Of Counsel

Legal Notes on Georgia and The South

Archive for the ‘AJC’ Category

More on GA Indigent Defense Legislation

Posted by Maggie on March 14, 2008

The AJC reports today that HB 1245 has cleared the House Judiciary Committee. The main concern with the current version of HB 1245 is that it may strongly affect when a defendant gets to meet with counsel. GPDSC’s standards call for a visit within 72 hours of incarceration. This happens in 95% of cases, based on 2007 GPDSC data. HB 1245 changes this rule to five business days. And only upon request to see an attorney.

I don’t really understand the point of this bill. Is it supposed to save money? Or keep those who aren’t indigent from access to indigent defense? Because for most defendants, the cost to take on their case really is minimal. They’re still one among hundreds. And if it’s about money then this is completely the wrong approach. David Dunn, the Circuit Defender for Lookout Mountain:

Allowing defendants quick access to an attorney is more cost efficient, Dunn said. With the help of a lawyer, a defendant charged with a non-violent or petty offense can get a bond, reducing jail costs. The longer a person who has a job stays in jail, the more likely that person will lose the job and become indigent, he said.

“If we do this …, it’s not going to be a cost savings; it’s going to be a cost increase,” Dunn said.

I’m willing to bet that the cost of keeping someone in jail for 5 days is significantly more than their the cost of their entire defense (assuming there are no multiple-day trials involved). To me, this looks like the legislature taking advantage of the multitude of GPDSC’s problems and finding yet another way to make it more difficult.

But I also hope that it won’t have much of a practical effect. PD’s are PD’s for a reason, and they will most likely still do their best to meet with clients as soon as possible after incarceration.

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Posted in AJC, Public Defenders | Leave a Comment »

ACLU Sues Alternative School

Posted by Maggie on March 12, 2008

“Alternative” schools are a joke. They have different names in different places, but in Georgia the alternative school is where they send kids with disciplinary records. Or kids with too many tardies. Or kids with psychological or behavioral problems. It is used like a punishment instead of an education resource. In my days working with juveniles, any parent with the resources to do so would take their kid out of school and home school them before sending them to the alternative school.

Most teachers and administrators at these schools aren’t trained to deal with students with special needs. Very little teaching takes place. It’s more of a holding cell. “Student Resource Officers” tend to get particularly nasty in these places. There are rampant violations of state and federal laws and standards, especially when it comes to the kids with psychological disabilities who have special federal protection.

The ACLU is suing the Atlanta Public School’s Alternative School, which is privately run. It claims the students are not adequately educated and are subject to “unreasonable body searches.”

Teachers and at least one administrator routinely hit students, throw books and throw students against the walls or to the floor. Nor do these reports reflect the violence inflicted by school resource officers and police officers. Such officers are often physically aggressive and have a practice of using choke-holds on students…. “They are subject to a humiliating search when they come to school… girls are forced to raise their blouses up to their necks,” said Emily Chiang, a New York lawyer who helped draft the lawsuit. “They don’t let students bring anything in, including books. That is why there is a no homework policy. “

I’m glad to see the suit going forward. Maybe they’ll pay attention to other schools outside Atlanta where the same practices are going on.

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Bad Day to Be a DA

Posted by Maggie on March 5, 2008

A few months ago I posted about the DA in the Piedmont Circuit near Athens accused of fraud. Yesterday he pled guilty to two counts of felony theft, violation of oath of office, four counts of making false statements, and one count of conspiracy. Two others, including the DA’s wife, in the DA’s office that have also been charged have pled not guilty. Former DA Tim Madison (who was in office for almost 25 years) admitted to having a scheme with an ADA to get a $50,000 salary from the county even though the ADA already received a full state salary. The two split the funds. Madison was also charged with falsifying time cards with his wife.

Madison got 6 years to serve and 6 on probation, along with $40,000 in restitution to the county. At the sentencing hearing, many testified that Madison had struggled with alcoholism and gambling. (It’s not clear whether anyone in his office was aware of these problems. If they were, it’s certainly troubling.) The article linked above includes links to Madison’s charges, sentence, and arguments in the case.

