Re-Examining Dick Donovan’s Rant

/by

Over at Fault Lines, Andrew Fleischman has an article on Paulding DA Dick Donovan’s Facebook post. Jim Galloway at the Atlanta Journal noticed it, too. The post was a “eulogy for white Judeo-Christian men.” It was really quite jarring to read, particularly by a person who has extraordinary power to prosecute people and even seek the death penalty in certain cases. A day ago, I would have just thought it the demise of his career at best or mere anachronistic rant speak at worst. Then the election results came in, and I see that he’s very much mainstream. Particularly here in Georgia. And his eulogy may have been a bit premature. Turns out that the “white guys” and all he envision in conjuring such an identity, are alive and well.

I, it turns out, am the outlier.

Carry on, Mr. Donovan. Carry on.

The State Bar of GA is the Paul Ryan of the JQC Amendment

/by

In the most recent episode of This American Life, the show includes a discussion of the amendment on the ballot to reconstitute the JQC as a creature of the legislature and with the State Bar of Georgia taken out of the appointment process altogether. If you are undecided on this amendment, the segment is worth your time.

  • The episode begins with some background on how the JQC did its business with Richard Hyde as its chief investigator. He investigated complaints thoroughly. And when he was finished, he approached the subject of his investigation with his findings. As a case in point, the show details how he confronted Judge (and now co-sponsor of the JQC bill) Johnnie Caldwell with an incriminating tape to secure his swift resignation.
  • Then the show discusses the timeline for the bill (HR1113). The resolution seemed destined to fail at first. But late in the session, the speaker made it clear that either it would pass or no other legislation would.
  • Finally, a deal was cut for a democratic representative to cross party lines and vote for it. In exchange, the house voted to create a city (!) as a favor to the representative.
  • Part of the background was a long-standing grudge held by the speaker toward the State Bar of Georgia.

The story does give the other side. In particular, it discusses how the JQC treated two judges under investigation perhaps unfairly. But finally the story poses the question of whether such a radical overhaul was necessary to fix some of the procedural problems with the JQC.

The show ends with the reporter noting that this bill and the way it came about is not democracy at its finest but is likely how democracy works. Therein lies the problem. Voters are not likely to have a clue what the JQC is or what this amendment provides. So, passage is likely. I’ve told everybody I know. And when I tell the background, I see the lightbulb turn on.

But my microphone is only so loud. And the State Bar of Georgia is to this bill as Paul Ryan is to Donald Trump. The State Bar has compromised its integrity on this one, opting not to take stand on a bill that is clearly bad for judicial ethics and which removes its say on who the commissioners are.

If there is any hope in defeating this amendment, it will come with just telling the story to as many people as possible before they vote. I suppose that the people get the government we deserve.

In a Difficult Political Year, Raise the Bar

/by

The lawyer’s job gets more difficult in proportion to the political climate in which we practice. And I cannot imagine a more difficult one than the spectacle of an election that we are all enduring. I have been saddened, anxious, and have been tempted to grow even more cynical. I have had my intelligence insulted and have been dumbfounded. It is only a matter of time before you see some reflection of the climate unfold itself in the tone of the briefs you read or the climate of the courtroom. And it may be me or you who are lowering the bar if we are not careful.

That is, unless you choose to raise the level of discourse and the level of compassion. I personally believe that the court system is the small engine that keeps democracy going. No matter what the other branches do, there is something in our courts that connects us to an ideal that predates our young country. And through many events in my professional life, the justice system is the elastic that always seems to stretch but not break. Alas, it is far from perfect in many particular instances. But the core identity of it is something in which I place a great deal of faith.

In the weeks ahead, no matter what you see on the news, make the choice not to internalize the level of discourse you see. Reach out to a client or a client’s family with compassion. Take a colleague, particularly a colleague on the other side of a case, to lunch. Raise your professionalism in court another notch. Do great things in your practice. When you do those things, you help this part of democracy remain connected to some higher sense of purpose that appears to be eluding us in democracy’s other components.

We are Having the Wrong Debate

/by

A good number of people in my Facebook feed are passionate about gun control right now. And it appears that I have friends or “friends” on both sides of the debate. It would be nice if this passion would transfer to other amendments such as the Fourth or the First.

Alas, much of it is painful to read. As, Facebook does not exactly lend itself to intelligent discussion of any serious issue — its as if the whole thing is system of bumper stickers in real time. I’ll lay out some things that make it tough and explains why this development in the news has led to more “unfollows” than even the election had to this point.

