could only occur in Georgia and her sister states. That issue involved whether an affirmative answer to a question from a prosecutor that used the word “y’all” was sufficient to establish that one person was a victim within a group of victims. That’s right, we debated the actual meaning of, “y’all” in a Georgia courtroom. The judge was engaged.

So, assume that the judge will give it the judge’s all when you have a motion for new trial hearing. And the following suggestions will help you give it your all as well. I think that you’ll find that these suggestions work in other hearings before trial judges as well.

Time and Attention are Your Biggest Obstacles

Time for a little bad news. The judge’s caseload is bigger than yours. Even if you’re the public defender assigned to the judge’s courtroom, the judge’s caseload is still bigger than yours. And the judge has a small fraction of the time that you have to spend on the case even if you think you don’t get enough time to spend on it. The judge has the entire calendar, plus the rest of the criminal docket, plus the entire civil docket. That’s just the way life is.

Time for some even worse news. Your case is more important to you than it is to the judge. And chances are that if this case is important to the judge it’s for reasons you might not like. The judge is concerned with your case to the extent that it is one item in a list of to-do items, to the extent that the judge doesn’t want to get reversed, and to the extent that the judge would like to do a good job on every case. Make sure that you align your goals with the judge’s.

And finally, though the client paid you and has spent some time with you as this case has made its way to this point, your client is not your audience. The judge is. Resist the temptation to hurt your client’s case so that you can impress your client. Taylor your presentation to impress the judge. If you think that deciding to do that might create a problem, make sure you have the discussion with your client. Take careful notes for the file.

Credibility is Key at a Motion for New Trial Hearing

Credibility is the most important thing that you bring to a hearing. It is better to bring credibility to court than the best precedent. And if you aren’t credible, the judge won’t believe your representation of the precedent and probably will never bother to read it. There are two things that you can do to keep your credibility intact. Take ownership of the negative stuff. And don’t say stupid stuff.

There is good and bad in every case. If you’re representing the defendant in a criminal case, the dealer of facts likely gave most of the good cards to your opponent. Spin is okay. So is putting your best foot forward. But don’t ignore bad facts. And never misrepresent them. Assume that your opponent knows the bad facts and will start her argument rubbing your nose in them and the fact that you chose to leave them out. The suggestion that you left them out is far worse than the facts themselves. The judge will wonder what else you left out. You may lose so much credibility that it impacts the next cases you present in that court. So, own your bad facts before your opponent can.

For instance, if you are representing someone whom you know will be sentenced eventually, the process of ownership should start early. Own your bad facts by acknowledging them in your argument or by doing something about them early in the case. Better for you to bring them up than your opponent. And when you own your bad facts, you are more believable when you discuss your good facts.

Your soundest blows land more squarely when the judge knows that they are honest blows.

Secondly, don’t say stupid stuff. Really, don’t. I don’t know if you’re like me in this respect or not. But I find that stupid stuff is easier to spot when other people say it than when I say it. That’s what candid colleagues are for. Run your argument by someone who knows you well enough to call you on it. Don’t have an “accountability partner”? Here are a couple of phrases that might be stupid:

▪ “Judge, this is fundamentally unfair.” Sometimes things are fundamentally unfair. But I’m thinking that something happens that a judge would consider “fundamentally unfair” about 0.1% of the time. Leave that little phrase in the toolbox a much as you possibly can. Chances are you’re calling something fundamentally unfair because you couldn’t find a case on that point.

▪ “Judge, this is a slippery slope.” It probably isn’t. It is better to point out the flaws in the opponent’s argument or the constitutional problems with what the state did than to be the 10th person of the day to try to convince a judge that the sky is falling.

▪ “Judge, it’s been really hard on my client to adjust to the demands of probation” Say this or something like it, and you deserve what happens to you.

▪ With all apologies to clients, because we love them all, corroborate any information whose sole source is your client before you adopt that information as true – particularly, if you are talking about your client’s prior criminal history.

There are a range of other dumb things that one might say in court. What you plan to say probably isn’t dumb, but maybe it is a good idea to check it out with someone you trust before you say it. Don’t say it in brief or letter brief either.

Assume what you Write will Have Less Impact than What you Say

But while we are on the subject of letter briefs or formal briefs with a trial judge, now is a good time for a little word of warning. Judges get a bunch of mail. Have you ever seen the incoming mail for a trial judge? You aren’t the only lawyer sending the judge letter briefs. If you think your mailbox is full of handwritten unsolicited mail from inmates, you should see the number of such correspondence a judge gets. Your letter brief may be the equivalent of an ancient epistle, but it might be read in a moment, if at all. In fact, it might become an ancient epistle before anyone reads it. Think carefully about submitting matters on motions or on briefs. You probably won’t get the judge’s undivided attention the way you might even in a five minute oral argument. The oral argument is the most critical moment your case will spend before the trial court at the appellate stage. Don’t blow it.

