Of Counsel

Legal Notes on Georgia and The South

Archive for September, 2007

Being a Frat Boy Okay Until Someone Dies

Posted by Maggie on September 21, 2007

Whenever something really bad happens, even if no one’s to blame, expect charges to be filed. Just so someone feels better. A good example, this case in South Carolina, where a guy drove home from a party drunk with a blood alcohol of 0.267, crashed his car, and died.

Who’s being charged? Well, the first thing you’d guess is whoever supplied the liquor, especially since the guy was under 21. Or who let the guy drive home drunk. (There is one charge of supplying alcohol to a minor, but it’s just one charge out of 5 filed.)

4 other party attenders have been charged with assault and battery. Why? Because they pulled a classic prank: wrote on the guy in marker while he slept.

Another example of justice served. Had the guy not died, had he killed someone else in the accident, we would never care about a stupid prank. Ignore the fact this guy had alcohol and prescription drugs in the car. Let’s go after the real perpetrators.

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Follow-Up on Lasamuel Gamble

Posted by Maggie on September 20, 2007

I continue to get people finding the blawg through searches for Lasamuel Gamble, Troy King, or Robbie Owens. My original post is here. Short recap: Gamble was convicted along with a co-defendant of murder. The co-defendant is the one who pulled the trigger, Gamble is the driver, both get the death penalty, then the co-d loses it after Roper v. Simmons. The DA, Owens, then says Gamble shouldn’t be killed when the guy who actually did the killing won’t die. King, the Alabama Attorney General, then pulled Owens off the case and said nasty things about him.

I was curious as to how the case was going and found this article from the Birmingham News which reveals that 41 of the 42 DA’s in the state complained and asked for an apology, noting King’s lack of prosecutorial experience. King doesn’t seem to care, and says more rather harsh things about Alabama DA’s. His point is that he disagrees about the proper punishment, but he could be a little more tactful.

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The Sentencing Project Tackles the War on Drugs

Posted by Maggie on September 20, 2007

Thanks to Sentencing Law & Policy for posting the Sentencing Project’s new report on the War on Drugs.

I’ll bullet point conclusions of the full paper.

  • TWOD has diverted law enforcement resources away from other crime problems. (In Florida they even found that for every drug arrest, there was an increase in serious crime.)
  • Asset forfeiture threatens civil liberties and wastes law enforcement.  (80% of assets in one study didn’t lead to a conviction.)
  • Drug convictions account for a huge portion of inmates in federal, state, and local jails and prisons.
  • Most convicted of federal drug crimes aren’t actually high-level dealers even though that’s who the laws are supposed to target.
  • Most convicted of state drug crimes who are imprisoned have a minor criminal history that should make them eligible for diversion.
  • A larger portion of women in prison than men are there for drugs.  This prohibits them from getting welfare to support their children after release.
  • The number of prisoners convicted of drug-related crime has increased, but the number of prisoners treated for drugs has decreased.
  • Putting money into treatment programs instead of mandatory sentencing would have a dramatic impact on drug use.
  • Blacks are unfairly targeted by drug laws.  They make up 14% of drug users but they are 56% of drug convictions in state prison.

Their recommendations are unsurprising.  Do away with mandatory minimums.  Re-allocate funding away from enforcement programs to treatment and preventive programs.  Address the crack/powder disparity.  Focus on helping communities. 

As usual, the Sentencing Project does a great, thorough job.

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The Jena 6

Posted by Maggie on September 19, 2007

The Jena 6 have been all over the web today. There’s even a spread in the NY Times. I heard a thoughtful story on NPR a couple months ago that was actually one of the things that got me started thinking about a blawg.

The current stories try to take a complex case and make it quickly digestible. The NPR story takes a much broader view and also lays out a timeline of events. (There’s a new story today that I haven’t been able to listen to yet.)

As far as actual facts for the recent happenings, it appears there has been one conviction, of Mychal Bell. Both his charges have been thrown out. However, the Louisiana Court of Appeals won’t yet consider a motion to release Bell. The DA has not yet revealed whether he will refile charges. There are numerous other fights without charges having been brought. And a school building has been burned down, but no charges there either.

It’s obvious there are a lot of issues to be dealt with. Marches are expected tomorrow. I’m glad it’s not too late to do something to make sure all the kids involved are treated fairly.

Update:  This morning on CNN I saw the DA in the case at a press conference.  He claimed the case is not nor has ever been “about race.”  To me that’s a sign that they’re on the defensive instead of trying to make peace.  I hope today’s rally is peaceful and that progress can be made.

