Opinions and Analysis - Scott Key & Associates

The Baader-Meinhof Phenomenon

October 31, 2011/by J. Scott Key

For those of you who don’t know, the Baader-Meinhof Phenomenon is that weird occurrence where you hear about something for the first time and then encounter it again shortly afterwards. (Don’t worry, I didn’t know that term either until I searched for it on Google. And if there is any truth to this phenomenon you will come across this term again soon.) As a newly minted lawyer, many legal concepts that are second nature to seasoned attorneys are in the forefront of my mind, and my latest fixation is on ineffective assistance of counsel, with a twist.

About a week ago, I benched a moot court competition with a problem involving IAC at the plea bargaining stage. Unfortunately, it wasn’t a cut-and-dried Strickland and Hill issue, since the case involved a defendant who declined a favorable plea offer based on erroneous legal advice and proceeded to trial. In this fictional case, the defendant’s attorney advised him that evidence of shooting someone in the arm and leg would be legally insufficient to prove assault with intent to murder. The defendant was advised to reject a five-year plea offer and proceed to trial. He was later convicted (much to his surprise) and sentenced to a term three times longer than the plea offer.

This scenario doesn’t just occur in the closed universe of moot court briefs, however. In fact, one of the reasons I even agreed to bench the competition was because the problem closely mirrored one of my current cases. While I had thoroughly researched this issue at the state level, I was curious to see the arguments from both sides based on nationwide case law. After watching two hours of interesting debates, I left the competition wondering why the real Supreme Court has not yet decided this issue.

Last night, my question was answered when I ran across a news article discussing two cases involving ineffective assistance of counsel at the plea bargaining stage: Missouri v. Frye, No. 10-444, and Lafler v. Cooper, No. 10-209. While this may not seem strange to any of you, this particular article appeared on the sidebar of my South Georgia hometown newspaper’s website—hardly the proper venue for any academic legal commentary. (Sure, this may have been a coincidence, but I like to think that it’s the Phenomenon at work.) The Supreme Court of the United States heard oral arguments in both cases this morning.

In Lafler, the Sixth Circuit held that Cooper’s attorney was ineffective for convincing Cooper to reject a favorable plea bargain based on an erroneous understanding of the law. The court also ordered “specific performance” of the plea bargain, even though Cooper was later convicted at a fair trial. Here, Cooper was charged with assault with intent to murder and possession of a firearm by a felon after shooting a woman several times below the waist. Cooper was offered a plea of 51 to 85 months, but he rejected the plea offer after his attorney (wrongly) informed him that the state could not prove intent to murder since the shots were fired below the waist. Cooper was later convicted at trial and sentenced to 185 to 360 months in prison.

In Missouri, respondent Frye was arrested for his fourth violation of driving with a revoked license—a class D felony with a four-year maximum sentence. The prosecutor conveyed two offers to Frye’s counsel. The first choice was that Frye could plead guilty and the state would recommend three years, agree with the court if it gave probation, but would ask that ten days be served in “shock” incarceration if probation was granted. The second option would change the charge to a misdemeanor with a maximum one-year sentence, and the State would recommend a 90-day prison sentence. Rather than informing his client about the plea offers, Frye’s attorney entered an “open” guilty plea. Frye was sentenced to three years in prison.

Both cases are important to defendants and criminal defense lawyers alike because they actually address the real-world implications of the plea bargaining process. It is easy to rely on a plain reading of the Sixth Amendment and argue that because there is no constitutional right to a plea bargain, an attorney’s ineffective assistance at the plea bargaining stage does not deprive a defendant of any constitutional rights. But this argument would ignore what really happens in criminal cases. The majority of criminal charges are disposed of by plea bargains, not by trials. For many criminal defendants, a plea bargain is not only a crucial part of the process; it is the only part of the process that involves real deliberation.

After the Court’s decision in Padilla v. Kentucky last year, I have hope that the Court will continue to recognize the real dangers of ineffective assistance of counsel at the plea bargaining stage. The second-prong of Strickland is not only met when a defendant would have insisted on going to trial had he been properly advised at the plea bargaining stage; a defendant is also prejudiced when he would have accepted a plea if he had been properly advised. If SCOTUS agrees, the opinions in Lafler and Missouri will not only change the way lawyers think about their representation during the plea bargaining process, but their whole approach to IAC claims as well.

