Blog - Scott Key & Associates

Georgia Habeas Corpus and the 1st Amendment

March 18, 2014/by J. Scott Key

The Volokh Conspiracy has post up about Strine v. Delaware Coalition for Open Government, Inc., a case the tests whether a Delaware statute that provides that judges may act as arbitrators in civil cases is constitutional under the First Amendment where the arbitration sessions are closed to the public.

Professor Volokh give a little background about the first amendment and the courtroom setting:

Nonetheless, the Court has created a First Amendment right of access to certain judicial proceedings, especially criminal trials (Richmond Newspapers, Inc. v. Virginia (1980)), jury selection in criminal trials (Press-Enterprise Co. v. Superior Court (I) (1984)), certain preliminary hearings but not grand jury hearings (Press-Enterprise Co. v. Superior Court (II) (1986)), and possibly also civil trials (Richmond Newspapers). To determine which proceedings qualify, the Court generally looks to whether “the place and process have historically been open to the press and general public” and “whether public access plays a significant positive role in the functioning of the particular process in question” (Press-Enterprise (II)).

His background goes on to discuss Presley v. Georgia, a per curium opinion that held that a restriction on access to a DeKalb County, Georgia, courtroom during voir dire was unconstitutional.

A more interesting Supreme Court case might be made of the typical rural Georgia habeas corpus proceeding. It’s rare that I attend a habeas proceeding inside a courthouse anymore. There has been a move to conduct habeas proceedings inside of day rooms, cafeterias, and faux courtrooms inside the prison.

A recent habeas hearing I attended may illustrate the experience. The courtroom was inside a secured building with rows of fencing and razor wire. To get in, I had to push a button and announce over an intercom that I was a lawyer with a case. The gate opened, and I made my way into the area where I surrendered my car keys and identification for a visitor’s badge. A door made of bars slid open as I entered. Then I went through two sets of locking doors to find the courtroom, where a folding cafeteria table served as the judge’s bench and attorneys and witnesses were provided with plastic chairs. To be fair, I suppose that members of the public may have been let in had they just shown up and requested access. But the setting didn’t seem like an open courtroom. For one, we were not in the county seat. For another matter, we were in a privately-owned prison. The deputies and bailiffs were corporate corrections officials. Our courtroom did not bear the seal of the State of Georgia. Rather, a birthday banner celebrating the facility’s fifteenth birthday (who knew that prisons were born) was hung behind the judge.

Counsel for habeas petitioner must choose our battles. The battle is uphill as it is. I’ve never brought a first amendment challenge to the setting of habeas proceedings inside of prisons. If, for no other reason, I’ve anticipated the response might be, “Very well, Mr. Key. We will move Mr. Smith’s case over to the courthouse. Let’s see how your hearing goes now.” The last sentence in might not be spoken aloud. The judge’s response might be that any member of the public brave enough to walk the gauntlet into the courtroom would be welcome to attend the proceedings. Therefore they are open.

I’ve never had the right set if facts or the desire to sacrifice my client’s possible chances of success in a habeas year to the First Amendment principle. But there may be such a principle at stake in some of these proceedings.

