News - Scott Key & Associates

Does the Jury Have the Right to Know About Mandatory Minimums?

March 30, 2015/by J. Scott Key

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Dags’s Bricks

Jarvis Taylor was on trial for committing an armed robbery with an air gun. Because his prior criminal history included theft by receiving stolen property, possession of a tool for the commission of a crime, and aggravated assault for his actions during a jail riot, a conviction for the armed robbery would have meant a mandatory sentence of life without the possibility of parole.

Atlanta Judge Wendy Shoob instructed the jury (pdf) that a conviction for the offense would bring a mandatory life sentence without the possibility of parole. The jury ultimately convicted of the lesser included offense of robbery by intimidation. But not before the Fulton County District Attorney moved to recuse the judge from the case and not before the judge refused to grant the State a certificate of immediate review.

When I first read this story in the Fulton Daily Report, my reaction was that the judge made a gutsy and principled move but one with little basis in the law. I held this view until I read the Order. I walked away from the order with the belief that the order is on a firm legal footing. Allow me to provide a brief overview:

Under the Georgia Constitution, “in criminal cases, the defendant shall have a public and speedy trial by jury; and the jury shall be the judges of the law and the facts.” Here, the State objected to an instruction to the jury about sentencing, arguing that the jury is responsible for guilt and innocence and the judge is responsible for sentencing. But, not so fast, said Judge Shoob. With mandatory minimum sentencing, the judge has no real power over the sentence. The sentence and the verdict are inextricably linked to one another. Hence, the jury ought to know the consequence of the verdict.
There is a historical basis for the power of the jury as a check against an overreaching government. Here, Judge Shoob actually cites The Federalist Papers to support a position that the jury has a tradition function to maintain free government. That function includes the right to nullify.
Recent United States Supreme Court decisions have stressed the importance of returning the jury “to appropriate constitutional powers and essential role within the Constitution’s system of checks and balances. Here she goes into recent Sentencing Guidelines Cases that have returned to the jury certain powers with respect to sentencing.
Finally, she reasons that the jury has the right to know about mandatory sentencing. First, “where the Court is bound by the statutory term of imprisonment, the jury essentially determines both the verdict and the sentence.” This last point sound a good bit like her first point. But, here, she references cases from around the country and she weaves two previous point together. “When the prosecution does not use its power carefully and equitably, and the judge is removed form sentencing decisions, the only thing that stands between the individual and the awesome power of the State is the jury system.”

A couple of points. I do not think I’ve ever received an order from a Georgia State or Superior Court judge that quotes The Federalist Papers. Also, the point that under a mandatory minimum regime, the verdict determines the sentence is a powerful and innovative one.

I will leave for another post the idea of prosecutors who use recusal motions when a judge does something that they do not like. It is trend I have noticed around the State lately.

Pro tip: weave Judge Shoob’s Order into motion or request to charge in your next case with a mandatory minimum.

Lawyer Who Let Client Write Brief Faces Sanctions from SCOTUS

March 12, 2015/by J. Scott Key

I just read at Bitter Lawyer and The Lawyerist about a show cause order issued by the United States Supreme Court for the submission of a certiorari petition that was hard to read and which departed significantly from the Supreme Court rules. What happened? The lawyer allowed the client to draft the certiorari petition.

I don’t know the back story, but I can imagine what it is. I don’t assume the lawyer was being lazy. Rather, I imagine that the lawyer was “beaten down” and just gave up. Appellate clients can have strong opinions about what should be included in the brief, what arguments should be raised, and what facts should be emphasized. These views are often reinforced through limitless time with little else to do, the influence of fellow inmates with optimistic views of various statutes and precedent, and access to out of date legal materials. Imagine what it would be like for a conscious patient to have access to a medical library during a surgical procedure and a voice to advise on procedural components as the case unfolds. Or imagine if a passenger in row 15C of a plane had a microphone connected to the pilot’s headset. That’s what criminal appellate practice can be like.

The United States Supreme Court is clear how it should work. The lawyer makes decisions on which issues to raise on appeal, the order in which they should be raised, and even which potentially meritorious issue to leave out. The client has the right to be consulted and to have the client’s input considered. It sounds simple on paper, but it plays out in complicated ways as the appeal progresses and can be a true sense of frustration for the lawyer and likely for the client as well.

If the lawyer was retained, rather than appointed, the client is technically the customer. In that circumstance, it can be easy for the client to imagine the lawyer as a scribe with a law degree, whose job it is to write down, in lawyerly prose and with a lawyer’s signature the arguments the client wants to raise.
If the lawyer was appointed, the client and lawyer may be stuck on this boat together. The judge will be hesitant to support the client’s inclination to represent himself and will not want to appoint a different lawyer. The client will often try to bait the judge into allowing the lawyer off the case to create an appellate issue.
Often, it can be tempting to simply paste the client’s language into the brief as a way of buckling the pressure.