A few months from now, my fascination with IAC at the plea bargaining stage will subside as my caseload inevitably grows and new issues occupy my mind. The issues presented in Lafler and Missouri will fade away as I am faced with unique questions and research new problems for my clients. Then, one day, I will browse my hometown newspaper’s website and see “SCOTUS Decides Bad Plea Advice Cases” on the sidebar. And the Phenomenon will begin again.

Amanda Knox, the Appeals Process, and Moneyball

October 14, 2011/by J. Scott Key

Today, my recent post on Amanda Knox was quoted by Ronald V. Miller in his Maryland Injury Lawyer Blog. He picks up on my point about the Knox case and other high-profile cases with an unexpected result. For clients and potential clients, such cases reinforce the often mistaken idea that, if you keep on slugging until there is no procedure left, no matter what the odds, you will eventually win. I thought about Mr. Miller’s post all day. And I decided to add a few point here about the idea of “fighting” through to the bitter end and what it means for the appellate process. There’s nothing wrong, in criminal cases, with fighting it through to the bitter end. Unlike in the civil arena where the central issue is money, in criminal law the issue is liberty. For a person with a lengthy prison sentence, the slimmest of odds may be worth the effort. When the issue is money, the time to stop is the point where the resources it might take to win begin to are outweighed by the odds of losing. So, let’s assume that any criminal case is worth taking the appellate and habeas process as far as you could possibly go, there is still an important question to ask. When does the client make the decision that he is in it for the long haul? For too many, that decision comes at the moment the jury files into the courtroom and delivers a guilty verdict. It’s a good decision that comes too late.

You don’t begin the appeal when the verdict comes, you begin the appeal when you open the case at the trial level. Part of client counseling involves planning for appeal. Unfortunately, nobody wants to talk about a guilty verdict at that stage. It’s one thing to purchase life insurance. But nobody wants to purchase life insurance from his doctor. But if you’re the trial lawyer, your job is to win the trial and make a record for appeal.

The movie Moneyball is applicable here. If you’ve not read the book or seen the movie, an important issue is how much traditional baseball stats really tell you about a player. For instance, RBI (runs batted in) is not the stat that you might think it is, because a player who doesn’t often bat with runners on base doesn’t get the same number of opportunities to hit RBIs as a batter who has other hitters in the line up. To drive a run in without base runners requires the batter to hit a home run.

Well, an appellate lawyer is essentially a batter who comes to the plate with two outs already recorded. Even the biggest power hitters will hit home runs infrequently. Take Hank Aaron, for instance. Aaron is remembered for hitting 755 home runs in his career. His total is impressive because he earned it at a time when players weren’t using steroids. But it’s important to consider his home run total in the context of his total career at bats. He had 12,364 career at bats. So the odds of hitting a home run, even for Hammerin’ Hank, were pretty low on average.

If the trial lawyer made a good record for appeal, through objections, motions, and rulings, then the appellate lawyer comes to bat with the bases loaded. At which point, the goal is simply to put the ball in play. It is helpful to look at appeals as analogous to RBIs. An appellate lawyer can hit home runs, but generally it’s much easier to appeal with a good record.

Now comes the part where the analogy breaks down. In baseball, the appellate lawyer can bat in more than one place in the lineup. In the past year or so, I’ve been fortunate enough to be brought into cases to handle motions and objections at the trial level. It’s great to be an appellate lawyer on a trial team. I have a particular role. I’m focusing on the record. The trial lawyer gets to smile for the jury and do all the other stuff trial lawyers do. And the appellate lawyer gets to put himself on base and hit himself in.

Unfortunately, I’m very often called in to pinch hit with two outs where I have to hit a home run to win. Hopefully more trial lawyers will start putting an appellate person on the trial team or at least start learning to see the game through an appellate lens. Hopefully more clients and trial lawyers will take a lesson from Moneyball and not from the Amanda Knox case, where the appeal was a “do-over” and not a detached examination of the errors at trial.

