Of Counsel

Legal Notes on Georgia and The South

Archive for September, 2007

No Answers on Death Penalty Reform

Posted by Maggie on September 30, 2007

Yet another report from the AJC today on how to fix the death penalty now that they’ve reported the problems with it.

The suggested ideas included some kind of central panel to review cases before prosecution. This seems more trouble than it’s worth to me. How do you know which facts will be proven at trial? How do you know which witnesses will be credible? How do you know what the defense will be and what experts may present? What about prosecutorial discretion and plea bargaining?

This is exactly why there isn’t much around in the way of death penalty “reform,” you either have it with its problems or you don’t. There’s no “right way” to do the death penalty, and that’s kind of the point.

Also, Stacey Humphreys was given the death penalty today for the murder of two Cobb County women. Easy to predict, since it was the death of two white women prosecuted in Southern Georgia. But where do you draw the line? A jury found the death penalty appropriate despite mitigating evidence. In many ways they’re the most qualified to make the decision. However, how do you diffuse their inherent prejudices?

To me, if this is what we’re going to have, I don’t know that any of the suggestions are worth anything. What we need are thorough and thoughtful appeals, and we need to make sure we’re opposed to the kind of fast-tracking legislation that’s being discussed these days.

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Atlanta Police Oversight

Posted by Maggie on September 30, 2007

The AJC today reports on the Citizen Review Board set up by the City Council in the aftermath of the Kathryn Johnston shooting last year.

Two members just attended a Law Enforcement Oversight conference. They have a $200,000 budget, but no set policies or start date.

As much as I think we need this type of system (especially in light of my last post) I am concerned about the propensity for red tape and bureaucracy we have in Atlanta government. In the last couple weeks, for example, I’ve called two separate agencies trying to find something out. I called several times, spoke with several people, was sent from person to person, and while one question was eventually answered, the other still isn’t and no one has returned a phone call or email. The City is incredibly frustrating and difficult to deal with and I hope the Citizen Review Board finds a way to govern itself effectively.

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“We Have Ordinances”

Posted by Maggie on September 30, 2007

If you’ve never had much experience with the cops, working as a PD is getting thrown in the pool without knowing how to swim. But you get better at figuring out what the cops are really doing to your clients after you’ve heard the same story a few hundred times. When a cousin of mine came to visit, I demonstrated by showing her all the cars the cops would pull over.

A “high crime area” is one of their classic excuses for arresting whoever whenever. Except this time they arrested a New York Times reporter who was doing a story on gangs. He tells how he’s cuffed for no reason, finally released with no explanation. When he gets angry with the officers, they’re unapologetic. But one of the guys he’s with wisely points out that if it had been one of them to take that tone with the police, they’d be in jail right now.

It’s sad these things happen. This is why I get so much joy out of winning motions to suppress.

P.S. For the handful of you who read regularly, I apologize for doing so little updating. In the middle of major events. Will be spotty for the next week or two, but I promise to return.

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Online Solicitation Conviction Reversed

Posted by Maggie on September 26, 2007

Still haven’t gotten to that long list of Supreme Court opinions released the other day. But the AJC reports on one today, Patel v. State. Patel was convicted of Online Solicitation and Obscene Internet Contact under the Computer Pornography and Child Exploitation Prevention Act, O.C.G.A. section 16-12-100.2. The Court holds that the Judge improperly commented on venue. During opening, the defense tried to argue that venue was improper. The Judge stated, “That’s incorrect. That is not a defense to this case. Venue is proper in Fayette County or we wouldn’t be here right now.” As venue is a finding of fact for the jury, the Judge improperly commented on evidence that wasn’t established. Worse, the Judge later, trying to “cure” the jury, said he didn’t remember saying such a thing, but that if he did it wasn’t taking away the prosecutor’s burden of establishing venue. Too little, too late, and no mistrial. Fortunately the rule is that no curative instruction can resolve such a statement by a Judge, and I think it’s a good one. The influence of a Judge goes a long way with a jury.

There are other venue issues the Court doesn’t consider heavily, which seems a shame. These internet cases bring up important venue issues that should be addressed rather than shrugged off.

The DA says he will retry.

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Investigating the GA Supreme Court and the Death Penalty

Posted by Maggie on September 26, 2007

Okay, get ready for the legal-ese, laymen. I’ve got some serious issues about the final AJC death penalty coverage today, but it’s getting a little technical.

