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Today’s Argument at the Georgia Supreme Court

January 22, 2019/by J. Scott Key

I was at the Georgia Supreme Court for argument on a habeas case today. This was my first appellate argument of 2019. I’ll be at the Georgia Court of Appeal on February 12. You’ll find a link to the recording here. I won’t comment on a pending matter except to say that this is a pro bono case I’m handling through The Habeas Project, a pro bono law school clinic at Mercer University law school. My special thanks to Meagan Hurley and Addison Gant, two third-year law students who did the bulk of the research and writing on this case.

I also ran into Leighton Moore after he finished his argument on an interesting first amendment matter.

A great part of a SCOG argument is when I power up my phone afterward and find a deluge of commentary from colleagues and friends who watched online. Today was no different — a fantastic start to a new year.

New SCOG Opinion Sets Out Rules for Voir Dire in Death Penalty Cases

December 16, 2012/by J. Scott Key

A recent Georgia Supreme Court case on jury selection provides a framework for determining what a case’s subject matter is. There is a fine line between asking juror to prejudge the facts and figuring out if jurors cannot be fair. A few words about the problem in the case first. Full disclosure, I was amicus counsel on this case.

Defendant Ellington was on trial for his life in an indictment alleging that he had murdered three people. Though not mentioned in the indictment, two of the three victims were young children. Mr. Ellington was not charged with any offenses, such as cruelty to children, that would have otherwise revealed age. The defense wanted to discover which jurors would be unable to consider a life sentence for a man convicted of killing a child victim. The State argued that, since age was not disclosed in the indictment, this case was not “about” children. And, since the victims’ age would be developed as the facts were presented, it was not proper to ask the jury to pre-judge the facts. On the one hand, it is entirely proper to find out if jurors could not consider the facts and apply them to the law. On the other, it is not proper to pose hypothetical facts to jurors and ask them how they would decide the case based upon those facts.

The Court acknowledged that children are different. In federal death penalty cases, the youthfulness of a victim is an aggravating factor. And it is a factor in at least thirteen states. Our basic instinct is to protect children. That instinct is codified in law and in the rules of evidence. Within a minute of the beginning of the State’s opening statements, the State made age a theme. And it was a theme in closing as well.

The holding and the broader lesson.

The holding is arguably narrow. But the lesson to take from the reasoning is broad. At the very least the holding is that, in a death penalty case where children are the victim, it is appropriate to ask jurors whether they could consider the possibility of a life verdict. In the broader sense, the reasoning is that cases are about more than what is plead in an indictment.

Whenever there are facts in your case that would inherently bias jurors, it is important to ask about it in voir dire.

In DUI or drug cases, it is important to ask jurors about experiences with alcohol and drugs. It is a rare family that hasn’t been touched by addiction. And it is reasonable to expect that some jurors aren’t qualified to sit in those kind of cases.
The age of the defendant may bias some jurors.
There may be certain types of crime where jurors cannot possibly be fair. A person who owns a retail store may not be an appropriate juror in a shoplifting case.

As you prepare for voir dire, consider what things about your case could be a problem for certain jurors. Then craft questions designed to find out who those jurors are. Anticipate that opposing counsel will object and say that you are asking jurors to prejudge facts. Prepare your response using the language in Ellington. And keep in mind that a case is often about much more than the language contained in the indictment.

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.

Passing of Former Chief Justice of Georgia Supreme Court

July 11, 2010/by J. Scott Key

The Atlanta Journal and Constitution reports that Harold Nelson Hill, Jr., former Georgia Supreme Court Chief Justice, passed away at his lake home on July 5. Senior U.S. District Court Judge Willis Hunt called him “a stellar member of the Supreme Court.” Justice Hill began serving on the Supreme Court in 1975 and served as its chief from 1982 until 1986. He wrote a history of the Supreme Court and chaired a judiciary committee in 1984 that established uniform court rules for the state’s five trial courts. Judge Stephanie Manis, who clerked for him early in her career described him as “very formal and scholarly.” She went on to credit him for giving many luminaries in the bar and bench their start.

However, it was a bit strange that, with his death taking place on July 5, the AJC was so late reporting his death. Also, I cannot remember reading any of Chief Justice Hill’s opinions. A search of the internet shows nothing about him other than his obituary.

Then I looked up some of his old cases. It turns out that he was very accomplished. In 1972, he was an executive assistant attorney general who signed onto the brief of Appellee in Furman v. Georgia, the case that briefly held that death by electrocution was cruel and unusual punishment in violation of the 8th Amendment. He worked on a set of big cases in the early 1970s before going onto the Court and authoring many opinions there.

The Georgia Supreme Court’s website mentions nothing about his passing.

Sometimes, when you are so focused in your own work before the Court, you lose sight of all the stories that accompany all the portraits in the courtroom. This obituary made me look up the career of a very significant man in the Court’s recent history. It makes me wonder what the other stories are and what my story in the law will be.