News - Scott Key & Associates

Your Opportunity to Ask Appellate Judges About Writing Better Briefs

February 1, 2011/by J. Scott Key

On February 25, 2011, the Georgia Appellate Practice Section will host a CLE on Appellate Practice at the State Bar of Georgia. The event has something to offer lawyers who practice before Georgia appellate courts, whether the lawyer is a seasoned appellate practitioner or only handles the occasional appeal. The event will cover all the major steps in the appeal from preserving the record, to writing the brief, to filing the brief, to handling the oral argument. The unique component of this event is that it features judges from the appellate courts and seasoned appellate lawyers conversing in panels. It won’t be a day of speeches. Rather, it will be a day of interactive learning and conversation.

I will be moderating a panel titled The Winning Brief: How to Capture the Judge’s Attention (And How to Lose it). Panelists will include three judges from the Georgia Court of Appeals, including Presiding Judge Herbert Phipps, Hon. Christopher McFadden, and Hon.Stephen Dillard. And Gerard Kleinrock, a great criminal appeals attorney who recently won a case in the United States Supreme Court, will participate.

This panel is great because it offers a combination of insight from the point of view of both sides of the bench. Mr. Kleinrock is a seasoned appellate lawyer. Presiding Judge Phipps has been on the Court since 1999. Judges Dillard and McFadden are new to the bench and can offer a fresh perspective on both preparing briefs for the court and reading briefs as judges.

The panel will converse about what makes appellate briefs effective and how briefs can also harm the client if the writer makes poor choices.

I am drafting an outline to guide the panel’s conversation. But I’d welcome the input of readers here. Even if you aren’t from Georgia, you could possibly benefit from hearing from this panel about writing appellate briefs.

Obviously, if you attend the CLE, you will get the full benefit of the discussion. But I will write a blog entry to sum up the best lessons I learn from this panel.

Judge McFadden Speaks on Getting Elected and Getting Started

January 17, 2011/by J. Scott Key

Approximately 16 attendees made the snow-ladened trek to the appellate practice section luncheon Nashville, Tennessee, held in conjunction with the State Bar of Georgia’s mid-year meeting.

The Honorable Christopher McFadden, newly elected to the Georgia Court of Appeals, gave a fascinating talk on the process of campaigning for the appellate bench, the process of moving into the court as a new judge, and his first days as the newest judge on the Court of Appeals.

Participants heard a “nuts and bolts” account of the process of getting elected to a statewide judicial seat and how Judge McFadden integrated lessons learned from his unsuccessful bid in 2008 to get into a runoff and ultimately win a resounding victory in the runoff

Hiring a strategist/consultant

Judge McFadden noted that there are a few people in the state that know how to best run for statewide election. For the 2010 election, he hired one of them. The most innovative contribution was the introduction of what Judge McFadden termed “Robo calls.” The consultant relied upon a list of phone call recipients likely to vote in the runoff election, the use of recorded endorsement messages by key Democratic and Republican figures throughout the state, and strategic times for calling. The bottom line is that robo-calls work, even if some people called him back to complain about them.

Meetings Meetings Meetings

In addition to working with a consultant and executing a set of recorded phone calls to his target audience, Judge McFadden said that he spent a great deal of time going to meetings. Toward that end he devoted a great deal of time to attending civic organization meetings as well as Democratic and Republican party meetings throughout the state.

However, one of the challenges that came from attending partisan party meetings was maintaining a sense of “neutrality” in partisan meetings. Judge McFadden seemed proud of the fact that the judiciary in Georgia is non-partisan. He noted that there were moments, though few and far between, where members of his audience pressured him to “reveal” his political leanings and threatened to assume things from his choice not to disclose.

The Use of Resources

One key strategy he noted for the use of resources was to raise money and use most of it at the end of the election. The strategy appears to pay off significantly if one considers that he finished second in the general election but finished resoundingly in first in the runoff

Qualifications Succinctly Discussed

Judge McFadden noted that one of the keys to winning a statewide election court judicial race is to pick a theme, a short phrase or single word and run with it throughout the entire election. In this election, his strategy was to compare his qualifications for the job to all of the others who he believed to be less qualified. “I wrote the book,” a reference to his appellate hornbook, became a campaign theme that was simple, resonated, and encapsulated the whole idea of superior qualifications in a single pithy phrase.

