Where Fundamentalism and the Law Meet Somebody is Headed to Prison

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Legislators in Virginia are contemplating changes to the law in response to MacDonald v. Moose (4th Cir. 2013), a case that struck down Virginia’s law that prohibited non-genital sex generally. Specifically, legislation has been introduced that would make it a felony for an adult to engage in non-genital sex with a minor between age 15 and 17, while vaginal intercourse is a misdemeanor. Vaginal sex among 15-17 years olds is perfectly legal, while non-genital sex would be a crime. Prostitution would be a misdemeanor as long as the prostitute and the john engage in vaginal intercourse; any other type of sex would be a felony.

In Georgia, we draw equally if not more draconian distinctions between genital and non-genital sex. For instance, public indecency covers “an act of sexual intercourse” in a public place. That crime is a misdemeanor under O.C.G.A. § 16-6-8. However, the offense of sodomy in a public place is a felony punishable by not less than one and no more than 20 years to serve in prison. Bowers v. Hardwick struck down Georgia’s sodomy law, but only to the extent that it applies to that sexual act in a private place. Public acts of sodomy are still illegal. See Mauk v. Ga. A few years ago, I was unsuccessful in an 8th Amendment challenge to a 10 year (without parole) sentence for a young man who was convicted for a voluntary act of non-genital sex with another teen.

Professor Volokh writes this about proposed changes to the law in Virginia:

I realize that some people … view nongenital sex as immoral — but even those people, I assume, are uninclined to outlaw things (unkindness, dishonesty, not honoring your father and mother, coveting your neighbor’s wife or property, and the like) just because they are immoral. Indeed, even people who view premarital sex generally as immoral tend not to be inclined to pass new laws banning all fornication. What is there about nongenital sex that makes it more properly subject to outlawing, especially given the perverse incentives that such a prohibition would create?

If the legislation passes, then Virginia, like Georgia will treat non-genital sex with a harsh sentencing scheme versus acts of vaginal sex. It is unclear why the legislature would incentivize teenage intercourse at the risk of unwanted pregnancy and the spread of disease, other than that such a scheme is an expression of the fundamentalist religious beliefs of individuals in power (welcome to our little red state). Of course, it’s difficult to justify the lengthy incarceration of teens based upon the decision to violate the religious sensibilities of state representatives and senators. Nevertheless, in a moment of passion between teens or between adults in certain situations, the message from our wise legislators is that the actors had better “go all the way.”

Southern Center Files Suit in Cordele Circuit, Again, for State of Indigent Defense There

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The AJC reports that The Southern Center for Human Rights has filed suit against GPDSC, its director, the Circuit Public Defender, the District Attorney and others for the state of indigent defense in that circuit. The suit is brought on behalf of 8 indigent defendants, juvenile and adults individually and as representatives of a class of indigent criminal defendants. The suit alleges that adult defendants are forced to wait for months with no contact or minimal contact with a lawyer. In some instances, a non-lawyer investigator has relayed plea offers just before trial. Juveniles have found themselves at some hearings with a lawyers and at others without. The Circuit has no juvenile public defender, and (according to the complaint) when the lawyers are off in court someplace else in the circuit, juvenile court continues, with or without counsel.

In 2003, the Southern Center sued officials in the Cordele Circuit for what was then a contract public defender system. According to the press release that was issued when the recent suit was filed:

The public defenders are unable to spend more than a few minutes per case.  Many poor people accused of crimes meet a public defender who knows nothing about them or their charges for the first time in court.  After a hurried conversation, many enter guilty pleas and are sentenced.  All but a few convictions are obtained through guilty pleas by people who do not receive the most basic elements of legal representation such as substantive attorney-client interviews, investigations, motions practice, and informed, professional advice about whether to plead guilty.

The well-written Complaint may be found here (pdf). The press release is also worth reading.

Atlanta Can’t “Rise Up” to Fix its Jail

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The Atlanta Journal-Constitution reports that the Fulton County Sheriff may be held in contempt over the condition of the Fulton County Jail located in Atlanta. For the past several years, the Fulton County Jail has been under the supervision of the federal courts pursuant to a lawsuit involving inhumane conditions there.

