Episode Synopsis: In Frank Hogue’s long years as a criminal defense attorney, he’s never been daunted by high profile cases. That’s why he’s taken on defending George McMichael in the case of the death of Ahmaud Arbery. In this episode, Hogue breaks down the challenges of cases with major media attention, racial inequalities in the justice system, and his philosophy on the role of a criminal defense lawyer.
Frank: A criminal defense lawyer should be willing to represent any person accused of any crime, any time. The only limitations to that, if you’re in private practice, would be the practical matter of “Can you pay me?” I have never decided to decline a case because of its unpopularity because after all, what crime can we name with the possible exception of some drug crimes that we would defend?
Scott: That was Georgia criminal defense attorney, Frank Hogue, talking here, in particular, about his decision to represent Gregory McMichael, who was accused of murdering Ahmaud Arbery in Glynn County Superior Court, a case that had the attention of the nation since the arrest took place last summer. Frank talked about his decision to take on that case. He talked about what he considers to be a criminal defense attorney’s obligation to take on unpopular matters, to represent unpopular people even when those unpopular people overlap with what can be confused with unpopular causes. It was an absolute privilege to talk to Frank, not only about this case, but for what it stands for.
And we go in a fairly deep dive here about criticism that he has received, not only from the community at large, but from the bar and the criminal defense bar, in particular. Prominent and very well thought of criminal defense attorneys in his community, our community, have criticized Frank for taking this case on. And we talked a little bit about what that means. But beyond that, we talked about race in the law, race in the criminal justice system, race and policing, and the unfortunate overlap between political causes and criminal justice.
This podcast goes a little bit longer than most podcasts do, but I think it’s a very important topic. And I was grateful for the opportunity to think through some of these issues in a very thoughtful, intelligent and deliberate way. So, I hope you’ll enjoy this podcast as much as I enjoyed sitting down with Frank and talking. Remember to please rate, subscribe to this podcast wherever you get your podcasts. It really means a lot to have your thoughts and to have your subscriptions. This podcast is part of my practice at Scott Key Law. For more about my practice, you can reach me at scottkeylaw.com. And you can listen to this and other podcasts wherever you receive podcasts. And so without further ado, I give you Frank Hogue. Frank Hogue, it’s so good to have you on the podcast. How have you been?
Frank: I am too busy for my own good. The pandemic has apparently ended as far as the court system is concerned, and so now I will spend the entire summer and fall in court. But other than that, Scott, I’m doing great. Good to be here with you.
Scott: Have you gone and have you had a jury trial since pandemic yet or are you just gearing up for a jury trial or two or three?
Frank: I’m gearing up. I have a death penalty trial starting August 30th with jury selection. And that case will last maybe a month. That’ll be my first post now, still mid-pandemic trial.
Scott: And are you finding that judges are making lawyers go back to court for calendars and things that probably don’t necessarily require someone to be present? Are you finding that Zoom is still there for routine things like that?
Frank: No. Unfortunately, in my opinion, judges are returning to in-court appearances for matters like calendar calls, arraignments, things that during the pandemic we were working famously by Zoom and I thought, “Okay. The world’s changed. We’re gonna keep doing all this by Zoom.” It seems not to be the case for most judges. There may be a few that like the Zoom approach, but I’m not seeing much of that.
Scott: What do you suspect the motive is for that? I mean, I think I have an idea.
Frank: I don’t know that I have an idea. I’m not sure what it is unless it’s the theory that judges have, perhaps that if you require lawyers and defendants and prosecutors to meet in court, in-person, cases tend to get worked out more. Maybe that’s part of it. I don’t know. Maybe they just missed us [inaudible 00:05:09]
Scott: So, I’ll just kind of drive back to the beginning. And I always let my guests introduce themselves, although you have a theological and philosophical background, so this may be a risky question for you, Frank. But who is Frank Hogue?
Frank: Well, I am a criminal defense lawyer and have been for 30 years. So, my academic past is so far in the past that I don’t think of myself any longer as an academic. I was headed in that direction before law school. I was thinking about becoming a philosophy professor. I was teaching some philosophy at college level. But I chose, in 1988, to go to law school and became a criminal defense lawyer upon graduation day one, actually, even as a clerk for a law firm while in law school and decided that’s what I would be good at and I loved it. And so that’s what I’ve been doing for the last 30 years. And I think of myself as a criminal defense lawyer.
Scott: Do you do anything outside of criminal defense? I mean, I know maybe you do the occasional habeas or something like that, but for the time that you’ve been an attorney, have you always considered yourself to be a criminal defense attorney?
Frank: I have, even though I have in the early days, when you had to take cases just to, you know, bring money in to pay the bills. I did work for a small firm at first, but they were very good to me and let me do whatever kind of case I wanted. So, I tried my hand at a few things. I did some family law. I did some personal injury. I tried a medical malpractice case to a jury verdict one time in my career. I did a contracts dispute case to a jury verdict. I never enjoyed those and I wasn’t all that good at it. I didn’t feel comfortable with the issues or the clients. And all during those early years, I was taking criminal cases.
This was before the public defender system. So, I was appointed case after case after case and I loved them. I worked hard on them. It didn’t matter to me how little they paid. They juiced me up. I liked the clients. I liked the issues. And it’s what got me in court a lot. And eventually, by about year six of my practice, I could drop everything but criminal cases. And since then, I’ve done exclusively criminal defense. And mostly criminal defense at the trial level. I have done my share of appellate work, not like you or Laura, my wife and law partner. But I’ve done some and can do it. I just have gravitated towards trial work.
Scott: What was it about… You said you didn’t love… I never knew you’d done a med mal case until you said that just now. But you said you didn’t love those cases and you didn’t… I don’t sense the same feeling of affinity toward the client. What was the difference? What do you think it was about the civil process that was different for you?
Frank: Yeah. It’s a pretty simple answer, really. The fight in civil cases is primarily over money and the fight in criminal cases is primarily over freedom. And I think freedom is more important than money. It’s more interesting. The stakes are higher. And I want it to be where I mattered more, and fighting over money just did not juice me up that much.