The Judge as 13th Juror: Thoughts on the Fayette Rape Controversy

March 1, 2014/by J. Scott Key

Last week, a motion for new trial made news when Hon. Christopher J. McFadden granted a new trial after finding that the verdict was “strongly against the weight of the evidence.” The State’s reaction was three-fold. First, it appealed the decision. Secondly, the State made comments in the press. Third, the State moved to recuse the judge who entered the order. According to Bill Rankin and Steve Visser of the Atlanta Journal-Constitution, Judge McFadden came “Under Fire” for his decision. This has been a difficult story for me to follow. For one, I profoundly respect the professionalism and integrity of Mr. Ballard and Judge McFadden. I have cases against this particular DA and his office on a regular basis. In the years I have had cases with the DA and his office, I have never found a more professional, talented, and reasonable group. And I have known the judge since his time in private practice. He ran a grassroots campaign and won a contested state-wide election for the Court of Appeals. And to clear a little confusion up, Judge McFadden was an appellate judge who presided over this criminal trial by designation. I’m sure both of these men believe that they did the right thing in the case. It is certain that the DA firmly believes that the judge did not do the right thing. The other reason that this has been a difficult story to follow, is that while we lawyers are free to comment about the result of cases in speaking to the press, judges are not ethically at liberty to defend their actions in the press. All members of the public may not know that. So, when a judge does not respond, members of the public may draw all of the negative conclusions that they would typically draw when a person in a controversial matter “declines to comment.” Judges can’t discuss an ongoing case with the press and really shouldn’t. I could say why, but hopefully it’s self-evident.

Not Acting Like a Victim

There were a few other things of concern from this story. For one, the ABA Journal highlights a statement from the order granting the new trial and quotes it out of context. The article notes the finding that the complaining witness in the case was not “acting like a victim.” This statement could seem shocking if read out of context. And I do not know nearly enough about the case to comment about the exact import of that statement under this unique set of facts. However, having defended many cases like this at the trial and appellate court level, how the defendant and complaining witness act after an alleged rape can be important. If a complaining witness continues to be friends with an alleged rapist, delays in calling the police, or acts as if he or she is not frightened of the defendant for a period of time before reporting a rape, those facts can be important for a jury to hear. And in Georgia, by a long tradition in the law, a judge can act “metaphorically” as the 13th juror if he decides that the verdict is “strongly against the weight of the evidence.” So, judges can weigh the evidence and set aside a decision; it is part of the function of judges in the State of Georgia to do that.

While the DA in this case strongly disagrees with this particular judge’s assessment of the actions of the complaining witness in this particular case, he would not disagree that how a victim “acts” is an important component in a victim’s believability. This DA writes a popular column in a local newspaper. In a recent column, titled “The Game Within the Game,” the DA, Scott Ballard, wrote on that very subject. After some introductory comment about the case, the DA wrote about whether the defendant acted like a perpetrator and contrasted it with how the child acted like a victim:

In this case, the defendant lived a life that paid little regard to commonly accepted sexual boundaries. He had multiple partners. They did kinky stuff. You get the picture. It wouldn’t be a huge leap to believe that he would do prohibited acts with children.So, why would the child say this happened if it didn’t? Here the defense had real issues. For one thing, we had more than one victim. For another, the girls were too young to know much about sexual matters.The defense did what they usually do. They tried to inject adults into the mix. Adults were angry with the defendant and “coached” the children. To try to prove that, they look at the language the children used to report the abuse. Was it “age appropriate?” They probe into the circumstances of the report of abuse. Was it timed in a way to benefit some enemy of the defendant? How do we combat this defense? The children testify.So, Ben called the children to the witness stand and asked them to share with the jury the sickening things the defendant did to them. Let me give you a brief glimpse.A frail, thin girl—she looked about ten years old—walked slowly into the courtroom. Her hair was the color of a carrot. And she was scared.Ben asked her questions designed to assure everyone that she understood the importance of telling the truth. It was clear that she did. Then he asked her,“Do you remember meeting with me a few days ago and talking about how it would feel to come in here today?” The girl nodded gently. Ben continued. “I told you that you would probably be nervous and that I would be nervous, too?” The little auburn head nodded again.

The “game within the game” was the character and actions of the defendant versus the character and actions of the victim. Would it be a leap to believe that Thomaston, Georgia’s version of Caligula would molest a child? And would a frail thin girl who “nods gently” “walks slowly into the courtroom” and act nervously make up a story like this? The answer for this DA, under those particular circumstances, is “no.” Does the truth of the “game within the game” not apply the the benefit of the defendant and sometimes against the credibility of a victim’s account? Whether a particular witness acts “like a victim” was an important element in the case described in the column. And if we are to accept its importance in cases with a guilty defendant and innocent victim, the converse would also be true, no?

