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Tag Archive for: AJC

The AJC Doubles Down on its Flaws from the Original Ralston Piece

February 25, 2019/by J. Scott Key

In a follow up story to the one published in last’s weeks AJC, Chris Joyner and Johnny Edwards have doubled down on some of the flaws from the original story. The writers continue to blame defense counsel Speaker Ralston solely for delays in his criminal cases. They take the additional step of taking him to task for being a criminal defense attorney — something merely suggested in the original article. The writers quote the leader of Georgia’s Tea Party to make that attack. And, rather than investigating the case files in the North Georgia courts where the matters are pending, the reporters focus on Ralston’s legislative colleagues and discuss whether those colleagues continue to support him or are backing away from him. What started as a criminal justice story for the AJC, is now clearly a political story (maybe this has been a political story all along). Unfortunately, the flaws serve to further undermine a better public understanding of how the system works and the role of defense counsel in an adversarial system in which the prosecutor brings the case and the judge sets the schedule.

An interesting follow-up to the story would have been to explore the cases in a more in-depth way to see if the state opposed requests for continuance. Judges and prosecutors serve a pivotal role in the scheduling and pace of a case from indictment to conclusion. And I cannot stress enough that we have an adversarial system. Frequently, the state and defense counsel argue motions to continue matters. And even when the defense and the prosecution agree to continue cases, the judge may ultimately decide whether a case proceeds to trial in a way that makes neither side happy. Every trial lawyer has a set of war strories on this topic.  Additionally, there are tools available where the parties, for whatever reason, have difficulty getting a case resolved.

  • Special Setting. Judges can specially set cases. When a case is specially set, the parties are directed to show up on a particular date and time to try a matter. In the normal course of events, a large set of cases will be called in on a Monday morning. And the Court decides, from among the group of cases, which ones will go to trial that week. Of the maybe hundred or so cases who appear, one or two will be tried that week. By contrast, when a case is specially set, a particular case is called in for trial. When a judge specially sets a case, the parties know when their case will be tried. And, because the parties have generally agreed to a special setting, they are hard pressed to bring a continuance. Years ago, when I worked as an associate for a very busy criminal defense attorney, the judges in a particular jurisdiction were frustrated by all of my boss’s scheduling conflicts. To help everybody out, I tried two misdemeanor cases before a jury one week, picked a jury on a third, and resolved a fourth. If someone as busy as the speaker of the house is defense counsel, it seems like his cases would be perfect for special setting. I wonder if the State or the Court ever tried something like that in Ralston’s cases. Seems like the story should have explored this question. Instead, the writers decided to go to Ralston’s legislative colleagues to figure out if they want to condemn him, support him or enforce what the AJC calls a “code of silence.”
  • Scheduling Orders. Another tool to move cases is a scheduling order. When a judge imposes a scheduling order, the parties come together early in a case to decide when motions will be due, when motions will be heard, and when trial will commence. When the scheduling order is discussed, the parties bring their calendars and work out proposed dates for various milestones in the case. Scheduling orders are routine in Federal Court. And they work as a sort of contract for the the case’s resolution. In some Georgia jurisdictions, the use of scheduling orders is regulated by local rules and customs. The scheduling order can be a powerful tool for the Court where a case proves tricky to schedule and resolve. And if someone with a schedule such at that of Speaker of the House is defense counsel, it would seem that scheduling order would be just the thing. Was there ever a scheduling order in Ralston’s case? We have no idea, because the journalists chose not to explore this question.

Trial law is not governed like a baseball game. In a baseball game, an umpire will call every pitch a ball or a strike. In law, either the pitcher or the batter has to request a ruling. And if defense counsel requests a continuance, the prosecution has every right to oppose the request. Further, if a case is taking too long to resolve, it is up to the party who most wants it resolved to speak up. Again, it’s an adversarial system. And the defense attorney’s job is to win his client’s case. Defense counsel does not represent the victim. So, if defense counsel’s motions for continuance are always granted by the judge and never opposed by the State, who is to blame — the team who brought the charges, the team defending the charges, or the umpire who controls how the game is played?

