Uncategorized - Scott Key & Associates

Updates on Cases, Media, Editing

July 1, 2015/by J. Scott Key

Today, I had the honor to be interviewed by Celeste Headlee, the host of Georgia Public Broadcasting’s On Second Thought. We talked about the Georgia Supreme Court’s recent set of cases, both criminal and civil. Check out today’s show. Listen to the whole thing of skip to minute 30 for my segment on the cases. Thanks to Celeste and producer Sean Powers for inviting me on and for their thorough preparation.

In other news, I and co-counsel are celebrating a huge win in the Hemy Neuman case before the Georgia Supreme Court earlier this month. Opposing counsel has filed a motion for reconsideration, so my celebration will be muted for a few more weeks awaiting the final outcome.

I am now the co-editor of What’s the Decision, a publication for the Georgia Association of Criminal Defense Lawyers. I will be reporting on 11th Circuit decisions.

It’s been a busy and fantastic time.

The Dark Side of Referrals

April 6, 2015/by J. Scott Key

A few days ago, Seth Godin wrot about referrals and their true meaning in a profession. When they work well, a referral comes with it a high degree of trust. When you refer a client to another person, you stake some of your reputation on the person to whom you made the

referral. In addition, the person to whom you made the referral will hold you at least somewhat responsible if the client turns into a pain in the neck or is a waste of time.

My best clients come from referrals. Good clients have found me through Avvo, this blog, or someplace on the internet, but most of my good clients have come from other lawyers, from judges, or from former clients. Where does my internet presence come in handiest? It helps the most when clients who have been referred to me start doing research.

But there is a dark side to referrals. Sometimes, a lawyer refers a potential client because the two lawyers have a special arrangement worked out as in “send me all of your personal injury cases, and I will send you all of my criminal defense calls.” Even worse, lawyers have arrangement to along the lines of “I’ll refer you every criminal case, but I expect you to send me 10% of every fee you get.”

At worst, those sorts of arrangements violate ethics rules. When a client pays a fee, the client should know if a portion of that money is going to a third party. And those funds should go to a person who is working on the case.

But even at best, referrals based upon an agreement between counsel shortchanges the client. After all, a referral is a lawyer’s way of saying that, while I am not the particular person for the particular matter and client right now, my colleague may well be the perfect person. The focus should be on getting the client the right lawyer, not just on securing business for a buddy and particularly not on securing a kickback.

When referrals work well, they are a wonderful thing. Referrals get a client access to the right professional and the professional a client who is a good fit for the practice. Referrals are about trust. When they are solely about money, they do not work well at all. There is much to think about when it comes to referrals.

Are Conservatives Better than Liberals at Criminal Justice Reform?

February 28, 2015/by J. Scott Key

The Federalist has a piece up positing that Conservatives are outdoing Liberals at criminal justice reform. Until recently, I would not have taken an article like this seriously. I’m now a few weeks into my time as the Legislative Chair of the Georgia Criminal Defense Lawyers. In that time, I’ve watched a groundbreaking new eyewitness identification bill make it out of the Senate unanimously. And I testified as a witness before a subcommittee of the Georgia House Judiciary Non-Civi Committee on a very progressive DUI implied consent bill to limit forced blood draws to only the most serious cases. I was impressed with the level of engagement as well as the pushback when a line of prosecutors testified.

We may be permanently a red state, but I’m pleasantly surprised. And I think the Federalist society may be right.

Rhetoric Aside, Most Inmates Have Cell Phones

May 5, 2014/by J. Scott Key

Over at Grits for Breakfast, is a post discussing that, while cell phones are rampant in Texas prisons, there are few prosecutions. The writer references a comprehensive story about the number of cell phones seized in Texas versus few actual prosecutions for those offenses. The Texas Tribune reports:

Prison officials said one challenge was linking the smuggled phones to prisoners or correctional officers for prosecution, because the devices were secreted away in spots that were hard to find, or found in common areas. And it falls to prosecutors in the rural, cash-strapped regions where prisons are typically located to decide whether to spend resources on criminals who are already in prison or on local law enforcement officers. Critics say that without serious consequences, there is little to stanch the flow of illicit cellphones — and the cash that goes with them — into Texas prisons.

