New UGA Law Review Article Takes Georgia to Task for the Way We Handle IAC Claims

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I returned from vacation pleased to find in my in basket at the office a copy of Ryan C. Tuck’s article from the Georgia Law Review on the confusing state of the law as it relates to ineffective assistance of counsel in Georgia. The article is titled “Ineffective-Assistance-of-Counsel Blues: Navigating the Muddy Waters of Georgia Law After 2010 State Supreme Court Decisions.” This article is as good as its title is clever. The article centers on where the law in Georgia is after Garland and Moody.

And the news is not particularly good. And why am I excited about a law review article on a case I lost (sort of) and that demonstrates some issues with how we handle IAC claims in Georgia?

The reason is that maybe things will change. The way we do things in Georgia makes it tough to be a criminal appellate lawyer, disincentives trial lawyers from preserving issues for appeal, and needlessly separates the appeal from the trial in a way that interferes with attorney-client relationships and in a way that probably hurts the client in the long run. And this article give me some hope that the legislature will move Georgia to a system of handling IAC claims more akin to the majority rule.

Mr. Tuck picks up in a familiar place to me. Jim Bonner’s article in the Appellate Review, the Georgia Appellate Practice Section’s Newsletter covered some of the same ground.

What’s Wrong Now?

Under Georgia law, new counsel must raise ineffective assistance of counsel at the earliest possible moment, or he waives it. As claims go, IAC not really good. It’s rarely successful. I have litigated it more times than I can remember, and it’s worked on appeal exactly one time (it’s worked a few more times at the trial level, but generally with a wink and a nod as part of negotiations).

The problem is that clients think that it will work for them, and they pressure new counsel to raise it. There are many reasons why it should rarely be raised. For one, there rarely is a good claim. Secondly, it has a way of becoming the focus of the appeal. Third, even when it doesn’t it can be a big distraction from other real issues of merit. Fourth, analysis under the second prong of Stickland, invites trial courts to weigh in on how strong the evidence was against the defendant at trial. Such careful scrutiny of how good the State’s case was can have a spillover effect to other issues in the case making it that much easier to proclaim that other errors were harmless.

Pressures from the client and systemic pressures (raise it or waive it) can create a real conflict with the lawyer’s ethical obligations not to raise frivolous claims under Rule 3.1 of the Georgia Rules of Professional Conduct. To quote Mr. Tuck’s article,

By creating pressures for new appellate counsel to raise IAC claims against trial counsel, critics contend that Georgia’s approach contravenes this warning from Strickland [that there will be two trials. In the first, the defendant is tried. In the second, the lawyer is, as Mr. Tuck puts it “tried for IAC.”] and institutionalizes a level of antagonism between defendants and their attorneys that can be damaging to overall standards of representation. As one critic asserted, “[i]t causes hell for attorney-client relations if both know from the beginning that they will end up on opposite sides.

And from my experience, this issue marks the place where things can go bad between the attorney and the client. I don’t raise IAC unless I see at least a colorable issue and if it won’t hurt other claims by serving as a distraction and if the second prong won’t spill over into the harm analysis of other issues.

Where Should We Go From Here?

We should require that IAC claims be held until collateral proceedings and take them out of the direct appeal except in the rare case when it can be resolved from the record itself. And, the failure to raise it should not act as a waiver of the issue. It would better the system and make it easier to practice criminal appellate law. And, above all, it would protect the clients from going for a low percentage issue at the cost of other issues of merit, which provide a better chance of success even if they don’t quite understand those issues.

Video Arraignments are a Step in the Right Direction

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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.

How Can You Defend These People?

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I’ve watched with interest the news regarding former Solicitor General Paul Clement’s resignation from King & Spalding, after the firm moved to withdraw from its representation of House Republicans in defense of the federal statute that prohibits same sex marriage.

Every criminal defense lawyer should learn as much as possible about this story and save it up for your next cocktail party where there are a bunch of non-lawyers or prosecutors in attendance.

The next time someone asks you the typical questions that criminal defense lawyers get about how you can defend someone charged with ____ (fill in heinous crime) or asks you how you can defend someone you know to be guilty, you can cite the inquisitive person to this chapter of Paul Clement’s career. A lawyer’s duty sometimes means defending rapists, murderers, and even House Republicans.

I wonder if those who pressured for K&S to withdraw from this case would support law and order types if they brought similar pressure to bear upon a law firm to withdraw from the appeal of a criminally accused or convicted. There’s lots of irony to go around in this story.

