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Legal Notes on Georgia and The South

Archive for October, 2007

GA Supreme Court Update

Posted by Maggie on October 31, 2007

I’m finally getting to going through the September and October opinions of the GA Supreme Court on criminal matters.  Cases of note:

Jones v. State, S07A0573.  The issue Jones prevails on her is a Motion to Suppress for a search of his home.  Jones was on probation (but this decision won’t apply to those cases where a 4th amendment waiver is part of sentencing), police had an arrest warrant but not a search warrant.  They searched the home for 45 minutes.  No exigent circumstances. Jones has already pled guilty to murder charges, but sentencing is still pending.  Case is remanded.

State v. Pye and State v. Chambers, S07A0689, S07A0894.  Pye and Chambers were co-defendants in a murder case.  The victim had stolen property of Pye’s.  Pye came in voluntarily to discuss the theft after the items were recovered upon the victim’s death.  During his discussion with police, officers interrogated him regarding murdering the victim, got a statement, gave Miranda, took another statement.  After Pye’s statement implicated Chambers, officers cuffed Chambers, took him to the police station, interrogated him without Miranda, gave Miranda, then interrogated again.  The Court finds that Missouri v. Seibert is on point and that the only statements that could be allowed in were Pye’s voluntary statements before he was asked about the murder. 

Lyons v. State, S07A1061.  A little note in a mostly unnoteworthy opinion.  False confession experts still don’t seem to have enough scientific certainty to be allowed.  Shame. 

Roberts v. State, S07A0600.  Another note while I was reading a run-of-the-mill opinion.  There’s a Batson issue brought up on appeal and sadly there is Georgia caselaw allowing a race-neutral reason for a strike to be that they are single and unemployed.  Why?  The prosecutor said that meant they didn’t have enough ties to the community to be concerned about law enforcement.  WTF?  What it usually means is that they’re discriminating on the basis of class rather than race.  Which is so much better.

Nguyen v. State, S07A0678.  Nguyen filed a habeas after a municipal court gave her a $200 fine.  The lower court threw it out for procedural reasons and because a fine wasn’t enough to trigger habeas, Supreme Court sent it back saying $200 is enough for habeas.

Walker v. State, S07P0687.  A death penalty review, I’ll have to check their appendix to see if they learned anything from the AJC expose.

Jackson v. State, S07A0824.  The dissent makes a very good point here.  Most of the issues on appeal are regarding improper comment by the prosecution.  The majority minimizes it, but the dissent shows just how bad it was.  Unfortunately, since no objection was made at trial, it’s under ineffective assistance review which is difficult.  Read through the dissent for transcript tidbits and be ready to object next time you hear something like it.  Too bad this one was 4-3.

Taylor v. State, S07A0979.  The Court says it’s totally okay to be found not guilty by reason of insanity for one crime (agg assault) but guilty of another (murder) even though they were contemporaneous actions.

State v. Hemdani, S07A1560.  An example of what it takes for habeas challenging the knowingness and voluntariness of a guilty plea.


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Posted by Maggie on October 31, 2007

I’ve been linked to recently by apublicdefender, audacity, atypicaljoe, and legalblogwatch. It’s always nice to get out there in the blawgosphere. My google search hits are often bizarre, like “craigslist meth” and such. The joys of blogging about criminal defense. I have also been linked to in a message in a private online group for Circuit Public Defenders in Georgia. I can’t see the message and don’t know what’s in it, but I can’t help be curious if they’ve linked to one of my GPDSC rants or are trying to sniff out my identity. But either way I’m happy they’re here. Please, PD’s from anywhere and everywhere, feel free to read and comment. I’d love to hear from more of you.

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Court Update

Posted by Maggie on October 31, 2007

Again, I’m only going to cover Court of Appeals decisions this time, until I can catch up on the Supreme Court.  Decisions of Note:

Velasquez v. State, A07A1250.  The appeal is a loser for the defendant, but it lays out the rule of law for roadblocks if you don’t know it.

Evans v. State, A07A1080.  Another loser, but a thorough analysis of a drug trafficking case with two parties.  You know that whole but-it’s-not-my-car case where one claims they had nothing to do with it and testifies against the other.  Court gives the rule on whether this is accomplice testimony and generally considers the issue.

Merritt v. State, A07A0947.  When your client is charged with DUI-related crimes of a serious nature, make sure your client doesn’t screw himself on the medical intake form at the jail by disclosing that he drank a half gallon of vodka.  Court says this gets in as a routine administrative form not subject to Miranda.  The Court’s “concern” about having such a question on a form for DUI defendants still isn’t enough to overturn.

