Blog - Scott Key & Associates

Hodges: Rival Attorney General Candidate is Sleazy

July 13, 2010/by J. Scott Key

As I predicted a few days ago, the Attorney General race has made a decidedly ugly turn. Mr. Hodges has responded with an attack ad of his own, referring to the fact that a newspaper (check out the source: it’s Creative Loafing, available on the news-stand outside your local head shop or artsy pizza joint) awarded Rob Teilhet the Golden Sleaze Award.

The ad goes on to credit Mr. Hodges for locking up every criminal who ever thought of walking onto a Georgia street and stops just short of crediting Ken Hodges in advance for entering the caves of Afghanistan to find Osama Bin Laden. He will continue on this theme in an ad to debut in the near future.

If the campaign for the job is going like this, one wonders what nice appellate lawyers have to look forward to in future briefs and oral arguments at the Georgia Supreme Court. Also, I wonder if these guys battling it out for the Democratic nomination for Georgia Attorney General realize that we’re basically a one-party state.

Supreme Court of Georgia Changes Approach to Sentencing After Appeal

July 13, 2010/by J. Scott Key

In Adams v. State.pdf, the Supreme Court of Georgia held that it is appropriate for a sentencing judge, after a reversal for judicial error, to impose a greater sentence on an individual count as long as the sentence in the aggregate is not increased. The dissent, consisting of three justices, reasons that the Court’s holding reverse long-established precedent.

The Key Facts

Here are the facts. Tavins Lee Adams was convicted of child molestation, aggravated child molestation, aggravated sodomy, and enticing a child for indecent purposes for actions that took place in a single incident.

The Original Sentence

aggravated child molestation merged into aggravated sodomy 20 years to serve
child molestation 20 years to serve
enticing a child for indecent purposes 20 years to serve

Sentence After Motion for New Trial was Granted and After Re-sentencing

child molestation merged into aggravated sodomy 30 years to serve
enticing a child for indecent purposes 20 years to serve

Adams appealed, arguing that the trial court’s decision to increase the sentence on aggravated sodomy was in increase in punishment, not allowed by the United States Supreme Court’s holding in North Carolina v. Pearce. The Court of Appeals held that because, the aggregate sentence was less than the original aggregate sentence, there was no problem with the sentence.

Getting Past the Presumption

The majority opinion, consisting of the usual suspects on cases like these (Nahmias, Melton, Carley, and Thompson), held that the trial court did not violate the principles in North Carolina v. Pearce (a U.S. Supreme Court holding that a trial court cannot increase a person’s sentence after he prevails on appeal. The Court held that there is a presumption of vindictiveness whenever a more severe sentence is imposed after a new trial, “which may be overcome by objective information in the record justifying the increased sentence”).

For the majority, it was key that the trial judge granted a motion for new trial and merged an offense rather than being told to do so by the appellate court. For the minority, such a distinction did not make a difference because the judge followed the law and he acknowledged making a mistake after such was pointed out by the defendant.

Meet the New Analysis

After the majority takes apart the presumption by reference to the motion for new trial, it sets out in division two of the opinion to really do some damage to Georgia precedent. Justice Carley starts out in the law of other states, finding that “the vast majority of federal and state appellate courts that have addressed this issue have adopted the aggregate approach, which requires a court to “compare the total original sentence to the total sentence after resentencing. [I]f the new sentence is greater that the original sentence, the new sentence is considered more severe.”

Some other States, he points out have adopted the “remainder aggregate” approach that compares “the district court’s aggregate sentence on the nonreversed counts after appeal with the original sentence imposed on those same counts before appeal”

Finally, Justice Carley points out that a few states have adopted what he calls the “pure count-by-count approach,” which requires that counts be considered separately. We find out in the minority opinion that Georgia, before this opinion came out, was once one of those states.

Without so much as a tip of the hat to our precedent, the majority points out that the aggregate approach is the one that is most pragmatic for the trial judge to use. Of course, convenience and practicality are not Constitutional principles (far from it). Yet, in response to the minority’s reasoning that mandatory sentencing and parole consideration may increase the net amount of time a defendant may serve under an aggregate scheme, he dismissively notes that such concerns are “not relevant as the statutes have no constitutional implications in that context.”

Turning back to the “practicalities” of the new rule, the majority reasons that there is “a minimal likelihood of vindictiveness.” Applying the law to the new facts, the majority points out that, in the aggregate, the defendant received 50 years to serve rather than the initial 60 even if he got more time than before on one count. He calls this sentence “significantly less severe,” which might be the case if the defendant were Highlander.