Making the Most of Your Georgia Prison Visit

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As I’ve mentioned before, I make many prison visits. It’s part of the job in Georgia appellate practice. All the appellate courts, the parole board, and most of the counties where convictions originate are in or near Atlanta. And most of the prisons are south of Macon. I’ve learned some things over time about how to do them right and how to do them poorly. Here are my tips for a successful prison visit.

  • Remember that it’s about the relationship as much as it is about the case. Representing a person on a major legal matter in a situation where you don’t get to talk that much is a formula for alienation, misunderstandings, and frustrations for both the lawyer and the client. So, make sure you carve out some time to learn some things about the person you’re representing as a person and not merely as a client.
  • Do some homework up front. When you can, tell the client that about your upcoming visit, list the things you would like to discuss, and ask him about the things he’d like to discuss. Prepare a loose agenda for your meeting.
  • Avoid scheduling visits near count time. Every prison does a count of all the inmates at least once a day. The count takes a while to do and can either delay your visit or shorten it. When scheduling your visit, be sure to ask when count is done.
  • Plan to wake up early or to stay overnight before. You have a long drive ahead. But it’s possible to have a visit early enough to make it back to the office for some quality time in the afternoon.
  • If you want to bring in a laptop or iPad, be sure to ask first. Even when you do, have a pad and pen ready in case the person at the gate didn’t get the memo. Every prison is different when it comes to allowing electronics into the facility, but most don’t allow them.
  • Don’t bring in items from family or friends to give to the client. If you are going to give the client anything, be sure to clear it with the facility first.
  • If you will need a document to be notarized, be sure to make arrangements with the facility
  • You’ll have three choices for lunch: something brought, something fried, or subway. If you want to sample local color, you’ll be going with fried. For years, I’ve been thinking of publishing a book for lawyers called habeas food, to serve as a guide for the best places to eat on a South Georgia Prison visit.
  • Bring in your keys, two forms of ID, your pen, and your paper. Leave everything else in your car.
  • Know your car tag number. You’ll have to write it on the sign in sheet.
  • Load the iPod with your favorite music or an audio book. Prison visits always bring out my inner Johnny Cash fan.

Above all, enjoy the road trip. It could be worse. There are much worse ways to practice law. Instead, you’re on the wide open road south of Macon.

How Much Longer Before The Georgia Appellate Court Rules?

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As a father of three children (one still in a car seat and one in a booster) and as an appeals lawyer in Georgia, I get two recurring and related questions. From the children, on car trips, I frequently hear, “Are we there yet?” From my clients and their families, I frequently hear, “when will the court decide my case?” For the former, there never really is an answer. Atlanta traffic mandates that today’s twenty-minute trip will be tomorrow’s three hour journey. But for the client’s question, there’s a pretty straightforward answer. And I always have to look it up. But after I finish this post, I won’t have to look it up again and neither will you.

One caveat. I’m speaking of direct appeals only in this post. The timing for applications from habeas, cert. petitions, interlocutory applications, or applications for discretionary review is a good subject for another post. And if any of those things get anywhere, though, you’ll find yourself back in a situation where merits briefs have been submitted, the case has been argued, and you’re waiting for a decision. Then you’ll get this question. And when you find yourself there, this post is for you.

The Two-Term Rule

We’re lucky here in Georgia. If cases aren’t decided in two terms of court in the Georgia Court of Appeals or Supreme Court of Georgia, they’re affirmed by operation of law. In the whole history of Georgia, a case has never been affirmed this way (cases have been remanded and docketed creatively as a work-around, but such a situation is truly rare).

Our two-term rule is a creature of the Georgia Constitution. In Article 6, Section 9, Paragraph 2 of the Georgia Constitution, you will find this language: “The Supreme Court and the Court of Appeals shall dispose of every case at the term for which it is entered on the court’s docket for hearing or at the next term.”

When Does the Countdown Start?

The clock starts running in the term that the case would be set for oral argument, if oral argument were held. This provision is a little tricky. What if you don’t get oral argument or don’t ask for it? Check out your docketing notice. It will tell you when oral argument would take place if such were set. Regardless of whether you have oral argument, the clock starts ticking in the term of court oral argument would happen, if at all (regardless of whether oral argument ever actually does happen).

The Court must come to a decision in your case in the term of court when argument is set or the term of court immediately afterward.

But What are the Terms of Court?

