Judges at Appellate Practice Section Luncheon Laud New Governor’s Support of Judiciary

/by

The Appellate Practice Section of the State Bar of Georgia convened as part of the Georgia Bar’s mid-year meeting. In spite of the fact that many participants came over from the swearing-in of Judge Boggs to the Court of Appeals, the luncheon was lively and well-attended. Originally intended to be a candidates’s forum for candidates to an open spot on the Supreme Court of Georgia, events changed the format. However several judges on the Court of Appeals and Supreme Court have seats up for re-election this year. And the meeting became an opportunity for brief comments from judges and justices. Without covering each mini-speech, I’ll highlight a few judicial comments about the nature of judicial elections and about what life is like for the judiciary under the leadership of a new governor.

It should come as no great surprise that the former governor did not have a particularly bright spot in his heart for the judiciary or even for lawyers. From the comments I heard, things appear to be better now.

Supreme Court Chief Justice Carol Hunstein noted that the new administration is “kindler and gentler,” in terms of budgetary support and basic understanding of what judges and lawyers do. Governor Deal is requesting $10 million for “accountability courts.” Accountability courts are focused on particular needs of a category of defendant. Accountability courts include drug courts, DUI Courts, mental health courts, and veterans courts. The Chief Justice noted that the governor’s son runs an accountability court and that the governor himself was once a juvenile court judge. She and former chief judge Yvette Miller, spoke of how difficult it was for the two appellate courts to make ends meet in the darkest days of the Perdue administration. Both were complimentary of the new governor, and the dark clouds of former days appear to have moved away.

Equally interesting was the general tone about the nature of judicial elections in Georgia. Chief Justice Hunstein, who faced down a well-funded challenge by Mike Wiggins in 2006 (PDF), noted optimistically that a judge’s job at election time is simply to “get the message out, and you can trust Georgia voters.” She looked back on her 2006 election as a time of fear that had she lost then every judge would be intimidated by special interest groups. And she hoped that the 2006 election proved that special interests can’t defeat a sitting judge. For candidates this year, she advised lawyers to inform the choices of non-lawyers. After all, if the judiciary is doing its job, judges should not be in the headlines. Hence, it should not be unusual for the general public to be unfamiliar with the judges.

To date, no challengers have announced an intent to run against any of the Court of Appeals judges or Supreme Court Justices who are up for election. The year ahead looks to be a time of stability for the appellate courts with apparently no contested elections and with a supportive governor in office.

The Top 2 Georgia Legal Stories of 2011 and the 1 Lesson They Teach

/by

This post was intended to be a top 10 list. Then it was intended to be a top 5 list. But as I look back at 2011, there are really only two big stories that stand out. Actually, there are two stories and one lesson. The stories are the JQC’s investigation of Judge Amanda Williams and the Execution of Troy Davis. And the lesson? There is no more powerful court in Georgia than the trial court. It’s an important lesson to keep in mind if you are a client thinking of where the resources should go. And it’s an important lesson if you are entering a case as a lawyer and are contemplating the days and months ahead. In fact, the lesson I take from both as well as my years as a lawyer is that your chances of success are inversely proportional to deeply your case goes in to the system.

Amanda Williams

Judge Amanda Williams resigned in the face of an investigation by the Judicial Qualifications Commission. But her troubles began long before the JQC got involved. Judge Williams was the subject of an hourlong program about her drug court on NPR’s show, This American Life. According to that story, her drug court was the toughest in the nation, and punishment for those in the program included such things as indefinite sentences. That story aired on March 25, 2011. On November 10, 2011, the JQC brought 12 charges of misconduct (PDF). I’ve been appearing in front of trial judges throughout the State for some time. And, though I am not familiar with Judge Williams and know only what I have read in the media, the sort of thing that aired in the NPR story is within the realm of arbitrary use of judicial power I have seen in other courtrooms. Most JQC complaints go nowhere, and the appellate process protects the discretion of the trial judge in most instance unless that discretion is abused. It is difficult to imagine more raw power by an official than that of a judge in the judge’s courtroom.

The story that emerged on December 15, 2011, may have been what proved to be the judge’s undoing. It was reported that drug court was used as much as a carrot as it was a stick. In the case of the relative of a prominent and power Sea Island business man, according to the story, drug court was the place for an accused child abuser to go to escape a harsher sanction. Shortly after this story surfaced, the judge resigned. It even made the New York Times.