One article in the AJC’s series on the death penalty today, High Court Botched Death Reviews, talks about the Supreme Court and the death penalty. The gist of the article is that the Court cites bad precedent in upholding death penalty cases. In particular it cites Hall v. State, 415 S.E.2d 158, a case from 1991. The language in the article seemed vague to me so I decided to do some digging.

The main issue the article addresses is that the Court’s job on appeal is to make sure the crime fits the appropriate circumstances for the death penalty, meaning it’s 1) outrageously wanton or vile, and 2) it involves torture, depravity or mind, or aggravated battery.

In Hall’s case, it seems like this may be a stretch. Hall previously abused family members. In this incident, he killed his son with a shotgun when he was drunk after he’d gotten angry with him for playing with a toy. The jury found that the abuse of the family and Hall chasing the child prior to death constituted “torture” within the meaning of the statute. Personally, I find it a stretch. To me it sounds like a typical non-death case, alcohol involved, domestic incident, fit of rage, etc. But back to the issue.

The AJC article says the opinion cites 20 death sentences without noting that 16 had been reversed. In the death penalty section of the opinion, the Court cites 4 cases. Only 4. 20 are listed in the “appendix” section as “similar cases.” In looking at a handful of these 20 cases, I’ve already found 6 that are still good on the death penalty issue. One sentence was overturned on habeas due to a confession, but the conviction was upheld. Yes, there are red and yellow flags. The cases are distinguished in later cases, and technical issues are overruled, but the death penalty law remains good.

Of the 4 cited death-related cases, 1 is about whether the jury made the requisite findings, 1 is about whether the jury had the required intent. 2 are cited in support of a proper death penalty finding. These two cases are Hance v. State, 268 S.E.2d 339, and Rivers v. State, 298 S.E.2d 1.

Hance has a crazy set of facts and is related the issue of an Aggravated Battery element. The defense tries to argue that murder pretty much always includes an Agg. Battery. Although there’s actually a specific reference to death by shotgun as NOT being sufficient to be torture. And statements that a killing of a member of the defendant’s family makes one less likely to get the death penalty. Hall seems to stand for the idea that “psychological torture” before death is sufficient for the death penalty. Certainly, Hance is a bad case to cite. It’s just not relevant to the matter at hand in any way, if anything it goes the opposite way. As for Hance’s precedent value, it is referenced in Hance’s later habeas petition in the 11th circuit, which is overruled in another 11th Circuit case in addressing improper closing argument. The precedent on death penalty issues is still valuable as far as I can tell. Hance didn’t even address the argument issue in his state appeal.

The other cited case, Rivers v. State, involved the murders of 3 people when the defendant robbed their home. One was shot, one was sodomized before death, and the last was kidnapped and held before being shot. The first death, simply by gunshot wounds and probably the first since it was the only adult, is found not to be appropriate for the death penalty. The other two are. Rivers is relevant in that it finds the psychological abuse in the kidnapping was enough to justify an aggravating circumstance. (Although it still seems like a factual stretch.) Rivers is good law, no yellow flags. So Rivers is a decent cite, though the Court should have thrown in additional argument as it still doesn’t seem similar enough.

All in all, the AJC article is very misleading. Only 2 cases are cited for the relevant issue. It’s true that one is a useless cite, but neither is bad law on that point. The dissent in Hall points out the aggravating factors in other cases the court cites for comparison. It’s an effective dissent, and I agree that Hall’s case doesn’t merit death under the law. The decision is plain wrong. But the article is not adequately researched and the legal information in it is troubling. It doesn’t seem to understand that even though a death sentence may later be vacated, that it does not completely invalidate all the legal rules set out in a case. The AJC reports Hall’s death sentence was later vacated, but I can’t find a link in Westlaw. The Chief Justice gave a statement noting that references to older cases refer to evidence the jury actually heard, not evidence they should or should not have heard. It’s a good point, meaning that the facts of a death case may still be useful even if it’s overturned, as long as it’s not because of a finding the case lacked the important aggravating factors.

Death penalty appeals certainly need to be examined. However, this article does a poor job of it. The relationship between direct appeal and habeas is not considered. The possibility of one grounds for being overruled versus another. I’m concerned that the AJC made merely a perfunctory look, found cases that were flagged, and immediately put them down as bad precedent. I’d rather we see a real legal analysis of the issue.

The final article, Is the Review Process Fixable?, has a better analysis. It points out that the Court makes an effort to find similar cases where the death penalty was given, rather than finding similar cases where life was given. I can imagine that it would be very beneficial to get a study analyzing death cases in the last decade and life cases by facts. In fact, the AJC seems to have done something close to it. I would hope the Court would seek out this kind of analysis.