Scott: And in your career, how many jury trials do you think you’ve done?
Frank: Yeah. I tell younger lawyers, “Keep a journal so you can answer this question accurately.” I didn’t do that, so I’m always guessing. But I’m gonna guess that I’ve probably had somewhere between 80 and 100 jury verdict cases. Obviously, I’ve probably handled several thousand criminal cases over my career, but somewhere in the range of 80 to 100 maybe that have gone all the way to jury verdict.
Scott: And have you… I know you have a death penalty trial coming up. Have you tried death penalty cases?
Frank: I have. The one I’m doing now is my 10th one. Out of the 10, I’ve tried one to a jury verdict. The others I’ve up settled with less than death, please, of course. That’s the main goal in death work. The one I tried, Laura, was my co-counsel and we tried it in 2005 in Bibb County, Macon. And it was a double murder of a mother and her son, 39-year-old mother and a 9-year-old son that our client killed with a butcher knife. On 911, that line was open when he killed the child. And the state would not offer us anything less than death. We got the client to agree to take life without parole times two for the two murders and the state rejected it. So, Laura and I spent a month in our death penalty trial. And, of course, he was convicted of the murders, but he got two life without parole sentences, just as we sought. And I’ve had a lot of acquittals in my career. And when I heard those two life verdicts, it was every bit as exciting and exhilarating to me as any acquittal I’ve ever had.
Scott: That’s…just because of the stakes involved, just because you had been part of saving some person’s life.
Frank: Yeah, that’s exactly right. I mean, that was the… In death work, that’s the entire goal, to keep your client off death row. Most of them really ought to be, every single one of them, if the prosecutor chooses wisely, are patently guilty. And so you should not be in a death case thinking you’re going to acquit somebody, though it happens. It hasn’t happened to me but I’ve heard of those cases. But in the ideal case, that’s death, if there is such a thing, the guilt should be beyond question. And the whole ballgame is, “Now what? How did the jury punish this guy?”
Scott: What are… In terms of the death work that you’ve done, have you contemplated, and do you have any comment upon the political nature of the decision to seek death and some of the racial and socio-economic issues that go into the selection of a death penalty, you know, the death notice a case or not death notice a case?
Frank: Yeah. It’s widely known that raised in place usually play a part in who is set for a death penalty case. I will say, though, that with the statewide public defender system, and the state funding of capital cases, that diminished somewhat. But it used to be before 2005, ’06 along in there, that each county had to fund the freight for the most part for death penalty cases. And so I remember I had a triple murder case in county, a rural county, in Georgia back in 2003. And the DA wanted to seek the death penalty. It was a gruesome triple murder case.
And the county commissioners warned him that if he did so, he would break the county. And so we tried what would have been a month to six weeks long death penalty case in a week as a straight-up triple murder case. I will say, if I may, that I did get an acquittal in that case. So, had that been a death penalty case, maybe that would have been my one and only acquittal in a death penalty. But the lesson from that was, there was this instance where had that been a wealthier county, that DA was ready to seek death on that client, but because of their financial straits, they didn’t.
Scott: Which makes the decision to seek death or whether or not a person who commits a death-eligible crime, which is only murder, it makes kind of, like, it’s a lottery whether or not… I mean, beyond just whether there’s sufficient aggravating factors versus mitigating factors, there’s a bit of a lottery nature of that. And when you said race in place, is that part of what you meant by the place component?
Frank: Yeah. The place component turns on a number of factors like the one I just alluded to in that anecdote, it was just a matter of money. But the bigger factor is, “Who is the DA? Who was the victim?” Those kinds of factors and just, if I may use another anecdote to illustrate the point, I just spoke to a DA in Georgia about a potential client. Turns out he’s not going to be my client, but he killed a police officer. And in most places, that is a clear signal to a defense lawyer this may become a death penalty case. So, I contacted that DA before I agreed to take the case and set a fee. And he told me that in his entire tenure, he’s never sought the death penalty and didn’t intend to.
He said, “It’s not because I’m opposed to it, I’m not. But I just don’t see juries giving it as much as they used to and I think it’s gonna be gone in the next decade anyway, so I don’t see the point.” And take that and contrast that to another circuit where I have a death penalty case pending right now. And I think this is true that that circuit has led the state in death penalty notices for decades through, at least now into its fourth district attorney, they’ve carried on the tradition. And part of it is because the juries in that circuit..it’s largely rural, it’s very conservative. And juries there have not hesitated that much to give the death penalty. The sheriffs know that, the DA knows that.
And so they’re much more inclined, though, less now than they used to be, fortunately, to seek the death penalty. But one circuit over from that circuit I’m alluding to right now, you will almost never see a death penalty case. To me, with 49 judicial circuits and 159 counties, it turns so often on “Where did the crime happen? Who’s the DA there? And what kind of juries do you get there?” And that’s a bit arbitrary, in my view.
Scott: And that is the place component. Now, the other part of what you said a moment ago is race. And in your experience, what is the role… And this is a very…I understand this is a very complex question. What role have you found that race plays in the decision to seek death?
Frank: It’s odd because in my own experience, most of my death penalty clients, out of the 10 I’ve had, have been white with a mixture of victims in terms of race. But if you look at the statistics in states that do have the death penalty, and that includes Georgia, at least historically, you could count on finding more death notices served on black defendants. And if the victim was white, then the chances increased even more that a black defendant would be named in a death penalty case who has killed a white victim. I don’t know that that is as common now as it once was. I’m not up on the statistics of it.
There have been times when I have been. And I have brought up that race problem in death penalty cases before during motions hearings, as a part of our defense. So, I don’t know how well my own anecdotes translate into a systemic-wide issue or not. But I know those statistics are available there. There’s a death penalty information center online, a website that keeps up on that. That’s my go-to place when I wanna find out about statistics in death penalty cases, death penalty information center.
