Two Georgia Appeals Seats Headed to a Runoff

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There will be two run-offs for Georgia appellate seats. Justice David Nahmias, who was appointed to finish the term of Justice Leah Sears, won 48.2% of the votes. He will be in a run-off against Tammy Lynn Adkins, who achieved 35.2% of the vote in spite of the fact that she did not run a campaign. Justice Nahmias’s more vocal opponent, Matt Wilson, was able to eek out only 16.6% of the votes. Mr. Wilson ran an aggressive campaign, where he attempted to cast Justice Nahmias as a bureaucrat and Washington insider with little regard for individual rights. It will be interesting to see if Ms. Adkins begins campaigning in the upcoming run-off election or if not running a campaign will continue to pay-off

Campaigning has had an impact in the race for the Georgia Court of Appeals, also headed for a runoff. Antoinette “Toni” Davis garnered 25.5 percent of the votes to Chris McFadden’s 22.6%. Election results are available on the Georgia Secretary of State’s website. Mr. McFadden was endorsed as most qualified by Georgia lawyers polled by the State Bar of Georgia. Ms. Davis picked up key endorsements by two Georgia newspapers and several prominent judges and other office holders in Georgia.

SCOTUS Denies Cert on Weis

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One more vestige of the Johnnie Caldwell legacy will remain in place, for a little while anyway. Greg Land at the Fulton Daily Report notes that the United States Supreme Court has denied Jamie Ryan Weis’s petition for certiorari. Mr. Weis has been sitting in the Spalding County Jail since 2006 charged with murder. His case has not yet gone to trial because the State has funded his prosecution but not his defense. In 2007, Mr. Caldwell removed his death penalty defense lawyers with state-salaried lawyers. On appeal, the Supreme Court of Georgia found no speedy trial violation, in part, blaming Mr. Weis for the delay because he objected to the trial court’s decision to treat his lawyers as fungible. At oral argument, some of the justices suggested that capital defense counsel should be required to donate their time.

Stephen Bright, appellate counsel for Mr. Weis, remains hopeful:

Weis can come back to the court on direct appeal after conviction, and he can petition the federal courts for habeas corpus relief,” Bright said. “I am confident that the Supreme Court or some other reviewing court will recognize the constitutional violation and set aside any conviction that might be obtained. It is just unfortunate that the way the Georgia Supreme Court is treating the right to counsel could not have been corrected at this time in order to avoid unnecessary trials that will be reversed.

The Washington Post chronicled the disturbing story in its September 25 edition.

Stephen Bright’s Blog Launched a Few Days Ago

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Heroes seem few and far between these days, or maybe I’m just being a little cynical. I’m listening to the audiobook version of Edmund Morris’s The Rise of Theodore Roosevelt right now and wondering why more political leaders are not cut out of something resembling a similar mold of intergrity and leadership.

Since I’ve been practicing law, I’ve looked to Stephen Bright as an eloquent and fearless champion of the poor, the accused, and the convicted. His oral argument last year in the Weis case stands out as one of the best I have watched. When asked whether death penalty defense counsel should be compelled to defend their clients for free, Mr. Bright suggested that the justices on the Supreme Court, bailiffs, and prosecutors should be compelled to do so also.

His new blog, Second Class Justice, launched a few days ago with several hard-hitting posts about the deplorable state of indigent defense in the State of Georgia and the abyssmal state of death penalty defense in the State.

I will look forward to reading Mr. Bright’s new blog and hope that you will add Second Class Justice to your RSS feed. What he says is relevant to our justice system in Georgia.

 

Why Appellate Judges Should be Appointed and Not Elected

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at the New York Times website is disturbing. She cites a recent Pew Research Center poll where people were asked the current chief justice of the United States. To make the result even more disquiting, the test was multiple choice. And here were the choices:

  1. John Roberts
  2. Thurgood Marshall
  3. John Paul Stevens
  4. Harry Reid

53% of those polled had no idea. 28% chose John Roberts. Thurgood Marshall came in second. That is the result from a poll where the alternatives to Roberts were fairly ridiculous. What’s more, that is the result of a poll involving the United States Supreme Court, which is ever in the public eye.

