Atlanta Mayor’s Office Supplies Budgeted More Money than Public Defender

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Donovan X. Ramsey at The Public Square, a Blog on Atlanta Politics and News, reports that the City of Atlanta’s Public Defender’s Office receives less money for indigent defense than the Atlanta Mayor’s Office receives for office supplies.

The Atlanta PD’s office is allocated about $1.1 million dollars for use in defending a projected 16,500 cases to be divided among 13 full-time employees, only 9 of whom are attorneys. I went to law school, but even I can see that this math is troubling, particularly when compared to what the ABA guidelines are for a public defender’s caseload. Mr. Ramsey quotes the recommendations from National Advisory Commission on Criminal Justice Standards and Goals on its advised caseload for public defenders as: 150 felonies, 400 misdemeanors, 200 juvenile court cases, 200 mental health cases, or 25 appeals annually.

Mr. Ramsey makes one “flaw” in his reporting. He aggregates the number to 975 cases. Actually, the guidelines suggest a total cases load per category not an aggregate caseload of all types of cases. Still, even if one were to allow for an aggregate caseload, the numbers for Atlanta are pretty messed up.

There is pathetically little budgeted beyond salary to the office either. The margin between what is allocated for salary — $1,183,058 — and what is allocated for other expenses — $1,137,317 — is razor thin. So, lawyers can’t really do much with the cases they have such as order criminal histories, hire expert witnesses, investigate cases, or issue subpoenas.

Adam Liptak in the New York Times, wrote an article criticizing the abyssal state of indigent defense for death penalty cases in Georgia. It turns out that Georgia’s 3rd World indigent system exists for the garden variety misdemeanor / felony lite case as well. Yet, the Constitution applies in Atlanta since Georgia was on the losing team in the Civil War.

It is a good thing that client autonomy is valued in the 6th Amendment because it appears that Georgia’s indigent defendants are on their own.

But the Atlanta Mayor will not go without staplers.

Client Autonomy on the Front Lines as a Georgia Appeals Lawyer

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From Bob Mabry at his blog, Courts and Writing, I learned about an article by University of Georgia law professor Erica J Hashimoto in the latest issue of the Boston University Law Review. According to Professor Hashimoto, the criminal client should have a complete right to represent himself at trial and on appeal. Also, when a client has a lawyer by appointment or whom he has retained, Hashimoto argues that the client should control all matters in the case including which defense to choose, which witnesses to call, which errors to enumerate on appeal, and how the appellate brief should be written. I agree with the professor generally. The client’s autonomy is important. Criminal counsel should communicate regularly and consider the client’s views. However, I cannot go so far as to agree with the specifics of her argument. The client should not have the power to control which issues are chosen for appeal or how the appellate brief should be structured or worded.

Professor Hashimoto’s Argument

The general thrust of the article is that courts since Faretta v. California have taken an increasingly paternalistic view toward the client in a way that has undermined the client’s autonomy in violation of the Sixth Amendment. Hashimoto then proposes that courts return to regime where the client controls all issues in the case, with the advice and assistance of counsel. She argues that, when the 6th Amendment was drafted, few criminal defendants had lawyers, and that, when they did, the client called the shots on all major trial and appellate issues. So, the framers never envisioned a legal system where the acceptance of a lawyer meant a waiver of the right to control the flow of the case.

Next she argues that the plain language of the 6th Amendment envisions that the client can call the shots on everything with the assistance of counsel.

Finally, she points out that control of the trial is the last major opportunity the accused has to control his destiny before going to prison and ceding all control over day to day activities to prison officials.

While there are some things I like about this article, there are some things about it which, if true, would make it difficult to professionally represent clients on appeal.

 

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11th Circuit: Lawsuit Against Clayton County, GA DA Can Move Forward

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Bill Rankin at the AJC reports that the 11th Circuit Court of Appeals has reversed a Federal District Court’s dismissal against former Clayton County District Attorney for an alleged violation of his First Amendment right to Free Speech. This is the latest chapter in what was a debacle of a tenure for. Mrs. Scott as the District Attorney in Clayton County, Georgia. Mrs. Scott and husband Lee Scott were both elected to DA and Chair of the Board of Commissioners respectively. Both lost overwhelmingly in 2008. Their tenure in Clayton County accompanied a wholesale change in leadership in that county, including the election of Victor Hill as Sheriff, who promptly fired many sheriff’s department employees. As those employees left the building, Mr. Hill posted snipers on the roof of the law enforcement complex. When she began serving as DA, she had never tried a case to a jury. Mr. Hill’s time in office led to Federal suits as well.

In this particular instance, Ms. Scott’s chief investigator Earl Randall announced that he wanted to run against Ms. Scott’s husband, Lee Scott, for Chair of the Board of Commissioners. Mr. Scott reportedly pounded his fists on a table when he heard the news and demanded that his wife fire Mr. Randall and vowed to “destroy” him. Yes, sometimes the truth is stranger than third-rate melodrama. I’m sure that, when the lawsuit goes forward, we will find out that he exclaimed, “bwahahaha” shortly afterward.