The Supreme Court of Georgia and the Georgia Court of Appeals each have the following three terms every year:

  • The January Term begins the first Monday in January (the January term ends on April 14; 15 days before that is March 31)
  • The April Term begins the third Monday in April (the April term ends on July 31; 15 days before that is July 16)
  • The September Term begins the first Monday in September (the September term ends on December 16; 15 days before that is December 1)

By law, no second term case can be decided within the last fifteen days of the term, except upon a motion for reconsideration. So, if your case reaches the term, do the math accordingly (or check out the parentheticals above).

If you want to cite to something more authoritative than Scott Key’s blog (yes, there could be such a thing), the terms of court and their closing dates may be found at OCGA Section 15-2-4. And the law that makes the terms of the Supreme Court and Court of Appeals the same is OCGA Section 15-3-2.

The Client’s Right to Participate in Georgia Criminal Appeals is Quickly Eroding

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The state of Georgia once brought us the Leo Frank trial, the Andersonville prisoner of war camp, and a series of lynching over the years. I never knew that Georgia law was so traditionally weighted against the State. The legislature seems to think otherwise. Yet, the legislature of late has enacted new laws that have taken away historic provisions that have traditionally protected the accused, including: historic provisions that gave the defense more jury strikes than the prosecution; recent legislation that took away the defense’s right to give a closing to the jury last; and a set of minimum mandatory sentences that presume that Georgia is a bastion of liberal judges. One would think that, in the midst of all the hangings that have taken place in Georgia’s history, that we haven’t coddled criminals too long. Most recently, the law has relegated criminal appellants to the role of distant correspondents as the lawyers battle out their case in a courtroom, sometimes hundreds of miles away. We’ve only recently gotten there, but there may be a way to change things.

Two things have happened to bring about this turn of events. First, the legislature recently took away the right for criminal appellants to remain in the county jail while their appeal was pending. Not many lawyers even knew that the law provided such a right, and many judges simply ignored it. But, for me, keeping my client in a local jail was very helpful on appeal. It allowed me to build an attorney-client relationship, and it provided my client with a sense that he had a voice in his case. Trial lawyers have this right from the very beginning when their clients are incarcerated. But the legislature took this right away – proving that the appellate process is the red-headed stepchild of the criminal justice process in Georgia.

I average about 5 travel days a month so far in 2011. All the prison in Georgia are located far away from me. And the clients still need to be seen. Relationships still need to be formed and maintained. While this process is good for the folks at audible.com from whom I purchase many audio books and from Exxon from whom I purchase gas at around $4.00 a gallon. It is not good for my overall productivity. Because for every 3-4 hours I spend driving there is maybe 1 good hour of meeting time with my client. And, as the law is developing, I may be on the road even more.

The trend started earlier but has culminated in the Mantooth. This is the total bad facts make bad law package. The lawyer was given every opportunity to proffer to the trial court a reason to produce his client for the motion for new trial hearing, and he passed up, baldly claiming that he wanted his client to attend the motion for new trial hearing. Out followed the holding that a non-death penalty defendant has not right to attend a motion for new trial motion hearing unless he can show his presence would contribute to the “fairness of the proceedings.” Of course, the whole test seems circular. When is it ever fair to holding a hearing on a person’s life and status as a felon while the defendant is involuntarily absent? Never mind the fact that the opinion appears to misconstrue the holding in some earlier cases. Andthe whole body of caselaw that has developed in Georgia ignores United States Supreme Court precedent in Snyder v. Massachusetts (thanks, Jim Bonner, for telling me about this case). My client should see and hear his hearing. And, when evidence is introduced, it is important for me to be able to consult with my client, likely the only person at counsel table with me who was present at the trial and in pretrial meetings and proceedings to know what to ask witnesses at the motion for new trial hearing. Georgia courts are moving in the other direction, it appears.

Take this Issue Up

One thing to keep in mind is that the Georgia jurisprudence in this area is not particularly well developed. Yes, there are many cases to reach this issue. But seldom has there been much analysis. When the Supreme Court has reached it, it has typically done so in a very short paragraph. So, there has never been a better time to start moving this issue to the Supreme Court of Georgia.

Preserve This Issue by Motion

After all, for an appellate lawyer, the next best thing to winning a motion at the trial level is losing motion of the trial level. So, I would encourage lawyers, at motions for new trial, to file motions to produce the end where you assert why your client’s presence at his motion for new trial hearing is essential to the fairness of the proceeding. Allege it on due process on and sixth amendment grounds.

Affidavits are Your Friend in this Regime

In addition, seize the opportunity to use the absent client introduce evidence that cannot be cross examined. If the court will produce your client, then the trial court leaves you no choice but to present evidence from your client in the form of an affidavit. Since the courts tend to do with state wants, then the Court will likely produce your client to give the State the opportunity to cross-examine your client. If not, then use this wrinkle in the law to put up some evidence that is beyond the reach of the State’s questions. Second best, an affidavit will likely get your client produced.