That one line is less shocking when placed in the larger context of the sixteen-page Order. The Order is worth reading in its entirety (PDF).

The Impartiality of the Court of Appeals

The press coverage also suggests that every judge on the Court of Appeals my have to recuse themselves when this case reaches that court. In particular, the article quotes Mr. Ballard as asking rhetorically about the prospect of the case getting to the Court of Appeals:

Ballard said he is now appealing that decision to the same appeals court on which McFadden sits. “How awkward is that?” Ballard asked.

The answer to “how awkward is that?” is “not very.” Judge McFadden wouldn’t participate in the Court’s consideration of this case, for several reasons. First, he would certainly recuse himself from the case in the appellate court. Secondly, the Court of Appeals works in three-judge panels. It is a rare case that goes to the whole Court. It is not unusual for an appellate judge to sit by designation over a trial court or for a trial judge to sit as a justice on the Supreme Court by designation. Indeed, when Judge McFadden was selected to hear the trial of this rape case by designation, it was not outside the realm of possibility that it would make its way to the Court of Appeals one day. Parties have the opportunity to object to an appellate judge sitting by designation in a trial. And if there might be some “awkwardness” down the road with the case going to the Court of Appeals, those parties may object before the trial starts. And if you don’t object going in, you waive the right to do so later. I don’t know if that happened in this case before the motion for new trial was granted or not.

More importantly, our appellate courts handle these sorts of things well. For instance, Judge Carla McMillian came to the Court of Appeals from her previous post as the judge in the State Court of Fayette County. Her rulings have made their way to the Court of Appeals, and her current colleagues have even managed to disagree with her on occasion. I’m not an insider at the Court, but none of that has seemed particularly awkward. She wasn’t on the panels that considered her judgment. Judge Michael Boggs came to the Court of Appeals from the Waycross Judicial Circuit. His decisions have made their way to the Court of Appeals in the early days of his tenure. If there’s been any awkwardness, I’m not aware. In all of the controversy surrounding his confirmation to the Federal bench, this subject has never come up. And, more recently, Justice Keith Blackwell has been appointed to the Supreme Court of Georgia after he was a judge on the Court of Appeals. This transition has not created a crisis of partiality.

Even in the trial court, Superior Court judges are frequently called upon to sign a search warrant, where that warrant is later the subject of a motion to suppress before the very same judge. And trial judges in every motion for new trial are asked to assess whether they committed judicial error as they presided over a case at trial. And yet our system works very well.

The Georgia Court of Appeals will handle this case with impartiality and professionalism, because this situation is not as unprecedented as a casual reader of the AJC article might think. And the Court has acted with impartiality and professionalism in those instances.

Conclusion

This case will run its course. I place great faith in our system. But that faith is only as strong as the public’s confidence in the integrity of an independent judiciary. The media component of things like this, with conclusions that get wrong the basics of how our appellate courts function, make me fear what lies ahead for our judiciary.

Where Fundamentalism and the Law Meet Somebody is Headed to Prison

January 11, 2014/by J. Scott Key

Legislators in Virginia are contemplating changes to the law in response to MacDonald v. Moose (4th Cir. 2013), a case that struck down Virginia’s law that prohibited non-genital sex generally. Specifically, legislation has been introduced that would make it a felony for an adult to engage in non-genital sex with a minor between age 15 and 17, while vaginal intercourse is a misdemeanor. Vaginal sex among 15-17 years olds is perfectly legal, while non-genital sex would be a crime. Prostitution would be a misdemeanor as long as the prostitute and the john engage in vaginal intercourse; any other type of sex would be a felony.

