Sentencing - Scott Key & Associates

Tag Archive for: Sentencing

Should You Post Bond? Not Always

June 4, 2012/by J. Scott Key

Last week, I closed out an armed robbery case quite successfully. The case was reduced down to robbery, the client was sentenced under Georgia’s First Offender Act (meaning that he has the opportunity to come out of this with no conviction on his record), and after completing a one-year residential program, he is on probation. There were a number of things that made this outcome possible, but one factor stands out. The client never bonded out. He was arrested ten months ago, and we never even sought a bond.

Things got tough along the way. The client implored his family to seek a bond for him, and the pressure on them was difficult. Things got particularly difficult during the holiday season. But we never petitioned the court for a bond. And, by the time 10 months passed and this case was at its “resolution point” in court, we had 10 months served under our belt. The client, a very young man, had suffered some consequences, and he had seen some things. He had seen folks get released only to return back to jail. He saw enough of the inside to wake him up but not enough to embitter him. He and his family would likely tell you that he did more than 10 months of growing up in the last 10 months.

Our plea was non-negotiated, and when the judge pronounced sentence, he told my client that he likely would never have agreed to my recommendation had he not served a great deal of time already. The family’s decision regarding bond reflected well on them. Judges are often more willing to take a chance on a person when they know that the family can provide structure upon release. And their decision to leave the client in jail during the pretrial months reflected well on their ability to provide structure once this young man was out on probation.

When I became the lawyer 10 months ago, I advised my client not to seek a bond, and I told the family to try their best to resist when the asking got tough. And I had to remind them of these things a few times throughout the year. But when I made the strategic decision not to seek a bond a year ago, I imagined that things might come together like this by the time we resolved the case. The decision paid out.

Please don’t hear me to say that it is usually a good idea to leave a loved one in jail. Rather, I share this story with you to let you know that there may arise a case, from time to time, where bonding a person out is not the best thing for the client. All cases are, of course, different, and whether to make bond is one of those decisions best thought through with your lawyer. But here are some things to think about when it comes to deciding whether to post a loved one’s bond.

Are people counting on the loved one for support?

Obviously, if a client is the provider for a family, it is likely better for the client to fulfill his duties to those she loves. If a prolonged pre-trial incarceration will make others suffer or result in lost employment, then by all means incarceration for any length of time is not the best idea. But for a youthful defendant without such responsibilities, particularly if the defendant is on a road to increasing criminality, some extra days of pre-trial incarceration can help the client “get it” and may take him away from friends, from drugs and alcohol, and other opportunities to get in worse trouble.

Is the case beatable, or will a conviction inevitably mean probation?

If the case is defensible, is likely to be reduced, or will likely result in probation, then it makes little sense to prolong pre-trial incarceration. However, if the case is one of those that will be plead one day, if there is minimum incarceration involved, and if a judge will likely believe that the client should do some time eventually, it can make sense to remain in jail and not make a bond. There are a couple of harsh things about incarceration and how it works on the human psyche.

We can get accustomed to just about anything in short order. But it can be torture to dread something. Everytime I go to a swimming pool, I look like a big wuss. I hate jumping into water that feels the least bit cold. But once I’m in, I’m fine. The dread of the cold is much worse than the cold itself. Once a person is in jail, it sucks, but it’s a level of suckiness that can be tolerated for a few days. And as bad as it is to spend another day there, there is one thing worse — to leave there and think about coming back. That dread can lead to irrational decisions and disastrous no-win trials.
The devil you know. People generally prefer to do time in their home town over going through diagnostics and doing time in the prison system. So, doing time on the front end can be preferable. Of course, this advice is not intended as one size fits all. If you live in Mayberry where Aunt Bee is preparing biscuits for the inmates, you’d probably prefer to do your time there. If you just got arrested in Fulton County, then you may prefer to do your time on the back end of the sentence or in one of those places you see featured in the show Locked Up, Abroad.