Things have been going pretty crazy in Clayton County, just outside Atlanta. Along with a huge scandal with their school board, there’s now an investigation of the DA. In January 2006 a former county employee allegedly stole a flag from a police memorial. DA Jewel Scott charged the man, Donnie Hood, with felony theft since it was government property. Recently, Scott filed notice that she would seize Hood’s retirement benefits if he was convicted. A few days later, Hood killed himself. Hood was a 20-year employee who worked with the Building and Maintenance Department, serving as its head for 8 years. The Board of Commissioners thinks Scott went too far. They’ve requested that the Attorney General investigate Scott’s actions in the case. An article from last week notes that it’s alleged Hood actually replaced the cloth flag with a nylon one and that the DA was prepared to allege that Hood stole additional property. Being on the outside, it’s hard to make a judgment call on this one, but I can’t imagine why a case like this wouldn’t be dismissed or at least allow some kind of pretrial intervention to keep it from going forward. Then again, I’ve had my own experience with DA’s getting particularly vindictive in theft of government property cases.

In the final bit of noteworthy news today, not a DA but a Pendergrass police officer is now under investigation for an illegal arrest. Details are fuzzy, but a tape of a stop made by Officer Bill Garner has been sent on to GBI. The stop involved an arrest for DUI of a driver, and it appears the false arrest is regarding the passenger, who was also arrested for Open Container, though it appears there was no container in the car.

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

Today’s Nichols Update

Posted by Maggie on February 28, 2008

Brian Nichols appeared in court today for the first time since October or so. It was Judge Bodiford’s first hearing on the case. He’s already set another one for Tuesday. Looks like he means it when he says he wants to get this case moving. Props.

He also says he’s going to reconsider Defense’s Motion to move the trial. I think that’s extremely smart. Fuller was holding out since they hadn’t found any other locations yet. The actual room the trial would take place in would be virtually identical to where the crime took place. It’d be in the same building. Jurors would be walking down the same halls. I can’t see how this wouldn’t be prejudicial and potentially a huge appealable issue.

No other specifics on the hearing, though I’ll keep tabs on stories that go up as the day continues. The only other note is that Gwinnett County has finally indicted Nichols–just before the statute of limitations–on charges including kidnapping and agg assault against Ashley Smith. Gwinnett County is where Nichols had his final standoff with authorities and eventually turned himself in. Gwinnett says they don’t intend to try him on these, but wanted to make sure they indicted in case there’s some reason to go forward in the future.

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Senate Smashes GPDSC Funding

Posted by Maggie on February 20, 2008

Yesterday the Georgia Senate approved only $513,125 in emergency funds for the Public Defender Standards Council. Governor Perdue recommended $3.6 million and the House voted in favor of that amount. Now the House and Senate will have to figure out a compromise.

The Senate says they think GPDSC has access to more money than they claim and that their assertion that employees will have to be furloughed is an exaggeration. It seems that they’re working at least partially in response to Senator Preston Smith’s oversight committee report. (Sorry I’m weeks late with the link.) They make a valid point: GPDSC has claimed it will have to furlough employees without additional funds for the last two years but no one was ever put on furlough. But I don’t know that it’s a reason to cut back so much.

The report brings up Nichols, which I find unjustified. (It’s no longer possible to have the budgetary problems from Nichols thanks to legislative changes I’ll address in a separate post.) The bigger issue is what’s at stake here. I did find curious one section that said that GPDSC has a big division, with many members taking the more “extreme” views taken by previous directors. It’s not clear what these viewpoints are. Are they financial? Or are they simply passionate about public defense? It’s not like any of this is ever expressed publicly, so it’s unclear what this is based on. (It’s hard to tell, the report is just as critical of “ardent defense advocates” as it is of the Council’s financial issues, which is a severe fundamental flaw.) Another valid point is that the Council is often not transparent in its dealings. Lord knows I’ve said so. The rest of the report is very numbers-driven. A lot of it is about the little details, which money comes from where.

The real issue should be the overall numbers. The report points out that in 2000 the amount spent on indigent defense was approximately $54 million, whereas in 2007 it was about $107 million. Nearly doubled!– they cry. However, they ignore that the cost was rising steadily and severely before the new system went into place. I have managed to get my hands on a letter from a Circuit Public Defender, Sam Merritt (Southwestern Circuit), complaining about this very issue. He notes that the increase between 2000 and 2001 was 13%. The increase between 2001 and 2002 was nearly 17%, and he uses the same numbers cited in the Oversight Committee’s Report. However, since the new system has gone into place, the numbers have stayed shockingly stable. In fact, they decreased about 2% in 2007. So instead of a ballooning system, we have one that’s actually keeping its costs in check. (Especially since the State hates giving it any extra money.)

I’m glad that some of the legislature gets it. Senator Smith doesn’t. In the report’s conclusion, it states:

[T]he new system removes financial considerations from the equation since the state and counties are now obligated to pick up the entire tab, rather than the attorneys. Consequently, these criminal defense attorneys are ethically obligated to zealously advocate on behalf of their clients without any real consideration of limitations related to the cost of that representation. Without any such financial consideration, one can expect that the costs will continue to rise extraordinarily as the expense of the experts and other defense costs increase on the state’s tab.