Scott: That’s interesting. I didn’t know that that existed. So, I wanna… On a related topic since we’re on the topic of race and the criminal justice system. I know now that you have one of your upcoming trials, and I think you’re set for October is you are representing Greg McMichael who was one of the defendants who was accused in the Ahmaud Arbery case in Glynn County. And I have… I know you and I know very well the two excellent lawyers that are representing the co-defendant in that case. And I have largely watched this from the sidelines. I’ve not really talked about the facts with any of the lawyers in the case. And I know the other defendant, just in passing, I mean, the other defense attorney just in passing, Kevin Goff, I know him in passing.
I’ve largely watched this from the sidelines. And, of course, we are both former presidents of the Georgia Association of Criminal Defense Lawyers. And these are some things I’ve observed and some of the frustrations I’ve had. And I suppose there’s a racial component to this and there’s also an issue of how do we address… And everyone’s seen the videos, from cell phones that have gotten into the news, of course, of George Floyd and even the videos that circulated, in this case. There does seem to be, and I would acknowledge, an issue with maybe training for law enforcement and maybe retention and maybe even in hiring of law enforcement. Of course, I know, in your case, that these were former law enforcement, they were not active. But I think they’re considered… I think that’s part of the facts of the case. They’re sort of considered to be law enforcement.
I have been frustrated in the sense that in my own practice…I do represent law enforcement officers from time to time. And my take on those cases is that addressing law enforcement or police brutality or racism within the criminal justice system and racism within policing and how it plays itself out in individual instances is, I think, undeniable. I wouldn’t seriously dispute that that is a fact of our justice system and maybe less so than it once was. But I do get concerned with some of my colleagues and even the organization that we were the president of that it seems to be that while there are things that need to be addressed at a systemic level, when a law enforcement officer or a former law enforcement officer becomes a criminal defendant, that person is a criminal defendant. And I think some of the things you talked about earlier in our discussion that motivated you to be a defense attorney, that freedom being more important than money in terms of…or something that was more motivating for you that seemed higher stakes than money, that there’s also…
And if we drill deeper into that, I think probably we would say that there are certain principles of the constitution and the right to be presumed innocent and our hold sacred the idea that in order to be convicted of a crime, not only must the state prove you guilty beyond a reasonable doubt, but they have to prove that not to just a government official, but to 12 jurors who leave their everyday lives behind for a little bit to act as jurors. And I think those are things that we probably would both equally hold sacred. I’ve sensed that there seems to be something of a double-standard when it’s a law enforcement agent or a law enforcement officer who becomes the defendant. And it seems almost maddening just to have watched that from the sidelines. And I know that’s a… I don’t know that I necessarily have a question here. That’s a long introduction. But do you have any thoughts on that kind of being in the middle of a case that’s gotten some acclaim and notoriety?
Frank: I do. Lots of them, actually. In this case, in the McMichael case, as we call it, Ahmaud Arbery case, as it’s more widely known, our client Greg McMichael was retired law enforcement, but quasi law enforcement because what he was doing the day in question, in our defense, we will argue, was attempting to conduct a citizen’s arrest. And I’ve known many police officers in my career, of course, and represented many over the years who’ve gotten themselves in a jam. And I find that…it seems that once a police officer, always a police officer. There’s this ethos that goes with it.
And so in our case, for example, in the little Satilla shores neighborhood of Brunswick where the McMichaels lived, he and his son went out that day to chase and detain a man they suspected of having committed burglaries in their neighborhood. And I’ll talk a little more later, if you want me to, about the basis for that suspicion. But what they did was something that perhaps, Scott, you and I, and many people we know would never have done because we’re not trained law enforcement, never have been, and would never take it upon ourselves to go hop in a pickup truck to chase down a guy that you wanna hold until the police get there. That’s the argument we’ll make was their motivation in going after Ahmaud Arbery that day.
Most of the rest of us perhaps would have seen him go running past that day, as Greg did, and then just pick up a cell phone and call 911 and say, “There goes the guy. He’s a suspected burglar. Come on out here quick as you can and get him.” And if they had done that, we wouldn’t be talking about a case right now involving them the McMichaels in the death of Ahmaud Arbery. So, I say all that to say, even though he’s not a law enforcement officer, and it’s a little bit different in that regard than say, the Derrick Chauvin case or many other law enforcement officer cases that we know about, it is also very similar to these law enforcement cases because he’s former law enforcement acting in a quasi law enforcement capacity that day.
So, for all those reasons, I can and have had the occasion to take a pretty deep dive into the reactions that we’ve encountered to defending someone in his position. It’s not been that much different than what Derek Chauvin and other police officers and their defense teams have faced, I’m pretty sure. In fact, I know it from talking to some of those lawyers over the years who’ve worked in those cases where there is a law enforcement component combined with a race component to create the kind of perfect storm that leads to, you know, what we saw last summer in the wake of George Floyd’s death.
So, all of that is to say that, and you alluded to it before, that as a long time criminal defense lawyer and a past president of a criminal defense organization, and ironically, get this, not only am I one of… There’s five lawyers, if you count Roddie Bryan. There’s four lawyers representing the two McMichaels. Three of the four of us on McMichael defense are past presidents of our statewide criminal defense organization. And the fourth is scheduled to take over as president this coming January 2022. So, all four of the lawyers for the McMichaels will have been presidents of a statewide criminal defense organization.
Now, the irony alluded to, and I don’t know if you use the word irony or contradiction, but we have experienced some negative reaction to our representation of the McMichaels, first of all, from the public, and that’s not surprising to me. And that’s because the public has a difficult time distinguishing between the crime committed allegedly by a defendant and the role of a lawyer representing and defending that accused person. We get that. But lawyers, and criminal defense lawyers especially, should never have any confusion about that at all.
And in my approach, Scott, my philosophy and approach to criminal defense work, my entire career has been that a criminal defense lawyer should be willing to represent any person accused of any crime, any time. The only limitations to that, if you’re in private practice, would be the practical matter of, “Can you pay me because I can’t work for free very long or I’ll not be a private lawyer any longer?”