Now, let’s think about the current election for the Georgia Court of Appeals. Unless you work in the legal profession, have a case where an appeal is pending or is likely, or are a total news hound, you don’t hear much about the Court of Appeals. Yet, when you vote in November, you will have your choice of six possible candidates. The average voter will know as much about those candidates as I know about the choices for public service commission (I vote against anyone, by the way, who has a nickname that makes it onto the ballot in quotation marks. If you go by “buddy” or “skeeter” on the ballot, I’m not voting for you. The PSC race seems to attract people with nicknames)

Often, friends and family will ask me whom I would recommend for appellate seats and choices for other contested judicial elections. Perhaps others in Georgia ask lawyer friends to recommend a choice. But many will not.

Yet, the office of judge is such an important one and hopefully will continue to be in Georgia. Here is the point where I could switch to Public Service Announcement mode and talk about the need for voters to refrain from voting in races where they do not understand who the candidates are. But, instead, I am going to sound undemocratic and maybe snobby. People aren’t going to suddenly start researching judicial candidates.

Which is why I don’t think these decisions should be made by voters. At least initially. I believe an appointment system for open seats and perhaps either a retention election or an election against an incumbent after terms of 10-15 years would be best.

The current system is, at best, a crap shoot and at worst, favors people who have the good fortune of having a name beginning with the letter “A.” That person appears at the top of the ballot and has a big advantage in an election with multiple candidates.

A few years ago, John Grisham wrote a novel about a contested appellate judicial election where some powerful interests group chose a candidate for office. The groups then poured money into the election and ran it the way a candidacy for a higher profile office would be run. They got their guy elected easily.

That fictional story could easily become reality with candidates making “pledges” about what they will do when they get on the bench. Incumbent judges who follow the Constitution into unpopular places could also potentially come under fire.

That is, if the electorate pays attention.

Supreme Court of Georgia Grants Cert. Petitions in Three Criminal Cases

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The Supreme Court of Georgia is back in full swing. The Court has already heard oral argument in several sessions. Yesterday, the Court granted certiorari petitions on three criminal cases. Each case has important implications for the criminal defense bar. While I am not entirely thrilled with some of the decisions the Court has made recently in criminal cases, this Court’s level of engagement has been quite intense, and the writing has been good. The odd thing is that, while I obviously do not favor pro-prosecution decisions, I have always had a secret enjoyment of conservative judicial writing. Scalia opinions, for instance, great to read. I also root for the bad guy in movies.

I just happen to think those opinions are more fun to read as dissents. On the bright side, an engaged court perhaps seems more relevant to the other two branches of government in Georgia. In recent years, it seems like the other two branches of government would like to be the only two branches of government.

So, here is a summary of the three certs granted by the Court this week:

Read more

What I Learned from Supreme Court Information Officer Jane Hansen This Week

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The August break for the Supreme Court of Georgia is over. The Court is back in full swing next week with two days of oral argument to be followed by more argument the week after next. Earlier this week,famed convicted murderer Lynn Turner was found dead in her cell at Metro State Prison. What do these two events have in common? Georgia Supreme Court Public Information Officer Jance Hansen has reported on them both.

My ritual for Oral Argument at the Supreme Court of Georgia always include picking up on argument day and reviewing on the internet the fantastic case summaries that Ms. Hansen’s office provides. The summaries let me know who else is there and that kind of cases are going to be argued that day. I quickly figure out whether I want to go into the courtroom watch the cases before mine or stay in the lawyer’s lounge and monitor my turn in line from there. Invariably, the summaries make me want to watch them all, even the real estate and will contest cases.

The other thing I like about Ms. Hansen’s summaries is that she manages to make every case sound close and interesting. Every case is high drama in those summaries. Even when I am there with less than high hopes, those summaries make me feel like the case is close.

Back when Lynn Turner was on trial for the poisoning deaths of her husband and former boyfriend, Ms. Hansen covered those trial for The Atlanta Journal-Constituion. In the wake of her sudden death (cause unknown — toxicology tests pending), Ms. Hansen was interviewed by the AJC to recall her days covering Ms. Turner’s criminal trials.

Once again, she showed her command of the basic with her same open mind, remembering what it was like to consider the possibility of a defense verdict in both cases. She said:

I never presumed she was guilty or that she was going to be convicted. I always believed maybe the jury would hear something I didn’t know. Even when I talked to other reporters and they said, “you know she’s guilty,” I always presumed there might be something that would prove her innocence.