More Stuff to Think About

This has become a very fractured Court. Since Georgia became a one-party system, the Court has changed. The new guard is not particularly a slave to principles of stare decisis. Though the court is a more exciting place — oral argument is certainly more fun there than it’s ever been — it’s also tougher to practice law. Trial lawyers cannot easily advise clients based upon the law when even settled law may not be settled. Also, it is likely going to become more difficult to use precedent to convince trial judges of what the law requires when so much precedent is a moving target.

Superior Court Judge Says Georgia Indigent Defense is Broken

July 12, 2010/by J. Scott Key

Before today, I had never seen an Order styled “Court’s Analysis of Indigent Defense System.” Judge J. David Roper of Richmond County, Georgia entered this document into the record on the same day that he entered a consent order involving a suit between the Southern Center for Human Rights and the Georgia Public Defender Standards Council. By order, conflict defenders can only carry a caseload of 125 felony cases or 300 misdemeanors at a time, and requires the local Public Defender to notify the central office within 24 hours of realizing that there is a conflict.

The interesting thing about the case is the apparently gratuitous memorandum filed contemporaneously with the Order. The Judge entered findings of fact that the problems with indigent defense in Georgia are systemic and are much bigger than budgetary. For instance, the director of the standards council has no supervisory authority over Circuit Public Defenders. When the director was asked who was responsible for circuit public defenders, the director said “Judge, I really don’t know.”

The Council is in the executive branch, the same branch as the police and the prosecutor. The council’s director is appointed by and serves at the pleaseure of the Governor. The Director lacks the ability to remove the Circuit Public Defender, but the Circuit Defender may be removed with or without cause.

For conflict cases, the Circuit Public Defender must set in place a procedure for dealing with conflicts (cases where a single lawyer cannot represent multiple parties because they have an incentive to blame each other). However, when the Circuit Public Defender declares a conflict, the Standards Council pays for the representation — essentially a financial incentive to find conflicts.

Taking these facts and others into account, the judge found that “the present system is fraught with a lack of accountability, especially at the circuit level.” He also wrote that the system is broken and describes it as “a mega-bureacracy adrift with no rudder.”

It is good to see that calls for reform in the system are coming from the ground up. The Supreme Court has punted at nearly every opportunity to weigh in. Perhaps the local judges on the front lines are more aware of how it is falling apart and appear to be the most willing to do something about it. It’s enough to make a person cynical about the appellate process.

Passing of Former Chief Justice of Georgia Supreme Court

July 11, 2010/by J. Scott Key

The Atlanta Journal and Constitution reports that Harold Nelson Hill, Jr., former Georgia Supreme Court Chief Justice, passed away at his lake home on July 5. Senior U.S. District Court Judge Willis Hunt called him “a stellar member of the Supreme Court.” Justice Hill began serving on the Supreme Court in 1975 and served as its chief from 1982 until 1986. He wrote a history of the Supreme Court and chaired a judiciary committee in 1984 that established uniform court rules for the state’s five trial courts. Judge Stephanie Manis, who clerked for him early in her career described him as “very formal and scholarly.” She went on to credit him for giving many luminaries in the bar and bench their start.

However, it was a bit strange that, with his death taking place on July 5, the AJC was so late reporting his death. Also, I cannot remember reading any of Chief Justice Hill’s opinions. A search of the internet shows nothing about him other than his obituary.

Then I looked up some of his old cases. It turns out that he was very accomplished. In 1972, he was an executive assistant attorney general who signed onto the brief of Appellee in Furman v. Georgia, the case that briefly held that death by electrocution was cruel and unusual punishment in violation of the 8th Amendment. He worked on a set of big cases in the early 1970s before going onto the Court and authoring many opinions there.

The Georgia Supreme Court’s website mentions nothing about his passing.

Sometimes, when you are so focused in your own work before the Court, you lose sight of all the stories that accompany all the portraits in the courtroom. This obituary made me look up the career of a very significant man in the Court’s recent history. It makes me wonder what the other stories are and what my story in the law will be.

Campaign for Georgia’s Attorney General Taking Ugly Turn

July 10, 2010/by J. Scott Key

The Huffington Post reports that Rob Teilhet, a democratic candidate running for Georgia state attorney general is about to unroll a controversial ad accusing his primary opponent and elected district attorney from Albany, Georgia, that allowed a police officer to go free for the murder of Kenneth Walker.

The ad features Mr. Walker’s mother narrating the videotape of the shooting death, and she begins “You are seeing the last minute of my son’s life. He was in a car that was pulled over by mistake. He was lying on the ground unarmed when a police officer shot him twice, in the head. But the officer got off, because Ken Hodges, forgot to swear him in, tried to hide the video, and then refused to reopen the case.” She ends by saying “Mr. Hodges should not be our next attorney general.”

