Amanda Knox, the Appeals Process, and Moneyball

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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

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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.

Granted Petitions on Criminal Cases for the Month of September

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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.

 

New UGA Law Review Article Takes Georgia to Task for the Way We Handle IAC Claims

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I returned from vacation pleased to find in my in basket at the office a copy of Ryan C. Tuck’s article from the Georgia Law Review on the confusing state of the law as it relates to ineffective assistance of counsel in Georgia. The article is titled “Ineffective-Assistance-of-Counsel Blues: Navigating the Muddy Waters of Georgia Law After 2010 State Supreme Court Decisions.” This article is as good as its title is clever. The article centers on where the law in Georgia is after Garland and Moody.

And the news is not particularly good. And why am I excited about a law review article on a case I lost (sort of) and that demonstrates some issues with how we handle IAC claims in Georgia?

The reason is that maybe things will change. The way we do things in Georgia makes it tough to be a criminal appellate lawyer, disincentives trial lawyers from preserving issues for appeal, and needlessly separates the appeal from the trial in a way that interferes with attorney-client relationships and in a way that probably hurts the client in the long run. And this article give me some hope that the legislature will move Georgia to a system of handling IAC claims more akin to the majority rule.

Mr. Tuck picks up in a familiar place to me. Jim Bonner’s article in the Appellate Review, the Georgia Appellate Practice Section’s Newsletter covered some of the same ground.

What’s Wrong Now?

Under Georgia law, new counsel must raise ineffective assistance of counsel at the earliest possible moment, or he waives it. As claims go, IAC not really good. It’s rarely successful. I have litigated it more times than I can remember, and it’s worked on appeal exactly one time (it’s worked a few more times at the trial level, but generally with a wink and a nod as part of negotiations).

The problem is that clients think that it will work for them, and they pressure new counsel to raise it. There are many reasons why it should rarely be raised. For one, there rarely is a good claim. Secondly, it has a way of becoming the focus of the appeal. Third, even when it doesn’t it can be a big distraction from other real issues of merit. Fourth, analysis under the second prong of Stickland, invites trial courts to weigh in on how strong the evidence was against the defendant at trial. Such careful scrutiny of how good the State’s case was can have a spillover effect to other issues in the case making it that much easier to proclaim that other errors were harmless.

Pressures from the client and systemic pressures (raise it or waive it) can create a real conflict with the lawyer’s ethical obligations not to raise frivolous claims under Rule 3.1 of the Georgia Rules of Professional Conduct. To quote Mr. Tuck’s article,

By creating pressures for new appellate counsel to raise IAC claims against trial counsel, critics contend that Georgia’s approach contravenes this warning from Strickland [that there will be two trials. In the first, the defendant is tried. In the second, the lawyer is, as Mr. Tuck puts it “tried for IAC.”] and institutionalizes a level of antagonism between defendants and their attorneys that can be damaging to overall standards of representation. As one critic asserted, “[i]t causes hell for attorney-client relations if both know from the beginning that they will end up on opposite sides.

And from my experience, this issue marks the place where things can go bad between the attorney and the client. I don’t raise IAC unless I see at least a colorable issue and if it won’t hurt other claims by serving as a distraction and if the second prong won’t spill over into the harm analysis of other issues.

Where Should We Go From Here?

We should require that IAC claims be held until collateral proceedings and take them out of the direct appeal except in the rare case when it can be resolved from the record itself. And, the failure to raise it should not act as a waiver of the issue. It would better the system and make it easier to practice criminal appellate law. And, above all, it would protect the clients from going for a low percentage issue at the cost of other issues of merit, which provide a better chance of success even if they don’t quite understand those issues.

Uniform Rule on Electronic Court Filing: A Step in the Right Direction For Georgia

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Yesterday, I noticed that there is a proposed rule from the State Bar of Georgia to provide for electronic filing in Georgia courts. Of course, it’s just a proposed rule (PDF). And what comes of it may be simply a model rule for trial courts to follow if they choose to allow electronic filing. But it also might be light at the end of the tunnel for lawyers like me who are way sick of paper. In fact, the way trial courts work right now in the handling of documents is enough to make me want to poke my eyeballs out with a spoon. It’s not exactly fun to figure out a way to get a physical document to some distant land by 5:00 tomorrow to meet a deadline on a motion for new trial or habeas matter, and e filing would fix it. It’s also not fun to file a document in the courthouse basement and wonder how or when the judge on the case might learn of it.