In Georgia, we draw equally if not more draconian distinctions between genital and non-genital sex. For instance, public indecency covers “an act of sexual intercourse” in a public place. That crime is a misdemeanor under O.C.G.A. § 16-6-8. However, the offense of sodomy in a public place is a felony punishable by not less than one and no more than 20 years to serve in prison. Bowers v. Hardwick struck down Georgia’s sodomy law, but only to the extent that it applies to that sexual act in a private place. Public acts of sodomy are still illegal. See Mauk v. Ga. A few years ago, I was unsuccessful in an 8th Amendment challenge to a 10 year (without parole) sentence for a young man who was convicted for a voluntary act of non-genital sex with another teen.

Professor Volokh writes this about proposed changes to the law in Virginia:

I realize that some people … view nongenital sex as immoral — but even those people, I assume, are uninclined to outlaw things (unkindness, dishonesty, not honoring your father and mother, coveting your neighbor’s wife or property, and the like) just because they are immoral. Indeed, even people who view premarital sex generally as immoral tend not to be inclined to pass new laws banning all fornication. What is there about nongenital sex that makes it more properly subject to outlawing, especially given the perverse incentives that such a prohibition would create?

If the legislation passes, then Virginia, like Georgia will treat non-genital sex with a harsh sentencing scheme versus acts of vaginal sex. It is unclear why the legislature would incentivize teenage intercourse at the risk of unwanted pregnancy and the spread of disease, other than that such a scheme is an expression of the fundamentalist religious beliefs of individuals in power (welcome to our little red state). Of course, it’s difficult to justify the lengthy incarceration of teens based upon the decision to violate the religious sensibilities of state representatives and senators. Nevertheless, in a moment of passion between teens or between adults in certain situations, the message from our wise legislators is that the actors had better “go all the way.”

Southern Center Files Suit in Cordele Circuit, Again, for State of Indigent Defense There

January 9, 2014/by J. Scott Key

The AJC reports that The Southern Center for Human Rights has filed suit against GPDSC, its director, the Circuit Public Defender, the District Attorney and others for the state of indigent defense in that circuit. The suit is brought on behalf of 8 indigent defendants, juvenile and adults individually and as representatives of a class of indigent criminal defendants. The suit alleges that adult defendants are forced to wait for months with no contact or minimal contact with a lawyer. In some instances, a non-lawyer investigator has relayed plea offers just before trial. Juveniles have found themselves at some hearings with a lawyers and at others without. The Circuit has no juvenile public defender, and (according to the complaint) when the lawyers are off in court someplace else in the circuit, juvenile court continues, with or without counsel.

In 2003, the Southern Center sued officials in the Cordele Circuit for what was then a contract public defender system. According to the press release that was issued when the recent suit was filed:

The public defenders are unable to spend more than a few minutes per case. Many poor people accused of crimes meet a public defender who knows nothing about them or their charges for the first time in court. After a hurried conversation, many enter guilty pleas and are sentenced. All but a few convictions are obtained through guilty pleas by people who do not receive the most basic elements of legal representation such as substantive attorney-client interviews, investigations, motions practice, and informed, professional advice about whether to plead guilty.

The well-written Complaint may be found here (pdf). The press release is also worth reading.

Using the Ga. Supreme Court’s Website to Prepare for Argument / Stay Current on the Law

January 7, 2014/by J. Scott Key

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.

Atlanta Can’t “Rise Up” to Fix its Jail

January 4, 2014/by J. Scott Key

The Atlanta Journal-Constitution reports that the Fulton County Sheriff may be held in contempt over the condition of the Fulton County Jail located in Atlanta. For the past several years, the Fulton County Jail has been under the supervision of the federal courts pursuant to a lawsuit involving inhumane conditions there.

