A Death Sentence for Want of a Lawyer

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In today’s New York Times, former Chief Justice Norman Fletcher has written an editorial denouncing the upcoming execution of the Georgia inmate sentenced to death in 1990. Chief Justice Fletcher is particularly concerned about the fact that the inmate lost out on the possible federal review of this case. The inmate, while representing himself, missed the deadline for federal habeas corpus by eight days. Georgia is one of the states that fails to recognize the right to counsel after the direct appeal, even on sentences of death.

For Chief Justice Fletcher, the tragedy is even worse because there were potential issues of merit in the habeas corpus.

Justice Fletcher sheds light on not only a troubling issue in death penalty cases in Georgia. He also discusses the fact that there is no right to counsel at the habeas corpus stage in spite of the fact that habeas corpus is a complex process that is confusing even to attorneys. In Georgia, the defendant must raise ineffective assistance of counsel at the motion for new trial phase if new counsel is appointed to the case or if the defendant is pro se on his direct appeal. In the event that the same lawyer who handles the appeal also handled the trial, then ineffective assistance of counsel is relegated to the habeas corpus stage, where the inmate does not have the right to counsel.

Georgia should have a regime in place and allows a person under the sentence of death to have the right to counsel at every stage of the proceedings. And there should be a process where a court could appoint counsel on potentially meritorious habeas corpus cases.. The judge could act as a clearinghouse for those cases where an appointed attorney could be of assistance (similar to what exists in the federal system). Right now, where inmates cannot afford counsel, habeas corpus petitioners either must go it alone or rely upon a volunteer lawyer. When no volunteer lawyer is available, then a person with potentially meritorious issues could be literally killed for want of a lawyer.

As the legislature considers criminal justice reform, the right to counsel in at least some habeas cases is worth a look.

Cell Phones, The Fourth Amendment, and the Fifth Amendment

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Yesterday, I spoke at a continuing legal education conference for the Georgia Association of Criminal Defense Lawyers. The topic was searches of cell phones incident to arrest.  I also discussed the  Application of the fifth amendment protection against self-incrimination when a suspect is compelled to provide a passcode to unlock a cell phone or to decrypt hard drive data.

Please contact me if you have questions or comments. Or you may comment here.

 

The Myth of Expertise

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We just ended a bad week for experts. I was in Athens, Georgia, Saturday for a football game. Auburn was a 10.5 point favorite to win. It turns out that they did not even score 10 points, losing 13-7. Earlier last week, the presidential candidate whom most experts predicted to have somewhere between a 66% to 75% chance to win the election, lost the election. Experts are having a rough go.

Yet, we lawyers work with experts all of the time. In fact, we are experts. The State calls experts for everything from child interviewing to cause of death. And we call our own experts who testify to different conclusions. Maybe those types of experts are different. After all, while pollsters and oddsmakers claim to be experts on what while happen in the future, the sorts of experts we call a trial tells us their opinion of why or how something happened in the past.

Lawyers, however, are often called upon to do what the pollsters and the bookies do. We are called upon to advise a client about the odds that something will happen in the future based upon a decision. We sit with clients and advise them of the potential outcome of a trial that would take place if they turn down a plea bargain. Or we tell clients that we believe that they should turn down a plea bargain because their chances at trial seem better than the offer that has been extended. We advise on the efficacy of a potential motion versus the problems that might arise by pressing it. We are the sort of expert who predicts the future, interestingly enough, based upon how powerfully we believe we can use our expertise to explained what happened with a set of facts based in the past. That is almost a definition of what plea bargaining is.

Plea bargaining is essentially what criminal defense lawyer do. The United States Supreme Court recognizes it. In Missouri v. Frye, Justice Kennedy, writing for the majority said, “In to-day’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.” And trials are quite rare compared to the total of criminal cases formally accused or indicted.

How, then, do lawyers properly act as experts in this arena? We have to recognize that we are not fortune tellers. But our role is to make sure that we understand the law and facts in each case. We must engage in plea bargaining. And when we sit with a client, we have an obligation to make sure that they have what they need to make an informed decision. And when the client is fully informed, we cannot claim to predict the future. And it is not our job to make the ultimate decision of whether to take a plea or go for trial or whether to testify or not testify. And just as we cannot abdicate our role to work for the best possible offer, to communicate it, and to inform the client’s decision, we should not allow the client to abdicate the choosing to us. This process is not always clean, and the lines often blur.

But this week has taught me, if nothing else, that there is no science to predict the future. No expertise tells us how it will unfold. But the real work is in assessing the reality of the present choice based upon what we think can be proved about past events. We can only research, describe, and be present with clients. The big decisions are theirs.