Posted in General, The South | 1 Comment »

More on Monday’s Nichols Hearing

Posted by Maggie on September 19, 2007

The Daily Report has a thorough write-up of Monday’s Nichols hearing. They make it clear that Mack Crawford DID show up, contrary to my previous post. He was there with Cindy Wang, GPDSC’s GC, and it appears that both have been made special assistant attorney generals for the purpose of representing GPDSC regarding funding matters in the Nichols case. They tried to argue that a bill passed this year requires Nichols to have only two attorneys and limits fees to $95 per hour. Of course, there’s nothing about retroactivity in the bill.

This limitation is troubling. Consider the staff involved in the Nichols case. 5 Senior ADA’s. Input from the District Attorney. Local, state, and federal law enforcement. How are two defense attorneys supposed to fairly combat all that power?

Even more troubling, of course, is GPDSC continuing to take a stance that harms defendants instead of helps them.

Another aspect I haven’t discussed before is how annoying this whole case is to everyday PD’s. They don’t have the resources to try even minor cases as effectively as they’d like. They are often unable to adequately investigate or hire experts due to funding and staff constraints. While they all want Nichols to get a fair defense, it has a tendency to overshadow just how unfair it all is for the thousands of other defendants who don’t get any attention. I haven’t yet heard anything positive from GPDSC about making efforts to obtain sufficient funds for ALL defendants.

Also sad is this comment by an ADA on the case: “Several times, we’ve heard, ‘We need more money because of the extraordinary nature of this case,'” said Quinn. “The only thing extraordinary is the amount of direct evidence.” To me it seems elementary that an extraordinary amount of evidence means an extraordinary amount of review and attempts to respond. I would hope prosecutors would support efforts to obtain an adequate defense, because you know it’s going to be the primary issue should there be an appeal.

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The Problem with Charging Children with Sex Offenses

Posted by Maggie on September 19, 2007

No, this isn’t from the South, but I just couldn’t pass up how troubling this whole scenario is.

The Associated Press is reporting that two boys, aged 9 and 11, are being charged with criminal sexual conduct and gross indecency in Michigan. It’s alleged the two boys forced a 7-year-old to perform oral sex on them on a school bus. While these two have been charged, what’s worse is that the 7-year-old later performed oral sex on his younger brother, which led to the outcry.

So you have a group of young boys, most likely too young to understand what they’re doing, all 3 have been involved in oral sex and only two are charged. I’m sure prosecutors thought the 7-year-old was the victim, and thus didn’t charge him with acts against his brother. However, it’s most likely that the other boys have been in a similar situation leading to their acting out.

The prosecutor claims they will conduct an investigation to see if this is predatory or experimental behavior. Sadly, they’ve filed charges before this investigation is complete. This must make things even more difficult for the families involved.

I defended a case once where a few boys “pantsed” another boy and were charged with attempted child molestation. Some effort needs to be made to better understand these “crimes” when committed by such young children.

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Court Update

Posted by Maggie on September 18, 2007

Convictions Affirmed: 7

Other:
1 Conviction Vacated, 4 Remaining Convictions Affirmed.

Nichols v. State, A07A0865. In an Agg. Child Molestation trial, the prosecution introduced evidence of prior incidents involving kissing and touching between the defendant and the victim from two years before the incident on trial. No prior notice given to defense counsel for a similar transaction. But the Court lets it in as “prior difficulties.” Unfortunately, that is not the issue on appeal. Defense counsel didn’t object, and the Appeals Court says that this isn’t ineffective assistance. There was a Motion for New Trial but it’s unclear whether the similar transaction issue was ever appealed.

Cail v. State, A07A1332. Motion for New Trial filed in 1995. Not ruled on until 2007, when an amended motion was filed. Appellate court finds that since they don’t agree with any of the grounds in the delay, there’s no prejudice. I’d argue that the passing of time may have affected appellate’s counsel’s ability to investigate all potential grounds for appeal.

Pitts v. State, A07A1242. A juror lived on the same street where the victim was dumped and flagged down help. He drove past that location all the time and thought about the incident regularly. Juror says “it would be hard” to be fair, then turns around and says he can, etc. Judge rehabilitates juror with one question and seats him. Appellate Court upholds. (I understand the need not to interrogate jurors, but after how much this guy went back and forth, I hate to see it all come down to one question from the Judge.)

Johnson v. State, A07A1288. Make sure you throw an objection in there! When the prosecutor asked leading questions to an accomplice who did not want to testify, counsel merely said, “I guess I’m trying to wonder where [the prosecutor] is going. The witness says he doesn’t want to testify so is he trying to . . . impeach[] him or what is he doing[?] I don’t know.” Appellate Court finds no error preserved.

In the Interest of B.R., A07A1577. No venue was established by testimony. However, Court finds because officers gave their employment as Liberty County and the Court must assume they were properly exercising their duties, venue is now established. Don’t like this precedent at all.