Managing Expectations in the Wake of the Amanda Knox Win

October 4, 2011/by J. Scott Key

I’ve already been asked about it several times. For the criminal trial lawyer, the Casey Anthony verdict was the result that made it difficult to counsel clients on whether to accept a negotiate plea rather than risk a trial against an overwhelming case. Several colleagues have told me that clients have balked in the face of solid legal advice, reasoning “that girl in Florida got off.” Amanda Knox is, I fear, the appellate lawyer’s Casey Anthony. It doesn’t matter that it’s a different legal system in a foreign country. The comparisons are coming. It is time to prepare with some key points when you face the inevitable comparisons.

An Italian legal expert I am not, but the New York Times piece from today highlights key differences between the two systems that are worth noting and highlighting for the practitioner or for the prospective appellate client.

The appellate court in Italy acquitted a criminal defendant. Appellate courts in the United States do not acquit criminal defendants. The nearest equivalent in the US is a finding that there was insufficient evidence to convict and a reversal on that basis. In US Courts, a verdict will be upheld on the facts unless the evidence, when considered in a light most favorable to the prosecution, was insufficient for any reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Appellate courts in the US neither investigate the case nor “reweigh” evidence on appeal.
International media attention appears to have had an impact on the Italian appellate court’s decision. In the U.S., at least in Georgia, media attention doesn’t necessarily help. But sometimes it can have a direct impact. Here, it’s a toss-up.
The appellate process in Italy “evaluates both procedural questions and can reopen the investigative phase.” What’s done is done in the American appellate process. The record is set in stone in an American appeal. The focus here is almost exclusively on procedural questions. Unless there is evidence of misconduct on the part of the State or a significant error from defense counsel, a new investigation won’t help. And in the American system, it is important to file motions and raise objections early and often so that there are procedural things to raise at the appellate level.
Critics noted that the legal system in Italy was “medieval or barbaric.” Our system is entirely too young to be described as medieval. The process in Italy doesn’t seem so barbaric from our perspective, given that there is not a comparable post-conviction process here to re-weigh the evidence. And they don’t kill their defendants in Italy.
The appellate panel was made up of six citizens and two judges. The role of citizens in the U.S. system ends with the verdict, and an acquittal here cannot be appealed as, apparently can the acquittal in Italy.

Again, I am no expert in the Italian legal system. But there is enough of a difference between what happened in the Knox case and what could ever happen in Georgia, to make it an apples and oranges comparison. You’ll get questions from clients assuming that an appellate do-over is possible. And you’ll hear about Amanda Knox. With some preparation, that moment can be a teachable moment.

When Judges Tell Juries About Appeals

September 30, 2011/by J. Scott Key

There’s an old bright line rule about whether judges should mention the appellate process to juries. The subtext is that you shouldn’t do it at all. The literal rule is that you shouldn’t do it in a way suggesting that the defendant is going to lose the trial. The Supreme Court recently reaffirmed on old line of cases on this point. But a dissent in that case followed by a concurrence in an even more recent case, suggests that this rule is changing. This is a tale of two cases enveloped within a tale of even more cases, dating back to the nineteenth century. Keep reading, it’s way more fun than I’m making it sound.

The Faustian Bargain

If you pull up Gibson v. State on Lexis, you’ll see that there is now a big ole yellow triangle in the heading. Click on the triangle, and you’ll arrive at State v. Clements. When you get there, you’ll see that Justice Nahmias and Carley, the dissenters in Gibson, are the reason that the yellow triangle appears. The issue in both cases is whether judges should be in the business of talking to juries about the appeals process and what should happen to their reversal rate when they do.

In Gibson, the jury wanted to read some statements during deliberations that had been tendered at trial. The judge said no, and then he elaborated: “They are supposed to be read like any other testimony, and it would be reversible error for me to give you all the exhibits.” The Court reversed, reasoning that the comment intimated that the defendant was guilty and would need to “appeal his forthcoming conviction.”

It turns out that there is a history of this sort of thing. The Court in Gibson cited the 1966 case of Faust v. State where it reversed a conviction after the judge told the jury that “there are certain which cannot be removed from the indictment, and I am of the opinion it would be improper and maybe reversible error by the Appellate Court if I allowed you to see the indictment with these several entries hereon.”