The JQC’s action in this case does not underscore the point that judges can’t get away with stuff. Rather, it underscores just how far things have to go in Georgia before a judge is actually sanctioned. It is also interesting to note that none of the folks who were treated arbitrarily had controversies that made their way into the appellate courts.

If there is one lesson to be learned from the Amanda Williams story it is that the trial court is a powerful setting.

Troy Davis

The appellate setting is a different thing altogether. If witnesses start recanting, if prominent people start complaining that a convicted man is innocent, even if Big Boy shows up to protest, there is little that an appellate court can do or will do to undo a conviction and even a death sentence. The Department of Corrections ultimate executed Mr. Davis for a murder of a Savannah police officer in the 1990s. In the weeks leading up to that execution, there was much debate about how strong the evidence was against Mr. Davis at that original trial. It was a shame that all the effort that went into analyzing the evidence over a decade after the trial did not go into the trial itself. And others found out that hours before an execution was too late to try to get the death penalty abolished in Georgia. If such effort were sustained over a period of time while the General Assembly was in session, who knows what might happen.

Conclusion

These two stories demonstrate that the real power to shape a case’s outcome lies at the juries and judges who hear the trials and who handle justice at the evidentiary level. There is a real law of diminishing returns the deeper a case goes into the process. Even if a case ends up on appeal or before a habeas court, a lawyer’s ability to win can be significantly impaired by what happened before the trial court. That is the lesson I took from the two two stories of the year. The power of the courts to intervene diminishes the deeper you get into the system. And a judge has to go pretty far to be sanctioned for abusing it.

The Baader-Meinhof Phenomenon

/by

For those of you who don’t know, the Baader-Meinhof Phenomenon is that weird occurrence where you hear about something for the first time and then encounter it again shortly afterwards. (Don’t worry, I didn’t know that term either until I searched for it on Google. And if there is any truth to this phenomenon you will come across this term again soon.) As a newly minted lawyer, many legal concepts that are second nature to seasoned attorneys are in the forefront of my mind, and my latest fixation is on ineffective assistance of counsel, with a twist.

About a week ago, I benched a moot court competition with a problem involving IAC at the plea bargaining stage. Unfortunately, it wasn’t a cut-and-dried Strickland and Hill issue, since the case involved a defendant who declined a favorable plea offer based on erroneous legal advice and proceeded to trial. In this fictional case, the defendant’s attorney advised him that evidence of shooting someone in the arm and leg would be legally insufficient to prove assault with intent to murder. The defendant was advised to reject a five-year plea offer and proceed to trial. He was later convicted (much to his surprise) and sentenced to a term three times longer than the plea offer.

This scenario doesn’t just occur in the closed universe of moot court briefs, however. In fact, one of the reasons I even agreed to bench the competition was because the problem closely mirrored one of my current cases. While I had thoroughly researched this issue at the state level, I was curious to see the arguments from both sides based on nationwide case law. After watching two hours of interesting debates, I left the competition wondering why the real Supreme Court has not yet decided this issue.

Last night, my question was answered when I ran across a news article discussing two cases involving ineffective assistance of counsel at the plea bargaining stage: Missouri v. Frye, No. 10-444, and Lafler v. Cooper, No. 10-209. While this may not seem strange to any of you, this particular article appeared on the sidebar of my South Georgia hometown newspaper’s website—hardly the proper venue for any academic legal commentary. (Sure, this may have been a coincidence, but I like to think that it’s the Phenomenon at work.) The Supreme Court of the United States heard oral arguments in both cases this morning.

In Lafler, the Sixth Circuit held that Cooper’s attorney was ineffective for convincing Cooper to reject a favorable plea bargain based on an erroneous understanding of the law. The court also ordered “specific performance” of the plea bargain, even though Cooper was later convicted at a fair trial. Here, Cooper was charged with assault with intent to murder and possession of a firearm by a felon after shooting a woman several times below the waist. Cooper was offered a plea of 51 to 85 months, but he rejected the plea offer after his attorney (wrongly) informed him that the state could not prove intent to murder since the shots were fired below the waist. Cooper was later convicted at trial and sentenced to 185 to 360 months in prison.

In Missouri, respondent Frye was arrested for his fourth violation of driving with a revoked license—a class D felony with a four-year maximum sentence. The prosecutor conveyed two offers to Frye’s counsel. The first choice was that Frye could plead guilty and the state would recommend three years, agree with the court if it gave probation, but would ask that ten days be served in “shock” incarceration if probation was granted. The second option would change the charge to a misdemeanor with a maximum one-year sentence, and the State would recommend a 90-day prison sentence. Rather than informing his client about the plea offers, Frye’s attorney entered an “open” guilty plea. Frye was sentenced to three years in prison.

