Uncategorized - Scott Key & Associates

Two New Cases Warn Lawyers to Tend to the Record on Appeal

August 17, 2011/by J. Scott Key

Two recent cases from the Court of Appeals demonstrate the need to put the appellate record together in a reasonable time period, the need to respond to post-trial motion regarding the record with the statutory time frame, and to be vigilant that the record stays together as the case moves its way through the court system. The record is the engine beneath the hood. And there can be problems that the gauges in the dashboard will not always catch. Sometimes, we need to check the oil, the belts, and the hoses.

Frazier v. State, A11A0196

In this opinion, written by Presiding Judge Anne Barnes, the Court of Appeals affirmed a trial court’s decision that a defendant’s confession was voluntary and would be admissible for impeachment purposes if the defendant decided to testify. The defendant had not been Mirandized before he spoke with law enforcement, so the State was not allowed to use the statement when it presented its case. On appeal, the defendant argued that the statement was involuntary, because he was intoxicated when he spoke with law enforcement, and should be inadmissible for any purpose. He urged that the error was harmful because, without its admission for impeachment purposes, he would have testified at trial. This was the case’s second trip to the Court of Appeals. And, somewhere along the way, the videotape of the confession, was lost. The Court checked with the trial court clerk and others to no avail. The Court did not have the tape to review in making its decision and was left to rely solely upon the trial court that viewed it.

Mr. Frazier filed a Motion for Reconsideration and a Motion to Supplement the record after the opinion was rendered. The Court denied the Motion for Reconsideration, reasoning “Further, as Frazier has only now requested that the record be supplemented with the missing videotape, and has moved the trial court to produce a videotape, he obviously made no attempt to ascertain the location of the missing videotape prior to the issuance of our opinion.”

One wonders, though, whether Mr. Frazier would have achieved anything in acting earlier. The Court, on its own, looked for the tape “prior to its review of the present appeal” and was unable to find it.

What is clear from the opinion is that a lawyer’s responsibility for keeping up with the record on appeal does not terminate when evidence is tendered to the Court and when documents are filed in the record. At a panel discussion on appellate advocacy, Judge Dillard spoke about his practices with respect to the record on appeal. He talked of his earlier practice as an appellate advocate going to the clerk’s office and making an exact duplicate of the record to keep in his file. It turns out that such a practice is more than a helpful suggestion, it may well be the standard of care since Frazier.

It also would be a good practice, post-Frazier, to check the record when the case is docketed to ensure that everything put in the record is still in the record.

Bush v. Reed, A11A0978

And it is also important to get the record assembled in a reasonable way. In another opinion, authored by Judge Barnes, and decided by the same panel that decided Frazier, the Court affirmed a decision by a trial court in a civil case, where a trial court found that a plaintiff’s delay in paying for a transcript was inexcusable and unreasonable. It takes a timeline to explain this case fully. On October 27, 2009, the plaintiff filed a notice of appeal, moving to only send up certain portions of the record. A month later, the defendant moved that the complete transcript be prepared and sent up. In January, 2010, the Court granted a motion for additional time to file the transcript. A month later, the court reporter told the plaintiff that $3,500 was needed to begin the transcript and that it would be unusual only to prepare certain portions of it. So, later the plaintiff moved to require the Court to make the plaintiff and defendant apportion the costs of the appeal, which the trial court denied. On July 29, 2010, the defendant moved to dismiss the appeal, prompting the plaintiff in August to pay the deposit finally. But the plaintiff did not answer the motion to dismiss until October, and that answer was struck as untimely.

Finally, on November 15, 2010, the trial court dismissed the appeal.

On appeal of the dismissal, the Court found that the trial court did not abuse its discretion in finding that there was an unreasonable delay in the preparation of the transcript. It is important to take note that there is no magical number of days that a case can be delayed before the delay becomes unreasonable. In fact, there is language in the opinion suggesting that a trial court would not abuse its discretion in finding a single day’s delay to be unreasonable. Next, the Court turned to whether the delay was excusable. There the original plaintiff had relied upon the trial court’s somewhat open-ended order allowing an extension of time to file the transcript. Practitioners should take note that even an order allowing an open-ended extension is not sufficient to delay paying the court reporter. The court reasoned that a court order “does not excuse a party from the consequences” of his unreasonable delay.

Conclusion

It is not enough to tender an item into evidence and put it into the record. The appellant has the responsibility to shepherd the record to the appellate court, even when the sheep are penned up in the clerk’s office or with the court reporter. It is also important to be diligent with the assembly of the record even if the trial court appears to have provided you with an excuse to do otherwise. Not even the trial court can excuse unreasonableness.