Things don’t appear to be good. One of the more basic things that you would expect from the jail is working locks. Apparently the internal locks aren’t working so well, leaving inmates free to roam about. There are also insufficient beds for all of the inmates. When the population of the jail went below a certain number, the Fulton County commissioners would not approve outsourcing of the housing of inmates to other city jails, a measure that Fulton County had previously used to comply with federal court orders. Officials in Atlanta have not figured out how to pay for court-ordered renovations in years. According to the AJC:

Some say the Fulton County Jail on Rice Street has always been a problem — and an expensive one at that.The $48 million jail opened almost 25 years ago to solve the issues that plagued the old jail, such as overcrowding and dangerous conditions. But those problems remain today, critics say, despite the county being under a consent order that requires them to make significant renovations, limit the number of inmates and maintain an adequate staff.Because there aren’t enough beds, some inmates sleep on the floor. They roam where they shouldn’t because faulty locks can’t hold them in their cells. And not enough detention workers are on duty at any given time to stand guard. A federal judge has scheduled a hearing in early February in which the sheriff and the county must “show cause” why they should not be held in contempt.

I’ve gone to several events at the Georgia Dome this year. That facility is about as old as the Fulton County Jail. In fact, my son and I just went to the Chik-Fil-a Bowl there to watch the Texas A&M game. The locks seemed to work. We were only allowed into designated areas. It was cold and rainy out, but things were comfy under the dome. There were 67,000 people there, but there were seats to spare. Everybody seemed to have enough to eat and drink. There was ample security. You could text a message to a particular number if a problem arose. Little toy cows were parachuted to lucky fans from the rafters and from a remote controlled blimp. The City of Atlanta has kept things running well. And yet …

… And yet, local officials have found a way to fund and even better stadium. This one will be even cooler than the perfectly good one we already have, and the roof will open and close.

Meanwhile the Fulton County Sheriff prepares for another contempt hearing because his office can’t figure out how to get the locks to work in the jail.

Deadline Extended For January Appellate Practice Luncheon

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On January 10, 2014, at noon, the Appellate Practice Section will host a luncheon at the Georgia Bar’s midyear meeting, at the Intercontinental Buckhead Hotel. The deadline for the early registration rate for lunch has been extended until January 1, 2014. The price for the luncheon until then will be $35. After that, the price will go up to $55.

The topic of the program will be The Next 50 Years of Appellate Practice in Georgia. Topics will range from the impact of electronic filing on the way cases are handled by the court, the future of our appellate courts, and the statutes governing appellate practice.

The panel will feature the following speakers:

The registration form can be found at this link. However, the deadline for online registration is passed, and it will be necessary to fax this form to the State Bar at 404-527-8717. Don’t try to register online if you want the reduced rate. The Bar will not process refunds for online registration.

Ct. of Appeals Judge Carla McMillian’s Ten Tips on Practice

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Judge Carla McMillian’s campaign for re-election is in full swing. The Augusta press ran a full interview last month. And Judge McMillian took some time out to speak to the Appellate Practice Section’s monthly luncheon, where she reflected on a year on the Court and shared her top ten lessons and tips from her time as an appellate judge. Aly Palmer of the Fulton a Daily Report covered the event (article behind the pay wall). The article from the Fulton Daily Report talks more about how Judge McMillian was made a judge and her reaction to the appointment. The article also details some of Judge McMillan’s reflections upon her first year on the bench. This post focuses on the practical tips from Judge McMillian’s presentation.