Both cases are important to defendants and criminal defense lawyers alike because they actually address the real-world implications of the plea bargaining process. It is easy to rely on a plain reading of the Sixth Amendment and argue that because there is no constitutional right to a plea bargain, an attorney’s ineffective assistance at the plea bargaining stage does not deprive a defendant of any constitutional rights. But this argument would ignore what really happens in criminal cases. The majority of criminal charges are disposed of by plea bargains, not by trials. For many criminal defendants, a plea bargain is not only a crucial part of the process; it is the only part of the process that involves real deliberation.

After the Court’s decision in Padilla v. Kentucky last year, I have hope that the Court will continue to recognize the real dangers of ineffective assistance of counsel at the plea bargaining stage. The second-prong of Strickland is not only met when a defendant would have insisted on going to trial had he been properly advised at the plea bargaining stage; a defendant is also prejudiced when he would have accepted a plea if he had been properly advised. If SCOTUS agrees, the opinions in Lafler and Missouri will not only change the way lawyers think about their representation during the plea bargaining process, but their whole approach to IAC claims as well.

A few months from now, my fascination with IAC at the plea bargaining stage will subside as my caseload inevitably grows and new issues occupy my mind. The issues presented in Lafler and Missouri will fade away as I am faced with unique questions and research new problems for my clients. Then, one day, I will browse my hometown newspaper’s website and see “SCOTUS Decides Bad Plea Advice Cases” on the sidebar. And the Phenomenon will begin again.

 

Amanda Knox, the Appeals Process, and Moneyball

/by

Today, my recent post on Amanda Knox was quoted by Ronald V. Miller in his Maryland Injury Lawyer Blog. He picks up on my point about the Knox case and other high-profile cases with an unexpected result. For clients and potential clients, such cases reinforce the often mistaken idea that, if you keep on slugging until there is no procedure left, no matter what the odds, you will eventually win. I thought about Mr. Miller’s post all day. And I decided to add a few point here about the idea of “fighting” through to the bitter end and what it means for the appellate process. There’s nothing wrong, in criminal cases, with fighting it through to the bitter end. Unlike in the civil arena where the central issue is money, in criminal law the issue is liberty. For a person with a lengthy prison sentence, the slimmest of odds may be worth the effort. When the issue is money, the time to stop is the point where the resources it might take to win begin to are outweighed by the odds of losing. So, let’s assume that any criminal case is worth taking the appellate and habeas process as far as you could possibly go, there is still an important question to ask. When does the client make the decision that he is in it for the long haul? For too many, that decision comes at the moment the jury files into the courtroom and delivers a guilty verdict. It’s a good decision that comes too late.

You don’t begin the appeal when the verdict comes, you begin the appeal when you open the case at the trial level. Part of client counseling involves planning for appeal. Unfortunately, nobody wants to talk about a guilty verdict at that stage. It’s one thing to purchase life insurance. But nobody wants to purchase life insurance from his doctor. But if you’re the trial lawyer, your job is to win the trial and make a record for appeal.

The movie Moneyball is applicable here. If you’ve not read the book or seen the movie, an important issue is how much traditional baseball stats really tell you about a player. For instance, RBI (runs batted in) is not the stat that you might think it is, because a player who doesn’t often bat with runners on base doesn’t get the same number of opportunities to hit RBIs as a batter who has other hitters in the line up. To drive a run in without base runners requires the batter to hit a home run.

Well, an appellate lawyer is essentially a batter who comes to the plate with two outs already recorded. Even the biggest power hitters will hit home runs infrequently. Take Hank Aaron, for instance. Aaron is remembered for hitting 755 home runs in his career. His total is impressive because he earned it at a time when players weren’t using steroids. But it’s important to consider his home run total in the context of his total career at bats. He had 12,364 career at bats. So the odds of hitting a home run, even for Hammerin’ Hank, were pretty low on average.

If the trial lawyer made a good record for appeal, through objections, motions, and rulings, then the appellate lawyer comes to bat with the bases loaded. At which point, the goal is simply to put the ball in play. It is helpful to look at appeals as analogous to RBIs. An appellate lawyer can hit home runs, but generally it’s much easier to appeal with a good record.

