Yesterday, I assisted with an oral argument at the Supreme Court of Georgia. I was on the 2pm calendar (The Court usually sits in two sessions). As I often do when I have an afternoon calendar, I watched the 10am session online. I’ve written before about the value of watching other cases  on the calendar when you have court. It’s a good way to get oriented if you’ve never been to the court before or to take the temperature of things even if you have. You can do that virtually at the Supreme Court before you leave your office.

Today, I opened a window on my computer and watched some oral arguments from today’s sessions. There’s a link on the Supreme Court’s homepage, and this one may work, too. The Court also keeps an archive of the current term’s arguments online. Don’t have time or a way to read the briefs that go with the argument? The Court has this covered with well-written summaries. Want to find out how it all turned out? The opinions are also available online.

Lawyers 100 years ago or even 10 years ago couldn’t have imagined that such a resource as this would be around and would have loved to have something like this. All of the better lawyers I know read the Opinions Weekly from the Fulton Daily Report or some form of advance sheets. It’s a good practice but a monotonous one as you search for the criminal cases of significance (most aren’t particularly significant in the criminal realm). A practice of regularly watching argument at the Supreme Court is similarly worthwhile

Looking for a good way to figure out which cases are most worth watching? Cases where the Court has granted cert. to review a Court of Appeals case or where the Court has granted a habeas petitioner’s Application for Certificate of Probable Cause to Appeal tend to be more exciting. Look for a (G) in the case number for cert. cases or an (H) for habeas cases. The website is a good place for non-lawyers to learn how the Court decides cases, for lawyers to keep up with developments in the law, and for lawyers to prepare for oral argument (by seeing what to do and what not to do). Murder appeals and family law appeals tend not to draw questions from the justices.

Today, the Supreme Court released two opinions that define standards for defense lawyers during criminal plea bargains.

First, in Lafler v. Cooper, No. 10-209, 566 U.S. ___ (2012), recall that Cooper was charged with assault with intent to murder and possession of a firearm. Cooper rejected a plea bargain after his attorney (wrongly) informed him that the state could not prove intent to murder since the shots were fired below the waist. Cooper was later convicted after a trial and received a harsher sentence than the original plea bargain.

In a five to four decision, the Court vacated the lower court’s decision and held: “Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.”

Justice Kennedy, relying on Missouri v. Frye, an opinion also released today, explained that:

“the right to adequate assistance of counsel cannot be defined or enforced without taking into account of the central role plea bargaining plays in securing convictions and determining sentences.”

Justice Kennedy was supported by Justices Ginsburg, Breyer, Sotomayor and Kagan.

Next, in Missouri v. Frye, No. 10-444, Frye was not informed of favorable plea offers before he pled guilty to driving with a revoked license. He was later sentenced to three years in prison—a sentence much harsher than the plea offers.

In another split decision, the Court held that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected, and applies to “all ‘critical’ stages of the criminal proceedings.”

This holding concerned Justice Scalia, who was joined in his dissent by Chief Justice Roberts and Justice Alito: “While the inadequacy of counsel’s performance in this case is clear enough, whether it was prejudicial (in the sense that the Court’s new version of Strickland requires) is not. The Court’s description of how that question is to be answered on remand is alone enough to show how unwise it is to constitutionalize the plea-bargaining process.”

In addition to written opposition to the Court’s holding, Justice Scalia reportedly gave an oral dissent, referring to the majority decision as “absurd” and “unheard-of.”

In short, both decisions clearly recognize a Sixth Amendment right to effective assistance of counsel at the plea bargaining stage, even though there is no constitutional right to a plea bargain.

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

iStock_000004482335XSmall.jpgAdam Liptak’s recent editorial in the New York Times will provide comfort for those of us who have watched the legislature and governor gut indigent defense in Georgia and attack the judiciary systematically. At the same time, it is a little embarrassing to read about the system that I love so much and wonder what the rest of the world must think of us. Reading national press on Georgia during the civil rights movement must have been like this. At the same time, the heroes in this story, such as those with the Southern Center for Human Rights are Georgia appellate lawyers working to make a difference. So, there’s a good bit to be proud of, too.

In fact, the Jamie Weis story demonstrates the difference appellate lawyers can make for the client and to the very system that has so far undermined him. It makes me proud to be a Georgia criminal appellate lawyer.

So, in case you missed it, here’s the story. Jamie Weis was indicted for murder in the Griffin Judicial Circuit. He has been in jail awaiting trial since 2006. August of that year, he was noticed with the intent to seek the death penalty. By March, 2007, the lawyers who had represented him for the beginning couldn’t get any more money to fund the defense. The State has adequate funding to try to convince a jury to kill Mr. Weis. But when the money ran out, the prosecutors were allowed to pick their opponent. They convinced Judge Caldwell — yep, that Judge Caldwell — to replace the lawyers with salaried public defenders. On its way to issuing a  4-3 Decision (PDF) determining that it was okay to substitute cheaper lawyers chosen by the State, one of the justices suggested at oral argument that defense counsel should work for free. He never suggested that the judge or prosecutor should work for free.

The damage has continued. Recently the Court dodged a similar challenge out of Cobb County, Phan v. State (PDF) where it had another opportunity to declare that indigent defense in Georgia is broken. They punted the case back to the trial court to make a determination that it had already made. Phan is to Weis what those two little girls are to each other in the Overlook Hotel in The Shining — not quite identical but really disturbing.

But there is hope in the combination of Georgia Appellate Lawyers, the U.S. Supreme Court, and recent media attention. Hopefully, all of those forces can overcome the other two branches of government in the Georgia political establishment (see the reference to the girls from The Shining).