Be Organized for When the Moment is Yours

You won’t get long, and you are likely to find your way onto a general motions calendar. In some counties, you may find yourself on a general motions calendar mixed with civil cases – even civil domestic cases. What that means for you is perhaps a day of watching other motions hearings culminating in five to fifteen minutes for your case. What’s worse, you may not quite know when your case will get called. But usually, it gets called just as your mind has gone numb from watching your seventh contempt hearing for failure to pay child support, your tenth probation revocation hearing, your tenth bond hearing, your second TPO involving people who will be back together within a week, and your third motion to suppress. If you think you’re annoyed by what’s just been presented, imagine being the judge.

Organization is key. Know what you will present, when you will present it, and anticipate the questions you are likely to get. Don’t make the judge work to understand your point. Use concrete language supported by case law. An organized presentation will help you get up to speed fast if your case is called while you are counting the number of tiles in the ceiling while two pro se divorce litigants go at it in reckless abandon of the rules of evidence and etiquette.

Don’t Machine Gun Case Cites

Don’t be that lawyer who stands up and starts reciting cases with their cites as you present your argument. It’s like giving the judge a little homework assignment. I can’t imagine the judge going on Lexis or Westlaw at the next recess and looking up those cases. Particularly, since you’re really the one with the homework assignment.

Hand the judge the case you’re discussing, and highlight the portion relevant to your argument. If the language is so great, then the judge will have it. And you’ve just saved her the time it would take to log on to a research program, find the case, and print it out. Which is time your judge likely doesn’t have.

Your window of judicial attention is narrow. And it could close at any minute. Present your best argument first. Present it well. You may not get to your second or third one. By the way, most cases boil down to one big issue anyway. Don’t believe me? Take a look at five random appellate opinions where cases were reversed and remanded. How many cases are there where the appellant won on multiple issues? Your client may be the only person in the room who believes that there are fifteen great grounds for reversal. Don’t become the second.

Don’t be Dramatic

Don’t be dramatic. You’re not speaking to a jury. If you have really must scratch the dramatic itch, then join a community theater group. You likely won’t win a new trial through tears, fist pounding, or with a raised voice. It’s okay to be passionate about an issue. But it is better to treat the judge like a senior colleague. Imagine you were discussing this issue with a partner in your law firm – a colleague more senior than yourself. If you yelled, cried, or pounded the table in that setting, you might be removed from the building. Don’t be dramatic at a motion for new trial hearing either. The trial lawyer who came before you may have done that stuff with the jury. Which may explain why this case is on appeal.

Good Motions Arguments Produce a Great Outline for the Notetaker

If a judge is ever kind enough to tell you what is bothering him about a case, then you should tackle that issue head on. Even if you think the judge’s concerns are misplaced or that the subject matter of the judge’s concerns are unimportant, you should tackle that issue first. For one thing, be glad that the judge is concerned about some component of the case. Because concern equals engagement. Judges aren’t always engaged. And, the great thing about being a judge is that whatever you happen to be concerned about becomes the central concern in the case. If your judge doesn’t signpost her concerns for you, there are some ways to figure them out.

As you read the trial transcript, where did the judge ask the most questions? What hearing took the longest. Of course, the judge might believe that enough time was spent on that issue and believe it to be resolved. There may not be very much more that the judge wants to hear on that point. Still, those area warrant your attention. Otherwise, find the issue that is most likely to be cause for reversal. That area would likely be a point of concern when you point it out.

Also, pay attention to the questions you are getting. Don’t be afraid to shift focus to that area. If the judge is thinking about a certain issue, then the issue is important. If you hadn’t anticipated questions in that area and feel you are not quite prepared, then go as far as you can and admit where you are uncertain. Ask for the opportunity to submit a letter brief or come back, perhaps even later in the day. If you think of other answers later, follow up with a letter brief with cases attached.

A judge who listens to your arguments and takes notes during your presentation is a rare gift. Make sure that you make the most of it. If you notice that the judge is struggling to write things down, then slow down. Repeat what you were saying. Make sure that you make your presentation in such a way that it lends itself to organized notes. Imagine how great it would be if the judge could walk into chambers with your entire presentation written in a neat outline on a piece of paper in the judge’s handwriting. And imagine how great it would be if the judge were unable to create such great notes from your opponent’s presentation. Make sure that you make your argument with previews, headlines, and signposts along the way.

Ask for Questions

A really great way to start your presentation is to ask for questions at the beginning. “Your honor, before I begin my argument, was there any particular concern or question that the court had that you would like me to address first?” If not, then likely you’ll want to make your presentation short.

Which brings me to my final point. Aim to stop talking at the moment your judge has has stopped listening. Only talk beyond that point if you feel you need something for the record. If the judge won’t listen where the judge should, and you are sure that you are right, that’s what the appellate court is for. And you’ll be there soon enough.

deposition.JPGA few months ago, the unthinkable happened on a habeas corpus case I am doing in South Georgia. The judge “suggested” that I handle some witnesses on a particular issue by deposition. There were all kinds of good reasons for it. The witnesses were spead out all over the State. I will probably get to explore more information and get more information on the record than I would in Court. The only problem is that I never do depositions. Lucky for me, I know a talented civil appellate lawyer and litigator and fantastic blogger who was kind enough to help me out. In addition, if you are in the same boat I am in, I hope he will help you out also.