Now comes the part where the analogy breaks down. In baseball, the appellate lawyer can bat in more than one place in the lineup. In the past year or so, I’ve been fortunate enough to be brought into cases to handle motions and objections at the trial level. It’s great to be an appellate lawyer on a trial team. I have a particular role. I’m focusing on the record. The trial lawyer gets to smile for the jury and do all the other stuff trial lawyers do. And the appellate lawyer gets to put himself on base and hit himself in.

Unfortunately, I’m very often called in to pinch hit with two outs where I have to hit a home run to win. Hopefully more trial lawyers will start putting an appellate person on the trial team or at least start learning to see the game through an appellate lens. Hopefully more clients and trial lawyers will take a lesson from Moneyball and not from the Amanda Knox case, where the appeal was a “do-over” and not a detached examination of the errors at trial.

 

Managing Expectations in the Wake of the Amanda Knox Win

/by

I’ve already been asked about it several times. For the criminal trial lawyer, the Casey Anthony verdict was the result that made it difficult to counsel clients on whether to accept a negotiate plea rather than risk a trial against an overwhelming case. Several colleagues have told me that clients have balked in the face of solid legal advice, reasoning “that girl in Florida got off.” Amanda Knox is, I fear, the appellate lawyer’s Casey Anthony. It doesn’t matter that it’s a different legal system in a foreign country. The comparisons are coming. It is time to prepare with some key points when you face the inevitable comparisons.

An Italian legal expert I am not, but the New York Times piece from today highlights key differences between the two systems that are worth noting and highlighting for the practitioner or for the prospective appellate client.

  • The appellate court in Italy acquitted a criminal defendant. Appellate courts in the United States do not acquit criminal defendants. The nearest equivalent in the US is a finding that there was insufficient evidence to convict and a reversal on that basis. In US Courts, a verdict will be upheld on the facts unless the evidence, when considered in a light most favorable to the prosecution, was insufficient for any reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Appellate courts in the US neither investigate the case nor “reweigh” evidence on appeal.
  • International media attention appears to have had an impact on the Italian appellate court’s decision. In the U.S., at least in Georgia, media attention doesn’t necessarily help. But sometimes it can have a direct impact. Here, it’s a toss-up.
  • The appellate process in Italy “evaluates both procedural questions and can reopen the investigative phase.” What’s done is done in the American appellate process. The record is set in stone in an American appeal. The focus here is almost exclusively on procedural questions. Unless there is evidence of misconduct on the part of the State or a significant error from defense counsel, a new investigation won’t help. And in the American system, it is important to file motions and raise objections early and often so that there are procedural things to raise at the appellate level.
  • Critics noted that the legal system in Italy was “medieval or barbaric.” Our system is entirely too young to be described as medieval. The process in Italy doesn’t seem so barbaric from our perspective, given that there is not a comparable post-conviction process here to re-weigh the evidence. And they don’t kill their defendants in Italy.
  • The appellate panel was made up of six citizens and two judges. The role of citizens in the U.S. system ends with the verdict, and an acquittal here cannot be appealed as, apparently can the acquittal in Italy.

Again, I am no expert in the Italian legal system. But there is enough of a difference between what happened in the Knox case and what could ever happen in Georgia, to make it an apples and oranges comparison. You’ll get questions from clients assuming that an appellate do-over is possible. And you’ll hear about Amanda Knox. With some preparation, that moment can be a teachable moment.

When Judges Tell Juries About Appeals

/by

There’s an old bright line rule about whether judges should mention the appellate process to juries. The subtext is that you shouldn’t do it at all. The literal rule is that you shouldn’t do it in a way suggesting that the defendant is going to lose the trial. The Supreme Court recently reaffirmed on old line of cases on this point. But a dissent in that case followed by a concurrence in an even more recent case, suggests that this rule is changing. This is a tale of two cases enveloped within a tale of even more cases, dating back to the nineteenth century. Keep reading, it’s way more fun than I’m making it sound.

The Faustian Bargain

If you pull up Gibson v. State on Lexis, you’ll see that there is now a big ole yellow triangle in the heading. Click on the triangle, and you’ll arrive at State v. Clements. When you get there, you’ll see that Justice Nahmias and Carley, the dissenters in Gibson, are the reason that the yellow triangle appears. The issue in both cases is whether judges should be in the business of talking to juries about the appeals process and what should happen to their reversal rate when they do.