Starting Out as Judge

A new judge has to find an office. And any vacancy on the Court creates a great deal of activity as judges move to more desired offices than the ones they currently occupy. It’s a process Judge McFadden called “musical offices on a grand scale.”

Prospects for the Future

Judge McFadden wants to be proactive as a judge, getting involved in the opinions from the beginning rather than simply signing off on opinions drafted by staff attorneys. He has found that the sheer volume of work necessary as part of a Court of Appeals judge makes it difficult to get in front of the cases the way he would like. He also notes that the amount of time he has to spend own cases as a judge is less than the amount of time he had to spend on drafting briefs for clients.

As a practitioner, I think this news is good. It signals that a brief that is well written, accurate, and that judges can trust is important because the advocates have much more time to spend on cases than the judges have. The brief is very important, which is good news for prepared advocates and opponents of unprepared advocates.

Is the Exclusionary Rule the New Hot Appellate Issue in Georgia?

December 20, 2010/by J. Scott Key

If any case qualifies as an old chestnut, it would be Mapp v. Ohio, the landmark case that provided that evidence gathered in violation of a suspect’s Fourth Amendment rights should be excluded from use at trial. Restricting the use of illegally-gathered evidence is the punishment for the illegal conduct. If there’s a case that high schoolers might read about in a civics or government class, this is it. Mapp is hardly cutting edge law in Georgia. Or is it?

There are two cases in the Georgia Supreme Court right now that test out the boundaries of the exclusionary rule. One case might expand its reach, and another might limit it. Both of these cases are fascinating and will have far-reaching implications for Georgia lawyers in the future.

State v. Hulon Thackston – The Supreme Court granted certiorari to ask the following question: Does the exclusionary rule apply in probation revocation hearings as a matter of Federal or State Constitutional law? Assuming that this question is answered in the affirmative, there are inquiries in the cert. order. The other interesting questions is whether the doctrine of collateral estoppel applies when a trial court grants a motion to suppress in a new substantive case and later seeks to introduce the evidence in a probation hearing were the revocation petition arose out of the same facts and circumstances. In the Court of Appeals, the Court assumed that the exclusionary rule does apply and found that the doctrine of collateral estoppel does apply in such a factual scenario. The Georgia Association of Criminal Defense Lawyers is filing an amicus brief in this case.
State v. Aron Mussman – The Supreme Court granted certiorari in this case (PDF) to determine, in part, what the proper remedy is where the State fails to preserve physical evidence containing biological material which is relevant to determining the identity of the actual perpetrator. The case involves a charge of vehicular homicide, where the State released a totalled car to the defendant, who was in a car that was wrecked and where the vehicle’s other occupant was killed. Police concluded that the defendant was the driver but did not charge him until after they released the car and it was unavailable for testing by defense experts. A divided panel in the Georgia Court of Appeals determined that the State had failed to preserve the vehicle pursuant to a statute that requires the preservation of biological evidence. However, one of the three judges reasoned that the exclusionary rule should apply where this statute is violated. I was the amicus author for GACDL in the Court of Appeals and will be preparing one at the Georgia Supreme Court as well. So, I have a few thoughts on this subject.

One way or another, Georgia could be in for a big change.

Before I weigh in on this topic as a lawyer, I’d like to analogize this issue as a parent. All the books I read in my first year as a parent to the contrary, parenting is more an art than it is a science. And part of the art is determining when to punish for bad behavior and what the best punishment is. Punish too harsly or inappropriately, and you cause harm. Punish lightly, and your child might opt for the behavior with the punishment as just a cost of doing business.

The State has reached a pretty global solution for bad conduct with respect to the criminally accused. But how do we punish the wrongdoers when they are State actors engaged in investigating our clients?

If the police can enter a residence, search it, find incriminating evidence, and later use it in court, you can’t put them in time out. You can’t spank them. A fine for such conduct might simply become another “cost” of enforcing the law. The exclusionary rule is the best punishment for such conduct.