But other than that, I have never decided to decline a case because of its unpopularity because, after all, what crime can we name, with the possible exception of some drug crimes, that we would defend that the crime itself is a good thing, leaving out, you know, some smaller crimes and nowadays any crime involving marijuana and other drugs and where there’s some question about whether that should even be illegal? All other crimes, particularly violent crimes or crimes against people, crimes against children, and all the rest of it, those are inherently repulsive and unpopular. But…
Scott: And those things should be unpopular. I mean, we’re not…
Frank: That’s right.
Scott: We’re not endorsing the criminal act and we’re not our client.
Frank: Exactly. I mean, I’ve said many times to people over the years, as if it was a surprise to them to say this, “I oppose crime. I’m against it.” I don’t commit it myself. I raised children, I have grandchildren, I want them to live law-abiding, peace-loving lives. I would love to see crime disappear and I go read books and write novels or do something else with my life. But humans being what they are, I think crime is with us to the end of days. So, we live in a system with a beautiful criminal justice idea that has been with us from even before the beginning of America. We saw it developing in England. We brought it to this country and we’ve been tinkering with it and perfecting it ever since.
And at the ground of it, the foundation of it is that criminal defense lawyers are the only lawyers mentioned in the United States Constitution, in the Sixth Amendment, where our founders have said, “Every person has the right to the assistance of counsel when accused of a crime.” And that means we who take up that role in our society need to stand in the breach with those people accused of crimes and, you know, not pick and choose the crime because of its popularity or unpopularity or what it may even do to a lawyer’s career.
So, a thing I’d like to say is I’m proud of what I do. I’m proud of having taken this case and really many other unpopular cases in my career. This is not the only one or even the first one I’ve taken where there’s been a lot of pushback, a lot of pretty nasty emails and phone messages sent my way. But to circle back around, Scott, to our own colleagues, it has been a bit of a disturbing development for me to see some negative reaction from other criminal defense lawyers.
Scott: Was there even a resolution? Was there some resolution from the organization as a whole? I remember there was some discussion about that about a year ago.
Frank: Yeah. I don’t think it was so much a resolution. The organization wanted to express its solidarity with the Black Lives Matter movement and the cause of racial justice in the criminal justice system. That cause, of course, we fully endorse, that is we, Laura and I as individual lawyers, and are fully in favor of a criminal defense organization that endorses it, that is, the cause of achieving racial justice in our criminal system, who could be opposed to that? And we work for that and we hope for it and we do our part.
Now, the real problem we saw was when a criminal defense organization dedicated to the defense of accused persons wants to make that public endorsement of solidarity with the cause of racial justice by naming names and the names thought to be named were the victims in cases that had not yet been decided by a jury. And in particular, one of those cases being a case here in Georgia where members of that very organization represented those accused people and the jury has not spoken yet. And if the jury speaks and pronounces them guilty, well, then our organization could say whatever it wishes to say about justice having been served.
But to say that before the verdict has been pronounced where the defendants may not be guilty, and at the very bottom or at least presumed to be innocent, to then go ahead and call the person in their case, the victim who needs to be named in a public document, I thought it showed a lack of solidarity with lawyers who I had hoped and thought as esteemed members of that organization. And so it was disturbing.
Scott: And I haven’t seen… Well, I mean, perhaps maybe in some issues regarding sexual crimes, I’ve seen this get politicized a little bit. But is this the first time in your career you’ve seen this kind…you’ve experienced this kind of pushback from your own colleagues?
Frank: It is not only the first, it’s the only… Obviously, it’s the first recent context. But it’s the only time in 30 years that I’ve gotten a negative reaction to the representation of a person accused of a crime from my own tribe of criminal defense lawyers.
Scott: And if you could sort of articulate the position… And I completely disagree with… I mean, I’m with you on this. But if you could articulate what their position is, what would…in the best, most charitable way possible, what is their beef with you taking this case on?
Frank: Well, it’s kind of finely grained because there’s a distinction between a private lawyer and a public defender that a lot of people hold. And in the case of a public defender, their mandate is to defend the indigent. And when an indigent person is accused of a crime, the public defender fulfills his or her role under the Sixth Amendment and is appointed to take that case without regard to money and, really, without regard to choice. The client doesn’t choose the public defender they get, they just get a free lawyer and that lawyer will then represent that person.
The private lawyer, however, has this choice. We can decline cases and we can do so for any reason we wish. Either they haven’t got enough money to pay the fee we think the case is worth, or it could be as simple as, “I met the client and I don’t like him. I don’t personally like the guy. I don’t wanna have him in my life and deal with him because he’s gonna be difficult or whatever.” It could be a variety of reasons like that. But in this case, I think some of the criticism laid at our feet is that we did choose to take the case, we could have said no. We could’ve turned it down. And the desire I think people had, at least best I can gather from it is that the case looked to be a racially motivated murder and that’s bad, which we agree, that’s bad. And, therefore, we should have declined to be a part of it because…
Scott: When you say that’s bad, do you mean a racially motivated murder in the abstract is bad.
Frank: That’s right. Any murder is bad. Any murder is bad. Murder is bad. But in the times we’re living in, a purportedly alleged, racially motivated murder of a black person by a white person is especially egregious because of our hope and effort that we will one day have a completely racially just society where that rarely happens, and that those who do commit racially motivated murders don’t get away with it. And I think the concern by some folks was that because we’re… Not to be too humble in saying this but because we’re good lawyers, our clients stand a chance of getting acquitted.
And that thought, I think, was very disturbing to some of my colleagues who thought… First of all, they made many assumptions based on a short video that this was a racially motivated murder, that the killing of Ahmaud Arbery was based on no other reason than that he was a black man jogging in a white neighborhood. That was the narrative that started at the beginning of the case. People adopted it without much critical thought about it. And then for us voluntarily choose to take the case and thought, “How could you? It’s a racially motivated murder. That’s plain to see. We’ve watched the video. So, why would you say yes to such a thing when, you know, it could be in their minds, maybe like a Trayvon Martin all over again?”