  • The discussion is a policy debate masquerading as a Constitutional debate. The government’s ability to regulate the purchase, manufacture, and possession of firearms and ammunition is not unfettered, but it is far-reaching. The Supreme Court of the United States said so in Heller. I have written about Heller in a past post. Most of the big questions related to the second amendment are settled as a matter of constitutional law. The question is not whether a ban on certain types of rifles or more rigorous background checks is constitutional. The real question is whether such policies ought to exist as a matter of law. Constitutional law should likely never be debated by memes on social media. But here, the whole exercise is a bit of a detour even if memes were intellectually a good idea. If only Facebook had a way to test its users on whether they have read Heller before allowing them to write “Second Amendment” in a post.
  • Nobody Seems to Know What an “Assault Weapon” is or What Kinds of Weapons are More Dangerous than Others. The AR-15 is at the center of the controversy. But perhaps this part of the debate is misplaced as well. In a closed fire setting such as a nightclub, a handgun seems a more deadly prospect than an AR-15. In close quarters, a handgun would be more difficult to grab versus a rifle. And a rifle offers little by way of an advantage where the target is close. In reality a handgun can be fired rapidly, can be concealed, and is more difficult to take from an assailant. Yet, much of the talk is about banning automatic or semiautomatic rifles. Why is there no discussion of handguns? It is likely because handguns aren’t as visually powerful as rifles and because more people are likely to have handguns than AR-15s.
  • Religious Fundamentalism is the Issue. More dangerous than the weapon used is the ideology of the man who held the weapon. Sam Harris, in his most recent podcast, notes that much of the Obama administration’s reaction to the nightclub shooting would not make sense if the weapon of choice had been a pressure cooker bomb similar to the one used in the Boston terrorist attack. Religious fundamentalism is the real problem. In its Islamic form, it has led to terrorist attacks around the world. In its Christian form, it has led to terrorist attacks around the world and to some some fairly discriminatory recent legislation.

In the political discussion around the Orlando nightclub shooting, we are missing an opportunity to have a First Amendment debate and are missing the opportunity to take a sobering look at the real cost of religious fundamentalism. The second amendment piece is largely settled.

A Radical Fundamentalist By Any Other Name is Still a Radical Fundamentalist

/by

Since the Orlando Night Club shooting, Trump and others have criticized the President for not using the magic words “Radical Islam” in discussion of the news. According to NBC News:

When Donald Trump blasted President Obama for failing to make reference to Islam in connection with the Orlando nightclub massacre, the GOP’s presumptive presidential nominee was renewing a longstanding criticism of the White House’s carefully calibrated rhetoric about terrorism.

Obama “disgracefully refused to even say the words ‘Radical Islam’,” Trump said in a statement Sunday. “For that reason alone, he should step down. If Hillary Clinton, after this attack, still cannot say the two words ‘Radical Islam’ she should get out of this race for the Presidency.”

Trump repeated his criticism on TODAY Monday morning, saying Obama was “not addressing the issue, he’s not calling it what it is.”

Although the Orlando gunman pledged allegiance to ISIS, Obama didn’t mention Islam in his remarks about the mass shooting Sunday. In televised remarks at the White House Monday, Obama said the killer had been influenced by “extremist ideology,” but the president did not use the modifier “Islamic.”

This is an interesting argument. Obama uses the word “extremist” instead of referencing “radical Islam,” and the price he should pay is resignation or impeachment. He no longer gets to be President for failing to use those exact words.

And yet neither Mr. Trump nor anybody else asked the President to use similar terms to describe radical militant Christian terrorist Robert Lewis Dear when he acted from motives of, well radical militant Christianity. Mr. Dear went into a Planned Parenthood clinic last Fall where he killed 3 people, including law enforcement. He wounded 9 more in an intensive multi-hour standoff. His motives were purely religious in nature. He called himself a “warrior for the babies.”

The New York Times profile describes his religious views in depth.

“Turn to JESUS or burn in hell,” he wrote on one site on Oct. 7, 2005. “WAKE UP SINNERS U CANT SAVE YOURSELF U WILL DIE AN WORMS SHALL EAT YOUR FLESH, NOW YOUR SOUL IS GOING SOMEWHERE.”

A number of people who knew Mr. Dear said he was a staunch abortion opponent. Ms. Micheau, 60, said in a brief interview Tuesday that late in her marriage to Mr. Dear, he told her that he had put glue in the locks of a Planned Parenthood location in Charleston.

“He was very proud of himself that he’d gone over and jammed up their locks with glue so that they couldn’t get in,” she said.

And, similar to accounts of many Islamic fundamentalists who killed for their faith, he saw holy martyrdom as a goal. A person who knew him said, “she can’t believe he was capable of such things, and I think that’s what’s upsetting her most,” the relative said about Ms. Bragg. “He believed he was doing God’s will, and I’m sure he probably wanted to die in the process of carrying out what I’m sure he thought was right.”