In this statement, I hear the voice of the person who writes those case summaries. Of course, she reports that Ms. Turner once offered her a piece of gum during a break at trial. And there we learned the limits of her open mind. She opted not to chew the gum.

What’s my point? Are you knee deep in a case that feels hopeless? Have you already made up your mind that you have a losing position but you’re headed into a trial or an appeal because your client insists or because there’s no offer on the table? Maybe it’s time to channel your inner Jane Hansen. Sit down and pretend you are writing a press release that conveys the story of both sides with just the facts. Are there two competing stories with a result still up in the air?

Maybe when you write it and read it, you’ll realize that it’s closer than you think. Jane Hansen does it with every case that’s argued, and they all look close on paper.

Georgia Court of Appeals to Tack on “Convenience Fee” for E-filing

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Yesterday, I E-filed two briefs in the Georgia Court of Appeals. At the log in screen I was greeted by a message from the clerk’s office indicating that they are going to tack on a $15.00 “convenience fee” for every case you e-file in the Georgia Court of Appeals, effective September 6.

The explanation offered is that the increase in the filing fee from $80 to $300 in 2009 has resulted in an increase in the “cost of processing the transaction charged by the credit card companies.” They go on to explain that the cost is still cheaper than paying a courier or shipping overnight. I love the honest acknowledgement that lawyers who practice before the Georgia Court of Appeals wait until the last minute.

I’m not mad at the Court (and it really wouldn’t matter if I were.). Submitting something the old fashioned way is a pain in the briefs. The old fashioned way entails buying those backings that you only see when you are sending off a brief or on Law and Order when Jack McCoy gets served with a motion to suppress by this week’s guest actor filling in as this the slimy clueless defense attorney.You don’t have to buy those things anymore, and Law and Order can have the rest of them as far as I am concerned.

Filing the old fashioned way also means spreading a bunch of copies out all over the place and having the staple jam as you try to staple the little packets together. Then you have to use the right ninja force to try to get the next staple to go through while covering up the old staple hole. So, $15 is worth the “convenience.”

When you e-file, you only have to print out the copy for the DA because those guys largely don’t e-file or even email for that matter. But still, e-filing makes things easier.

But I can’t help but notice that criminal appellate attorneys are bearing the burden for the civil bar’s fee increase. Our filings fees are still $80. Why are we paying an increased convenience fee? Also, aren’t we subsidizing the Court’s convenience also. After all, the Court does not have to administer the handling of so much paper as the files are maintained and moved around from judge to judge.

The sad part of all of this is that the judiciary could never explain to the legislature that it should finance e-filing because the amount of money spent in increased credit card fees is more than saved in administrative costs. Such conversation would be lost on the party in power in Georgia, most of whom would like Georgia to have only two branches of government anyway.

Still, it’s $15 worth paying to help yourself and the Court to go paperless, but not with a smile.

GPDSC is Getting a Lawyer to Investigate Itself

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R. Robin McDonald is on a roll. She reports in the Fulton Daily Report’s ATLAW Blog that The Georgia Public Defender Standards Council has retained the previous president of the State Bar of Georgia “to investigate whether an affair between former Griffin Superior Court Judge Paschal English and Kim Cornwell, a Griffin Circuit public defender, compromised any of Cornwell’s cases that were adjudicated by English.” Bill Rankin, of the Atlanta Journal Constitution reports, “there are as many as 450 cases in question.”

According to Mack Crawford, the outgoing Director of GPDSC and incoming replacement for one of the two defrocked Superior Court Judges, hired former president Cavan because “I felt like it needed to be someone who wasn’t associated with the circuit.” In other words, he wanted someone independent. Ms. McDonald does not report whether Cavan got his money up front. Other lawyers retained by GPDSC have found that the agency doesn’t always pay up or arbitrarily cuts the bill.

It is quite the development.

So, just to make sure I understand this, it might be a good idea to parse it out. GPDSC, an agency that lacks sufficient funding to provide lawyers to many Georgians, an agency that was just sued for letting indigent appellants languish in jail without a lawyer, and an agency that refuses to pay appointed death penalty defenders, has hired the former president of the Georgia Bar as its attorney. Its own attorney is now going to bill some hours to the agency to determine whether several years worth of cases that one of its own public defenders handled should be re-opened. If they are to be re-opened, GPDSC’s “independent” counsel will say so, and GPDSC will then be responsible for paying to represent these defendants again. Oh, and if GPDSC’s lawyer finds out that cases were compromised by its public defender, it will self-report and open itself to civil exposure in malpractice and maybe a civil rights suit — perhaps even a class action. And, as a coincidental aside, the director that hired Mr. Cavan is an incoming Superior Court Judge in the Judicial Circuit where the investigation will take place.