The top 10 lessons are:

  1. Jurisdiction is not always clear cut. Judge McMillian said that many cases are transferred from the Supreme Court to the Court of Appeals based upon the Supreme Court’s position that it lacks jurisdiction over the case. What is a practitioner to do? She advises that it is best to file first in the Supreme Court if jurisdiction is doubtful. The Supreme Court will then transfer the case down to the Court of Appeals. Beginning in the Court of Appeals in such cases has the downside of creating what Judge McMillian calls “a ping-pong match” of the case being transferred up only to be transferred back. The relevant statutes on jurisdiction can create much confusion in “edge cases” where there is an argument to be made that either court might have jurisdiction.
  2. Even if you don’t get a docketing notice, your brief is still due. This bit of advice created the scariest moment in the room as lawyers (at least I did) began to think about what might be sitting in their spam folder. Judge McMillian noted at least two instances where lawyers did not get their docketing notice. In such situations, the court has some discretion regarding whether to dismiss the case or not. But, if you have recently paid the costs to send the record up, you may do well to check with the court every week or so to make sure the cases not been docketed. Docketing notices go out electronically now, and it is easy for emails to get lost in the shuffle of the inbox or inadvertently placed into a spam folder.
  3. When you do not know whether to file a discretionary or direct appeal, err on the side of discretionary. Some matters can be appealed directly, and others must be appealed by discretionary application. Choosing the wrong form can be fatal to the case. If you file a discretionary application in a case where you have the right to appeal directly, then the court will allow you to appeal directly. If you file a direct appeal where you are required to file a discretionary application, your case will be dismissed. So, it is best to file discretionary when in doubt. On a related note, Judge McMillian pointed out the value in making discretionary applications lengthy enough to explain the case but not so lengthy that the court is overwhelmed with material.
  4. If you want the full court to examine the case then request that precedent be overruled. In any case where a judge votes to overturn precedent, the matter will go to the full court. If you can get one judge to agree overturn precedent, then all 12 judges will decide the case.
  5. Be more creative in helping the court understand the case. Judge McMillian noted that it is perfectly acceptable and welcome for advocates to place graphics or photographs into their briefs. She noted by way of example an advocate who placed a map of disputed land into the brief to illustrate the major concepts at issue in a dispute over a deed. She also noted that the judges like to see relevant exhibits displayed on screen during oral argument. I would note that judicial opinions differ on these points.
  6. Don’t disparage the trial judge, opposing counsel, or other judges on the panel. Judges often make this point when they speak or write about professionalism. Judge McMillian cited a recent and real-life example of a lawyer who had compared the judges to some characters from Mayberry. There is a temptation to disparage on a motion for reconsideration; she advises just don’t do it.
  7. Formatting / fonts. Judge McMillian offered several comments about formatting and fonts. First, formatting is important to her. She noted a recent walk with her husband, another lawyer, where the two argued about fonts. However, if opposing counsel makes a formatting mistake, then it is likely not worth raising unless opposing counsel has derived some unfair advantage from it.
  8. Recordings. Recording don’t automatically go up with the record. Do not assume that they have. If the recording is critical to you, make sure that it is included in the record. If it wasn’t, then move to supplement the record on appeal.
  9. Oral argument requests should be self-contained. The judges who read the request for oral argument will not be familiar with the case. Also, they likely will not have read the brief by the time that they consider the request. Therefore, the request should summarize the case well enough for the judges to make an informed decision. Also, if you want argument, go ahead and request it. Any one judge can grant the request.
  10. If one of the judges on the panel concurs in judgment only, then you should file a motion for reconsideration. A JO often indicates some doubt about the decision by one of the judges. Filing a motion for reconsideration may change the outcome or draw a concurring opinion. (Note: After this post was published, Judge McMillian clarified in a tweet that this advice relates to J.O.s that come at or around distress time. Don’t know what a J.O. is? Check out Court of Appeals Rule 33. Don’t know what distress time is? Check out a previous post I wrote about it).

The Appellate Practice Section frequently invites judges and justices shortly after they are elected or appointed. Judge McMillian was a particularly engaging speaker who gave practical insightful tips about how to practice before the court.

Court Reporters and Digital Audio Recording: Time for a Change?

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My new favorite law blog is Judge Richard Kopf’s Hercules and the Umpire. Lately, it’s been the first place I click on my reader. His blog is conversational and offers a view of the Federal Court from the other side of the bench.

