SCOTUS Requires Effective Assistance at Plea Bargain Stage: Absurd?

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Today, the Supreme Court released two opinions that define standards for defense lawyers during criminal plea bargains.

First, in Lafler v. Cooper, No. 10-209, 566 U.S. ___ (2012), recall that Cooper was charged with assault with intent to murder and possession of a firearm. Cooper rejected a plea bargain after his attorney (wrongly) informed him that the state could not prove intent to murder since the shots were fired below the waist. Cooper was later convicted after a trial and received a harsher sentence than the original plea bargain.

In a five to four decision, the Court vacated the lower court’s decision and held: “Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.”

Justice Kennedy, relying on Missouri v. Frye, an opinion also released today, explained that:

“the right to adequate assistance of counsel cannot be defined or enforced without taking into account of the central role plea bargaining plays in securing convictions and determining sentences.”

Justice Kennedy was supported by Justices Ginsburg, Breyer, Sotomayor and Kagan.

Next, in Missouri v. Frye, No. 10-444, Frye was not informed of favorable plea offers before he pled guilty to driving with a revoked license. He was later sentenced to three years in prison—a sentence much harsher than the plea offers.

In another split decision, the Court held that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected, and applies to “all ‘critical’ stages of the criminal proceedings.”

This holding concerned Justice Scalia, who was joined in his dissent by Chief Justice Roberts and Justice Alito: “While the inadequacy of counsel’s performance in this case is clear enough, whether it was prejudicial (in the sense that the Court’s new version of Strickland requires) is not. The Court’s description of how that question is to be answered on remand is alone enough to show how unwise it is to constitutionalize the plea-bargaining process.”

In addition to written opposition to the Court’s holding, Justice Scalia reportedly gave an oral dissent, referring to the majority decision as “absurd” and “unheard-of.”

In short, both decisions clearly recognize a Sixth Amendment right to effective assistance of counsel at the plea bargaining stage, even though there is no constitutional right to a plea bargain.

Erroneous Verdict Form = New Trial

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On Tuesday, the Georgia Supreme Court unanimously ruled that a Fulton man’s convictions would be reversed due to an improperly worded verdict form. Cheddersingh v. State, S11A1929.

In 2008, Soniel Cheddersingh was convicted of malice murder, aggravated assault, armed robbery, possession of a firearm during the commission of a felony, and possession of firearm by a convicted felon. At trial, the jury was given as set of written jury instructions, including a preprinted verdict form. The verdict form stated: “As to the offense of Murder (O.C.G.A. § 16-15-1), we the Jury unanimously and beyond a reasonable doubt find the Defendant _______.” Below the blank space were the words “Guilty or Not Guilty.” The remaining charges were formatted similarly.

The Court held that the verdict form erroneously instructed jurors that to find the defendant not guilty, they had to do so “beyond a reasonable doubt.” This error would mislead jurors about the presumption of innocence and the burden of proof, and could cause a reasonable juror to believe that the defendant has the burden of proving his innocence beyond a reasonable doubt. Despite proper oral instructions by the judge prior to jury deliberations, as well as sufficient evidence against the defendant, the Court reversed all of Cheddersingh’s charges. Justice Hines, writing for the Court, reasoned that:

“The presumption of innocence is fundamental to a fair trial and a conviction resulting from a procedure in which the trial court misinformed the jury regarding that presumption affects not only the fairness of that proceeding itself, but public confidence in the judicial process as a whole.”

According to one report, it is unclear how many verdicts were potentially contaminated by the erroneous verdict form.

This case reminds appellate lawyers of a few important points:

  • Look for issues everywhere. Even in the boring pattern jury instructions and verdict forms. This part of the analysis is always tedious to me, but it’s necessary.
  • If it seems too simple to be true, it still might be an issue. I can’t help but wonder how many other lawyers overlooked the issue in Cheddersingh because it was so obvious.
  • When reading jury instructions and other materials given to the jury, analyze them as though you are not a lawyer. Everyone who went to law school knows that the burden of proof is on the State, not a criminal defendant, but lay people don’t always know this, which accounts for the holding in this case. Make sure that the jury instructions give all of the elements of the offense and cannot be construed to mean something other than what the law allows.
  • Double check all of your pending appeals for erroneous jury instructions and verdict forms (if you haven’t already).

