Of Counsel

Legal Notes on Georgia and The South

Still Alive

Posted by Maggie on August 4, 2008

I doubt any of you are still reading, but if you are, I do apologize for abandoning the blog. I don’t have much of an excuse. I took a week off, no one noticed, and I enjoyed the break so I just kind of kept at it. (No one continued to notice, as far as I can tell. It’s okay. I forgive you.)

But I am still out and about and wrote up a post for my friends at The Feminist Underground. It’s not my normal lawyerly stuff, but I think I may be moving more in that direction in the future. If you found my blog courtesy of TFU, thanks for coming by. You’re welcome to peruse my archives. Brian Nichols still hasn’t gone to trial.(Though jury selection has actually started. No joke!) The Public Defender system is still a big mess. I guess all that time away hasn’t really changed much.

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Snyder’s Conviction Overturned

Posted by Maggie on March 19, 2008

The US Supreme Court has issued its opinion in Snyder v. Louisiana. The Court found the Batson challenge to be meritorious. I blogged about Snyder’s oral argument and history here. Justice Alito (!) wrote the opinion and does a good job of comparing the circumstances of the dismissed black juror–a student teacher worried about missing class whose dean promised to work with him on scheduling–to other white jurors who were accepted–a construction worker in the middle of 2 jobs whose wife just had a hysterectomy, a man with “urgent appointments” he couldn’t miss or reschedule–and finds the reason for striking the juror not race-neutral.

I’m happy to see the Batson framework getting more consideration these days.

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Judge Who Booted Defense Attorneys Asked to Recuse

Posted by Maggie on March 19, 2008

One of the cases often referenced when talking about the difficulties with capital cases in Georgia these days is that of Jamie Weis, charged with murder in Pike County.  A quick recap: defense attorneys in the case asked for a delay in the case while they weren’t being paid.  The Judge decided he wanted to move the case forward, kicked off defense counsel, and replaced them with local PD’s.  This isn’t something he seems to have the right to do under Georgia jurisprudence.  Nor is the local PD’s office equipped to handle death penalty cases since the establishment of the Capital Defender’s Office.  Oh, and he didn’t consult anyone about this decision, not past or current counsel.

It wasn’t likely anyone was just going to let this lie.  Now a motion has been filed for Judge Caldwell to recuse himself.  Prominent defense attorneys Stephen Bright, Ed Garland, and Donald Samuel have filed the motion.  They are not defense counsel, but are asking to be involved specifically to address this issue.  Among the noteworthy dirt they’ve dug up is what looks like ex parte proceedings.  Judge Caldwell claimed to have spontaneously made the decision to remove the attorneys from the case.  However, it seems that Caldwell was talking to Mack Crawford, head of the Georgia Public Defenders, for months before the change was made without involving any defense counsel or the defendant.  As you may imagine, Caldwell isn’t thrilled about all this.  Allegedly, he’s instructed his secretary not to tell Bright and company about scheduled hearings.  This is just the latest move.  Previous ones have thus far been unsuccessful.  We’ll see if this does anything. 

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One of Those Weeks

Posted by Maggie on March 18, 2008

You know how sometimes you can’t muster the energy to get angry at bad news? I am feeling that way this week. I knew the Troy Davis decision was coming out Monday. I knew the odds were it wouldn’t go well. (The jurisprudence on actual innocence in appeals boggles my mind. I’m a stickler for procedure, too, but there are limits.) And it hasn’t. This is something I should be blogging about, but I just can’t summon the necessary anger. Plenty of others are. Check out Capital Defense Weekly or A Public Defender and StandDown. (StandDown is a Texas blog and yet manages to scoop me about half of the time on Georgia news. If they’re not on your blogroll, they should be.)