A recent post of his was particularly spot on. It begins “For a long time now, I have used digital audio recording, rather than a court reporter. Digital audio recording is the marriage of a computer and a sophisticated sound system with multiple channels. It is monitored by the courtroom deputy in real-time eliminating the necessity of a court reporter.” 

The daily recordings are uploaded to CM/ECF so that any person, at a small cost, can listen to them. The lawyers have access to what was said, and a transcriptionist can render things on paper in the event of an appeal. There’s no need to fund a court reporter for take down, and the job of transcribing can be outsourced for quick turnaround. I am not sure what certifications are necessary, but presumably a court reporter anywhere in the world could be contracted to transcribe the proceedings as necessary.

I use Speakwrite to transcribe office documents or interviews when my office is too overburdened. Generally, within hours of upload, I have a transcript sitting in my email inbox. Presumably, such a system could be set up for court transcripts with folks certified to do them.

I don’t know how long it will take for such a system to catch on in Georgia, but I hope it happens soon. Such a system would change the landscape of appellate practice. Consider:

  • The wait for the transcript is the single longest part of the appellate process. Digital recording with upload to a central server expands the range of possible people who could do the work, virtually overnight.
  • Often appellate lawyers are waiting around for months or years for transcripts to arrive only to be bombarded with three or four at once.
  • That wait can be a great source of tension between the lawyer and the client. It is hard to explain to a client who is languishing in prison that it is not the lawyer’s fault that the court reporter is taking a year or more to type up the proceedings.
  • For matters where a transcript is not essential, the recording provides a way to impeach witnesses or review what is said. It provides a tangible record of what happened in situations when there is not time to get a transcript prepared or in situations where it would not be ordered.
  • It would save lawyers, clients, and the State money.
  • More will get recorded. Judges order their court reporter to go “off the record” with impunity. When that happens, something bad is going to transpire. Ordering a recording system to be turned off seems more Nixonesque somehow.

The idea of having a court reporter seated with a stenograph machine in the age of digital recording seems a tad antiquated. If one were designing a recording system for courts from the ground up today, we likely wouldn’t dream up the position of court reporter (a point made in the comments to the judge’s blog post). It likely made sense in the 1930s, but we are left with this vestigial court official.

Take a look at this new blog. And, if you are a reader with power to make digital recording happen in Georgia, please do so.

New Law Spares Life of Warren Lee Hill

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Andrew Cohen at The Atlantic Monthly has a post up on how Georgia’s legislature created a law that spared the life (so far) of Warren Lee Hill, a man that the State has been trying to kill. It’s a must read if you are trying to teach someone the concept of irony.

This past year, the legislature enacted a law that made the identity of companies that provide drugs for execution a state secret. The problem came when Lundbeck, the Denmark Company that makes pentobarbital, a key component in the cocktail of drugs administered during lethal injection, refused to distribute the drug if it would be used in an execution. The supply that the Department of Corrections had on hand was set to expire.

Efforts the Georgia Department of Corrections have undergone to get its hands on drugs to kill Georgia inmates have proven to be a source of embarrassment in the past. In 2011, federal drug agents seized Georgia’s stockpile of sodium thiopental obtained from a shady British supplier that was “operating from the back of a driving school in England.” The stockpile had also come under scrutiny when it was alleged that state corrections officials violated federal law by not registering its shipment of the drug with the DEA.

The obvious way for the Georgia DOC to avoid embarrassment in the future would be to stop obtaining drugs from shady suppliers. The legislature decided not to go that route. Instead, to stop future such stories, the legislature decided to make the identity of the supplier a state secret. Supporters of the bill claimed that the purpose was to prevent the harassment of such companies. An alternate explanation is that secrecy would allow the Department of Corrections to seek out other shady suppliers without the fear of future embarrassment.

When a challenge to the state secrets law was heard in a trial court, “the judge asked the obvious question: How can the executive branch constitutionally conspire with the legislative branch to block the judiciary from considering all the relevant components of a planned execution?” How can the court system evaluate an 8th amendment claim to the death protocols of the DOC if the judge cannot know what those protocols are?