Everybody universally thought his killer, Zimmerman, was guilty, and yet the jury acquitted him, and that was bad and it set us back. I think the Black Lives Matter movement even was founded around the time of that, maybe in response to it. So, that was the place we seem to occupy, best I can tell, in the view of some of our colleagues. And I’m talking about colleagues who are themselves good criminal defense lawyers and esteemed colleagues…
Scott: These are intelligent, thoughtful people.
Frank: That’s correct. Good people.
Scott: And do you think it’s the times we live in? Because it seems like you could… I mean, as we talked about a moment ago, you’re not pro-crime.
Scott: You defend the accused for all sorts of very noble reasons. There’s something just about particularly any felony or particularly any crime of violence. It seems like those arguments would be present in just about any case where there’s a victim.
Frank: I think so. I think it is partly the times that we’re living in that made this especially difficult. And I will say that some of the reaction, and this is a point that’s been conceded to me by these colleagues whom I consider to be friends, still to this day, people I care about deeply who’ve had a negative reaction to it. And it’s been conceded to me that some of the reaction is not completely rationally defensible, and driven more by emotion. Now, that’s a huge concession to make, and I respect that. When that’s been made, I’ve respected it because that’s what I have thought.
But I didn’t want to just come out and say that to somebody who is an intelligent, educated, compassionate person, “Hey, you’re not really thinking that clearly, you’re just reacting emotionally.” But it’s been said to me, unsolicited. And so I have to just simply accept that. Well, if a person is gonna acknowledge that about himself or herself and say it to me, then I take that as still a sign of goodwill and a hope of maintaining our friendship, which I cherish and hope that we continue to do.
Scott: Is the argument that the defense of these individuals or individuals similarly situated that their defense attorney should be someone who is in a position to not be able to pick and choose their client? Is that the argument or is the argument that they’re entitled to, I guess, what Strickland v. Washington would say, is reasonably competent defense, but maybe not someone so good that they might win. If you could kind of flesh that out, what do you think they’re going with that?
Frank: Yeah. And it would have to be fleshed out, Scott, by conjecture because I’ve not had anyone tell me anything more clear than this. And this is what I have learned, I’ve been told this. Of course, they are entitled to counsel and that counsel should be effective. Counsel should work hard to defend them. We’re not disputing that. In fact, they should have the full access to all of the rights that any accused person should have. So, there’s that acknowledgment. And that’s good. That’s a good base to work from. But I think that it does come back to this distinction between just the choice of taking on that case as a private lawyer, is my guess, because they’re not denying that these people should have everything every other accused person should have, from competent counsel to a fair judge and a fair trial.
And I’ve not had anybody tell me they want anything less than that for the McMichaels. It’s just been… Scott, I think it just comes back to the emotional reaction to it when it’s someone who’s colleague in private practice who’s voluntarily chosen to take this on.
Scott: But of course I… And I don’t know the particulars of, nor I have ever asked the particulars of any defendant’s financial situation or what the arrangements are with the attorneys. But I would assume, though, that if you had…if we’re drawing the line at racially motivated murder, that if you had a non-indigent person accused of a racially motivated murder who would not otherwise qualify for the assistance of a public defender, then such a person would have to fall upon someone voluntarily undertaking their defense. And would it be the position that such a person just would not be entitled to an attorney at all?
Frank: Well, I don’t think anybody would ever make that argument. I think this is where the emotional part comes in. I think they would say, “Well, of course, he could hire a lawyer, if he has the money. I just don’t want it to be one of my friends. I want it to be somebody that I can root to lose and not feel any compunction about it.” Now, I’ll tell you what surprised me. In my case, though, in our case, we’ve had colleagues say, “I will root for you to lose. Even though you are my friend, I still want you to lose.” Well, I can live with that. It’s kind of an odd thing to say to a fellow criminal defense lawyer. I know that I have never in my career said to a fellow criminal defense lawyer, “I hope you lose that case.”
Scott: And so I suppose if you were related to or were the victim, I could understand that but…
Frank: Oh, exactly. And that’s a huge exception.
Scott: Right. Right. Right.
Frank: If they were my family member, yeah, I hope you lose that case.
Scott: Right. Right. So, I know that you’ve spoken and we’ve spoken, we framed this in terms of racially motivated murder. Do you think the law enforcement… nd, again, they were…your client was a retired law enforcement officer, though, certainly, maybe, it’s almost like being in the Marines, you’re never a former Marine. Do you think the law enforcement or the quasi law enforcement plays into the critique of your decision to take the case?
Frank: I think so. I think if this was just, say… If this had been like a Saturday night poker game and somebody got too drunk and the white guy shot the black guy, yeah, you wouldn’t even hear about it. I think it’s because the story came out so early and quickly, built around the video, a narrative developed from the start that this guy who was connected to law enforcement and perhaps, therefore, thought he had rights that no regular citizen had and could get away with things the regular person couldn’t get away with, you know, just went out and killed this guy because of his race. And so that narrative stuck. And I think that’s what’s generated so much passion about the case.
Scott: Well, I think that also kind of brings up another topic. What do you think… It just seems like, you know, as we sort of think about where we are and how people even who are deeply dedicated to the cause of criminal defense and the rights of the accused, even an organization that is dedicated to that reacts to, you know, issues in a case like this. Part of it is…it’s the way the story spread. And this could be just in this particular case or it could be just to do what we do in general. Where do you see social media and the way media is consumed and distributed? What role do you think that has in a case like this or even more generally, you know, cases that do achieve some notoriety?
Frank: I think it’s huge, huge. I don’t think I could overestimate the role social media plays in the reaction to cases like this. We all know how it’s employed now. It’s ubiquitous and it can feed a narrative and multiply exponentially so far and so fast that people… In this case, you know, you had LeBron James tweeting about it the day after the video came out saying something along the lines of, “Black people can’t even go out for a jog anymore in this country?” Well, that’s social media. And that’s a tweet that’s gonna get read by millions of people and then they’re gonna form opinions about the case that will probably become hardened like concrete that can’t be undone. And then, yeah, the whole conversation just gets generated.
