Appeals Law is Often About Turning Down Cases

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In the past week, I sat down with two potential clients and their families to discuss taking an appeal. I thought one case was “winnable,” and one I thought was not. I put “winnable” in quotation marks because defining a win in appeals law is difficult.

In one case , the prospective client recently entered a non-negotiated guilty plea to a violent crime. A non-negotiated plea is one where there is not recommended sentence by the State. The client stands before the judge, puts up his mitigating evidence, and the judge chooses the appropriate sentence. The sentence was tough, but it could have been worse. The other case involved a man who entered a plea to a very badly worded indictment and whose plea hearing was pretty messed up. By messed up, I mean that the judge did not ascertain whether the client understood the rights he was giving up by taking a plea and choosing to forego a trial. Both cases were dangerous.

 

Danger Often Lurks Ahead When You Mess with Guilty Pleas

These two cases had something in common though. They were a classic demonstration of the cliche — “be careful what you wish for because you just might get it.” Bad things were waiting for these prospective clients at the end of a successful appeal. For the guy with the defective plea, two counts that were originally dismissed would return from the dead to haunt the client on retrial. For the other prospective client, there were several potential counts for which he could have been indicted after a successful appeal, and the case was not going to be very easy to defend at trial.

The choice was theirs, but I advised that an appeal was likely a slow road to disaster. The sequel was going to be more along the lines of Caddyshack II than Return of the Jedi.

 

The Judge’s Power When Counts were Dismissed

But, you say, can the judge really punish you for a successful appeal? It depends. In the landmarks case of North Carolina v. Pearce, the Supreme Court held that a judge cannot increase a person’s sentence after a direct appeal unless there is a new objective reason to do so, such as bad conduct after the original verdict. Justice Potter Stewart wrote for the majority:

… we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

So, if the client went to trial and lost, then an appeal is a safe bet. However, if he entered a plea and, as part of the negotiations, one or more counts were dismissed, then the State can bring those counts back and a sentencing judge would be sentencing the client technically for the first time. So, we wouldn’t be an an Pearce situation. And if you want to argue Pearce in Georgia you better bring some Pearce facts to the game.

Give our appellate courts the opportunity to wiggle around the holding in Pearce and they will, just as they did recently.

 

Stare Deeply into the Crystal Ball

When you meet with a prospective client, there is one essential conversation you must have and it starts with a very basic question — what is your goal? Do you want to gear up for a new trial and risk battling sleeping giants so that you can walk away? Do you want to gamble that the State can’t put on a case now or that it will take its toys and go home?

Put another way, invite the client to imagine what victory looks like to them by asking them to plan the 6 months that will follow a successful appeal. What will she be doing? Enjoying her newfound freedom or moving from a prison to a county jail to await a new trial that will be un-winnable? Planning for the next trial where she will kick the State’s butt this time? Negotiating a better deal than the one before?

If you can agree on what that image will be, then welcome aboard. If not, it may be a case best left untaken.

Atlanta Mayor’s Office Supplies Budgeted More Money than Public Defender

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Donovan X. Ramsey at The Public Square, a Blog on Atlanta Politics and News, reports that the City of Atlanta’s Public Defender’s Office receives less money for indigent defense than the Atlanta Mayor’s Office receives for office supplies.

The Atlanta PD’s office is allocated about $1.1 million dollars for use in defending a projected 16,500 cases to be divided among 13 full-time employees, only 9 of whom are attorneys. I went to law school, but even I can see that this math is troubling, particularly when compared to what the ABA guidelines are for a public defender’s caseload. Mr. Ramsey quotes the recommendations from National Advisory Commission on Criminal Justice Standards and Goals on its advised caseload for public defenders as: 150 felonies, 400 misdemeanors, 200 juvenile court cases, 200 mental health cases, or 25 appeals annually.

Mr. Ramsey makes one “flaw” in his reporting. He aggregates the number to 975 cases. Actually, the guidelines suggest a total cases load per category not an aggregate caseload of all types of cases. Still, even if one were to allow for an aggregate caseload, the numbers for Atlanta are pretty messed up.

There is pathetically little budgeted beyond salary to the office either. The margin between what is allocated for salary — $1,183,058 — and what is allocated for other expenses — $1,137,317 — is razor thin. So, lawyers can’t really do much with the cases they have such as order criminal histories, hire expert witnesses, investigate cases, or issue subpoenas.

Adam Liptak in the New York Times, wrote an article criticizing the abyssal state of indigent defense for death penalty cases in Georgia. It turns out that Georgia’s 3rd World indigent system exists for the garden variety misdemeanor / felony lite case as well. Yet, the Constitution applies in Atlanta since Georgia was on the losing team in the Civil War.

