Georgia Appeals Election Day

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If you haven’t already done so, please vote in today’s election. Polls close at 7:00 p.m. this evening. I voted at 8:00 a.m. this morning, and the woman at my precinct told me that I was only the fifth voter to darken their doors. This is a very important election, and much is at stake. If you are a lawyer, then you know why this election is important. If you have less experience in Georgia Courts, let me tell you a little more about why this election is important.

  • Our appellate courts make decision on individual cases that shape the way future cases are decided. Most decisions that come out of our Supreme Court and Court of Appeals become the law in terms of how we interpret our the United States Constitution, Georgia Constitution and Georgia statute. Though the governor’s office and the legistlature get the bulk of the attention, much power is placed in the hands of our appellate judges. An individual appellate judge is arguably more powerful than an individual state senator.
  • The Supreme Court is ultimately responsible for regulating attorney discipline in the State of Georgia. The Georgia bar is self-regulated, but decisions on how or whether to discipline lawyers are left in the hands of the justices on the Supreme Court, with the hard work and assistance of lawyers who work for the State Bar of Georgia. It is important to put the best person for the job in that office.
  • Finally, though many people will never end up in court, I meet with many moms, dads, uncles, brothers, spouses, sons, and daughters who are good “regular people.” They come to me because they have found themselves supporting a loved one who has been convicted of a crime or who has some other type of matter pending before our appellate courts. If you get sick and require the assistance of a specialist in the medical field, you have some choice in your doctor. When you appear in front of a judge, the moment to choose has already passed.
  • “The people get the government they deserve.” Alexis de Tocqueville is credited with saying it, but he more likely source is Joseph de Maistre. It rings true.

I’ve shared with you in previous blogs my choice for the Court of Appeals and Supreme Court. I’ve also shared resources with you where you can read up on the candidates. Even if you think my choices are way off base and you are going to vote the other way, please vote today. This election is just as important as any other election. And these offices deserve the involvement of the people.

So, About the Rest of My Ballot for Georgia Appeals Seats

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I recently wrote about my decision to vote for Justice Nahmias over challenger Tammy Lynn Adkins. That post was picked up by Aly Palmer on the ATL Law Blog, the blog of the Fulton Daily Report. The post has generated thoughtful emails to me about the election. I hope that you’ll research the candidates yourselves and make the choice you believe is best for the Georgia Supreme Court bench. For what it’s worth, I’ve always valued competence over philosophy in judges. I’m not a big John Roberts fan, but I thought that he was well-qualified to be an Associate Justice for the United States Supreme Court and now Chief Justice of the United States. And Senator Lindsey Graham’s stock went way up in my book when he broke from the Republican ranks and voted to confirm Elena Kagan to to an Associate Justice of the United States Supreme Court.

Anyway, I tried to research some more about Ms. Adkins after some emailers suggested I had been hasty. I’m still in the dark about her. This voters’s guide is a good example of what I’m talking about.

Enough about that race. Over at the Court of Appeals, there is a great deal of information about Chris McFadden and his opponent, Toni Davis. Both have run campaigns intended to inform Georgia voters about the importance of the Court of Appeals and their respective positions. Both have experience in the appellate courts.

I’m casting my ballot for Chris McFadden for several reasons. One, he is a lifelong student of our appellate courts and an experienced appellate practitioner. He will bring a lifetime of experience and a wealth of knowledge to the Court. He’s the author of the hornbook on Georgia appellate practice. His book sits on my desk, in arm’s reach at all times. It’s dog-eared, highlighted, tabbed, and heavily annotated. He’s the founder of the appellate practice section of the State Bar of Georgia and is active in that organization. He’s also worked hard as a candidate and will work hard as a judge. I also consider him a friend.

So, please research the candidates and vote. Also, take the time today to inform your friends that the upcoming election is important. Tell them what you know about the candidates, and encourage informed voting for these very important offices. Help them by guiding them to some places where they can learn about courts and the candidates.

Georgia Supreme Court Establishes Constitutional Right to Interpreter

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I’m not just posting about Ling v. Georgia (PDF) because I’m her criminal appeals lawyer. Although it is pretty nice to have lost a motion for new trial and an appeal to the Georgia Court of Appeal and ultimely win in the Supreme Court on cert. while helping to secure a new substantive new substantive Constitutional right along the way. I think I’d be posting about this case even if I weren’t Mrs. Ling’s lawyer.

