News - Scott Key & Associates

How Far Could Gun Control Constitutionally Go?

December 21, 2012/by J. Scott Key

In light of recent events, gun control is the subject of discussion. My practice touches upon guns. Generally it arises in the context of clients who have been accused or convicted of being felons in possession of a firearm or of being in possession of a weapon during the commission of a crime. I have defended a client, with a previous domestic violence charge (without a conviction) in his application for a concealed weapons permit. However, I thought it time to inform myself because I have read uninformed publications (newspaper editorials) and postings (Facebook news feed) on the Second Amendment. This post will consider how far gun control legislation could go without running afoul of the United States Constitution. It leaves for another day the values at stake and the efficacy of such legislation. It ultimately attempts to answer the question of the extent to which the debate about gun legislation is Constitutional in its nature.

The Short Answer

The real answer is found in the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

We could stop there technically. The difficulty is that the language is archaic. And the meaning is as debated as much as certain scriptures are debated.

The Supreme Court’s Answer

There is not a full answer from the Supreme Court. Gun legislation, though the subject of a perennial discussion, has infrequently been taken up by the United States Supreme Court. The Bill of Rights was long thought to be a check on Federal power only, and States did not attempt to pass gun control legislation through much of the nation’s history. The Second Amendment has not been tested as much as the Fourth Amendment, the First Amendment, of the Sixth Amendment.

For the most comprehensive answer about the meaning of the Second Amendment, District of Columbia v. Heller, 128 S. Ct. 2783 (2008) is the one place to go.

The Statute at Issue in Heller

D.C. passed a statute making it illeal to possess an unregistered handgun and which prohibited the registration of handguns. And no person could carry a handgun without a license; licenses had to be renewed yearly. Plus, any lawfully owned firearms were to be kept “unloaded and dissembled or bound by a trigger lock or similar device unless located at a business or in use for lawful recreational activities.”

The Decision in Heller

This statute almost squeaked by. It was struck down, but only by a slim 5-4 margin, with Justice Scalia writing for the majority. And, even there, the yearly licensing requirement was affirmed.

The majority opinion and the dissent include dense historical information for the context of the Second Amendment. If you really want to be informed, I commend it to you. I’m going for the short answer here.

The statute at issue was struck down because it prohibited “an entire class of ‘arms’ that is overwhelmingly chosen by American society for [self-defense].”
However, the Court also recognized that “the rights secured by the Second Amendment is not unlimited.”
The State may prohibit the possession of firearms by a felon or the mentally ill. And the State may forbid them in sensitive places such as schools and government buildings. And it may regulate the commercial sale of arms.
It is permissible to impose a yearly licensing requirement to possess handguns.
The Court specifically noted that “the enshrinement of constitutional rights does not necessarily take certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.”

Congress and the States have a broad number of tools available to them that would pass Constitional muster. Those tools could go as far as the getting rid of self-defense as an affirmative defense, a ban on certain classes of long guns, a ban on long guns altogether, a ban on certain classes of handguns, the requirement of extensive background checks, a mental health examination as a prerequisite to purchase, a ban on the sale of guns if a felon, mentally ill person, or person who could not be licensed lives in the home. Gun buyback programs would be constitutional. As would any number of other very regulatory actions. Licenses to possess as well as conceal are constitutional. And it is likely that a six-month renewal requirement would be upheld.

As you engage in debate and read or watch the debates of others on the subject of guns, it is important to know that this debate is largely one of policy and competing values. Unless the proposed solution goes at least as far as D.C. tried to go in Heller, the debate is likely not a constitutional one. And the 5-4 vote could easily shift to a 4-5 vote in the coming years.

New SCOG Opinion Sets Out Rules for Voir Dire in Death Penalty Cases

December 16, 2012/by J. Scott Key

A recent Georgia Supreme Court case on jury selection provides a framework for determining what a case’s subject matter is. There is a fine line between asking juror to prejudge the facts and figuring out if jurors cannot be fair. A few words about the problem in the case first. Full disclosure, I was amicus counsel on this case.

