Georgia superior court judges have pursued some polarizing changes to the way they are regulated. Now, they want to impose strict restrictions on the public’ ability to record what happens in open court. On January 17, 2017, they will begin considering a new superior court rule that will give Georgia judges unprecedented control over their courtrooms. I have never been a superior court judge and don’t feel qualified to know the ins and outs. Judges have done a great job of getting their way with the legislature, and they have put in a sustained effort to clamp down on attempts to record what they do in the courtroom. So, it may not matter what critics or the public think.

Judges say that their position is credible because they like to have power over the people who come before them, whether parties, their lawyers, jurors, reporters, or spectators who want to come in and watch what happens. And judges have the ear of powerful legislatures, as a recent episode of This American Life demonstrates. Georgia jurists did not like the idea of an ethics committee telling them how to run their courtroom. So, they convinced some friends in the legislature to put the ethics committee under the legislature’s control.

Now, they are pushing new revisions to rule 22. This rule would give judges the power to hold in contempt a spectator in a courtroom who turns on a recording device (for instance, just about any smartphone). Even if the recording process is not disruptive, a spectator who records a judge, if the rule is enacted, could be summarily jailed:

(3) Spectators: All spectators while in a courtroom must turn the power off to any recording device while present in a courtroom. No use of any recording device is permitted unless authorized by the Court.

There are all sorts of arcane rules for spectators or attorneys to ask to use recording devices in the courtroom. And judges have great discretion to say “no,” upon such vague ideas that the act of recording would be “undignified.”

Critics claim that the rule is essentially a power grab. They are suspicious that judges are going to such lengths to shut down efforts to record what happens in their courtrooms. They reason that if judge have nothing to hide, why would they care if proceedings are recorded? These critics believe that there are some fairly ridiculous problems within the rule. For instance, spectators absolutely must power off recording devices in the courtroom. And they can only record upon proper request if they somehow learn how to make a proper request.

Critics think that this new rule is a thinly veiled attempt to prevent judges from getting caught doing things they should not do, such as the Cobb County Judge who was caught engaging in conversation with prosecutors about criminal cases while the defendants’ lawyers were not present. In fact, the superior court is harshest on attempts to record in a courtroom while court is not in session — exactly the setting for the Cobb County judge’s misdeed.

The rule is friendlier to parties or attorneys who want to record. But critics of the proposed rule would point out that parties and attorneys are least likely to rock the boat by asking to do so. They want to stay in the judge’s good graces because the judge will either decide the case, will decide what evidence the jury gets to hear, or will decide how long somebody goes off to prison. A spectator, on the other hand, has no dog in the fight. A spectator is not out to impress the judge and could care less if the judge is angry at her. And, wouldn’t you know it, spectators would be most restricted from recording if the rules passes.

Judges just think that that the critics of the rule are trying to interfere with their courtrooms. They’re the judge, so we should trust them with maximum control.

Personally, because I have to practice in front of these judges, I endorse the proposed rule change. But I note that many people are appalled by it. And many critics find it ironic that judges attacked the JQC because they claim  it sanctioned judges in a Star Chamber environment. But for the people who appear in front of those judges, the Star Chamber is just fine, thank you very much.

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

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

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

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

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

Just a thought.

I meant to write a post on this topic at the end of the legislative session. Very late in the game, the Georgia General Assembly radically changed Georgia’s Judicial Qualifications Commission, the ethics watchdog agency for Georgia judges. Shortly after these changes were made, the head of the JQC very publicly resigned.

I have mixed feelings about the changes. And, full disclosure, I was amicus counsel on a fairly public JQC matter last summer. At times, the JQC acted a bit heavy-handed in they way they dealt with some judges. And, as I’ve commented here in the past, the agency had a certain Star Chamber quality to it.

However, they did fine work over the years. And, as a result of their stronger years, there are whole circuits that are not only more pleasant places to be, the Georgia bench as a whole seems somehow more advanced than it was when I first started practicing. I hope that we are not returning to what the bench was like back in the early 2000’s.

And I wish that the solution had been something other than gutting it and politicizing its process. Ideally, its work would have been done more in the open. It remains to be seen where the JQC is headed. But I don’t think that matters look good.

Jeff Davis has been appointed as the new Executive Director of the State Bar of Georgia. Before that, he was the Director of the Georgia JQC, the agency that governs ethics and Georgia judges.

Georgia lawyers and citizens should be proud. I don't know much about the JQC from before Mr. Davis was its director, but I know for a fact that the JQC had some teeth while he was in charge. In the last five or so years, the JQC has made the judiciary a better place. In fact, I would credit the JQC with bringing several judicial circuits not only into the 21st century but out of the 19th.