But why go in depth on the criminal justice angle when you’re writing a political piece? The AJC unveils in the follow-up article what was merely implied in the first one. Ralston’s crime is that he defends the accused at all; but he’s guilty of an ever bigger one, which may be why all of this started. The article quotes Debbie Dooley, the President of the Atlanta Tea Party: “They [the Republican leadership] rubber stamp him protecting accused child molesters and rapists and those that like to beat up women. … is that really what Republicans in the Georgia House really want to stand for?” In other words, do you want someone who defends the accused to be a political leader?

With the quote from Ms. Dooley, we learn what Ralston’s real offense is. It’s that he’s the wrong kind of attorney. Or perhaps, from the decision to interview political figures in Atlanta instead of local folks in the jurisdictions where the cases are pending, maybe the real crime is that Ralston is the wrong kind of Republican.

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2019-02-25 10:19:582019-02-25 10:19:58The AJC Doubles Down on its Flaws from the Original Ralston Piece

AJC Piece on Speaker Ralston Includes Major Flaws

February 17, 2019/by J. Scott Key

The front page story of today’s Atlanta Journal-Constitution accuses Georgia House Speaker David Ralston of using his position as speaker of the House to gain an advantage over the State in his criminal defense practice. An accompanying broadcast report cites “obscure law,” O.C.G.A. Section 17–8–2, as the evil tool that Speaker Ralston is using to hurt the rights of victims.

The statute give members of the General Assembly the right to a continuance or stay of any pending court case during “any regular or extraordinary session of the General Assembly and during the first three weeks following any recess or adjournment.” Another provision of that statute provides that “a continuance or stay shall also be granted for such other times as the member of the General Assembly or staff member certifies to the court that his or her presence elsewhere is required by his or her duties with the General Assembly.”

Johnny Edwards, the reporter who wrote the piece, managed to track down one of the clients, who admitted that he hired Ralston with continuances in mind, saying “[t]hat’s why I gave him 20,000 bucks.” A bit of commentary is in order here. I make no conclusion on whether Speaker Ralston is using his position as legislator to gain a tactical advantage over the State. Though the more likely scenario is that he’s just having trouble managing a law practice and being speaker of the house.

  • There was a time when most of the legislature was made up of attorneys. Legislative service was once something that young lawyers did for their community. Running for office was something akin to being in Rotary. It helped a young lawyer become known in the community. The legislature would do well to have more lawyers among its ranks. Lawyers are ideally suited to craft laws and are equipped to foresee unintended consequences of proposed laws. And there are far too few lawyers in the current legislature. The “obscure statute” allows lawyers to juggle a law practice and legislative service. And if there were no such statute, then it is likely that there would be even fewer lawyers in the legislature.
  • The article presumes that delays in cases hurt victims and help defendants. While that may well be the case some of the time, there is often nothing more terrible for the client and counsel than keeping a criminal file open for a long time. There is a reason why there is a constitutional right to a speedy trial. Perpetual jeopardy is very often agony. Also, critical defense witnesses can forget about facts and become unavailable over time. The article mentions nothing about the toll that time can take on a defense case. Defendants have a right to put up a case, too.
  • Speaker Ralston practices in a rural North Georgia area. It may well be that cases generally take quite a while to reach a resolution in a place like that where grand jury and trial terms are infrequent. The article does not compare how long it takes Ralston’s cases to resolve versus criminal cases overall. There was a missed opportunity in the research. I’d be interested to hear from the clerk of court or circuit public defender how long it takes, on average, for criminal cases to move from arrest to completion for defendants who are out on bond (I’ll assume that Ralston’s clients are on bond). Bonded clients are often a lower priority for trial than those in custody.
  • The article is very anecdotal. And there’s a bit of confirmation bias at play. For instance, where one of the victims in a case has trouble keeping her story straight, Edwards presumes that she has a poor memory as a result of the passage of time. However, it might actually be possible that Ralston’s client isn’t guilty and that the witness’s story isn’t true. One might actually be allowed to presume Ralston’s client to be innocent.