I can’t explain where the anger has gone. On a personal note (those are rare here) I think it may be because things are actually going quite well for me this week. I’m making some major changes and it’s nicer to stay in my own little happy world than to get down and dirty in the depressing news about criminal defense. As these changes go into effect, I’m planning to continue blogging. I’m assuming this is a phase that will pass. But it may be a slow week around here. (Unless of course something crazy happens with the Nichols case. And let’s be honest, doesn’t something crazy ALWAYS happen with the Nichols case?)

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More on GA Indigent Defense Legislation

Posted by Maggie on March 14, 2008

The AJC reports today that HB 1245 has cleared the House Judiciary Committee. The main concern with the current version of HB 1245 is that it may strongly affect when a defendant gets to meet with counsel. GPDSC’s standards call for a visit within 72 hours of incarceration. This happens in 95% of cases, based on 2007 GPDSC data. HB 1245 changes this rule to five business days. And only upon request to see an attorney.

I don’t really understand the point of this bill. Is it supposed to save money? Or keep those who aren’t indigent from access to indigent defense? Because for most defendants, the cost to take on their case really is minimal. They’re still one among hundreds. And if it’s about money then this is completely the wrong approach. David Dunn, the Circuit Defender for Lookout Mountain:

Allowing defendants quick access to an attorney is more cost efficient, Dunn said. With the help of a lawyer, a defendant charged with a non-violent or petty offense can get a bond, reducing jail costs. The longer a person who has a job stays in jail, the more likely that person will lose the job and become indigent, he said.

“If we do this …, it’s not going to be a cost savings; it’s going to be a cost increase,” Dunn said.

I’m willing to bet that the cost of keeping someone in jail for 5 days is significantly more than their the cost of their entire defense (assuming there are no multiple-day trials involved). To me, this looks like the legislature taking advantage of the multitude of GPDSC’s problems and finding yet another way to make it more difficult.

But I also hope that it won’t have much of a practical effect. PD’s are PD’s for a reason, and they will most likely still do their best to meet with clients as soon as possible after incarceration.

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Today’s Nichols Update

Posted by Maggie on March 12, 2008

Another article in Creative Loafing, the alternative weekly newspaper, on Brian Nichols. A definite must-read. The story outlines clearly the history of indigent defense in Georgia, why a new system was needed, how the new system works, and then outlines just how we got where we are. Of particular note is the often ignored issue of legislative funding. Here’s a taste with quotes from former GPDSC Director Michael Mears and Emmet Bondurant, GPDSC’s first Council Chairman.

During the 2005 session, the General Assembly routinely approved a $42 million budget for the public defender system for the 2006 fiscal year. Then, in the 2006 session, it took back $5 million from the original allocation.

Mears says legislative leaders told him not to count on receiving all the money generated from the new court fees that were put in place to fund the public defender system. “I was in total shock,” Mears says. “It was like the system was being dismantled almost as soon as it was put together.”

While the amount collected from court fees intended to fund the indigent-defense system has risen every year, the amount allocated to the public defender system has dropped, and lawmakers have dipped into those funds for other purposes.

“The whole idea and the justification for the fees was sold to the public, the Legislature and the bar as a way to finance the state’s contribution,” Bondurant says. “The whole premise was that it was there for indigent defense. It’s dishonest and disingenuous to bait and switch.”

It also looks at the current situation of GPDSC as a legislative target. They attack GPDSC in part because on the ground they’re doing a good job and have effectively killed the death penalty in Georgia since the Capital Defenders took over.

Lots of quotes from friend-to-the-defense Stephen Bright and former State Republican Senator Charles Clay, who introduced GPDSC’s founding legislation. I know I am often quite hard on GPDSC, but it’s because when you read things like this you realize just what potential they have. While in many ways they are a lame duck agency, unable to set their own funding or force the legislature in any way, I stand by my repeated requests that they act as more of a driving voice for indigent defense and defenders.