But there is even a longer history than that. In 1857, when a fictional Scarlett O’Hara would not have even had her learner’s permit to drive the wagon yet, a trial judge told a jury that he “was responsible to the Supreme Court, if he committed an error; that he was a fallible being and liable to err, and that they might under the statute, decide against his opinions of the law, if they thought proper to do so.” Of course, these facts are unique on their face. Indeed, there is likely no other time in the history of Georgia when a Superior Court judge referred to himself or thought of himself as a “fallible being” or “liable to err.” Nevertheless, it is interesting to note that the Supreme Court did not reverse but gave the trial judge a good scolding: “all reference to the Supreme Court, with by trial court or counsel, by way of menace or otherwise, except to cite its decisions, had best be dispensed with.” Ah, yes. The judicial scolding. Nothing signals the offending party that they’re about to get away with something like a judicial scolding. And the dissenters have picked up on it. The 19th-century Supreme Court and the modern Georgia juvenile court share this quality. For you new lawyers out there, when the juvenile judge starts yelling at pee wee, slip a note to mamma telling her to chill out, because pee wee’s going home.

For the dissenters in Gibson, the trial court’s “good talkin’ to” was dicta and serves as a fairly bad foundation for the kind of bright line rule that the Court in Faust constructed. Equally shifty, according to the dissent, was the foundation provided by the 1944 Bryant case, where a prosecutor withdrew an objection to a question posed by the defense, adding “I will withdraw my objection; the Supreme Court – I am scared of the Supreme Court.” Again, the case was factually unique. When was the last time a prosecutor changed course out of fear of a Georgia appellate court? Again, the dissent notes that the prosecutor got a lecture but no reversal of the conviction. Did you note the irony? In Georgia history, lawyers and judges who said that they were afraid of the Supreme Court were told that they should be afraid of saying that they were afraid of the Supreme Court.

Before Gibson, the dissenters reason, the admonition: “don’t be a bonehead. There’s no reason for you to start talking about appeals with a jury” was merely aspirational. With the rule in Gibson, it’s now the law.

Having dispensed with the foundation for Faust, the dissenters then turned to analysis of how little the average juror knows about the process.

Take the Average Juror (Please)

For the dissenters, it is a real stretch to assume that the jury would really know that all that talk about appeals means that the judge thinks that the defendant is about to lose the trial. Justice Nahmias writes, “my own experience is that many lay people are unaware of it and some are surprised by the notion that the State does not have the same ability as the defendant to appeal a verdict.” But even if we assume that they know the law in this area, the dissent goes on, how would talking about the appeals process harm the defendant? It might encourage jury nullification, after all, since the State has no remedy for an acquittal, and the jury owes nobody an explanation for its verdict.

And, the dissent continues, it would be quite a leap to assume that the mere mention of the appellate process by a judge presumes that the judge thinks that the defendant will be convicted or that such a presumption would even matter since even the densest of jurors would understand at some point that the juror, not the judge, is the trier of facts.

The part about the average juror, to me, is the most slippery part of the dissent. “Average people” think all sorts of crazy stuff about the appeals process. I know, because I find myself trying to explain my job quite a bit in social settings to non-lawyers who ask me about my job. Even after explaining that I’m in private practice, lots of people ask me if I prosecute or defend people. And when I explain that I do criminal defense but that it is mainly post-conviction or appeals work, I get either a nod of understanding (from the PBS watching crowd), a blank stare (from the Entertainment Tonight watching crowd) or a full plate of “how can you sleep at night? These criminals get too many appeals? I can’t believe all these people get off on technicalities” (from the Fox News watching crowd).

The trouble is that this is Georgia. And there aren’t enough strikes available to winnow out the Fox News people. And when they hear the word “appeal,” they are thinking something very different than the other average jurors.

Indeed, it’s hard to disabuse clients, no matter how hard one might try, of the notion that you can’t appeal on the basis of “Officer Rogers was a big fat liar.” And most people have unrealistically high expectations of how easy it will be to win the appeal. Do we assume that the average juror knows how hard it is for a convicted defendant to win on appeal? Can we presume that they know the odds any better than the average appellate client? The real harm on mentioning an appeal is that the average juror will not realize just how big the stakes are for the guy on trial. It’s not like football games in the backyard where there’s a disputed call. The appeal is not a “do-over.” And I know that. Does the jury?

So What?