Bryan Tyson is the editor of the SCOG Blog, which covers civil cases in the Supreme Court of Georgia. And he is my first guest blogger. The following is his guide to depositions for criminal lawyers, which I shamelessly requested for my own personal use. 

 

Deposition Pointers for Criminal Law Attorneys

The deposition is a normal part of life for civil litigators, but is often a completely foreign world for criminal law practitioners.  Knowing some basic tips about depositions can assist criminal law attorneys in representing their clients effectively.  Our goal is to provide some tips in four basic areas involving taking or defending a deposition: getting started, what happens during a deposition, making objections, and how to prepare a client for a deposition.

Starting a Deposition

To coin a phrase, if you know where to start, it’s easier to find where you’re going.  Starting a deposition if you are taking it can be challenging.  Generally, a deposition begins with a statement for the record of the name of the deponent, the way the deposition was noticed, and the logistics of how the deposition will be taken.  At least using an opening with these elements will make the other side think you know what you’re doing.  An opening may sound like this in a state court proceeding:

This will be the deposition of [DEPONENT] taken pursuant to notice and with the agreement of counsel.  The deposition of [DEPONENT], is taken by the [PARTY NAME] on cross-examination for the purpose of discovery and all other purposes authorized by the Civil Practice Act and the Evidence Code.  All objections except as to the form of the question or the responsiveness of the answer are reserved until such time as the deposition is used.

The reservation of objections is typical at the outset of a deposition in order to ensure an orderly flow.  If there is an objection to hearsay, for example, the deponent generally still answers the question on the record, but if the party taking the deposition attempts to use the deposition later, the court would have to rule on the hearsay objection.

After the initial statement, the next issue typically covered is whether the witness wishes to read and sign his or her deposition.  This allows the deponent to review the transcript and make minor corrections prior to the court reporter finalizing the transcript.  This is usually phrased in the following fashion, directed to the deponent’s counsel:

Have you discussed reading and signing?  or

Does your client wish to read and sign?

The attorney taking the deposition then requests the court reporter swear the witness, and the real work of the deposition begins with questions and answers.

During a Deposition

Deposition questions generally begin with the name and address of the individual for the record.  It’s also wise to ask a series of questions to see if the deponent will volunteer any information that could be interesting or relevant.  There are plenty of stories of individuals volunteering all kinds of information that could prove useful later in the case.  Some examples:

  • Whether the individual is under the influence of any medication (if so, it is often wise to suspend the deposition until the individual is no longer under any influences);
  • Whether the individual has ever been arrested for or convicted of a crime;
  • Whether the individual has any outstanding arrest warrants;
  • What type of education or specialized training the individual possesses;
  • The individual’s employment history;
  • The individual’s family relationships;
  • Whether the individual has discussed their deposition or the case with anyone who is not their attorney.

Another very helpful tip during the course of a deposition is to remain quiet after asking a question.  Dead air in the room is not reflected in the transcript, and often a deponent will fill the empty space by volunteering more information.  Similarly, looking expectantly at the deponent even after they have finished an answer will often motivate them to continue speaking.

Objections

Objections are often the most challenging part for an attorney taking or defending a deposition, but for criminal law practitioners, this may be the easiest part.  Any objection that would normally be made during a trial is available during a deposition.  Therefore, any objections you would typically make at trial can be made on the record during a deposition.

Objections should be stated clearly and on the record after the question is asked but before the deponent answers, including the specific grounds.  In most cases, a question should still be answered after the objection is made.

Objections to the form of the question or that a question is leading can often be remedied by simply rephrasing the question.  Other objections can be more complicated.  For example, a question requesting attorney-client privileged information should result in an objection from the attorney defending the deponent, along with an instruction to the deponent not to answer the question. 

On occasion, an attorney will attempt to coach his or her client by strategically objecting to questions.  If you notice this occurring during the course of a deposition, it is often best to address the situation by taking a break and discussing it with the other attorney one-on-one.  If this fails to solve the problem, deal with it on the record.  If that fails to resolve the issue, it may be necessary to suspend the deposition until it can be addressed by the court.

Preparing a Client for a Deposition

The primary goal in preparing a client to handle a deposition is to ensure that he or she does not unnecessarily volunteer information.  While a client should answer all questions fully, he or she should try to say as little as possible in answering the questions put to them.

When taking a deposition, many attorneys will try to draw the deponent into a level of comfort by turning the deposition into a conversation.  Clients should avoid lowering their guard and freely sharing too much information with the attorney taking the deposition.

Conclusion

Depositions are a useful tool for learning facts about a case.  Although depositions may appear intimidating at first, they function as valuable places to learn the necessary facts about a case.