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I’m Sorry, I Couldn’t Help Posting This

Posted by Maggie on September 18, 2007

What do you do in a fight when you have no arms? Use your head!

(Seriously, though, several questions spring to mind. How do you get in a fist fight with an armless man? More importantly, how do you LOSE a fist fight with an armless man?)

Update: Turns out the victim died of a heart attack. Looks like there won’t be any charges filed, and it’s a good thing because I’d already been thinking of multiple defenses.

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Nichols Follow-Up

Posted by Maggie on September 18, 2007

According to the AJC, there was quite a hearing yesterday in the Nichols case. Although they reported yesterday that new GPDSC head Mack Crawford would be in attendance, it appears he was not. Instead the only GPDSC rep mentioned is Cindy Wang (she’s written up as Cindy Lang in the article, but the GPDSC website has a Cindy Wang listed as general counsel).

The positions were what you’d expect. GPDSC won’t pay any more. Fulton County won’t pay anything. The Prosecutors want to go to trial right now.

Sounds like defense counsel put on an awesome show:

During a two-hour presentation with three large video screens, the defense attorneys showed that similar high-profile death penalty defendants, including Centennial Olympic Park bomber Eric Robert Rudolph, had more resources to get ready for trial. Rudolph’s attorneys in Atlanta and in Birmingham, where Rudolph was accused of bombing an abortion clinic, received more than $5.3 million to defend their death penalty client, who pleaded guilty before trial in exchange for a life sentence.

Nichols’ case is also notorious and complex, and therefore costly, his attorneys said.

The March 2005 case involves 11 crime scenes and four homicides, plus hostages in two counties and car-jacking victims, Hill pointed out.

Prosecutors have 400 witnesses lined up, while Nichols’ attorneys have nearly 100. The case is further complicated by a recent motion by Nichols’ attorneys that they plan to use a mental illness defense.

Defense attorneys, who have already spent more than $1.2 million defending Nichols, pointed to projections that prosecutors are expected to spend close to $4 million. Hill said prosecutors continue to drive up the cost of the trial by interviewing more witnesses, whom the defense must then interview.

Fulton County Commissioner Bill Edwards questioned why Nichols needs more than two attorneys and this is exactly why. Four hundred prosecution witnesses. And I’m glad to see them reminding everyone that the prosecution has gone even more money crazy and they’re probably all salaried staff.

It bothers me that defense counsel keeps getting picked on. The reason the costs going up is the way prosecutors have chosen to make their case. It’s not just the death penalty, it’s things like a 400-name witness list. Why that doesn’t start making people question is beyond me. I understand the need to be thorough, but I don’t understand why the prosecution couldn’t lay out their case much more simply. Instead it looks like tactics to make the defense’s job more difficult instead of concentrating on a conviction.

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Legal News of Note

Posted by Maggie on September 17, 2007

More motions in the Brian Nichols case today. GPDSC has filed motions to lower defense counsel’s pay rates. Prosecutors have also filed motions. One requests that defense counsel and GPDSC be ordered to stop talking about the cost of the case. Another wants the defense to set out a budget of anticipated costs for the remainder of the case. Update: According to Nichols’ attorneys filed a motion yesterday saying the state has no money to pay them, thus the death penalty should be taken off the table. Looks like yet again the GPDSC and the client are at odds. I’ll update again when we hear the outcome.

I suppose prosecutors feel like the Nichols case is being used to draw attention to the negative effects of the death penalty. But I think it’s certainly a big issue. And just shutting their mouths won’t do much. Most of the talk has come from outside GPDSC. It also seems like setting an anticipated budget may be a near impossibility with the craziness that comes with a trial.

Also, Channel 11 News will be following up on the realtor murder case from Cobb County that’s been transferred down to Glynn County in Southeast Georgia. Jury selection started last week and trial is expected to begin today. Glad to see we’ve got one media outlet on it since the others don’t seem to be paying attention.

Also a follow-up on the Piedmont Circuit DA’s Office which recently lost their boss to criminal charges, got a new one, and now is having a big turnover problem. Worse, the new DA forced 3 office members to resign though they’d all been cleared of any wrongdoing. One ADA who voluntarily resigned wrote in his resignation letter:

Mr. Bridgeman took these actions within hours of being sworn into his new role and clearly made these decisions without proper due diligence and without any consideration of how these changes would impact both the morale of the office and the ability of the remaining staff to do their jobs effectively just 10 days before a trial week in which 71 cases were to be prosecuted[.]

The DA’s office comments that it’s already hired one replacement. This of course ignores the fact that the three forced out had 50 years experience between them. Unlikely they’ll get anything more than new grads.

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