New UGA Law Review Article Takes Georgia to Task for the Way We Handle IAC Claims

July 11, 2011/by J. Scott Key

I returned from vacation pleased to find in my in basket at the office a copy of Ryan C. Tuck’s article from the Georgia Law Review on the confusing state of the law as it relates to ineffective assistance of counsel in Georgia. The article is titled “Ineffective-Assistance-of-Counsel Blues: Navigating the Muddy Waters of Georgia Law After 2010 State Supreme Court Decisions.” This article is as good as its title is clever. The article centers on where the law in Georgia is after Garland and Moody.

And the news is not particularly good. And why am I excited about a law review article on a case I lost (sort of) and that demonstrates some issues with how we handle IAC claims in Georgia?

The reason is that maybe things will change. The way we do things in Georgia makes it tough to be a criminal appellate lawyer, disincentives trial lawyers from preserving issues for appeal, and needlessly separates the appeal from the trial in a way that interferes with attorney-client relationships and in a way that probably hurts the client in the long run. And this article give me some hope that the legislature will move Georgia to a system of handling IAC claims more akin to the majority rule.

Mr. Tuck picks up in a familiar place to me. Jim Bonner’s article in the Appellate Review, the Georgia Appellate Practice Section’s Newsletter covered some of the same ground.

What’s Wrong Now?

Under Georgia law, new counsel must raise ineffective assistance of counsel at the earliest possible moment, or he waives it. As claims go, IAC not really good. It’s rarely successful. I have litigated it more times than I can remember, and it’s worked on appeal exactly one time (it’s worked a few more times at the trial level, but generally with a wink and a nod as part of negotiations).

The problem is that clients think that it will work for them, and they pressure new counsel to raise it. There are many reasons why it should rarely be raised. For one, there rarely is a good claim. Secondly, it has a way of becoming the focus of the appeal. Third, even when it doesn’t it can be a big distraction from other real issues of merit. Fourth, analysis under the second prong of Stickland, invites trial courts to weigh in on how strong the evidence was against the defendant at trial. Such careful scrutiny of how good the State’s case was can have a spillover effect to other issues in the case making it that much easier to proclaim that other errors were harmless.

Pressures from the client and systemic pressures (raise it or waive it) can create a real conflict with the lawyer’s ethical obligations not to raise frivolous claims under Rule 3.1 of the Georgia Rules of Professional Conduct. To quote Mr. Tuck’s article,

By creating pressures for new appellate counsel to raise IAC claims against trial counsel, critics contend that Georgia’s approach contravenes this warning from Strickland [that there will be two trials. In the first, the defendant is tried. In the second, the lawyer is, as Mr. Tuck puts it “tried for IAC.”] and institutionalizes a level of antagonism between defendants and their attorneys that can be damaging to overall standards of representation. As one critic asserted, “[i]t causes hell for attorney-client relations if both know from the beginning that they will end up on opposite sides.

And from my experience, this issue marks the place where things can go bad between the attorney and the client. I don’t raise IAC unless I see at least a colorable issue and if it won’t hurt other claims by serving as a distraction and if the second prong won’t spill over into the harm analysis of other issues.

Where Should We Go From Here?

We should require that IAC claims be held until collateral proceedings and take them out of the direct appeal except in the rare case when it can be resolved from the record itself. And, the failure to raise it should not act as a waiver of the issue. It would better the system and make it easier to practice criminal appellate law. And, above all, it would protect the clients from going for a low percentage issue at the cost of other issues of merit, which provide a better chance of success even if they don’t quite understand those issues.

Video Arraignments are a Step in the Right Direction

June 22, 2011/by J. Scott Key

Above the Law has a good recent post on the use of video arraignments and how judges find that the process makes them feel safer. I don’t know whether video Arraignments make the process any safer or not. But the process certainly makes the process more efficient. In fact, many of the rituals of court aren’t just antiquated. They’re anachronistic. The other part of the article that I liked was a link to a story from a few months ago about Judge David Emerson’s decision to allow a defense attorney to call a witness at trial via Skype. These posts point to a good future for those of us who participate in the appellate and post-conviction process in Georgia.

There is an annoying thing you sign up for when you do post-conviction work in Georgia. And that is a clientele located hundreds of miles from where the lawyers and most of the witnesses are. Chances are that your appellate client will be located in South Georgia, and there will be an issue of whether to produce him for court. For the client, being produced for the hearing and returning to prison means starting back at square one as a new inmate at the facility. That situation can result in a complete upheaval of the client’s life, essentially representing a move to a new dorm with different cellmates. For the court, it means expense and potential security issues.