My Reply to the Circuit Public Defender

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To catch you up to speed, I recently blogged about GPDSC’s recent argument to the Supreme Court of Georgia that public defenders should have the right to represent clients in the same circuit public defender’s office even when there is a conflict in the representation. Mr. Samuel Merritt, a Circuit Public Defender disagreed. I posted his comment, quite a lengthy one, as a blog post yesterday. I commend both to your reading. I also am going to offer some observations below about Mr. Merritt’s argument.

The Ad Hominem Arguments

Mr. Merritt does a couple of rhetorical things in the post. They’re both worth examining as examples of a classic ad hominem attack. An ad hominem argument is an attempt to refute the truth of a claim by pointing out something negative about the person supporting it. Mr. Merritt shrouds the opening and closing of this argument with this rhetorical device. Note that paragraph one is an attack on me as either uninformed or misinformed. Of course, Mr. Merritt doesn’t know me at all and can’t possibly know how informed I am. He doesn’t know, for instance, that I am the chair of the amicus committee for the Georgia Association of Criminal Defense Lawyers and that our committee, in conjunction with our organization’s indigent defense committee chair provided amicus support for a similar proposed rule regarding conflicts in public defender’s offices. He wouldn’t know that I have read the briefs, watched the oral argument in its entirety and have been in conversation with our indigent defense chair, himself a man who represents indigent defendants, about this rule. But his post is not about me, it’s about the fact that he disagrees with me.

And Mr. Merritt’s argument also closes with an ad hominem attack, this one a bit more powerful for its subtlety. I’ll quote it verbatim to demonstrate its worthiness to be included in a philosophy 101 textbook as an example of the ad hominem fallacy: “But I do take issue when someone from outside the public defender world undertakes to criticize one of my colleagues …” This passage is from Mr. Merritt’s last sentence. We have two choices in how to interpret this passage. One, is that it’s merely a rhetorical device. Better to attack me as the person making the argument than to attack the argument itself (it’s the kind of thing, by the way, that prosecutors often do in closing argument.). At least, I hope that it’s merely a rhetorical device. The less charitable view of the argument is that it expresses an honest belief that nobody had better dare criticize GPDSC or its actions unless they are a person within that system. I am hesitant to indulge the latter too terribly much because of how offensive it potentially is. GPDSC, as Mr. Merritt points out, is a government agency. And it is troubling to think that there is any government official or agency that is beyond criticism from an ordinary citizen unless the citizen part of that “world.”

Think, for a moment, how the argument sounds if directed to criticism of another government agency. Don’t like the governor? Tough. You don’t work in his office. Don’t like what the legislature is doing? Unless you are a legislator yourself, I take issue with your right to even say things about the legislature. So, you’ll see, I hope that the closing comment was merely a rhetorical thing. If it expresses an honest heartfelt belief about my right to even criticize, then it is a perfect example of the iron law of bureaucracy I spoke about in my previous post. The First Amendment, of course, exists precisely so that ordinary people outside the “world” of government can criticize it. And Mr. Merritt’s colleague appeared at the Supreme Court as a government agent, in a public courtroom, where he articulated an official agency position. When he did that, I understand (not merely an understanding I developed in law school but an understanding that dates back to a high school civics class I took in the 9th grade) that citizens can criticize. If I’m wrong about that, either government has changed or I’m just fundamentally mistaken. Or maybe I’ve been teleported to Iran and was unaware until recently.

Another observation before I move on. I’m not sure what the membership requirements are to enter the “public defender world.” Apparently, the fact that I carry an indigent appellate caseload (albeit from a county that opted out of GPDSC and therefore funds experts and actually pays the lawyers without cutting their bill) and have for the past ten years, does not make me eligible for citizenship in the “public defender world.” And perhaps Mr. Merritt didn’t know these things about me before he penned his comment in which he criticizes me for being uninformed. And if you, as the reader, are a citizen of the State of Georgia, you are bona fide to criticize Mr. Merritt’s colleague, too. Why? Because he is part of a government agency that took a public position on that agency’s behalf in a public courtroom. Were the Justices who questioned Mr. Merritt’s colleague at the oral argument out of line, too? They, too, are not part of Mr. Merritt’s “public defender world.”

