Some Lessons from a Trial Appearance

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This week, I am trying a criminal case. My practice is predominantly appellate, but I have brief forays into the work of criminal trial practice. And today began such a case. While it’s not appropriate to go deeply into the particulars, I think that jury selection today was particularly instructive. I don’t know whether this case I am trying will eventually turn into an appellate case. If it does, I am trying not to waive anything.

I try to avoid the three-part essay, the three point speech, or the five paragraph essay. But it turns out that there were three appellate lessons that I learned today. The overarching lesson was that it is sometimes important to do a trial to remember just what it is like. But more specifically, I take the following three lessons from day one of my trial:

  1. Get the court reporter to take everything down. In the average Georgia felony jury trial, the court reporter will take down only the evidence, objections, and the charge conference. Ordinarily, that may be enough. But if you have a case where the topic is sensitive and where jurors are likely to be biased, it is best to have the voir dire taken down. Today’s voir dire wore me out. The case is a child molestation, and there are inevitably people who just don’t want to be on a case like that. There are also man who bring baggage with them into the trial. I had to work hard to get some jurors excused for cause with the Court and the State fighting to “rehabilitate” the jurors. In the end, I had to burn only one strike. Three jurors were struck for cause. The take-down was key. Don’t know what would have happened otherwise, but the court reporter probably was a big help in how the questioning went. She may have gotten those jurors struck. Don’t let the proverbial tree of error fall in an empty forest.
  2. Effective assistance of counsel requires frequent attorney-client communication followed by recitations on the record. There are two decisions that only the client can make — whether to go to trial and whether to testify. Both must be informed decisions. So, get ready to explain. Also, get ready to summarize some things for the record either way. I’ve done lots of writing, calling, asking questions, answering questions, and stating things for the record this week.
  3. It’s hard to try a case with an eye to an appeal. My best appellate issues so far have been deprived from me because the judge ruled my way. Well-founded objections get you one of two things — a fair trial or a shot on appeal. This trial reminds me of what a mental challenge a trial is. It is quite difficult to Sunday morning quarterback. It is much easier to play quarterback on Monday.

I’m sure more lessons will follow as this trial progresses.

The “Great Trial Lawyers” Get Creative When Making a Record

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I really loved Maxwell Kennerly’s blog post yesterday, Titled “Young Lawyers: Be Careful Emulating Great Trial Lawyers.” I loved the ethos though I am not wild about the application. Mr. Kennerly’s post is a reaction to another blog post offering advice for trial lawyers. Essentially, Mr. Kennerly wonders whether it is a good idea for young lawyers to learn from great lawyer characters from old movies. More particularly, he wonders whether lawyers should use some of the tools Paul Biegler, played by Jimmy Stewart, used in the 1959 movie Anatomy of a Murder. Those tools include speaking objections, ignoring the judge when he tries to govern your conduct, and knowingly asking questions in violation of the rules of evidence in an over the top, Jack McCoy on Law and Order sort of way.

He thinks he would advise against it but laments that fact and wonders aloud.

My fear is that as the hairs on my head gray, I have become increasingly conservative. Rather than thinking outside the box, I recokon where the walls are before trial and try to stay within them, to demonstrate my legal acument. But since when is trial about anything other than the narrative at hand? Is time spent in silent struggle with [the] evidence code time that could better have been spent constructing a narrative that persuades, and then finding the means to tell it, including the drawing of objections?

There are two ideas in this well-written paragraph presented as mutually exclusive that really are not. But I think it’s important that the point not get lost. That point is the single thread that runs through his blog post. So, let’s take the thread first then come back to the two points.

The thread is the idea of Beginner’s Mind. I think it’s okay to go there in talking about this post because there’s a zen category on Mr. Kennerly’s blog. In his prologue to Zen Mind, Beginner’s Mind, Shunryu Suzuki writes that

In the beginner’s mind there are many possibilities, but in the expert’s there are few. … For a while you will keep your beginner’s mind, but if you continue to practice one, two, three years or more, although you may improve some, you are liable to lose the limitless meaning of original mind.

I’m not sure that Suzuki would appreciate me lifing these concepts out of context and dropping them into a discussion of trial law and preserving an appellate record. But they work, and I think that Mr. Kennerly is getting at it. So, now to the mutual exclusivity piece.

