Of Counsel

Legal Notes on Georgia and The South

Archive for January, 2008

Florida Voting

Posted by Maggie on January 31, 2008

I generally try to keep politics off this blog, Lord knows there are enough political blogs out there these days. But the Georgia Voter ID Law is firmly straddling law and politics so it can bring political issues into play. The issue of Voter ID laws hasn’t yet been decided by the Supreme Court, and there are arguments about disenfranchisement and voter fraud. But what concerns me is something very common that isn’t being discussed in this debate. Likely more harmful than any of these issues is the problem with uninformed and unprepared poll workers.

The Orlando Sentinel reports on a host of problems at polling places in Florida’s primary. Democrats told there was no democratic primary. Voters given the wrong kind of ballot. And these are just the people whose stories were noticed. Most people have had their fair share of problems with a polling location. The fact that we’re still running into it after the chaos of the 2000 elections is stunning and saddening.

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Posted in General, The South | 2 Comments »

Stop the Presses!

Posted by Maggie on January 31, 2008

Is it wrong that I want to take Jeffrey Toobin and shake him? I thought when I wrote my last entry (though I didn’t expound on the thought) that it seemed bizarre for someone to put a statement like that in an article, whether it was true or not. Anyway, the damage is done and Fuller has recused himself. If the Nichols case was a Grisham novel, Toobin would have been secretly manipulated into putting in the quote by the legislative committee trying to impeach Fuller or the DA trying to recuse him. I certainly hope nothing that malevolent is at stake, but it seems like a rather reckless thing to do for Toobin in printing that statement.

Toobin’s a lawyer, he knows that judicial bias can be a legitimate problem. You’d think he would realize what an inflammatory comment he was printing. Then again, can I blame him for printing it if it was a true statement made on the record? Isn’t legitimate journalism about exposing these types of issues? But then I immediately counter myself by admitting that I doubt there’s more than a handful of people in the country, not to mention the state of Georgia, who think Nichols didn’t do it. It’s kind of hard when we all watched the case unfold on CNN.

So I’m conflicted. I’m mad but not really mad at Jeffrey Toobin. I’m mad but not really mad at Judge Fuller. Mostly I’m furious that this case is now going back to square one. Or at least, it might.

Two possibilities are here. 1) A new judge is appointed, they bow to legislative and public pressure and start the trial. Any verdict against Nichols is immediately appealed and has a good shot of winning. 2) A new judge is appointed, they take the time to review the file, re-hear motions, and the whole thing takes another couple years before it reaches the end.

I prefer the second option, but I don’t like it. The whole thing is starting to feel unreal, thus my earlier Grisham reference. In fact, if this was an episode of Law & Order, it would end with someone killing Nichols before he got to trial. And at this point, I wouldn’t be surprised if that happened.

It’s strange that the Nichols case is the main thing that keeps my blog going, especially when news is slow. Looks like I may be able to lean on it for quite some time to come.

As a final note, I think Judge Fuller’s decision to step down is yet another sign that he’s doing his best to try the case fairly. http://www.dailyreportonline.com/Editorial/News/singleEdit.asp?individual_SQL=1%2F31%2F2008%4020980″>The Daily Report’s coverage shows his decision in a much more personal light. I’m very upset that he’s off the case. I’m now dreading the possibilities of what will happen when someone else comes on. I worry that this one little thing may be the undoing of everything that all the attorneys on the case, from beginning to end on both sides, have worked so hard to achieve–a trial. And hopefully a fair one.

Update: The AJC is now running a story where Toobin claims that it never occurred to him that the article would have this effect. I guess my conclusion that the remark was printed out of a journalistic striving for truth wasn’t correct. To be honest, I didn’t really notice it on my first read-through, but as soon as I was alerted to the remark, the potential problem of it was there. Why Toobin, as the author of the article and an attorney, didn’t see this is beyond me.

Posted in AJC, General, Nichols | Leave a Comment »

Today’s Nichols Update

Posted by Maggie on January 29, 2008

So, were you thinking things were calming down a little bit? The only news the last few days has been people talking about the Nichols case. Well, apparently that’s enough to get things going.

Seems like Judge Fuller and Jeffrey Toobin have a disagreement about some of his comments in that New Yorker story. Fuller says he had asked for no direct quotes, and that a comment on Nichols being guilty of the allegations was off the record. Toobin says no.

