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Senate Candidate Loeffler Attacks Collins for Work as a Defense Attorney

July 28, 2020/by J. Scott Key

In a recent ad, incumber Senator Kelly Loeffler has attacked challenger Doug Collins for purportedly being a criminal defense attorney, having a website that advertised for clients, and for accepting appointed cases. Her campaign website posted a list of Georgia sheriffs who condemned Collins for his “criminal defense history.”

https://www.youtube.com/watch?v=dh9whAOo7cI&feature=youtu.be

Sen. Loeffler presumably had the assistance of criminal defense counsel when the FBI investigated her for insider trading last Spring. Senator Burr, who was also investigated in that probe, employed a criminal defense attorney, who (like Collins), has a website. It appears that it would have been acceptable for Collins to represent the criminally accused in white collar matters. Perhaps the challenger’s sin was that he represented poor people.

The Loeffler campaign also does not take exception to how her challenger honed those criminal defense skills for use in defense of his highest profile criminal defense client ever. Looking at the Loeffler ad, I can see one interesting pattern in the sort of client she takes issue with — given that she has no issue with white collar criminal work or work involving the defense of “high crimes and misdemeanors.”

My criminal defense colleagues have taken to social media to point out the many issues with this ad, noting that John Adams was a criminal defense attorney and that our system is based on strong adversaries on both sides of criminal cases. Alas, I would imagine that this ad worked well in focus groups. And the target market for this ad has neither the capacity to appreciate the flaws in the message nor a clue who John Adams was.

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2020-07-28 13:15:462020-07-28 13:15:46Senate Candidate Loeffler Attacks Collins for Work as a Defense Attorney

Why the Upcoming Amendment to the Georgia Court of Appeals Rules is a Good Idea

July 27, 2020/by J. Scott Key

Beginning on August 1, a single dissent in a three-judge Court of Appeals case will no longer remove its value as precedent for future cases, nor will one judge’s disagreement with the reasoning of the case. Here is the text of new Court of Appeals rule 33.2:

If an appeal is decided by a division of this Court or by the Court sitting en banc, a published opinion in which a majority of the judges fully concur in the rationale and judgment of the decision is binding precedent.

According to Chief Judge McFadden, “This rule change brings the Court of Appeals of Georgia in line with other federal and state intermediate appellate courts throughout the country. It will further our role in building and maintaining a clear and a consistent body of case law throughout the state.”

The new rule does not reverse a historic trend; rather, its reverses rule that had been in effect for just a few years when the legislature gave the Court the power to set its own rule regarding the establishment of precedent.

I do not think that the rule will effect any lawyer’s win/loss rate (though I will note that many of my wins have been with a concurring vote or a dissent), I think the rule change is good for two reasons.

  1. Most intermediate appellate courts do not require unanimity for cases to set precedent. Our court should function the way federal circuit court and the similar state courts around the nation.
  2. The close cases are the ones where we need precedent the most. Generally, when a panel is in complete agreement, the case is not close or is setting forth established law.

While some may be concerned with quality control with a case that is as busy as Georgia’s intermediate appellate court, the Court has the ability to issue non-published opinions to avoid a turn of phrase creating inadvertent precedent in a case that the panel saw as a restatement of established law.

One final note, the rule is not retroactive. So 2-1s and JO opinions from the past will not become precedent on August 1.

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2020-07-27 13:50:582020-07-27 13:50:58Why the Upcoming Amendment to the Georgia Court of Appeals Rules is a Good Idea

Toward the Post-Monument Era

July 13, 2020/by J. Scott Key

If you have practiced law for any time in Georgia, you have walked by Confederate monuments. The smaller and more remote the jurisdiction, the greater the likelihood that you walked beneath the shadow of a Confederate soldier, general, or political figure on your walk to court. Recently, the county commission in Henry County, Georgia, voted 4-1 to remove the Confederate monument on the square. This one is steps from my office. It is slated to come down within 60 days. Leon Stafford, of the Atlanta Journal, writes, “[a] Confederate monument in McDonough’s square will be removed in the next 60 days, the latest shrine to the Confederacy to be taken down in metro Atlanta.”