It is a good thing that client autonomy is valued in the 6th Amendment because it appears that Georgia’s indigent defendants are on their own.

But the Atlanta Mayor will not go without staplers.

Client Autonomy on the Front Lines as a Georgia Appeals Lawyer

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From Bob Mabry at his blog, Courts and Writing, I learned about an article by University of Georgia law professor Erica J Hashimoto in the latest issue of the Boston University Law Review. According to Professor Hashimoto, the criminal client should have a complete right to represent himself at trial and on appeal. Also, when a client has a lawyer by appointment or whom he has retained, Hashimoto argues that the client should control all matters in the case including which defense to choose, which witnesses to call, which errors to enumerate on appeal, and how the appellate brief should be written. I agree with the professor generally. The client’s autonomy is important. Criminal counsel should communicate regularly and consider the client’s views. However, I cannot go so far as to agree with the specifics of her argument. The client should not have the power to control which issues are chosen for appeal or how the appellate brief should be structured or worded.

Professor Hashimoto’s Argument

The general thrust of the article is that courts since Faretta v. California have taken an increasingly paternalistic view toward the client in a way that has undermined the client’s autonomy in violation of the Sixth Amendment. Hashimoto then proposes that courts return to regime where the client controls all issues in the case, with the advice and assistance of counsel. She argues that, when the 6th Amendment was drafted, few criminal defendants had lawyers, and that, when they did, the client called the shots on all major trial and appellate issues. So, the framers never envisioned a legal system where the acceptance of a lawyer meant a waiver of the right to control the flow of the case.

Next she argues that the plain language of the 6th Amendment envisions that the client can call the shots on everything with the assistance of counsel.

Finally, she points out that control of the trial is the last major opportunity the accused has to control his destiny before going to prison and ceding all control over day to day activities to prison officials.

While there are some things I like about this article, there are some things about it which, if true, would make it difficult to professionally represent clients on appeal.

 

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A Key to Success on Georgia Appeals is to Really Know Your Audience

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When I succeed in my brief writing or at oral argument (I measure success by writing a good brief and by fluid conversational delivery at argument — not necessarily by result), it is because I stop to think about my audience. More particularly, I remember that my audience includes a set of staff attorneys and judges or justices with a stack of briefs to read that hopefully don’t look exactly like mine.

An article in today’s legalnewsline.com reminded me of the fact that the people who hear my argument and who read the briefs that I write are people with interests beyond my particular cases. They even have interests beyond the law.

According to the article, Justice Robert Benham of the Georgia Supreme Court “has his own woodworking shop, [where he makes] objects like toys and music boxes with his two sons.” He also “builds birdhouses for Habitat for Humanity.”

Those facts humanize him and tell me more than his official biography does. Official biographies, like resumes, start looking the same after a while. But to know that someone makes toys, music boxes, and birdhouses for Habitat tells me that one member of the audience is compassionate. It also tells me that workmanship and craft are important to him. I should be very precise and concise in the future.

Justice Antonin Scalia and Bryan Garner make it a point to tell lawyer how important it is to know about your judge before you present your brief, try your case or show up for oral argument. In their book, Making Your Case: The Art of Persuading Judges. Scalia and Garner advise:

“learn as much as you readily can about the judge’s background. Say you’re appearing before Judge Florence Kubitzky. With a little computer research and asking around, you discover that fly-fishing is her passion; that her father died when she was only seven; that her paternal grandparents, who were both professors at a local college, took charge of her upbringing; that she once chaired the state Democratic party; that she enjoys bridge … and so on. … you might well find some unpredictable use for this knowledge over the course of a lengthy trial.”

Most importantly, they add, “at the very least, these details will humanize the judge for you, so you will be arguing to a human being instead of a chair.”

Keeping in mind that your audience consists of people and not a judicial machine will help you write better briefs that help them decide the case. If yours is the 53rd brief in a stack of 100 that looks exactly like the others, then your judge might get bored, might skim your text, or might just affirm the conviction because that is a nice safe default.

Of course, not all judicial hobbies are good. I suppose that when you find bad hobbies, you have a nice new enumeration of error to raise for your client and and the opportunity for a new judge with a healthy life and more wholesome hobbies.