Things don’t appear to be good. One of the more basic things that you would expect from the jail is working locks. Apparently the internal locks aren’t working so well, leaving inmates free to roam about. There are also insufficient beds for all of the inmates. When the population of the jail went below a certain number, the Fulton County commissioners would not approve outsourcing of the housing of inmates to other city jails, a measure that Fulton County had previously used to comply with federal court orders. Officials in Atlanta have not figured out how to pay for court-ordered renovations in years. According to the AJC:

Some say the Fulton County Jail on Rice Street has always been a problem — and an expensive one at that.The $48 million jail opened almost 25 years ago to solve the issues that plagued the old jail, such as overcrowding and dangerous conditions. But those problems remain today, critics say, despite the county being under a consent order that requires them to make significant renovations, limit the number of inmates and maintain an adequate staff.Because there aren’t enough beds, some inmates sleep on the floor. They roam where they shouldn’t because faulty locks can’t hold them in their cells. And not enough detention workers are on duty at any given time to stand guard. A federal judge has scheduled a hearing in early February in which the sheriff and the county must “show cause” why they should not be held in contempt.

I’ve gone to several events at the Georgia Dome this year. That facility is about as old as the Fulton County Jail. In fact, my son and I just went to the Chik-Fil-a Bowl there to watch the Texas A&M game. The locks seemed to work. We were only allowed into designated areas. It was cold and rainy out, but things were comfy under the dome. There were 67,000 people there, but there were seats to spare. Everybody seemed to have enough to eat and drink. There was ample security. You could text a message to a particular number if a problem arose. Little toy cows were parachuted to lucky fans from the rafters and from a remote controlled blimp. The City of Atlanta has kept things running well. And yet …

… And yet, local officials have found a way to fund and even better stadium. This one will be even cooler than the perfectly good one we already have, and the roof will open and close.

Meanwhile the Fulton County Sheriff prepares for another contempt hearing because his office can’t figure out how to get the locks to work in the jail.

Deadline Extended For January Appellate Practice Luncheon

December 29, 2013/by J. Scott Key

On January 10, 2014, at noon, the Appellate Practice Section will host a luncheon at the Georgia Bar’s midyear meeting, at the Intercontinental Buckhead Hotel. The deadline for the early registration rate for lunch has been extended until January 1, 2014. The price for the luncheon until then will be $35. After that, the price will go up to $55.

The topic of the program will be The Next 50 Years of Appellate Practice in Georgia. Topics will range from the impact of electronic filing on the way cases are handled by the court, the future of our appellate courts, and the statutes governing appellate practice.

The panel will feature the following speakers:

Justice Keith Blackwell, Supreme Court of Georgia;
Judge Stephen Dillard, Georgia Court of Appeals;
Jeff Swart, Alston & Bird;
Anna Green Cross, Assistant District Attorney, DeKalb Country;
James C. Bonner, Senior Appellate Attorney, GPDSC

The registration form can be found at this link. However, the deadline for online registration is passed, and it will be necessary to fax this form to the State Bar at 404-527-8717. Don’t try to register online if you want the reduced rate. The Bar will not process refunds for online registration.

Ct. of Appeals Judge Carla McMillian’s Ten Tips on Practice

December 9, 2013/by J. Scott Key

Judge Carla McMillian’s campaign for re-election is in full swing. The Augusta press ran a full interview last month. And Judge McMillian took some time out to speak to the Appellate Practice Section’s monthly luncheon, where she reflected on a year on the Court and shared her top ten lessons and tips from her time as an appellate judge. Aly Palmer of the Fulton a Daily Report covered the event (article behind the pay wall). The article from the Fulton Daily Report talks more about how Judge McMillian was made a judge and her reaction to the appointment. The article also details some of Judge McMillan’s reflections upon her first year on the bench. This post focuses on the practical tips from Judge McMillian’s presentation.