Again, I have no idea if Ralston is playing the rules to gain an advantage over the State. I’d like to see more facts. But, if we assume that he is, the solution is either for the Court to move his cases faster, or for the voters in his district to deliver a verdict through the ballot box. The problem does not lie with a sensible statute that allows lawyers to serve in the legislature.

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2019-02-17 11:30:452019-02-17 11:30:45AJC Piece on Speaker Ralston Includes Major Flaws

Defending the Worth County Sheriff

October 25, 2017/by J. Scott Key

I make no judgment here about whether the Worth County Sheriff is a good man, a good sheriff, or whether it was a good idea to lock down a high school and conduct a massive drug search of the student body without probable cause (he sounds like he has poor judgment). I write about whether he is guilty of obstruction for what he did to stop the GBI from interrogating his son. Based on what I read so far, I’d take his case to trial.

The Sheriff’s son was arrested for possession of marijuana with intent to distribute and criminal trespass. The young man, who was seventeen years old at the time, was being questioned at the Worth County Jail when the Sheriff and his wife (an employee of the Sheriff’s Department) burst into a room where the boy was being interrogated to advise him to invoke his right to remain silent. At this point, the GBI agents ceased the interview.

Under Georgia law,  “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” Yet, for a youthful suspect, the absence or presence of a parent is a factor for voluntariness. And the young man had a right to remain silent (I bet the agents read to the young man from a form that said he had a right to remain silent). If a lawyer had been present, a lawyer would likely have advised him to remain silent. Would an attorney, giving the young man the exact same advice, be guilty of obstruction? Or, had the sheriff told his son not to go to an interview, would he be guilty of obstruction? What is different about these facts?

Finally, the fact that the agents chose to cease the interview makes the whole thing an inchoate act. We really do not know whether the young man would have taken dad’s advice. It may well be that the interview would have run its course. I wonder if the attorney general will seriously charge the Sheriff with criminal attempt to obstruct an officer.

Also, does the presence at the Worth County Jail make the difference? Could GBI agents come to the sheriff’s home, enter the son’s room and interview him? If so, would the same interruption be obstruction?

It is not as if the Sheriff ran in and tackled the agents to stop the interview. Here, the sheriff came inside a room at his sheriff’s department and gave his son a solid piece of advice that would be perfectly legal for me to give him as an attorney. Indeed, it is my job to “obstruct” interrogations per the Fifth and Sixth Amendment to the United States Constitution. How is it a crime for the Sheriff to do the same thing?

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2017-10-25 17:56:552017-10-25 17:56:55Defending the Worth County Sheriff

Atlanta Can’t “Rise Up” to Fix its Jail

January 4, 2014/by J. Scott Key

The Atlanta Journal-Constitution reports that the Fulton County Sheriff may be held in contempt over the condition of the Fulton County Jail located in Atlanta. For the past several years, the Fulton County Jail has been under the supervision of the federal courts pursuant to a lawsuit involving inhumane conditions there.

Things don’t appear to be good. One of the more basic things that you would expect from the jail is working locks. Apparently the internal locks aren’t working so well, leaving inmates free to roam about. There are also insufficient beds for all of the inmates. When the population of the jail went below a certain number, the Fulton County commissioners would not approve outsourcing of the housing of inmates to other city jails, a measure that Fulton County had previously used to comply with federal court orders. Officials in Atlanta have not figured out how to pay for court-ordered renovations in years. According to the AJC:

Some say the Fulton County Jail on Rice Street has always been a problem — and an expensive one at that.The $48 million jail opened almost 25 years ago to solve the issues that plagued the old jail, such as overcrowding and dangerous conditions. But those problems remain today, critics say, despite the county being under a consent order that requires them to make significant renovations, limit the number of inmates and maintain an adequate staff.Because there aren’t enough beds, some inmates sleep on the floor. They roam where they shouldn’t because faulty locks can’t hold them in their cells. And not enough detention workers are on duty at any given time to stand guard. A federal judge has scheduled a hearing in early February in which the sheriff and the county must “show cause” why they should not be held in contempt.

