Of Counsel

Legal Notes on Georgia and The South

Archive for December, 2007

Missing the Point

Posted by Maggie on December 20, 2007

I’ve been curious to hear how the legislature plans to fix GPDSC so it can scale back costs. Nobody wants to keep getting into a state of financial crisis when PD’s are involved. But the legislative study committee that met yesterday doesn’t seem to have any good ideas. Ideas discussed:

1. Take away the 72-hour requirement that people arrested get a meeting within a certain amount of time. It sounds like this one may have been pushed by a particular circuit. I never had a problem with it since we had daily sweeps of the jail. I don’t see what it’s going to do to affect any budget issues. PD’s know this is part of the job. Usually the problem is more about the jail’s cooperation.

2. Chinese Wall approach to Conflict cases. This issue was much debated in my time as a PD when the conflict offices started getting closed down. Our consensus was that this was completely impracticable. As a PD, your office should be your main support. One of the best perks was being able to go down the hall, poke your head into someone’s office, and run your case by them. Creating a chinese wall would mean you couldn’t even necessarily talk to your boss about a case, you’d be going it totally alone and the client would be getting a lesser standard of care. Conflict offices are the answer, and I don’t know why they keep getting the brunt of the cutbacks. The conflict offices should allow conflict cases to go to salaried attorneys instead of hourly private counsel, which should create a good amount of savings.

3. Make less people eligible for PD’s. They want to eliminate certain misdemeanor defendants and traffic cases. (I don’t know about other offices, but we never had any traffic cases unless they were in Superior Court.) Worse, make people prove they are eligible or conduct more investigations. First of all, making less people eligible will not solve the problems we’re dealing with, especially since those provided counsel generally have fees associated with their sentences that go back to PD’s. Second, more investigations means more money and more staff. Third, more investigations or a higher standard of proof means more time and paperwork that gets in the way of getting representation going. One of the great things about the current system is that someone can walk into court without an attorney and have one in five minutes. We need that.

I don’t see anything useful in any of these proposals. And what really gets me is that no one is doing any investigation on the prosecution side to see how they’re spending their funds. I think that if you’re going to look at these things, you need to examine both sides together. It looks like there are a few people in this committee who are being the voice of reason when someone suggests something stupid. But I also don’t see any answers, which probably means we’ll just keep fighting about it for years to come.

To me, the real answer is for Georgia to step up and be proud of its system and just friggin’ pay for it.

PD’s around Georgia, I’d love to hear any of your suggestions or what you think of the suggestions made by the committee.

Posted in Public Defenders | 1 Comment »

A Tale of Two Jails

Posted by Maggie on December 19, 2007

There was news of issues in two local jails in today’s AJC. It ends up doing a good job of the dichotomy between the more urban areas of Atlanta compared to the somewhat nicer suburbs. The Fulton County Jail continues to be plagued by trouble. They’re already under court order to improve conditions, but this week they had a pipe burst that affectd inmates heavily for 3 days. No running water. No flushing toilets. One inmate reported being in lockdown with raw sewage.

Compare this to the Clayton County Correctional Institution. Apparently the Clayton inmates are somewhat more picky than those in Fulton, actually making demands. And since Monday Night Football moved from basic to cable they haven’t been able to watch it. So the County Commission voted to give the inmates satellite television to keep them happy.

Obviously raw sewage is not a good thing anywhere. And whether inmates should have access to cable is not the kind of issue to really get anybody too upset either way. But it does go to show just how different the playing field can be from one jail or prison to the next.

Posted in General | Leave a Comment »

Confederate Mischief

Posted by Maggie on December 19, 2007

Living in Atlanta, it is sometimes easy the most lasting legacy of the South: racism. You get exposed to it a lot more in other areas. One of the most difficult things is how some continue to cling to confederate pride, you have to figure they know exactly who they’re alienating and they are completely okay with it. I mean, I understand when it’s your ancestry. I come from Southern stock that fought for the confederacy. I find it interesting to go through old letters and documents, but it doesn’t mean I have to agree with all their views.

In Montgomery, Alabama, three teenagers are charged with a felony each after defacing a Confederate memorial. The act took place back in November, when black paint was found on the hands and faces of statutes and the date N.T. 11.11.31 was written at the bottom of the monument. The reference is to the killing of Nat Turner on November 11, 1831, after his attempted rebellion. While I recognize this as a defacement of public property, I also see it as a form of political speech. In Alabama, they don’t quite get it. The Governor’s exact quote: “This was a senseless crime.”