The top 10 lessons are:

Jurisdiction is not always clear cut. Judge McMillian said that many cases are transferred from the Supreme Court to the Court of Appeals based upon the Supreme Court’s position that it lacks jurisdiction over the case. What is a practitioner to do? She advises that it is best to file first in the Supreme Court if jurisdiction is doubtful. The Supreme Court will then transfer the case down to the Court of Appeals. Beginning in the Court of Appeals in such cases has the downside of creating what Judge McMillian calls “a ping-pong match” of the case being transferred up only to be transferred back. The relevant statutes on jurisdiction can create much confusion in “edge cases” where there is an argument to be made that either court might have jurisdiction.
Even if you don’t get a docketing notice, your brief is still due. This bit of advice created the scariest moment in the room as lawyers (at least I did) began to think about what might be sitting in their spam folder. Judge McMillian noted at least two instances where lawyers did not get their docketing notice. In such situations, the court has some discretion regarding whether to dismiss the case or not. But, if you have recently paid the costs to send the record up, you may do well to check with the court every week or so to make sure the cases not been docketed. Docketing notices go out electronically now, and it is easy for emails to get lost in the shuffle of the inbox or inadvertently placed into a spam folder.
When you do not know whether to file a discretionary or direct appeal, err on the side of discretionary. Some matters can be appealed directly, and others must be appealed by discretionary application. Choosing the wrong form can be fatal to the case. If you file a discretionary application in a case where you have the right to appeal directly, then the court will allow you to appeal directly. If you file a direct appeal where you are required to file a discretionary application, your case will be dismissed. So, it is best to file discretionary when in doubt. On a related note, Judge McMillian pointed out the value in making discretionary applications lengthy enough to explain the case but not so lengthy that the court is overwhelmed with material.
If you want the full court to examine the case then request that precedent be overruled. In any case where a judge votes to overturn precedent, the matter will go to the full court. If you can get one judge to agree overturn precedent, then all 12 judges will decide the case.
Be more creative in helping the court understand the case. Judge McMillian noted that it is perfectly acceptable and welcome for advocates to place graphics or photographs into their briefs. She noted by way of example an advocate who placed a map of disputed land into the brief to illustrate the major concepts at issue in a dispute over a deed. She also noted that the judges like to see relevant exhibits displayed on screen during oral argument. I would note that judicial opinions differ on these points.
Don’t disparage the trial judge, opposing counsel, or other judges on the panel. Judges often make this point when they speak or write about professionalism. Judge McMillian cited a recent and real-life example of a lawyer who had compared the judges to some characters from Mayberry. There is a temptation to disparage on a motion for reconsideration; she advises just don’t do it.
Formatting / fonts. Judge McMillian offered several comments about formatting and fonts. First, formatting is important to her. She noted a recent walk with her husband, another lawyer, where the two argued about fonts. However, if opposing counsel makes a formatting mistake, then it is likely not worth raising unless opposing counsel has derived some unfair advantage from it.
Recordings. Recording don’t automatically go up with the record. Do not assume that they have. If the recording is critical to you, make sure that it is included in the record. If it wasn’t, then move to supplement the record on appeal.
Oral argument requests should be self-contained. The judges who read the request for oral argument will not be familiar with the case. Also, they likely will not have read the brief by the time that they consider the request. Therefore, the request should summarize the case well enough for the judges to make an informed decision. Also, if you want argument, go ahead and request it. Any one judge can grant the request.
If one of the judges on the panel concurs in judgment only, then you should file a motion for reconsideration. A JO often indicates some doubt about the decision by one of the judges. Filing a motion for reconsideration may change the outcome or draw a concurring opinion. (Note: After this post was published, Judge McMillian clarified in a tweet that this advice relates to J.O.s that come at or around distress time. Don’t know what a J.O. is? Check out Court of Appeals Rule 33. Don’t know what distress time is? Check out a previous post I wrote about it).

The Appellate Practice Section frequently invites judges and justices shortly after they are elected or appointed. Judge McMillian was a particularly engaging speaker who gave practical insightful tips about how to practice before the court.

Sex Offender Classification: A New Sort of Appeal for a Brave New World

December 2, 2013/by J. Scott Key

In the past year, I have worked on a new category of appeal in an area that did not exist when I came out of law school and was in its infancy when I started focusing on appellate law. Those appeals have been in a Georgia administrative agency called the Sexual Offender Registration Review Board.
That agency doesn’t decide who should be a sex offender (the legislature has done that). It doesn’t punish people who fail to register or abide by residency and work restrictions.