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ACLU Sues Alternative School

Posted by Maggie on March 12, 2008

“Alternative” schools are a joke. They have different names in different places, but in Georgia the alternative school is where they send kids with disciplinary records. Or kids with too many tardies. Or kids with psychological or behavioral problems. It is used like a punishment instead of an education resource. In my days working with juveniles, any parent with the resources to do so would take their kid out of school and home school them before sending them to the alternative school.

Most teachers and administrators at these schools aren’t trained to deal with students with special needs. Very little teaching takes place. It’s more of a holding cell. “Student Resource Officers” tend to get particularly nasty in these places. There are rampant violations of state and federal laws and standards, especially when it comes to the kids with psychological disabilities who have special federal protection.

The ACLU is suing the Atlanta Public School’s Alternative School, which is privately run. It claims the students are not adequately educated and are subject to “unreasonable body searches.”

Teachers and at least one administrator routinely hit students, throw books and throw students against the walls or to the floor. Nor do these reports reflect the violence inflicted by school resource officers and police officers. Such officers are often physically aggressive and have a practice of using choke-holds on students…. “They are subject to a humiliating search when they come to school… girls are forced to raise their blouses up to their necks,” said Emily Chiang, a New York lawyer who helped draft the lawsuit. “They don’t let students bring anything in, including books. That is why there is a no homework policy. “

I’m glad to see the suit going forward. Maybe they’ll pay attention to other schools outside Atlanta where the same practices are going on.

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Posted by Maggie on March 11, 2008

One of the things about being a defense attorney is that it changes completely the way you look at crime. In your job, you see it from the inside. You get a real understanding of how the law punishes people and the people being punished. I was poking around a blog the other day and saw a post that troubled me. A woman was talking about her concern after a burglary at her mother’s home where the woman found the intruder inside the house when she came by. I can imagine how troubling this would be for anyone, how much it would impact your feelings of safety and security. So I’m willing to forgive her for what she posted a few months later. She said she was frustrated because the intruder, a woman, hadn’t been punished appropriately for her crimes, and that she was still out in the world with her two children. She specifically said how she thought the woman needed consequences for her actions.

Reading that made me think a lot of things. It’s likely this woman knows nothing about what’s going on with the case, that it may still be ongoing and the burglar is simply released on bond. It’s certain that this woman knows nothing about the burglar and her life, not her past or her present. And it’s also pretty definite that the lives of these two women, burglar and victim, could not be more different even though they both have young children. The woman writing the post has never been in a point in her life where she could understand why one person would break into someone else’s house.

This lack of understanding has a lot to do with how I see prosecutors and judges and legislators. Sitting next to a defendant, it’s difficult to see the people who have power over your client. There’s a prosecutor making plea bargains, there’s a judge overseeing pleas and trials, there’s a jury listening to evidence and arguments, and there are legislators and lawmakers who put the laws together that dictate your client’s potential fate. Along that chain of people, it’s unlikely any of them have a criminal record. If they did, they would probably be immediately disqualified from their position. (Even the jurors. You think a prosecutor is going to let a convict on a jury?) And yet this means that they are all in a position where they are not able to fully understand most defendants, whether guilty or innocent.

All this is running around in my head from all the coverage over the Spitzer scandal. Simple Justice has talked about it, so has Gideon. It’s not a Southern scandal, so it’s technically outside my realm, but scandal is certainly something we’re familiar with down here. It troubles me because I have conflicted feelings about it. Part of me loves to see someone who’s previously been vehemently attacking people in violation of the law go down themselves for the very same violations. It gives me that sense of righteous indignation that you need every once in a while. But I also feel a sense of pity and connection to it that I wouldn’t have without my defense experience. Despite their office, politicians are people just like my clients are, even though they come from vastly different backgrounds. I’m willing to understand their circumstances, just like I do with my clients.

Thinking all that made me wonder, why do we demand resignation in the face of scandal? I think if we allowed people who had made their own mistakes and paid for them to serve as prosecutors, judges, jurors, and legislators, that we might have a more enlightened criminal justice system. Some of you are probably thinking that plenty of those people have made serious mistakes, but somehow managed to avoid being outed. And you’re right. But I doubt that many of them allow their experiences to temper their judgment.