If Mr. Hodges were running for the Republic ticket or if he reaches the general election, I wonder if he’ll consider running the ad himself to court the Georgia Republican vote.

Grand Jury Investigation Questions Georgia Court Reporter Fees

July 10, 2010/by J. Scott Key

The Atlanta Journal reports that a Cobb County, Georgia, grand jury has serious concerns about the fact that court reporters in that county earn a salary and also charge the county and private attorneys highway robbery fees to produce transcripts. The article evokes all sorts of thoughts for me about the frustrations that accompany getting the trial transcript. From an appellate lawyer’s perspective, the transcript is one of the trickier parts of the entire appellate process. Some of the issues identified in the article are part of the problem of representing clients on appeal. The problem is that court reporters are pretty powerful people. In fact, am going to be careful about cranking my car for a few weeks after I post this blog.

There are some pretty serious issues with the whole transcript process in Georgia. Court reporters include a mixture of free lancers, official court reporters, and employees of corporations. While they are all governed by the Georgia Board of Court Reporting, procedures for getting transcripts and getting them expeditiously vary with each reporter’s personality and with the personality of the Court. The fees for transcripts can be so high as to discourage appeals entirely (It’s important to compare what you are being charged for a transcript to the approved schedule for court reporters).

The other issue, and it’s a big one, is the matter of who owns the transcript. The client wants his own copy most of the time to “help,” and the lawyer gets one with an account accompanying warning not to copy it. Most appellate lawyers would prefer for the client not to have a copy because a bunch of time can be involved in trying to explain errant views of the law or an inappropriate emphasis on the facts (i.e. Sally was lying. Why don’t you make a bigger deal about that instead of this odd venue argument, Mr. Key? Whose side are you on anyway? I paid $3,000 for this transcript. Why can’t I have it?)

If I could be king for a day, court reporters would work out of a pool. They would not be one particular judge’s court reporter. They would just plug in where needed. They would be paid a salary instead of a salary plus a per page fee for preparing transcripts. And, if they had a backlog of five trials, they would not be allowed back into the courtroom until the backlog is brought current.

This grand jury is really onto something. But they’ve just scratched the surface. The real issue is not whether the transcript is the county’s property versus whether it is the client’s property. The real issue is that many court reporters view the transcript as their property even after you bought it. It is not unusual to see warnings in transcript threatening all sorts of consequences about taking the transcript apart or copying it. It’s worth than the warning on mattress tags. One would think that taking the transcript out of its binding is tantamount to opening the ark of the covenant.

Hopefully the grand jury’s action will evoke discussion and possibly much needed reform.

Jamie Weis Appeal Puts Georgia’s Criminal Justice System on Trial

July 7, 2010/by J. Scott Key

Adam Liptak’s recent editoria l in the New York Times will provide comfort for those of us who have watched the legislature and governor gut indigent defense in Georgia and attack the judiciary systematically. At the same time, it is a little embarrassing to read about the system that I love so much and wonder what the rest of the world must think of us. Reading national press on Georgia during the civil rights movement must have been like this. At the same time, the heroes in this story, such as those with the Southern Center for Human Rights are Georgia appellate lawyers working to make a difference. So, there’s a good bit to be proud of, too.

In fact, the Jamie Weis story demonstrates the difference appellate lawyers can make for the client and to the very system that has so far undermined him. It makes me proud to be a Georgia criminal appellate lawyer.

So, in case you missed it, here’s the story. Jamie Weis was indicted for murder in the Griffin Judicial Circuit. He has been in jail awaiting trial since 2006. August of that year, he was noticed with the intent to seek the death penalty. By March, 2007, the lawyers who had represented him for the beginning couldn’t get any more money to fund the defense. The State has adequate funding to try to convince a jury to kill Mr. Weis. But when the money ran out, the prosecutors were allowed to pick their opponent. They convinced Judge Caldwell — yep, that Judge Caldwell — to replace the lawyers with salaried public defenders. On its way to issuing a 4-3 Decision (PDF) determining that it was okay to substitute cheaper lawyers chosen by the State, one of the justices suggested at oral argument that defense counsel should work for free. He never suggested that the judge or prosecutor should work for free.

The damage has continued. Recently the Court dodged a similar challenge out of Cobb County, Phan v. State (PDF) where it had another opportunity to declare that indigent defense in Georgia is broken. They punted the case back to the trial court to make a determination that it had already made. Phan is to Weis what those two little girls are to each other in the Overlook Hotel in The Shining — not quite identical but really disturbing.

But there is hope in the combination of Georgia Appellate Lawyers, the U.S. Supreme Court, and recent media attention. Hopefully, all of those forces can overcome the other two branches of government in the Georgia political establishment (see the reference to the girls from The Shining).