Under his leadership, many judges are gone who needed to go. And at approximately the same time that Mr. Davis's new job was being announced, the JQC was being recognized with a First Amendment Award for its work in ensuring that courtrooms were made more open to the public.

Congratulations to Jeff Davis. If you see him, thank him for his public service.

Robin McDonald of the Fulton Daily Report notes in a story today that Murray County Magistrate Judge Bryant Cochran resigned his post as Chief Magistrate Judge. His resignation letter departs from they typical fare of this genre — quivery sharky handwritten script, tendered to Richard Hyde. He doubled the average sentence length to two whole sentences. And the content is different, too.

Judge Cochran made clear that his resignation was not related to allegations that he used the power and prestige of the office of Magistrate Judge to pick up girls (Indeed, one would think that being a county magistrate judge would be an impediment to wooing. You’d want to say vaguely that you are a “judge” or more vaguely “I work at the courthouse.”).

He also noted that the resignation was related solely to the fact that he handed out signed blank warrants to law enforcement. In a written statement that his lawyer forwarded to the Daily Report, Cochran said, “I accept full responsibility for the warrants that were pre-signed.”

It appears that Judge Cochran’s practice was only a slight departure from the way things typically work in the warrant-granting process statewide. You’re suppose to rubber stamp the warrant after the cop fills it out, not before. Judge Cochran’s departure saddens me more than any of the 8,000 other judicial resingations in the last 3 years because his practice was a rare honest statement about how the role of magistrate works. This is the very practice of judicial efficiency and economy that we heard so much about in law school.

Indeed, I was hopeful that the original story was true that his staff actually controlled the issuance of the blank warrants. I would think that a law enforcement agent would actually have work to get a warrant from a clerk.

This won’t end well. Anthony Peters, the former Catoosa County assistant Magistrate Judge has filed a civil rights suit against the his former boss as well as the Sheriff of Catoosa County. When I read Joy Lukachick’s article (hat tip to her) in the Chattanooga Times Free Press about the lawsuit, I had to pull the Complaint off of PACER, the same way rubberneckers have to slow down to watch the traffic disaster in the oncoming freeway.

And, to my fellow rubberneckers, I offer this Complaint for your entertainment. Take a gander, and sleep well in the assurance that there is some lawyer out there who will file your lawsuit for you. No matter how many lawyers have turned you away, don’t be deterred. You will meet the right lawyer one day:  Peters Complaint (PDF).

Continue Reading Ex-Magistrate’s Lawsuit Blackens Eye of Ga. Judiciary

The Lawyerist wrote an evocative post last week about when and how to object at trial. In it, Andy Mergendahl notes that “Objecting at times other than when absolutely necessary to keep crucial inadmissible evidence out will really hurt you.” He advises, instead, to handle as many objections as possible as motions in limine.

What I Mean by “Evocative”

When I said that the article was evocative, here is what I mean. At first blush, I was not keen on what he had to say. As an appellate lawyer, I read far too many transcripts where great issues are waived because there was no objection at trial or pre-trial motion where the appellant moved to exclude things. So, from the perspective of an observer who views many trials through the rearview mirror of the trial transcript, my first reaction was “you gotta be kidding me.” I have always wished that lawyers objected after just about every sentence spoken at trials. Why would anyone suggest that objections are a lose-lose proposition? Then I read and thought. And I concluded that he’s actually right.

Why Trial Objections are a Lose-Lose Proposition

What makes an objection a lose-lose proposition? Assuming that you win the objection, you actually lose because the jury could well figure out contextually what the evidence is or would have been. The jury thinks you are being slick and trying to hide things.

And if you lose the objection, you lose in multiple ways. First, you lose the objection. Second, the jury thinks you were hiding something. Third, you emphasize the stuff you were trying to keep out as particularly harmful to you. Finally, the guy with the robe on peers down over his glasses and proclaims publicly that you were wrong.

But again, what about the record?

Save Trial Objections to Crucial Make or Break Points

But I thought about it some more. And I actually think that he is right. Mr. Mergendahl did not say never to object. He said that it is best to save objections for “crucial” issues. Of course, if you have prepared well for trial, chances are that you have thought out what the most crucial issues are. And those issues are best handled in pre-trial motions. In a pre-trial motions setting, everything is handled while the jury is not around. The jury hasn’t already heard enough from the question to figure it out. You have put a great deal of thought and research into the issue. The judge has more time to think about the matter. And you are more likely to make a good record. If a proffer needs to be made, you are in a position to do it.