As long as there are people who see such a thing as senseless, we will still have a long way to go.

Posted in The South | 1 Comment »

Get Off the Bus

Posted by Maggie on December 16, 2007

I wrote a few days ago on the lingering effects of a conviction. The fact that one mistake, regardless of its size, can effect every aspect of your life never ceases to amaze me. States all over this country are full of people with criminal records. You probably know someone who has a record but don’t realize it. But governments refuse to treat them normally. They take away their voting privileges and other rights. And now, in Texas, they can’t even get evacuated when a hurricane comes. There will now be criminal background screenings before you get on the evacuation bus.

I was in Texas during Hurricane Rita a few years ago and it was a complete disaster of an evacuation. I don’t see how this will make it better. More than that, I don’t see how it’s possible to conduct a timely background check when people are standing in line to get on a bus. The article doesn’t say this is a response to any incident that’s previously occurred. And given that buses are full of people and people have eyes, it’s not going to be the easiest thing to “vicitmize” a fellow busrider.

This kind of segregation sickens me. It will separate families and put a brand on people. They claim they are after only those with outstanding warrants, sex offenders, and parolees. I’m not sure why they’ve chosen these three groups. If you’re evacuating the jail, what are you going to do with a person with an outstanding warrant? Are local police really going to have time to deal with that in an emergency? My feelings about the prejudices against sex offenders don’t need to be stated again. And why the singling out of parolees versus those on probation? These divisions seem to make little sense. And it still allows all these people to get out of the path of a hurricane on their own without a bus, which still means you may have a lot of people who don’t come back, which was a problem with Rita and Katrina.

Oh, and a legal “expert” checks in at the end of The Houston Chronicle’s story on the issue. A law professor at South Texas claims the public safety needs outweigh privacy concerns. I am still asking what the public safety issue really is. Separate is not equal, and if everyone’s entitled to an evacuation, parolees and sex offenders are, too. I’m wondering when they’ll get their chance to be evacuated and where they’ll be taken. Perhaps they’ll be sent out of harm’s way and locked in a cell until the storm passes. We have no way of knowing, the Texas Department of Emergency Management refuses to give details.

Posted in General | Leave a Comment »

Pleased at Punishment

Posted by Maggie on December 14, 2007

I was looking through some law school classmates’ update notes the other day, telling everybody where they are and what they’re doing. One who’s working as an ADA proudly said he had just received an LWOP (life without parole) sentence in a murder case. Reading these kinds of comments now upsets me. There seems often to be some kind of joy some of them take out of punishing others.

One shining example is David McDade, the Douglas County DA who you may remember as the guy who wanted Genarlow Wilson to rot in prison for 10 years. Up in Douglas County, he just got another death sentence. It is the 15th straight one given when requested by the DA. McDade says he’s “mighty proud” of his county (no joke, exact quote).

Even as a criminal defense attorney, I understand that there are people who commit the kind of crimes heinous enough to warrant some kind of punishment. But I don’t understand why it’s necessary to rejoice when that punishment is as excessive as possible. It seems these DA’s often forget that this punishment, whatever it is, is there for a reason. That in a murder case, someone had to lose their life. I feel like I never hear that kind of thing anymore. I don’t know if it’s the media or the DA’s, but I never hear anyone prosecuting a case say, “I wish this hadn’t happened. I wish I didn’t have to send a person to jail or to death row. But I did my job and the jury did what they thought was best.” We defense attorneys get a lot of crap for being driven by our own need to win regardless of the consequences, but I think it goes both ways. I wouldn’t be surprised if they were throwing a party in the Douglas County DA’s Office today.

Posted in AJC, General | Leave a Comment »

The Legislature Steps Into Nichols

Posted by Maggie on December 14, 2007

Apparently everyone wants to bug me today. First the Georgia Supreme Court, now the legislature. I’d heard the rumblings about having a legislative investigation into the Nichols case. Apparently it’s in full swing. The Committee has requested defense expense requests from Judge Fuller.

Early signs are that it isn’t going to be an impartial or objective investigation, as the committee’s actual mission is to investigate the “poor handling” of funds by Fuller. Fuller has asked the defense and prosecution to respond to the State’s request.