Because the court reporter did not have the transcript prepared in time for the case to make its way to the Supreme Court of Georgia, this matter could not be reviewed before Mr. Hill’s death warrant expired.

This past year I participated in my first hearing before the House Judiciary Committee to speak out against some unrelated legislation. The Atlantic Monthly writer is absolutely correct in his analysis of how the sausage is made. When I spoke and offered comments that I had researched and thought out I might as well have been Charlie Brown’s teacher. By contrast, the representatives of the Prosecuting Attorneys’ Counsel were treated like ex officio members of the committee.

In this case, they should have been careful what they wished for.

How to Defeat the State’s New Pre-trial Appellate Rights

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HB 349 has been the subject of much discussion for its sentencing innovations. However, nestled within it are some significant changes to the appellate code. This post will familiarize you with the appellate provisions of HB 349 and provide some tips to get around them.

Pre-HB 349

Under the soon to be old law, any party in a criminal case who wants to appeal must do so by following a two-step process:

  1. Get a certificate of immediate review from the trial court within 10 days of the ruling that the party wants to appeal.
  2. File a discretionary appeal application with the appellate court.

New Law

Under Section 1 of HB 349, O.C.G.A. Section 5–7–1 (5) has been created, which provides that:

An appeal may be taken by and on behalf of the State of Georgia from the superior courts, state courts, and juvenile courts and from such other courts from which a direct appeal is authorized to the Court of Appeals and the Supreme Court of Georgia in criminal cases and adjudication of delinquency cases in the following instances
…

From an Order, decision, or judgment excluding any other evidence to be used by the state at trial or on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the defendant being out in jeopardy, whichever occurs first if:
(A) Notwithstanding the provisions of Code Section 5–6–38, the Notice of appeal filed pursuant to this paragraph is filed within two days of such order, decision, or judgment; and
(B) The prosecuting attorney certifies to the trial court that such appeal is not taken for purpose of delay and that the evidence is a substantial proof of a material fact in the proceeding

In plain English, the new law provides

  • the State may directly appeal a pre-trial order excluding its evidence or on any motion filed at least 30 days before trial
  • if it is ruled on before jeopardy attaches or the jury is impaneled
  • if the state files a notice of appeal at least 2 days before trial, and
  • the State certifies that the appeal is not for purpose of delay and is material

Ways Around It

  1. Avoid filing motions in limine when you can. There are certain motions that must be filed within 10 days of arraignment. The rest may be filed at any time, even during trial. Where possible, hold those motions until after the jury is impaneled. As soon as the jury is sworn, file your motions and ask for a hearing.
  2. Defer rulings, when you can. If the hearing on your motion to suppress or on the State’s motion appears to be going well, ask the court to defer its ruling until jeopardy attaches.
  3. Get a “tip” instead of a ruling. Then request that the Court not formally enter its ruling until it’s too late for the State to appeal. At the conclusion of the motions hearing, move to hold the ruling until the matter is proceeding is beyond the reach of the new law. Ask the Court, not to rule, but whether the Court is inclined to rule your way.

Conclusion

The new appellate provisions in HB 349 are about as hole-laden as Swiss cheese. Unfortunately, they encourage a sense of trial by ambush as important matters are deferred until juries are sworn or jeopardy has attached. It also encourages litigation by nods, winks, and guesses in an effort to fix something that was never broken.

Alas, here are a few ways around the new law. Let me know if you have other ideas.

Ray Lewis, Facebook, and the Justice System

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Ray Lewis’s retirement has made for an interesting time to be a criminal defense lawyer.

Many of us who defend people for a living lead two lives. In one, we are in and out of jails, explaining things to clients. We are in the hallway huddled with families after a loved one was led out of the courtroom in handcuffs. We engage in dark humor with colleagues because it’s the only way to maintain a sense of sanity. We nod and smile politely as judges yell at us or the folks we represent.

