I was at the Georgia Supreme Court for argument on a habeas case today. This was my first appellate argument of 2019. I’ll be at the Georgia Court of Appeal on February 12. You’ll find a link to the recording here. I won’t comment on a pending matter except to say that this is a pro bono case I’m handling through The Habeas Project, a pro bono law school clinic at Mercer University law school. My special thanks to Meagan Hurley and Addison Gant, two third-year law students who did the bulk of the research and writing on this case.

I also ran into Leighton Moore after he finished his argument on an interesting first amendment matter.

A great part of a SCOG argument is when I power up my phone afterward and find a deluge of commentary from colleagues and friends who watched online. Today was no different — a fantastic start to a new year.

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

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

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

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

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

Last week, I was able to help a young man stay in the country rather than be deported to a land where he has few ties. The young man is officially a citizen of a foreign country. But he is practically an American, having grown up in Georgia and with all of his family here. Several months ago, he was stopped in a small Georgia town by a local police officer. The officer found marijuana in his car. And my client was charged with a felony. He hired a lawyer who incorrectly advised him that he could enter a plea under Georgia’s First Offender Act and he would not be deported. The advice was wrong. And when my client hired me, he was one roadblock or stop sign violation away from detention and deportation. I filed a habeas corpus petition and began a series of meetings with the prosecutor. The habeas was granted and we ultimately arrived at a disposition that will likely work for him, according to his immigration lawyer.

This case is a reminder of what it means to be convicted of a crime. These cases are about far more than repaying your debt to society. A criminal conviction is a debt on which many default. In today’s New York Times, there is an editorial that discusses labels and the harm they do to citizens who have been convicted of crimes. Labels like “felon” or “ex-con” last long after the sentence is complete. And the potential collateral consequences of a conviction, even for some misdemeanors, is staggering.

In my case, it took my efforts, the help of an immigration lawyer,  a reasonable prosecutor, and a merciful judge to bLunt the impact on a young man and his family of a youthful mistake.

Part of the job I love the most is travel. I don’t mean exotic glamour travel. When I say travel, I’m talking about prison visits. And when I talk about prison visits, I’m talking about South Georgia (and sometimes Northwest Georgia). When I come back to the office, I can’t help but tell people about the restaurants and little oddities along the way. Those stories either earn me stares or the occasional interested exclamation of, “Tell me more. I’ll definitely check that place out if I ever find myself taking I-75 to Macon, then taking I-16 for 60 miles, exiting, driving on a two-lane road for an hour and a half, and I need a great lunch spot in a place that isn’t on the way to any place in particular.”

It has been suggested that I write a guidebook for habeas corpus attorneys for the best places to eat near Georgia prisons. Of course, I’m not sure that a publisher would agree to take on a book with an audience of about three people. That said, I do have some favorites. And maybe I can begin the first draft of that book here.

The Drug Store. Hands down, the very best prison visit food ever can be found at The Drug Store in downtown Reidsville, Georgia. That is actually the name of the drug store. It has an old school diner in the back. After a morning spent slugging it out with the Atty. Gen. or going through security, The Drug Store is a good way to return to the outside. The front of the place sells all of the things that women might give each other a bridal showers. There is lots of upscale University of Georgia merchandise, different bags and gifts, and other sundry that one might expect to find in a small town drugstore. But in the back at the grill you will find the best burger that you will find anywhere. The burgers there are absolutely huge. Note, do not go to the drugstore if you have to go back to court for further habeas corpus proceedings in the afternoon. You will fall asleep.

Zunzi’s. If you are lucky enough to have a client house at Coastal State Prison in Savannah, Georgia, then it is worth the trip on into town for lunch here. This place doesn’t look like much, but it sells pretty fantastic African food delivered to you in a Styrofoam box. Don’t miss the African Sweet Tea. This place is favored by Savannah College of Art and Design students and one hungry appellate and post-conviction lawyer. It is well worth the few extra miles down Interstate 16.

Paradise Garden. Now, to the other side of the state. This is not a restaurant recommendation as much as it is something to see. If you go to Hays State Prison, then you must go see the previous home and now Art Museum associated with primitive artist, Howard Finster. Weird and old time religious at the same time and utterly cool.