Yet, to read news accounts describing what Mr. Dear did, his actions are seldom described as terrorism (though he certainly is a terrorist). He is described as a mentally ill man who committed a criminal act (which, it appears, he is and did).

But one must look hard to find any description of him as a radical militant Christian. In fact, when pressed, Mr. Trump would not use the words “radical militant Christian.” He said on Meet the Press:

“I think it’s terrible. I mean, terrible. It’s more of the same. And I think it’s a terrible thing. He’s a maniac,” Trump said on NBC’s “Meet the Press.”

“I think he’s a sick person,” he added. “And I think he was probably a person ready to go. We don’t even know the purpose. I mean, he hasn’t come out, to the best of my knowledge, with a statement as to why it happened to be at that location.”

He still has refused to acknowledge that the man who did this awful thing was radical, a Christian, or even a terrorist for that matter. Maybe he should drop out of the race.

Fundamentalism is fundamentalism no matter what the name for God is at the center of it all. And generally if a person is shooting up or blowing up a large group of people, you can bet that he  thinks that his scripture calls for it or God has requested that he do it. When fundamentalist Christians kill for their views, the action is deemed a criminal act by a crazy person. And there seems to be a very nuanced conversation calling into question whether the person was really a Christian, since the New Testament would not really call for actions such as theirs. Yet, when a Muslim commits an act for religious motives, the person is clearly a terrorist acting out the tenets of his faith. And any condemnation of the person’s actions that does not bear witness to this truth is grounds for impeachment.

If one compares The Bible to the Quran, the Bible is a much more violent document, by far. So, perhaps, if we are to ban any group on the basis of religion, we should keep a close eye on Christians (which I am), particularly the Fundamentalists among us. Yet, I don’t expect such a call to come from the presumptive Republican nominee since Christian Fundamentalists are such a big part of the Republican base.

Roderick K. Bridges, God’s Choice for State Court

/by
Roderick Bridges. Handout Photo 3-4-2016

Roderick Bridges. Handout Photo 3-4-2016

Under Article Six, Section Three of the United States Constitution, “no religious test shall ever be required as a qualification to any office or public trust under the United States.” The Religious Tests Clause made good sense when it was passed. The Framers had in mind various Test Acts that were a part of British and colonial political life, whose purpose was to exclude from office anyone not a member of the Anglican Church. The required oaths meant that government officials had to swear that the monarch of England was the head of the church. In Silverman v. Campbell, 486 S.E.2d 1 (1997), the South Carolina Supreme Court held that a provision in the South Carolina Constitution providing that “[n]o person who denies the existence of a Supreme Being shall hold office under this Constitution,” was not enforceable.

This all makes good sense. It should not matter if a State Court Judge is a Druid, a Jew, an atheist, or a Christian. A judge should apply the law to the facts and reach a decision as dictated by the Constitution and various statutes. I thought this was all settled back in the eighteenth century when Charles Pinckney, from South Carolina (South Carolina!) proposed the Religious Tests Clause at the Constitutional Convention. Well, yes and no.

It is perfectly legal for judicial candidates to use religion to pander to their heart’s content, even if that campaign technique violates the spirit, if not the letter, of the religious tests clause.

In a DeKalb County Judicial Election,Roderick Bridges is making much of the fact that he is a Christian while the incumbent, Judge Dax Lopez, is a Jew. Mr. Bridges is taking some heat for this campaign’s tactic (from those liberal media elite media sources I peruse). Of course, Mr. Bridges is perhaps uniquely entitled to use religion in his campaign, since according to his website, he actually has the endorsement of “Jesus Christ, Lord and Savior”.

In some sense, there might be some value in having more judges like Roderick Bridges. As an advocate who sometimes is pressed into making an argument with little support in precedent, it might be good to preface my argument, with “Your Honor, let me bless you with an argument that the Lord has laid upon my heart.” Never mind the what the Supreme Court says, how could a judge endorsed by God possibly reject an argument that was dictated by his most powerful backer? Surely, no person would claim that God had authored something that that person actually thought up — not to win a case or something like an election.

In this election year, in this State, I am not at all shocked that such a campaign tactic is being used. I am actually astounded that it doesn’t happen more. The problem with this particular tactic is that Mr. Bridges has tried it in a county where many of the voters read. If he brings me on as a campaign advisor, I could direct him to a handful of counties where he can use his brochures as part of a pathway to a successful campaign. And I can give him my list of Facebook friends I have unfollowed to elicit campaign contributions.

Much Belated Thoughts on Changes to Georgia’s JQC

/by

I meant to write a post on this topic at the end of the legislative session. Very late in the game, the Georgia General Assembly radically changed Georgia’s Judicial Qualifications Commission, the ethics watchdog agency for Georgia judges. Shortly after these changes were made, the head of the JQC very publicly resigned.

