A lawyer wrote me yesterday with an interesting question. The lawyer is writing a Brief of Appellant where the client was convicted of child molestation. The lawyer’s question was whether it was proper to use the victim’s name in the Brief. Are there any rules or traditions that govern the use of the victim’s name?

Of course, how you label or name people is an important strategic consideration no matter what the age of your prosecuting witness. It is also a strategic consideration when you are referencing the judge in the lower court, the prosecutor, witnesses and other components of your appellate cast of characters. The government thinks about this stuff, also. It’s why your client is called “the defendant” before the lower court and the “appellant” in the Court of Appeals. It’s why you call the person that the State calls “the victim” the “complaining witness” or the “prosecuting witness.”

Most of the time, the trial court is the “court below.” A few years ago, the judge in “the court below” had been removed from office by the JQC, the agency that governs judicial ethics. The whole matter became a public spectacle. By the time that case reached the appellate courts, the lower court was changed to the judge’s name, a name I used throughout the brief. Sometimes, my opponent is the “appellee,” sometimes my opponent is “the State” or “the Government.” Recently, in a case where a DA had met a similar fate to the judge in the JQC matter, the State had a name, too.

When it comes to minors, it’s generally best to be classy and respectful. My default is to use initials. Although how you reference the minor is really a matter of preference as long as the name of the witness is listed in the indictment and is referenced in the transcript. The cat is already out of the bag, so to speak. If the complaining witness is a very young child, and the issue is that she was victimized by folks who influenced her memory and testimony for their own ends, then initials are the way to go. In that instance, perhaps the word “victim” is okay, too. She was victimized by those who twisted her words or memory to lie about  your client. If the complaining witness is older, perhaps a teen, and your defense is that she has fabricated a story for some selfish reason, then perhaps it would be okay to use the name. If you want to emphasize maturity and sophistication, then Ms. Jones or Ms. Smith is the way to go. A “Ms.” sounds older than a first name, after all, and much older than a Miss. But even then, I’d use the same sparingly and for those witnesses with the most serious of palpable credibility problems.

There’s no real rule here. What do you do in these situations? Would love to see some comments in this regard.

A blog post I wrote a week ago about GPDSC’s alliance with the Attorney General’s Office to oppose the Georgia Bar’s formal advisory opinion regarding imputed conflicts for indigent defendants inspired a few comments over on my Facebook page. A friend of mine who is a former assistant public defender commented:

The absence of conflict-free counsel is hardly the most shocking failure of the current system. When I was an APD, I carried 50-70 cases on a trial calendar at once. I had no idea which case would be tried when. I was expected to announce “ready” in the vast majority of my cases.

Assistant public defenders often carry a much higher caseload than ABA Standards would allow. I point out the state of affairs in no way with the intent to bash individual public defenders. Indeed, for many, the role of public defender is a noble calling. And some of the most talented appellate and trial lawyers are know are public defenders. My critique is more systemic.

Rather, the lack of resources for public defenders, in terms of money and personnel, is at the level of crisis in Georgia. We have a system in place operating without a committment to run it properly.

Unfortunately, for a defendant who finds himself convicted in the midst of this crisis, appellate courts are not going to be receptive to an ineffective assistance of counsel claim. Rarely, likely less than 5% of the time, does an IAC claim work because the standard for effectiveness it the ultimate low bar.

And the greater problem, at least in Georgia at the state level (there are a few county systems in Georgia that are wonderful), is that the free market is a greater delivery system for criminal defense representation than is the government. Of course, the indigent cannot enter the free market. Meanwhile, the government is quite a deadly deliverer of prosecutions.

I wonder if it isn’t time for a “no defendant left behind” model, which would provide government vouchers for indigents to hire criminal defense counsel.


politician.JPGBill Rankin at the AJC reports that the 11th Circuit Court of Appeals has reversed a Federal District Court’s dismissal against former Clayton County District Attorney for an alleged violation of his First Amendment right to Free Speech. This is the latest chapter in what was a debacle of a tenure for. Mrs. Scott as the District Attorney in Clayton County, Georgia. Mrs. Scott and husband Lee Scott were both elected to DA and Chair of the Board of Commissioners respectively. Both lost overwhelmingly in 2008. Their tenure in Clayton County accompanied a wholesale change in leadership in that county, including the election of Victor Hill as Sheriff, who promptly fired many sheriff’s department employees. As those employees left the building, Mr. Hill posted snipers on the roof of the law enforcement complex. When she began serving as DA, she had never tried a case to a jury. Mr. Hill’s time in office led to Federal suits as well.