Yoder’s. This is a can’t miss restaurant for a visit to Macon State Prison in Oglethorpe/Montezuma, Georgia. It is a Mennonite restaurant serving up fine repast. Try to get there before the buses hauling elderly Baptist groups arrive. Even if you do, get in line. It’s worth the wait. Great grub, low prices, and a sincere waitstaff in period costume.

Cracker Barrel and Subway. I don’t love it, but if your prison visit doesn’t yield a great stop like some of the ones listed above, then you will end up at a Subway or Cracker Barrel. Either that or you will end up at that ubiquitous stable of small-town breakfast, lunch, dinner, snacks that is the downtown Dairy Queen. If you’ve really taken a drubbing from the Atty. Gen., a dipped cone on your way back north up interstate I 16 can make things seem somehow better. Two bites into this chocolate and vanilla goodness, and you’ll be saying to yourself, “that wasn’t so bad. After all, the judge didn’t say no. He wants to read a brief, and I just know I can turn him around with that brief.”

There are other haunts that I love on prison visits and habeas corpus trips. Perhaps I will post others on a slow blog day. But these are my absolute top. Feel free to post any suggestions you have for prison visit gems.

 

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.

witness.jpgThere’s a side effect of having a robust appellate practice in Georgia. If you handled the appeal, and your client has a lengthy prison sentence, you will likely become a witness as your former client tries to demonstrate your ineffectiveness. In Georgia, the client has the right to effective assistance of counsel during the trial and during the direct appeal. You cannot raise your own ineffectiveness as an issue at trial. If you are new counsel on direct appeal, any issues of ineffective assistance are waived if you don’t raise them. So, if you do not raise the issue at all, you’ve waived your client’s right to raise it. Or if you raise it one way, you waive it with respect to other possible ways you could assert it.

The trouble is that Georgia’s system is a veritable pressure cooker for appellate counsel to raise ineffective assistance of counsel. The trouble is that it is hard to prove ineffective assistance of counsel. The law is extremely deferential to the trial lawyer. Strategy, even bad strategy, is not actionable in an ineffective assistance of counsel plea. Even demonstrable mistakes are not actionable unless there is a likelihood that they had an impact on the trial’s outcome.

No trial lawyer conducts a perfect trial. Mistakes get made along the way. Some things just don’t work, and we don’t realize that they won’t until trial is over. And some trials just aren’t going to go well for the defendant unless you manage to perfect time travel and remove the client from the crime scene before anything bad can happen.

Here’s the point where the attorney client relationship is most delicate. It’s a rare convicted appellate client who thinks his trial lawyer was awesome. I allow for the possibility that he messed up and engage in a dispassionate search for mistakes. When I find things, I raise them. When I don’t, I don’t. Sometimes, trial counsel will agree that he made a mistake in one area or that he “just didn’t consider” something but will won’t to fight you on some other issue. At that point, you have to jettison some issues to secure trial counsel’s cooperation on others.

When it’s all said and done, you will likely end up as a witness on a habeas if your appeal was unsuccessful. And when you do, the subject matter will likely be your decision not to raise ineffective assistance of counsel at all or your decison not to raise it on other issues.

If you were the trial lawyer, you may end up on the witness stand also. As I said above, sometimes mistakes get made.

As a guy who raises ineffective sometimes and who has taken his turn on the witness stand, I have thought of seven things that go into being a “good” witness. By good, I mean you are being honest, assisting your former client where you can, but taking pride in your hard work.