  • Yes, it is important to find your narrative or your story. That story should be the glue that holds it all together for you. And it is the glue that holds an appeal together as well. If you are the appellant and you only talk nuts and bolts, you will lose most of the time. The nuts and bolts are how you win. But the narrative gives the court (for the trial lawyer, the jury) a reason to want for you to win. But the narrative is not the banner you carry with you as you march over decorum or the rules of evidence. The narrative is what drives those in power to help you win. You take the narrative with you into the time you spend struggling with the evidence code. After all, suppose your opponent finds her narrative. Should your opponent’s grasp of narrative allow her to introduce your client’s character, comment on his failure to testify, or wave around evidence that probably can’t be admitted to inflame the jury?
  • Thinking outside the box means approaching the law with a sense of creativity, even playfulness, and finding new angles, challenges not dealt with before now in precedent, and a view of the statute and cases with a new set of glasses. With your beginner’s mind, you can ask the judge for rulings based upon your fresh approach. If you win, all the better. If you lose, then the appellate lawyer will have something to try in the appellate court. But outside the box should not mean acting less than an officer of the court (not saying that Mr. Kennerly claims that you should, but others might read his writing on this point and reach this conclusion on their own).

Now, getting back to Jimmy Stewart’s character. He’s not exactly a guy in love with the law. There is a real cynicism in him as portrayed in the movie. He’s not exactly finding the narrative and using it to breath life into the trial. Remember the famous scene where he tells his client all the possible defenses before he gets his story so that client will shape the facts accordingly. The character is actually everything that Mr. Kennerly fears lawyers might become with age.

A beginner’s approach is in order. It will make it fun for you, and it will make for a better appeal — if you ever need it.

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

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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.

Managing Motions for Mistrial in Georgia to Preserve Them for Appeal

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So, I just got finished reading a transcript on a case I am appealing. Halfway through the trial, a witness for the State said something highly improper. Counsel moved for a mistrial. These moments in the reading of a transcript are a little like watching a really close college football game, because I am pulling for some magic words that preserved the record for appeal. So, I flip the page, and the lawyer explains why the testimony was improper and why a mistrial is necessary. Good stuff.

Cue the drama and suspense music. The judge dismisses the jury. As soon as the jury is out of the room, there’s a little more argument. The Court tells the State and the witness not to say it anymore. The Court makes the prosecutor warn all the other witnesses not to say it. The objection is sustained.

Then, the jury is asked back in, and the trial continues. No ruling on the motion. No renewal after corrective action. Nothing but a good appeal down the tubes. Mistrial issuesin a transcript are often the litigation equivalent of a Gilligan’s Island rescue. They almost preserve the issue for appeal, but they don’t quite make it.

So, since my theme this week is preserving the record for appeal, let me say a few things about managing mistrial motions in Georgia.

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Sheepish or Sarcastic: It all Looks the Same on the Record

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Picking up on yesterday’s theme, I have been thinking more about why lawyers don’t make good records on appeal. So, I’m going to take a stab at it, and this stab is applicable to criminal trials only. As far as I know, civil practitioners have their own reasons for not preserving a good record for appeal.

I think that part of the blame goes back to the way criminal defense associations do their CLEs. There’s a steady undercurrent that I’ve noticed in the seminars I’ve been attending that encourages lawyers to engage trial judges in a war. I think for a young lawyer just getting started in the biz, it can make things more intimidating. There’s this sometimes subtle and sometimes not subtle at all theme that real lawyers should find a way to go to jail for their client. I’m not saying that the moment won’t arise where tough choices must be made and that those choices could equal incarceration. I just think that moment may be a once in a lifetime or so occurrence. Otherwise, there’s no need to go seeking it out.

But, you might ask, how do I preserve the record on appeal if I don’t get up in the judge’s face? If you are asking yourself this question, you’ve been listening to some radical criminal defense CLE speakers for too long.

Over time, I’ve noticed something about trial transcripts. I’ve talked to lawyers who tried the cases I’ve read, and they’ve asked me things like, “did you see where I showed that judge who was boss?” “Did you see where the judge screamed at me?” Often, the truthful answer is “no” and “no.” If you scream “objection, leading” at the top of your lungs, or if you whisper it gracefully and lovingly, it looks exactly like this on the page: “objection, leading.”

In fact, there are several other things that don’t make their way onto the page. The list includes mean looks, eye rolling, pointing, tears, and leaping up out of your chair.