What happens if the police are required to preserve biological evidence for later testing where there is fear that some court down the road might order that the evidence be retested and throw open the entire case? Flush the evidence? If you can toss the evidence and there is no consequence, then the statute is merely advisory.

The hot issue when Mapp was decided was whether a Federal prosecutor, unable to use illegally seized evidence could simply cross the street and hand the file to a State prosecutor, who had a blank check to use it. For the majority in Mapp, such a scenario was unthinkable. How different, then, to imagine a prosecutor not being able to convict on an indictment against a suspect who is on probation but who can draft up a quick petition and use the exact same evidence in a ten-minute revocation hearing – even before the same court that granted the suppression motion in the new criminal case.

In Florida, the land that brought you depositions for criminal cases, the Supreme Court has held that the exclusionary rule applies to statutes that create rights for the accused where the legislature has chosen not to set forth another remedy. The 11th Circuit has held that, where Congress enumerates specific sanctions for violating a statutory right of the accused, those sanctions are exclusive of an exclusionary rule. The logical endpoint of such analysis is that, in the absence of such enumerated sanctions, it is proper for the exclusionary rule to apply.

Stay tuned. Things are about to get interesting.

Rob Teilhet Resigns as Head of Georgia Public Defender Standards Council

December 10, 2010/by J. Scott Key

Rob Teilhet has tendered his resignation as head of GPDSC after only three months in office. Peach Pundit reports on the resignation in a blog post yesterday. I thought his days might be numbered when I met him last month. He came to a conference of the Georgia Association of Criminal Defense Lawyers and spoke to the group. If you don’t know the history, the fact that the new-appointed head of defending the poor was coming to speak to a group dedicated to defending the accused would not seem particularly controversial. And anywhere else but Georgia, such an appearance would probably be expected.

However, if you know something about the history of this organization, you’d know that Mr. Teilhet’s appearance before GACDL might have not been a wise political move.

GPDSC is a political organization — a really unpopular political organization.

GACDL is a non-profit organization whose mission is, in part “to promote constant improvement in the administration of criminal justice.” In Georgia, the head of GPDSC is not expected to advance the administration of justice.In some other state maybe. But not Georgia. We don’t coddle criminals here. Go to some liberal state like Alabama if you’re looking for that. The people ruling Georgia didn’t major in political science so that they could help the poor or better the court system. The fact that the poor might need lawyers doesn’t inspire the inner Atticus Finch of Georgia Republican. The fact that Georgians accused of crimes might need lawyers inspires the same feeling that I get when I need to rake the leaves in the front yard. I generally would rather just cut down the trees once and for all.

I’m not saying that Mr. Teilhet’s appearance at GACDL was what cost him his job. GACDL probably doesn’t register enough on the Republican radar for that. Though an appearance of the head of GPDSC at a GACDL event is very rare (the goals of the two organizations being at odds with one another and all). Rather, it seemed that Mr. Teilhet was going to do a good job. And that may have been where things began to go wrong for him.

Or a simpler explanation is that the governor-elect has someone else in mind for the job as a “favor.” Which may be even less benign than what I’ve suggested above. Because if being the head of GPDSC is essentially a political position, then indigent defense will likely continue to suffer.

The criminally accused are not a very popular political constituency.

Nahmias and McFadden Win Election to Georgia Supreme Court and Georgia Court of Appeals

December 1, 2010/by J. Scott Key

Justice David Nahmias and Judge-Elect Christopher McFadden have been elected respectively to the Supreme Court of Georgia and Georgia Court of Appeals. Both won by wide margins. Georgia votes made the right choice in both elections. Justice Nahmias is likely to continue to do excellent work on the Court. I look forward to his well-reasoned and finely crafted opinions. And I am eager to continue to be challenged by him at oral argument. Judge-elect McFadden is going to be a great addition to the Court of Appeals. He will be fair, and his opinions are going to be scholarly. Yesterday’s election was good for the Georgia judiciary and the people of Georgia. Our legal system is as good as the professionals who occupy the bench and those who argue from the bar. Yesterday was a great step for Georgia.