Beware the False Sense of Record Protection When You are Fighting Over Trivial Things

Actually, most of the junk lawyers fight over during trial has nothing to do with the outcome of the case. Think about the last time you objected in court. Were you really building a record, or were you really engaged in a pissing contest about the form of questions?

If you are enumerating as appellate error a trial judge’s ruling on “asked and answered” or “leading,” it’s time to go ahead and tell your client to unpack that last suitcase in his cell. Or a higher percentage way out of all of this mess may be a hacksaw hidden in a cake.

The real problem is not the failure to object during trial. Rather, the problem is that too few lawyers think through or have a reliable model for predicting what the big evidentiary and constitutional issue will be. And often it occurs to them in the middle of the trial, if ever. At that moment, they start blindly objecting. Next time you are in court and you see two lawyers really get into a fight over objections, I’d be willing to bet that you will really be watching a debate over the form of questions and not the substance of the evidence being admitted. And I’d also be willing to bet that you will be watching a debate over questions of leading, whether the question was “asked and answered,” or whether the question is argumentative. I won’t bet, I’ll guarantee, that neither lawyer is scoring any points for the appeal in this debate.

A Bunch of Objections to Form are no Substitute for an Appellate Strategy

But we’ve barely scratched the surface, dear reader. When you start objecting ad hoc in the midst of a trial with no real appellate strategy, you have even bigger problems. Let’s list some of them.

  1. You focus on things that don’t really matter. Trial objections that are shot from the hip are largely about meaningless stuff. You are probably in a riveting debate over whether a witness is being “badgered.” When is the last time you saw a conviction overturned because a witness was “badgered.” And why the hell is badger a verb anyway?
  2. You lose sight of the fact that you are getting screwed by the trial judge no matter how the ruling goes. Suppose you win your big important leading objection. The judge sustains it. The prosecutor will re-phrase the question in some non-leading manner. The trial judge begins to appear magnanimous, and you look like you’re turning the whole process into a game of Simon Says. In fact, if you are in the latter stages of a trial, and the judge suddenly starts ruling for you, chances are that he thinks your client is getting convicted and he’s hedging his bets against your appeal. Some trial judges rule with you on “form objections” to make themselves feel better about what they are going to do to your client at sentencing. Show me a judge who sustains defense counsel’s every objection as to the form of the DA’s questions, and I’ll show you a judge who has his calculator out trying to figure out how best to light up the defendant when the sentencing starts.
  3. The “Kick Me” sign. Or if the judge is less subtle and has no interest in appearing magnanimous in front of the jury (the JQC is zapping most of these judges as we speak), your objection over some meaningless issue presents an opportunity to toy with you. You won’t have much you can do with it all on appeal because hearsay/leading/asked and answered/badgering comes under the huge umbrella of “trial judge’s discretion.” So, with the wrong judge, the exercise of objecting is like hanging a big sign around your neck that says “kick me.” And kick you he will.
  4. It all gets intoxicating. There’s an old adage that “to a man with a hammer, all problems look like a nail.” Criminal defense lawyers virtually never get told that they are right in a Georgia court. So, when you say “objection, asked and answered,” and the judge says “sustained,” it feels like you’re on a roll at the blackjack table. You’re the half-starved lab rat who was just been given a food pellet for touching the red button with your nose. You want to touch the red button again. And again. And again. The prosecutor, by contrast, is the hyper lab rat who gets an unlimited supply of cocaine pellets just for showing up in the maze. Our scientist, the judge, has suddenly removed a single pellet. And the rat is freaked. Suddenly there is a battle raging, little more than a contest of egos, over the form of an insignificant question. You aren’t on a roll at the blackjack table—you’re getting screwed over. Or maybe it is a blackjack table and you are winning. It’s just that the blackjack table is in the casino of a cruise ship. And that cruise ship is the Titanic.

So, yes, the Lawyerist is right, but for more reasons than he imagines.

The Best Time to Bring in Appellate Counsel is at Trial

I’ll end with a story from recent experience. I am appellate counsel on a case. And I was on the defense team at trial as appellate counsel (Not that anybody conceded defeat. I was sort of like an insurance policy). My role at trial was to keep an eye on the appellate record. I came to court for some of the pretrial motions, but during the trial I did most of my work from my office. The trial was televised and it was streamed online. I DVRed the proceedings. So, when issues arose, the trial team would call me. I’d review the proceedings. I’d draft the motion in the evening. And I’d watch the motion get argued the next morning before the jury came in or after the lunch break.

The motions I wrote were not about whether a question was “asked and answered.” There was some long-term strategy in mind. I was the one guy on the team who looked at all of the proceedings through the appellate lens all the time. And by not being present in court, I didn’t get emotionally involved.