When Confederate monuments started coming down a few weeks ago, I walked to the square for a closer look. For years, it had existed beneath the level of consciousness. The granite soldier has stood impassive as I paced the square while waiting for a verdict. Somehow he was there for years without me looking at him that closely. What I notice (or what I believe I notice) about this soldier is that he appears to be low ranking. He holds a single rifle, boots, hat, and sack. His is not a dress uniform. He bears no sword. He appears to be infantry. I don’t know much else. I don’t know if he is the likeness of a particular person or is something of an everyman. When I went to check him out, I imagined him as a conscript. I noticed something else. There had been an attempt to recast the setting of this monument as part of a larger war memorial. Today, he is surrounded by various flags of the military branches. Before recent events, there had been an attempt to render the statue less a “shrine to the Confederacy” than as a war memorial more generally. To be sure, the Confederate soldier dominates the scene, and he is now surrounded by the flag of the nation against whom he took up arms. But I noticed the effort, such as it was.

In light of recent events, I turned to Shelby Foote’s Civil War series (Foote has also been criticized. I’m well aware). I used my monthly Audible credit to download volume one of that series. Volume One alone is 38 hours long — so, I am in it now for the long haul. In volume one, Foote describes the build-up to the war. In 1856, Senator Charles Sumner, an avid abolitionist, was beaten and nearly killed on the Senate floor by Preston Brooks of South Carolina who used a cane as his weapon. He suffered no consequence for the action. Afterward, he was sent additional canes as a gift. Following the election of Lincoln, states began seceding one-by-one. Foote gives a lengthy treatment to Senator and soon-to-be Confederate President Jefferson Davis’s speech announcing his resignation from the Senate. The Republican Party, then the party of Lincoln, was new on the scene. There was party upheaval and splintering in the election of 1860. The result of that election was the catalyst for succession.

The War wasn’t fought between Senators or even generals though. Over 750,000 died in the war. An interesting piece of data — 500,000 foreign-born soldiers served in the Union army. The Civil War was considered the first modern war but fought with the tactics of a bygone age. Many of the bloodiest battles consisted at men being hurled against artillery fire. The numbers were brutal. In the Battle of Shiloh, 23,000 were killed in two days of fighting — a single battle in the Western theater. Those who did the bulk of the dying on their respective sides had much common with one another. The stark differences in philosophy, views on slavery, and economic interest were to be drawn between those in charge. There were two conscription acts by the Confederacy. As an aside, North Georgians did not uniformly want to secede. But sitting it out, particularly in the South, was not an option. Near my home, there is a Confederate graveyard where the markers are small, rectangular, and uniform. If you are from the South, you have no doubt seen such a place. Generally, the generals — the kind of people depicted on Stone Mountain — are not buried there. The poor often die fighting the battles of the powerful. That much has not changed.

Most of the confederate monuments were built in the 20th century as part of what is known as the lost cause movement. They were built in reaction to anniversary dates of the civil war and often in response to efforts to further civil rights. And the impetus was generally aimed at mythologizing and rallying together around a common (most certainly racial) identity in the face of possible discomforting social change.

Now the Confederate statue I’ve walked by thousands of times is slated for removal. And I have thought on what it is like to live in this particular time. I have also tried to imagine what it would have been like then. I look and see some parallels — the breakdown of civil debate in the Senate, two sets of people stuck in their own narrative with little concept of nuance, and a political divide that resulted in hundreds of thousands of deaths (ours by a pandemic theirs in a brutal war of a different sort). Those dynamics were at play in the lead up to the Civil War, combined with the unraveling of party politics. And The Lost Cause movement was an attempt by those in power in Southern States to recast truth as they knew it. To use a phrase coined by a White House Official, the movement that led to the construction of Confederate memorials was all about the casting of “alternate facts.” The more things change, the more they stay the same.

To see into the build up to The Civil War and in the events that preceded the construction of monuments is to peer into the mirror. And, alas, I see the teachable moment being lost on those around me. Monuments do not seem to be the only things going away. Alongside this movement, perhaps even within it, I see the very forces at play that led to the monuments themselves.