The Attorney General’s Role

Mr. Merritt calls the fact that the Circuit Public Defender and the Attorney General appeared as co-counsel at the argument a fairly normal thing – “[h]ardly a surprise, a secret, or a sign of skulduggery.” He is right about the fact that the Attorney General represents executive agencies. And, yes, GPDSC, is an executive agency. It was not always so, of course. At its creation, GPDSC was in the judicial branch of government. In 2008, Gov. Perdue and the Georgia General Assembly moved GPDSC into the executive branch, the same branch of government as the attorney general, the prosecutor who seeks to put defendants in jail, and the police officer who arrested the defendant. That move, itself, was criticized as creating an inherent conflict. A surprise? Hardly. A secret? Not at all. In fact, the public defender and the Assistant Attorney General shared the same table as co-counsel in a very deliberate and public way (which was part of the point of my original post). Sculduggery? At a systemic level, I’m not so sure.

The attorney general’s office represents the State at the appellate level in murder cases, in cases where the constitutionality of a criminal statute is at question, and on certain occasions to prosecute indigent defendants in trial courts. So, yes, it is interesting to note that the attorney general is also GPDSC’s lawyer. My original post was about one type of conflict. But I welcome the opportunity to speak of another.

Financial Incentive

I want to spend a little time with this argument: “a public defender’s office is NOT the same as a private law firm because public defenders do not have a financial interest in the outcome of their case …” (author’s all caps). As a lawyer in private practice, I actually don’t have a financial interest in a case’s outcome. If I took a criminal case on a contingency arrangement (“you don’t pay unless I get you acquitted or your conviction reversed on appeal”), I’d likely go out of business before the folks in Atlanta could disbar me. My clients pay me to represent them, but my fee arrangement is not results-based. I’d commend my fellow member of the bar to Rule 1.5 (d)(2) of the Georgia Rules of Professional Conduct.

The conflict rule does not exist to deal with a profit motive. The conflict rule exists so that a lawyer’s duty to one client does not conflict with a lawyer’s duty to provide zealous advocacy to another client. It’s not a matter of finances, it’s a matter of loyalty. I’d commend my fellow member of the bar to the Comments to Rule 1.7 of the Georgia Rules of Professional Conduct. Finances aren’t mentioned at all. Count the number of times you see the world “loyalty” or some similar word.

To be sure, I’m more likely to be hired if I’m a good lawyer than a bad lawyer. And I’m more likely to command a better fee if I can do a good job than if I’m mediocre. And while being a public defender is certainly different, I would hope that there are still incentives to be good at your job. And I would hope that those incentives are somewhat financial (if you can’t do the job well, you lose your paycheck). And I am sure that there must be performance standards in place for circuit public defenders as well. There’s a profit motive for all of us, even if we are employees in a law firm or a public defender’s office.

Again, why should a client who hires a private lawyer expect a different duty of loyalty than a client who must rely upon GPDSC? Why does the definition of what is ethical differ based upon the amount of money in a person’s bank account?

Profit motive fuels GPDSC’s argument. With a legislature that chooses not to adequately fund the system, the agency seeks to change the very definition of what ethical representation is. But they don’t seek to change the game for those with money. If economics weren’t an issue, would GPDSC ever undertake its present course of action? Would the agency seek to lower the bar on principle alone? One would hope not.

Enter the Star Chamber

Mr. Merritt refers to the meeting of the Formal Advisory Board as a “Star Chamber Proceeding … that the public was not able to attend.” And he refers to the “brand new idea that the imputed conflict rule applies to public defenders.”

My knowledge of 14th through 16th century English history is a bit rusty, but I thought that the Star Chamber was a secret court where people were prosecuted and were sometimes ordered to be beheaded. I was unaware that the Star Chamber promulgated rules for barristers.

I perceive no (to borrow a word) “skulduggery” in the fact that a State Bar meeting where proposed formal advisory rules are promulgated would be closed to the public. The State Bar of Georgia is not a governmental entity. It is set up as as self-regulating professional association for persons in Georgia who practice law. I would commend my fellow member of the bar to Rule 4-402, which sets out the membership and procedures of the Formal Advisory Rule Committee. There is a place on the Board for one member of the Georgia Association of Criminal Defense Lawyers and one member of the Georgia District Attorneys Association. Note, that the criminal defense lawyer representative could either be a public defender or a private lawyer. There also seats for five members of the Bar at large. And there is a place for a faculty member of each Georgia accredited law school (who could be an indigent defender, assuming that a faculty member who provides indigent defense services is a bona fide member of the “public defender world”) There is also a place for a member of the Investigative Panel (who could be a public defender) and a member of the Review Panel (who could be a public defender). If public defenders are not on that committee, it could be because either (1) there’s a vast conspiracy afoot to get them out of the room; or (2) because public defenders aren’t terribly active in the Bar. I don’t want to risk making another uninformed comment on this subject, so I won’t guess which.