11th Circuit: Lawsuit Against Clayton County, GA DA Can Move Forward

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Bill Rankin at the AJC reports that the 11th Circuit Court of Appeals has reversed a Federal District Court’s dismissal against former Clayton County District Attorney for an alleged violation of his First Amendment right to Free Speech. This is the latest chapter in what was a debacle of a tenure for. Mrs. Scott as the District Attorney in Clayton County, Georgia. Mrs. Scott and husband Lee Scott were both elected to DA and Chair of the Board of Commissioners respectively. Both lost overwhelmingly in 2008. Their tenure in Clayton County accompanied a wholesale change in leadership in that county, including the election of Victor Hill as Sheriff, who promptly fired many sheriff’s department employees. As those employees left the building, Mr. Hill posted snipers on the roof of the law enforcement complex. When she began serving as DA, she had never tried a case to a jury. Mr. Hill’s time in office led to Federal suits as well.

In this particular instance, Ms. Scott’s chief investigator Earl Randall announced that he wanted to run against Ms. Scott’s husband, Lee Scott, for Chair of the Board of Commissioners. Mr. Scott reportedly pounded his fists on a table when he heard the news and demanded that his wife fire Mr. Randall and vowed to “destroy” him. Yes, sometimes the truth is stranger than third-rate melodrama. I’m sure that, when the lawsuit goes forward, we will find out that he exclaimed, “bwahahaha” shortly afterward.

Mr. Randall was fired, and he filed suit againt Ms. Scott individually, in her official capacity as DA, and against the current DA in her official capacity.

The District Court dismissed the suit, reasoning that there is not First Amendment right to campaign for election, that Ms. Scott was protected by qualified immunity, and that the Complaint did not satisfy pleading requirements. Then the case went to the 11th Circuit, and the plot thickened.

 

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Honorable Debra Bernes Dies at 54

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The Honorable Debra Bernes has died of cancer at the age of 54. Bill Rankin at the Atlanta Journal Constitution has posted an article on her passing and her career. Judge Bernes will be remembered for many things including her illustrious, albeit too short career on the Georgia Court of Appeals.

Before beginning her service on the Georgia Court of Appeals, Judge Bernes was a long time appellate attorney with the Cobb County District Attorney’s Office. After a brief stint in private practice as an appellate lawyer, she ran for an open seat on the Georgia Court of Appeals.

Judge Bernes was elected to her seat after defeating Howard Mead, a candidate who greatly outspent her. Judge Bernes ran a grassroots campaign and won through a recount and a blitz of advertising by her opponent. Most importantly, she ran a clean and ethical campaign for judge. She showed that the high road actually works in statewide elections.

I appeared in front of her for argument many times and wrote many more briefs where she was either on the panel or where she wrote the opinion. She was everything an advocate could ever want in a judge, particularly on the appellate bench. She was intelligent, hard-working, and she had a sense of compassion for the people who appeared in front of her. Above all, she treated you like a professional

Judge Bernes ruled against me much more often and she ruled for me, but every opinion was soundly reasoned, thoroughly researched, and reflected her best effort to apply the law as she believed it to be to the facts of the case. In a year of misconduct in Georgia that has given the judicial branch a black eye, she was a shining example of who a judge could and should be.

Aly Palmer with the Fulton Daily report has also posted an obituary.

 

A New Approach to Felony Murder and a New Template to Attack Precedent in Georgia

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There are two big stories in the Georgia Supreme Court’s decision in Jackson v. State. The first is that the rule of causation for felony murder that had been in place for thirty years has been changed. The second is that the majority has provided a framework for any appellant to use in future cases to use to attack the concept of precedent itself. While it probably is intended as a tool for the State to use against persons charged and convicted of crimes, it is worth a try on your client’s behalf. Precedent doesn’t mean what it used to mean, and by “used to” I mean before the Jackson opinion came out.

This opinion has several moving parts. So many, in fact, that I wrote up a State v. Jackson mindmap.pdf for use in interpreting and following it.

Facts and Procedural Posture

Factually, the case reads like a case out of a law school exam. Carlester Jackson, Warren Smith, and Jerold Daniels decided to rob a drug dealer. Daniels approached the intended victim with a handgun with Jackson nearby in a getaway car. The victim and Daniels exchanged gunfire and Daniels was killed by the victim who was acting in self defense. The State charged Jackson with felony murder for causing the death of co-conspirator Daniels while all three were engaged in the felony act of armed robbery.

In short, the issue in the case was whether a co-defendant can be charged with, prosecuted, and convicted for the death of a co-defendant at the hands of a victim who kills another co-defendant in self-defense.

The trial court followed precedent and dismissed the charges. The State appealed the dismissal specifically to ask the Supreme Court to overrule Crane v. State, the case that said that such a prosecution could not be brought.

The Supreme Court reversed the trial court, overruled Crane, and set up a new test — a meta-test — to use to determine which precedents are worthy of standing and which ones ought to go.