Above all, this is an area of law that needs to be further developed. So, start filing motions to produce. You’ll plant issues in your case and show your client that you are fighting to give him his day in court at the appellate level. Better yet, you might have a way of putting up evidence beyond the State’s cross-examination or maybe show how eager some trial judges are to produce your client when the State needs him but not when you do.

Handling Criticism Gracefully is Part of Criminal Appellate Practice

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A colleague of mine who has a thriving domestic practice tells me that, at the end of many divorce cases, two people often hate him – the ex-spouse and the client. He’s a great lawyer, so the ex-spouse part of that equation does not surprise me. As I think about the nature of domestic practice as I understand it, I think I understand the part about the client, too. It’s not the lawyer, it just that he’s there.

Criminal appellate practice is not quite as emotional but there are times when, no matter what you do, you aren’t the source of joy for many of the other players in the case. It’s not you, it’s just that you’re there. For the prosecutor, since he can’t talk to your client, you get to be the proxy. The same goes, sometimes, for an appellate panel at oral agument or for a trial judge. Unfortunately the critical stream flows in two directions. For the client and the client’s family, you often are the proxy for the State, the investigating officers, the judge, and the appellate panel. You are often the messenger. And the old adage about shooting when it comes to the messenger holds true. It only seems odd that you sometimes find yourself in a place where everyone is angry at you – the client for not “standing up” for him, the Court for taking too firm a line and asking for too much, and the DA for being too zealous. Take a closer look and you’ll see, it’s not necessarily you. But don’t ignore the criticism, particularly if it might help.

So, it was great to see Leo Barbauta’s post at Zen Habits titled The Art of Handling Criticism Gracefully. I would put the ability to handle criticism right up there with the ability to write a good brief, how to spot issues, and how to respond to questions at oral argument. If you are a lawyer who finds yourself in the middle of the triangle of criticism – between your client, opposing counsel, and the Court, head over to his post right now.

If you want to stay here, check out this synopsis of what I think his key points are.

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My Talk at the State Bar General Counsel’s Office on the Georgia Appeals Process

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Yesterday, I was honored to be the guest of the State Bar of Georgia General Counsel’s office for their in-office CLE. The Office of the General Counsel is the group at the State Bar of Georgia who, among other things, that deals with bar complaints and attorney discipline.

I was one of two speakers for this group yesterday. I was there to provide an overview of how criminal appeals work in the State of Georgia from conviction to direct appeal and to the State habeas process. The other speaker was Brian Mendelsohn, with the Federal Defender Program for the Northern District of Georgia. Brian talked about the Federal process.

Brian was great. The audience was great. Brian and I both got off of our prepared remarks and truly dialogued around the conference table.

It turns out that all Federal appeals have the same key events in the life of a case where the attorney-client relationship can go sour. State appeals in Georgia have their own key moments. In the Federal system, it all boils down to whether to take on an appeal waiver as part of a plea agreement or to plea without such a waiver. Conflicts also center around choosing when to object to information contained in a pre-sentence report.

In the State system, the three main areas where the attorney and client may find themselves at odds with one another include which issues to raise on appeal (particularly whether to assert an ineffective assistance of counsel claim), delays in getting the transcript from the court reporter, and the client’s desire to get his own copy of the transcript so that he can “help” with the appeal.

Beyond these key substantive things, there was one common theme that resounded in our presentation and our discussion with the group: communication is key. Even if the choice of issues is ultimately yours, it is important to explain as much as you can why you are doing what you are doing.

Even if communication involves relaying information that is not particularly earth shattering, it is important to communicate. For instance, “I don’t have the transcript yet” is news though it feels like it isn’t news. Making the client understand the process and the progress of his case is important even if the process is at a stand-still and there has been no progress.

So, thanks Brian and thanks State Bar General Counsel’s Office for the opportunity to share our thoughts on the criminal appeals process in the Federal and Georgia State system and how best to serve the clients who find themselves within that process.

Managing Client Expectations in Georgia Appeals Law

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Today, I received a thank you note from a client whose case I just successfully closed. The case resulted in a negotiated plea to probation. The case had its ups and downs, and the result was quite great. The gratitude was genuine and the praise was effusive. And, as I sit to write this post, I couldn’t quote a single word of it. The note is back at my office, and I am writing this post on my laptop at home. I can remember a negative word from a difficult client spoken weeks ago verbatim. Many of my clients are happy with what I have done for them. Many write thank-you notes or express their gratitude during and after cases, sometimes in spite of the outcome. Yet, the negative minority speak the words that resonate the most. I read two articles lately that speak to the vocal and very small minority of clients whom you cannot please and why things go bad in the first place.