Also, one more thing as to the “Star Chamber” piece. The Board operates by a transparent set of rules. They’re worth reading.

The Notion of “New Law”

The conflict rule isn’t new. I’ve been out of law school for around a decade, and I remember hearing about it in my Professional Responsibility class. I think it might have been on day one – right after the professor finished explaining the syllabus. Rule 1.7 predates GPDSC. Nor, by the way, is the concept of imputed disqualification anything new to the practice of law.

The “new,” “dreamed up,” “incorrect and frankly insulting” rule states simply this: “[l]awyers employed in the same circuit public defender office in the same judicial circuit may not represent co-defendants when a single lawyer would have an impermissible conflict in doing so.” If a public defender is insulted by this language then so should every lawyer in every office or firm where the concept of imputed disqualification applies. I suppose we could scrap Rule 1.10 altogether, reasoning that it hurts our feelings and that the Bar should just trust us all. By that rationale, perhaps we should scrap the Rules of Professional Conduct wholesale.

Conclusion

If the fact that I am not a member of the “public defender world” prohibits me from criticizing a particular government agency, then I suppose you’ll have to add another count to my indictment. And if I was misinformed in my previous post, I hope that I have been remediated through my links above. After reading Mr. Merritt’s observations, I am still among the ranks of “most lawyers” who disagree with his position, probably more so now.

If a member of the agency “takes issue” with my criticisms again, then I suppose that there is just no hope for me.

 

 

Circuit Public Defender Responds to My Post

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A Circuit Public Defender attempted to comment on a recent post of mine. For some reason, it never cued up for moderation. So, I am posting his comment here. I’ll likely respond this week when I dig my way out of this brief I am writing.

I’m not sure you have all of the facts and I’d appreciate an opportunity to
make some observations and clarifications.

For instance, the reason the AG’s Office was representing the public
defenders is because . . . the AG’s Office always represents every executive
agency and GPDSC is an executive agency. Hardly a surprise, a secret, or a
sign of skulduggery.

Also, every single prior appellate decision in Georgia that has dealt with
the issue has recognized that a public defender’s office is NOT the same as
a private law firm because public defenders do not have a financial interest
in the outcome of their cases and so the imputed conflict rule doesn’t apply
as long as ethical screens are in place to preserve confidentiality. (That
was the state bar’s own opinion in 2007, see Proposed Formal Advisory
Opinion No. 07-R1.) It’s the State Bar’s Formal Advisory Board, in a
star-chamber proceeding in 2010 that the public was not able to attend, that
came up with brand new idea that the imputed conflict rule applies to public
defenders.  (Heck, I’m dues-paying member of the bar and I was denied entry
to the proceeding because I wasn’t a member of that particular board–no
public defender is a member I believe although there is a district
attorney).

At that closed board meeting in 2010, this new rule was dreamed up under the
incorrect and frankly insulting assumptions that public defenders care about
anything other than their own client, that public defender supervisors
choose sides in multiple-defendant cases, that public defenders snoop around
in each other’s offices, and, perhaps most significantly, that conflict
lawyers from other towns who are not full-time dedicated public defenders
can get as good a result as quickly as the full-time public defender who
works with the same judges and the same prosecutors in the same courtroom
all the time can get. (Remember, most of Georgia is not like Atlanta; when
we have to send a case out of the office, we often have to send it to
lawyers that are far away and do not get our “home cooking” in court.) A
very wise career public defender once pointed out that, every time we have
to send a case out of the office, we are doing that client a disservice.

Oh, and last but not least–the young statewide public defender system has
been rocked by budget shortfalls since we started operations on January 1,
2005 and the legislature has seemed close to getting rid of it entirely and
going back to the patchwork county based public defender system several
times. So, when the State Bar comes up with a brand new rule that imposes
new restrictions on public defenders and which is at odds with the rule in
most other states, criticize single prior appellate opinion in Georgia, AND
the State Bar’s own 2007 opinion, and when that brand new rule is going to
cost so much money that it increases the odds that the legislature will
scrap the statewide public defender system, yeah, in those circumstances you
will find public defenders opposing the State Bar.  Not because we are
dedicated to the organization itself. No, because we are dedicated to the
goals of the organization. To the extent that imposing this new and
unnecessary rule taken from a minority of other states even slightly
increases the chances that the legislature will scrap the system, it’s a bad
rule for the indigent defendants in Georgia.