The dissent in Gibson is getting some traction. Hence, the big yellow triangle. In the concurrence in Clements, the dissenters from Gibson note that the Court is going where they should have gone when they decided to that case, with “don’t mention appeals” as an advisory goal and not as a legal rule. And if you look at the reasoning from the majority in Clements, they are exactly right.

The problem is that it is a dangerous thing to start telling jurors about the appeal. And it really is unnecessary. Advisory rules, such as “don’t eat sweets,” are nice. But they don’t have the force of law. And I’m not sure why you shouldn’t just mandate to judges not to talk about the appellate process? Why the big need?

Granted Petitions on Criminal Cases for the Month of September

September 27, 2011/by J. Scott Key

The Supreme Court has granted two petitions for certiorari and one application for discretionary appeal so far this month. Below is an overview of each case

Bunn v. State

In its Order granting Cert., from September 6, 2011, the Court notes that it is particularly concerned with the following issue:

Does the Child Hearsay Statute allow a witness to testify as to what one of the defendant’s victims said she saw done to a second victim? See OCGA Section 24-3-16; Woodard v. State, 269 Ga. 317 (1998); Assad v. State, 195 Ga. App. 692 (1990). See also Crawford v. Washington, 541 U.S. 36 (2004).

The opinion form the Court of Appeals may be accessed here. The COA opinion was authored by Judge Smith, who wrote for a unanimous panel with Judges Mikell and Adams.

The Cert. petition has been pending for approximately 9 months from the time that the COA denied reconsideration on December 14, 2010

Jones v. State

On September 12, 2011, the Court entered an Order granting cert, noting that it wished to consider two issues:

Did the Court of Appeals err in upholding the trial court’s denial of Jones’ request for a subpoena? See Yeary v. State, 289 Ga. 394 (2011).
Did the court of Appeals err in holding that the trial court was authorized to conclude that Jones’ encounter with the police trooper at Jones’ truck was consensual?

The opinion cannot be found because the Court of Appeals Ordered that it not be officially published. Judge Ellington wrote for a unanimous panel joined by Andrews and Doyle. This case is another in a continuing saga by defense attorneys to obtain the source code for the intoxilyzer machine, a popular device used by law enforcement to measure blood alcohol concentration, with an added twist of a Fourth Amendment issue.

Notice of Intent was filed on March 17, 2010, and the cert petition was pending approximately 5 months before cert. was granted.

Harper v. State

On September 23, 2011, the Court granted an interlocutory appeal on this case. The case comes to the Court by way of transfer from the Court of Appeals because there is a constitutional questions involved. The Petitioner is indicted for a violation of RICO, involving allegations of theft from Glock, the company that manufactures firearms. The constitutional issue is whether the provision that extends the statute of limitations for offenses where a victim is over the age of 65 violates equal protection where, as here, the victim is a senior citizen who is a multimillionaire, runs a multi-billion dollar corporation, and is likely heavily armed (I editorialized the heavily armed stuff. It’s not really part of the opinion). Justices Nahmias and Carley dissented from the grant of interlocutory appeal.

New UGA Law Review Article Takes Georgia to Task for the Way We Handle IAC Claims

July 11, 2011/by J. Scott Key

I returned from vacation pleased to find in my in basket at the office a copy of Ryan C. Tuck’s article from the Georgia Law Review on the confusing state of the law as it relates to ineffective assistance of counsel in Georgia. The article is titled “Ineffective-Assistance-of-Counsel Blues: Navigating the Muddy Waters of Georgia Law After 2010 State Supreme Court Decisions.” This article is as good as its title is clever. The article centers on where the law in Georgia is after Garland and Moody.

And the news is not particularly good. And why am I excited about a law review article on a case I lost (sort of) and that demonstrates some issues with how we handle IAC claims in Georgia?

The reason is that maybe things will change. The way we do things in Georgia makes it tough to be a criminal appellate lawyer, disincentives trial lawyers from preserving issues for appeal, and needlessly separates the appeal from the trial in a way that interferes with attorney-client relationships and in a way that probably hurts the client in the long run. And this article give me some hope that the legislature will move Georgia to a system of handling IAC claims more akin to the majority rule.

Mr. Tuck picks up in a familiar place to me. Jim Bonner’s article in the Appellate Review, the Georgia Appellate Practice Section’s Newsletter covered some of the same ground.