In Gibson, the jury wanted to read some statements during deliberations that had been tendered at trial. The judge said no, and then he elaborated: “They are supposed to be read like any other testimony, and it would be reversible error for me to give you all the exhibits.” The Court reversed, reasoning that the comment intimated that the defendant was guilty and would need to “appeal his forthcoming conviction.”

It turns out that there is a history of this sort of thing. The Court in Gibson cited the 1966 case of Faust v. State where it reversed a conviction after the judge told the jury that “there are certain which cannot be removed from the indictment, and I am of the opinion it would be improper and maybe reversible error by the Appellate Court if I allowed you to see the indictment with these several entries hereon.”

But there is even a longer history than that. In 1857, when a fictional Scarlett O’Hara would not have even had her learner’s permit to drive the wagon yet, a trial judge told a jury that he “was responsible to the Supreme Court, if he committed an error; that he was a fallible being and liable to err, and that they might under the statute, decide against his opinions of the law, if they thought proper to do so.” Of course, these facts are unique on their face. Indeed, there is likely no other time in the history of Georgia when a Superior Court judge referred to himself or thought of himself as a “fallible being” or “liable to err.” Nevertheless, it is interesting to note that the Supreme Court did not reverse but gave the trial judge a good scolding: “all reference to the Supreme Court, with by trial court or counsel, by way of menace or otherwise, except to cite its decisions, had best be dispensed with.” Ah, yes. The judicial scolding. Nothing signals the offending party that they’re about to get away with something like a judicial scolding. And the dissenters have picked up on it. The 19th-century Supreme Court and the modern Georgia juvenile court share this quality. For you new lawyers out there, when the juvenile judge starts yelling at pee wee, slip a note to mamma telling her to chill out, because pee wee’s going home.

For the dissenters in Gibson, the trial court’s “good talkin’ to” was dicta and serves as a fairly bad foundation for the kind of bright line rule that the Court in Faust constructed. Equally shifty, according to the dissent, was the foundation provided by the 1944 Bryant case, where a prosecutor withdrew an objection to a question posed by the defense, adding “I will withdraw my objection; the Supreme Court – I am scared of the Supreme Court.” Again, the case was factually unique. When was the last time a prosecutor changed course out of fear of a Georgia appellate court? Again, the dissent notes that the prosecutor got a lecture but no reversal of the conviction. Did you note the irony? In Georgia history, lawyers and judges who said that they were afraid of the Supreme Court were told that they should be afraid of saying that they were afraid of the Supreme Court.

Before Gibson, the dissenters reason, the admonition: “don’t be a bonehead. There’s no reason for you to start talking about appeals with a jury” was merely aspirational. With the rule in Gibson, it’s now the law.

Having dispensed with the foundation for Faust, the dissenters then turned to analysis of  how little the average juror knows about the process.

Take the Average Juror (Please)

For the dissenters, it is a real stretch to assume that the jury would really know that all that talk about appeals means that the judge thinks that the defendant is about to lose the trial. Justice Nahmias writes, “my own experience is that many lay people are unaware of it and some are surprised by the notion that the State does not have the same ability as the defendant to appeal a verdict.” But even if we assume that they know the law in this area, the dissent goes on, how would talking about the appeals process harm the defendant? It might encourage jury nullification, after all, since the State has no remedy for an acquittal, and the jury owes nobody an explanation for its verdict.

And, the dissent continues, it would be quite a leap to assume that the mere mention of the appellate process by a judge presumes that the judge thinks that the defendant will be convicted or that such a presumption would even matter since even the densest of jurors would understand at some point that the juror, not the judge, is the trier of facts.

The part about the average juror, to me, is the most slippery part of the dissent. “Average people” think all sorts of crazy stuff about the appeals process. I know, because I find myself trying to explain my job quite a bit in social settings to non-lawyers who ask me about my job. Even after explaining that I’m in private practice, lots of people ask me if I prosecute or defend people. And when I explain that I do criminal defense but that it is mainly post-conviction or appeals work, I get either a nod of understanding (from the PBS watching crowd), a blank stare (from the Entertainment Tonight watching crowd) or a full plate of “how can you sleep at night? These criminals get too many appeals? I can’t believe all these people get off on technicalities” (from the Fox News watching crowd).

The trouble is that this is Georgia. And there aren’t enough strikes available to winnow out the Fox News people. And when they hear the word “appeal,” they are thinking something very different than the other average jurors.