In this particular instance, Ms. Scott’s chief investigator Earl Randall announced that he wanted to run against Ms. Scott’s husband, Lee Scott, for Chair of the Board of Commissioners. Mr. Scott reportedly pounded his fists on a table when he heard the news and demanded that his wife fire Mr. Randall and vowed to “destroy” him. Yes, sometimes the truth is stranger than third-rate melodrama. I’m sure that, when the lawsuit goes forward, we will find out that he exclaimed, “bwahahaha” shortly afterward.

Mr. Randall was fired, and he filed suit againt Ms. Scott individually, in her official capacity as DA, and against the current DA in her official capacity. 

The District Court dismissed the suit, reasoning that there is not First Amendment right to campaign for election, that Ms. Scott was protected by qualified immunity, and that the Complaint did not satisfy pleading requirements. Then the case went to the 11th Circuit, and the plot thickened.


Continue Reading 11th Circuit: Lawsuit Against Clayton County, GA DA Can Move Forward

Judge Debra BernesThe Honorable Debra Bernes has died of cancer at the age of 54. Bill Rankin at the Atlanta Journal Constitution has posted an article on her passing and her career. Judge Bernes will be remembered for many things including her illustrious, albeit too short career on the Georgia Court of Appeals.

Before beginning her service on the Georgia Court of Appeals, Judge Bernes was a long time appellate attorney with the Cobb County District Attorney’s Office. After a brief stint in private practice as an appellate lawyer, she ran for an open seat on the Georgia Court of Appeals.

Judge Bernes was elected to her seat after defeating Howard Mead, a candidate who greatly outspent her. Judge Bernes ran a grassroots campaign and won through a recount and a blitz of advertising by her opponent. Most importantly, she ran a clean and ethical campaign for judge. She showed that the high road actually works in statewide elections.

 I appeared in front of her for argument many times and wrote many more briefs where she was either on the panel or where she wrote the opinion. She was everything an advocate could ever want in a judge, particularly on the appellate bench. She was intelligent, hard-working, and she had a sense of compassion for the people who appeared in front of her. Above all, she treated you like a professional

Judge Bernes ruled against me much more often and she ruled for me, but every opinion was soundly reasoned, thoroughly researched, and reflected her best effort to apply the law as she believed it to be to the facts of the case. In a year of misconduct in Georgia that has given the judicial branch a black eye, she was a shining example of who a judge could and should be.

 Aly Palmer with the Fulton Daily report has also posted an obituary.


Ham Sandwich.JPGRob Teilhet’s controversial ad has made state and national news. According to the AJC and PolitiFact, the ad is “false.”  In an interview with done by Andy Peters with the Fulton Daily Report, Mr. Teilhet claims that he is more experienced than candidate Ken Hodges on the issues that matter most to being Attorney General. He also defends the ad.


The ad featuring the mother of an unarmed man shot and killed by a Muscogee County law enforcement officer who claims that Hodges did not get an indictment because he “forgot to swear him in, tried to hide the video, and then refused to reopen the case” According to MSNBC, the ad is “tinged with racial implications, as black voters could make up more than 50% of the Democratic electorate for the first time in this race.”  Politifact rates the ad as “false” in a story analyzing it.


Claim 1: “The officer got off because prosecutor, Ken Hodges, forgot to swear him in”

At the time that the case was presented to the grand jury witnesses were not required to provide testimony under oath. Teilhet argues that the unsworn nature of the testimony hurt public confidence in the evidence.


Claim 2: Hodges tried to hide the video


There was no evidence that the video was hidden from the grand jury. Mr. Hodges submitted a brief with the Prosecuting Attorneys Counsel of Georgia and the District Attorneys Association of Georgia against releasing the video to the public before criminal proceedings took place. The video, it appears, was available to the grand jury.


Claim 3: Hodges “refused to reopen the case”


Mr. Hodges made no recommendation at all to the grand jury and did refuse to convene a second one. The case was reviewed by the Department of Justice for a possible civil rights action, and the DOJ declined to bring a case.

The ad is perhaps misdleading but not, as PolitiFact/AJC reports, false. Prosecutors shape the action of grand jurors. The oft-repeated cliché is that a prosecutor could indict a ham sandwich.

DAs often use the grand jury as a filtering process to dump cases they don’t want to prosecute for whatever reason. DA’s could choose not to present cases at all, but using grand jury as a filter allows them to not bring cases for reasons ranging from the well meaning to the political. While nobody but those who participated in the proceeding will ever really know for sure, the failure to swear in the police officer might provide you a clue about whether Mr. Hodges steered this proceeding in a particular directions. The fact that he was brought on as a special prosecutor tells you that the case was a political hot potato.

What emerges from this story is not a false campaign ad but one with heavy spin. The facts will likely remain forever murky. The good news for Mr. Hodges is that this tape, viewed in a light least favorable to him, will likely make die-hard Republicans love him in the general election if he gets there.