Now, I do understand that many if not most lawyers disagree with my position
so, no matter which way the Supreme Court decides to go, I’ll be happy to
comply and I’ll just hope that the legislature doesn’t carry through on the
many threats to throw public defense back to the counties. But I do take
issue when someone from outside the public defender world undertakes to
criticize one of my colleagues for suggesting that the rule the majority of
states follow is also the rule we should follow.

Thanks for your consideration,

Sam Merritt
Circuit Public Defender
Southwestern Circuit

Judges at Appellate Practice Section Luncheon Laud New Governor’s Support of Judiciary

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The Appellate Practice Section of the State Bar of Georgia convened as part of the Georgia Bar’s mid-year meeting. In spite of the fact that many participants came over from the swearing-in of Judge Boggs to the Court of Appeals, the luncheon was lively and well-attended. Originally intended to be a candidates’s forum for candidates to an open spot on the Supreme Court of Georgia, events changed the format. However several judges on the Court of Appeals and Supreme Court have seats up for re-election this year. And the meeting became an opportunity for brief comments from judges and justices. Without covering each mini-speech, I’ll highlight a few judicial comments about the nature of judicial elections and about what life is like for the judiciary under the leadership of a new governor.

It should come as no great surprise that the former governor did not have a particularly bright spot in his heart for the judiciary or even for lawyers. From the comments I heard, things appear to be better now.

Supreme Court Chief Justice Carol Hunstein noted that the new administration is “kindler and gentler,” in terms of budgetary support and basic understanding of what judges and lawyers do. Governor Deal is requesting $10 million for “accountability courts.” Accountability courts are focused on particular needs of a category of defendant. Accountability courts include drug courts, DUI Courts, mental health courts, and veterans courts. The Chief Justice noted that the governor’s son runs an accountability court and that the governor himself was once a juvenile court judge. She and former chief judge Yvette Miller, spoke of how difficult it was for the two appellate courts to make ends meet in the darkest days of the Perdue administration. Both were complimentary of the new governor, and the dark clouds of former days appear to have moved away.

Equally interesting was the general tone about the nature of judicial elections in Georgia. Chief Justice Hunstein, who faced down a well-funded challenge by Mike Wiggins in 2006 (PDF), noted optimistically that a judge’s job at election time is simply to “get the message out, and you can trust Georgia voters.” She looked back on her 2006 election as a time of fear that had she lost then every judge would be intimidated by special interest groups. And she hoped that the 2006 election proved that special interests can’t defeat a sitting judge. For candidates this year, she advised lawyers to inform the choices of non-lawyers. After all, if the judiciary is doing its job, judges should not be in the headlines. Hence, it should not be unusual for the general public to be unfamiliar with the judges.

To date, no challengers have announced an intent to run against any of the Court of Appeals judges or Supreme Court Justices who are up for election. The year ahead looks to be a time of stability for the appellate courts with apparently no contested elections and with a supportive governor in office.

Amanda Knox, the Appeals Process, and Moneyball

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

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

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

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

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

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

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

 

When Judges Tell Juries About Appeals

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

The Faustian Bargain

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

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

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

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

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

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

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

Take the Average Juror (Please)

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

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

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

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

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

So What?

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

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

 

Putting it in Context: Or, How I Almost Gave up on Blogging

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I stopped blogging several weeks back. You won’t have to look hard to see a gap in the rate of posts on this blog from July until a few days ago. And if you look at the post I did earlier in the week, you’ll see something worse than no blog at all. You’ll see a spineless report of some cert. grants with no analysis, thought, or expression of opinion. I think what I finally wrote was much worse than what I didn’t write. Then I thought, again, about no longer blogging. Confused? If you are still reading at this point, then let me explain.

A few weeks ago, a person attempted publicly to use some of my blog posts, via a verbatim recitation, against me. They were read out of context mind you. And the tactic didn’t work. Still, it was not fun. The general theme of the criticism was that I was failing to follow my own playbook.