Indeed, it’s hard to disabuse clients, no matter how hard one might try, of the notion that you can’t appeal on the basis of “Officer Rogers was a big fat liar.” And most people have unrealistically high expectations of how easy it will be to win the appeal. Do we assume that the average juror knows how hard it is for a convicted defendant to win on appeal? Can we presume that they know the odds any better than the average appellate client? The real harm on mentioning an appeal is that the average juror will not realize just how big the stakes are for the guy on trial. It’s not like football games in the backyard where there’s a disputed call. The appeal is not a “do-over.” And I know that. Does the jury?

So What?

The dissent in Gibson is getting some traction. Hence, the big yellow triangle. In the concurrence in Clements, the dissenters from Gibson note that the Court is going where they should have gone when they decided to that case, with “don’t mention appeals” as an advisory goal and not as a legal rule. And if you look at the reasoning from the majority in Clements, they are exactly right.

The problem is that it is a dangerous thing to start telling jurors about the appeal. And it really is unnecessary. Advisory rules, such as “don’t eat sweets,” are nice. But they don’t have the force of law. And I’m not sure why you shouldn’t just mandate to judges not to talk about the appellate process? Why the big need?

 

Putting it in Context: Or, How I Almost Gave up on Blogging

/by

I stopped blogging several weeks back. You won’t have to look hard to see a gap in the rate of posts on this blog from July until a few days ago. And if you look at the post I did earlier in the week, you’ll see something worse than no blog at all. You’ll see a spineless report of some cert. grants with no analysis, thought, or expression of opinion. I think what I finally wrote was much worse than what I didn’t write. Then I thought, again, about no longer blogging. Confused? If you are still reading at this point, then let me explain.

A few weeks ago, a person attempted publicly to use some of my blog posts, via a verbatim recitation, against me. They were read out of context mind you. And the tactic didn’t work. Still, it was not fun. The general theme of the criticism was that I was failing to follow my own playbook.

Nothing I write here is legal advice. And I don’t pretend to think that this or any blog could ever be an A to Z guide on handling criminal appeals. Such an endeavor is not possible. And if it were, I am not qualified to pen it. There are certain patterns in the law that arise repeatedly (hence, the need for precedent), but no two clients or cases are absolutely alike (hence, the need for lawyers and a justice system administered by thoughtful listening human beings). So, at the most logical of levels, it is a mistake for any blog writer to think too much of himself when he says anything in this medium. And it is a bigger mistake for the reader of a blog to believe that any writer has all the answers or for a reader to take the words in a blog as anything strictly prescriptive. I don’t have a playbook on paper, on screen, or in my head for appellate success in all cases. And, in case I have suggested something otherwise, my appellate batting average is not 1.000.

Yet, I stopped blogging for a while because public criticism, whether well intended, well founded, and properly contextualized or not, isn’t fun. There’s quite enough of it in just doing the job, in standing up to make an argument for a client who has already been deemed guilty by a jury of his peers, in standing up before an appellate panel and taking tough questions, in the humbling experience of filing a brief knowing that it will be read by a group of very professional and highly critical audience. Why set myself up by putting my opinions before an audience that might not get it, might become confused to see me trying out an idea in one post and later abandoning it in another, and who might use those words in a less than charitable way.

But this question, I have discerned through some discussions with people I respect, is not just a question about blogging. Why engage at all, really? Why write articles? Why speak at CLEs or Rotary clubs or bar luncheons? Why try to explain to people at barbecues and parties what you do for a living or why you are so passionate about it? For that matter, why did you endure being called on in your 1L year or choose to take on a vocation that isn’t always fun and is often quite messy to do?

But those questions are probably bigger than the ones that came immediately to mind. A little too deep. A little too fru fru. The real questions I was asking myself were more in the neighborhood of seeking an excuse. The real question was a question of motivation. And the scarier question was exactly what is the nature of this medium and how I was using it.

I began imagining a spectrum, with a scholarly law review article on one end and with a seedy full-page yellow pages ad on the other (with a picture of me in front some law books and a clip-art scale of justice depicted) and wondering where my blog fit on it.

So why have I been blogging?