 

Final Thoughts on JQC Amendment 3

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I am not surprised that Amendment 3 passed. It was a bad idea with an unsavory political history. I did not personally know any lawyers who were in love with it. And my non-lawyer friends who asked me about it seemed persuaded that it was a bad idea. But, alas, I don’t know millions of people. I put it out there on Facebook. But Facebook is a solipsistic medium. I think my musings on Amendment 3 got a lot of amens but changed few minds.

The agency that governs judicial behavior ought to be independent from the legislature. It should be concerned with the neutral and dispassionate application of the judicial canons to judicial action. The JQC had its problems. It operated in extreme secrecy and its tactics were occasionally bullying. It was not a perfect agency. But there were less  intrusive fixes out there than then one chosen.

So, what is the future of judicial ethics? There is work to be done in the legislature to make sure that the mechanism is as effective as possible. I’ve said before that the State Bar can regulate the behavior of its members, whether they be engaged in the practice of law or the practice of judging. But the Bar appears to be politically compromised on all of this.

Ultimately judges are elected officials. And if they act in a way that is unbecoming of the bench, it is up to the people to regulate their behavior. And if the legislature, with its new powers, does a bad job with the JQC, the people choose them, also. What I say here feels like a cop out and perhaps a bit Pollyanna. From my experience, many educated non-lawyers have little idea what judges do or how it all works. I cannot count the people I have known socially who have asked the classic cocktail party questions about my job — “how do you do this for a living?” “What would you do if someone you were representing were actually guilty?” You know the other questions. But I have also had the experience of those same people coming to be clients or parents of clients of mine. And when they are in the system, going to calendar calls, preliminary hearings, motions, and trials, they are appalled at the experience. I do not know how to package up that life experience and communicate it to folks who may never know a courtroom firsthand. So, incumbent judges, even bad ones, are re-elected. And a Constitutional Amendment like 3 passes because it is written in a way that a voter in the ballot box thinks that it is a good idea.

Alexis de Tocqueville’s most famous line is that “in a democracy the people get the government they deserve.” Voters often get things right, as do juries and judges. But we are only as good as the information that we have. And when it comes to courts, the most informed appear to be the ones who are initiated either by being lawyers, serving on juries, or being actually indicted. How to inform others? I really don’t know.

Re-Examining Dick Donovan’s Rant

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Over at Fault Lines, Andrew Fleischman has an article on Paulding DA Dick Donovan’s Facebook post. Jim Galloway at the Atlanta Journal noticed it, too. The post was a “eulogy for white Judeo-Christian men.” It was really quite jarring to read, particularly by a person who has extraordinary power to prosecute people and even seek the death penalty in certain cases. A day ago, I would have just thought it the demise of his career at best or mere anachronistic rant speak at worst. Then the election results came in, and I see that he’s very much mainstream. Particularly here in Georgia. And his eulogy may have been a bit premature. Turns out that the “white guys” and all he envision in conjuring such an identity, are alive and well.

I, it turns out, am the outlier.

Carry on, Mr. Donovan. Carry on.

I Quit Social Media

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When you go on a family vacation, the people you live with have the opportunity to learn more about you and how you are feeling. And so it was in Oregon a few weeks ago, that my wife noticed my anxiety level. And when she noticed it, I began to notice it, also. And after I noticed, I began looking for the source. I’m not sure that I’ve found it. But I think I have a few leads.

For one thing, I have been devouring too much election coverage — way too much of it. So, I decided to do the one thing about the election that I could actually control. I voted. With that done, the media’s coverage was fairly irrelevant to me. With my vote already cast, no infomation could possibly influence it. So, I went the next step. I unsubscribed from the New York Times and deleted the app from my devices. When I woke up the next morning, I reached for the iPad to click the app. It was no longer there. Then I noticed that there was more of it on Facebook. So, away went went the app on my phone and iPad. Then there was Twitter. Away it went.

I happened upon a TED Talk by Cal Newport. He encourages his listeners to quit social media. I had his book on my shelf and re-read the chapter on quitting social media. Then I took stock.

I tried to weigh the benefits of it. I could not think of a single case I have ever brought in by being on Facebook or Twitter. I also could not think of a single case I had won because of it. Then I tried to imagine the time I have devoted to them over the years. So, then I took a radical step. I deactivated Instagram, Facebook, and Twitter. Those services have beeen gone now for two days. Before that, I had not logged in for about a week. If anyone has noticed my absence, they haven’t told me. The people who have needed to talk to me, have seemed to find me.

When I am writing a brief and I hit a rough spot, I find myself reaching for the phone for that quick hit of dopamine. And I realize it is not there. And I almost immediately let out a relaxing breath.