I’m not making excuses for anyone, especially not Spitzer. Being elected by the public should mean serving the public openly and honestly. And we as a society have decided that it means dealing with your mistakes publicly. But do you think he might act differently prosecuting a case now than he would have before? Do you think he might be more deliberate and considerate? Is that such a bad thing?

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Nichols Trial Date Set

Posted by Maggie on March 10, 2008

At today’s hearing, Judge Bodiford set Nichols a trial date of July 10. The prosecution wanted June while defense requested September. Judge Bodiford, still pretty gung-ho, plans to have 9 1/2 hour days and Saturdays to get through the trial by Christmas. (Don’t even get me started on why it’s necessary for this trial to take 6 months.)

It also looks like the defense’s efforts to find a new location to try the case may have new hopes. The Russell federal courthouse, just down the street, has been under construction which was the basis for their refusal to accept taking the trial. The construction is now completed and Bodiford is going to see about getting it moved there. If it’s not accepted, Fulton County needs to start doing some serious negotiating to find a new location.

And for those who are counting, tomorrow marks 3 years since the courthouse shooting spree Nichols has been charged with.

Update: More press today. The Daily Report expands its coverage and talks to the Russell federal building staff about the possibility of a move. The AJC writes about the family of Brian Nichols and other victims in the case as trial approaches.

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Southern News Roundup

Posted by Maggie on March 7, 2008

Ex-DA in Alabama sentenced to 42 months for fondling young men after ordering strip searches during drug tests.

Also in Alabama, crazy contraband news at the St. Clair Correctional Facility. An inmate appears to have smuggled in gasoline and matches, managed to douse two other inmates, and set them on fire. This didn’t happen in the yard, it appears the inmate got out of his own cell and into the cell of the other two. Possibly one of the crazier contraband stories I’ve ever heard. The same day, a guard was arrested for having multiple bags of marijuana and cell phones he was trying to smuggle in. If you think there’s no drugs in prison, think again.

Two single mothers in South Carolina are going to trial after they were evicted from public housing. The reason for their eviction was the criminal activities of their children. Six juveniles were arrested for armed robberies and five mothers evicted as a result. They claim they didn’t encourage or condone the behavior of their children.

Georgia’s not the only one with a public defense crisis. Florida appears to have narrowly avoided a 79 day furlough for it’s PD’s after the Senate found it a little extra cash. Still, there’s been a substantial budget cut and it looks like they’re avoiding a real fix creating another budget crisis looming already for next year. Sound familiar?

In Tennessee, a march promoting snitching. Dosnitch.com is sponsoring the event, trying to change community views on crime, especially for juveniles.

In New Orleans, Lloyd Burns was involved in the shooting death of Andrew Holmes along with his friend Jamaal LaCaze. LaCaze had argued with Holmes and was charged in his death, but Burns admitted to the killing himself, claiming self-defense. LaCaze was acquitted at trial, in part due to Burns’s testimony. Then Burns was charged and changed his story, saying he’d lied to save his friend. He’s acquitted, too. So looks like DA’s are 0 for 2, showing just how complicated co-defendants can be.

Capital Defense Weekly has been regularly updating the scary situation in Mississippi with junk science. One of the targets is coroner Steven Hayne, whose testimony has been shown to be incorrect in several cases and has led to false convictions. A mother in Mississippi charged with manslaughter in the death of her toddler has sued the state asking to review the autopsy findings. So far they’ve refused to do so. Wanna guess who the coroner was? What’s really scary is how little the Clarion Ledger seems to care. The story isn’t any kind of attack on Haynes, instead they say, “Hayne’s work has come under scrutiny lately in some cases where DNA evidence appears to clear convicted individuals of crimes.” That’s it. Oh, except where they say that he still has the support of coroners across the state. Three cheers for investigative journalism, huh?

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