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Timing Problems for Getting Retained on Georgia Appeals

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One of the problems with appellate law is that clients either show up too late or early. Some clients show up too late and too early.

Too late is after the trial attorney has screwed things up, after a deadline has passed, or after the client took things into his own hands and dabbled in his appeal.

Too early, is when the conviction has just happened and the transcript is not ready yet where nobody can say exactly what the errors were, if any.

Too late and too early is after the trial lawyer screwed things up, no transcript is available yet, and the deadline to file the motion for new trial is four hours away.

Ideally, the client comes in after being convicted, with the trial transcript in hand, with a referral from an excellent trial attorney who made all the necessary objections, filed all the right motions, and received bad rulings from the trial court on every one of them. The lawyer filed a motion for new trial, the hearing on it is three months away, and the client is out on an appeal bond. Really ideally is when the trial lawyer brings me on to assist with legal issues with a mind toward making the best possible record and with a mind of handing the ball to me if the client gets convicted. The trouble is that most clients don’t want to think about dealing with a conviction until they are convicted and don’t think it will happen to them.

When people come to see me for an appeal, it is often with variations on one of two scenarios. I’ll give you the most extreme examples of each.

 

Scenario One

The husband/brother/son/nephew/friend was convicted in 1998 and is serving a life sentence. He had new counsel represent him on appeal. Counsel was unsuccessful, and the conviction was affirmed in 2001. At that point, husband/brother/son/nephew/friend was fed up with lawyers and filed a pro se federal habeas petition, which he unsuccessfully appealed to the 11th Circuit Court of Appeals. He then filed a pro se State habeas in 2003, which was denied and unsuccessfully appealed to the Supreme Court of Georgia and another pro se habeas petition in 2005, which was dismissed.  He really knows a lot about the law now after all these years. He’s drafted his third habeas, and wants me to be his co-counsel.

 

Scenario Two

The wife/sister/daughter/niece/friend was convicted 29.5  days ago. The person who comes to see me did not see the trial because the rule of sequestration was invoked, but he thinks the wife/sister/daughter/niece/fried was railroaded. They don’t understand how this could have happened. They hired the lawyer in town who worked on Uncle Jake’s will and who closed the loan on their house. After they hired him, he quit taking phone calls, and all the discussions of the case were in the hallway on the way into or out of court at arraignments and calendar calls. One day, they got a call at 10:30 on a Tuesday morning to come to court. Low and behold, the judge made them start the trial. Now, she’s got a life sentence. All the witnesses lied. The judge was really mean. So was that 24 year old prosecutor who said this was her first case after passing the bar. They are tired of getting the run around from lawyers. They heard you do appellate law. They will hire you, but they want to know right now if you can win. And they are going to watch you like a hawk because they see how lawyers can act. Oh, and they don’t have any money left because trial lawyer dude got $250,000 already for the trial. Oh, and can they sue the lawyer/judge/prosecutor/bailiff/guy at the metal detector?

 

Managing Client Expectations

Appellate courts are for the correction of error. Meaning, if the State did something wrong, the defense lawyer complained to the judge, the judge ruled against the defense lawyer on the complaint, and the mistake made a difference in the outcome, then the appellate courts are there to say that the judge ruled improperly and give you a new trial. In really limited circumstances, if the trial attorney made a specific identifiable mistake, and that mistake was something that could reasonable impacted the outcome, then the appellate courts exist to grant a new trial.

 

There are a wide range of things not included in the list in the paragraph above. Consider some of the things not included in that list. One would be something the state did wrong, where the defense attorney never complained about it, or where the defense attorney complained about it but where the judge did not make a ruling. And also excluded is a situation where the State did something wrong, the defense objected, the court made a bad ruling, but where the court determines that it did not have any impact on the verdict. Also excluded are all the general things that a client did not like about the attorney but that cannot be reduced to a concrete demonstrable mistake. Certainly excluded would be such things as whether witnesses lied or were credible.

 

Bottom Line

The bottom line is that an appellate lawyer cannot clean up the mess left behind by a bad lawyer and cannot use the appellate process to retry a case that wasn’t tried well the first time. It is even more difficult to clean up a mess created by a pro se client who has dabbled in his own appeal before an appellate lawyer gets on board.

The way Georgia judges hand out sentences under fairly draconian mandatory minimums or because they are just plain mean, clients have no choice but to appeal. And the great thing is that judges and prosecutors in Georgia make mistakes. Every 7 seconds in Georgia a trial judge commits reversible error in a criminal case (a statistic I just made up but which is probably true). Issues are often there.

