Of Counsel

Legal Notes on Georgia and The South

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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One Response to “Long Overdue Court Update”

  1. Audacity said

    I won’t mention which one (for fear of being outed), but one of those defendants was my first ever case as a lawyer. It was great case, but unfortunately.. I moved on before I got to try it. Nice to see it was left in good hands.

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