I saw a video early on in this case where it was very well done. It was really quite slick. It was on YouTube. Somebody produced a video. And I think it even had rolling credits at the end. And it showed a young, good-looking white kid with his earbuds in, closing the door to a nice home in a middle-class neighborhood and saying goodbye on the cell phone to his mom, he’s gonna go out for a jog. And he runs down the street and pretty soon he’s in a neighborhood that’s mostly black. And two black guys standing next to a pickup truck see this white kid run down the street and look at each other and say, you know, essentially, “[inaudible 00:51:04] doing in our neighborhood?”
And the two guys in the video they get in their pickup truck, they catch up to the innocent jogger and there’s a short confrontation and one of the black guy shoots the white guy dead in the street with his gun. And then the comments on that video just went on into the hundreds about how this was so poignantly impressive to the viewers about what’s wrong in America because that case, you know, looked so…was like the case they thought Ahmaud Arbery case was with all the races reversed to make this point, that we live in a racist country and we need to get past it. So, that was a video I saw on social media that probably…I don’t know if it went viral but it made the rounds and somebody sent it to me. And, obviously, being the lawyer in the case, I knew that it was so far from reality that it was a fiction, a complete fiction.
Scott: I remember early in the Trump Administration, like, very early Kellyanne Conway who was in the administration said something, and this sort of struck home with me, the idea of alternate facts that someone was seriously talking about reality and just baseline truth in terms of alternate facts. And it seems to me that part of the frustration with all of this is that it can be… So many of the conversations that I try to engage in in this topic and other related topics is that we don’t even… It seems like there’s a frustration of even reaching sort of set of ground rules of even just knowing what the… The truth is now fluid. I mean, just basic facts are fluid now.
Frank: Oh, yeah. I think you’re right. I think that… And you mentioned social media when we started this segment. But I think because of social media and how you can say pretty much anything you wanna say and portray an event however you want to portray it, like has been done in this case, that it comes back to the idea that there is no objective truth, there is no way it is, that it’s whoever can persuade the rest of us to believe that it’s a particular way becomes the truth. And it may not be. And the power of social media to generate this misinformation or even disinformation, it’s just so well known now and so dangerous, not just, you know, in defending people accused of crimes, but as you mentioned, even in politics where so many outrageous things can be said by tweet or Facebook or what have you, and then you’re constantly… You either can combat it or ignore it.
Scott: And it seems like even in combating it, you know, and I watched this play out politically and I’ve seen it play out… I mean, I think the right and the left are equally guilty of manipulating these factors, but it just seems like in the very act of fact-checking, as they would call it on the news and the act of, you know, trying to critically engage and to say, “This was not the truth.” In a way, it seems like in that endeavor, you seem to somehow solidify the very untruth that you’re trying to dispute.
Frank: Right. I think so. I’ve just been recently thinking about this while reading a new book by Jonathan Rauch, R-A-U-C-H, called “The Constitution of Knowledge: A Defense of Truth.” Wonderful book. He’s talking a good vignette about what he calls the constitution of knowledge, and that fund of facts that we all need to agree on, pretty much, in order to make progress. And that’s just been knocked upside down in the last, I don’t know how many years, 10 or 20 years. And again, I think social media is a big part of that. We don’t have a shared base from which to operate in evaluating the world and talking about solutions to problems or even how to regard a particular case that we see in the media like this one.
Scott: So, how do you even go in and… I have the utmost faith in the jury system. And there have been times even when I’ve lost jury trials that I’ve spoken with juries after a trial is over, you know, whether I’ve won or lost and engaged with them. And generally, I walk away. I’ve had some moments where I’ve been astonished, but generally, you know, what I’ve engaged with juries after a trial, I’m usually pretty pleasantly surprised at the work that they put in and the seriousness by which they take their job and the way they go about deciding cases. I mean, by and large, I’ll walk away happy. I mean, I’ve been astounded too. Do you think that even…? And I don’t know if that’s been your conclusion having… You’ve done many more jury trials than I have, but how much confidence do you have in the ability…in a case that’s very widely covered like this and where social media is so saturated with a particular set of messaging, how do you even engage and hope to have a meaningful jury trial with a jury pool in that environment?
Frank: Yeah. That’s a good question. Let me work up to it. And I have an answer for it by first, just picking up on your own view of juries, and I echo it. I have the greatest faith in our jury system even after 30 years and a hundred jury trials. They don’t always get it right. There’s aberrations. Everybody can name the OJ case and there have been others, some of them even in my own career. Mostly, I will say, fortunately, on the acquittal side where I’ve thought, “What? How did that happen?” I’m happy for it, but I imagine most criminal defense lawyers who have done it long enough have had that experience where they thought going in, any rational jury is going to convict my client. And if you’re doing the case right, you’re telling your client that. And then you come out of there with a not guilty. So, I’ve had that happen.
But my faith in jurors is so deep that I’m buoyed up by it when I do look at the narrative that’s been generated in this case, for example, and in many others. Locally or regionally, I’ve had many cases where the public’s interest and their ire toward my client and, therefore, toward me has been pretty intense. But I knew in those cases, like I know in this case, that at the end of the day, there’s gonna be 12 individual jurors assessing evidence that’s been admitted in a courtroom and told how to regard it by the law given by a judge, and how to assimilate it through the lawyer’s argument to them about it and the stories we weave that make sense of the facts they’ve heard.
And it does buoy me up to believe that, at the end of the day, it doesn’t matter what LeBron James or President Biden said about my client. It’s gonna matter what these 12 jurors say. Now, to get to your other question or the other part of your question, how do we expect to get 12 jurors in a case like this, that has been so widely talked about and so negatively talked about, at least with respect to the actions our clients are thought to have taken? Well, all I can say about that is it’s gonna be tough. And that’s why we’re anticipating no less than two weeks in jury selection.