I have mixed feelings about the changes. And, full disclosure, I was amicus counsel on a fairly public JQC matter last summer. At times, the JQC acted a bit heavy-handed in they way they dealt with some judges. And, as I’ve commented here in the past, the agency had a certain Star Chamber quality to it.

However, they did fine work over the years. And, as a result of their stronger years, there are whole circuits that are not only more pleasant places to be, the Georgia bench as a whole seems somehow more advanced than it was when I first started practicing. I hope that we are not returning to what the bench was like back in the early 2000’s.

And I wish that the solution had been something other than gutting it and politicizing its process. Ideally, its work would have been done more in the open. It remains to be seen where the JQC is headed. But I don’t think that matters look good.

Removing the Stigma When You’ve Done Your Time

/by

Last week, I was able to help a young man stay in the country rather than be deported to a land where he has few ties. The young man is officially a citizen of a foreign country. But he is practically an American, having grown up in Georgia and with all of his family here. Several months ago, he was stopped in a small Georgia town by a local police officer. The officer found marijuana in his car. And my client was charged with a felony. He hired a lawyer who incorrectly advised him that he could enter a plea under Georgia’s First Offender Act and he would not be deported. The advice was wrong. And when my client hired me, he was one roadblock or stop sign violation away from detention and deportation. I filed a habeas corpus petition and began a series of meetings with the prosecutor. The habeas was granted and we ultimately arrived at a disposition that will likely work for him, according to his immigration lawyer.

This case is a reminder of what it means to be convicted of a crime. These cases are about far more than repaying your debt to society. A criminal conviction is a debt on which many default. In today’s New York Times, there is an editorial that discusses labels and the harm they do to citizens who have been convicted of crimes. Labels like “felon” or “ex-con” last long after the sentence is complete. And the potential collateral consequences of a conviction, even for some misdemeanors, is staggering.

In my case, it took my efforts, the help of an immigration lawyer,  a reasonable prosecutor, and a merciful judge to bLunt the impact on a young man and his family of a youthful mistake.

Yo Gotti: Making the Henry County Judiciary Famous

/by

Rapper, YoGotti, recently released a video shot in a Henry County, Georgia, courtroom and throughout the courthouse. Henry County government officials are not amused. An official is on the record saying that the video, featuring a small claims lawsuit involving a hair weave that went up in flames, does not accurately represent “Henry County values.” Never in the history of statements have I ever wanted to hear a speaker unpack a statement more than this one. How so, Henry County official?

Yo Gotti did capture accurately the racial composition of a Henry County trial jury though. Well done, Yo Gotti. Well done!

How Not to Solicit Campaign Contributions

/by

I’m all for democracy, but election season is not fun for lawyers. This year, unlike any other, I  have been spammed by lawyers running for office:

  • whom I do not know and don’t think I’ve ever met;
  • In counties where I seldom practice; and
  • who delivered a prepared telemarketer-style speech when they get me on the phone.

It’s tricky to deal with someone who is running for DA, Solicitor, or Judge because the person hitting you up for money may one day sit in judgment over your case or act as prosecutor to your client. It is even trickier when support for this candidate will be recorded as a matter of record and available if the person you support loses that bid. Then the competitor will see you as a person who was against her. It all feels strangely akin to a protection racket.

Even worse is the way I’m being pitched this year. And it’s gone down like this. I get a message from my assistant that Mr. Smith with the X County District Attorney’s office would like for me to call him. The person was vague about what the call was about. Or I get that Judge Jones would like for me to give him a call. The person does not have a name that I immediately recognize, and I’m pretty sure that we don’t have a case together. Again, it’s vague. But who wouldn’t call a prosecutor or judge back?  Sometimes DAs or judges call because they are referring a case or because they want to brainstorm a legal issue. So, I call back. In no less than 5 times in the past month, I’ve called the person only to get solicited for a campaign contribution.

I’m chairing one judicial campaign. In that instance, the candidate is someone I believe in and whom I’ve known for a long time. We aren’t spamming people.

So, here’s my statement of policy. If you are running for judge or to be an elected prosecutor and I don’t know you, you need to announce the actual reason for your call when you leave a message for me. If you don’t, then I will assume that you play fast and loose with the truth and are unsuitable for the office you are seeking. I think you are misusing your current office to get me on the phone to create a situation where I donate money to alleviate an awkward social situation that you have created. If you get me on the phone, I’ll just let it be awkward. I’ll exit the conversation quickly, and you won’t hear back from me.

ADDRESS

199 W Jefferson St.
Madison, GA 30650

PHONE

678-610-6624

EMAIL

tori@scottkeylaw.com