The voters who braved yesterday’s Georgia weather did the right thing. While it might be easy to be cynical that such a small percentage of eligible voters showed up to vote, it appears that they made an informed decision on both parts of their ballot.

I will look forward to Justice Nahmias’s continued work on the bench and the days ahead with Judge McFadden.

Georgia Appeals Election Day

November 30, 2010/by J. Scott Key

If you haven’t already done so, please vote in today’s election. Polls close at 7:00 p.m. this evening. I voted at 8:00 a.m. this morning, and the woman at my precinct told me that I was only the fifth voter to darken their doors. This is a very important election, and much is at stake. If you are a lawyer, then you know why this election is important. If you have less experience in Georgia Courts, let me tell you a little more about why this election is important.

Our appellate courts make decision on individual cases that shape the way future cases are decided. Most decisions that come out of our Supreme Court and Court of Appeals become the law in terms of how we interpret our the United States Constitution, Georgia Constitution and Georgia statute. Though the governor’s office and the legistlature get the bulk of the attention, much power is placed in the hands of our appellate judges. An individual appellate judge is arguably more powerful than an individual state senator.
The Supreme Court is ultimately responsible for regulating attorney discipline in the State of Georgia. The Georgia bar is self-regulated, but decisions on how or whether to discipline lawyers are left in the hands of the justices on the Supreme Court, with the hard work and assistance of lawyers who work for the State Bar of Georgia. It is important to put the best person for the job in that office.
Finally, though many people will never end up in court, I meet with many moms, dads, uncles, brothers, spouses, sons, and daughters who are good “regular people.” They come to me because they have found themselves supporting a loved one who has been convicted of a crime or who has some other type of matter pending before our appellate courts. If you get sick and require the assistance of a specialist in the medical field, you have some choice in your doctor. When you appear in front of a judge, the moment to choose has already passed.
“The people get the government they deserve.” Alexis de Tocqueville is credited with saying it, but he more likely source is Joseph de Maistre. It rings true.

I’ve shared with you in previous blogs my choice for the Court of Appeals and Supreme Court. I’ve also shared resources with you where you can read up on the candidates. Even if you think my choices are way off base and you are going to vote the other way, please vote today. This election is just as important as any other election. And these offices deserve the involvement of the people.

So, About the Rest of My Ballot for Georgia Appeals Seats

November 26, 2010/by J. Scott Key

I recently wrote about my decision to vote for Justice Nahmias over challenger Tammy Lynn Adkins. That post was picked up by Aly Palmer on the ATL Law Blog, the blog of the Fulton Daily Report. The post has generated thoughtful emails to me about the election. I hope that you’ll research the candidates yourselves and make the choice you believe is best for the Georgia Supreme Court bench. For what it’s worth, I’ve always valued competence over philosophy in judges. I’m not a big John Roberts fan, but I thought that he was well-qualified to be an Associate Justice for the United States Supreme Court and now Chief Justice of the United States. And Senator Lindsey Graham’s stock went way up in my book when he broke from the Republican ranks and voted to confirm Elena Kagan to to an Associate Justice of the United States Supreme Court.

Anyway, I tried to research some more about Ms. Adkins after some emailers suggested I had been hasty. I’m still in the dark about her. This voters’s guide is a good example of what I’m talking about.

Enough about that race. Over at the Court of Appeals, there is a great deal of information about Chris McFadden and his opponent, Toni Davis. Both have run campaigns intended to inform Georgia voters about the importance of the Court of Appeals and their respective positions. Both have experience in the appellate courts.

I’m casting my ballot for Chris McFadden for several reasons. One, he is a lifelong student of our appellate courts and an experienced appellate practitioner. He will bring a lifetime of experience and a wealth of knowledge to the Court. He’s the author of the hornbook on Georgia appellate practice. His book sits on my desk, in arm’s reach at all times. It’s dog-eared, highlighted, tabbed, and heavily annotated. He’s the founder of the appellate practice section of the State Bar of Georgia and is active in that organization. He’s also worked hard as a candidate and will work hard as a judge. I also consider him a friend.