This problem is even more difficult in Georgia. The issue you opt to leave out of your brief can come back to haunt you in a habeas petition. However, if you fold in the wake of pressure to include the client’s pet issues, you are open to attack for failing to exercise professional judgment: “You listened to me. Therefore, you were ineffective.”

The lesson from the recent development in the United States Supreme Court is that you cannot abdicate your responsibility as the appellate lawyer. As tempting as it might get to say, “Okay, since you don’t like my ideas, I’ll just put your stuff in the brief.” If you do, you will be held responsible.

Mandatory Body Cameras on Law Enforcement: Just More of the Same

August 25, 2014/by J. Scott Key

USA Today reports that a petition was submitted to the Obama administration advocating a policy that would require law enforcement to be equipped with a camera to record any interaction with the public. I suppose it would be something akin to a mandatory Google glass at all times for law enforcement. That sounds awfully good on paper. Certainly, the technology exists for law enforcement to audiotape if not video just about everything. However, such policy would not be a cure-all that it would sound like. Law enforcement already have the ability to record any conversation that takes place with a suspect or witness. Anybody with a phone, particularly a smart phone, has the ability to record a conversation practically any time. And many police cars are equipped with a camera that a police officer can manually initiate or which can initiate within seconds of the activation of emergency lights. Most police cars come equipped with a video camera to record interactions with the public after a traffic stop. The backseat of most police cars has recording equipment, and most police officers are equipped with the body might to record any interaction with the public.

And yet, I still encounter situations where law enforcement did not, for one reason or another, record what is reported to be an incriminating interrogation or, in the traffic stop situation, egregious driving behavior. In those situations, the police officer explains that he found himself somehow without the ability to record an event. Or the camera was out for repair. And when the recording equipment was not working so well, law enforcement agents report that my clients really began to incriminate themselves. It strains credulity to believe that there are so many mishaps with recording equipment in criminal investigations. But there it is.

And most of the judges before whom I appear are willing to believe this reported series of unfortunate events with law enforcement and recording technology. So for all of those proponents of body cameras, I offer countless examples from my own practice where the technology was in place but ceased to work somehow at the moment when it was needed the most.

The Tyrannical Weight of Tradition in the Law

June 1, 2014/by J. Scott Key

Cory Doctorow has a post up at Boing Boing about a copyright dispute (of sorts) between the Harvard Law Review and Carl Malamud. Parker Higgins and Sarah Jeong have written a commentary on the whole mess, calling out the Harvard Law Review as a copyright troll:

Of course, far be it from us to call the Harv. L. Rev. a repulsive troll squatting on a small but nonetheless key component of equal access to the law, profiting off a slavish attentiveness to convention instilled in lawyers during law school, much to the detriment of the public. Far be it from us indeed.

Carl Malamud is known for is work to help make the law and essential public documents available to the public. The Harvard Law Review’s lawyer wrote him a cease and desist letter when he posted an HTML version of the Bluebook on his website. Who knew that what is in some courts and in all law reviews a mandatory system of citation in the law was subject to copyright? Should a portion of filing fees in legal pleadings go to the Harvard Law Review? And if Malamud is infringing on copyright in his efforts, what about every law librarian, law professor or CLE speaker who puts together handouts or powerpoint slides to help students and practitioners figure out this ~~Byzantine~~ complex system of citation? In fact, why are we even using the Bluebook in this day and age?

If there is an industry or profession that is less innovative than the law, I am not sure what it is — perhaps primitive Baptists. Ponder these points:

Our whole system of citation to case law is antiquated. For the uninitiated, when lawyers or courts cite to a case in the form of, let’s say Strickland v. Washington, 466 U.S. 668 (1984), they are referring to a book’s volume and page number. To what book are they referring? They are referring to an official dead tree compilation of cases (here, volume 466) and a page number (here page 668). Where might one find these books? Today, virtually nowhere. There may have been a time when many law firms kept a complete set of these volumes in a law library. But now you would be hard pressed to find a law firm with these books. And even in large law firms that may have them, they are probably gathering dust until some crusty partner insists on picking one up. If you see these volumes at all in a law firm, they are there for decoration along with those handsome leather-bound and overpriced case books (themselves antiquated) they sold you in law school. They look quite handsome next to the brass globe and the bankers lamp. Yet, our entire system of citation works by reference to books that neither the writer of the brief nor the reader of the brief owns any longer. And it’s a pain. if you pinpoint cite to a page number within a case, you have to look in the online copy or the printout of the case to find the anachronistic page number to reference it. And the judge who reads your brief and wants to find the page number himself will not look to a page number in the case but will have to go on a similar needle in a haystack search for the page number in his printout because he will likely not have the book in front of hims since he doesn’t own a copy. Surely, there’s a better way.
Even though Georgia’s appellate courts allow you to efile your briefs, they actually charge you a higher filing fee to file online than they do if you file the brief in person the old fashioned way. Though surely efiled briefs are easier for the court to handle.
Speaking of efiling, Georgia has over 150 counties, each with their own “traditions” for what you do when you file papers. There’s no uniform system that would allow for efiling such as exists in the federal system. A bill to move toward that came crashing down from clerks of court who opposed it. So, if you are a lawyer in Savannah and a client comes to you on an emergency matter with something that needs to be filed in Atlanta, you better have someone available who can drive it up there or you better have a day to get the filing sent by FedEx, or you can’t help that person.
Even the experience of finding case information on the docket varies by county. Want information about a case on the docket in Cobb or DeKalb County? You’re in luck. You can go to their online docket and see an index of filings. In some counties, though, you will find yourself driving to the clerk’s office and literally opening a huge leather-bound book and looking up a party name in an antiquated hand-written index. In some, you’ll be looking at a dot-matrix printout that’s held together in a circa 1980s book report cover.

Why are we still doing court like this? Why are we still preparing briefs like this? Why are the proceedings in court taken down by a scribe still? The issue between the Harvard Law Review and Carl Malamud is an example of a bigger issue of the weight of tradition in the law and how frustrating it is.

Harvard Medical Professor would Take Firing Squad over Lethal Injection

May 4, 2014/by J. Scott Key

A professor of anesthesia at Harvard Medical School told the Washington Post that “Given these recurring problems with lethal injections, if I had to be executed, I would choose a firing squad.” That article and one in the ABA Journal details the problems with supply of lethal injection drugs throughout the nation.

Congrats to Jeff Davis, Champion of Judicial Ethics

May 1, 2014/by J. Scott Key

Jeff Davis has been appointed as the new Executive Director of the State Bar of Georgia. Before that, he was the Director of the Georgia JQC, the agency that governs ethics and Georgia judges.

Georgia lawyers and citizens should be proud. I don’t know much about the JQC from before Mr. Davis was its director, but I know for a fact that the JQC had some teeth while he was in charge. In the last five or so years, the JQC has made the judiciary a better place. In fact, I would credit the JQC with bringing several judicial circuits not only into the 21st century but out of the 19th.

Under his leadership, many judges are gone who needed to go. And at approximately the same time that Mr. Davis’s new job was being announced, the JQC was being recognized with a First Amendment Award for its work in ensuring that courtrooms were made more open to the public.

Congratulations to Jeff Davis. If you see him, thank him for his public service.

Governor Hands Private Probation Companies a Rare Legislative Loss

April 30, 2014/by J. Scott Key

Governor Deal has vetoed House Bill 837, legislation that would have limited disclosure about private probation companies from open records requests. The Peach Pundit provides exclusive coverage on the veto in an article describing all of yesterday’s vetoes and in a specific post addressing HB 837. Greg Bluestein has also covered the veto.

Why is this veto such a big deal? Many, if not most, state probationers who are serving misdemeanor sentences are supervised by private probation companies. Who are the folks most likely to end up on misdemeanor probation? Generally, that list would include persons convicted of possessing less than an ounce of marijuana, driving on a suspended license, DUI, theft, or family violence battery. But that list also includes the poor who get a speeding ticket or other low-level misdemeanor and who cannot afford to pay their fine on the day of court. These individuals are often put on probation until they pay off their fine. And this list includes people who were represented by the public defender (often a private law firm with a contract with the county to represent the indigent) who, upon conviction find that, poor or not, the lawyer wasn’t really free. When these defendants cannot afford to reimburse their public defender for his services (and the meter has been running the whole time) or pay the fine, the court’s “finance plan” includes being supervised on probation until these expenses are paid off. When the defendant needs a long time to pay off the debt to the State, time on probation increases dramatically. For instance, in a multi-count accusation, the defendant may take on consecutive 12-month sentences. For instance, defendants convicted of DUI were often stopped for speeding first. Such defendants are eligible for 24 months of probation. Read more

The End of the Death Penalty / The Rise of Deaths in Prison

April 28, 2014/by J. Scott Key

The Economist reports that executions are on the decline and that fewer Americans support the death penalty today than they did in 1994. In fact, most death penalty sentences are handed down in narrow areas of the country:

Earlier this month a vote to repeal the death penalty narrowly failed in New Hampshire, but similar measures succeeded in six states between 2007 and 2013, reducing the number of capital-punishment states to 32. Among those states, 15 have carried out no executions since 2010. Just four—Texas, Virginia, Oklahoma and Florida—are responsible for roughly 60% of the executions since 1976. Texas alone carried out 37% of the total. Within capital-punishment states, a mere 15 counties are responsible for 30% of executions. (Although capital punishment is state law, generally the decision to seek the death penalty is made by district attorneys at the county level.)