What’s Wrong Now?

Under Georgia law, new counsel must raise ineffective assistance of counsel at the earliest possible moment, or he waives it. As claims go, IAC not really good. It’s rarely successful. I have litigated it more times than I can remember, and it’s worked on appeal exactly one time (it’s worked a few more times at the trial level, but generally with a wink and a nod as part of negotiations).

The problem is that clients think that it will work for them, and they pressure new counsel to raise it. There are many reasons why it should rarely be raised. For one, there rarely is a good claim. Secondly, it has a way of becoming the focus of the appeal. Third, even when it doesn’t it can be a big distraction from other real issues of merit. Fourth, analysis under the second prong of Stickland, invites trial courts to weigh in on how strong the evidence was against the defendant at trial. Such careful scrutiny of how good the State’s case was can have a spillover effect to other issues in the case making it that much easier to proclaim that other errors were harmless.

Pressures from the client and systemic pressures (raise it or waive it) can create a real conflict with the lawyer’s ethical obligations not to raise frivolous claims under Rule 3.1 of the Georgia Rules of Professional Conduct. To quote Mr. Tuck’s article,

By creating pressures for new appellate counsel to raise IAC claims against trial counsel, critics contend that Georgia’s approach contravenes this warning from Strickland [that there will be two trials. In the first, the defendant is tried. In the second, the lawyer is, as Mr. Tuck puts it “tried for IAC.”] and institutionalizes a level of antagonism between defendants and their attorneys that can be damaging to overall standards of representation. As one critic asserted, “[i]t causes hell for attorney-client relations if both know from the beginning that they will end up on opposite sides.

And from my experience, this issue marks the place where things can go bad between the attorney and the client. I don’t raise IAC unless I see at least a colorable issue and if it won’t hurt other claims by serving as a distraction and if the second prong won’t spill over into the harm analysis of other issues.

Where Should We Go From Here?

We should require that IAC claims be held until collateral proceedings and take them out of the direct appeal except in the rare case when it can be resolved from the record itself. And, the failure to raise it should not act as a waiver of the issue. It would better the system and make it easier to practice criminal appellate law. And, above all, it would protect the clients from going for a low percentage issue at the cost of other issues of merit, which provide a better chance of success even if they don’t quite understand those issues.

Supreme Court of Georgia Grants Cert. Petitions in Three Criminal Cases

September 8, 2010/by J. Scott Key

The Supreme Court of Georgia is back in full swing. The Court has already heard oral argument in several sessions. Yesterday, the Court granted certiorari petitions on three criminal cases. Each case has important implications for the criminal defense bar. While I am not entirely thrilled with some of the decisions the Court has made recently in criminal cases, this Court’s level of engagement has been quite intense, and the writing has been good. The odd thing is that, while I obviously do not favor pro-prosecution decisions, I have always had a secret enjoyment of conservative judicial writing. Scalia opinions, for instance, great to read. I also root for the bad guy in movies.

I just happen to think those opinions are more fun to read as dissents. On the bright side, an engaged court perhaps seems more relevant to the other two branches of government in Georgia. In recent years, it seems like the other two branches of government would like to be the only two branches of government.

So, here is a summary of the three certs granted by the Court this week:

How to Lose Your Appeal: Ignore the Court’s Rules / Make the Court Find Your Argument

August 30, 2010/by J. Scott Key

It’s one thing to get practice tips from judges at a seminar or in a bar publication. Court of Appeals Chief Judge Yvette Miller has some tips in appellate advocacy in this Month’s Georgia Bar Journal (PDF page 28 – worth the wait for it to download). It’s quite another thing to get advocacy advice in an appellate opinion telling you how you ignored the rules and how confusing your brief was to read.

Such is the case in the August 27 opinion of McCombs v. State. Before the Court of Appeals reaches the case’s merits, they begin by explaining why they had trouble with the appellant’s case:

As a threshold matter, we note that McCombs has failed to comply with Court of Appeals Rule 25 (c) (1), which requires that the sequence of arguments in a brief follow the order of the enumeration of errors and be numbered accordingly. McCombs includes three enumerations of error, but only two argument sections. Moreover, the arguments do not coincide with the numbered enumerations, and do not follow the order of the enumerations. As we have previously held,

Rule [(25)] (c) (1) is more than a mere formality. It is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration. By failing to comply with the rule, [McCombs has] hindered the Court’s review of [his] assertions and [has] risked the possibility that certain enumerations will not be addressed.

