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Sherri Jefferson’s Contempt Overturned

Posted by Maggie on February 26, 2008

If you check out the blawgs, you’ve probably already heard that Sherri Jefferson’s contempt was overturned yesterday by the Georgia Supreme Court. The opinion is here. If you were a Georgia PD at the time this happened, it was virtually impossible not to hear about it. It was a pretty rough time for all of us, since I think any PD with a spine would have done just what she did. Worse, many felt GPDSC abandoned Ms. Jefferson. Her letter of resignation hasn’t surfaced, but Defending the Public had the 33 pages of attachments and exhibits that show just what a tyrant she was dealing with. (And that thankfully she had a great Circuit Defender who was willing to back her up. Among the statements it seems the Judge made to her boss was that it was not appropriate for counsel of a juvenile to “console” their client.)

Thankfully something good has come out of all this. The Court has decided it’s time to rewrite the approach on contempt and lay it out in excessive detail. They also advise any court considering a contempt issue when counsel is representing a client to err on the side of zealous advocacy. Juvenile courts in particular can become a dictatorship rather than a court of law and justice. Believe me, I’ve seen it with my own eyes, and I’m just grateful that it never occurred to any Judge I practiced before to find me in contempt.

If you don’t recall, the statements that Jefferson was found in contempt for were:

“[T]hat’s a gross interference with the way that I can represent my client, your Honor”

and

“I just want the record to reflect with much respect, Your Honor, . . . I just find the Court is biased in its view. You say that you’re not prejudging the case but it seems to me like you’ve made up your mind and any and everything I do to effectively defend my client I’m being rebutted.”

The case has been remanded for reconsideration, though it’s pretty clear that the Supreme Court thinks there’s nothing even resembling contempt here.

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Constitution Trumps Policy

Posted by Maggie on February 26, 2008

Yesterday, the Georgia Supreme Court decided Garland v. State. Garland was tried for Armed Robbery and convicted, he was represented by appointed counsel provided by Georgia Public Defenders Standards Council (GPDSC). On appeal, Garland wanted to assert a claim of ineffective assistance against his attorney. The Judge refused, citing GPDSC policy that didn’t allow for the appointment of a new attorney for an appeal.

Yes, you read that correctly. GPDSC wanted the trial attorney to argue that he, himself, was ineffective. This seems like a Catch-22. Because if you really effectively argue that you were ineffective, how bad could you have been really if your argument on appeal comes across convincingly? And if you don’t argue well (because you aren’t in fact effective) who are you going to convince?

The Georgia Supreme Court ruled that an indigent defendant who wishes to claim ineffective assistance of counsel on appeal has the right to be granted a new attorney regardless of GPDSC policy. The Constitution, they wrote, is what governs this issue, not any agency policy, so GPDSC must make sure the defendant is represented by another attorney.

I wasn’t aware of this policy. I didn’t have any trials where ineffective assistance was at issue on appeal. And the one time I do recall it being an issue in my circuit, there was a separate attorney appointed. So I’m not sure how much of the policy was actually in use around the state. The Garland opinion doesn’t give dates, so I can’t tell if the refusal to appoint appellate counsel was made recently with the budget crisis, or precedes all of this.

But props to the Georgia Supreme Court for reminding everyone that the Constitution comes first. And who at GPDSC really honestly thought they were going to get away with this?

Just as a side legal note, the State here tried to argue that the defendant should make a preliminary showing of ineffectiveness before being granted a new attorney. The Supreme Court didn’t buy it and neither do I. Ineffectiveness may have a lot to do with issues that are covered by the attorney-client privilege, and only another attorney who also has that privilege is best prepared to address those issues. The Judge and Prosecutor shouldn’t be privy to such communications unless counsel thinks it best. Especially since so many ineffectiveness claims address whether the attorney followed up on information given by the defendant.

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Virtual Banishment

Posted by Maggie on January 7, 2008

Usually when people talk about legal loopholes, they’re talking about defense attorneys. The public loves to bash defense attorneys for exploiting “technicalities.” But most defense attorneys know prosecutors are just as bad at finding that little thing to make your client miserable.

On Monday, the Georgia Supreme Court will hear argument in a case considering a court’s ability to banish a defendant. It’s not unusual for a defendant to be banished from a store if they’re a shoplifter, or a county if they’re violating a protective order, or even the county of conviction if they’re an out-of-towner. These are generally considered reasonable steps, though I find them onerous at times. But what we’re talking about in this case is a particularly nasty prosecutorial loophole.

The Constitution of Georgia forbids banishment from the state as punishment. So what they do instead is to banish a defendant from every county except 1. And they pick one in the middle of nowhere. Generally near the Florida border. I can’t think of any real justification for this kind of thing. If there’s something specific they want to keep the person away from, then do targeted banishment. This kind of thing stinks of nastiness for no reason. And I don’t even want to hear the claim that it’s to protect the citizenry. You’re moving them from one place to another. There are still people there. People can still commit crimes there. If anything, it seems like a slight to the people living in those counties.

The defendant challenging his case had his parole set back 8 years because he couldn’t attend a work-release program in Fulton County. He has a problem keeping away from his ex-wife, but again, this is exactly the kind of situation where a targeted banishment would be effective. Even if it covered a handful of surrounding counties.

This kind of treatment is similar to what we’re seeing with sex-offender registry restrictions. In fact, that’s where most banishment issues are discussed. Perhaps the Court will be more understanding when we’re talking about a non-sexual offense.

Update: Some general banishment info. Crimlaw has a post on Virginia’s outlook on banishment. He links to a news story on Georgia’s Houston County DA who has banished 401 people. (I’m positive there are counties with more.) It’s a relatively common practice in Georgia, in my experience. The Houston DA’s website doesn’t seem to have the list up that he uses in the news story, but it does have a helpful article by the DA himself about why he uses banishment. He seems to avoid the ugly tactic used above, and says it’s not used for first-time offenders. If you’re unfamiliar with the use of it, you can see the justifications from the DA’s side.