Smith v. State, A07A0866.  Motion to Suppress granted.  Officers had a tip on defendant’s boyfriend manufacturing meth.  Officer sees defendant driving down the road and follows her since he’s heard “rumors” that she’s involved in meth.  She stops in front of a locked gate, officers pull up behind her, three officers go up to the car.  An officer opens her door and instructs her to step out of the car.  This is enough to create an unlawful detention. 

English v. State, A07A1351.  Another case on the value prong in felony theft cases.  Make sure they bring the right evidence or you’ve got yourself an automatic misdemeanor.  Another noteworthy issue.  English was, unfortunately, a PD in Georgia.  The Georgia PD Chief had discussions with English after charges were brought to determine whether English would be fired.  English violated the first rule of being a defendant–don’t talk to anyone. about your case.  He discussed details with the Chief after the Chief specified this was not a privileged conversation, and those details were used to impeach him at trial. 

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A Lot Going Down in New Orleans

Posted by Maggie on October 31, 2007

The District Attorney for New Orleans has stepped down. The linked story in the Times-Picayune gives thorough coverage (unlike the AP wire, which gives hardly a detail). DA Eddie Jordan, after taking office, fired 56 employees, 53 of whom were white, and replaced them with 92% blacks. Jordan was found liable in a wrongful termination suit for $3.7 million. It’s unclear who will foot the bill, the city and the state have refused to step in.

New Orleans PD Do Not Pass Geaux is pleased with the resignation. No word from the blogs or anywhere else yet on how this will affect the already rough caseloads in Orleans Parish.

Also, a Louisiana Judge found a portion of their online sex solicitation law unconstitutional. For “computer-aided” solicitation of a minor, there is a consent defense if the person chatting is over 16. But the consent defense is out if the person chatting is a police officer. An interesting ruling that I’m sure will be appealed. I’m curious to see if other states follow suit.

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Athens Jail Overcrowded

Posted by Maggie on October 29, 2007

Clarke County–home of Athens, GA and the victorious Dawgs–has a problem. They’re currently spending over a million dollars to loan out inmates that can’t fit in the county jail. The problem isn’t necessarily even high crime. The Athens Banner-Herald is reporting that 72% of the inmates are awaiting bond or a hearing. Meaning they don’t have bond or they can’t make bond.

I’ve been reading Gideon’s following of the overcrowding issue going on in Connecticut right now. Shockingly, the Sheriff doesn’t want to lock up more people. He actually suggested the police quit arresting people for minor offenses and just issue citations. The police chief’s reaction:

“I can’t tell my officers not to arrest that rapist, not to arrest that burglar,” Lumpkin said.

To be fair, Lumpkin also said that when they’re dealing with rowdy crowds they’re more likely to arrest to break things up. But I doubt “rowdy crowds” make up such a large proportion of jails. Many cops I’ve dealt with are more than happy to lock up a guy he knows won’t make bail.

It isn’t clear whether the County is going to go along with the Sheriff’s suggestion. The jail isn’t projected to be able to keep up over the years, but a new jail means more money. Hopefully all the PD’s in Clarke County are fighting hard for bail.

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I’ll Get to It

Posted by Maggie on October 26, 2007

No, I’m not ignoring the hugely misguided move by the legislature to set up a legislative committee to potentially impeach Judge Fuller in the Nichols case. Instead of stepping up to bat to address the issue in a rational way, they’re out to discredit the Judge. If you want to know more, see this surprisingly thorough article in the AJC on the subject.

I am going to cover this but I’m sending out feelers about the outside Judge being brought in on the upcoming contempt hearing and I’ll cover both issues in more depth when I feel a little better informed.

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Breaking News–Wilson Habeas Granted

Posted by Maggie on October 26, 2007

The Georgia Supreme Court this morning has ruled in favor of Genarlow Wilson. For those who may not remember, Wilson was convicted of Aggravated Child Molestation after a fifteen-year-old girl willingly performed oral sex on him when he was seventeen. He was given a mandatory ten-year sentence. Georgia later changed the law to allow willing conduct between teenagers without a significant age difference just a misdemeanor.

The opinion agrees that the sentence is cruel and unusual punishment. This was a huge uphill battle and the Court seems to be pretty fully persuaded and from my quick perusal they seem to do a good analysis. Specifically, they distinguish Widner, a similar case that just went before the Court and that many thought would control. Widner’s conduct would not have been addressed by the amended law because he was 4 years older than the other teen. The Court’s basic message is that changes through the legislature are supposed to show changing attitudes in society. They don’t make the statute retroactive, though. Dissenting justices argued that since the statute wasn’t retroactive, this was going against the legislature.

They’ve sent the case back down to the trial court with an order to set aside Wilson’s sentence and release him. No word yet on when he’ll be out. But since the lower court judge in this case was the one whose order to release got appealed in the first place, I’m guessing it’ll be quick.

