Opinions and Analysis - Scott Key & Associates

U.S. v. Irey: The Return of the Federal Sentencing Guidelines in the 11th Circuit

August 4, 2010/by J. Scott Key

There is a moment in most great horror movies where the evil presence/bad guy/ghost/homicidal maniac takes out a character who has it coming. For a moment, the audience applauds the wicked antagonist. Think of Jason from Friday the 13th taking out a weaselly teen or the scene in Jurassic Park where the velociraptors eat Dennis Nedry (a/k/a Newman from Seinfeld). Eventually, though, the antagonist continues to do damage to good characters, bad characters, and everyone in between.

If the Federal criminal justice system is the horror movie, then the Federal Sentencing guidelines are the antagonist. Last week, Jason from Friday the 13th re-emerged from the lake. It just so happens that he took out William Irey, a guy who had it coming. But the Guidelines are back with a vengeance to haunt us in a way they haven’t since the Booker decision, and they’ve already started slashing away at the discretion of Federal District Court judges. If Mr. Irey applies for certiorari, then it may be time to start thinking movie antagonist on the level of the big red eye from The Lord of the Rings.

The Bad Guy Who Got What was Coming

Meet William Irey. Mr. Irey was a successful businessman who took multiple trips to Asia where he filmed himself exploiting children. He came back to the States and distributed the images over the internet. I am not going to say more. In fact, I have not found a blog or article on this case that recites the particulars. For that, you have to read the opinion (PDF). In summary, I don’t think I’ve read about worse facts in a child sexual crime case.

Mr. Irey plead to a single count of child sexual exploitation under 18 U.S.C. Section 2251, an offense that carries a range of punishment from fifteen to thirty years to serve. The Federal Sentencing Guidelines called for a sentence of life in prison or the maximum sentence.

The sentencing judge deviated substantially from the guidelines recommendation and sentenced Mr. Irey to serve 17.5 years, just two and a half years over the minimum and a 12.5 year downward variance from the guidelines sentence.

To make things worse, the sentencing judge said some rather unfortunate things. The worst was the court’s decision to refer to Mr. Irey as a victim.

As Scott Greenfield put it in his post on the Irey case, the judges could not live with the prospect of Mr. Irey ever walking out of prison. David Oscar Marcus, at the Southern District of Florida Blog, reaches similar conclusions.

The problem is how they got there and the fact that the 11th Circuit has revived the Federal Sentencing Guidelines in a big way.

Client Autonomy on the Front Lines as a Georgia Appeals Lawyer

July 26, 2010/by J. Scott Key

From Bob Mabry at his blog, Courts and Writing, I learned about an article by University of Georgia law professor Erica J Hashimoto in the latest issue of the Boston University Law Review. According to Professor Hashimoto, the criminal client should have a complete right to represent himself at trial and on appeal. Also, when a client has a lawyer by appointment or whom he has retained, Hashimoto argues that the client should control all matters in the case including which defense to choose, which witnesses to call, which errors to enumerate on appeal, and how the appellate brief should be written. I agree with the professor generally. The client’s autonomy is important. Criminal counsel should communicate regularly and consider the client’s views. However, I cannot go so far as to agree with the specifics of her argument. The client should not have the power to control which issues are chosen for appeal or how the appellate brief should be structured or worded.

Professor Hashimoto’s Argument

The general thrust of the article is that courts since Faretta v. California have taken an increasingly paternalistic view toward the client in a way that has undermined the client’s autonomy in violation of the Sixth Amendment. Hashimoto then proposes that courts return to regime where the client controls all issues in the case, with the advice and assistance of counsel. She argues that, when the 6th Amendment was drafted, few criminal defendants had lawyers, and that, when they did, the client called the shots on all major trial and appellate issues. So, the framers never envisioned a legal system where the acceptance of a lawyer meant a waiver of the right to control the flow of the case.

Next she argues that the plain language of the 6th Amendment envisions that the client can call the shots on everything with the assistance of counsel.