Update #2: Coverage from the Daily Report today on yesterday’s oral argument. The most hideous part of it is here:

According to Stokes, Emerson told the prosecutor to “pick a county” where Terry could go, and the prosecutor picked Toombs, although there was no real connection between Terry and that county. A DeKalb County judge told the Daily Report in 1997 that he would sometimes pick Toombs as the sole permissible county because “I like the way it sounds.”

I’ve been to Toombs County, and there are certainly worse counties you could pick. I think there are big risks of creating some serious enmity between counties. In the oral argument, the Judges picked one particular issue to nitpick the problem: how was the guy going to get to Toombs County in the first place?

Reading through the articles and the appellant’s brief, it looks like the real problem the State is going to face (besides the fact that it’s just plain wrong) is the fact that it’s affecting parole, and Judges don’t have the power to set conditions on parole.

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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.)

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GA Supreme Court Update

Posted by Maggie on November 28, 2007

One of the many Nichols-related court issues has come down. Britt v. State, Ramseur v. State, and GPDSC v. Saunders are in one consolidated opinion. The short version is that other capital defendants requested documents relating to the funding of indigent defense from GPDSC, particularly Nichols. The Court ruled that GPDSC does not have to turn over the documents because it would reveal trial strategy of several open cases. They also ruled that these documents were irrelevant to the actual defense of these cases and so not subject to discovery. Further complicating the waters, attorneys in some cases refused to argue the motions citing a conflict between their clients and their employer. At first this sounds understandable, but then you find out that there were over a hundred separate motions filed on various issues and that the trial court was happy to let counsel choose which motions to argue and whether to present evidence. So they didn’t even have to talk about the funding motions, but still refused. Valiant, yes. But still contempt, says the Court. Two justices dissent and stand by defense council, arguing that any conflict is a big deal in a death penalty case. The dissent says conflict should stop the presses and halt proceedings until resolved.

This case is a complex one. I certainly wouldn’t want my expenses regarding consultation of experts exposed before trial. But I also wouldn’t want to have to continue representation when a potential conflict was acknowledged by the court. To me, it seems like the whole situation could have been handled better by the trial court, holding off on any further motions until the conflict was resolved. Just goes to show you the chaos the Nichols case is creating all over the State.

Also of note, Junior v. State, S07A0790. This is just a minor point in the opinion but one to consider. The Court affirmed the trial court’s ruling that defense not be allowed to cross-examine witnesses about their immigration status. If your client or witnesses supporting your case are illegal immigrants, you should file a motion to exclude questioning on that topic. Now you’ve got the Supreme Court to back you up. It’s especially helpful in anti-immigrant counties.

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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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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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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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Court Update

Posted by Maggie on September 24, 2007

The GA Supreme Court put out 33 opinions today. I’ll try and get to them next week when I’ll be off and have some time. As for the GA Court of Appeals, here’s the round-up since last update:

Convictions affirmed: 2
Convictions reversed: 1

Wright v. State, A07A1938. Not the prosecutor’s fault this time. Nope, the Judge asked the arresting officer if the defendant made a statement. When the officer answered No, the Judge asked, “He didn’t want to talk to you, is that what you’re saying?” Court of Appeals overturns, finding this an improper comment on the defendant’s right to remain silent. (Shockingly, counsel didn’t object!) Fortunately, the Court finds this obvious error and overturns. Further, it was the fact that the Judge was the one making the statement that made it harmful error. No curative instruction was given and no one was censured, as could have happened if it had been a counsel or witness mistake. Watch those Judges!

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Court Update

Posted by Maggie on September 18, 2007

Convictions Affirmed: 7

Other:
1 Conviction Vacated, 4 Remaining Convictions Affirmed.

Nichols v. State, A07A0865. In an Agg. Child Molestation trial, the prosecution introduced evidence of prior incidents involving kissing and touching between the defendant and the victim from two years before the incident on trial. No prior notice given to defense counsel for a similar transaction. But the Court lets it in as “prior difficulties.” Unfortunately, that is not the issue on appeal. Defense counsel didn’t object, and the Appeals Court says that this isn’t ineffective assistance. There was a Motion for New Trial but it’s unclear whether the similar transaction issue was ever appealed.

Cail v. State, A07A1332. Motion for New Trial filed in 1995. Not ruled on until 2007, when an amended motion was filed. Appellate court finds that since they don’t agree with any of the grounds in the delay, there’s no prejudice. I’d argue that the passing of time may have affected appellate’s counsel’s ability to investigate all potential grounds for appeal.

Pitts v. State, A07A1242. A juror lived on the same street where the victim was dumped and flagged down help. He drove past that location all the time and thought about the incident regularly. Juror says “it would be hard” to be fair, then turns around and says he can, etc. Judge rehabilitates juror with one question and seats him. Appellate Court upholds. (I understand the need not to interrogate jurors, but after how much this guy went back and forth, I hate to see it all come down to one question from the Judge.)

Johnson v. State, A07A1288. Make sure you throw an objection in there! When the prosecutor asked leading questions to an accomplice who did not want to testify, counsel merely said, “I guess I’m trying to wonder where [the prosecutor] is going. The witness says he doesn’t want to testify so is he trying to . . . impeach[] him or what is he doing[?] I don’t know.” Appellate Court finds no error preserved.

In the Interest of B.R., A07A1577. No venue was established by testimony. However, Court finds because officers gave their employment as Liberty County and the Court must assume they were properly exercising their duties, venue is now established. Don’t like this precedent at all.

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