My big shock at the story is that the AJC has dug up a bunch of local attorneys to comment on the issue. (Instead of only talking to prosecutors, as I’ve recently criticized the Daily Report for doing.) Some think it’s a big problem and possibly appealable, others think it’s more smoke than fire. I’m not really sure what to think. But there’s another person on board the right train of thought at the end of the article, the president-elect of NACDL, John Wesley Hall, Jr.

Hall said criticism should be directed at state lawmakers for not fully funding Nichols’ defense, not against Fuller. “It’s petty politics to try to impeach him for trying to make the state do its job,” he said.

If only the Georgia defense system would come out with such a statement. By not doing so, I think it puts itself firmly in the “petty politics” camp.

Off topic, if you were feeling good today? Perhaps you didn’t notice the Georgia legislature sent through the revamped sex-offender law. (If by revamped you mean pretty much as bad as the old one.) The vote was 141-29. At least there are a couple dozen legislators who understand the issue.

Posted in AJC, General, Nichols, The South | Leave a Comment »

Legal Thrillers Lead the Way

Posted by Maggie on January 29, 2008

Lawyers either love legal thrillers or loathe them. (Same with Law & Order. Watched it in law school–often throwing in my own objections–but rarely since I started practicing.) I admit I’m susceptible to a quick read now and then, especially on an airplane. But I’ve been staunchly anti-Grisham for the last several years. His latest works are mostly not legal, but the ones that have been are rather dismal. (And I tend to prefer Steve Martini, partly because his courtroom stuff is usually pretty on.) Legal thrillers in general are pretty wretched these days, and mostly written by former prosecutors and tend to be about prosecutors and cops, which isn’t as fun when you’re a defense attorney.

However, the word on the street is that Grisham’s new novel is quite good. And it’s a pretty scathing attack on the idea of elected judges. Set in Mississippi (I know Grisham is a southerner, but he certainly does a good job of prolonging the idea of political corruption in the South), it focuses on the idea of rigging judicial elections to favor certain interests. I’ll probably getting around to reading it at some point, but I found myself wondering if this will throw the judicial election issue into the public eye. It’s the kind of issue that needs to be examined with more clarity and there’s nothing like popular outcry and concern to do that. Popular fiction has done it before, and despite any of my personal tastes, I’m hoping Grisham can get this issue out in the open.

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An Excellent Nichols Rundown

Posted by Maggie on January 28, 2008

StandDown today posted a link to a lengthy article in the New Yorker on the Nichols case. It gives a good history and a look at where we are today. It actually makes me drool because being Jeffrey Toobin–you know, the guy who wrote the bestseller on the Supreme Court that’s still at #13 on the list despite being out for 15 weeks–he actually has quotes from people. People who are witnesses of the crimes, Stephen Bright, even Judge Fuller! It’s enough to make me start considering doing some source-hunting. While I always try to be up to date on the Nichols case, I am basically at the mercy of the news media, and I’m not always that confident in them.

One thing you shouldn’t look for is answers. Toobin doesn’t really point any fingers or offer any solutions. It’s a narrative more than anything. Then again, how can you solve a problem this big when everyone seems to want to make it worse? (Also scary–Florida caps death penalty defense fees at $15,000. Now that I’m in the private sector, I realize that a lot trials end up costing more than that. Death penalty for $15k? What kind of lawyer is going to agree to that? And what does that mean for a defendant?)

One thing that troubled me, though. The sole quote from GPDSC in the story is from their new head, Mack Crawford. Here he is, the man who represents criminal defense in Georgia and he’s not talking about representation or the Constitution or Wainwright or moving forward with the legislature or any of that stuff. He’s talking about money and the taxpayers. Maybe it’s just me, but I assumed his biggest loyalties would be to the clients who are represented all over Georgia by his agency, whether they’re guilty or innocent. Instead he seems to be more worried about the political machine and the response of the public. We don’t live in a world–especially not a state–that appreciates or values public defense. And if he only tries to please the public, I don’t see how it can help the Agency accomplish their mission. I worry that money is all they’re talking about lately. I’ve said it before, and I’ll say it again. Someone in there needs to make a stand. GPDSC should be saying the things we’re hearing from Stephen Bright, they should be proud of their mission and work hard to fulfill it.

Posted in General, Nichols, Public Defenders | 1 Comment »

The Right to Keep Your Lawyer

Posted by Maggie on January 28, 2008

In the recent discussions of Nichols, a few other troubling cases have come to light. One is back in the spotlight. It’s another death penalty case, this one in Pike County, where appointed attorneys weren’t getting paid and the case was potentially going to be put on hold. So the DA asked the Judge to remove those attorneys and bring in the local PD. Sounds good to the Judge, and he grants the motion. It ignores a lot of things. Like the fact that local PD’s are no longer equipped to handle death penalty cases. They already have a caseload that’s difficult to manage. And now they’re getting thrown in to a case that is approaching the trial stage.