Yesterday, the Supreme Court of Georgia reversed the Georgia Court of Appeals and found that a criminal defendant has a Constitutional right to an interpreter. The Court also found that courts, when faced with an issue of whether an interpreter is needed, must make an explicit finding on the record on the issue.

The Court also rejected the notion that a trial attorney can unilaterally decide to forego an interpreter based upon a claim of trial strategy because a decision like that renders the client absent from her own trial.

The decision has gotten well-deserved coverage since yesterday. CNN posted an article on its Justice page. Kate Brumback posted a story on AP yesterday. CBS has a report of it as well.

It was a hard-fought victory. And I hope that the precedent assists other similarly-situated defendants in future cases.

If you’re interested in how we got here, my oral argument is available for viewing.

 

The Curious Way the Media is Covering Georgia Judicial Run-Offs

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As I mentioned in a previous post, there are two run-offs for Georgia appellate seats — one for the Georgia Court of Appeals and one for the Supreme Court of Georgia. According to the Atlanta Law Blog, the Blog for the Fulton Daily Report, there are many judicial seats that will be decided by a run-off. Of course, the Daily Report’s audience consists of the Georgia legal community, and not much explanation is necessary there for what the courts do or what’s at stake in those elections. The readership knows the offices and the players involved.

The more interesting phenomenon is the way the media is covering Georgia Judicial Run-Offs. The Newnan Times Herald ran an editorial suggesting that “More Judges” should be selected by appointment. The editorial does not exactly define which ones should be appointed versus elected. But the article suggests that the Run-off is essentially a nuisance and that most voters know neither the candidates nor the issues

While the possibility of a runoff in the Georgia governor’s race did not materialize, every polling place in our state will have to be open on Nov. 30 for two judicial races because no candidate received a majority of the vote a race for the Georgia Supreme Court and another race for an open seat on the Georgia Court of Appeals. … It will costs our state hundreds of thousands of dollars to hold this election in which few voters will participate. This raises another question: Should these judgeships be appointee positions instead of elective positions?

There are many reasons why judges should be appointed instead of elected. In fact I wrote about some of those reasons in previous post. But I’ve never considered that it’s just too darned expensive to have an election or that it is just plain annoying that such an election will require a run-off.

I suppose that most voters don’t care about judicial offices, particularly appellate courts, because most have never had a case before any of those officers. Of course, as all of my clients can attest, those offices have a way of becoming important when your brother, spouse, or loved one has a case before an appellate court. Yet, many of these officers will hold peoples lives in their hands.

An editorial introducing the candidates and discussing what our appellate courts do might have been an interesting angle instead of the one the editorialist chose.

If the public doesn’t know the issues at stake in the election, to what extent does the Fourth Estate bear some of that blame? According to Justice Nahmias, who is in a run-off, quite a bit. He told an Associated Press reporter

We would have liked to get 30,000 more votes to end it yesterday,” he said. “But it’s a three-candidate nonpartisan race toward the end of a very busy and long ballot, and our race got virtually no media attention. Our hope is that the voters will have a very clear choice after they learn about my experience.”

The ones who show up for the run-off will know about the candidates, we would presume. They may actually be related to the candidates. The other media coverage I read about this Run-off either reports the fact that there will be a run-off, the fact that turnout will be low, or expresses what a nuisance this election is.

The real problem with elections is the possibility that special interests will use judicial seats to advance a particular political agenda, an agenda that threatens the notion of impartiality. I heard an episode of NPR’s On Point today that discussed these possibilities. It’s also an issue that judges call upon attorneys to donate money to political campaigns. Of course, attorneys are a natural constituency, but the whole business is a little strange, particularly when you will end up before that judge eventually or the other guy if you “bet on the wrong horse.”

The appointment system is little better in Georgia. I have appeared before the Judicial Nominating Committe in Georgia to speak on candidates the Georgia Association of Criminal Defense Lawyers had vetted. I felt like the process was a rubber stamp and that my voice was pretty much like the teacher on Peanuts. The appointment system feels even more political when you’re inside it, particularly in a State like Georgia that seems like it will be a one party state practically forever.