Finally, she points out that control of the trial is the last major opportunity the accused has to control his destiny before going to prison and ceding all control over day to day activities to prison officials.

While there are some things I like about this article, there are some things about it which, if true, would make it difficult to professionally represent clients on appeal.

A New Approach to Felony Murder and a New Template to Attack Precedent in Georgia

July 19, 2010/by J. Scott Key

There are two big stories in the Georgia Supreme Court’s decision in Jackson v. State. The first is that the rule of causation for felony murder that had been in place for thirty years has been changed. The second is that the majority has provided a framework for any appellant to use in future cases to use to attack the concept of precedent itself. While it probably is intended as a tool for the State to use against persons charged and convicted of crimes, it is worth a try on your client’s behalf. Precedent doesn’t mean what it used to mean, and by “used to” I mean before the Jackson opinion came out.

This opinion has several moving parts. So many, in fact, that I wrote up a State v. Jackson mindmap.pdf for use in interpreting and following it.

Facts and Procedural Posture

Factually, the case reads like a case out of a law school exam. Carlester Jackson, Warren Smith, and Jerold Daniels decided to rob a drug dealer. Daniels approached the intended victim with a handgun with Jackson nearby in a getaway car. The victim and Daniels exchanged gunfire and Daniels was killed by the victim who was acting in self defense. The State charged Jackson with felony murder for causing the death of co-conspirator Daniels while all three were engaged in the felony act of armed robbery.

In short, the issue in the case was whether a co-defendant can be charged with, prosecuted, and convicted for the death of a co-defendant at the hands of a victim who kills another co-defendant in self-defense.

The trial court followed precedent and dismissed the charges. The State appealed the dismissal specifically to ask the Supreme Court to overrule Crane v. State, the case that said that such a prosecution could not be brought.

The Supreme Court reversed the trial court, overruled Crane, and set up a new test — a meta-test — to use to determine which precedents are worthy of standing and which ones ought to go.

Supreme Court of Georgia Changes Approach to Sentencing After Appeal

July 13, 2010/by J. Scott Key

In Adams v. State.pdf, the Supreme Court of Georgia held that it is appropriate for a sentencing judge, after a reversal for judicial error, to impose a greater sentence on an individual count as long as the sentence in the aggregate is not increased. The dissent, consisting of three justices, reasons that the Court’s holding reverse long-established precedent.

The Key Facts

Here are the facts. Tavins Lee Adams was convicted of child molestation, aggravated child molestation, aggravated sodomy, and enticing a child for indecent purposes for actions that took place in a single incident.

The Original Sentence

aggravated child molestation merged into aggravated sodomy 20 years to serve
child molestation 20 years to serve
enticing a child for indecent purposes 20 years to serve

Sentence After Motion for New Trial was Granted and After Re-sentencing

child molestation merged into aggravated sodomy 30 years to serve
enticing a child for indecent purposes 20 years to serve

Adams appealed, arguing that the trial court’s decision to increase the sentence on aggravated sodomy was in increase in punishment, not allowed by the United States Supreme Court’s holding in North Carolina v. Pearce. The Court of Appeals held that because, the aggregate sentence was less than the original aggregate sentence, there was no problem with the sentence.

Getting Past the Presumption

The majority opinion, consisting of the usual suspects on cases like these (Nahmias, Melton, Carley, and Thompson), held that the trial court did not violate the principles in North Carolina v. Pearce (a U.S. Supreme Court holding that a trial court cannot increase a person’s sentence after he prevails on appeal. The Court held that there is a presumption of vindictiveness whenever a more severe sentence is imposed after a new trial, “which may be overcome by objective information in the record justifying the increased sentence”).

For the majority, it was key that the trial judge granted a motion for new trial and merged an offense rather than being told to do so by the appellate court. For the minority, such a distinction did not make a difference because the judge followed the law and he acknowledged making a mistake after such was pointed out by the defendant.