  • To find business? I wouldn’t mind if it happened. But there are easier ways, probably, to get business than this. If you realize business from blogging, it’s likely to come over a long period of time from a blog that is credible and by referrals from other lawyers who know and have critically evaluated your work. Blogging is probably the least important way to get that. You earn business one transcript page at a time, one argument at a time, one paragraph at a time. But you can get that through blogging too, if done with integrity. But it isn’t easy, and it is not for the impatient. Better to design the yellow pages ad and get on with what you normally do in the day. The business I get directly from the blog usually comes in the form of requests to represent people for free. The most dreaded words in the law, I think are “I found you on the internet.” Because what follows is typically a story of a purported injustice that I should be so shocked to hear about that I would never consider seeking compensation for my time and expertise to take it on.
  • Fame? On my very best day, it is pretty depressing to click on Google Analytics. I think that a criminal appellate law blog is not exactly a ticket to fame. When people tell me that they read this blog, I’m often tempted to say, “so you’re that guy.”
  • To engage other lawyers, to think a little more about issue so importance, to try out (and maybe discard) some ideas about the craft, and to have fun. Those are the reasons to do this. And there’s one more that comes when I stumble into doing it well.
  • To take risks. Stick your head up enough and you’ll get hit. And in the short term, it’s better to keep your head down. But in the long term it just sucks to do that.

In deciding whether or how to blog, whether or how to practice law, and whether and how to live, it always seems easier and more comfortable to lock the door and close the blinds. But it isn’t very fun.

 

Granted Petitions on Criminal Cases for the Month of September

/by

The Supreme Court has granted two petitions for certiorari and one application for discretionary appeal so far this month. Below is an overview of each case

Bunn v. State

In its Order granting Cert., from September 6, 2011, the Court notes that it is particularly concerned with the following issue:

Does the Child Hearsay Statute allow a witness to testify as to what one of the defendant’s victims said she saw done to a second victim? See OCGA Section 24-3-16; Woodard v. State, 269 Ga. 317 (1998); Assad v. State, 195 Ga. App. 692 (1990). See also Crawford v. Washington, 541 U.S. 36 (2004).

The opinion form the Court of Appeals may be accessed here. The COA opinion was authored by Judge Smith, who wrote for a unanimous panel with Judges Mikell and Adams.

The Cert. petition has been pending for approximately 9 months from the time that the COA denied reconsideration on December 14, 2010

Jones v. State

On September 12, 2011, the Court entered an Order granting cert, noting that it wished to consider two issues:

  1. Did the Court of Appeals err in upholding the trial court’s denial of Jones’ request for a subpoena? See Yeary v. State, 289 Ga. 394 (2011).
  2. Did the court of Appeals err in holding that the trial court was authorized to conclude that Jones’ encounter with the police trooper at Jones’ truck was consensual?

The opinion cannot be found because the Court of Appeals Ordered that it not be officially published. Judge Ellington wrote for a unanimous panel joined by Andrews and Doyle. This case is another in a continuing saga by defense attorneys to obtain the source code for the intoxilyzer machine, a popular device used by law enforcement to measure blood alcohol concentration, with an added twist of a Fourth Amendment issue.

Notice of Intent was filed on March 17, 2010, and the cert petition was pending approximately 5 months before cert. was granted.

Harper v. State

On September 23, 2011, the Court granted an interlocutory appeal on this case. The case comes to the Court by way of transfer from the Court of Appeals because there is a constitutional questions involved. The Petitioner is indicted for a violation of RICO, involving allegations of theft from Glock, the company that manufactures firearms. The constitutional issue is whether the provision that extends the statute of limitations for offenses where a victim is over the age of 65 violates equal protection where, as here, the victim is a senior citizen who is a multimillionaire, runs a multi-billion dollar corporation, and is likely heavily armed (I editorialized the heavily armed stuff. It’s not really part of the opinion). Justices Nahmias and Carley dissented from the grant of interlocutory appeal.

 

What Do Appellate Lawyers Do

/by

Leave this blog right now and run, don’t walk, over to the Appellate Record and read Kendall Gray’s blog post on what distinguishes appellate lawyers from trial lawyers. A presentation he gave to visitors to his firm from China inspired this post. It provides the simplest explanation of the key differences between the two types of practice that I’ve never thought of. It’s the perfect thing for the appellate lawyer to bring to the next family reunion, picnic, initial client interview, or for consultation in an ongoing case when you have to explain, again, why you can’t tell the appellate court about “all of those people who got up on that witness stand and told all those lies.”

Two New Cases Warn Lawyers to Tend to the Record on Appeal

/by

Two recent cases from the Court of Appeals demonstrate the need to put the appellate record together in a reasonable time period, the need to respond to post-trial motion regarding the record with the statutory time frame, and to be vigilant that the record stays together as the case moves its way through the court system. The record is the engine beneath the hood. And there can be problems that the gauges in the dashboard will not always catch. Sometimes, we need to check the oil, the belts, and the hoses.