Nothing I write here is legal advice. And I don’t pretend to think that this or any blog could ever be an A to Z guide on handling criminal appeals. Such an endeavor is not possible. And if it were, I am not qualified to pen it. There are certain patterns in the law that arise repeatedly (hence, the need for precedent), but no two clients or cases are absolutely alike (hence, the need for lawyers and a justice system administered by thoughtful listening human beings). So, at the most logical of levels, it is a mistake for any blog writer to think too much of himself when he says anything in this medium. And it is a bigger mistake for the reader of a blog to believe that any writer has all the answers or for a reader to take the words in a blog as anything strictly prescriptive. I don’t have a playbook on paper, on screen, or in my head for appellate success in all cases. And, in case I have suggested something otherwise, my appellate batting average is not 1.000.

Yet, I stopped blogging for a while because public criticism, whether well intended, well founded, and properly contextualized or not, isn’t fun. There’s quite enough of it in just doing the job, in standing up to make an argument for a client who has already been deemed guilty by a jury of his peers, in standing up before an appellate panel and taking tough questions, in the humbling experience of filing a brief knowing that it will be read by a group of very professional and highly critical audience. Why set myself up by putting my opinions before an audience that might not get it, might become confused to see me trying out an idea in one post and later abandoning it in another, and who might use those words in a less than charitable way.

But this question, I have discerned through some discussions with people I respect, is not just a question about blogging. Why engage at all, really? Why write articles? Why speak at CLEs or Rotary clubs or bar luncheons? Why try to explain to people at barbecues and parties what you do for a living or why you are so passionate about it? For that matter, why did you endure being called on in your 1L year or choose to take on a vocation that isn’t always fun and is often quite messy to do?

But those questions are probably bigger than the ones that came immediately to mind. A little too deep. A little too fru fru. The real questions I was asking myself were more in the neighborhood of seeking an excuse. The real question was a question of motivation. And the scarier question was exactly what is the nature of this medium and how I was using it.

I began imagining a spectrum, with a scholarly law review article on one end and with a seedy full-page yellow pages ad on the other (with a picture of me in front some law books and a clip-art scale of justice depicted) and wondering where my blog fit on it.

So why have I been blogging?

  • To find business? I wouldn’t mind if it happened. But there are easier ways, probably, to get business than this. If you realize business from blogging, it’s likely to come over a long period of time from a blog that is credible and by referrals from other lawyers who know and have critically evaluated your work. Blogging is probably the least important way to get that. You earn business one transcript page at a time, one argument at a time, one paragraph at a time. But you can get that through blogging too, if done with integrity. But it isn’t easy, and it is not for the impatient. Better to design the yellow pages ad and get on with what you normally do in the day. The business I get directly from the blog usually comes in the form of requests to represent people for free. The most dreaded words in the law, I think are “I found you on the internet.” Because what follows is typically a story of a purported injustice that I should be so shocked to hear about that I would never consider seeking compensation for my time and expertise to take it on.
  • Fame? On my very best day, it is pretty depressing to click on Google Analytics. I think that a criminal appellate law blog is not exactly a ticket to fame. When people tell me that they read this blog, I’m often tempted to say, “so you’re that guy.”
  • To engage other lawyers, to think a little more about issue so importance, to try out (and maybe discard) some ideas about the craft, and to have fun. Those are the reasons to do this. And there’s one more that comes when I stumble into doing it well.
  • To take risks. Stick your head up enough and you’ll get hit. And in the short term, it’s better to keep your head down. But in the long term it just sucks to do that.

In deciding whether or how to blog, whether or how to practice law, and whether and how to live, it always seems easier and more comfortable to lock the door and close the blinds. But it isn’t very fun.

 

Granted Petitions on Criminal Cases for the Month of September

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

Bunn v. State

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

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

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

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

Jones v. State

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

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

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

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

Harper v. State

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

 

What Do Appellate Lawyers Do

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Leave this blog right now and run, don’t walk, over to the Appellate Record and read Kendall Gray’s blog post on what distinguishes appellate lawyers from trial lawyers. A presentation he gave to visitors to his firm from China inspired this post. It provides the simplest explanation of the key differences between the two types of practice that I’ve never thought of. It’s the perfect thing for the appellate lawyer to bring to the next family reunion, picnic, initial client interview, or for consultation in an ongoing case when you have to explain, again, why you can’t tell the appellate court about “all of those people who got up on that witness stand and told all those lies.”

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