 

Enter Merlin Mann

Merlin Mann’s blog post at his blog, 43 Folders, is written in the form of a parable set in a sandwich shop. In the story, a man enters the restaurant just at the beginning of the lunch rush. A customer comes in who is unwilling to commit to the idea of buying a sandwich. Yet, he wants to talk about sandwiches and what the shop might offer. As he is invited to peruse the menu, he demands a deep discount and attempts to engage the owner in further dialogue. Meanwhile, customers who have come to buy sandwiches become uncomfortable and impatient. Eventually, the man behind the counter decides that he has had enough of trying to deal with the customer and invites him to take a seat until he is ready to order. When things still don’t work out, the customers behind him in line escort him outside. Unlike most parables, this one comes with an explanation:

 

THE MORAL(S)?

The Sandwich Guy can’t do much for you until you’re hungry enough to really want a sandwich.

Once you’re hungry enough, you still have to pay money for the sandwich. This won’t not come up.

Few people become “a good customer” without understanding both 1 and 2.

Few companies become “a smart business” without understanding 1, 2, and 3.

Basing his business on an understanding of 1, 2, 3, 4, and 5 doesn’t make The Sandwich Guy a[n uncaring person]; it makes him a smart business.

He then references a blog on negotiation, which points out: “All […] variables can change except your worth. That can’t change. It’s an undeniable fact beyond subjectivity and beyond the reality-bending rhetoric of your client-to-be. You are worth what you are worth and unless you’re feeling charitable something else has to give.”

 

Application to Lawyers Representing Clients

The initial client meeting between an appellate lawyer and a potential client is not merely a sales call. After all, you will sometimes have a duty to turn the client away. And you are committing a considerable amount of your time and effort to the case that you may take. It’s important that you have a frank conversation about what lies ahead and the resources it will take for you to do the job properly. Maybe somebody else can do the job more cheaply. Maybe someone else has a different sense of worth. But if you sacrifice your worth or let your client’s willingness or ability to pay you substantiall less than the representation is worth, then your decision impacts you, your client, and those who are standing in line behind the client.

Enter Seth Godin

According to him, there are a vocal 2% of your customers who will protest any change you make in your practice or any innovation:

If you have fans or followers or customers, no matter what you do, you’ll annoy or disappoint two percent of them. And you’ll probably hear a lot more from the unhappy 2% than from the delighted 98. It seems as though there are only two ways to deal with this: Stop innovating, just stagnate. Or go ahead and delight the vast majority. Sure, you can try to minimize the cost of change, and you might even get the number to 1%. But if you try to delight everyone, all the time, you’ll just make yourself crazy. Or become boring.

The numbers are probably a little worse for criminal defense. And maybe they are worse still if you work in criminal appellate law. So, it is important to be a great lawyer. And it is also important to know your worth, know what it will take to do the job right, have an honest initial meeting, and serve the sandwiches for those with the means and desire to buy them. It takes hard work and skill to represent somebody well. And it’s harder to clean up another lawyer’s mess than it is to be the original lawyer doing the job right.

The Importance of Managing Anger in the Practice of Law

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Anger is not a good mix with the practice of law. Yet, law is a profession that puts the practitioner in a position where things could make him angry all the time. Litigation, even appellate litigation, is a business of fighting and arguing. Ideally, it’s done in a very scholarly collegial way. Arguing in real life often involves anger. And unfortunatley it is not always so easy to take off the normal person hat when we put on the lawyer hat. Boundaries can break down if you’re not careful.

And that’s just half the job of a lawyer. You must also manage client expectations and be the lightining rod because you’re the closest representative of the judicial system around when bad news comes, when matters are delayed, and when you are taking a course of action that the client either doesn’t understand or doesn’t quite agree with. Miscommunications sometimes happen. So, there are about a million things that can happen in attorney client relationships that lend themselves to anger.

Then comes the judge. You can’t get angry at the judge. Or, at least you can’t show anger toward the judge. But sometimes it’s tough being told by a person in a robe or panels of judges in robe telling you how wrong you are. Generally, it’s all in a day’s work. But in the real world being told you’re wrong can be an anger-invoking moment. We try to be professional. Most of the time we are. But that sort of things could lend itself to anger in the real world.

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