Now a Motion has been filed with the Georgia Supreme Court, asking them to put previous counsel back in place. It seems the motion was filed by Stephen Bright, Ed Garland, and Don Samuel; prestigious members of the bar who are stepping in to do their part. They’re not the private attorneys on the case or the PD’s who’ve now been thrown in.

Technically, the appeal of this decision has already been denied without being heard. So this is most likely a Motion for Reconsideration. Those aren’t the easiest things to get granted, but it’d be nice to actually have the Court apply their precedent in this kind of situation. And it’d be a good standard to set for Nichols as well.

Posted in AJC, General, Nichols, Public Defenders, The South | Leave a Comment »

Stephen Bright Has His Say

Posted by Maggie on January 24, 2008

As you may have noticed if you keep track of the blog, I am quite concerned about the way GPDSC is handling pretty much everything these days. Sometimes I just go off, other times I try to give them a benefit of a doubt since I can’t see their inner workings. Often I just don’t know that my voice matters much in the debate. But a voice that does is speaking out and I’m very pleased he is.

Stephen Bright is president and senior counsel of the Southern Center for Human Rights. They’ve done great and significant work. They’re challenging Georgia’s sex offender residency restrictions. They’re fighting jails and prisons all over the South for information and proper standards. Bright himself argued Snyder v. Louisiana in December before the US Supreme Court.

Bright has given us his feelings before on the Nichols case, and now he has another editorial on the subject in today’s Daily Report. He lays out the state of things, how we got here, and what else is going on in the state. I don’t want to summarize because he does such a good job of laying things out and you really should read it yourself. Here’s what he thinks of the recent substitution of Nichols’ counsel:

Only one purpose could be served by the replacement of Nichols’ lead counsel, a nationally respected lawyer, with a lawyer who knows nothing about the case—to have a lead counsel who will keep a lid on costs by doing without things that those now representing Nichols believe are necessary for his defense.

His main argument is that by pinching pennies we are abandoning the Constitution, and he does a convincing job. It all makes me wonder if this case will be fought and fought and fought and fought for years before we ever see a trial.

Update: Welcome to those of you coming in from Capital Defense Weekly, StandDown, and CrimLaw. I appreciate the incoming links. The problems we’re facing in Georgia right now should be a cautionary tale of sorts to others and they’re yet another sign of the problems we face in Death Penalty cases. One of my earliest experiences as an attorney before I came to Georgia was a tour of a death chamber by the prison warden. It was one of the more memorable experiences of my life, not to mention my practice. With all that’s going on, I don’t spend nearly enough time talking about the bigger death penalty issues. Thankfully, other blogs are doing great work in that regard.

Posted in General, Nichols, Public Defenders | 1 Comment »

Minority Report

Posted by Maggie on January 24, 2008

We all got excited when Georgia struck down its sex offender residency restriction law as unconstitutional. But since then it’s been all down hill. The AG claimed the Supreme Court didn’t really mean what it said. Then the Supreme Court stepped in and agreed that maybe they didn’t mean exactly what they said and watered down the opinion with a grammatical change. And then the legislature just went right back in to plug the little hole the Court poked in their law with a brand spanking new one that’s pretty much as bad as the original.

Today, the Southern Center for Human Rights has the Minority Report for the new bill. That is, the Judicial Committee that considered the bill approved it, and now the group that’s opposed to it is coming out and saying so. Here’s a link to a pdf of their report. They hit the nail effectively on the head, and do their best to appeal to everyone. They point out that it’s not just a flawed law that’s probably yet again going to be found unconstitutional, but that law enforcement hates it. I suspect that one of these days the frustrations of law enforcement will get through to someone and we’ll start seeing some better laws.

One troubling statistic from the Pardons and Parole Board found that every time a parolee moves, their chance of recidivism goes up 25%. And every day they are unemployed, their risk of reoffending goes up 1%. That’s per day. I’m not hopeful really, but at least there’s a few more people willing to speak out against residency restrictions.

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Today’s Nichols Update

Posted by Maggie on January 22, 2008

Something to report today, and while it’s not much of a development by itself, it may have a bigger meaning. Judge Fuller has certified the DA’s appeal of his refusal to recuse himself for immediate review by the appellate court. There wasn’t really much choice for Fuller, most likely, given all the attention and the need to be very cautious about having any issue in the case overturned by some later appeal.