60% of the executions in the country are carried out in just four states and merely 15 counties are responsible for 30% of the executions.

Unintended Consequences of Georgia’s New “Guns Everywhere” Law

April 27, 2014/by J. Scott Key

Governor Deal has signed into law the aptly-named “guns everywhere law” that increases the number of places in the State that guns will be allowed. Those places include churches (though the church must “opt in,” which may make for an exciting deacon/vestry meeting at a church near you), bars, schools, and even certain places within airports. CNN reports:

The bill, which easily navigated the state Legislature – by a 112-58 vote in the House and a 37-18 tally in the Senate – also earned the support of Democratic state Sen. Jason Carter, the grandson of ex-President Jimmy Carter and a 2014 gubernatorial candidate.

Even in old western movies, patrons were required to check their guns when entering saloons. Democratic candidate Jason Carter, grandson of former president Jimmy Carter, voted for this law. Though he claims that he helped to make it better than it was.

The Judge as 13th Juror: Thoughts on the Fayette Rape Controversy

March 1, 2014/by J. Scott Key

Last week, a motion for new trial made news when Hon. Christopher J. McFadden granted a new trial after finding that the verdict was “strongly against the weight of the evidence.” The State’s reaction was three-fold. First, it appealed the decision. Secondly, the State made comments in the press. Third, the State moved to recuse the judge who entered the order. According to Bill Rankin and Steve Visser of the Atlanta Journal-Constitution, Judge McFadden came “Under Fire” for his decision. This has been a difficult story for me to follow. For one, I profoundly respect the professionalism and integrity of Mr. Ballard and Judge McFadden. I have cases against this particular DA and his office on a regular basis. In the years I have had cases with the DA and his office, I have never found a more professional, talented, and reasonable group. And I have known the judge since his time in private practice. He ran a grassroots campaign and won a contested state-wide election for the Court of Appeals. And to clear a little confusion up, Judge McFadden was an appellate judge who presided over this criminal trial by designation. I’m sure both of these men believe that they did the right thing in the case. It is certain that the DA firmly believes that the judge did not do the right thing. The other reason that this has been a difficult story to follow, is that while we lawyers are free to comment about the result of cases in speaking to the press, judges are not ethically at liberty to defend their actions in the press. All members of the public may not know that. So, when a judge does not respond, members of the public may draw all of the negative conclusions that they would typically draw when a person in a controversial matter “declines to comment.” Judges can’t discuss an ongoing case with the press and really shouldn’t. I could say why, but hopefully it’s self-evident.

Not Acting Like a Victim

There were a few other things of concern from this story. For one, the ABA Journal highlights a statement from the order granting the new trial and quotes it out of context. The article notes the finding that the complaining witness in the case was not “acting like a victim.” This statement could seem shocking if read out of context. And I do not know nearly enough about the case to comment about the exact import of that statement under this unique set of facts. However, having defended many cases like this at the trial and appellate court level, how the defendant and complaining witness act after an alleged rape can be important. If a complaining witness continues to be friends with an alleged rapist, delays in calling the police, or acts as if he or she is not frightened of the defendant for a period of time before reporting a rape, those facts can be important for a jury to hear. And in Georgia, by a long tradition in the law, a judge can act “metaphorically” as the 13th juror if he decides that the verdict is “strongly against the weight of the evidence.” So, judges can weigh the evidence and set aside a decision; it is part of the function of judges in the State of Georgia to do that.