I’m sorry, but does the Committee have any experience talking to actual PD’s about this? Do they understand that you can’t just decide you want an expert and pay for one like it’s no big deal? Experts are virtually unheard of outside of death penalty cases and the most severe crimes. I wanted one once and couldn’t even move forward without jumping through a huge number of hoops. It ignores the fact that the expenses are not made without consideration. Do they think PD’s operate in a universe where money doesn’t matter? Believe me, they know full well the cost of experts. They’re working with inadequate resources in many situations, though Senator Smith would like us to believe that they’re out there using State credit cards to buy time from fancy experts. They are doing what they need to to get by and sometimes it’s rough to even do that.

The report also uses the phrase “free lawyers,” which is one that I think shows even more of their bias. It doesn’t matter if some members of GPDSC think an “adequate defense” is the “best defense.” Because 99.9% of the people GPDSC defends aren’t getting that best defense because the money just isn’t there. The report is certainly an attack on GPDSC, and they need to be attacked for a lot of things. But it also ignores the practicalities of the PD’s offices all over the state, treating them like they’re cavalier about the State’s finances. (Do they know how much PD’s make? I think they understand the monetary limitations involved in their jobs.)

I will point out one more thing about the Report. It points out at the end other states’ approaches to indigent defense. I think this is something that should be considered. But I also think this attention is overblown. Steps are being taken to put caps on the payment of private counsel. It completely ignores the Conflict Defender’s Offices that GPDSC had in place which likely saved everyone a lot of money by having salaried defenders available specifically to take these cases. And GPDSC may not have furloughed its employees, but it fired its Conflict Defenders and that is something that really should be examined when it comes to the numbers.

Posted in AJC, General, Public Defenders | 2 Comments »

The Power of the Prosecutor

Posted by Maggie on February 19, 2008

Joe thinks prosecutors have too much power. There are decent and fair prosecutors out there, but not even they always get to make the right choices. Because they have bosses, and those bosses have to win elections.

The AJC reports today on a typical example of prosecution gone bad in Fulton County. Michael Murphy is 17 now, last year he and his mother were approached by a large group of angry teens who had a grudge against Murphy’s mom. Shots were fired, one of the teens ended up dead, and now Murphy has been charged as an adult with murder. He’s been in custody since June, 2007. So what? It’s a murder case, and even though it sounds like there are some serious self-defense issues, it’s still murder, right?

Yeah, except for the fact that the autopsy shows the victim was hit from the back, meaning it’s more likely the shot came from the crowd, who was also firing. A good DA looks at that information and sees that trying this case is probably not worth their time. And a Assistant DA in Fulton County did just that. He was going to send the case to Juvenile Court to be dealt with on lesser charges. But instead, he was instructed by his boss, DA Paul Howard, to go forward and indict.

Now Howard insists the indictment speaks for itself and that the case is justified in going forward. But an indictment is not a conviction. And given the situation, you’d think the least they could do is let this kid out. But no bond has been granted. Instead the Judge berated the kid for having a gun. (And this is in Georgia! Where we’re regularly expanding the gun rights of our citizens! In fact, it seems like given the political climate, we’d be leaning in the kid’s favor instead of against him.)

Now Prosecutors can often be kept in check by defense attorneys and Judges. But the more serious the charge, the more leeway that prosecutor is going to get. All Murphy has going for him right now is time, but it looks like that’s time he’ll be spending in jail. I’m hopeful the case will turn out now, but how much is being lost in the mean time?

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Today’s Nichols Update

Posted by Maggie on February 18, 2008

A story in the AJC yesterday talks about the ongoing questions surrounding the Nichols jury pool. Approximately $216,000 has been spent by Fulton County on jury-related expenses so far. That includes the cost of printing all the questionnaires, the jurors’ $25 per diem, transcripts, and postage.

The issue is that the jury pool was sworn in by former Judge Fuller in January, 2007. It’s now over a year later and not a single juror has been picked. This leaves open the issue of whether to continue with the same jury pool or not. And if you keep the same pool, then you have to make sure they’re all still Fulton residents and that their questionnaire answers are all still the same.

This seems to be an unsettled area of the law and no one has a real answer on whether you have to scrap the pool and find a new one. My gut says Judge Bodiford will bring in the former jurors and at least see what he’s got before getting a new pool in order. Especially since the price tag is more and more of an issue. But no word has come down at all on any issues, new or old, since Judge Bodiford’s appointment.