Mr. Randall was fired, and he filed suit againt Ms. Scott individually, in her official capacity as DA, and against the current DA in her official capacity.

The District Court dismissed the suit, reasoning that there is not First Amendment right to campaign for election, that Ms. Scott was protected by qualified immunity, and that the Complaint did not satisfy pleading requirements. Then the case went to the 11th Circuit, and the plot thickened.

 

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Honorable Debra Bernes Dies at 54

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The Honorable Debra Bernes has died of cancer at the age of 54. Bill Rankin at the Atlanta Journal Constitution has posted an article on her passing and her career. Judge Bernes will be remembered for many things including her illustrious, albeit too short career on the Georgia Court of Appeals.

Before beginning her service on the Georgia Court of Appeals, Judge Bernes was a long time appellate attorney with the Cobb County District Attorney’s Office. After a brief stint in private practice as an appellate lawyer, she ran for an open seat on the Georgia Court of Appeals.

Judge Bernes was elected to her seat after defeating Howard Mead, a candidate who greatly outspent her. Judge Bernes ran a grassroots campaign and won through a recount and a blitz of advertising by her opponent. Most importantly, she ran a clean and ethical campaign for judge. She showed that the high road actually works in statewide elections.

I appeared in front of her for argument many times and wrote many more briefs where she was either on the panel or where she wrote the opinion. She was everything an advocate could ever want in a judge, particularly on the appellate bench. She was intelligent, hard-working, and she had a sense of compassion for the people who appeared in front of her. Above all, she treated you like a professional

Judge Bernes ruled against me much more often and she ruled for me, but every opinion was soundly reasoned, thoroughly researched, and reflected her best effort to apply the law as she believed it to be to the facts of the case. In a year of misconduct in Georgia that has given the judicial branch a black eye, she was a shining example of who a judge could and should be.

Aly Palmer with the Fulton Daily report has also posted an obituary.

 

AJC and Politifact Rate Georgia Attorney General Campaign Ad False

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Rob Teilhet’s controversial ad has made state and national news. According to the AJC and PolitiFact, the ad is “false.”  In an interview with done by Andy Peters with the Fulton Daily Report, Mr. Teilhet claims that he is more experienced than candidate Ken Hodges on the issues that matter most to being Attorney General. He also defends the ad.

 

The ad featuring the mother of an unarmed man shot and killed by a Muscogee County law enforcement officer who claims that Hodges did not get an indictment because he “forgot to swear him in, tried to hide the video, and then refused to reopen the case” According to MSNBC, the ad is “tinged with racial implications, as black voters could make up more than 50% of the Democratic electorate for the first time in this race.”  Politifact rates the ad as “false” in a story analyzing it.

 

Claim 1: “The officer got off because prosecutor, Ken Hodges, forgot to swear him in”

At the time that the case was presented to the grand jury witnesses were not required to provide testimony under oath. Teilhet argues that the unsworn nature of the testimony hurt public confidence in the evidence.

 

Claim 2: Hodges tried to hide the video

 

There was no evidence that the video was hidden from the grand jury. Mr. Hodges submitted a brief with the Prosecuting Attorneys Counsel of Georgia and the District Attorneys Association of Georgia against releasing the video to the public before criminal proceedings took place. The video, it appears, was available to the grand jury.

 

Claim 3: Hodges “refused to reopen the case”

 

Mr. Hodges made no recommendation at all to the grand jury and did refuse to convene a second one. The case was reviewed by the Department of Justice for a possible civil rights action, and the DOJ declined to bring a case.

The ad is perhaps misdleading but not, as PolitiFact/AJC reports, false. Prosecutors shape the action of grand jurors. The oft-repeated cliché is that a prosecutor could indict a ham sandwich.

DAs often use the grand jury as a filtering process to dump cases they don’t want to prosecute for whatever reason. DA’s could choose not to present cases at all, but using grand jury as a filter allows them to not bring cases for reasons ranging from the well meaning to the political. While nobody but those who participated in the proceeding will ever really know for sure, the failure to swear in the police officer might provide you a clue about whether Mr. Hodges steered this proceeding in a particular directions. The fact that he was brought on as a special prosecutor tells you that the case was a political hot potato.

What emerges from this story is not a false campaign ad but one with heavy spin. The facts will likely remain forever murky. The good news for Mr. Hodges is that this tape, viewed in a light least favorable to him, will likely make die-hard Republicans love him in the general election if he gets there.

Hodges: Rival Attorney General Candidate is Sleazy

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

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

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

Supreme Court of Georgia Changes Approach to Sentencing After Appeal

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

 

The Key Facts

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

 

The Original Sentence

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

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

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

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

 

Getting Past the Presumption

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

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

 

Meet the New Analysis

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

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

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

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

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

 

More Stuff to Think About

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

Superior Court Judge Says Georgia Indigent Defense is Broken

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

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

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

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

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

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

Campaign for Georgia’s Attorney General Taking Ugly Turn

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

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

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

Grand Jury Investigation Questions Georgia Court Reporter Fees

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

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

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

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

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

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

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Madison, GA 30650

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tori@scottkeylaw.com