In the late 1980s, when I was in high school, I worked for a law firm as their courier. My job was to go to various courthouses and file documents with various clerks, get the file stamp, and take physical copies to opposing counsel. The process seemed almost quaint then.

This year, I am approaching my 20-year high school reunion. And we’re still handling documents the exact same way in trial courts. Assembling the record for appeal, with a few exceptions, is still exactly the same process that it was the year the Titanic sank. I’m not sure what the issue is. Part of it is that lawyers can be un-innovative. For instance, what other profession is still using fax machines?

A uniform rule for e filing is, I hope, a step toward mandatory e filing in the future. Perhaps, then, I can retire the postage meter, and getting a leave of absence for a trip to Disney World or the filing of a conflict letter won’t burn a whole day every week for an assistant. It’ll have to be mandatory though. There are over 150 counties and Georgia and a blue million lawyers. Most will have to be sent kicking and screaming into the e filing era.

At the State Bar’s annual meeting, Chief Justice Hunstein announced that the Supreme Court of Georgia will require e filing there by the end of the summer and will soon move to the second phase of their e filing initiative to provide for the transmission of electronic records from trial courts.

My operation is paperless. I take notes on my iPad, my phone, or my laptop, and I maintain electronic files with a system for dealing with text notes and pdfs. It works great except for a few sets of occasions in my practice. One is when I visit an inmate in the prison system at a facility that won’t let my iPad or laptop in. You’ll see me often in distant lands buying convenience store paper and pen. The second is when I am in court and need to use paper with a witness or to fill out paperwork (you’ll see me borrowing pens a lot). The third is when I have any case in Butts County, Monroe County, or Lamar County where they equate electronic devices on par with weapons and refuse to allow anything but paper files in. The other is when I am working with co-counsel or opposing counsel that fetishizes paper (which is most of the bar, unfortunately).

The proposed rule will hopefully move us toward a system of file management throughout Georgia that is, if not in the 21st century, will at least be circa 1999.

E-Filing is the Talk of the Georgia Bar Meeting

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Two days at the annual meeting of the State Bar of Georgia in Myrtle Beach have given me enough material for a week of blogging. For today, the big news is that the Supreme Court will mandate e-filing for all attorneys before the end of the summer and will create a system for submission of appellate records in electronic form. E-filing was also the talk of the Appellate Practice Section luncheon, with Judge Keith Blackwell discussing the need for a a uniform system for indexing the record on appeal.

Kathleen Joyner, with the Fulton Daily Report, shared a story of some matters I e-filed with the Supreme Court of Georgia on my way out here (don’t worry, I wasn’t driving)

Third Circuit: Mere Physical Proximity of Guns to Drugs Not Enough for Sentencing Enhancement

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Caroline Vodzak  reports at Vodzaklegal that the Third Circuit has found that mere spatial proximity of guns to drugs is not sufficient to enhance a defendant’s sentence of drug possession without a specific finding of fact that the gun “facilitated or had the potential for facilitating the possession of drugs.”

Mr. West was caught in possession of a small amount of marijuana and cash during a routine traffic stop. Police then found a handgun in the car’s glvoe compartment and another in Mr. West’s trunk. They later found a gun on his girlfriend’s dresser near a bed where Mr. West sleeps. The trial court (MD of Pennsylvania) interpreted the sentencing guidelines in reliance on another third circuit case broadly to give Mr. West a four-level sentencing enhancement, reasoning that the guns needed only to be possessed “in connnection with” the possession of drugs.

The Third Circuit reversed, reasoning that “the mere connection with the drugs” was not enough, and remanded for sentencing, with instructions about the correct standard for application of the enhancement.

The interesting thing about this case is that the Thrid Circuit relied upon the Fourth, Fifth, and Eighth Circuits, which distinguish between drug possession and drug trafficking cases. It is not clear, from reading the opinion, whether other circuits make such a distinction and whether, on this issue, there is or might be a circuit split ahead.

Georgia’s New Evidence Code: How & Why We Changed

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Here are some reasons why this development is good.