I just wish so much of the media would inform rather than whine about what a bother these elections are. Too much is at stake to continue the current trend

Two Georgia Appeals Seats Headed to a Runoff

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There will be two run-offs for Georgia appellate seats. Justice David Nahmias, who was appointed to finish the term of Justice Leah Sears, won 48.2% of the votes. He will be in a run-off against Tammy Lynn Adkins, who achieved 35.2% of the vote in spite of the fact that she did not run a campaign. Justice Nahmias’s more vocal opponent, Matt Wilson, was able to eek out only 16.6% of the votes. Mr. Wilson ran an aggressive campaign, where he attempted to cast Justice Nahmias as a bureaucrat and Washington insider with little regard for individual rights. It will be interesting to see if Ms. Adkins begins campaigning in the upcoming run-off election or if not running a campaign will continue to pay-off

Campaigning has had an impact in the race for the Georgia Court of Appeals, also headed for a runoff. Antoinette “Toni” Davis garnered 25.5 percent of the votes to Chris McFadden’s 22.6%. Election results are available on the Georgia Secretary of State’s website. Mr. McFadden was endorsed as most qualified by Georgia lawyers polled by the State Bar of Georgia. Ms. Davis picked up key endorsements by two Georgia newspapers and several prominent judges and other office holders in Georgia.

A Guide to Depositions for Georgia Criminal Appeals Lawyers

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A few months ago, the unthinkable happened on a habeas corpus case I am doing in South Georgia. The judge “suggested” that I handle some witnesses on a particular issue by deposition. There were all kinds of good reasons for it. The witnesses were spead out all over the State. I will probably get to explore more information and get more information on the record than I would in Court. The only problem is that I never do depositions. Lucky for me, I know a talented civil appellate lawyer and litigator and fantastic blogger who was kind enough to help me out. In addition, if you are in the same boat I am in, I hope he will help you out also.

Bryan Tyson is the editor of the SCOG Blog, which covers civil cases in the Supreme Court of Georgia. And he is my first guest blogger. The following is his guide to depositions for criminal lawyers, which I shamelessly requested for my own personal use.

 

Deposition Pointers for Criminal Law Attorneys

The deposition is a normal part of life for civil litigators, but is often a completely foreign world for criminal law practitioners.  Knowing some basic tips about depositions can assist criminal law attorneys in representing their clients effectively.  Our goal is to provide some tips in four basic areas involving taking or defending a deposition: getting started, what happens during a deposition, making objections, and how to prepare a client for a deposition.

Starting a Deposition

To coin a phrase, if you know where to start, it’s easier to find where you’re going.  Starting a deposition if you are taking it can be challenging.  Generally, a deposition begins with a statement for the record of the name of the deponent, the way the deposition was noticed, and the logistics of how the deposition will be taken.  At least using an opening with these elements will make the other side think you know what you’re doing.  An opening may sound like this in a state court proceeding:

This will be the deposition of [DEPONENT] taken pursuant to notice and with the agreement of counsel.  The deposition of [DEPONENT], is taken by the [PARTY NAME] on cross-examination for the purpose of discovery and all other purposes authorized by the Civil Practice Act and the Evidence Code.  All objections except as to the form of the question or the responsiveness of the answer are reserved until such time as the deposition is used.

The reservation of objections is typical at the outset of a deposition in order to ensure an orderly flow.  If there is an objection to hearsay, for example, the deponent generally still answers the question on the record, but if the party taking the deposition attempts to use the deposition later, the court would have to rule on the hearsay objection.

After the initial statement, the next issue typically covered is whether the witness wishes to read and sign his or her deposition.  This allows the deponent to review the transcript and make minor corrections prior to the court reporter finalizing the transcript.  This is usually phrased in the following fashion, directed to the deponent’s counsel:

Have you discussed reading and signing?  or

Does your client wish to read and sign?

The attorney taking the deposition then requests the court reporter swear the witness, and the real work of the deposition begins with questions and answers.

During a Deposition

Deposition questions generally begin with the name and address of the individual for the record.  It’s also wise to ask a series of questions to see if the deponent will volunteer any information that could be interesting or relevant.  There are plenty of stories of individuals volunteering all kinds of information that could prove useful later in the case.  Some examples:

  • Whether the individual is under the influence of any medication (if so, it is often wise to suspend the deposition until the individual is no longer under any influences);
  • Whether the individual has ever been arrested for or convicted of a crime;
  • Whether the individual has any outstanding arrest warrants;
  • What type of education or specialized training the individual possesses;
  • The individual’s employment history;
  • The individual’s family relationships;
  • Whether the individual has discussed their deposition or the case with anyone who is not their attorney.