It could even be longer than that because we’re in Glynn County, we have not moved to change venue. And so we’re in the community where this happened, which is where I think we should stay. And we’re just going to have to conduct a voir dire, a jury selection, an interview process of potential jurors that is gonna be painstakingly difficult and long in order to find out who has not already decided the guilt or the innocence of these defendants, and can sit here and close their ears to all of the noise that they’ve already heard because we don’t expect to have anybody in our jury pool who says to us, “Ahmaud who?” No.
Frank: They’re all gonna know. So, you look for those people who, of course, they’ll be under oath, give you honest, heartfelt, true answers that are complete and accurate so that we can assess their fairness and impartiality. And I’m confident, after all the years of doing this, that we will find 12 such people, seat them in a jury box. And then my faith in the system and the way it should work, I hope will be borne out. And I gotta say that’s win or lose, Scott. I mean, obviously, I wanna win. I wanna win. But win or lose, I want a fair trial. I want fair and impartial jurors and want a good and fair judge. I think we have that. So, it’s on us to do the hard work of finding the 12 fact-finding judges, the jurors, who can listen without passion or favor and come back with a verdict that speaks the truth. That’s what we hope. And I’m confident, I believe that that will happen.
Scott: Well, I mean, you’ve been… I mean, probably not to this intensity, but, I mean, you’ve been sort of there before. I mean, I know you have in certain cases with media coverage where everybody knew. I mean, some of this is nothing new. I mean, you could have tried a case in a small town 50 years ago and you’d have a little bit of this dynamic at play.
Frank: That’s right. That’s exactly right.
Scott: So, I will… I do wanna circle back to this issue of race and law enforcement. And we may not be able to, but if we assume that there is a certain level of maybe racism, even if it’s not intentional, maybe there’s a set of economic inequalities that really kind of fuel some unfairness with how policing is done and how criminal justice is administered. I think some of the frustration is that… I think people tend to view law enforcement or quasi law enforcement officials in a particular category so that when they’re the accused, they’re sort of seen as the lightning rod or as the criminal justice system. And so I don’t… I think maybe we get a little confusion in the fact that this person is now in the role of the accused. Where do you think policing and some problems with maybe inequality and how justice is administered…? Where do you think the place to address that is?
Frank: Well, with respect to policing… Now, I think of the criminal justice system as policing, prosecution, and punishment. Those are the three components where I think that racism shows up. And, you know, the types of racism that we’re concerned about these days, it’s changed somewhat but the individual racial prejudice of a single officer, for example, it’s easier to spot and it’s easier to deal with. I have known racist police officers. I have, in a case, not many years ago, I remember marching through every single traffic stop in this officer’s entire career as a drug interdiction officer to show a clear pattern of stopping black and brown people to look for drugs. And he was a white officer.
And I had a black judge who was very keenly intrigued by the unfolding of this pattern. And so that’s an individual racist police officer. That’s one thing. The other component though, is what’s come to be known as systemic racism, that is a system or an institution, policing would be one good example, where racism shows up in disparate outcomes or disparate treatment even if the individual actors are not racist or racially motivated, and may not even be white. You can have a police department producing racist outcomes through a black officer. In the George Floyd case, not all of those officers were white.
So, those are both real problems. I think the systemic problem is much harder to get at. It’s often much harder to assess. I think it can be done. I think it’s not often well done because it takes a lot of hard work to gather the data that then can be placed in such a way that it tells the story of where is the racism in the system? How is it showing up? And then once you’ve identified it, the question becomes, “Now how do we eradicate it?” One way to eradicate it, that became popular last summer, and I disagree with it, is to disband or defund police departments. Well, that’s not gonna work. That’s not realistic.
And even the people that are allegedly being protected by such a move don’t want it. But short of that, short of disbanding a police department, how do you get into that place and begin to address racism? That may be a question beyond my paygrade, I don’t know. It’s just a difficult one to answer. But, you know, I think police departments are trying to address it, at least ones that I know about personally. They’re sensitive to it, they don’t want to be racist in their treatment of people and the outcomes of their policing. So, the desire is there for many of these departments, certainly not all, but for many. And so I’m hopeful. You have people of goodwill who go into law enforcement for good reasons and they don’t wanna treat people badly based on their race. They don’t want their entire institution to do that. And so we’ve just gotta get smarter, I guess, and better at assessing, well, how do we address it? How do we get rid of it?
Scott: I think it really is not… I think the grand jury and jury system is not the place to try to solve that if the actors that are making the prosecutorial decisions are not acting in good faith. And I think it gets really confusing. And I think probably when those tools are used to… And you mentioned a moment ago that may be above our pay grade, because we’re defense attorneys. It just seems like you may actually reinforce the very problem you’re trying to solve.
Frank: I agree with that. I do. I don’t think you can solve this through prosecution of people. And the pay grade comment or being criminal defense lawyers have made me think of one of the differences I used to call attention to when I was getting the negative pushback on the McMichael case from criminal defense lawyers. I see a difference between cause lawyers and client lawyers. I’m a client lawyer. I take a client and my client becomes my cause. And my cause for that client is to seek the outcome he or she desires if the facts allow it. Sometimes the outcome means that I’m telling a client, “You’re guilty. It’s obvious that you’re going to be convicted. The way to resolve that is with a plea deal, let us negotiate with the prosecutor.” That happens more often than a trial.
Scott: That’s overwhelmingly most of the time.
Frank: That’s right. And I think in our role as criminal defense lawyers, that is what we should be doing. We should be trying to resolve cases, short of trial, if we can.
Scott: You mentioned a moment ago that the exhilaration you felt at that life verdict in the death penalty case was as good if not better than any not guilty you’ve ever heard. Sometimes bringing a client in and saving the client from himself, by way of a resolution that is reasonable and may have saved the client’s life. I have done pleas that I didn’t think would happen, where I felt a similar feeling.