“The past is never dead. It’s not even past,” said William Faulkner. We do not escape it and are perhaps never more wed to it than when it is beneath the level of our consciousness. When the day comes that the monuments are no more, what will wake us to the way we are acting? When we are freed from walking by the monument on the way to the courthouse, will we have the discipline to understand the history that led to what awaits us when we are inside the building? What does our present look like when we have taken down the reminders of our not-so-pleasant past?

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2020-07-13 03:59:162020-07-13 03:59:16Toward the Post-Monument Era

Qualified Immunity: The Ultimate Product of Judicial Activism

June 9, 2020/by J. Scott Key

Congress will soon take up multiple bills to pull back the doctrine of Qualified Immunity. In the House, a bill has been introduced that would roll back Qualified Immunity as it relates to law enforcement and corrections officers. In the Senate, a bill is pending that would roll back qualified immunity as applied to an even broader class of government workers. In either event, the rollback of qualified immunity is an important step for increased government accountability. In this brief post, I will discuss what qualified immunity is and how it came about. Then I will briefly make the case that qualified immunity should be rolled back significantly if not entirely.

A Brief History of QI

Qualified immunity is a recent innovation in the law and is entirely a creature of case law. The right to sue government officials for the violation of constitutional rights originated in the passage of a ku klux klan bill of 1871. The relevant language is codified in 42 USC § 1983, which provides a private cause of action for those whose rights are violated by a government official. The law existed for nearly 100 years before the doctrine of qualified immunity emerged by case law, in Pierson v. Ray (1967). Pierson established that certain government officials enjoy a measure of protection from suit. Specifically,“under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved.” The next and most significant step toward qualified immunity came in 1982 in Harlow v. Fitzgerald. In Harlow, the Court held that “Henceforth, government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate ‘clearly established’ statutory or constitutional rights of which a reasonable person would have known.”

Where Things Stand

After Harlow, it has become exceedingly difficult for a plaintiff to prevail in a civil rights action. An officer who knowingly violates someone’s constitutional rights will generally be protected from suit unless the victim can identify previous judicial opinions that addressed the specific context and conduct. And that case must fit the exact contexts and action down to a high degree of specificity. There is a degree of circularity at play in this doctrine. How does the law ever change if a plaintiff must show a previously-exact case in order to pierce qualified immunity?

In a ninth circuit case, for instance, police attempted to steal $225,000 after a raid. The officers were protected by qualified immunity because “there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant.” Even if stealing is wrong, no law held that stealing money violated a constitutional right. And the officers were shielded from liability.

Why QI Should be Rolled Back

Justice Clarence Thomas appears to favor a rollback of qualified immunity to Pierson. And here is why it is important to turn the clock back to where it stood before Harlow. Criminal prosecution is not a good instrument for law enforcement reform. It is a huge ask to demand prosecutors to prosecute the officers who prepare their cases. And juries have been reluctant to indict, much less convict, law enforcement officers. To be sure, the standard for conviction beyond a reasonable doubt is difficult to prove. However, the preponderance standard for a civil rights violation is easier to meet and likely less of an ask for jurors. Furthermore, the civil standard creates a financial incentive for lawyers to bring suit before jurors whose jobs do not depend on shielding law enforcement. States and municipalities will bear a financial incentive to safeguard civil rights, as insurance premiums will depend upon hiring, retaining, disciplining, and training offices to protect the civil rights of those with whom they come in contact.

Bills currently pending in Congress are a good move toward a regime that will reduce police mistreatment and brutality. Increased public

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2020-06-09 12:32:132020-06-09 12:32:13Qualified Immunity: The Ultimate Product of Judicial Activism

It’s Okay to Turn off the News

June 1, 2020/by J. Scott Key

Before all the CoVid-19 stuff, I read the news exactly once per week. I experienced the entire Trump impeachment episode in weekly installments at brunch. I allowed myself the Sunday New York Times and the Sunday Atlanta Journal. Also, I did not allow myself to click on any “news” shared over social media. My only other requirement was alcohol. News is best experienced with an extremely spicy bloody mary or incredibly fizzy mimosa. If I made an exception it would be for a very local newspaper.

When I entered quarantine, I started breaking my own rules. And I allowed the news to creep back in, first on television and then from links shared in angry or snarky Facebook Posts or Tweets. Over Friday and Saturday night, I was sucked into images of reporters on the ground in big cites showing clashes with police, tear gas, and riots. I’m not saying that there isn’t a civic duty to be informed. But that civic duty does not require staring at the phone and feeling panic and despair.