And this, Mr. Crawford, explains, is an independent investigation. So, if I hire a lawyer to perform a task, have I retained someone who is independent of me? I thought that I was the legal representative of my clients for all these years.

What is Mr. Cavan’s assignment as the agency’s new lawyer? It is “to look at the situation and report back to the chairman of the [Standards] council as to how or what if the council needs to take any action of any kind.”

I know that only the government can gamble legally in Georgia. But does anyone want to place a friendly wager about what the answer to that question will be?

 

Second Song About People Who Need an Appeals Lawyer

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Last week’s song was about a guy moments away from the ultimate penalty. This week’s song is about a man with some interesting multi-jurisdictional issues whose central crime is “borrowing” a car. But he also awaits trial in California, it appears. No appeal here, necessarily, but perhaps it might be good to work out some concurrent time in Bakersfield and maybe a sentence modification or parole packet in Tennessee.

 

The real crime is that not enough people appreciate John Hiatt as a songwriter and as a singer.

Enjoy the weekend.

21 Judges Disciplined by Georgia’s Star Chamber, the JQC

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Robin McDonald’s article poses the question of why the Georgia’s Judicial Qualifications Commission has zapped so many judges this year. The simple answer is that they deserved it. But, read a little more, and the story is pretty disturbing.  While the commission has taken out some judges who had it coming, I can’t say that its Star Chamber structure is exactly a good American idea. It’s also a little disappointing that it takes a Georgia judge actually getting indicted or acting like a character on Mad Men to get him removed, where plain old rudeness, unfairness, and reprehensible conduct on the bench has been ignored.

Put another way, it seems like it matters more to the JQC what a judge does in chambers with his zipper down than his conduct on the bench with his robe on and his zipper (presumably) up.

 

Take Caldwell

Seems Caldwell had a penchant for dirty texting and crude Georgia game tailgating behavior. And there was so much more. So, it appears that someone from the Star Chamber payed him a visit and he scrawled out a letter to the governor resigning his position.

If you think that was bad, you should have seen him in court. He was rude to defense attorneys, had a tendency to swivel his chair around and let you know he wasn’t listening when you spoke, didn’t rule on objections (other than to say “okay” or “I note your objection”). He once told me “if you want to argue, I guess I can’t stop you.”). His court was not a place you looked forward to going because you weren’t going to be treated professionally, particulalry if you weren’t the State. He would yell at attorneys appearing before him. He’d make it a point to embarrass you if he could.

Had I complained to JQC, they would have thrown the Complaint in the trash. It’s what happens off the bench that counts.

 

Enter The Star Chamber

JQC Chair, Benjamin Easterlin said that “I would not necessarily reach the conclusion that we have a bunch of bad judges out there based on the recent flurry,” and neither is it “a matter of us ratcheting up any investigative efforts.”

But I bet the numbers have always been high. We also have a governor in office who’s not a big fan of the judiciary who has gotten the opportunity to appoint a bunch of judges. Those things, I am sure Mr. Easterlin would explain, are coincidental.

Of course, we’re never really going to know what’s going on with JQC. Since 2008, only six judges have ever been publicly charged. It’s long-standing practice is to squeeze the judge to get a resignation, or in Easterlin’s parlance, to “give the judge an opportunity to resign.”

When asked about whether the public had the right to be informed about the Commission’s actions, Mr. Easterlin said that such things are just gossipy: “I’m not sure what the public benefits from knowing that somebody did something bad.”

They are serious about the smoke-filled room thing. If you complain to the JQC and tell anybody about your complaint, you can be held in contempt for talking about it. Gerald Weber, former director of the ACLU in Georgia, sued the JQC on behalf of a jury foreman who had complained about a judge who fell asleep during a trial. The JQC fought that suit vigorously.

The other problem with squeezing judgees into retirement like that is that it presumes that the JQC is right and deprives the public of knowledge of misdonduct and parties who might have been harmed of their right to know.

I hate it, even if it got some people who deserved it.

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