I am one who believes this committee’s actions are counterproductive. Does Fuller even have the ability to proceed with the case while he is under state investigation? If the point is to move things forward, I don’t see what this accomplishes. I also find it somewhat discourteous to request so many documents on a relatively short time frame. (Three legislators signed the letter, all three are white males and two are republican. None seem to have any criminal experience, except one who interned with a DA’s office.)

But Judge Fuller’s response just makes me a bigger member of his fan club. I know there are plenty of PD’s out there who hate his guts. But if I was part of the defense on Nichols’ case, I would want fair treatment and Fuller seems to give it, at least from the view that we get. In his order to the prosecution and defense, he asks several well thought-out questions about how to respond. My favorite is whether he should also include an itemized statement of prosecution funds spent on the case. Personally, I think it’s completely fair to show both sides of the story and I hope they do. The concern over public funds has never seemed to extend to the prosecution, which I would guess has cost the state significantly more. Fuller seems to be taking all this in stride.

Being a Judge allows you to be a tyrant with very few checks on your power. But some of them really seem to take their job and ethics seriously. Thus far, it seems like Judge Fuller is the latter, and I’m pleased about that.

The Committee’s letter is relatively balanced (though it lacks any aforementioned references to prosecution expenses and is copied only to lead counsel instead of sending copies to all the attorneys involved) but I am still very hesitant to put any trust in them. They claim in the letter partly to need these expenses to know how much funding to provide for the remainder of the trial. I hope they really are sincere about that, and that at the very least the legislature will make continued funding of the case a non-issue.

Posted in Nichols, Public Defenders | 1 Comment »

Wussy GA Supreme Court Wavers

Posted by Maggie on December 14, 2007

Last month, the Georgia Supreme Court struck down the sex-offender residency restrictions. Whatever balls they may have had at the time have apparently shrunk, because yesterday they made a change to their opinion. The former ruling said:

We therefore find that OCGA § 42-1-15 (a) is unconstitutional because it permits the regulatory taking of appellant’s property without just and adequate compensation.

The new one changes the word “because” to “to the extent that”. Now the Attorney General thinks that only property owners are affected by the ruling. The Southern Center’s response is, “We disagree with this interpretation and believe that the decision should be interpreted to protect the rights of people who rent as well since the courts in Georgia have made it clear that renters’ property interests are protected by the 5th amendment.”

So much for being at the front of the issue with a clear opinion. Now it is all a big fat muddle as the Court appears to be frantically backpedaling . I’m not even sure I want any further clarification on what they mean. Anyone know of any time something like this has happened before? Let’s hope the federal class action has more success. (And I apologize about calling the court wussy and referencing balls and such, which isn’t a terribly useful or intelligent contribution to the discussion. But I’m rather pissed by the whole situation, so for today you’ll just have to deal.)

Posted in Court Update, General | Leave a Comment »

Identifying the Wrong Man

Posted by Maggie on December 13, 2007

I mentioned earlier this week the exoneration of John White after he was shown by DNA evidence to be innocent of a 1979 rape. As previously reported, there was a “cold hit” from the DNA to another person in Georgia’s database. Turns out it was to James Parham, who was in the same lineup that White was picked out of nearly 30 years ago. It’s an amazing coincidence, since White was the suspect police had their eye on and Parham was used only because he was already in the local jail. Worse, the description the victim gave didn’t even fit Parham. (She wasn’t wearing her glasses. Cliche, but true.)

This information surfaces on the final day of hearings for the House Study Committee on Eyewitness Identification Procedures. Hearings started back in September and they’ve heard from those falsely identified as well as those who made false identifications. White himself was brought to today’s hearing. Law enforcement has argued against regulations. I am very very hopeful that we can take some strong steps forward. Very few states have ventured into this territory and there’s a lot of information out there that needs to be disseminated to the public and the legislatures. A proposed draft of legislation was put out at today’s hearing.

Benefield released drafts of proposed legislation that says, beginning July 1, 2011, all photographic or physical lineups must be conducted by officers who have successfully completed eyewitness ID training. The legislation also says if a law enforcement agency does not have written protocols on eyewitness ID by Jan. 1, 2009, the agency can be denied state funding or state-administered federal funding.