Yesterday, I decided to reimpose the Sunday-only rule. Except brunch places aren’t open. And I was hanging out with my ten-year-old son. I turned off the news. I’m happy to report that I survived to tell the tale.

Here’s what we did instead of watching the news. I made a batch of cold brew coffee — a huge batch.

 

I found that making something, even a highly caffeinated beverage, was far superior to the news. And I was able to package some of this delicious concentrate up and give it away. We then headed out to the park to throw a football. I noticed that the park had a picnic area with a sail shade covering. I think I like the concept of sail shades. I took pictures.

From there, we were off to my office. While it wasn’t Disney World, I’ve always found an empty law office to be a fun place for kids. Even a pretentious leather office chair can be remade if you sit in it and read a Spiderman magazine.

About a block away from my office is a small independent bookstore. We discovered that they’re open for business provided that you mask up and douse yourself in hand sanitizer at the front door, which we were all too happy to do.

After spending a bit too much money at the bookstore (we chose books to harken back to a more positive time in D.C.), the next stop was a local sushi place. They give out these nifty little things to help kids use chopsticks. I’d only ever seen the rubber band thing before yesterday.

We were on a roll — actually two.

Later that evening, I decided to get in some miles. My goal was eight miles (no Eminem jokes please). But it was hot, and I went four. There was a protest happening in my town. I ran by the perimeter of it. Everything seemed peaceful. I even saw a law student of mine and waved.

I’m not sure if this is considered cheating or not. But we did watch the Dragon space capsule dock with the International Space Station. And we watched the launch on Saturday.

I don’t know if this is considered news or not. But it was a positive story. It was pretty cool. With all that said, these are no doubt troubling and tumultuous times. There is some responsibility for engagement. But that engagement need not be constant. In fact, there may be a bit of diminishing returns to constant attention to the news and constant back and forth about it on Facebook.

One of the books I bought yesterday was Austin Kleon’s Keep Going. I found something apt in my new book:

A friend of mine said he didn’t know how long he could wake up to such horrible news every day. I suggested he shouldn’t wake up to the news at all, and neither should anyone else. There’s almost nothing in the news that any of us need to read in the first hour of the day. When you reach for your phone or your laptop upon waking, you’re immediately inviting anxiety and chaos into your life. You’re also bidding adieu to some of the most potentially fertile moments in the life of a creative person

So, there you have it. On probably the worst news weekend of my life, I took a break from it all and regulated the part I let in my life. NASA, in partnership with a private company, launched humans into space again — for the first time in recent memory. I made some good coffee. Oh, I did cheat one other time, but only to pull a recipe for ice cream from the New York Times.

It turns out great. And it mixes well with home-made cold brew.

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2020-06-01 09:07:102020-06-01 09:07:10It’s Okay to Turn off the News

It’s a Gray Day in Georgia for Motions to Modify Sentence

October 17, 2019/by J. Scott Key

There is an important new case that changes the law concerning motions to modify sentence in Georgia. In Gray v. State, a case published on August 26, 2019, the Court of Appeals held that trial courts lose jurisdiction, under O.C.G.A. Section 17-10-1(f), to modify criminal sentences following either 120 days after the remittitur where there was an appeal or one year after sentencing even if the motion to modify is filed sooner than those dates. I will provide some procedural history followed by analysis.

The defendant in Gray was sentenced by Judge A. He timely filed a motion to modify sentence, which was heard eleven months later by Judge B. Judge B granted the modification. Judge A, the original sentencing judge, found out what happened and, sua sponte, entered an order vacating the sentence.

Gray appealed, arguing that the order vacating was void. The Court affirmed, reasoning that the trial court lost jurisdiction to modify its sentence after the expiration of a year and after the end of the term of court in which the sentence was imposed. The Court ends the opinion pointing out nine cases allowing courts to modify sentence where the motions were filed within the statutory time and distinguishing (but not overruling) those cases.