Defendant Ellington was on trial for his life in an indictment alleging that he had murdered three people. Though not mentioned in the indictment, two of the three victims were young children. Mr. Ellington was not charged with any offenses, such as cruelty to children, that would have otherwise revealed age. The defense wanted to discover which jurors would be unable to consider a life sentence for a man convicted of killing a child victim. The State argued that, since age was not disclosed in the indictment, this case was not “about” children. And, since the victims’ age would be developed as the facts were presented, it was not proper to ask the jury to pre-judge the facts. On the one hand, it is entirely proper to find out if jurors could not consider the facts and apply them to the law. On the other, it is not proper to pose hypothetical facts to jurors and ask them how they would decide the case based upon those facts.

The Court acknowledged that children are different. In federal death penalty cases, the youthfulness of a victim is an aggravating factor. And it is a factor in at least thirteen states. Our basic instinct is to protect children. That instinct is codified in law and in the rules of evidence. Within a minute of the beginning of the State’s opening statements, the State made age a theme. And it was a theme in closing as well.

The holding and the broader lesson.

The holding is arguably narrow. But the lesson to take from the reasoning is broad. At the very least the holding is that, in a death penalty case where children are the victim, it is appropriate to ask jurors whether they could consider the possibility of a life verdict. In the broader sense, the reasoning is that cases are about more than what is plead in an indictment.

Whenever there are facts in your case that would inherently bias jurors, it is important to ask about it in voir dire.

In DUI or drug cases, it is important to ask jurors about experiences with alcohol and drugs. It is a rare family that hasn’t been touched by addiction. And it is reasonable to expect that some jurors aren’t qualified to sit in those kind of cases.
The age of the defendant may bias some jurors.
There may be certain types of crime where jurors cannot possibly be fair. A person who owns a retail store may not be an appropriate juror in a shoplifting case.

As you prepare for voir dire, consider what things about your case could be a problem for certain jurors. Then craft questions designed to find out who those jurors are. Anticipate that opposing counsel will object and say that you are asking jurors to prejudge facts. Prepare your response using the language in Ellington. And keep in mind that a case is often about much more than the language contained in the indictment.

What Every Lawyer Can Learn from the Red & Black Controversy

August 27, 2012/by J. Scott Key

I have no affiliation with the University of Georgia. But I have been glued to the controversy over its independent newspaper for the past week and a half. And if you are a lawyer who is interested in social media, you should learn this story and use it as a parable. It has much to teach about the importance of social media and its potential power as a tool of engagement. I don’t take sides here about who was right or wrong. But I want to look at how social media was a part of the story and how a group of college students used it to achieve their goals with the paper’s Board of Directors, most of whom appear to be seasoned journalists and successful businessmen.

Watching this story helped me to “get” social media a little bit better.

An Overview of the Controversy

The Red & Black is the college newspaper for the University of Georgia. It operates as a non-profit corporation in Athens and is governed by a Board of Directors. And the students have traditionally been in charge of the paper’s day-to-day operations. It has been in operation for over a century and is highly regarded. Many Georgia journalist worked on the paper when they were students. A week and a half ago, it editorial staff walked off the job in protest of what they claimed to be attempts from the “adult supervision,” professionals hired to guide the paper, to seize control of the paper’s editorial decisions. In particular, the controversy centered around a memo written by Board Member Ed Stamper (the exact meaning of this memo and its intended use remains still an issue).

From the student editor’s perspective, the memo was meant as a directive to guide prior review of stories. From Mr. Stamper’s perspective, the memo was a rough set of talking points to be used to “guide” the paper.