There’s a really awesome thing about being an appellate guy on a defense team during a trial. You start thinking about how you’d like to see issues play out on the transcript. You think about what you’d love for the judge to say as he rules against you. You start thinking up the things that you’d love for the DA to say as he puts the squeeze on you at trial. If your motion prevents a bad ruling, cool. If the judge ignores you and rules incorrectly, cool. And as the appellate guy, you keep your fingers crossed that you lose some of those motions. You’d like to have things to discuss with the appellate court.

When an appellate lawyer cracks open the transcript at the beginning of an appeal, he hopes against hope that he doesn’t find a fair trial in those pages. The more rigged it was the better (and this is Georgia, where the JQC seems to remove a judge every day for rigging the game in one way or another. Lots of the trials are rigged.). For an appellate lawyer, the last thing you want to find is a trial that was fair. And in Georgia, you’re in luck … if you play your cards right. But how do you do that?

More objections are not the answer. The answer is a well-thought-out appellate strategy that begins when trial counsel opens the case at the trial level. The goal, after all, is to preserve issues that could win on appeal. The goal is not to get a series of “attaboys” from the judge or to turn trial into an academic exercise where advocates compete to see who craft questions in the best form.

 

Sweeping.jpgIt appears that the best place in the State to skirt the edge of the law is the judicial chambers of a Georgia court. If your crime catches the attention of the Judicial Qualification Commission and they investigate first, then you might lose your job. But that’s about it. Brian K. Finnicum, the Editor of the News Observer in Blue Ridge, Georgia, has a piece up in today’s paper describing how JQC has refused to release any information about former Superior Court Judge Harry Doss to DA Danny Porter, effectively shutting down his investigation for what may be criminlnal conduct.

According to Mr. Finnicum, Danny Poter, who was appointed as a special prosecutor to investigate whether former Judge Doss was involved in criminal activity, has closed his investigation after the JQC refused to provide him or his investigators with any information.

When Mr. Porter began investigating Judge Doss, the JQC told him that it would turn no information over to him voluntarily and would resist any of his efforts to obtain it voluntarily. So, Mr. Porter has packed up his tools and is refocusing on Gwinnett County. He said, “I have my own circuit to deal with. I entered into [the investigation] with the assurances from the investigaor that I would have cooperation, and that didn’t happen. I don’t have time to do anything further.”

From the perspective of someone who represents people who have been convicted of crimes, this whole system is disturbing. I already wrote about it last week.

The things that JQC chooses to sweep under the rug may be vital to people whose lives were impacted, perhaps ruined, by judicial decisionmaking. There may be reversible error at stake in both civil and criminal cases. A judge who may have committed a crime might have had an incentive to come down hard on criminal defendants in certain cases to please local law enforcement.

Not to mention the horrible double standard. My clients, whether accused or convicted, lose everything. They lose their job. They lose their freedom. Some lose licenses. Their reputations are often irretrievably trashed. And the whole think is officiated by Georgia judges. Yet, those same judges get punished by other judges, and the whole thing is suppressed, not only from citizens and the media, but from an elected District Attorney charged with investigating and prosecuting crimes.

And even if these people are innocent of crimes, the whole thing hurts the judiciary and the system as a whole. And it was bad enough before this all started.

execution.JPGRobin McDonald’s article poses the question of why the Georgia’s Judicial Qualifications Commission has zapped so many judges this year. The simple answer is that they deserved it. But, read a little more, and the story is pretty disturbing.  While the commission has taken out some judges who had it coming, I can’t say that its Star Chamber structure is exactly a good American idea. It’s also a little disappointing that it takes a Georgia judge actually getting indicted or acting like a character on Mad Men to get him removed, where plain old rudeness, unfairness, and reprehensible conduct on the bench has been ignored.

Put another way, it seems like it matters more to the JQC what a judge does in chambers with his zipper down than his conduct on the bench with his robe on and his zipper (presumably) up.

 

Take Caldwell

Seems Caldwell had a penchant for dirty texting and crude Georgia game tailgating behavior. And there was so much more. So, it appears that someone from the Star Chamber payed him a visit and he scrawled out a letter to the governor resigning his position.

If you think that was bad, you should have seen him in court. He was rude to defense attorneys, had a tendency to swivel his chair around and let you know he wasn’t listening when you spoke, didn’t rule on objections (other than to say “okay” or “I note your objection”). He once told me “if you want to argue, I guess I can’t stop you.”). His court was not a place you looked forward to going because you weren’t going to be treated professionally, particulalry if you weren’t the State. He would yell at attorneys appearing before him. He’d make it a point to embarrass you if he could.