Another very helpful tip during the course of a deposition is to remain quiet after asking a question.  Dead air in the room is not reflected in the transcript, and often a deponent will fill the empty space by volunteering more information.  Similarly, looking expectantly at the deponent even after they have finished an answer will often motivate them to continue speaking.

Objections

Objections are often the most challenging part for an attorney taking or defending a deposition, but for criminal law practitioners, this may be the easiest part.  Any objection that would normally be made during a trial is available during a deposition.  Therefore, any objections you would typically make at trial can be made on the record during a deposition.

Objections should be stated clearly and on the record after the question is asked but before the deponent answers, including the specific grounds.  In most cases, a question should still be answered after the objection is made.

Objections to the form of the question or that a question is leading can often be remedied by simply rephrasing the question.  Other objections can be more complicated.  For example, a question requesting attorney-client privileged information should result in an objection from the attorney defending the deponent, along with an instruction to the deponent not to answer the question.

On occasion, an attorney will attempt to coach his or her client by strategically objecting to questions.  If you notice this occurring during the course of a deposition, it is often best to address the situation by taking a break and discussing it with the other attorney one-on-one.  If this fails to solve the problem, deal with it on the record.  If that fails to resolve the issue, it may be necessary to suspend the deposition until it can be addressed by the court.

Preparing a Client for a Deposition

The primary goal in preparing a client to handle a deposition is to ensure that he or she does not unnecessarily volunteer information.  While a client should answer all questions fully, he or she should try to say as little as possible in answering the questions put to them.

When taking a deposition, many attorneys will try to draw the deponent into a level of comfort by turning the deposition into a conversation.  Clients should avoid lowering their guard and freely sharing too much information with the attorney taking the deposition.

Conclusion

Depositions are a useful tool for learning facts about a case.  Although depositions may appear intimidating at first, they function as valuable places to learn the necessary facts about a case.

E-filing in the Georgia Court of Appeals versus the Supreme Court

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I have been E-filing in the Georgia Court of Appeals and the Georgia Supreme Court since both courts started offering it. I can’t tell you enough about how great it is to be able to upload a pdf rather than do all of the other archaic stuff that is involved in paper filing a brief. I’m still pretty amazed that so much of the practice of law involves printing out stuff on bond paper, making a blue million copies, physically taking it to the courthouse to get a stamp on it, then transmitting physical copies of the paper to people. I like Atticus Finch, but I’m not all about filing things the way he did when he filed motions in limine in Mississippi v. Tom Robinson.

In fact, there is one Georgia courthouse that is so anti-technology that even lawyers can’t bring laptops or smartphones into the courthouse. They have big ugly yellow signs at all the entrances warning you not to bring “that kinna stuff in heah.” When I leave there, I always think that the world is going to turn black and white, and I start craving a malted at the drug store soda counter.

So, I am really not whining about the fact that the Supreme Court does it better than the Court of Appeals. I’m just glad that they’re doing it at all.

So, a few weeks in for the Supreme Court and a few monhs in for the Court of Appeals is a good time to compare the two systems.

  • Instructions — The Supreme Court gets the nod here. Their website includes instructional videos. Granted, they are all in a NOAA weather radio voice. Still, very informative. Over at the Court of Appeals, there aren’t any instructional videos. Sometimes you find out you messed up when you get an email telling you that you messed up.
  • Range of Stuff You Can File — Again, the Supreme Court gets the nod. You can file things in the Supreme Court that do not have a pre-existing case number. For instance, you can file an interlocutory application or a petition for certiorari. In the Court of Appeals, interlocutory applications still have to be filed in the way they were in the 50s
  • Integration into Your Practice — Docketing notices and the like are all still snail-mailed to you from the Court of Appeals. In the Supreme Court, once you sign up, you start living in the e-filing world. Docketing notices, orders, notices that opposing counsel has filed something, etc. will start coming to you by email. The Supreme Court has clearly gone all-in on the electronic thing
  • Filing Fees — Big nod to the Supreme Court. You can mail in your check, thereby bypassing the whole “convenience charge” deal that you get over in the Court of Appeals. Ironically, this part of the Surpeme Court is still old school. But it’s old school in a way that saves you money.

Not complaining about either one. It’s great that e-filing is an option. Just interesting to point out that the Supreme Court wins the e-filing smackdown.