We learn two valuable lessons from this opinion. One, is that briefs should comply with the Rules of the Court of Appeals. There aren’t many, and they are easy to find.

The other lesson is that you shouldn’t make the Court work to figure out what or where your argument is. Things are hard enough already for the appellant. Energy and precious resources the Court could spend being persuaded by you should not be spent flipping pages.

Even if Rule 25 did not exist, wouldn’t you want to do what the Court advises anyway? Ever read a book where the chapters were in a different order from the way they were listed in the table of contents?

Maybe Mr. McCombs’s conviction would have been affirmed anyway. But confusing the Court to the point that they start an appellate opinion giving you practice tips was certainly no help to the cause.

So, in short, read the rules. And write with the reader in mind with a resolve to make things easy. It’s important in any written work. It is particularly so when you are trying to convince a judge that she should order a person to receive a new trial.

11th Circuit Reverses Conviction on Failure to Charge on Reliance on Advice

August 29, 2010/by J. Scott Key

Professor Ellen S. Podgor reports in her White Collar Criminal Prof Blog that the 11th Circuit Court of Appeals has reversed several convictions in Kottwitz.pdf because of a trial court’s failure to charge the jury on the defendants’s good faith reliance upon an accountant’s advice. The Court has also held that, regardless of the strength of the government’s case, issues of fact should be decided by a jury and not by an appellate or trial court. Professor Podgor found particularly significant the Court’s reasoning that:

A trial court is not free to determine the existence of the defendant’s theory of defense as a matter of law; it is established by the defendant’s presentation of an evidentiary and legal foundation and, once established, the defendant is entitled to jury instructions on that defense theory.

Carl Lietz and Paul Kish also provide some helpful commentary on this case in their excellent Federal Criminal Lawyer Blog. From a practice perspective, they point out the importance of requesting a reliance upon professional advice charge in white collar cases where it is factually applicable.

A More General Takeaway from the Decision

Jury charges should be an important of a lawyer’s approach to a criminal trial. The charge conference is probably the single best place to plant appellate issues in your record because charging errors are seldom harmless.

The Georgia Court of Appeals Should Adopt a Similar Harm Analysis

The Georgia Court of Appeals appears to be of two different minds about how to analyze harm in jury charge issues. In a recent case, they reasoned that a failure to charge on a lesser included instruction authorized by a defendant’s testimony was harmless. Yet, in a slightly less recent theft case, the Court held that harm was practically presumed from a charging error even where the defense was “incredible.”

The case demonstrates how important jury charges should be to preserving the record for appeal and how the jury’s power to function as factfinder is at stake when it comes to analyzing harm from charging errors.

Preserve the Record Alert: Felon in Possession Statutes are Low-Hanging Fruit

August 11, 2010/by J. Scott Key

, Professor at Moritz College of Law at Ohio State University reports at his blog, Sentencing Law and Policy, that the Seventh Circuit has suggested that a non-violent felon might prevail on a Second Amendment challenge if he brings an as-applied challenge to the Federal Felon in Possession statute (18 U.S.C. Section 922(g)(1))). In U.S. v. Williams.pdf, No. 09-3174 (7th Cir. August 5, 2010), with retired Justice Sandra Day O’Conner participating as a member of the panel, the court rejected a challenge to the statute brought by a defendant with a violent felony record.

Professor Berman finds particularly noteworthy the following paragraph from the Williams opinion:

And although we recognize that Section 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams. Even if the government may face a difficult a difficult burden of proving Section 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges [the statute] as it was applied to him. … Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of Section 922(g)(1).

Looks like an engraved invitation for a non-violent felon to bring it on. And though we Georgians are not in the 7th Circuit, it looks like a nice little opportunity to throw a challenge into your record if you are representing someone at the trial level who is a non-violent felon charged with a felon-in-possession charge under the Federal statute or under Georgia’s comparable statute. Wouldn’t hurt.

When I get your record on appeal, it will give me something more than Jackson v. Virginia to talk about.