When this memo went public, the focus was on the memo’s emphasis on achieving “[a] balance of good and bad” stories. A “good” story was defined as “[c]ontent that is ABOUT our audience doing something unique, new, dramatic, ie scholarships for freshman” a “bad” story was defined as “[c]ontent that catches people or organizations doing bad things. ‘I guess this is journalism’ I think we are alighned on crime and ‘who started off the year with a police record.’ And that the freshman class lacks some minority demographics.”

The memo concluded with “If in question, have more GOOD than BAD.”

The students read the memo one way. Mr. Stamper believed he meant something else. Unfortunately for Mr. Stamper, his point of view did not come to light fully until Katheryn Hayes Tucker ran a story in today’s Fulton Daily Report..

By contrast, the students immediately started a WordPress blog, titled Red & Dead, a Facebook profile, and a presence on Twitter..

They interspersed journalism — you’ll find some stories there — with their message. They had a theme, and they stayed on it.

The story was eventually picked up nationally, including coverage by the New York Times..

Eventually, Mr. Stamper resigned along with another Board member, and the students got their jobs back.

How did these kids manage to run circles around the very professionals whom the board put in place and tasked with making the paper relevant and the content engaging? Could it be that the kids know more about that subject than the pros?

The Big Irony

There’s an irony in the middle of the whole thing. One of the memo’s aims was to engage the readers through social media. From the memo: “More of: Content that is FROM our audience, which automatically makes it of interest to our audience, ie comments, letters, comments, poll results, chatter from social media, reviews.”

According to Lindsey Cook, the students’s social media general, “[t]he reason I left Red & Black turned into The Red and Dead’s strength. It was cowboys versus indians; we had guns; they had bows and arrows. Within an hour, our brand was on Twitter, Facebook and WordPress. … We would win. I was sure.” And “By the time most of the world woke up, we had begun a rival news organization.”

Did you hear that? The students went back to their apartments and started an organization to rival an institution with a $4,000,000.00 endowment. And they did it with some iPads, phones, laptops and a wifi signal.

The Board relented, not because the students were more on message, not because they needed the students back. But had the students stuck it out, they’d have started a fiercely competitive rival newspaper.

I wonder if the students ever realized that the paper needs them more than they need the paper?

And for Ms. Cook, who had been waiting for permission from the grown ups to truly engage with the Red & Black’s readers, this was her opportunity to show the paper what it had been missing.

The irony is that the whole point of Mr. Stamper’s infamous memo was to achieve engagement with the reader. Turns out that the adults just didn’t understand the tools well enough use them. And, when the students were freed from the institution, they showed their true expertise.

They Still Don’t Get It

The Board had some good points and that Charles Russell, one of the members who resigned, stated some good reasons for his resignation. Indeed, the best pure journalism I’ve seen on this story is the Daily Report’s article.

Mr. Russell believed that the decision to walk out on the paper at deadline time was a firing offense. It’s a valid point. And it’s a point that was never made until now. After that, though, Mr. Russell doesn’t do so well.

From the Daily Report:

Russell said students “have no idea how deep” the threat to the newspaper industry goes, but he acknowledged the students’ skill in teaching their elders a lesson this week. Said Russell, “We don’t know how to manage getting lynched on social media.”

Lynched? Was this a high tech lynching of uppity Board members? The claim of victimhood pales more here than it did in the Thomas confirmation hearings.

Threat to the industry? In less than a week, the students started an organization from scratch and had more pageviews than the Red & Black. The Board might count itself lucky to have those students back and let them keep doing what they’re doing.

The same tools employed by the students were available to the Board members. In fact, they are free. And the fact that the students were better able to use them does not make them parties to a lynching. But it may help explain the dire financial straits in which the paper now finds itself. The Board appears hopelessly out of touch with the very social media engagement that the students used to beat them.

The Parable for Lawyers

I see this struggle as a fight between folks who get it and folks who don’t. The Board clearly didn’t. The students did. There is a similar divide among lawyers when it comes to social media.

There are a bunch of snake oil salemen out there who are trying to profit from lawyers who want to get into social media. But there is no shortcut to engagement. It’s as simple as diving in and learning from the people who are good at it. And to be humble enough that the people who are best at it may be way younger than you.