Frazier v. State, A11A0196

In this opinion, written by Presiding Judge Anne Barnes, the Court of Appeals affirmed a trial court’s decision that a defendant’s confession was voluntary and would be admissible for impeachment purposes if the defendant decided to testify. The defendant had not been Mirandized before he spoke with law enforcement, so the State was not allowed to use the statement when it presented its case. On appeal, the defendant argued that the statement was involuntary, because he was intoxicated when he spoke with law enforcement, and should be inadmissible for any purpose. He urged that the error was harmful because, without its admission for impeachment purposes, he would have testified at trial. This was the case’s second trip to the Court of Appeals. And, somewhere along the way, the videotape of the confession, was lost. The Court checked with the trial court clerk and others to no avail. The Court did not have the tape to review in making its decision and was left to rely solely upon the trial court that viewed it.

Mr. Frazier filed a Motion for Reconsideration and a Motion to Supplement the record after the opinion was rendered. The Court denied the Motion for Reconsideration, reasoning “Further, as Frazier has only now requested that the record be supplemented with the missing videotape, and has moved the trial court to produce a videotape, he obviously made no attempt to ascertain the location of the missing videotape prior to the issuance of our opinion.”

One wonders, though, whether Mr. Frazier would have achieved anything in acting earlier. The Court, on its own, looked for the tape “prior to its review of the present appeal” and was unable to find it.

What is clear from the opinion is that a lawyer’s responsibility for keeping up with the record on appeal does not terminate when evidence is tendered to the Court and when documents are filed in the record. At a panel discussion on appellate advocacy, Judge Dillard spoke about his practices with respect to the record on appeal. He talked of his earlier practice as an appellate advocate going to the clerk’s office and making an exact duplicate of the record to keep in his file. It turns out that such a practice is more than a helpful suggestion, it may well be the standard of care since Frazier.

It also would be a good practice, post-Frazier, to check the record when the case is docketed to ensure that everything put in the record is still in the record.

Bush v. Reed, A11A0978

And it is also important to get the record assembled in a reasonable way. In another opinion, authored by Judge Barnes, and decided by the same panel that decided Frazier, the Court affirmed a decision by a trial court in a civil case, where a trial court found that a plaintiff’s delay in paying for a transcript was inexcusable and unreasonable. It takes a timeline to explain this case fully. On October 27, 2009, the plaintiff filed a notice of appeal, moving to only send up certain portions of the record. A month later, the defendant moved that the complete transcript be prepared and sent up. In January, 2010, the Court granted a motion for additional time to file the transcript. A month later, the court reporter told the plaintiff that $3,500 was needed to begin the transcript and that it would be unusual only to prepare certain portions of it. So, later the plaintiff moved to require the Court to make the plaintiff and defendant apportion the costs of the appeal, which the trial court denied. On July 29, 2010, the defendant moved to dismiss the appeal, prompting the plaintiff in August to pay the deposit finally. But the plaintiff did not answer the motion to dismiss until October, and that answer was struck as untimely.

Finally, on November 15, 2010, the trial court dismissed the appeal.

On appeal of the dismissal, the Court found that the trial court did not abuse its discretion in finding that there was an unreasonable delay in the preparation of the transcript. It is important to take note that there is no magical number of days that a case can be delayed before the delay becomes unreasonable. In fact, there is language in the opinion suggesting that a trial court would not abuse its discretion in finding a single day’s delay to be unreasonable. Next, the Court turned to whether the delay was excusable. There the original plaintiff had relied upon the trial court’s somewhat open-ended order allowing an extension of time to file the transcript. Practitioners should take note that even an order allowing an open-ended extension is not sufficient to delay paying the court reporter. The court reasoned that a court order “does not excuse a party from the consequences” of his unreasonable delay.

Conclusion

It is not enough to tender an item into evidence and put it into the record. The appellant has the responsibility to shepherd the record to the appellate court, even when the sheep are penned up in the clerk’s office or with the court reporter. It is also important to be diligent with the assembly of the record even if the trial court appears to have provided you with an excuse to do otherwise. Not even the trial court can excuse unreasonableness.

 

ADDRESS

199 W Jefferson St.
Madison, GA 30650

PHONE

678-610-6624

EMAIL

tori@scottkeylaw.com