While the DA in this case strongly disagrees with this particular judge’s assessment of the actions of the complaining witness in this particular case, he would not disagree that how a victim “acts” is an important component in a victim’s believability. This DA writes a popular column in a local newspaper. In a recent column, titled “The Game Within the Game,” the DA, Scott Ballard, wrote on that very subject. After some introductory comment about the case, the DA wrote about whether the defendant acted like a perpetrator and contrasted it with how the child acted like a victim:

In this case, the defendant lived a life that paid little regard to commonly accepted sexual boundaries. He had multiple partners. They did kinky stuff. You get the picture. It wouldn’t be a huge leap to believe that he would do prohibited acts with children.So, why would the child say this happened if it didn’t? Here the defense had real issues. For one thing, we had more than one victim. For another, the girls were too young to know much about sexual matters.The defense did what they usually do. They tried to inject adults into the mix. Adults were angry with the defendant and “coached” the children. To try to prove that, they look at the language the children used to report the abuse. Was it “age appropriate?” They probe into the circumstances of the report of abuse. Was it timed in a way to benefit some enemy of the defendant? How do we combat this defense? The children testify.So, Ben called the children to the witness stand and asked them to share with the jury the sickening things the defendant did to them. Let me give you a brief glimpse.A frail, thin girl—she looked about ten years old—walked slowly into the courtroom. Her hair was the color of a carrot. And she was scared.Ben asked her questions designed to assure everyone that she understood the importance of telling the truth. It was clear that she did. Then he asked her,“Do you remember meeting with me a few days ago and talking about how it would feel to come in here today?” The girl nodded gently. Ben continued. “I told you that you would probably be nervous and that I would be nervous, too?” The little auburn head nodded again.

The “game within the game” was the character and actions of the defendant versus the character and actions of the victim. Would it be a leap to believe that Thomaston, Georgia’s version of Caligula would molest a child? And would a frail thin girl who “nods gently” “walks slowly into the courtroom” and act nervously make up a story like this? The answer for this DA, under those particular circumstances, is “no.” Does the truth of the “game within the game” not apply the the benefit of the defendant and sometimes against the credibility of a victim’s account? Whether a particular witness acts “like a victim” was an important element in the case described in the column. And if we are to accept its importance in cases with a guilty defendant and innocent victim, the converse would also be true, no?

That one line is less shocking when placed in the larger context of the sixteen-page Order. The Order is worth reading in its entirety (PDF).

The Impartiality of the Court of Appeals

The press coverage also suggests that every judge on the Court of Appeals my have to recuse themselves when this case reaches that court. In particular, the article quotes Mr. Ballard as asking rhetorically about the prospect of the case getting to the Court of Appeals:

Ballard said he is now appealing that decision to the same appeals court on which McFadden sits. “How awkward is that?” Ballard asked.

The answer to “how awkward is that?” is “not very.” Judge McFadden wouldn’t participate in the Court’s consideration of this case, for several reasons. First, he would certainly recuse himself from the case in the appellate court. Secondly, the Court of Appeals works in three-judge panels. It is a rare case that goes to the whole Court. It is not unusual for an appellate judge to sit by designation over a trial court or for a trial judge to sit as a justice on the Supreme Court by designation. Indeed, when Judge McFadden was selected to hear the trial of this rape case by designation, it was not outside the realm of possibility that it would make its way to the Court of Appeals one day. Parties have the opportunity to object to an appellate judge sitting by designation in a trial. And if there might be some “awkwardness” down the road with the case going to the Court of Appeals, those parties may object before the trial starts. And if you don’t object going in, you waive the right to do so later. I don’t know if that happened in this case before the motion for new trial was granted or not.

More importantly, our appellate courts handle these sorts of things well. For instance, Judge Carla McMillian came to the Court of Appeals from her previous post as the judge in the State Court of Fayette County. Her rulings have made their way to the Court of Appeals, and her current colleagues have even managed to disagree with her on occasion. I’m not an insider at the Court, but none of that has seemed particularly awkward. She wasn’t on the panels that considered her judgment. Judge Michael Boggs came to the Court of Appeals from the Waycross Judicial Circuit. His decisions have made their way to the Court of Appeals in the early days of his tenure. If there’s been any awkwardness, I’m not aware. In all of the controversy surrounding his confirmation to the Federal bench, this subject has never come up. And, more recently, Justice Keith Blackwell has been appointed to the Supreme Court of Georgia after he was a judge on the Court of Appeals. This transition has not created a crisis of partiality.

Even in the trial court, Superior Court judges are frequently called upon to sign a search warrant, where that warrant is later the subject of a motion to suppress before the very same judge. And trial judges in every motion for new trial are asked to assess whether they committed judicial error as they presided over a case at trial. And yet our system works very well.

The Georgia Court of Appeals will handle this case with impartiality and professionalism, because this situation is not as unprecedented as a casual reader of the AJC article might think. And the Court has acted with impartiality and professionalism in those instances.

Conclusion

This case will run its course. I place great faith in our system. But that faith is only as strong as the public’s confidence in the integrity of an independent judiciary. The media component of things like this, with conclusions that get wrong the basics of how our appellate courts function, make me fear what lies ahead for our judiciary.