Rather, the agency rates sex offenders and determines into which of three possible categories they should fall. Level One offenders are those who can one day, upon proper petition and with a judge’s permission, come off the registry. Level Two offenders will have a tougher time getting off of the registry.The third category consists of Sexually Dangerous Predators. These folks are required to wear an ankle monitor for the rest of their lives with GPS tracking. As another lawyer in my office tells it to perspective clients: the last thing they do after you die and before they put your body in the casket is cut the monitor off of your leg. The software that probation officers use to track offenders is set to allow for real time monitoring. It also sends an alert if somebody tampers with the monitors or removes it or if a person goes into a restricted zone such as a school, daycare center, or park. The monitor itself goes on the ankle and is about the size of a late 90s Nokia cell phone (bigger than the one in the picture).

There are three times when a lawyer will get called about the Board. Those include when a person has just been convicted of a sex offense and is worried about how he might be classified; when a person is interested in coming off the registry and has never been leveled; and when a person has been leveled a sexually dangerous predator. I typically get called in the second and third situation, though the first would probably be the best from a preventative standpoint. Many newly minted sex offenders probably don’t know that this agency even exists. The vast majority are Level One. If you are Level One, you get a letter telling you that and your life probably is not going to change very much. If you are leveled a sexually dangerous predator, you get a letter and a call to your probation officer. Life is about to get a whole lot worse.

That’s generally where I’ve come in over the past year. A client has had an ankle monitor put on his leg and a letter notifying him that he’s a Sexually Dangerous Predator. He wants to know what to do. The first step is a request for re-evaluation. There are tight deadlines that you can look up, or that (better yet) a lawyer can help you out with. There’s a deadline for initial materials and another for supporting documents.

A couple of things to know about the Board. For a board with such power to change the lives of the people it evaluates, it does not have a bureaucratic feel to it.

It’s a very transparent Board. I’ve been able to do a few basic procedural things and get my client’s entire file. I’ve also been able to get a real person on the phone and to return my emails. For an administrative board, it’s quite friendly. Your mileage may vary. I’ve dealt with courts and clerks long enough to know how to be nice. And I’m a lawyer. Registered sex offenders and their families may have a different experience. I can only share mine.
They are open to both sides. It just may not feel that way. When you get materials from SORRB, you will see the original discovery from your client’s case or cases. If you’ve handled criminal cases before, you know that discovery is the State’s story of guilt. Discovery doesn’t focus on and rarely even contains mitigation. Does that mean that they are only interested in hearing one side? Not at all. The problem is that there is no repository if information out there with your client’s side. It is often good to consider filing motions or putting evidence into the record with an eye toward how it will look to SORRB one day. It’s also a good idea to check in with them to see when your client will be reviewed. That way, you can send informs it’s before the evaluation is done.
They Respond to Science. At least I think they do. If you can have your client assessed, and the conclusions are helpful, this information has more impact than a letter from your clients great grandfather who hasn’t seen him since he was a child.
The Ground Level Experts are Powerful. Ultimately, the Board classifies. But they do so in meetings that don’t last very long where many cases are considered together. The real work is done by evaluators, generally masters level mental health experts who know the assessment tools and who review the case. When a request for re-evaluation is filed, it goes to a second expert before it goes to the whole Board. When you write your petition, this is your audience. If you’re an appellate lawyer, this is nothing new. Your audience is the judge and the staff attorney who will read the brief initially and prepare a summary for the judge’s review.

Some of what I’ve said here may soon change. The SORRB lacks much of an institutional history. It’s a new agency. The assessment tools it uses are new (one as recent as 2002). Even the notion of a GPS tracking device is relatively novel. And this post covers only a piece if the appeals process. If a petition for re-evaluation is unsuccessful, the next step is a trial court. And the process goes even deeper. And, like any appeal, your chance to succeed is inverse to how far you go. The standard of review gets decreasingly appellant friendly as you climb deeper into the appeal.

