It’s been a bad month for my most recent crop of Supreme Court cases, both in terms of cases where I represent the party and in cases where I am amicus counsel. But I try to learn from them all. And here’s my takeaway from the month. To have and cite a case is not the end of the story, particularly if the precedent was set in the Court of Appeals and hasn’t been heard yet by the Supreme Court. This was the lesson I take away from State v. Thackston. The Supreme Court there overturned a few decade’s worth of precedent to hold that the exclusionary rule does not apply in the probation revocation context. Blue Line Lawyer aptly points out that officers who search in violation of the 4th Amendment can still be held liable  in a civil rights action. Then again, we’re in the 11th Circuit. My initial reaction was, “this is terrible.” Then came Black Monday, where two cases of mine (one as amicus counsel and another as party counsel) went south. I’ve now had a few days to reflect. And during that time I was writing a brief in a murder case.

In that murder case,an issue arose where the precedent looked pretty bad on an issue. So, taking some advice from an appellate judge who spoke to my class earlier this year, I dug a little deeper to see what lies behind the holding in the recent cases. I took the Court of Appeals holding that I did not like, and I began tracing the precedent backward, all the way back to when the Supreme Court first commented on it. How old was the case? It involved a search incident to arrest in a buggy (the horse-drawn variety). I learned that the Court of Appeals, in the 1970s and 1980s took the line of cases from the Supreme Court and twice took the precedent way out of context. And the Supreme Court never adopted the new reasoning. If the Supreme Court could reverse decades of precedent from Thackston because it wasn’t their precedent, then surely they wouldn’t appreciate the Court of Appeals taking their case law out of context and expanding it.

But my point is that it is important not to view precedent as the end of the story, particularly if the Supreme Court has never visited it before or if a line of precedent has developed in both courts. It’s important to track the history of the cases with Article I, Section 1, Paragraph 3 in mind (“The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedent.”). In the murder case, the Thackston case reminded me that the bad case I found wasn’t necessarily the end of the story. And an issue I might have been tempted to abandon became a significant part of the brief. With a Supreme Court more willing than ever to consider old arguments anew, it is important to look a little deeper even if the first wave of cases on your Lexis or Westlaw search are less than inspiring.

Blank Slate.jpgThere are two big stories in the Georgia Supreme Court’s decision in Jackson v. State. The first is that the rule of causation for felony murder that had been in place for thirty years has been changed. The second is that the majority has provided a framework for any appellant to use in future cases to use to attack the concept of precedent itself. While it probably is intended as a tool for the State to use against persons charged and convicted of crimes, it is worth a try on your client’s behalf. Precedent doesn’t mean what it used to mean, and by “used to” I mean before the Jackson opinion came out.

This opinion has several moving parts. So many, in fact, that I wrote up a State v. Jackson mindmap.pdf for use in interpreting and following it. 

Facts and Procedural Posture

Factually, the case reads like a case out of a law school exam. Carlester Jackson, Warren Smith, and Jerold Daniels decided to rob a drug dealer. Daniels approached the intended victim with a handgun with Jackson nearby in a getaway car. The victim and Daniels exchanged gunfire and Daniels was killed by the victim who was acting in self defense. The State charged Jackson with felony murder for causing the death of co-conspirator Daniels while all three were engaged in the felony act of armed robbery.

In short, the issue in the case was whether a co-defendant can be charged with, prosecuted, and convicted for the death of a co-defendant at the hands of a victim who kills another co-defendant in self-defense.

The trial court followed precedent and dismissed the charges. The State appealed the dismissal specifically to ask the Supreme Court to overrule Crane v. State, the case that said that such a prosecution could not be brought.

The Supreme Court reversed the trial court, overruled Crane, and set up a new test — a meta-test — to use to determine which precedents are worthy of standing and which ones ought to go. 

Continue Reading A New Approach to Felony Murder and a New Template to Attack Precedent in Georgia