  1. Work hard on appeal. I’m sure that you already are. But really work hard. Find the best issues. Research them every way you possibly can. Write. Then rewrite. Then rewrite again. Make your appellate brief a work of literature.
  2. Paper the file. Criminal lawyers often are retained on a flat fee. So, we really don’t have the incentive to document our time the way civil lawyers do. Change that. I started managing my practice on RocketMatter. RocketMatter has a nifty feature where you can turn on a timer every time you speak to a client. Use it. Whenever you decide to exclude an issue, write about it. Whenever you decide that you will not pursue some issue your client suggests in a letter, write it down. Note why you are excluding. Make your file bad-ass.
  3. Answer ever letter your client sends. Even if it is to say, “Dear Mr. Smith. I received your letter of August 2, 2010. I have read it and will consider carefully the important issues you have raised.” Then see item 2 aboce.
  4. Read Jones v. Barnes. Then read Jones v. Barnes again. It is an appellate lawyer’s best friend. Thank you, Justice Burger. Thank you, too, Justice Jackson, for you eloquent words that made it into the opinion. It’s good when trial lawyers get on the United States Supreme Court
  5. If habeas counsel calls you, by all means call back. See where he is coming from. Be honest. Help if you can. But I don’t advocate “falling on the sword.” People who fall on the sword die.
  6. Take pride in your work. Be a craftsman in all that you do.
  7. Dress up for the hearing. You’re a lawyer when you testify. So, dress like one. Even though you are driving as far as the interstate goes. Then you are exiting. Then you are driving on a two-lane road. Then you are driving down a dirt road. Then you are hacking your way to the parking lot at Shawshank with a machete, dress like a lawyer. Your not just any witness. You’re a lawyer who takes pride in your appearance. If you’re really feeling on your game, wear a bow tie.

Be a good lawyer, so that you can be a good witness. Reward the habeas counsel who calls you and prepares. Take a good hard look at your work. Be honest. And wear a red tie. Even if it’s a red bow tie

Decline.JPGLaw is a business. But it’s not just a business. It’s a calling that brings with it certain duties to advise with the client’s best interest above the lawyer’s profit motive. If there’s a theme that runs throughout the stories clients and families tell me at consultation, it’s hopelessness combined with desparation and mistrust.

By the time people are exploring a habeas, there’s been a trial and an appeal. Obviously, nothing has gone well. There has been either a lengthy period of incarceration or a frustrating number of dead end attempts to find jobs, obtain a license, or gain admittance into a school. Right or wrong, there is a sense of frustration. It would be easy to cash in on that with false promises or through pitting client versus trial counsel.

Don’t do it.

I don’t want to sound like a judge at a CLE, but it is important to consider the lawyer’s ethical responsibilities in such a situation. Here’s Rule 2.1 of the Georgia Rules of Professional Responsibility and a Comment.

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

I think that this is the Bar’s way of saying, “dude, don’t act like a used car salesman” (with apologies to used car salesman). We aren’t just selling services. We’re dispensing honest professional advice, and the responsibilites must outweigh our profit motive. The comment is even more telling

 

A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

It doesn’t get more unpleasant than telling someone with a life sentence or virtually a life sentence that perhaps the money that could go to hiring you would be better used elsewhere, but I believe that many situations call for this advice.

The difficulty is learning when you should discourage representation. Lately, I’ve used this method when someone comes to me about getting hired.

  1. Information gathering. This is the really basic stuff. When was the conviction? What was the crime? Was it a plea or a trial? If a plea, was it non-negotiated? What county? What court? Where is the potential client incarcerated? What’s the goal? Is it to set the conviction aside and take negotiate something better, or is it to take a crack at beating the charge at trial? Who was the trial lawyer?
  2. Issue spotting. Sometimes you can do this in the office. If the conviction was from a plea, you can sometimes review the plea proceedings and make a determination.
  3. Getting retained for exploratory purposes. If you cannot determine what the issue is from an office visit and the process of finding out could be lenghty, sometimes I will agree on a fee to investigate the case to see if there are any issues that would merit a habeas. Sometimes, I agree to make a few phone calls informally to figure it out. Different cases demand different levels of exploration.
  4. Exploration. In the bigger cases, I like to read the original record, speak with the client in person or on the phone, call trial counsel for an interview. Calling trial counsel is generally a must. Trial counsel will tell you a great deal about what issues might remain, why a course of action was taken, whether there were problems in the attorney-client relationship, whether the lawyer is amendable to considering an ineffective assistance of counsel plea. Sometimes, I will try to speak with the prosecutor to test out amendability to a consent. Sometimes, I choose to wait on that conversation.
  5. Reporting back. I then will report back with an honest assessment of whether I believe that there are issues of merit. If we choose to go forward, then I am retained to do the habeas case.