Gray has petitioned to the Georgia Supreme Court for certiorari. The opinion in Gray raises a host of policy concerns. What exactly is the status of the line of cases “distinguished” in the opinion? Also, can a judge simply run out the clock by delaying a ruling on the case? What happens if the case is heard and the time runs out while it is under advisement? Finally, counsel will often advise clients to wait a while before filing motions to modify to let some time pass after sentencing, to allow for good conduct while in prison, for participation in programs, and other post-sentencing mitigation facts to develop. The law, as interpreted in Gray, places defendants in a position to file so soon that there is no opportunity to develop new mitigating evidence. Indeed, the modification statute has traditionally provided an incentive for good conduct after sentencing. Defendants who move to modify shortly after sentencing will be open to accusations of buyer’s remorse or the failure truly to accept responsibility.

This case presents excellent issues for certiorari and may prompt discussion at the Georgia legislature in the upcoming session.

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2019-10-17 10:36:372019-10-17 10:36:37It’s a Gray Day in Georgia for Motions to Modify Sentence

The Era of Attacking the Referee

May 20, 2019/by J. Scott Key

It’s not an easy gig to be a ref. And it gets harder every day. That is the thesis of “Ref, You Suck!” an episode in Michael Lewis’s new podcast series, Against the Rules. The episode explores a set of dilemmas, summarized in a perfect tagline courtesy of Lewis’s child: “Don’t pick sides, unless it’s my side.” We want an arena, a boardroom, a market, and a courtroom that is fair. That’s all well and good in the aggregate. But when we put on our advocate’s hat we are just like Michael Lewis’s son. In that instance it can be at least a little nice if the referee or judge picks our side.

But Lewis pushes an even bigger point. In just about every arena, referees are under attack. Go to any little league game, watch the news, or look at the relationship between the executive and legislative branch of government at the federal level, you will see that those who are tasked with ensuring fairness are increasingly under attack from those who want their side to be picked.

Lewis spends most of the episode interviewing officials in a New Jersey review center that analyzes instant replays in NBA games. The existence of a replay center, itself, suggests that we are in a new era. At one time, Lewis points out, the referee was God. And the existence of a replay center indicates that the referee is not the be all and end all to enforce fairness. But we soon learn that, even with a replay center, the NBA is “trying to do the impossible: adjudicate fairness.” What could go wrong with a system where a replay center can get the calls perfect? Consider these issues:

  • The $15 million dollar replay center reviews, on average, only two calls per game. The vast majority of the calls are never reviewed. But the presence of that center is suggestive that refereeing is inherently biased and unfair.
  • Referees must endure constant criticism. And yet, statistical trends persist. On average, calls tend to go in favor of the team that happens to be losing when the call is made. And calls also go in favor the home team. Trials, by the way, mirror this practice. In criminal cases, calls tend to favor the home team. The State, after all, has its office in or near the courthouse. I’ve found in many trial transcripts an interesting trend. Once the judge believes that the defense is losing the trial, calls will tend to go in favor of the defendant. Why risk the error in the event of an appeal? An experienced trial judge tends to know which way the wind is blowing and will start ruling for the defendant on routine evidentiary matters.
  • Referees have never been as good as they are today (NBA refs are more physically-fit and demographically diverse than ever before). Yet referees have never before been so under attack. NBA refs routinely receive death threats and require security escorts after the game. While refs can be freely attacked in the press, they cannot go on air and defend themselves. Judges have a similar gig.
  • Refs come under the most attack when they make purported mistakes at the end of the game. Questionable calls at the beginning of the game have the exact same impact as those at the end. But there is a greater perceived sense of injustice at the game’s end. We probably pay more attention to what judges do during jury trials than in pre-trial motions. But pretrial motions have way more impact on the trial’s outcome than some random “asked and answered” objection. And the time to make critical objections would have been better before the trial started. A really talented attorney I know says that trial objections are kind of pointless, but he files extensive pretrial motions packets and argues the case to death in the months before a potential jury trial commences.
  • The stars are the players who raise the biggest ruckus by getting in the referee’s face. Lewis pivots from this point about the NBA to make a more universal point. He references a study that demonstrates that an increased sense of privilege correlates to a sense that the rules don’t apply (drivers of junky cars tend to yield to pedestrians more than drivers of high end cars). I’ve seen, in many instances in my career, prosecutors who have moved to recuse judges, not for any particular issue related to judicial ethics but because they felt outraged by a ruling. More rulings by trial courts have gone against me than for me, but I’ve never gone near a recusal motion.