As previously reported, most Georgia law enforcement agencies have little to no eyewitness procedures. And in my experience, they’ll do a “show-up” to a “line-up” any day of the week. (A show up is where police pick up the suspect, drive them to the victim, and keep the suspect in the back of the car, handcuffed, while they ask the victim if this is the guy. Very unbiased, eh?) Maybe this could change that. But even these changes wouldn’t have helped John White. One can only hope that defense attorneys can start getting more experts allowed in cases to testify to the fallacies of eyewitness ID’s.

Posted in AJC, General | Leave a Comment »

Pardon Me

Posted by Maggie on December 13, 2007

Often, I don’t think people really understand criminal convictions. I first learned this when I worked with prison inmates who weren’t US citizens who were discovering for the first time that they’d be deported because of their crime and there was nothing we could do to help. Many of them had lived in the US since they were infants and never really got around to citizenship. Or when people go to pay speeding tickets without realizing the points accumulating until they’re pulled over for driving on a suspended license.

It doesn’t really matter whether they’re people who never expect to have a run-in with law enforcement. People who have family members in jail think of a probation sentence too lightly. People who are in trouble for the first time are just trying to get it over with. But it’s amazing how much of an impact that one small guilty plea can have on your life.

I’m thinking about this because Bush put out his year-end pardons. One is a Georgia man, Daniel Freeman, who got in trouble for making “moonshine” back in 1963. It was a felony, but he didn’t serve any jail time. A lot of things require background checks. And lots of permits have restrictions if there is a criminal history, although many of them are kind enough to give you the benefit of a doubt if it’s been 10 years or more. Not so for Freeman, when FBI and ATF showed up to his pawn shop. He couldn’t buy guns to add to the shop inventory because of the conviction that was more than 40 years old. You can imagine the effect it had on his business.

I wish we lived in the kind of society where old ills are automatically forgiven, especially when it’s the last trouble a person ever encounters. One of the best things I heard in my days as a PD was that no person should be judged on the basis of the worst thing they’ve ever done. I firmly believe that, we all have our weaknesses and errors, and many of us are lucky enough to not have to be punished by the government for those weaknesses. It also speaks to the need to continue with intervention and diversion programs so people can live their lives after that stupid mistake.

Posted in AJC, General | Leave a Comment »

Sweet Little Thing in the Big Bad World

Posted by Maggie on December 12, 2007

I have been called just about every feminine diminuitive possible since I started working in the South. Sweet Little Thing and Hon and Honey Pie and Sweetheart and Cutie and Sugar and plenty of Darlin’. I just have the face for it, I guess. (I can still pass for a college student when I feel like it.) I still haven’t quite decided how I feel about it. I never really minded it from the elderly bailiffs in the rural courthouse I worked in, they always felt like a bunch of sweet old grandfathers. And I was fortunate enough never to be talked to that way by Judges, who were surrounded by plenty of young-ish women in their courtrooms and probably knew better. I’ve also been lucky enough never to encounter it from opposing counsel, but if I did I hope it would be dealt with along these lines.

The short version is that a lawyer during a deposition called opposing counsel “hon” and referenced her “cute little thing going on.” The whole point of a deposition is to get a transcript, so unfortunately for this guy everything was written down. His excuses are somewhat pitiful. He claims, of course, they were said “out of context” and had the nerve to say that he meant “Hun” as in Attila, not “hon” as in honey. He repeatedly called her “girl” and overall seemed to be a big fat jerk. The Judge in the case ordered he be supervised at all future depositions.

But I honestly have to wonder if a male Judge would have taken the same action. (This case involved a female Judge.) I don’t know if some men in our profession would even understand how patronizing it is to call a fellow attorney “girl” as if we were in pigtails. Down here, it’s still very much a boy’s club, especially when it comes to criminal law. Whenever I come to court, I’m usually one of a handful of female attorneys, if there are any others at all. The type of man who calls you “darlin'” and other such things tends to be either old and sweet or middle-aged and misogynistic.

Is this a Southern thing? The case I noted is from New York, so I tend to think not. But I hope most of the female crim attorneys aren’t subjected to this type of thing. And if you are, hopefully you can find some appropriate channel to address it. I’m curious to hear the thoughts of other female attorneys on the matter. Is the Judge’s involement too much? Too little? Is this a more common problem than people think? How much progress are we making?

Posted in General, The South | 2 Comments »