Meet the New Analysis

After the majority takes apart the presumption by reference to the motion for new trial, it sets out in division two of the opinion to really do some damage to Georgia precedent. Justice Carley starts out in the law of other states, finding that “the vast majority of federal and state appellate courts that have addressed this issue have adopted the aggregate approach, which requires a court to “compare the total original sentence to the total sentence after resentencing. [I]f the new sentence is greater that the original sentence, the new sentence is considered more severe.”

Some other States, he points out have adopted the “remainder aggregate” approach that compares “the district court’s aggregate sentence on the nonreversed counts after appeal with the original sentence imposed on those same counts before appeal”

Finally, Justice Carley points out that a few states have adopted what he calls the “pure count-by-count approach,” which requires that counts be considered separately. We find out in the minority opinion that Georgia, before this opinion came out, was once one of those states.

Without so much as a tip of the hat to our precedent, the majority points out that the aggregate approach is the one that is most pragmatic for the trial judge to use. Of course, convenience and practicality are not Constitutional principles (far from it). Yet, in response to the minority’s reasoning that mandatory sentencing and parole consideration may increase the net amount of time a defendant may serve under an aggregate scheme, he dismissively notes that such concerns are “not relevant as the statutes have no constitutional implications in that context.”

Turning back to the “practicalities” of the new rule, the majority reasons that there is “a minimal likelihood of vindictiveness.” Applying the law to the new facts, the majority points out that, in the aggregate, the defendant received 50 years to serve rather than the initial 60 even if he got more time than before on one count. He calls this sentence “significantly less severe,” which might be the case if the defendant were Highlander.

More Stuff to Think About

This has become a very fractured Court. Since Georgia became a one-party system, the Court has changed. The new guard is not particularly a slave to principles of stare decisis. Though the court is a more exciting place — oral argument is certainly more fun there than it’s ever been — it’s also tougher to practice law. Trial lawyers cannot easily advise clients based upon the law when even settled law may not be settled. Also, it is likely going to become more difficult to use precedent to convince trial judges of what the law requires when so much precedent is a moving target.

Jamie Weis Appeal Puts Georgia’s Criminal Justice System on Trial

July 7, 2010/by J. Scott Key

Adam Liptak’s recent editoria l in the New York Times will provide comfort for those of us who have watched the legislature and governor gut indigent defense in Georgia and attack the judiciary systematically. At the same time, it is a little embarrassing to read about the system that I love so much and wonder what the rest of the world must think of us. Reading national press on Georgia during the civil rights movement must have been like this. At the same time, the heroes in this story, such as those with the Southern Center for Human Rights are Georgia appellate lawyers working to make a difference. So, there’s a good bit to be proud of, too.

In fact, the Jamie Weis story demonstrates the difference appellate lawyers can make for the client and to the very system that has so far undermined him. It makes me proud to be a Georgia criminal appellate lawyer.

So, in case you missed it, here’s the story. Jamie Weis was indicted for murder in the Griffin Judicial Circuit. He has been in jail awaiting trial since 2006. August of that year, he was noticed with the intent to seek the death penalty. By March, 2007, the lawyers who had represented him for the beginning couldn’t get any more money to fund the defense. The State has adequate funding to try to convince a jury to kill Mr. Weis. But when the money ran out, the prosecutors were allowed to pick their opponent. They convinced Judge Caldwell — yep, that Judge Caldwell — to replace the lawyers with salaried public defenders. On its way to issuing a 4-3 Decision (PDF) determining that it was okay to substitute cheaper lawyers chosen by the State, one of the justices suggested at oral argument that defense counsel should work for free. He never suggested that the judge or prosecutor should work for free.

The damage has continued. Recently the Court dodged a similar challenge out of Cobb County, Phan v. State (PDF) where it had another opportunity to declare that indigent defense in Georgia is broken. They punted the case back to the trial court to make a determination that it had already made. Phan is to Weis what those two little girls are to each other in the Overlook Hotel in The Shining — not quite identical but really disturbing.

But there is hope in the combination of Georgia Appellate Lawyers, the U.S. Supreme Court, and recent media attention. Hopefully, all of those forces can overcome the other two branches of government in the Georgia political establishment (see the reference to the girls from The Shining).