When the case ends, appellate counsel often becomes the witness in the former client’s habeas case, entailing another drive to a distant city. In fact, the whole show travels south, with assistant attorneys general driving down for court with boxes of files. The whole thing is needlessly inefficient and expensive.

There is no reason that much of the process couldn’t be done over Skype. Already, oral arguments at the Supreme Court are being done that way (not via Skype but by video feed from satellite locations in south Georgia). Arraignments and probation hearings are being done that way.

Why couldn’t attorney visits be done via Skype? And certainly why couldn’t court be done that way. The process would have several other advantages.

It would allow for more frequent meetings. Right now, a single visit requires a day (and sometimes two if you have to stay over) away.
It would make court run faster.
It would provide for better security. There would be fewer people in the room to protect.
The personnel cost savings would be significant.
Cases would move more quickly
There would be fewer appellate issues involving transfers and other weird little things that arise in the habeas setting right now.
There would be fewer continuances due to lawyer and witness unavailability.

In fact, it would allow appellate practices to be more efficient. Right now, many appellate lawyers face a tough choice. Do they want to put the work into working on these tough cases, which the clients want their lawyers to do. Or do they want to take time out from writing the briefs and reviewing records to meet with and reassure the client about the work that isn’t getting done during the day it takes to drive to the prison and have the meeting? Right now, there are tough choices to be made between working on the cases and driving around the state merely to talk things over with clients and family. The adoption of video could really eliminate some of these tough choices.

We can only hope that prisons and habeas courts will follow Judge Emerson’s excellent example.

Lessons I Learned from This Month’s Appellate Losses

June 21, 2011/by J. Scott Key

It’s been a bad month for my most recent crop of Supreme Court cases, both in terms of cases where I represent the party and in cases where I am amicus counsel. But I try to learn from them all. And here’s my takeaway from the month. To have and cite a case is not the end of the story, particularly if the precedent was set in the Court of Appeals and hasn’t been heard yet by the Supreme Court. This was the lesson I take away from State v. Thackston. The Supreme Court there overturned a few decade’s worth of precedent to hold that the exclusionary rule does not apply in the probation revocation context. Blue Line Lawyer aptly points out that officers who search in violation of the 4th Amendment can still be held liable in a civil rights action. Then again, we’re in the 11th Circuit. My initial reaction was, “this is terrible.” Then came Black Monday, where two cases of mine (one as amicus counsel and another as party counsel) went south. I’ve now had a few days to reflect. And during that time I was writing a brief in a murder case.

In that murder case,an issue arose where the precedent looked pretty bad on an issue. So, taking some advice from an appellate judge who spoke to my class earlier this year, I dug a little deeper to see what lies behind the holding in the recent cases. I took the Court of Appeals holding that I did not like, and I began tracing the precedent backward, all the way back to when the Supreme Court first commented on it. How old was the case? It involved a search incident to arrest in a buggy (the horse-drawn variety). I learned that the Court of Appeals, in the 1970s and 1980s took the line of cases from the Supreme Court and twice took the precedent way out of context. And the Supreme Court never adopted the new reasoning. If the Supreme Court could reverse decades of precedent from Thackston because it wasn’t their precedent, then surely they wouldn’t appreciate the Court of Appeals taking their case law out of context and expanding it.

But my point is that it is important not to view precedent as the end of the story, particularly if the Supreme Court has never visited it before or if a line of precedent has developed in both courts. It’s important to track the history of the cases with Article I, Section 1, Paragraph 3 in mind (“The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedent.”). In the murder case, the Thackston case reminded me that the bad case I found wasn’t necessarily the end of the story. And an issue I might have been tempted to abandon became a significant part of the brief. With a Supreme Court more willing than ever to consider old arguments anew, it is important to look a little deeper even if the first wave of cases on your Lexis or Westlaw search are less than inspiring.

Author of study of Georgia criminal justice system has died

June 16, 2011/by J. Scott Key

Alyson Palmer at the Fulton Daily Report has noted the passing of David C. Baldus. Mr. Baldus authored a study in 1986 showing that, in 2,000 murder cases in Georgia in the 1970s, defendants accused of killing white victims were more than four times as likely than defendants accused of killing black victims.

That study figured prominently in McClesky v. Kemp, a 5-4 decision in favor of Mr. McClesky’s conviction and death sentence. Justice Powell later noted that his vote in that case was the one he wished he could change.

The New York times also reports his passing.