You may recall that last week we had some changes, with a request for a counsel substitution and a donation for defense funding, that made it look like the case would go forward sooner rather than later. This appeal will halt the process once again. I’m not sure how long we can expect it to take. Hopefully the appeal will be rushed. I understand trying your case the best way possible, and I’m not sure I can really knock the DA as much as I normally do on this issue, but it is pretty disheartening to see things slow down again.

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Today’s Nichols/GPDSC Update

Posted by Maggie on January 18, 2008

So it seems Nichols isn’t the only one who’s trial has been halted.  The GPDSC budget crisis (which is, in many ways, independent of the Nichols budget crisis) has been effecting the payment of private attorneys in conflict cases all over the State.  Capital cases, in particular, are feeling the pinch.  The AJC reports on various death penalty cases around Georgia and where they stand.  Criticize Judge Fuller all you want, but when you see what other Judges are doing, his position starts to make sense.  

The worst is in Pike County, where a capital defendant was represented by two private attorneys.  When they weren’t getting paid, they asked for a delay of the case.  Instead, the Judge pulled them out and put in two local PD’s.  This is wrong for a host of reasons.  Local PD’s no longer cover death penalty cases, that’s what the Capital Defender is for.  So the local offices aren’t equipped to handle them, they have full enough case loads as it is.  Worse, the defendant refused to speak to the new attorneys.   Judges seem to think that if GPDSC can pay its salaries, they can pay private attorneys.  The truth is, they are not able to do both right now.  Private attorneys have been unpaid for months.  Conflicts have been insane and cases are up in the air.  If private attorneys are paid, it’s believed the Council will come to a complete halt.

The Governor has asked that GPDSC get emergency funds, but those won’t be available for months.  It’s possible the whole system may stop before then.

Meanwhile, GPDSC has been working on their budget in regards to Nichols.  The representation of Brian Nichols has been through some twists and turns. I know in my days as a PD it wasn’t unusual for someone’s lawyer to change on a regular basis, and it was rarely a good thing. It doesn’t really leave the client feeling confident, even if their new lawyer is better than the last one. I always made an effort to set up a relationship with a client if I was able to once I had them assigned to me. I wanted to make them comfortable with me and my understanding of their case. Because ideally you keep the same client from beginning to end. That relationship can mean very little and it can mean a whole lot, depending on the case.

It looks like Nichols’ representation may be changing again. Originally, Nichols was represented by a member of the Capital Defenders. But then that attorney changed to Gary Parker, who was a deputy director of GPDSC. I’m not sure why this change was made, it happened quite some time ago before I followed the case as closely. Later, Parker left the case–I believe it was partly due to health reasons–and was replaced by private attorneys. These changes were all made with GPDSC’s involvement. It seemed a little strange to go to private counsel instead of back to Capital Defenders, if changes were going to be made, but I wasn’t privy to their reasons.

That change to private counsel has cost the State a lot of money. They would be paying a lot of money anyway if he was represented by Capital Defenders. It would probably use up a lot of their resources (maybe even affect other cases) due to the sheer volume of it. The Capital Defenders take their job seriously, they come into these cases with piles of motions and do everything they can. With Nichols they’ve got a whole new bridge to cross.

The budget problems with private attorneys are also substantial, and have been the object of much criticism. So it seems GPDSC will ask for one of the private attorneys to be removed from the case. There are currently 4 of them, one works for free. They plan to replace that lawyer with a Capital Defender, and it appears that an associate of the lead attorney will be the one to be replaced. Another will be put on State payroll.

I know they have a budget crisis and I’m all for fixing it. But I’m also all for having a good attorney-client relationship. I hope they’ve given a lot of time and thought to not just the monetary effect, but the effect on the entire team and on the defendant. But then again, if this is a necessary step, it may be the best choice. The lead attorney is paid by the County. Another is free. Of the remaining two, they’re losing the one with the highest hourly fee.

When you take these two stories and put them together, I think things will come to a head in the coming months. Is GPDSC really going to run out of money before they get a legislative bail out? If other cases continue to go forward without proper funding and with new counsel, what will be the outcomes on appeal? Some areas seem content to wait it out–which I think is wise–to make sure their cases don’t face these issues. But what will happen when you have a Judge who refuses to wait? And if the Nichols trial actually begins, what will happen if GPDSC runs out of money in the middle of it after all the work put in to get the case going?

It makes my head spin.

Posted in AJC, General, Nichols, Public Defenders | 1 Comment »