Think about what your bargaining chips are

Defense counsel gets to bargain with two kinds of chips. First, you can bargain over likely outcomes of a hypothetical trial. Part of your job as defense counsel in a negotiation is to portray trial as a losing proposition for your opponents. Obviously, you do that through your giftedness with the English language, your ability to perceive weaknesses in your opponent’s case, and your ability to strengthen your own. The risker the bet trial becomes for you opponent, the more likely you are to work this all out with minimal damage.

The other bargaining chips consist in debating the seriousness of the conduct, the relative goodness of your client, and the number of people who can say that he will never do this sort of things again. When you are talking about things like this, you are really bargaining about what the case is worth. In a civil case, “worth” is measured in terms of dollars. In the criminal context, “worth” is measured in terms of punishment. And, it can be very powerful to tell a prosecutor or a judge that he’s been punished already. So, being able to take on a sentence pre-trial, may give you greater bargaining power when others try to demand that your client go to jail. There’s no better argument than “he’s already been there, and he never asked to come out until now.” In money parlance, a few months in a county jail can be a very good “investment” that minimizes your client’s net sentence.

Again, I am not claiming that most people should remain incarcerated pretrial. Rather, I want to suggest that the question of whether to make bond can sometimes be more nuanced than it might appear.

More Appellate Lessons Learned from a Georgia Trial

September 23, 2010/by J. Scott Key

On the first day of this week’s foray into criminal trial practice, I wrote about what a felony trial has been teaching me about appellate practice. Then a rejoinder form a commenter made me think that blogging during trial was not the greatest idea. Yesterday, the trial resulted in a mistrial. An hour into deliberations, the jurors were split 8-4. The judge sent the jury back to deliberate more, and the split became 7-5. The judge declared a mistrial after they reported that 7-5 was about as far as it was going to change. And since the trend appeared to be moving away from a agreement, the trial court declared them to be a hung jury.

I write, not to report that the jury was hung but about an interesting appellate lesson that I learned on day two of the trial and also what I learned when I spoke to the jurors after the action was over.

The case involved an indictment for child molestation. One of the biggest problems for the State was that the victim recounted the story to different people in inconsistent ways. To the police the complaining witness testified that my client entered the room once where the alleged act was committed. To the mother, she said that he entered the room only once. She made both statements on the same day.

The complaining witness testified that she might have said, at some time in the past, that he entered the room twice. Yet, she insisted on the stand that he came into the room once.

The State’s next witness was the complaining witness’s mother. The prosecutor knew that he had to deal with the mother’s written statement that the daughter told her that he entered the room twice before I made a big deal about it on cross-examination. He tried to offer up possible reasons why she might have written the two-visit version. Each time, it was a leading question. I objected. The objection was sustained. Finally, the witness sensed what she was supposed to try to do.

She blurted out, “I was upset. This whole thing was upsetting. I had to take my daughter to therapy.”

Victim impact evidence is wholly improper for guilt-innocence. I asked the jury to be excused, and I moved for a mistrial. The Court found that the prosecutor had not intentionally elicited the response about therapy but that the questions were such that they invited such a response. He warned counsel not to ask any more such questions. He then denied my motion. I renewed my motion because you must renew a motion for mistrial after the court admonishes counsel or takes any other corrective action. He asked me if I desired a limiting instruction. I said that I did though I believed that “no limiting instruction could undo the harm.” He gave the limiting instruction, and I renewed my motion.

The trial proceeded. I worried about the injection of therapy into the trial. It bolstered the idea that something had happened, and it injected victim impact.

Then I interviewed the jurors afterward. They said that the therapy stuff helped me. They wondered why the State failed to bring in the therapist as a witness. Which, of course, the State could have to rehabilitate with a prior consistent statement after I had impeached with prior inconsistent statements.

So, it turned out that I got to have my cake and eat it too. The State had gone into some forbidden evidentiary stuff. The State was admonished. The jury was given a limiting instruction. The issue was preserved for appeal. The jury promptly ignored the limiting instruction and used the evidence anyway. But they used it in a way that was helpful to me.

Sometrial the best objections are overruled and the best motions are the good ones that are denied. It would have been an interesting appeal. It turns out that the jury granted me a new trial (or hopefully not).