So, please research the candidates and vote. Also, take the time today to inform your friends that the upcoming election is important. Tell them what you know about the candidates, and encourage informed voting for these very important offices. Help them by guiding them to some places where they can learn about courts and the candidates.

Georgia Supreme Court Establishes Constitutional Right to Interpreter

November 23, 2010/by J. Scott Key

I’m not just posting about Ling v. Georgia (PDF) because I’m her criminal appeals lawyer. Although it is pretty nice to have lost a motion for new trial and an appeal to the Georgia Court of Appeal and ultimely win in the Supreme Court on cert. while helping to secure a new substantive new substantive Constitutional right along the way. I think I’d be posting about this case even if I weren’t Mrs. Ling’s lawyer.

Yesterday, the Supreme Court of Georgia reversed the Georgia Court of Appeals and found that a criminal defendant has a Constitutional right to an interpreter. The Court also found that courts, when faced with an issue of whether an interpreter is needed, must make an explicit finding on the record on the issue.

The Court also rejected the notion that a trial attorney can unilaterally decide to forego an interpreter based upon a claim of trial strategy because a decision like that renders the client absent from her own trial.

The decision has gotten well-deserved coverage since yesterday. CNN posted an article on its Justice page. Kate Brumback posted a story on AP yesterday. CBS has a report of it as well.

It was a hard-fought victory. And I hope that the precedent assists other similarly-situated defendants in future cases.

If you’re interested in how we got here, my oral argument is available for viewing.

Georgia Supreme Court Runoff: Weighing Philosophy Against Qualifications

November 17, 2010/by J. Scott Key

Justice David Nahmias is picking up endorsement from both sides of the political aisle. Bill Rankin, at the Atlanta Journal-Constitution reports that Gov.-elect Nathan Deal and Mayor Shirley Franklin have pledged their support to Justice Nahmias. Mr. Rankin also reports that Republican Attorney General-elect Sam Olens and Ken Hodges, the recently defeated Democratic nominee for that race have also endorsed Justice Nahmias. He has also been endorsed by 48 lawmakers and 11 past presidents of the State Bar of Georgia.

Justice Nahmias is in a race with Tamela Adkins after he captured 48% of the popular vote in the general election. Ms. Adkins did not run a campaign but changed the way her name appeared on the ballot to read Tammy Lynn Adkins.

Justice Nahmias is a former clerk for Justice Antonin Scalia and the former United States Attorney for the Northern District of Georgia. Ms. Adkins is a divorce lawyer in Lawrenceville, Georgia. She has never argued a case before the Supreme Court of Georgia.

So, now to the part of this blog that might cost me some “street cred.” with the Georgia criminal defense bar. I’ll vote for Justice Nahmias in this election. I’m not a big fan of his judicial philosophy in criminal cases and I have disagreed with his opinions. But I recognize that he is qualified to be a justice on Georgia’s highest court. I have argued a handful of cases before the Court since Justice Nahmias took office, and I enjoy his level of engagement in cases at oral argument. His opinions are reasoned and thoughtful, even the ones where he has ruled against me.

I don’t have much experience with Ms. Adkins. I recently heard her give a campaign speech at the Fall Seminar of the Georgia Association of Criminal Defense Lawyers Fall seminar. I did not get a sense from that speech of what she would bring to the Court. I’m not entirely sure that in the brief time I heard her speak that I was able to get a sense of her qualifications to write scholarly legal opinions and engage advocates in the weighty issues that come before the Court. My sense is that she’d have to learn a great deal about the appellate process very quickly while on the job. She didn’t seem to have any theme behind her campaign except that she’s not Justice Nahmias. She even referenced herself as “Tammy Lynn Anyone But Nahmias Adkins”

With the exception of one person, everybody in the world isn’t Justice Nahmias. But everybody in the world shouldn’t have his job. So, maybe I score one in her column for judicial philosophy (though she never really said what hers was if she’s developed one).

Though I and others might wish that there was a credible alternative to Justice Nahmias in terms of philosophy, I cannot ignore the element of qualifications, experience, and background to perform the job at a high level. Perhaps in another election season I’ll vote differently if I had to choose whether to re-elect Justice Nahmias. But this year is not that year.