However, more appellate lawyers need to make the expectations clear early on, and clients need to be able to enter the process with a realistic outlook of what an appeal involves and what lies ahead.

AJC and Politifact Rate Georgia Attorney General Campaign Ad False

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Rob Teilhet’s controversial ad has made state and national news. According to the AJC and PolitiFact, the ad is “false.”  In an interview with done by Andy Peters with the Fulton Daily Report, Mr. Teilhet claims that he is more experienced than candidate Ken Hodges on the issues that matter most to being Attorney General. He also defends the ad.

 

The ad featuring the mother of an unarmed man shot and killed by a Muscogee County law enforcement officer who claims that Hodges did not get an indictment because he “forgot to swear him in, tried to hide the video, and then refused to reopen the case” According to MSNBC, the ad is “tinged with racial implications, as black voters could make up more than 50% of the Democratic electorate for the first time in this race.”  Politifact rates the ad as “false” in a story analyzing it.

 

Claim 1: “The officer got off because prosecutor, Ken Hodges, forgot to swear him in”

At the time that the case was presented to the grand jury witnesses were not required to provide testimony under oath. Teilhet argues that the unsworn nature of the testimony hurt public confidence in the evidence.

 

Claim 2: Hodges tried to hide the video

 

There was no evidence that the video was hidden from the grand jury. Mr. Hodges submitted a brief with the Prosecuting Attorneys Counsel of Georgia and the District Attorneys Association of Georgia against releasing the video to the public before criminal proceedings took place. The video, it appears, was available to the grand jury.

 

Claim 3: Hodges “refused to reopen the case”

 

Mr. Hodges made no recommendation at all to the grand jury and did refuse to convene a second one. The case was reviewed by the Department of Justice for a possible civil rights action, and the DOJ declined to bring a case.

The ad is perhaps misdleading but not, as PolitiFact/AJC reports, false. Prosecutors shape the action of grand jurors. The oft-repeated cliché is that a prosecutor could indict a ham sandwich.

DAs often use the grand jury as a filtering process to dump cases they don’t want to prosecute for whatever reason. DA’s could choose not to present cases at all, but using grand jury as a filter allows them to not bring cases for reasons ranging from the well meaning to the political. While nobody but those who participated in the proceeding will ever really know for sure, the failure to swear in the police officer might provide you a clue about whether Mr. Hodges steered this proceeding in a particular directions. The fact that he was brought on as a special prosecutor tells you that the case was a political hot potato.

What emerges from this story is not a false campaign ad but one with heavy spin. The facts will likely remain forever murky. The good news for Mr. Hodges is that this tape, viewed in a light least favorable to him, will likely make die-hard Republicans love him in the general election if he gets there.

Hames Case From Ga. Supreme Court Haunts Original Lawyer

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The Walton County Examiner features an interview with Anthony Carter,
Joshua Hames’s original lawyer. Mr. Hames just had his conviction for felony murder related to a hunting accident over seven years ago, reversed on appeal In that interview, Mr. Carter explains
that the case still haunts him and that he followed it after he was
replaced by private counsel. Look closely, and you can see the irony
dripping from the page.

Mr. Carter was originally appointed to represent Mr. Hames when he was
charged with the shooting death of his brother while the two were
hunting in Walton County. When the lower court refused to
grant Mr. Hames a bond, the family went with private counsel.

It appears that the State believed that Mr. Hames intentionally shot
his brother because he was originally charged with malice murder and
various other charges. When the trial ended and the dust cleared, Mr.
Hames was acquitted of malice murder but convicted  of felony murder
for a hunting violation that resulted in the alleged victim’s death.

The only problem was that the State failed to allege or prove an
essential element of the offense. Well, that’s not the ONLY problem.
The other problem is that trial counsel never noticed that there was
an element missing or that the State failed to put up any evidence to
prove it. And there’s another problem. Trial counsel did not notice
the problem on appeal either.

Mr. Hames set about challenging the conviction himself and learned,
apparently from digging around in the prison law library that he was
in prison for life for felony murder when the State was an essential
element shy of proving the felony. He filed a habeas corpus petition
on his own and won. The State appealed the grant of his habeas —
apparently not wishing to concede the impropriety of imprisoning a man
for life for an unintentional killing without a crime alleged or
proved as the underlying felony.

Justice Nahmias wrote the opinion (PDF) for a unanimous Supreme Court
ordering his release seven years after he began serving time for
murder.

Sounds to me like the wrong lawyer feels haunted.

ADDRESS

199 W Jefferson St.
Madison, GA 30650

PHONE

678-610-6624

EMAIL

tori@scottkeylaw.com