At the end of the day, I think this saber-rattling stuff that speakers on record preservation shout is contributing to the problem of bad records. If preserving the record means engaging the judge in a shouting match, then better to just sit here.

Step back, take a deep breath, and reframe. Preserving an issue for appeal is pretty easy, and you can do it and sound like a yoga instructor while you do it. Listen for the objectionable stuff. Stand up. Smile. Put on your most soothing voice and say, “objection, your honor.” state your reasoning. Wait for the response. If the judge waves you off, rolls her eyes, or says “move along, counselor,” just smile again and ask, “I’m sorry, your honor, did you overrule my objection.” Wait for the answer. Then say, quite sheepishly, “may I have a continuing objection to this testimony on the same grounds already stated?”

Judges get it wrong sometimes, and it can be frustrating. And a fact of life for defense counsel is that you are going to lose most of your objections. The judge is not going to grant your mistrial motion. He won’t give your request to charge, particularly if the State is opposed to it.

When those moments come, channel your inner Columbo.

Ever notice that the umpire never changes his call, no matter how much the manager gets in his face, spits on him, or screams creative combinations of obscenities? Ever notice how many managers get thrown out of the game? Where does this analogy break down? The manager who’s thrown out of the game gets to hang out in the clubhouse, which is a pretty cush place.

Take the pressure off of yourself. You don’t need to go to jail. You just have to say a few words loudly enough for the court reporter to hear them.

How to Make the Transcript More Fun to Read

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The average trial transcript handled by the average criminal trial attorney is a sad sight to behold. All of my client’s hopes turn on what is said in this document and often, I am sad to say, on what is not said in this document. There is one word that makes the difference between dead lifeless prose and a story that leaps from the page. One word — objection. I am not sure why more lawyers don’t say it, but it doesn’t get said enough.

If criminal trials were a baseball game, then baseball would look much differently that it currently looks. Imagine the umpires paying close attention but not saying a word. Pitch by pitch, hit by hit, not a word spoken as the teams play the game. However, the moment that a player asks for a ruling, the umpire says “strike” or “safe” or “out.” Imagine if, for once, when the manager emerges from the dugout, the umpire could make a definitive ruling, but he won’t do anything at all until then. And, if you say nothing the whole game and you lose, it’s your fault because you never asked any of the umpires to make a call.

I read many transcripts where my team loses and nobody said a word.

In Georgia, “all evidence is admitted as a matter of course unless a valid ground of objection is timely interposed.” Moore v. State.

So, it is important to describe the words that, when found on a transcript, are music to an appellate lawyer’s ears:

  • Objection followed by reasoning. For instance, “objection, the question calls for hearsay,” or “objection “the evidence is irrelevant, it’s hearsay, and it is unduly prejudicial.” Keep in mind that you don’t need to scream it. You don’t need to smirk or anger anybody. In fact, a sheepish frighteneed quivering voice objection looks exactly like a loud, sarcastic, smirking objection in the Courier New font on the prited page of a transcript. If you don’t state the reason for the objection, then you haven’t objected really. Hawkins v. State.
  • A Ruling. The judge ideally will say “overruled,” “sustained,” “I’ll allow it,” “I won’t allow it.” Those words are distinct from “move along,” “I note your objection,” “okay,” “ummm huhhh,” or silence. If your judge doesn’t rule, you can ask, again, with a quivering voice, sheepishly, with a single tear running down the side of your flushed red face, whether the objection is sustained or overruled. Remember, it all looks the same on the transcipt.
  • Continuing. If something happens once, it’s likely to happen five more times, particulalry if it really hurts your client. So, you can object every time or you can ask that your objection be continuing.

Three things make the difference between a dull lifeless depressing transcript and a transcript that is the equivalent of something written by Tolstoy: (1) objection plus reasoning; (2) a ruling; (3) and an objection that continues.

Think about it and make your next transcript a great written work.

What to Do if You’re Not the First Lawyer on the Case

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Another lawyer contacted me about a case she is working on. She wasn’t the trial counsel. She wasn’t the lawyer on the motion for new trial. In fact, one lawyer handled the trial. A second lawyer handled the motion for new trial. She was hired after the motion for new trial was denied but just before the appeal was docketed in the Georgia Court of Appeals. She wanted to raise ineffective assistance of trial counsel on appeal How could she do that?