At a time in which judging is the best it’s ever been (take a look at Georgia appellate opinions from the 1850s or 1950s and compare them to opinions from today), judges have never been more under attack. And, alas, complain as we will, there is no perfect justice.

And Lewis leaves us with the big issue: “when you have a weak referee, you have a big problem. … one day you’ll eventually wake up in a world that seems not just unfair but actually sort of rigged. It’s incapable of becoming fair because the people who benefit from the unfairness have the power to preserve it.”

I am in the business of appealing the decisions of one set of referees — trial judges — to another set — appellate judges. And when I appear in front of trial judges, this fact is kind of a standing awkward joke. But my experience appealing judges has never been an issue of discord. Having reviewed thousands of trial transcripts in nearly two decades I have a respect for what a hard and often thankless task it is to be the referee, from the little league umpire to the trial judge. And Lewis’s podcast reminds me of how important the job of the referee is. We should think twice before we, in any form, chant, “Ref, you suck!”

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2019-05-20 00:01:332019-05-20 00:01:33The Era of Attacking the Referee

The AJC Doubles Down on its Flaws from the Original Ralston Piece

February 25, 2019/by J. Scott Key

In a follow up story to the one published in last’s weeks AJC, Chris Joyner and Johnny Edwards have doubled down on some of the flaws from the original story. The writers continue to blame defense counsel Speaker Ralston solely for delays in his criminal cases. They take the additional step of taking him to task for being a criminal defense attorney — something merely suggested in the original article. The writers quote the leader of Georgia’s Tea Party to make that attack. And, rather than investigating the case files in the North Georgia courts where the matters are pending, the reporters focus on Ralston’s legislative colleagues and discuss whether those colleagues continue to support him or are backing away from him. What started as a criminal justice story for the AJC, is now clearly a political story (maybe this has been a political story all along). Unfortunately, the flaws serve to further undermine a better public understanding of how the system works and the role of defense counsel in an adversarial system in which the prosecutor brings the case and the judge sets the schedule.

An interesting follow-up to the story would have been to explore the cases in a more in-depth way to see if the state opposed requests for continuance. Judges and prosecutors serve a pivotal role in the scheduling and pace of a case from indictment to conclusion. And I cannot stress enough that we have an adversarial system. Frequently, the state and defense counsel argue motions to continue matters. And even when the defense and the prosecution agree to continue cases, the judge may ultimately decide whether a case proceeds to trial in a way that makes neither side happy. Every trial lawyer has a set of war strories on this topic.  Additionally, there are tools available where the parties, for whatever reason, have difficulty getting a case resolved.

  • Special Setting. Judges can specially set cases. When a case is specially set, the parties are directed to show up on a particular date and time to try a matter. In the normal course of events, a large set of cases will be called in on a Monday morning. And the Court decides, from among the group of cases, which ones will go to trial that week. Of the maybe hundred or so cases who appear, one or two will be tried that week. By contrast, when a case is specially set, a particular case is called in for trial. When a judge specially sets a case, the parties know when their case will be tried. And, because the parties have generally agreed to a special setting, they are hard pressed to bring a continuance. Years ago, when I worked as an associate for a very busy criminal defense attorney, the judges in a particular jurisdiction were frustrated by all of my boss’s scheduling conflicts. To help everybody out, I tried two misdemeanor cases before a jury one week, picked a jury on a third, and resolved a fourth. If someone as busy as the speaker of the house is defense counsel, it seems like his cases would be perfect for special setting. I wonder if the State or the Court ever tried something like that in Ralston’s cases. Seems like the story should have explored this question. Instead, the writers decided to go to Ralston’s legislative colleagues to figure out if they want to condemn him, support him or enforce what the AJC calls a “code of silence.”
  • Scheduling Orders. Another tool to move cases is a scheduling order. When a judge imposes a scheduling order, the parties come together early in a case to decide when motions will be due, when motions will be heard, and when trial will commence. When the scheduling order is discussed, the parties bring their calendars and work out proposed dates for various milestones in the case. Scheduling orders are routine in Federal Court. And they work as a sort of contract for the the case’s resolution. In some Georgia jurisdictions, the use of scheduling orders is regulated by local rules and customs. The scheduling order can be a powerful tool for the Court where a case proves tricky to schedule and resolve. And if someone with a schedule such at that of Speaker of the House is defense counsel, it would seem that scheduling order would be just the thing. Was there ever a scheduling order in Ralston’s case? We have no idea, because the journalists chose not to explore this question.