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AJC Death Penalty Coverage: Day 3

Posted by Maggie on September 25, 2007

Three articles today on the death penalty in Georgia. Divided About Death, on the death penalty in armed robbery murders. Pendulum Swings Toward Life in Prison, adding that since armed robbery murders so rarely get the death penalty, it’s possible they shouldn’t be given at all under Georgia law. And finally, Is the Public Less Eager to Have Killers Die? on Georgia juries handing out less death sentences.

Today’s coverage brings up something I’ve been thinking about lately on prosecutorial discretion. As any defense attorney knows, prosecutorial discretion is a dangerous thing. But it also has the potential to be a beneficial thing when in the hands of a wise prosecutor. One of the main trends of the AJC articles is bringing to the forefront the effect of prosecutorial discretion on death penalty cases. They seem to be seeking out some kind of standard, a situation where you can count on getting or not getting the death penalty.

If you take away the issue of the death penalty, assume it’s there, assume it’s appropriate to use, then I still think there are factors outside of the crime itself that will always affect the appropriate use of the death penalty, just as there are in any sentencing situation. I am certainly one of the camp who believes that if the victim’s family doesn’t want death, there shouldn’t be death. The age, the mental status, the family background, all these things are also completely relevant. This search for uniformity in the death penalty is going to be elusive anywhere in the country, not just here.

I think the insinuation that we need to make this a standardized situation ignores the delicacy that these cases require. Personally, I think all cases should have all these factors analyzed, regardless of the crime. It’s one of the reasons I bristle at mandatory minimums and other blindsighted sentencing legislation. I’m curious to see if we get any resolution tomorrow with the big wrap-up.

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Arkansas Judge Sanction Thrown Out

Posted by Maggie on September 24, 2007

An Arkansas Judge disciplined for making political comments was thrown out last week.

Appeals Court Judge Wendell Griffen made comments critical of the federal government’s handling of Hurricane Katrina and support for raising the state minimum wage. Griffen is suing in federal court to have the judicial ethics code amended to keep this kind of thing from happening again.

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AJC Cover Saga on the Death Penalty

Posted by Maggie on September 24, 2007

As usual, this weekend I took a break from the blog. It meant I wasn’t paying attention to the Sunday AJC, but fortunately I was alerted by Joe.

Today is Day 2 of a 4-part series on the death penalty in Georgia. While today’s cover story is somewhat biased, the overall coverage has been interesting. (Although not surprising to those of us who’ve practiced in more rural counties.)

The major finding of their investigation is that the death penalty is given in Georgia arbitrarily. It has little connection to the severity of the circumstances of the crime. Rather it depends on where it happens. It also covers how many of the worst cases avoid the death penalty by pleading guilty and gives discussion to the broad discretion of DA’s in the matter. DeKalb County, one of the main counties of metro Atlanta, hasn’t given out the death penalty in the last decade or so. Fulton only had 2 from ’95 to ’04.

After the jump I’ll link the individual articles with a brief summary. Read the rest of this entry »

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Court Update

Posted by Maggie on September 24, 2007

The GA Supreme Court put out 33 opinions today. I’ll try and get to them next week when I’ll be off and have some time. As for the GA Court of Appeals, here’s the round-up since last update:

Convictions affirmed: 2
Convictions reversed: 1

Wright v. State, A07A1938. Not the prosecutor’s fault this time. Nope, the Judge asked the arresting officer if the defendant made a statement. When the officer answered No, the Judge asked, “He didn’t want to talk to you, is that what you’re saying?” Court of Appeals overturns, finding this an improper comment on the defendant’s right to remain silent. (Shockingly, counsel didn’t object!) Fortunately, the Court finds this obvious error and overturns. Further, it was the fact that the Judge was the one making the statement that made it harmful error. No curative instruction was given and no one was censured, as could have happened if it had been a counsel or witness mistake. Watch those Judges!

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Nichols Delayed Again

Posted by Maggie on September 24, 2007

It appears that instead of starting jury selection, on Monday, attorneys on the Nichols case will be meeting with the Judge to resolve funding issues to move forward.

This because the Georgia Supreme Court put out an opinion today regarding costs. The trial court ruled that Fulton County would have to pay various expenses, including transcription of phone records and expenses for digital presentations for Nichols. The law, though, says the County must only cover “contingent expenses,” including rent, lights, fuel and transcription of the hearing.

I agree with the Court on the transcript issue. But given the modernization of the courtroom, a digital presentation should be covered by the one providing the courtroom. Not much discussion at all occurs to address the issue of the digital presentation. Sounds legitimate to me.

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