One final tip, a request for leveling an unleveled person carries a certain amount of risk. The Board may rate a person a sexually dangerous predator who might otherwise have escaped notice. If there’s ever a situation where a pro se person can get in over his head, it’s this one. Everything looks user friendly until it isn’t.

How These Cases Can Start

September 26, 2013/by J. Scott Key

Earlier this week, I had a court appearance in Camden County, Georgia. Camden County is as far South as you can go on I-95 in Georgia without being in the Jacksonville, Florida, area. We have family close to there. So, I took my four-year-old son with me for a little time with his grandparents while I was out and about seeing my client and his family and taking care or business in court.

On our way home, we stopped in at a restaurant off of I-16 for a quick dinner. My son had been napping and was a little groggy and carsick when we came in. I was a bit tired myself. He told me he was feeling sick, which resulted in two trips to the restroom. Plus, he was whiney and not really in the mood to eat. Fearing that he might be sick there in the restaurant, I finished my food quickly to head out on the road.

When we were at the car (Acura MDX – hardly a kidnapper-mobile), I was accosted by the manager who told me he had been called there by some other customers because I had been “acting suspicious.” He demanded proof that my son was my son. Out the corner of my eye, I saw the patrons who had complained — two elderly white-haired folks. He told me that my license plate was photographed and that the police were on the way.

The encounter ended when I asked the owner if he was detaining me. It’s a question he couldn’t answer well. If he said yes, I told him I’d likely sue. If he said no, then there was essentially nothing for him to do. There’s also a chance that he just didn’t know the meaning of the word. I showed him my driver’s license and bar card and was on my way. All the way up I-16, I kept waiting to be stopped by a SWAT team or for an amber alert sound on my phone of which I would be the subject.

I am active in youth programs at my church, regularly attend my children’s functions, and have taught college undergrads and law students. I have been in and out of prisons, including juvenile facilities, throughout my whole career. If I put out a “creeper vibe,” it’s news to me.

I’m trying to think what I did to raise suspicion. Maybe lone men don’t come to restaurants with 4-year-olds in this part of South Georgia. Perhaps it was the whining, the trips to the restroom, and my desire to exit quickly. All of those things could be misread, I suppose. Yet, I also paid with my debit card and chose to go into a restaurant with my child. That behavior seems quintessentially non-suspicious. And, all things considered, the behavior was relatively subdued compared with children I’ve sat near on airplanes. Why are lone dads on airplanes with more upset children not viewed with even more suspicion.

I’ve thought back and wondered if I could have handled things differently. The detention question was, I think a good move. As was the decision to produce identification. There was no reason to do that. He wasn’t a police officer, and I’d done nothing wrong. If I hadn’t produced ID, I’d have almost certainly been stopped though.

I can also imagine ways that this could have gone much worse. I was offended, defensive, and humiliated. Those aren’t the best emotions for thinking critically. I can also imagine that much could have changed based on the dynamics of the people involved. If I had been questioned by the police, I’m assuming that the patrons/owner would have gotten the benefit of the doubt while I, the out of town white male with 4-year-old son in tow, would have been at a disadvantage. Also, I could have spoken out of anger and drawn some sort of disorderly conduct charge.

It was a bizarre scenario. It reminded me of how cases start where folks with active imaginations and misguided good intentions make bad choices on the basis of a rush to judgment (why not call the police themselves? Why did they call the owner to come to deal with me?). It also gave me sense of what it is like to be accused of doing something you haven’t done or to be viewed suspiciously. I’m not sure how younger men, angrier men, or men without legal training might have acted differently. But this could have ended much worse than it did had it been someone else or had it been me on a different day.

I also think I’ll be flying into Jacksonville on my next trip to Camden Superior Court.