She had found a case that seemed to speak to this situation. In Ruiz v. State (2009), appellate counsel took over in just the situation described above. Appellate counsel entered an appearance after the appeal was docketed for appeal. Motion for new trial counsel entered an appearance after the trial was over but chose not to raise a claim of ineffective assistance of counsel. Counsel requested a remand so that he could raise ineffective assistance of motions counsel.

The Court held that ineffective assistance of trial counsel was waived because new counsel failed to raise ineffective assistance of counsel at his earliest practicable opportunity, which would have been the motion for new trial stage. However, the Court went ahead and reached the merits of the ineffective assistance of motions counsel issue on the record before it without making a remand. Though, from the language of the opinion, had the issue not been apparent from the record, a remand for a hearing on ineffective assistance of motions counsel would have been authorized.

So, my advice to the lawyer who called me was to do one of three things:

 

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Georgia Judicial News: Judges Gone Wild Edition

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I don’t want to bury the lead. So, here it is. There must be enough error out there in Georgia to win a slew of appeals. Georgia judges must be messing up on hearsay, the Fourth Amendment, and jury charges. All those things are hard. Many of them, so far this year, are messing up on more basic things such as — do keep your hands to yourself, do show up for work, don’t make Facebook friends with a woman you think is hot and offer advice on a case pending in your court, don’t go parking with a public defender assigned to your court, and don’t — well, don’t do any of that Johnnie Caldwell stuff. Seriously, if Georgia judges haven’t nailed down those basics, then it’s very likely that some good objections at trial will probably produce some reversible error at trial

 

A Recap of Today’s News

It’s a good thing no apartments caught on fire in Atlanta today, because tonight’s 6 o’clock news was all about judges. First, Judge Kenneth O. Nix, who had been a judge since 1982, abruptly resigned today in the wake of what he called a “misunderstanding.” A female ADA assigned to his courtroom and a female investigator posed for pictures in his lap and apparently became upset after he, in his own words “flicked them both on the fanny.”  The incident landed the Georgia judiciary back in the national news. The local broadcast media also covered the story. Judge Nix was apparently known to dress as Santa and have people sit in his lap.

Meanwhile, the local broadcast media covered the abrupt resignation of Fulton State Court Judge Albert Thompson after a local media outlet examined records that showed he only entered the courthouse 55 weekdays aout of a possible 147 weekdays that the courthouse was open. In a 30-week period, he spent about 43 minutes per week in the courthouse.

 

More Judges in the News

The governor announced his replacement for Paschal English and Johnnie Calwell. Speaking of Santa, Judge Caldwell apparently had a Santa complex also. Their replacements were announced today — Fayette County State Court Judge Fletcher Sams and Former GPDSC head Mack Crawford. Mr. Crawford’s nomination had moments of controversy when Stephen Bright, of the Southern Center for Human Rights wrote a letter to the Judicial Nominating Commission opposing him as judge (PDF). Of course, the abrupt resignation of Caldwell and English was news when it happened.  The announcement of their replacements was news today.

 

And There was the Facebook Judge

Remember Judge Ernest Woods a/k/a Bucky Woods who got the ball rolling back in January, 2010? Seems so long ago and so many judicial scandals back. He was the first Georgia judge to get zapped this year based upon some Facebook contact with a local hair stylist who had a case pending before him. Katheryn Hayes Tucker covered the story on Law.com way back then.

 

And My Point Is

The point of this story is not that Georgia has suddenly become a giant Scott Turow novel — though that point could be made and defended. My point is not that there is some sort of conspiracy afoot to put more Sonny Perdue appointees on the bench — though that does sound interesting.  The point is that if Georgia judges are messing up on the basics, then you’ll likely get some mistakes on the record if you just object more. Who knows, after all, what Santa might bring.

 

And the Box Score

Number of Chief Judges who Abruptly Resigned: 4

Number of Times Santa Claus was Referenced: 2

Number of Times “Some people claim[ed] there’s a woman to blame:”5

Number of Resignations letters referencing need to spend time with family 5

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

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, 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.

Timing Problems for Getting Retained on Georgia Appeals

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One of the problems with appellate law is that clients either show up too late or early. Some clients show up too late and too early.

Too late is after the trial attorney has screwed things up, after a deadline has passed, or after the client took things into his own hands and dabbled in his appeal.

Too early, is when the conviction has just happened and the transcript is not ready yet where nobody can say exactly what the errors were, if any.

Too late and too early is after the trial lawyer screwed things up, no transcript is available yet, and the deadline to file the motion for new trial is four hours away.