Something else I have done. I have installed an extension on Chrome called Inbox Pause. This nifty service allows me to pause incoming mail everywhere until I log back in and unpause it. I pull in emails every day or two and process it all at once. When the email is paused, it is not available on my phone. I put more thought into emails when I return them. Or I pick up the phone and respond. When I am tempted to seek answer to a question by email, I know that there will be a delay. So, I am either okay with it or I call the person. I find myself having more meaningful interactions. If someone has noticed my new email habit, they haven’t said anything. I have found that email is sometimes an exercise in avoidance. It can be a place to avoid a topic that should be tackled at a higher bandwidth.

Here is something else I have discovered. I find emails that seem urgent. Then as I scan my inbox or call the person back, they say, “never mind. It resolved itself.” Or “never mind. I found the answer.”

Yesterday and today, I sat to write a brief. I found myself in a state of enjoyment. When I’ve reached from email, Facebook, or Twitter, they have not been there. “Oh, yeah,” I have thought to myself before getting back to work.

I need to hang out with my family more. They are very good at noticing things.

 

p.s.

I don’t consider the writing of this blog to be social media. It’s long form and offers the opportunity to reflect.

The State Bar of GA is the Paul Ryan of the JQC Amendment

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In the most recent episode of This American Life, the show includes a discussion of the amendment on the ballot to reconstitute the JQC as a creature of the legislature and with the State Bar of Georgia taken out of the appointment process altogether. If you are undecided on this amendment, the segment is worth your time.

  • The episode begins with some background on how the JQC did its business with Richard Hyde as its chief investigator. He investigated complaints thoroughly. And when he was finished, he approached the subject of his investigation with his findings. As a case in point, the show details how he confronted Judge (and now co-sponsor of the JQC bill) Johnnie Caldwell with an incriminating tape to secure his swift resignation.
  • Then the show discusses the timeline for the bill (HR1113). The resolution seemed destined to fail at first. But late in the session, the speaker made it clear that either it would pass or no other legislation would.
  • Finally, a deal was cut for a democratic representative to cross party lines and vote for it. In exchange, the house voted to create a city (!) as a favor to the representative.
  • Part of the background was a long-standing grudge held by the speaker toward the State Bar of Georgia.

The story does give the other side. In particular, it discusses how the JQC treated two judges under investigation perhaps unfairly. But finally the story poses the question of whether such a radical overhaul was necessary to fix some of the procedural problems with the JQC.

The show ends with the reporter noting that this bill and the way it came about is not democracy at its finest but is likely how democracy works. Therein lies the problem. Voters are not likely to have a clue what the JQC is or what this amendment provides. So, passage is likely. I’ve told everybody I know. And when I tell the background, I see the lightbulb turn on.

But my microphone is only so loud. And the State Bar of Georgia is to this bill as Paul Ryan is to Donald Trump. The State Bar has compromised its integrity on this one, opting not to take stand on a bill that is clearly bad for judicial ethics and which removes its say on who the commissioners are.

If there is any hope in defeating this amendment, it will come with just telling the story to as many people as possible before they vote. I suppose that the people get the government we deserve.

A Helpful Guide for Argument: Rapoport’s Rules

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Recently, while listening to Sam Harris’s podcast, Waking Up, I happened upon a guide to engaging another person in debate. It comes up when he introduces his interview with philosopher Daniel Dennett. Whether you are a lawyer preparing a brief or courtroom argument or a layperson engaged in a political discussion with a friend, it is worth taking a moment to understand and give the rules a shot. The podcast episode is worth a listen. Or for a quick read, check out Maria Popova’s post on Mr. Dennett over at Brain Pickings. Also, here they are:

1. You should attempt to re-express your target’s position so clearly, vividly, and fairly that your target says, “Thanks, I wish I’d thought of putting it that way.
2. You should list any points of agreement (especially if they are not matters of general or widespread agreement).
3. You should mention anything you have learned from your target.
4. Only then are you permitted to say so much as a word of rebuttal or criticism.

These rules have incredible value in any critical discourse. The most important reason is that your opponent or judge will be more likely to listen to what you have to say and be persuaded when you have disarmed them. Secondly, the rules encourage collegial and professional discourse (very lacking in the American political climate right now). Third, you will sound reasonable and potentially way more credible than an opponent who goes on the attack or reconstructs your opponent in a straw man form (inexperienced advocates often cannot resist). Finally, the argument you construct after articulating your opponent’s position fairly is likely to be a better one than the one you may have made out of emotion or in the form of an attack.

I hope that you will check out the rules. And when you finish with them, check out Sam Harris and Daniel Dennett.