Weekend Music About People who Need a Criminal Appellate Lawyer

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Music is replete with songs about people who had some bad stuff happen to them at their trial and who need an appellate lawyer. So, I am kicking off a weekly series featuring songs about people who need a good criminal appeals or habeas lawyer. To kick things off, let’s listen to Steve Earle from 1991, singing “Billy Austin.” Billy needed a good appellate lawyer, and now it’s a little late. As you listen, see what issues you can spot. There’s a pretty good ineffective assistance of counsel claim in here, and it also appears that some mitigation got left on the table. He called the police on himself — acceptance of responsibility. But maybe it just makes him sound more cold.

We find out pretty quickly that Billy wasn’t tried in Georgia. One, he got a “court appointed lawyer,” which we don’t really fund for death penalty defendants in Georgia. Also, his “trial was over quickly.” Defendants in death cases in Georgia don’t really get a speedy trial. They languish in the county jail.

 

 

 

Local Politicians are Criticizing the High Costs of Interpreters

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Due Process comes at a price. According to Patrick Fox, in a recent article in the Atlanta Journal-Constitution, it is expensive to provide interpreters for non-English-speaking defendants. In 2009, Gwinnett County paid $539,803 to provide interpreters. With a more diverse population comes an increased need for interpreters. Judge Davis of the Superior Court of Gwinnett County, estimates that interpreters have been provided in over 42 languages in 2009.

 

The Rosetta Stone Comment

Of course, it appears that the Constitution of the United States is being lost in translation to those responsible for funding court systems. One city council member said that he wishes that he had gotten the Rosetta Stone software because he believes the court interpreting is a “sweet gig.” Being a certified court interpreter is hard work, requiring proficiency in two languages, knowledge of the court system, and the ability to multi-task in a challenging often high stress environment. Buying some software from a kiosk at the mall probably won’t make you a certified court interpreter, but it might get you “close enough for government work” in some Georgia Courts, even if you are the arresting officer, a probation officer, or a co-defendant.

 

Read more

The Supreme Court of Georgia Now Allows E-Filing of Briefs

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While it feels like August in Georgia, for appellate practitioners it may feel a little like it is Christmas. Today, the Supreme Court of Georgia has begun accepting briefs through its new e-filing system.

From today forward, lawyers who are in good standing and members of the State Bar of Georgia and the the Supreme Court of Georgia may file a brief and other pleadings before the court by uploading them to the Supreme Court e-filing website as a PDF. While the Georgia Court of Appeals has allowed e-filing for several months now, the Supreme Court will allow a wider range of filings than the Court of Appeals currently supports.

Beyond the Supreme Court’s website, several news have filed stores on e-filing. Bill Rankin, with the Atlanta Journal-Constitution used twitter to announce it. Jan Skutch with the Savannah Morning News ran a story about it. WLTZ News has covered it. My friends over at the SCOG Blog have a good post where they have registered and tried it out. Of Course, the Supreme Court’s own website has extensive coverage.

Among the types of filings that may be submitted the filing system our briefs on cases that are currently pending before the court, applications for interlocutory appeal, applications for discretionary appeal, and petitions for certiorari.

For those unfamiliar with E-filing, the Court has included several instructional videos to tell you how to do things such as register for the following with the Supreme Court, how to submit your first brief, and how to submit various petitions for matters that are not currently docketed before the court. If you have filed electronically in the Georgia Court of Appeals, you will find that the user interface here looks familiar.

I have already registered with the system and find that many of my filings are available to be reviewed. I wrote an article in the most recent issue of the appellate law section’s newsletter, the Appellate Review that discusses the filing in the Georgia Court of Appeals, and I am sure that the section will have a forthcoming article on the Supreme Court’s new move.

Chief Justice Hunstein is very excited about the development. She said today “What we’re talking about here is a revolutionary change that is a win-win situation for the Court and for the litigants,”. She added, “The parties will save time and money by no longer having to print, copy and deliver paper documents. No more fighting Atlanta traffic to get those documents into our Clerk’s office by the 4:30 filing deadline.”

Today’s announcement from the court will make several people happy, including lawyers, legal secretaries, court personnel, and many others who deal with the Supreme Court on a regular basis. No doubt, this system will make several people unhappy including Blumberg, copier suppliers, the United States Postal Service – particularly my old friends whom I used to see at the Hapeville post office at midnight (the last post office in the state you can file things up to midnight). The fact that those people will be unhappy actually makes the even happier.

In the long run, this new system will save me money as every time have ever had to file a brief with the Supreme Court of Georgia, it has been necessary to prepare an original and seven copies to mail out.

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