I’ve gone to several events at the Georgia Dome this year. That facility is about as old as the Fulton County Jail. In fact, my son and I just went to the Chik-Fil-a Bowl there to watch the Texas A&M game. The locks seemed to work. We were only allowed into designated areas. It was cold and rainy out, but things were comfy under the dome. There were 67,000 people there, but there were seats to spare. Everybody seemed to have enough to eat and drink. There was ample security. You could text a message to a particular number if a problem arose. Little toy cows were parachuted to lucky fans from the rafters and from a remote controlled blimp. The City of Atlanta has kept things running well. And yet …

… And yet, local officials have found a way to fund and even better stadium. This one will be even cooler than the perfectly good one we already have, and the roof will open and close.

Meanwhile the Fulton County Sheriff prepares for another contempt hearing because his office can’t figure out how to get the locks to work in the jail.

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2014-01-04 06:40:092014-01-04 06:40:09Atlanta Can’t “Rise Up” to Fix its Jail

What I Learned from Supreme Court Information Officer Jane Hansen This Week

September 3, 2010/by J. Scott Key

The August break for the Supreme Court of Georgia is over. The Court is back in full swing next week with two days of oral argument to be followed by more argument the week after next. Earlier this week,famed convicted murderer Lynn Turner was found dead in her cell at Metro State Prison. What do these two events have in common? Georgia Supreme Court Public Information Officer Jance Hansen has reported on them both.

My ritual for Oral Argument at the Supreme Court of Georgia always include picking up on argument day and reviewing on the internet the fantastic case summaries that Ms. Hansen’s office provides. The summaries let me know who else is there and that kind of cases are going to be argued that day. I quickly figure out whether I want to go into the courtroom watch the cases before mine or stay in the lawyer’s lounge and monitor my turn in line from there. Invariably, the summaries make me want to watch them all, even the real estate and will contest cases.

The other thing I like about Ms. Hansen’s summaries is that she manages to make every case sound close and interesting. Every case is high drama in those summaries. Even when I am there with less than high hopes, those summaries make me feel like the case is close.

Back when Lynn Turner was on trial for the poisoning deaths of her husband and former boyfriend, Ms. Hansen covered those trial for The Atlanta Journal-Constituion. In the wake of her sudden death (cause unknown — toxicology tests pending), Ms. Hansen was interviewed by the AJC to recall her days covering Ms. Turner’s criminal trials.

Once again, she showed her command of the basic with her same open mind, remembering what it was like to consider the possibility of a defense verdict in both cases. She said:

I never presumed she was guilty or that she was going to be convicted. I always believed maybe the jury would hear something I didn’t know. Even when I talked to other reporters and they said, “you know she’s guilty,” I always presumed there might be something that would prove her innocence.

In this statement, I hear the voice of the person who writes those case summaries. Of course, she reports that Ms. Turner once offered her a piece of gum during a break at trial. And there we learned the limits of her open mind. She opted not to chew the gum.

What’s my point? Are you knee deep in a case that feels hopeless? Have you already made up your mind that you have a losing position but you’re headed into a trial or an appeal because your client insists or because there’s no offer on the table? Maybe it’s time to channel your inner Jane Hansen. Sit down and pretend you are writing a press release that conveys the story of both sides with just the facts. Are there two competing stories with a result still up in the air?

Maybe when you write it and read it, you’ll realize that it’s closer than you think. Jane Hansen does it with every case that’s argued, and they all look close on paper.

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2010-09-03 20:45:222010-09-03 20:45:22What I Learned from Supreme Court Information Officer Jane Hansen This Week

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