“Phones can be hard to find, and there’s a lot of money in introducing contraband,” said Terry Pelz, a prison consultant and former warden who advocates tougher punishments for guards caught with contraband.

The same could be said about Georgia. Most Georgia prisons are located in rural areas. There are bigger things to prosecute. And there’s every reason for corrections officers not to aggressively deal with cell phone possession. First, corrections officers are not paid very well. Inmates and families can offer them extra money (generally in the form of a pre-paid debit card) to either turn a blind eye to cell phones or to actively participate in snuggling them into the facility. Inmates may also be more easy to manage if they have cellphones. There is little incentive to crack down on cel phone possession. Though Georgia DOC official press releases say otherwise.

Lawyers who do post-conviction work are going to get calls from prisoners on cell phones. And it creates something of a catch-22. There is little to no expectation of privacy on a prison cell phone. There is no assurance that the call isn’t being recorded or monitored by an opportunistic future jailhouse informant. There is also no real assurance that the person on the other line actually is the client unless there is a pre-arranged attorney-client call through the prison. And yet, there’s probably another lawyer, a competitor for instance, who is perfectly willing to take cell phone calls from inside.

Harvard Medical Professor would Take Firing Squad over Lethal Injection

May 4, 2014/by J. Scott Key

A professor of anesthesia at Harvard Medical School told the Washington Post that “Given these recurring problems with lethal injections, if I had to be executed, I would choose a firing squad.” That article and one in the ABA Journal details the problems with supply of lethal injection drugs throughout the nation.

Using the Ga. Supreme Court’s Website to Prepare for Argument / Stay Current on the Law

January 7, 2014/by J. Scott Key

Yesterday, I assisted with an oral argument at the Supreme Court of Georgia. I was on the 2pm calendar (The Court usually sits in two sessions). As I often do when I have an afternoon calendar, I watched the 10am session online. I’ve written before about the value of watching other cases on the calendar when you have court. It’s a good way to get oriented if you’ve never been to the court before or to take the temperature of things even if you have. You can do that virtually at the Supreme Court before you leave your office.

Today, I opened a window on my computer and watched some oral arguments from today’s sessions. There’s a link on the Supreme Court’s homepage, and this one may work, too. The Court also keeps an archive of the current term’s arguments online. Don’t have time or a way to read the briefs that go with the argument? The Court has this covered with well-written summaries. Want to find out how it all turned out? The opinions are also available online.

Lawyers 100 years ago or even 10 years ago couldn’t have imagined that such a resource as this would be around and would have loved to have something like this. All of the better lawyers I know read the Opinions Weekly from the Fulton Daily Report or some form of advance sheets. It’s a good practice but a monotonous one as you search for the criminal cases of significance (most aren’t particularly significant in the criminal realm). A practice of regularly watching argument at the Supreme Court is similarly worthwhile

Looking for a good way to figure out which cases are most worth watching? Cases where the Court has granted cert. to review a Court of Appeals case or where the Court has granted a habeas petitioner’s Application for Certificate of Probable Cause to Appeal tend to be more exciting. Look for a (G) in the case number for cert. cases or an (H) for habeas cases. The website is a good place for non-lawyers to learn how the Court decides cases, for lawyers to keep up with developments in the law, and for lawyers to prepare for oral argument (by seeing what to do and what not to do). Murder appeals and family law appeals tend not to draw questions from the justices.

How These Cases Can Start

September 26, 2013/by J. Scott Key

Earlier this week, I had a court appearance in Camden County, Georgia. Camden County is as far South as you can go on I-95 in Georgia without being in the Jacksonville, Florida, area. We have family close to there. So, I took my four-year-old son with me for a little time with his grandparents while I was out and about seeing my client and his family and taking care or business in court.

On our way home, we stopped in at a restaurant off of I-16 for a quick dinner. My son had been napping and was a little groggy and carsick when we came in. I was a bit tired myself. He told me he was feeling sick, which resulted in two trips to the restroom. Plus, he was whiney and not really in the mood to eat. Fearing that he might be sick there in the restaurant, I finished my food quickly to head out on the road.