Judge Christopher McFadden Offers Advice on Requesting Oral Argument

June 13, 2011/by J. Scott Key

How do you make the most compelling possible case for oral argument in the Georgia Court if Appeals? According to Judge Christopher McFadden, it is important to draft a self-contained request that summarizes the key issues in the case. It is important also to explain exactly how argument will assist the court under the unique facts and with the unique issues in the case. Finally, it is important also to explain exactly how argument will assist the court under the unique facts and with the unique issues in the case. It is also important to assume that the Court will not have seen your brief when they take up your request to argue.

Judges McFadden, Blackwell, and Dillard spoke to a combined meeting of the Appellate Practice Section and Criminal Law Section of the State Bar of Georgia. And, for Judge McFadden, this was an important issue. Below is a summary of Judge McFadden said, combined with a little editorializing from me.

Don’t spit out boilerplate.

Write a request tied to the unique facts and legal issues in the case. From time to time, lawyers call me requesting a form for a request for argument. I love helping other lawyers, so I don’t mind providing some of my past materials just to give folks a visual of what a request to argue looks like. But I get concerned when it appears that the lawyer is looking for assistance in how to word the request. There is no formula. In fact, if you fire up the computer and start generating boilerplate you probably wont’ be arguing this case.

Get to your point and theirs.

The request should quickly and succinctly educate the Court on the essential issues in your case, what your argument is, and without conceding the merit, a summary of what the other side’s position is. There’s a little art in all of this. You don’t want to concede your opponent’s position, but you don’t want to portray your opponent’s as a straw man either. If the case isn’t even close, I’d forego argument.

A request for argument is the opportunity to advocate.

It’s not only a reader’s digest condensed version of your argument but of your opponent’s anticicipated argument also. And it can be a great second brief in condensed form.

You can’t write it if you don’t really know your case.

By the time you’re drafting a request to argue, you should be in a position where you could tell your spouse or a friend or someone at a picnic or cocktail party the essence of your case in about 90 seconds. Because that’s what a request for argument is. It’s an elevator speech.

Finally, Judge McFadden explained that it’s important to explain exactly how oral argument will assist the court in deciding the case? What is it about this set of facts and this set of legal issues that lends itself to written and oral argument? Next to setting out the issues in a succinct fashion, your oral argument should set out exactly why it is important to have an exchange with the court before deciding the case.

If you follow Judge McFadden’s advice, even if you don’t win the request to argue, the process of honing your argument to its essence will likely help you refine your brief and know your case better. And if argument is granted, it is a good first step to prepare.

Georgia JQC Sweeps Another Judge’s Conduct Under the Rug

August 27, 2010/by J. Scott Key

It appears that the best place in the State to skirt the edge of the law is the judicial chambers of a Georgia court. If your crime catches the attention of the Judicial Qualification Commission and they investigate first, then you might lose your job. But that’s about it. Brian K. Finnicum, the Editor of the News Observer in Blue Ridge, Georgia, has a piece up in today’s paper describing how JQC has refused to release any information about former Superior Court Judge Harry Doss to DA Danny Porter, effectively shutting down his investigation for what may be criminlnal conduct.

According to Mr. Finnicum, Danny Poter, who was appointed as a special prosecutor to investigate whether former Judge Doss was involved in criminal activity, has closed his investigation after the JQC refused to provide him or his investigators with any information.

When Mr. Porter began investigating Judge Doss, the JQC told him that it would turn no information over to him voluntarily and would resist any of his efforts to obtain it voluntarily. So, Mr. Porter has packed up his tools and is refocusing on Gwinnett County. He said, “I have my own circuit to deal with. I entered into [the investigation] with the assurances from the investigaor that I would have cooperation, and that didn’t happen. I don’t have time to do anything further.”

From the perspective of someone who represents people who have been convicted of crimes, this whole system is disturbing. I already wrote about it last week.

The things that JQC chooses to sweep under the rug may be vital to people whose lives were impacted, perhaps ruined, by judicial decisionmaking. There may be reversible error at stake in both civil and criminal cases. A judge who may have committed a crime might have had an incentive to come down hard on criminal defendants in certain cases to please local law enforcement.

Not to mention the horrible double standard. My clients, whether accused or convicted, lose everything. They lose their job. They lose their freedom. Some lose licenses. Their reputations are often irretrievably trashed. And the whole think is officiated by Georgia judges. Yet, those same judges get punished by other judges, and the whole thing is suppressed, not only from citizens and the media, but from an elected District Attorney charged with investigating and prosecuting crimes.

And even if these people are innocent of crimes, the whole thing hurts the judiciary and the system as a whole. And it was bad enough before this all started.