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Tag Archive for: Strickland

New ABA Guidelines on Monitoring Jurors Via Social Media

April 29, 2014/by J. Scott Key

The American Bar Association has released a formal ethics opinion regarding how far attorneys may go in monitoring social media postings of jurors.

Attorneys or their representatives may monitor any activity that is publicly available, but they may not “friend” a juror in an effort to monitor their private social media postings. Nor may attorneys use a third person to friend jurors.

Further, when lawyers find evidence of juror misconduct, there are certain times when the lawyer must report it to the Court and other times when he is not:

The final question the new ABA ethics opinion addresses is what a lawyer should do if he discovers misconduct by a juror during his Internet review. “Jurors have discussed trial issues on ESM [electronic social media], solicited access to witnesses and litigants on ESM, not revealed relevant ESM connections during jury selection, and conducted personal research on the trial issues using the Internet,” the opinion notes.
Under Rule 3.3(b), a lawyer has an obligation to inform the court when the juror’s conduct is fraudulent or criminal. But if the lawyer learns of juror conduct that violates court instructions to the jury but does not rise to the level of criminal or fraudulent conduct, it is not clear if he is obligated to inform the court, the opinion says. For example, “innocuous postings” about jury service, such as the food served at lunch, may violate the jury instructions but fall short of criminal contempt.

If, by virtue of monitoring the juror’s social media postings, the juror is alerted, the lawyer has not contacted the juror. Rather, the social media service provider has initiated the contact.
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0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2014-04-29 06:20:412014-04-29 06:20:41New ABA Guidelines on Monitoring Jurors Via Social Media

In Memoriam: Strickland v. Washington

June 8, 2012/by J. Scott Key

While working on a brief, we discovered a Georgia Supreme Court case that I was sorry to have missed when it came out (hat tip to Margaret Flynt). A paradigm shifted in 2010, and I completely missed it. From an optimistic viewpoint, this case shows that almost nothing adds up to ineffective assistance of counsel. To be less than optimistic, this case marked the end of the concept of ineffective assistance of counsel jurisprudence in Georgia.

Let me tell you the story. In the case, two parents were tried for murdering their 8-year-old child. The facts were fairly bad, with a history of child abuse. But the prosecutor’s trial tactics were also fairly horrible. During her closing, she clicked her fingers, which signaled a deputy to dim the lights. An associate prosecutor produced a birthday cake with the victim’s name written on it. The cake had eight candles on it, which were then lit. And the prosecutors sang happy birthday to the victim during the closing (if you were paying attention to the opinion, you’d note that the victim was already eight years old. To blame the defendants for the fact that there would never be an 8th birthday party requires that we scold them for not perfecting time travel.).

Defense counsel never objected or moved for a mistrial. And appellate counsel raised the failure to object as ineffective assistance of counsel. On the stand, trial counsel defended the decision not to object as “sound trial strategy.” Trial counsel gave the standard defense that he “didn’t want to call attention to” the spectacle by objecting. This display, and attempts to call attention to it make me think of Frank Drebin from the movie, Naked Gun. How could you possible call more attention to what is already a P.T. Barnumesque event?

The case reads like self-parody. Have you ever thought that you were reading The Onion only to realize that you were reading an actual news story? The Smith case reads like a satirical version of an IAC narrative written by a person trying to make a point about the state of ineffective assistance of counsel jurisprudence.

I am trying to imagine the backstory. I think, for instance, about the meeting where this idea orgininated. Prosecutors, the true believers anyway, say that they are in it for justice for the victims and not merely to win. So, I wonder if the actual intent of the cake and stuff was to honor the victim’s memory and things just got out of hand. That such a display would trivialize the victim or come off as a little offensive might have been overlooked.

I would also be willing to bet that the bailiffs and courtroom staff ate the cake during a break in the proceedings.

As I imagine the backstory, I think about all of the times that the brakes could have been applied. Like maybe when the prosecutor was at the Kroger bakery. As the details were being ironed out with the baker, you would almost expect an epiphany along the lines of, “did I get all this education and study for the bar so that I could be here doing what I’m doing right now?” But alas, no.

Or maybe a great opportunity was when the prosecutor told the deputy, “Hey, man. Listen. During my closing argument, I’m going to snap my fingers. When I do that, I need you dim the lights for me.”

I’m trying to imagine a defense attorney attempting a similar conversation with a Georgia courtroom deputy. It would never happen. It’s scary to imagine starting that conversation. The defense attorney would be summoned into chambers and yelled at. At the very least the deputy would get offended and say something like “I don’t work for you.”

But while we are on the subject of double standards, I want us to think about this case alongside an earlier IAC case, Nejad v. State. In that case, trial counsel testified that he was ineffective when he ordered his client not to testify at trial.

In a concurring opinion, a Georgia COA judge chided trial counsel, questioned his honesty, and noted that there should be some sanction for lawyers who testify that they made a mistake at trial:

I concur fully in the majority opinion, but write separately to point out an area of increasing concern in claims of ineffective assistance of counsel. Trial counsel’s testimony in this case demonstrates a worrisome trend with serious implications for the bar and the administration of justice. …

Typically, trial counsel in such situations testify primarily to the factual details of their conduct and decisions, and admit errors only with reluctance and with due regard for their professionalism and pride in their work. The developing trend of emphatically and even eagerly testifying to one’s own incompetence or misconduct is dangerous to the administration of justice, particularly if it is allowed to continue without any consequences for the testifying trial counsel.

By contrast, the majority in Smith spends about a paragraph dispatching the IAC claim. The dissent, even in taking defense counsel, the trial court, and the DA to task, never questions the honesty of the “trial strategy” claim or suggests that there should be consequences to such testimony.

Defense attorneys who testify “with pride in their work” at motions for new trial get the same hedge of protection as cops who testify at suppression hearings. The defense attorney who defends his conduct at an appellate or post-conviction hearing enjoys the same treatment as the police officer who explains how he smelled two ounces of raw marijuana that was wrapped in layers of packing, within a closed trunk. Such evidentiary moments assume a willing suspension of disbelief, reminiscent of Samuel Coleridge. Trial courts hear and accept such fictions on a regular basis, and those findings are accorded an extremely deferential standard of review on appeal. The defense attorney is celebrated as an officer of the court until he says that he made a mistake.

Strickland reached the end of its road. Today, we take an opportunity to mourn its passing. I’m headed to the Wal-Mart bakery right now to buy a cake for the birthday that it will never celebrate again.

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2012-06-08 13:55:112012-06-08 13:55:11In Memoriam: Strickland v. Washington

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

July 11, 2011/by J. Scott Key

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

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

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

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

What’s Wrong Now?

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

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

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

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

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

Where Should We Go From Here?

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

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2011-07-11 15:50:502011-07-11 15:50:50New UGA Law Review Article Takes Georgia to Task for the Way We Handle IAC Claims

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