As for me, I had serious doubts as to whether they could win on a Cruel & Unusual Punishment argument, but I always hoped they would. Congrats to the legal team.

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Long Overdue Court Update

Posted by Maggie on October 25, 2007

I’m just going to cover cases of note for the last month in the Court of Appeals. There’s a wealth of interesting cases.

Chestnut v. State, A07A1409. The defendant was convicted of incest for having sex with his niece. Thing is, she wasn’t his biological niece. His brother wasn’t the actual father of the child, but never challenged paternity. So this poor dude gets an incest conviction when THERE WASN’T ANY INCEST simply because his brother was her “legal” guardian. And the appeals court is totally okay with that.

Gibbs v. State, A07A1433. A rare finding of ineffective assistance, but it seems merited. Defendant was charged in a child molestation case. The alleged victim’s Guardian ad Litem WAS DEFENDANT’S COUNSEL. (Sorry for using all caps again, but come on! How did they not see a conflict there!?) Worse, defendant told counsel that the victim had previously made false allegations against others, but counsel incorrectly said that would be inadmissible evidence under rape shield laws and did no investigation. (At the Motion for New Trial, counsel testified he was “pretty sure” this was the case because that’s what he’d always heard.) The appellate court also takes a shot at the prosecutor, who admitted at the Motion hearing that she routinely asked objectionable questions to get in inadmissible evidence because she thought the jury would still consider it in spite of the judge’s admonition otherwise and that she considered this a “trial tactic.” Scary, but sadly common.

State v. Carr, A07A1394. After the defendant completed an assigned course after a nolo plea, the judge dismissed the accusation without telling the State or conducting a sentencing hearing. Appellate Court says no go, that this interferes with the State’s right to prosecute.

State v. King, A07A1385, A07A1386. Another case to use to challenge baseless pat-downs of visitors.

Harrelson v. State, A07A1465. Remember, they have to read implied consent warnings before giving a test, otherwise the test is out.

McGee v. State, A07A1589. Judge can’t order a mistrial after the jury has been impaneled just because there’s no available courtroom.

Rivers v. State, A07A1078. Defendant was arrested for domestic violence. Girlfriend says Defendant put drugs in the yard earlier that day. But instead of getting a warrant, officers get the drug dog to search the yard. Court held illegal search as a warrant is required to search curtilage. You can’t just call it a free-air sniff and make it okay.

McGuire v. State, A07A0841. Juror failed to ever answer positively that she could follow jury instructions regarding burden of proof. Judge erred in not striking juror for cause. Take a look at her evasive answers. Looks like some helpful law.

Evans v. State, A07A1346. This case addresses a common problem for PD’s: the client who wants to get rid of you. Here the Judge allowed a potentially deficient and certainly uninformed defendant to represent himself. (A clue that this was a bad idea: defendant wanted to get rid of his counsel because he was convinced they were conspiring against him with the DA.) It’s clear to the appellate court that the defendant didn’t understand enough law to adequately defend himself and explains why thoroughly. A good case to use if you’re trying to keep your client from shooting themselves in the foot.

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Local PD Arrested

Posted by Maggie on October 24, 2007

It seems that Georgia has been plagued by cops getting arrested for pretty serious crimes these last few months. Now we’ve got a public defender in Clayton County (just south of Atlanta) arrested is facing felony and misdemeanor charges after having sexual conversations online with a 16-year-old. Channel 11 and Channel 2 have picked up the story, but the other local news stations and the AJC haven’t posted anything yet. The article says the attorney works for the Clayton County Indigent Defense Fund. Clayton County’s website shows an Indigent Defense group and a Circuit Public Defender. (For those who may not know, Georgia’s state system is divided into circuits.) I can’t tell exactly how the two groups work together, except that the Indigent Defense Group seems to be a panel of private attorneys while the Circuit office is the state-based PD’s office.

Sorry to see more bad news for PD’s in Georgia.

Posted in General, Public Defenders | 1 Comment »

Eyewitness Hearings Continue

Posted by Maggie on October 23, 2007

I was scouring the net for a follow-up on yesterday’s third session in the Eyewitness ID Hearings in the legislature. I had the second set of hearings here and the first here.

I couldn’t find coverage anywhere except for a brief blurb on the radio yesterday (with no link on the website) and a story in the Daily Report today. It’s a shame because it seems like they had good testimony from Barry Scheck and the New York-based Innocence Project regarding wrongful convictions and lawsuits. They also heard from Jennifer Thompson-Cannino, a rape victim who misidentified her rapist and sent the wrong man to prison for 11 years. Her story is a powerful one and it could use more attention.

The final hearing is November 5 with a planning session to follow on November 19.

Posted in General, The South | 1 Comment »