To quote Mr. Stamper’s memo, the students should “Beg them to engage with us.” How many telemarketing calls and emails have lawyer received promising that, if you hire the person on the other end, that you’ll be able to get more clients through social media. The strategy is essentially an invitation to “beg” engagement. You cant beg people to engage with you any more than you can beg someone to be your friend or beg a girlfriend to not break up with you.

The trick is simply to dive in and engage. Engage your audience. Engage your current clients. Engage them when they call and write. The trick is not pandering but true engagement.

When the students came back on the job, they said that they were now empowered to engage. So, I tested them out. I tweeted this questions to them “What lesson do you think other traditional media outlets can learn from your story from last week.”

Within hours came this answer, “The power of social media mainly; what works and what doesn’t. Too often news orgs forget social media is social, a conversation.”

Substitute the word lawyer of law firm for “news orgs.” and you will have your social media marketing stategy for the next five years.

JQC Zaps Another Magistrate Judge

August 17, 2012/by J. Scott Key

Robin McDonald of the Fulton Daily Report notes in a story today that Murray County Magistrate Judge Bryant Cochran resigned his post as Chief Magistrate Judge. His resignation letter departs from they typical fare of this genre — quivery sharky handwritten script, tendered to Richard Hyde. He doubled the average sentence length to two whole sentences. And the content is different, too.

Judge Cochran made clear that his resignation was not related to allegations that he used the power and prestige of the office of Magistrate Judge to pick up girls (Indeed, one would think that being a county magistrate judge would be an impediment to wooing. You’d want to say vaguely that you are a “judge” or more vaguely “I work at the courthouse.”).

He also noted that the resignation was related solely to the fact that he handed out signed blank warrants to law enforcement. In a written statement that his lawyer forwarded to the Daily Report, Cochran said, “I accept full responsibility for the warrants that were pre-signed.”

It appears that Judge Cochran’s practice was only a slight departure from the way things typically work in the warrant-granting process statewide. You’re suppose to rubber stamp the warrant after the cop fills it out, not before. Judge Cochran’s departure saddens me more than any of the 8,000 other judicial resingations in the last 3 years because his practice was a rare honest statement about how the role of magistrate works. This is the very practice of judicial efficiency and economy that we heard so much about in law school.

Indeed, I was hopeful that the original story was true that his staff actually controlled the issuance of the blank warrants. I would think that a law enforcement agent would actually have work to get a warrant from a clerk.

Interview with Fox 5 News Yesterday

August 7, 2012/by J. Scott Key

It’s rare that the media (particularly the broadcast media) remain interested in a case after it gets into the appellate stage. I’m involved in one of those cases right now. Chris Shaw with Fox 5 News in Atlanta did a thorough job speaking with us about the implications of a recent indictment in a case related to a case we are appealing right now out of DeKalb County.

At the risk of doing two posts in a row that might be interpreted as self-promotional, I encourage you to check out the story. It’s a good chance to meet some of the other folks in my new office, at the very least.

Upcoming Speaking Engagements

August 5, 2012/by J. Scott Key

First, it’s been about three weeks since my last post. Between getting moved into the new office in Decatur and a family vacation, I have been on a bit of a blogging hiatus. I’ve spent time getting accustomed to a new commute and schedule. After so many years in truly solo practice, it is great to have colleagues down the hall. And what great colleagues these guys are!

So, the blogging frequency is now returning to 2 or so posts per week.

And, I want to let you know about two upcoming talks I will be giving. On September 7, Doug Peters and I will be speaking at a Seminar titled Crack the Code. The seminar will help lawyers prepare for the new evidence code, which will go into effect in just four months. Our talk will focus on how the new evidence code affects expert witness testimony. But other speakers include Don Samuel, Mike Hawkins, and Jack Martin. The seminar will be at the Bar headquarters in Atlanta.

