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Tag Archive for: Stare Decisis

A New Approach to Felony Murder and a New Template to Attack Precedent in Georgia

July 19, 2010/by J. Scott Key

There are two big stories in the Georgia Supreme Court’s decision in Jackson v. State. The first is that the rule of causation for felony murder that had been in place for thirty years has been changed. The second is that the majority has provided a framework for any appellant to use in future cases to use to attack the concept of precedent itself. While it probably is intended as a tool for the State to use against persons charged and convicted of crimes, it is worth a try on your client’s behalf. Precedent doesn’t mean what it used to mean, and by “used to” I mean before the Jackson opinion came out.

This opinion has several moving parts. So many, in fact, that I wrote up a State v. Jackson mindmap.pdf for use in interpreting and following it.

Facts and Procedural Posture

Factually, the case reads like a case out of a law school exam. Carlester Jackson, Warren Smith, and Jerold Daniels decided to rob a drug dealer. Daniels approached the intended victim with a handgun with Jackson nearby in a getaway car. The victim and Daniels exchanged gunfire and Daniels was killed by the victim who was acting in self defense. The State charged Jackson with felony murder for causing the death of co-conspirator Daniels while all three were engaged in the felony act of armed robbery.

In short, the issue in the case was whether a co-defendant can be charged with, prosecuted, and convicted for the death of a co-defendant at the hands of a victim who kills another co-defendant in self-defense.

The trial court followed precedent and dismissed the charges. The State appealed the dismissal specifically to ask the Supreme Court to overrule Crane v. State, the case that said that such a prosecution could not be brought.

The Supreme Court reversed the trial court, overruled Crane, and set up a new test — a meta-test — to use to determine which precedents are worthy of standing and which ones ought to go.

Read more

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2010-07-19 13:45:322010-07-19 13:45:32A New Approach to Felony Murder and a New Template to Attack Precedent in Georgia

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.

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2010-07-13 12:00:002010-07-13 12:00:00Supreme Court of Georgia Changes Approach to Sentencing After Appeal

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