When we were at the car (Acura MDX – hardly a kidnapper-mobile), I was accosted by the manager who told me he had been called there by some other customers because I had been “acting suspicious.” He demanded proof that my son was my son. Out the corner of my eye, I saw the patrons who had complained — two elderly white-haired folks. He told me that my license plate was photographed and that the police were on the way.

The encounter ended when I asked the owner if he was detaining me. It’s a question he couldn’t answer well. If he said yes, I told him I’d likely sue. If he said no, then there was essentially nothing for him to do. There’s also a chance that he just didn’t know the meaning of the word. I showed him my driver’s license and bar card and was on my way. All the way up I-16, I kept waiting to be stopped by a SWAT team or for an amber alert sound on my phone of which I would be the subject.

I am active in youth programs at my church, regularly attend my children’s functions, and have taught college undergrads and law students. I have been in and out of prisons, including juvenile facilities, throughout my whole career. If I put out a “creeper vibe,” it’s news to me.

I’m trying to think what I did to raise suspicion. Maybe lone men don’t come to restaurants with 4-year-olds in this part of South Georgia. Perhaps it was the whining, the trips to the restroom, and my desire to exit quickly. All of those things could be misread, I suppose. Yet, I also paid with my debit card and chose to go into a restaurant with my child. That behavior seems quintessentially non-suspicious. And, all things considered, the behavior was relatively subdued compared with children I’ve sat near on airplanes. Why are lone dads on airplanes with more upset children not viewed with even more suspicion.

I’ve thought back and wondered if I could have handled things differently. The detention question was, I think a good move. As was the decision to produce identification. There was no reason to do that. He wasn’t a police officer, and I’d done nothing wrong. If I hadn’t produced ID, I’d have almost certainly been stopped though.

I can also imagine ways that this could have gone much worse. I was offended, defensive, and humiliated. Those aren’t the best emotions for thinking critically. I can also imagine that much could have changed based on the dynamics of the people involved. If I had been questioned by the police, I’m assuming that the patrons/owner would have gotten the benefit of the doubt while I, the out of town white male with 4-year-old son in tow, would have been at a disadvantage. Also, I could have spoken out of anger and drawn some sort of disorderly conduct charge.

It was a bizarre scenario. It reminded me of how cases start where folks with active imaginations and misguided good intentions make bad choices on the basis of a rush to judgment (why not call the police themselves? Why did they call the owner to come to deal with me?). It also gave me sense of what it is like to be accused of doing something you haven’t done or to be viewed suspiciously. I’m not sure how younger men, angrier men, or men without legal training might have acted differently. But this could have ended much worse than it did had it been someone else or had it been me on a different day.

I also think I’ll be flying into Jacksonville on my next trip to Camden Superior Court.

Lawyer Recounts First Appearance and Victory Before SCOTUS

June 26, 2013/by J. Scott Key

Last week, I had the pleasure of attending the Annual Meeting of the State Bar of Georgia. On Thursday, I was part of a quartet of lawyers who delivered the criminal and civil update of significant cases from the 11th Circuit and Georgia Appellate Courts. Thursday, at the appellate practice luncheon, Georgia family law attorney Michael Manely spoke to us about his journey to the Supreme Court of the United States in Chafin v. Chafin.

I enjoyed conversation with Michael before his talk, where he shared with me some of the details of the case as well as his business model his new model of practice, the Justice Cafe. And the talk detailed his journey from a family law trial court all the way to the nation’s highest court.

His talk is now available online.

Here was what I took away from Michael’s presentation.

With enough work and preparation it is possible for a lawyer to succeed at the Supreme Court with little previous experience practicing there. It is not just a court for specialists.
Oral argument, at its best, is conversational. Rather than come to the Court with talking points to use with the justices (as was suggested to him), he decided to be prepared to answer their questions. Michael figured that the justices likely knew how they would vote but were likely looking to oral argument for answers to remaining questions. He went for a dialogue.
He did not look at this as merely the opportunity to litigate a case in the Supreme Court or to be a part of a cutting-edge matter. Michael was focused on his client, whom he had represented from the beginning of the case. Appellate lawyers can become so focused on the record and the law that they lose sight of the human story at the heart of the case. Michael didn’t do that.