New Georgia Conflict Opinion: A Criminal Appeals Lawyer’s Dream

November 12, 2010/by J. Scott Key

The new advisory opinion (PDF Page 92) for the handling of conflict cases for the Georgia Public Defender Standards Council was the talk of the recent Fall Seminar (PDF) for the Georgia Association of Criminal Defense Lawyers. This issue has been divisive among the criminal defense bar. GACDL has not weighed in as amicus counsel in litigation involving the conflict rule. The conflict rule is a step in the right direction but does not go far enough. And the rule will be ripe for challenge under the Sixth Amendment in future appellate cases. First, a little background on the rule and a discussion of why it’s a step in the right direction. Finally, I’ll discuss why it will probably be an invitation for future Sixth Amendment Ineffective Assistance of Counsel claims because it doesn’t go far enough.

The Conflict Rule

The State Bar of Georgia issued a formal advisory opinion holding that a circuit public defender’s office is a “law firm” as defined by Georgia Rule of Professional Conduct 1.10(a). Under that rule, a conflict in representation that would prevent a lawyer from representing co-defendants in a single matter is imputed to other lawyers working in the same firm and is an ethical bar to any lawyer in the firm representing the co-defendant.

To use a legal term of art that can be traced back to the time of Sir William Blackston e: “duh.”

We were quickly developing into a State with two sets of conflict rules: one for rich people and another for the other 90% of the criminal calendar. Case law from the Supreme Court of Georgia was starting to go in the other direction. For instance, in Burns v. State, 638 S.E.2d 299 (2006), the Supreme Court of Georgia declined to adopt a per se rule that lawyers in a single public defender’s office cannot represent multiple defendants in the same matter. The Supreme Court of Georgia found that there was no conflict in the particular case and declined to make any rule. The decision also seemed politically expedient for 2006 when GPDSC was just beginning to financially melt down. The mess got worse. Conflicts were being ignored with impunity when the defendant happened to be poor.

Then, the State Bar of Georgia stepped in and issued the formal advisory opinion (PDF Page 92). The opinion was not well-received by Georgia’s Republic legislative regime. Senator John Wiles, R-Kennesaw supported a proposal to abolish the State Bar of Georgia. The former Bar President then sent an email to the Georgia Bar’s Board of Governors asking them to oppose his candidacy. He lost in the Republican Primary.

Quoting Blackstone again: bwa ha ha ha ha

So, Here’s the Sixth Amendment Problem

The State Bar has held that a public defender in one office can represent conflict clients in another circuit public defender’s office. And that is the route GPDSC has chosen. Think of the levels of Sixth Amendment problems and how, to quote Mr. Blackstone, “whacked out” this system is

GPDSC is a single statewide law firm governed by approximately 40 managing partners, directed by a council of senior partners, and a centralized chief partner. If it isn’t, then why can’t I open an office in another Georgia county and use that office to split co-defendants with the guy I allow to “run” that office? More profit for me, right?
How can assistant public defenders possibly manage a caseload that is already too high plus a load of conflict cases from neighboring counties?
What about direct appeals? A big cause of conflicts is a claim of ineffective assistance of counsel by a convicted defendant. So, under the new system, trial attorneys will likely mix busy trial practices and an appellate practice (handling most of every calendar in an assigned courtroom plus running an appellate practice). It’s an invitation to ineffective assistance of appellate counsel
The resource problem remains. In the Advisory Opinion, the Bar notes that part of why you should impute a conflict within a circuit defender’s officer is that a single supervisor might have an incentive to manipulate resources to move the cases. (“oh, your guy won’t claim the dope in the car. Well, let me show you your new office, back there by the copier.”) And there would be a tendency to compete for investigative resources. So, now imagine the conflict defender walking into a foreign office and trying to ask the local Public Defender to devote resources for this interloper or the APD’s own supervisor to allocate resources for the foreign office when he goes to another county to do a conflict case.

So, habeas counsel, get ready to start raising new IAC claims. And yes, conflict issues are in 6th Amendment territory. For more on that idea, check out Holloway v. Arkansas, 435 U.S. 475 (1978).