Frank: Scott, that’s an excellent observation. I can tell you in my career too… And one of the cases where I’m most proud of the result is it got pretty notorious. It happened at a law school here.
Scott: I know what you’re talking about.
Frank: Yeah. And ultimately, three weeks short of a trial, my client, in that case, agreed to take a plea deal to murder with a life sentence. And the feeling I had, as a result of the two years I worked on that case to get it to that point, was every bit as satisfying as a jury verdict of not guilty. Even though that guy took a life sentence for a brutal murder, it was the right result and it was reached in the right way. And I did it in a way that will never be public in that one-on-one, day after day work that we do with clients, to take somebody from a position that’s often not very rational to a place where they are willing to take responsibility for a heinous crime. And that’s an important role we play in persuading people to do that. And I take pride in that. And I do it in a way that doesn’t make me a sellout.
Frank: The client still trusts me all the way through to the end because I’m giving him the best advice I can.
Scott: Very often, the party that we’re trying to save our client from is the client and…
Frank: So true.
Scott: Yeah. And so I’ve had those cases where I’ve felt as good about that plea as a not guilty.
Frank: I have too, my friend. I’ve been there many times. And I think we should be proud of that too. That’s a very important part of what we do.
Scott: And I think I took us away from the original point that you were addressing when you started talking about resolving cases by a plea.
Frank: Well, I think where we got off a little bit was when I drew that distinction between cause lawyers and client lawyers.
Scott: Cause and client… Yes. Okay.
Frank: Yeah. And so we just talked about client lawyers, and I think they did a pretty good job describing what a client-centered criminal defense lawyer does. It’s not always, “Hey, let’s pick 12 and take them to the mat.” No. Oftentimes, that’s the worst thing you can do, and it’s a disservice to the client. Well, cause lawyers differ. And I think the two got mixed up a little bit in this discussion that I’ve had, that you and I are now having, about the reaction to our representation [inaudible 01:14:24] because a cause lawyer, like,one of my heroes and perhaps one of yours too, Steve Bright of the Southern Center for Human Rights, they are cause lawyers.
They are working on individual cases, yes, but they’re also working at the policy level and seeking to change a system or even more broadly change society. And they’re… The ACLU is another good example. That’s a cause-driven organization filled with dedicated, wonderful intelligent cause lawyers. And sometimes I think what a life that would have been to be a cause lawyer, it looks great. You get on the white horse and you go about your life defending the poor and the downtrodden. Well, that’s not what case lawyers or client lawyers do. We can’t be too concerned about the cause.
And so here, to bring it back to our discussion, you have the cause of social justice and racial justice in criminal institutions like policing, prosecution, and punishment, right? You can work at a policy level, and you can try to change the systems. Well, I’m for that, and I’m for them and I’m for that cause. But when I have my criminal defense lawyer hat on, I’m not thinking about that. I have to be focused on the client sitting before me right now who’s placed his trust and very life in my hands. And so I’m not thinking about the bigger social issues surrounding my case, I’m thinking about things like, you know, discovery and rules of evidence and investigation and selecting a jury and trying a case, like a trial lawyer should be. So, I’ve kept the two separate in my mind, but they do kind of get mixed up. And sometimes the case lawyers or client lawyers want to align that case with a cause and it just can’t be done. Sometimes it’s just not possible.
Scott: Well, we have an ethical obligation to represent our client. And I think they’re… And you just gave two examples of, you know, great institutions that employ cause lawyers. I’m gonna integrate this word in my lexicon now, I never had thought about it this way. But, you know, I think some of the people who are undertaking to represent the folks in the Capitol, it’s been called an insurrection, the incident at the Capitol on January the sixth. Some cause lawyers are getting into the defense of some of those individuals who probably might not do as good a job as the Federal Defender would have done. And it just seems like you can get in a situation where if the cause becomes more… And I’m not talking about the organizations you named but I think if the cause becomes the reason you undertake to defend a particular person, I think sometimes you may sacrifice the person, to some extent, to advance the cause.
Frank: I think that’s a great risk. And because of it, I think you’re putting yourself in grave danger as a client-centered lawyer to the temptation to convert your work for the client into your work for the cause, and therefore lose the client. I don’t want any part of that. I wanna stay… I mean, I know my lane and I wanna stay in it. I have a client and I know what to do and that’s where I wanna remain.
Scott: Well, I think the court system… I don’t know. I mean, I watched that movie on Netflix over the summer, “The Trial of the Chicago Seven” and that seems to have been an instance where, you know, you had the defendant themselves who were maybe sacrificing ultimate victory in the case because they thought their job as the defendant was one that would put them in a position to advance a particular anti-Vietnam War cause. But I suppose that was the defendant’s decision to do that. I would think that sort of case aside, where maybe the entire trial is some sort of a protest, I don’t think the courtroom is a place to play things like that out. I think, you know, legislatures or a place or city councils, I think there are maybe even to take to the streets with picket signs. I mean, to me, those are the places to sort of engage that process. But I think the courtroom is a really dangerous place to… I mean, I’m not so naive as to think that politics is ever completely divorced from what we do in the courtroom, but I think it can’t be the central goal.
Frank: I couldn’t agree more. I think we have to keep those two separate, especially if you’re a player in the courtroom cases. You can lose your bearings and lose your way pretty quickly if you start thinking the courtroom is the place to advance my cause.
Scott: Which is why sovereign citizens can be so frustrating, if you had the experience of representing one.
Frank: Yeah. I never have. I’ve heard stories about it that… I know. I hope I never get a call from one of those.
Scott: Well, Frank, it’s been great. I really… We’ve gone for a long time and I really appreciate you taking the time to be on the podcast.
Frank: I’ve enjoyed it, Scott, and I’m so honored that you invited me.
Scott: Well, thank you so much, Frank.
Frank: Thank you, Scott. Take care, my friend.
Scott: Thanks for listening to “The Advocate’s Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com. And please rate, review, and subscribe to this show wherever you get your audio content.