All in all, an engaging talk and a fascinating story.

New Field Sobriety/Miranda Case Important at Several Levels

April 1, 2013/by J. Scott Key

The Court of Appeals, with a panel made up of Judges Dillard, Ellington, and Phipps, has reversed an order granting a motion to suppress from the State Court of Fayette County.

I write about this case because it further develops the law in the area of Miranda and field sobriety testing and because it illustrates how the standard of review on appeal can change when a significant part of the proof is on videotape.

In State v. Mosely, the Court of Appeals reviewed the field sobriety tests in a DUI case. The facts are fairly straightforward. Police responded to a call from a convenience store clerk who witnessed a dispute in the parking lot between a man and a woman. Police arrived to find a man and woman standing beside Mr. Mosley’s car, which appeared to have been involved in an accident.

At which point, the office became suspicious of DUI because the man had trouble walking and smelled of alcohol. A second deputy appeared who asked the man if he would take field sobriety tests. After some discussion, the officer said:

Listen, listen, listen to me – step back and lean on the bumper. Would you mind voluntarily doing field sobriety tests? … I’m saying I’m going to conduct some field-sobriety test, test your impairment to see if you are safe enough to drive and/or walk away.

It was all downhill from there. Mr. Mosely took the tests and was arrested for DUI.

The trial court (Judge Carla McMillan, who is now on the Court of Appeals) held that the request for field sobriety was custodial and that the officer should have Mirandized Mr. Mosely before proceeding.

The Court of Appeals reversed noting several things:

since the evidence was undisputed and was largely captured on videotape, the standard of review should be de novo;
since the officer told Mr. Mosley that the test was voluntarily, it was not compelled;
since the defendant was told that the detention would be temporary, it did not rise to the level of custody (what about the part where the officer said that he was going to conduct the tests and that the purpose was to see if he could walk or drive away. Sound pretty open-ended, no?)

There are a couple of important takeaways from this case.

If you can proceed to the appellate courts on undisputed facts or with videotaped evidence, you have a shot at winning with a less deferential standard of review;
Statements about what an officer is “going to” do does not imply a command. A statement that participation in field sobriety testing is necessary to see if a person is safe enough to leave is not necessarily a statement that the person is not free to leave or that successful completion of field sobriety testing is pre-requisite to leaving the scene.

This case also leaves a question. To what extent is a holding by an appellate panel or the Supreme Court to be viewed as precedent where the Court has reviewed a case de novo? Is the appellate court making a ruling of law, or it acting as a second trial court reviewing a unique set of facts under existing law?

If I’m at a suppression hearing and this case comes up, I’m going to say it’s the latter.

My Controversial Talk on Typography (No Kidding)

April 22, 2012/by J. Scott Key

If you read this blog regularly, it is no secret that I am a recent convert and evangelist for Matthew Butterick’s Typography for Lawyers. I have a long way to go in my legal writing before I reach a point of mastery, but I am happy to be paying attention. One of the chairs for the Spring Seminar of the Georgia Association of Criminal Defense Lawyers is also an acolyte, and I was invited to speak on typography for an hour. It turns out that I spoke on a little more than typography — subtopics included the need to provide a succinct summary of the desired result, the issues on appeal, and the reasons the court should grant relief, and the need to limit the number of issues on appeal as much as possible. Most cases, after all, are about just one thing.

I was the next to last speaker on the last day. And, as passionate as I am on the topic, I feared that the topic was a bit nerdy and perhaps boring for some. I hedged my bets by putting some serious work into my presentation and the Keynote slides. Writing materials for a talk on typography is also an intimidating task. The project invites a more critical look than others might. And I put as much planning as I could into making the topic engaging.