Had I complained to JQC, they would have thrown the Complaint in the trash. It’s what happens off the bench that counts.

 

Enter The Star Chamber

JQC Chair, Benjamin Easterlin said that “I would not necessarily reach the conclusion that we have a bunch of bad judges out there based on the recent flurry,” and neither is it “a matter of us ratcheting up any investigative efforts.”

But I bet the numbers have always been high. We also have a governor in office who’s not a big fan of the judiciary who has gotten the opportunity to appoint a bunch of judges. Those things, I am sure Mr. Easterlin would explain, are coincidental.

Of course, we’re never really going to know what’s going on with JQC. Since 2008, only six judges have ever been publicly charged. It’s long-standing practice is to squeeze the judge to get a resignation, or in Easterlin’s parlance, to “give the judge an opportunity to resign.”

When asked about whether the public had the right to be informed about the Commission’s actions, Mr. Easterlin said that such things are just gossipy: “I’m not sure what the public benefits from knowing that somebody did something bad.”

They are serious about the smoke-filled room thing. If you complain to the JQC and tell anybody about your complaint, you can be held in contempt for talking about it. Gerald Weber, former director of the ACLU in Georgia, sued the JQC on behalf of a jury foreman who had complained about a judge who fell asleep during a trial. The JQC fought that suit vigorously.

The other problem with squeezing judgees into retirement like that is that it presumes that the JQC is right and deprives the public of knowledge of misdonduct and parties who might have been harmed of their right to know.

I hate it, even if it got some people who deserved it.

Santa on Vacation.jpgI don’t want to bury the lead. So, here it is. There must be enough error out there in Georgia to win a slew of appeals. Georgia judges must be messing up on hearsay, the Fourth Amendment, and jury charges. All those things are hard. Many of them, so far this year, are messing up on more basic things such as — do keep your hands to yourself, do show up for work, don’t make Facebook friends with a woman you think is hot and offer advice on a case pending in your court, don’t go parking with a public defender assigned to your court, and don’t — well, don’t do any of that Johnnie Caldwell stuff. Seriously, if Georgia judges haven’t nailed down those basics, then it’s very likely that some good objections at trial will probably produce some reversible error at trial

 

A Recap of Today’s News

It’s a good thing no apartments caught on fire in Atlanta today, because tonight’s 6 o’clock news was all about judges. First, Judge Kenneth O. Nix, who had been a judge since 1982, abruptly resigned today in the wake of what he called a “misunderstanding.” A female ADA assigned to his courtroom and a female investigator posed for pictures in his lap and apparently became upset after he, in his own words “flicked them both on the fanny.”  The incident landed the Georgia judiciary back in the national news. The local broadcast media also covered the story. Judge Nix was apparently known to dress as Santa and have people sit in his lap. 

Meanwhile, the local broadcast media covered the abrupt resignation of Fulton State Court Judge Albert Thompson after a local media outlet examined records that showed he only entered the courthouse 55 weekdays aout of a possible 147 weekdays that the courthouse was open. In a 30-week period, he spent about 43 minutes per week in the courthouse.

 

More Judges in the News

The governor announced his replacement for Paschal English and Johnnie Calwell. Speaking of Santa, Judge Caldwell apparently had a Santa complex also. Their replacements were announced today — Fayette County State Court Judge Fletcher Sams and Former GPDSC head Mack Crawford. Mr. Crawford’s nomination had moments of controversy when Stephen Bright, of the Southern Center for Human Rights wrote a letter to the Judicial Nominating Commission opposing him as judge (PDF). Of course, the abrupt resignation of Caldwell and English was news when it happened.  The announcement of their replacements was news today

 

And There was the Facebook Judge

Remember Judge Ernest Woods a/k/a Bucky Woods who got the ball rolling back in January, 2010? Seems so long ago and so many judicial scandals back. He was the first Georgia judge to get zapped this year based upon some Facebook contact with a local hair stylist who had a case pending before him. Katheryn Hayes Tucker covered the story on Law.com way back then. 

 

And My Point Is

The point of this story is not that Georgia has suddenly become a giant Scott Turow novel — though that point could be made and defended. My point is not that there is some sort of conspiracy afoot to put more Sonny Perdue appointees on the bench — though that does sound interesting.  The point is that if Georgia judges are messing up on the basics, then you’ll likely get some mistakes on the record if you just object more. Who knows, after all, what Santa might bring. 

 

And the Box Score

Number of Chief Judges who Abruptly Resigned: 4

Number of Times Santa Claus was Referenced: 2

Number of Times “Some people claim[ed] there’s a woman to blame:” 5

Number of Resignations letters referencing need to spend time with family 5