If I could put a big huge star by anything above, it would be the part about talking to the trial lawyer. Don’t wait until the day of the habeas proceeding or until days before to contact trial counsel about the case. Engage early and often. You may get a completely different version from what the client has told you. It may be the same. Sometimes the lawyer will seem more credible. Sometimes, the client may seem more credible. Sometimes, you can corroborate one claim over another. Sometimes the lawyer screwed over the client. Sometimes, the client was unreasonable and this conversation will save you from engaging in a similar relationship.

Often, the lawyer will be of assistance to you and save you hours of investigation and work.

And if I could put an even bigger star by anything above, it would be the duty to tell the truth, even if it means turning the fee away. I believe that in the end, 2.1 can be your guide. I also believe that you will profit more from the kind of reputation that rule 2.1 will give you than from any one fee — particularly if you shirk your responsibilities and get a reputation in the Courts as a guy who’ll bring any old case for a fee. Plus, the talks you’ll have to have later in the case when your client realizes that the gig is up outweigh even a huge fee.

iStock_000013344347XSmall-1.jpgI am helping out at Mercer University Law School by teaching a course there called the Habeas Project as a fill-in. The course is more of a small law firm than it is a class. Eight 2Ls and 3Ls work on real cases involving habeas corpus cases at the trial court level and on appeal, direct appeals, and parole petitions. Each student is required to visit the client, keep up correspondence, maintain the file, reseach, write, and all the other things lawyers do. So far (two weeks in) I am having a blast. The students are very motivated.

Yesterday I started the class with an overview of habeas corpus law in Georgia. An overview is pretty much necessary because the procedure, even the basics of it can be pretty complicated. Over the years, I’ve explained it countless times in prison visitation areas and around the little round conference table in my office.

I find, sometimes, that I explain things the way I give driving directions. I can drive you anywhere. Explaining it is a different matter. Last night, I think I figured out way to explain it that works. I may be brining it out in future client meetings, perhaps pared down, assuming that it’s the right client or right family. At least, I’ll keep the concept.

I fired up iThoughtHD on the iPad. iThought is basically an iPad mindmapping application. Mindmapping is great for planning just about anything, including a trial, a brief, or a class. The great thing about this application is that it works with VGA output. So, I used it to guide the lecture. I later emailed it to the class as a reference.

It certainly doesn’t capture every nuance. There are about a thousand different crazy things that can happen along the habeas road in Georgia, which leads to some of our cases. But the basic — here’s what a habeas is — can’t hurt.

I’m sure I’ll tweak it in the future, and it has some problems. But it got the job down. If you are new to habeas, maybe it will help you get started. So, Georgia Habeas Corpus Overview.pdf.

sad business man.JPG

The Walton County Examiner features an interview with Anthony Carter,
Joshua Hames’s original lawyer. Mr. Hames just had his conviction for felony murder related to a hunting accident over seven years ago, reversed on appeal In that interview, Mr. Carter explains
that the case still haunts him and that he followed it after he was
replaced by private counsel. Look closely, and you can see the irony
dripping from the page.

Mr. Carter was originally appointed to represent Mr. Hames when he was
charged with the shooting death of his brother while the two were
hunting in Walton County. When the lower court refused to
grant Mr. Hames a bond, the family went with private counsel.

It appears that the State believed that Mr. Hames intentionally shot
his brother because he was originally charged with malice murder and
various other charges. When the trial ended and the dust cleared, Mr.
Hames was acquitted of malice murder but convicted  of felony murder
for a hunting violation that resulted in the alleged victim’s death.

The only problem was that the State failed to allege or prove an
essential element of the offense. Well, that’s not the ONLY problem.
The other problem is that trial counsel never noticed that there was
an element missing or that the State failed to put up any evidence to
prove it. And there’s another problem. Trial counsel did not notice
the problem on appeal either.

Mr. Hames set about challenging the conviction himself and learned,
apparently from digging around in the prison law library that he was
in prison for life for felony murder when the State was an essential
element shy of proving the felony. He filed a habeas corpus petition
on his own and won. The State appealed the grant of his habeas —
apparently not wishing to concede the impropriety of imprisoning a man
for life for an unintentional killing without a crime alleged or
proved as the underlying felony.

Justice Nahmias wrote the opinion (PDF) for a unanimous Supreme Court
ordering his release seven years after he began serving time for
murder.

Sounds to me like the wrong lawyer feels haunted.