It turns out that I was wrong to be afraid. Lawyers, even criminal defense lawyers, are a conservative lot and sometimes not good with suggestions about the need for change. And so it came to pass that I was the only speaker of the entire conference to get heckled. That’s right, in a talk on fonts and the structure of appellate briefs, given on the last day of a three day seminar in Savannah, Georgia, I had a heckler. The guy who spoke on abortion, contraception, and the right to privacy sailed right through without as much as a sigh.

I’ll add that I was thrilled to be heckled on this topic. It is heartwarming that anybody is passionate about typography to such an extent that she told me that an example brief I put on the screen “looked like [shiitake]” because I didn’t turn on full justify and that I was off my rocker for criticizing Times New Roman and Courier. I like passion, even when such passion is misplaced. I am thankful that the reception was so intense, and I also want to take a few lines to say more about these three things — justification (in a graphic design sense not in a theological sense, though I will strive to be graceful), the Courier font, and the Times New Roman font.

Full Justification is a Matter of Personal Preference

The audience member was a serious proponent of full justification, noting by way of simile, that my decision to left-align the text rendered an excrementitious product. The opinion was as wrong as it was hyperbolic. As to the hyperbole: at no point during the presentation did green flies begin to buzz about the screen where my Keynote was being projected. As to the heckler being wrong, I’ll respond here.

Butterick writes (and I defer to him because he wrote the book and because he is credentialed in this area) that “compared to left-aligned text, justification gives text a cleaner, more formal look.” He also notes that justification “alters the ideal spacing of the font, but in paragraphs of reasonable width it’s usually not distracting.”

In the end, he notes that “[j]ustification is a matter of personal preference. It is not a signifier of professional typography.” He cites as an example the fact that many newspapers mix it up.

I will add that I never endorsed either way. I just used a previous brief of mine, one where the text was left-aligned, as an example. The audience member has a strong preference for justification. She’s not wrong to have it but was wrong in the extent of her criticism of left alignment.

A Defense of Courier, Really?

I took some heat for my criticism of Courier. And I was actually quite surprised that anybody but a prosecutor or bureaucrat would feel so strongly about this font. This font served its purpose in 1955 when it was invented. The font was created for the “golfball” typing head that IBM was developing and would later premier in its 1961 Selectric Typewriter. The font, and other monospaced fonts, was created to deal with mechanical issues with the typewriter. To quote Mr. Butterick, “[monospaced fonts] were not invented to win beauty contests.”

To quote an article from Slate, “its design principles are little more than phantom limbs: Like any other typeface, it is whisked from the digital ether without regard for its original use. … What is most remarkable of all, of course, is that a typewriter font is still being used at all in the post-typewriter age.”

With the exception of Robert Caro, I do not know of anybody who still uses a typewriter. So, it really isn’t necessary to use a monospaced font.

When you use monospaced fonts, you get fewer words per page, and the font is hard to read when compared to proportional fonts. There really is no reason to use Courier unless a court rule requires it.

In 2004, Courier fell out of favor with the State Department. The preferred font is now Times New Roman 14.

It’s Time for the Decline and Fall of the (Times New) Roman Empire

The heckler also has a special place in her heart for TNR. It’s an okay font. Though its problem is its ubiquity. Using TNR is essentially not choosing a font at all. According to Mr. Butterick, the problem is the blah factor:

When Times New Roman appears in a book, a document, or advertisement, it connotes apathy. It says, “I submitted to the font of least resistance.” Times New Roman is not a font choice so much as the absence of a font choice, like the blackness of deep space is not a color. To look at Times New Roman is to gaze into the void.”

Finally, he advises, “if you have a choice about using Times New Roman, please stop. Use something else.” A person can choose Times New Roman and be passionate about it (I know one person who does and is). But that choice conveys apathy.

A Final Word

If you are in the Georgia Supreme Court or the Georgia Court of Appeals, you have little choice about your font selection. You can go with Courier New 12 and look like a prosecutor, or you can go with Times New Roman 14. At either of those courts, TNR conveys that you don’t want your appeal dismissed and that you don’t want to be sanctioned. It does not convey apathy. In client letters and in filings in other courts, you can and should (in the name of all that is holy) choose other fonts.