And on September 21, I will give the criminal caselaw update at the late summer seminar of the Henry County Bar Association, at the Ritz Carlton at Reynolds Plantation. It’s been an eventful year in the U.S. Supreme Court and in the Georgia appellate courts in the area of criminal law. I’m excited about the opportunity to hit the highlights in an hour of conversation.

I’m looking forward to many great conversations going forward, and I hope to see some of you at these upcoming seminars.

Up and Running in a New Space

July 3, 2012/by J. Scott Key

Appellate lawyers can work pretty much anywhere. We’re the professional writers and advisors of the legal world. I’m writing this post from my home office at 5:30 a.m.

At the same time, there is something to be said for where you do business and where the shingle hangs. This week, the shingle has moved. The Fulton Daily Report did an article about the move. The article is behind a pay wall, but it is quite good if you can read it.

Starting today, my practice is in the same office as Peters Rubin & Sheffield. I still have my own practice. And in that practice, I am doing the same things and going to the same places. Most of the real work of crafting briefs and pleadings is done in this chair at approximately this time. I live pretty far from metro Atlanta and commute in.

But moving the shingle is a significant event, because it changes the people you see everyday. I went solo about 5 years ago vowing always to be solo. Then I worked on an amicus project on a case where Doug was counsel. From there, I began working with his partners, Bob and Jason. We have been working on cases for a few years now. For instance, I worked very hard behind the scenes in State v. Hemy Neuman, and I am contining my work on that case for the appeal. And, while I still have my solo practice, I am working closely with Peters, Rubin & Sheffield on some great cases in addition to my own great cases.

I am with them on so many cases now, that it made sense to move my office to Decatur. And while my practice continues to grow alongside theirs, the fundamentals remain the same.

Our phone number remains the same. Our email is the same. And this blog will continue to be here. Most importantly, I’ll still be here early in the morning, doing the craft. My clients come to me from all over the State, so some of them may not notice that the shingle has moved. For everyone else, I make this announcement. And I’ll see you soon at the new digs.

Congratulations Justice Blackwell

June 25, 2012/by J. Scott Key

Governor Deal has announced that Judge Keith Blackwell will be the Supreme Court’s newest Justice. He will fill the vacancy created by Chief Justice Carley’s retirement.

I have gotten to know Judge Blackwell through my work on the Appellate Practice Section. He will be a great addition to the Georgia Supreme Court.

Ex-Magistrate’s Lawsuit Blackens Eye of Ga. Judiciary

June 20, 2012/by J. Scott Key

This won’t end well. Anthony Peters, the former Catoosa County assistant Magistrate Judge has filed a civil rights suit against the his former boss as well as the Sheriff of Catoosa County. When I read Joy Lukachick’s article (hat tip to her) in the Chattanooga Times Free Press about the lawsuit, I had to pull the Complaint off of PACER, the same way rubberneckers have to slow down to watch the traffic disaster in the oncoming freeway.

And, to my fellow rubberneckers, I offer this Complaint for your entertainment. Take a gander, and sleep well in the assurance that there is some lawyer out there who will file your lawsuit for you. No matter how many lawyers have turned you away, don’t be deterred. You will meet the right lawyer one day: Peters Complaint (PDF).

Savannah Morning News Recognizes Terry Jackson’s Life

June 18, 2012/by J. Scott Key

Today, the Savannah morning news has a fantastic article about the late Terry Jackson, a hero of mine and of many Georgia criminal defense lawyers. I did not know Terry until late in his life. He referred me some cases in the past couple of years, and I am working now on one of his last appellate cases.

Terry received the first Terry Jackson Friend of the Constitution Award from the Georgia Association of Criminal Defense Lawyers. And, as well as I got to know Terry through GACDL, I did not know just how many big cases he had handled in his life until I read the article.

If you knew Terry, this article is worth the read. And if you didn’t know Terry, stop what you are doing, and read the article right now to learn about him.