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Gotta Love Local Governments

Posted by Maggie on February 11, 2008

I used to think it could be really interesting to get involved in local government. It wouldn’t require the commitment or finances to get a big state or federal elected position, but could still help people. For a while now I’ve been dealing with local authorities here in the Atlanta area, cities, counties, etc. And one thing I have decided is that I will never ever ever ever ever get involved in local government. Ever. The level of pettiness and the lack of real progress would drive me completely insane.

I generally have only an item or two of business in these meetings, but must patiently sit through the bickering and the pointless arguing. It really makes a girl miss the courtroom. (Local officials are fond of saying, “This is not a court of law.”) In a courtroom there are rules. They may not always be followed, but even then you have a system that tells you what to do when the rules aren’t followed. I loved Procedure classes in law school and now I understand why. Local governments don’t really have a lot of documented procedures, and this leads to semi-controlled chaos.

They can also lead to corruption. The AJC, which I occasionally jab for their lack of real reporting, does like to tear into local officials when it has dirt. For a few months there’s been the occasional story on the former Fulton County Superior Court Clerk, Juanita Hicks, who recently retired. Upon retirement she received a six-figure pension. But in addition, she also managed to snag a 10-month contract to write a “history” of the clerk’s office. The contract is over. There is no history. There aren’t even notes. And the County paid Hicks over $70,000.

Why you need a history of the clerk’s office is unclear. Why you’d pay someone $55/hour to do so is even less clear. When confronted, Hicks angrily insisted there was no history. The county attorney who hired her hasn’t commented. Two salaried jobs were cut so Hicks could be put on the payroll.

So what now? Well, that’s a good question. It doesn’t appear that any ethics laws have been violated. And the County Commission may want an accounting… but that’s really not a body I’d trust to get anything done. (You remember the Fulton County Board of Commissioners, right? The ones who made national news because they want to outlaw saggy pants?)

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Today’s Nichols Update

Posted by Maggie on February 5, 2008

More follow-up on Judge Bodiford and his expertise with high-profile cases First the AJC fills out yesterday’s article and then The Daily Report chimes in. Both articles contain quotes from judges, prosecutors, and defense attorneys on why Bodiford is a good fit. And the facts certainly seem to make him capable of handling the chaos of the Nichols case. Including the 1997 Toklas trial which involved:

nine lawyers and three defendants[.] And it had unexpected twists, including media swarming over attorneys’ houses, a Chattanooga television reporter nearly causing a mistrial by trying to interview prospective jurors, an Atlanta reporter with a book deal and a witness committing perjury.

That case also had a previous judge assigned and Bodiford had to take over. Good coverage in large part, although you’d be hard pressed to find an attorney willing to be quoted in print if they thought the Judge was no good.

Also in today’s Daily Report, two editorials on Nichols. One decrying the state of civil rights in Georgia’s criminal justice system. And the other calling out Stephen Bright for saying DA’s “have a blank check.” The latter makes a good point, since the budget crisis has affected the Prosecuting Council just like it’s affected the defense. However, the writer, the Dougherty circuit DA, also points out that the prosecutors were saved because the State took action. It’s unlikely GPDSC would get the same treatment these days from any state agency. I’d also point out that I can’t imagine any prosecution in a small, more rural circuit using the resources Fulton County DA is using on this case.

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

Judge Appointed in Nichols Case

Posted by Maggie on February 4, 2008

A Judge has officially been appointed to preside over the Brian Nichols case. It’s Judge James Bodiford from Cobb County. I was rather shocked to hear this because there are probably hundreds of Judges in the metro Atlanta area and the majority of my practice until recently hasn’t been in the city proper. So I was surprised when I found out the Judge selected is one I’ve actually appeared in front of several times. It’s great news for me since now I feel like I can present a more informed opinion about the new Judge’s actions. With Judge Fuller I had to make guesses to his motivations since I was completely unfamiliar with him.

As for my impressions of Bodiford, he’s certainly a no-nonsense kind of Judge. This can be a good thing and a bad thing. He expects his attorneys to be on top of things and ready to go. I have appreciated his efforts to actually have a conversation of sorts with defendants when they plea when most Judges just want to get through their docket. I’ve also felt that he can sometimes get pretty angry. Angry judges aren’t my favorite thing. You’re welcome to take my impressions with a grain of salt. I’m not one of the DA’s who works in front of him every day (though I’m giving some thought to calling one of them up even though I have no more business in that court).

I’ll update with additional links if any more detailed articles come in during the day.

Posted in AJC, Nichols | 1 Comment »