Regularity

Less Vagueness (bent of mind, course of conduct, res gestae)

A modern evidence code that fits the kinds of evidence lawyers seek to admit

A playing field that, for a brief time, will reward the prepared (and that’s generally the defense)

As Professor Miller noted, Georgia has now gotten its evidence code up to speed and has largely adopted (98% of it) the Federal Rules of Evidence. I’m going to keep following the Law Prof Blog as this provision moves forward

Georgia is getting a much-needed change to its evidence code, and Colin Miller’s Evidence Prof Blog has the post I’ve been wanting to read. Professor Miller does two things really well in his post. First, he points out that Georgia is finally catching up with the rest of the nation as we become the 43rd State to enact an evidence code modeled after the Federal Rules of evidence. Secondly, he discusses why Georgia’s evidence rules were long overdue for an overhaul.

Why were we due for an overhaul? The current rules of evidence were enacted in 1863. Changes in the way we do court as well as little technological developments like the invention of the automobile, airplane, and the internet, have taken us int a different world than the world inhabited by the framers of the evidence code. Too often we were trying to match up the proverbial square peg and round hole. He cite to another of his posts, which demonstrates how antiquated the Federal Rules of Evidence are by reference to how to admit a computer printout under the Best Evidence Rule.

Why did it take so long? The move to change the rules began in 1986, and the legislation died “a thousand deaths in different committees” and faced “strong opposition from solicitors and prosecutors.” How did it get done this time? Professor Miller credits Representative Wendell Willard who pushed for adoption of the Federal Rules of Evidence in 2009. As the process began, he acknowledged the concerns of prosecutors. He convened a study committee, which discussed those concerns at length, highlighting the differences between the Georgia Rules of Evidence and the Federal Rules of Evidence. Eventually, the bill passed by an overwhelming margin, and we have a new evidence code on the way.

As Professor Miller noted, Georgia has now gotten its evidence code up to speed and has largely adopted (98% of it) the Federal Rules of Evidence. I’m going to keep following the Law Prof Blog as this provision moves forward.

Excellent Oral Argument on Lawyer Disqualification

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I’ve been following this case closely because the Georgia Association of Criminal Defense Lawyers submitted an amicus brief on behalf of the Appellant.  In a nutshell, the trial court disqualified the former DeKalb School Superintendant’s law firm where there actually was no conflic; rather, there was the speculative potential for a conflict where the clients had waived a conflict in writing. We were alarmed about the precedent that could be set if prosecutors could freely choose their opposition.

Today was the oral argument before the Georgia Court of Appeals. The Fulton Daily Report covered it, and Oral argument is available on video of today’s session. Beyond the fact that the issue is important, it is worth taking a look simply to see good appellate advocacy from Bernard Taylor. Here are three things I particularly enjoyed watching.

  • Time Management. Mr. Taylor managed his time well. He had his argument prepared and was able to get his main points out. He reserved plenty of time for a well-developed rebuttal and for the Court to ask questions.
  • Strength of Argument. Mr. Taylor struck a nice balance between the scholarly tone necessary for appellate argument with the passion necessary for a case with issues like these.
  • Answers to Hypotheticals. Appellate judges often warn lawyers away from the “those aren’t the facts of this case” response to hypotheticals. Mr. Taylor almost gives that answer at one point, but he does so by reference to law that conflict/disqualification isses are fact intense and unique. He then acknowledges that, under the hypthetical as framed, there might be “issues.” He struck a nice balance.

It is truly great that such a strong advocate is representing the Appellant in this important case.

How Can You Defend These People?

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I’ve watched with interest the news regarding former Solicitor General Paul Clement’s resignation from King & Spalding, after the firm moved to withdraw from its representation of House Republicans in defense of the federal statute that prohibits same sex marriage.

Every criminal defense lawyer should learn as much as possible about this story and save it up for your next cocktail party where there are a bunch of non-lawyers or prosecutors in attendance.

The next time someone asks you the typical questions that criminal defense lawyers get about how you can defend someone charged with ____ (fill in heinous crime) or asks you how you can defend someone you know to be guilty, you can cite the inquisitive person to this chapter of Paul Clement’s career. A lawyer’s duty sometimes means defending rapists, murderers, and even House Republicans.

I wonder if those who pressured for K&S to withdraw from this case would support law and order types if they brought similar pressure to bear upon a law firm to withdraw from the appeal of a criminally accused or convicted. There’s lots of irony to go around in this story.

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