In a Difficult Political Year, Raise the Bar

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The lawyer’s job gets more difficult in proportion to the political climate in which we practice. And I cannot imagine a more difficult one than the spectacle of an election that we are all enduring. I have been saddened, anxious, and have been tempted to grow even more cynical. I have had my intelligence insulted and have been dumbfounded. It is only a matter of time before you see some reflection of the climate unfold itself in the tone of the briefs you read or the climate of the courtroom. And it may be me or you who are lowering the bar if we are not careful.

That is, unless you choose to raise the level of discourse and the level of compassion. I personally believe that the court system is the small engine that keeps democracy going. No matter what the other branches do, there is something in our courts that connects us to an ideal that predates our young country. And through many events in my professional life, the justice system is the elastic that always seems to stretch but not break. Alas, it is far from perfect in many particular instances. But the core identity of it is something in which I place a great deal of faith.

In the weeks ahead, no matter what you see on the news, make the choice not to internalize the level of discourse you see. Reach out to a client or a client’s family with compassion. Take a colleague, particularly a colleague on the other side of a case, to lunch. Raise your professionalism in court another notch. Do great things in your practice. When you do those things, you help this part of democracy remain connected to some higher sense of purpose that appears to be eluding us in democracy’s other components.

Breaking into Appellate Law

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A few days ago, a newly-minted attorney asked me about what it takes to become an appellate attorney. I was initially at a loss for an answer. I never exactly set out to do this for a living. In law school, I was quite sure that I would be a trial lawyer. Only now am I closing out my last trial level cases and moving to being a 100% appellate and post-conviction practice.

How I Ended Up Here

I’m a frustrated novelist, which many lawyers are. And I enjoy the solitude of an office and a closed door. I greatly prefer it to calendar calls and all of the other time-wasting rituals of the criminal trial process. Back in law school, I worked for an attorney who had some appellate cases but did not particularly like them. At the time, he was sending the writing off to a former associate who had moved to the North Georgia mountains. I tried my hand at a couple of appeals. And soon, as a 3L, he was no longer sending those appeals out. I was doing them, and it was my role even as I developed a trial practice in his firm as an attorney. In my first year, I caught an issue on a murder case that led to a reversal of the conviction. I hit a lucky streak and reversed a few more, including an issue I caught in what was otherwise run-of-the-mill DUI trial. A Public Defender’s office started sending me all the appeals I wanted. The pay was low, but I was getting the reps in. There have been many losses, but there have been some astonishing wins. And it’s often fun.

It appears that appellate law is the thing that many lawyers and students want to do. For budding civil appellate lawyers not in a big firm, I can think of no comparable thing to PD office with a steady stream of cases. There are few civil trials these days and all sorts of incentives not to appeal. And if I had intended to build an appellate practice, I don’t know that I would have followed these exact steps.But nearly ever felony trial that ends in a one-word verdict is appealed, and there is not an attorney’s fee downside. Everybody understands why a person with a 3,000 year Georgia-style sentence would like to appeal his conviction.

It’s Not Always Fun

When it comes to retained work, there are all sorts of challenges. The trial lawyer who comes before you often makes a mess of things and leaves errors unchallenged. The client has often exhausted his life’s savings before the appeal starts. And when you get started on the case, the client and family have some serious trust issues with attorneys because the lawyer they chose to do a murder trial was not as good at murder trials as he was at drafting Uncle Jeff’s will. Also, if you are not in the appellate section of a major firm, there may be some limits on the ability to get some of the bigger cases. But those come with time. The client often cannot make the transition to standards and processes of appellate law, with a lingering interest in whether various witnesses were lying and with little interest in the erroneous burden-shifting jury charge that you find so fascinating. Also, in the era of Serial, Making of a Murderer, and other such shows, clients come to you armed with an expectation that you should work for free or nearly free just because must be outraged by their perceived injustice. And the internet has done more for amateur jailhouse lawyering than the jail law library ever did.

With that said, appellate practice feels like “real law” to me. I find that the suppressed writer has a good outlet to work. And this kind of practice lies at the intersection of advocacy and scholarship. Finally, the work can be done from nearly anywhere there is an internet connection. So, it is pretty easy to pick up and hide away from the office.

If I had to advise someone on how to build this practice, I would note that it takes years. And it takes some creative maneuvering to get your reps in — including some pretty low-paying gigs for a while. And there are fewer cases out there than there are DUIs or petty drug offenses. So, the dues are much higher. But I think it is worth it, even if there are days when I wonder why I even went to law school.

ADDRESS

199 W Jefferson St.
Madison, GA 30650

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678-610-6624

EMAIL

tori@scottkeylaw.com