Trial law is not governed like a baseball game. In a baseball game, an umpire will call every pitch a ball or a strike. In law, either the pitcher or the batter has to request a ruling. And if defense counsel requests a continuance, the prosecution has every right to oppose the request. Further, if a case is taking too long to resolve, it is up to the party who most wants it resolved to speak up. Again, it’s an adversarial system. And the defense attorney’s job is to win his client’s case. Defense counsel does not represent the victim. So, if defense counsel’s motions for continuance are always granted by the judge and never opposed by the State, who is to blame — the team who brought the charges, the team defending the charges, or the umpire who controls how the game is played?

But why go in depth on the criminal justice angle when you’re writing a political piece? The AJC unveils in the follow-up article what was merely implied in the first one. Ralston’s crime is that he defends the accused at all; but he’s guilty of an ever bigger one, which may be why all of this started. The article quotes Debbie Dooley, the President of the Atlanta Tea Party: “They [the Republican leadership] rubber stamp him protecting accused child molesters and rapists and those that like to beat up women. … is that really what Republicans in the Georgia House really want to stand for?” In other words, do you want someone who defends the accused to be a political leader?

With the quote from Ms. Dooley, we learn what Ralston’s real offense is. It’s that he’s the wrong kind of attorney. Or perhaps, from the decision to interview political figures in Atlanta instead of local folks in the jurisdictions where the cases are pending, maybe the real crime is that Ralston is the wrong kind of Republican.

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2019-02-25 10:19:582019-02-25 10:19:58The AJC Doubles Down on its Flaws from the Original Ralston Piece

Roundup and Update on a Recent Amicus Success

February 20, 2019/by J. Scott Key

I’ll write more on this case later, but I wanted to provide a quick update on a recent case. This week, the Supreme Court of Georgia held that the State cannot use against defendants in DUI trials evidence of their refusal to take a chemical test. While the United States Supreme Court has held otherwise, under Georgia’s constitution, which provides its citizens with additional protections not provided by the Federal Constitution.

Several months ago, the Georgia Supreme Court requested amicus briefs from the Georgia Prosescuting Attorney’s Counsel, the Office of the Solicitor-General, and the Georgia Association of Criminal Defense Lawyers. Those groups briefed the case well, and it was an honor to present argument on behalf of GACDL. Over my career, it has been my privilege to be amicus counsel on important cases before the Court. And this was was particularly satisfying.

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2019-02-20 13:57:482019-02-20 13:57:48Roundup and Update on a Recent Amicus Success

The Law School Admissions Game

January 27, 2019/by J. Scott Key

The weekend edition of USA Today leads with a story on the sanctions law schools are facing based upon poor bar passage rates. The ABA will convene a conference to require accredited schools to ensure that at least 75% of graduates pass the bar within two years. Right now 75% of student must pass the bar within five years of graduating. The article point out that, because of various loopholes within ABA standards, schools with passages rates as low as 50% are not being sanctioned. The article includes a searchable index of bar passage rates for all law schools in the nation.

Where does the problem originate? It has long been a reality that there are too many people with law degrees chasing too few jobs. But that reality became even more dire in the mid-2000s when the legal industry suffered from the economic collapse. As law school admissions declined, law schools became less selective, to the tune of admitting students with little hope of passing the bar. The ABA has been slow to respond.

As law school graduates are finding the bar impossible to pass, student loans are coming due. And, where law graduates have previously struggled to find a job, they are now struggling to earn a license to even look for a job.

The cynical side of me doesn’t envision ABA standards to actually tighten given that law schools have a financial incentive to do what it takes to keep tuition dollars coming.

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2019-01-27 12:47:552019-01-27 12:47:55The Law School Admissions Game
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