Ideally, the client comes in after being convicted, with the trial transcript in hand, with a referral from an excellent trial attorney who made all the necessary objections, filed all the right motions, and received bad rulings from the trial court on every one of them. The lawyer filed a motion for new trial, the hearing on it is three months away, and the client is out on an appeal bond. Really ideally is when the trial lawyer brings me on to assist with legal issues with a mind toward making the best possible record and with a mind of handing the ball to me if the client gets convicted. The trouble is that most clients don’t want to think about dealing with a conviction until they are convicted and don’t think it will happen to them.

When people come to see me for an appeal, it is often with variations on one of two scenarios. I’ll give you the most extreme examples of each.

 

Scenario One

The husband/brother/son/nephew/friend was convicted in 1998 and is serving a life sentence. He had new counsel represent him on appeal. Counsel was unsuccessful, and the conviction was affirmed in 2001. At that point, husband/brother/son/nephew/friend was fed up with lawyers and filed a pro se federal habeas petition, which he unsuccessfully appealed to the 11th Circuit Court of Appeals. He then filed a pro se State habeas in 2003, which was denied and unsuccessfully appealed to the Supreme Court of Georgia and another pro se habeas petition in 2005, which was dismissed.  He really knows a lot about the law now after all these years. He’s drafted his third habeas, and wants me to be his co-counsel.

 

Scenario Two

The wife/sister/daughter/niece/friend was convicted 29.5  days ago. The person who comes to see me did not see the trial because the rule of sequestration was invoked, but he thinks the wife/sister/daughter/niece/fried was railroaded. They don’t understand how this could have happened. They hired the lawyer in town who worked on Uncle Jake’s will and who closed the loan on their house. After they hired him, he quit taking phone calls, and all the discussions of the case were in the hallway on the way into or out of court at arraignments and calendar calls. One day, they got a call at 10:30 on a Tuesday morning to come to court. Low and behold, the judge made them start the trial. Now, she’s got a life sentence. All the witnesses lied. The judge was really mean. So was that 24 year old prosecutor who said this was her first case after passing the bar. They are tired of getting the run around from lawyers. They heard you do appellate law. They will hire you, but they want to know right now if you can win. And they are going to watch you like a hawk because they see how lawyers can act. Oh, and they don’t have any money left because trial lawyer dude got $250,000 already for the trial. Oh, and can they sue the lawyer/judge/prosecutor/bailiff/guy at the metal detector?

 

Managing Client Expectations

Appellate courts are for the correction of error. Meaning, if the State did something wrong, the defense lawyer complained to the judge, the judge ruled against the defense lawyer on the complaint, and the mistake made a difference in the outcome, then the appellate courts are there to say that the judge ruled improperly and give you a new trial. In really limited circumstances, if the trial attorney made a specific identifiable mistake, and that mistake was something that could reasonable impacted the outcome, then the appellate courts exist to grant a new trial.

 

There are a wide range of things not included in the list in the paragraph above. Consider some of the things not included in that list. One would be something the state did wrong, where the defense attorney never complained about it, or where the defense attorney complained about it but where the judge did not make a ruling. And also excluded is a situation where the State did something wrong, the defense objected, the court made a bad ruling, but where the court determines that it did not have any impact on the verdict. Also excluded are all the general things that a client did not like about the attorney but that cannot be reduced to a concrete demonstrable mistake. Certainly excluded would be such things as whether witnesses lied or were credible.

 

Bottom Line

The bottom line is that an appellate lawyer cannot clean up the mess left behind by a bad lawyer and cannot use the appellate process to retry a case that wasn’t tried well the first time. It is even more difficult to clean up a mess created by a pro se client who has dabbled in his own appeal before an appellate lawyer gets on board.

The way Georgia judges hand out sentences under fairly draconian mandatory minimums or because they are just plain mean, clients have no choice but to appeal. And the great thing is that judges and prosecutors in Georgia make mistakes. Every 7 seconds in Georgia a trial judge commits reversible error in a criminal case (a statistic I just made up but which is probably true). Issues are often there.

However, more appellate lawyers need to make the expectations clear early on, and clients need to be able to enter the process with a realistic outlook of what an appeal involves and what lies ahead.

ADDRESS

199 W Jefferson St.
Madison, GA 30650

PHONE

678-610-6624

EMAIL

tori@scottkeylaw.com