You can learn a great deal about appeals from doing a trial. And I also learned that appeals have taught me much about doing trials. It’s been a fun and tiring week.

Supreme Court of Georgia Changes Approach to Sentencing After Appeal

July 13, 2010/by J. Scott Key

In Adams v. State.pdf, the Supreme Court of Georgia held that it is appropriate for a sentencing judge, after a reversal for judicial error, to impose a greater sentence on an individual count as long as the sentence in the aggregate is not increased. The dissent, consisting of three justices, reasons that the Court’s holding reverse long-established precedent.

The Key Facts

Here are the facts. Tavins Lee Adams was convicted of child molestation, aggravated child molestation, aggravated sodomy, and enticing a child for indecent purposes for actions that took place in a single incident.

The Original Sentence

aggravated child molestation merged into aggravated sodomy 20 years to serve
child molestation 20 years to serve
enticing a child for indecent purposes 20 years to serve

Sentence After Motion for New Trial was Granted and After Re-sentencing

child molestation merged into aggravated sodomy 30 years to serve
enticing a child for indecent purposes 20 years to serve

Adams appealed, arguing that the trial court’s decision to increase the sentence on aggravated sodomy was in increase in punishment, not allowed by the United States Supreme Court’s holding in North Carolina v. Pearce. The Court of Appeals held that because, the aggregate sentence was less than the original aggregate sentence, there was no problem with the sentence.

Getting Past the Presumption

The majority opinion, consisting of the usual suspects on cases like these (Nahmias, Melton, Carley, and Thompson), held that the trial court did not violate the principles in North Carolina v. Pearce (a U.S. Supreme Court holding that a trial court cannot increase a person’s sentence after he prevails on appeal. The Court held that there is a presumption of vindictiveness whenever a more severe sentence is imposed after a new trial, “which may be overcome by objective information in the record justifying the increased sentence”).

For the majority, it was key that the trial judge granted a motion for new trial and merged an offense rather than being told to do so by the appellate court. For the minority, such a distinction did not make a difference because the judge followed the law and he acknowledged making a mistake after such was pointed out by the defendant.

Meet the New Analysis

After the majority takes apart the presumption by reference to the motion for new trial, it sets out in division two of the opinion to really do some damage to Georgia precedent. Justice Carley starts out in the law of other states, finding that “the vast majority of federal and state appellate courts that have addressed this issue have adopted the aggregate approach, which requires a court to “compare the total original sentence to the total sentence after resentencing. [I]f the new sentence is greater that the original sentence, the new sentence is considered more severe.”

Some other States, he points out have adopted the “remainder aggregate” approach that compares “the district court’s aggregate sentence on the nonreversed counts after appeal with the original sentence imposed on those same counts before appeal”

Finally, Justice Carley points out that a few states have adopted what he calls the “pure count-by-count approach,” which requires that counts be considered separately. We find out in the minority opinion that Georgia, before this opinion came out, was once one of those states.

Without so much as a tip of the hat to our precedent, the majority points out that the aggregate approach is the one that is most pragmatic for the trial judge to use. Of course, convenience and practicality are not Constitutional principles (far from it). Yet, in response to the minority’s reasoning that mandatory sentencing and parole consideration may increase the net amount of time a defendant may serve under an aggregate scheme, he dismissively notes that such concerns are “not relevant as the statutes have no constitutional implications in that context.”

Turning back to the “practicalities” of the new rule, the majority reasons that there is “a minimal likelihood of vindictiveness.” Applying the law to the new facts, the majority points out that, in the aggregate, the defendant received 50 years to serve rather than the initial 60 even if he got more time than before on one count. He calls this sentence “significantly less severe,” which might be the case if the defendant were Highlander.

More Stuff to Think About

This has become a very fractured Court. Since Georgia became a one-party system, the Court has changed. The new guard is not particularly a slave to principles of stare decisis. Though the court is a more exciting place — oral argument is certainly more fun there than it’s ever been — it’s also tougher to practice law. Trial lawyers cannot easily advise clients based upon the law when even settled law may not be settled. Also, it is likely going to become more difficult to use precedent to convince trial judges of what the law requires when so much precedent is a moving target.