In the other life, we spend time with our friends and family, for whom the inside of a jail or a courtroom are as foreign as Timbuktu.

For me, those two lives also involve working in Decatur, a blue-state island within red-state Georgia, and living in my little neighborhood in Griffin. My neighborhood  is a white Republican red-state enclave within a blue-state city.

The same Facebook that freaked me out about the political process last October is now freaking me out about the criminal justice system. The Court of Facebook is even harsher than the Court of public opinion. I’ve seen Lewis tried by status update and comment. The Facebook environment encourages participants to do something they’d never do in public — shout uninformed opinion over a megaphone. The system of “likes” is the modern-day amen corner. For weeks I’ve been thinking of deactivating my account. Yesterday, the straw broke the camel’s back.

While I agree that the acclaim that Ray Lewis has been getting is overblown, I watched a lot of that trial when it happened. The lawyers on that case (even the assistant D.A.) were true all stars to me, and I wanted to learn from them. I set my VCR every morning and watched the trial at night when I came in from my summer law job. It didn’t take long for an interested viewer to learn that this case should never have gone to trial.

The case had some real problems. Ultimately, Lewis was offered a plea to a misdemeanor. The trial continued against his less celebrity co-defendants, who were all acquitted. The sequel to this trial being played out around watercoolers and online is a different animal entirely. There, the evidence doesn’t matter. The strength of the case doesn’t matter. He must have done it, or they’d have never arrested him. Who does he think he is with his emotional behavior before and after the game?

I’d be willing to bet that the “prosecutors” in this new trial couldn’t name the victims or Lewis’s co-defendants. Details don’t matter, when you’ve made up your mind about something from a 30-second news blip on ESPN.

Bill Rankin, at the AJC, did a great story on the case and its many problems. Over on Facebook, this case and the world are much more simple. But here is what the former lead homicide detective from that case has to say about it today:

The investigation remains raw with Ken Allen, who had just been promoted to his dream job as an Atlanta homicide detective. Allen was put in charge of the investigation but saw it hijacked by political forces, which ultimately caused the case to collapse at trial.

“The focus of the case was Ray Lewis, not necessarily because of the evidence but because he was a celebrity,” said Allen. “It was like they were star struck and saw this as a case that could make a career.”

In my line of work, I’ve had the misfortune of defending folks whose cases have attracted media coverage. Inevitably, the court of public opinion convicts people instantly. And I’ve represented people who were acquitted or who had their charges dropped only to call me later when a potential employer chose not to hire them simply because of the arrest (“he must have done something wrong or he’d never have been arrested”). They ask me what I can do to help, and I soon find myself running out of answers early in the conversation.

One day I’d like to buy my friends and my “friends” a beer and tell them some stories about how some of the judges treat me and my clients and about some past jury selections that have begun with rural jurors presuming my client to be anything but innocent.

I enjoy my job very much, but it’s not always a picnic. The Nancy Graces of the world don’t help things.

At the end of the day, I choose to keep my faith in the system even when I know that the same weak prosecution case would likely have worked against a poor defendant without the means to hire the very best defense counsel and investigators.

The invective I’ve heard at barbecues, at cocktail parties, and over Facebook reminds me of how fragile this system is. It’s a wonder that the State ever loses.

Recently, I completed the new biography on Thomas Jefferson. We are very lucky he was born in Virginia in the 18th century. He’d have never been elected today. We’re equally lucky that the Constitution was ratified then. A modern-day Bill of Rights would likely have only the Second Amendment in it.

I’d miss this system if it changed significantly. But I don’t think I’ll miss Facebook.

Video Interview: Discussing Gun Control & the Second Amendment in the Supreme Court with LXBN TV

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Following up on my post on the subject, I had the chance to speak with Colin O’Keefe of LXBN regarding just how far gun control can go under the Second Amendment and when this was last tested by our country’s judicial system. In the interview, I discuss Heller v. District of Columbia, the last Second Amendment case to reach the Supreme Court.  Read more

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