Of Counsel

Legal Notes on Georgia and The South

Today’s Nichols Update

Posted by Maggie on March 7, 2008

So yesterday was the hearing where we were supposed to find out what’s going to happen to defense counsel. It looks like Judge Bodiford got his way and GPDSC and the defense team have worked out a deal.

The Capital Defenders are allowed to reenter the case. Specifically, Josh Moore, who was previously assigned to Nichols before the conflict, has been added to the team. It also appears that Capital Defenders will be providing administrative support to help reduce outside expenses.

Two other members of the team have accepted changes to their appointments. Attorney Robert McGlasson will change from an hourly fee to a salary similar to the Capital Defenders. And attorney Jacob Sussman, that GPDSC was trying to oust, will be relegated solely to part-time work and will not be present for court proceedings. It looks like everyone’s on board. And it looks like this will lower the expected trial expenses such that they can set a date.

One particular issue of note. Judge Bodiford did not order GPDSC to pay the Nichols team their owed fees right away. Here’s a quote from the order:

The Court is aware that a very significant arrearage exists with respect to past due attorneys’ fees and expenses for the attorneys of Ferguson Stein Chambers and Mr. McGlasson appointed in this case, and the Council has acknowledged that fact. Likewise, the Court is aware that substantial past due amounts are owed to other private lawyers across the State of Georgia who are provided representation indigent defendants, growing out of the current funding crisis besetting the Council. The Court concludes that it is inappropriate to order the Council to pay the past due amounts to attorneys in preference to the past due amounts owed to other appointed counsel throughout the state.

I think this is a wise move by Judge Bodiford. There are a lot of people with outstanding balances that GPDSC needs to pay. And a lot of people already feel like the Nichols case is taking over the system. Hopefully the compromise will work.

There will be another hearing Monday where Judge Bodiford expects to announce a trial date. However, it still looks like keeping that trial date will depend on GPDSC getting the appropriate funding from the legislature.


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More on GA Eyewitness Identification Legislation

Posted by Maggie on March 5, 2008

Check out Eyewitness Identification Reform Blog for an op-ed on Georgia’s reform legislation and an action alert from Amnesty International to contact the House Rules Committee.

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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.

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What’s Going On in the Alapaha Circuit?

Posted by Maggie on March 5, 2008

The occasional article on the craziness in the Alapaha Circuit (a five-county region near Valdosta) has trickled in now and then. But it looks like things are heating up down there and it’s starting to look like no one will get through unscathed.

The Circuit’s Chief Judge has been under investigation by the FBI, including wiretaps. Judge Blitch is already under investigation by the Judicial Qualifications Commission . (Imposing illegal fees, using his influence in criminal cases against his son and others, and reducing sentences without authority.)

This came out in a motion last week where JQC and Judge Blitch wanted to compel the DA to testify about her role in the FBI’s investigation. She’d objected in an earlier deposition and refused to answer certain questions. (The article includes a link to the motion which includes the transcript of the deposition. Despite my issues with the Daily Report, I love that they include stuff like this on their webpage.) The hearing resolved the motion (the DA must testify about anything within her personal knowledge, but not about anything she may have heard on tapes recorded by the FBI) and it doesn’t appear that the FBI has filed any formal charges.

Despite all the hubbub, the Judge is still on the bench. The DA and her subordinates are still appearing before him on a near-daily basis. It’s one of these very small worlds, in fact, the DA’s husband represented Judge Blitch early on in the case. Glad I’m not practicing there right now.

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Today’s Nichols Update

Posted by Maggie on March 5, 2008

It’s shaping up to be a massive day for legal news in Georgia, so I’m going to start off with my ongoing Nichols coverage. A hearing was held last week, another was held Tuesday morning, and another is set for tomorrow. Looks like Judge Bodiford is sincere in his efforts to move the case forward.

Yesterday’s hearing sounds like a version of the hokey-pokey. Let the media come in. Kick the media out. Bring the media back in. Take them out again. Several times the media were excluded from arguments on various issues. A few main issues were addressed.

First, the release of records regarding defense funding to the public. It appears Bodiford has agreed to release at least some documents over defense counsel’s opposition. They’ve been given 15 days to appeal the judge’s ruling and a temporary stay is in effect until that time expires.

Second is GPDSC’s request to remove one member of Nichols’ defense team to cut costs. They’ve proposed this for a little while now. Judge Bodiford promised a ruling on Thursday, though he made it clear he’d prefer for that to be worked out privately between defense counsel and GPDSC. GPDSC claimed that 4 attorneys was more than enough. This, of course, ignores the fact that there are 5 DA’s on the case.

Finally, Judge Bodiford asked each side to make up a list of motions that need to be considered. Among these appears to be the possibility of finding another location for the trial. The article notes that the defense opposes a change of venue that would use a non-Fulton jury. I understand their rationale. Despite how close to home the case comes, they’ll likely get a more sympathetic jury in Fulton than elsewhere in the state. No one’s mentioned a possibility for the new location.

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A Very Strange Habeas

Posted by Maggie on March 4, 2008

Last Monday, the Georgia Supreme Court granted habeas relief to a defendant convicted of possession of cocaine with intent to distribute on the grounds of a conflict of interest. It’s a totally separate issue from the GPDSC conflict appeal case that came out the same day. This one is from 2001, predating GPDSC, and the conflict is unusual.

The opinion finds that the trial and appellate attorney had a conflict of interest because they were instructed not to challenge the makeup of the jury pool. This was just after the 2000 census, which showed a substantial change in racial makeup in the county. Allegedly, the PD’s office and the Judges had some kind of deal in place where the PD’s would let it slide while the court got up to date.

DeKalb Superior Court Judges then on the bench insist this is false. The Daily Report notes that the Chief Deputy Defender at the time met with Judges about the census data but insists no deal was in place. (Hope that link works…)

The opinion treats the deal as a foregone conclusion, which I find slightly presumptuous. The Daily Report also has the transcript from the habeas hearing. The relevant stuff starts around page 17. It’s worth noting that trial counsel did file a motion challenging the jury pool, and had just filed the same motion in other cases with the same judge. The Judge already denied the motion in one of the other cases, but counsel was allowed to submit it for Edwards to preserve the record. So it’s questionable whether a hearing would have been allowed at all. It’s also strange that while trial counsel insists he was ordered by his superiors and a deal was in place, he gives no specifics as to who gave these orders and where he heard about the deal. Around page 30, counsel gets more specific about the Judges, but still doesn’t say whether he knows this first hand or just heard it. (It seems to me opposing counsel should have objected.) Appellate counsel (at page 37) says she doesn’t know who made the deal and that she heard through superiors. However, appellate counsel does create a potentially larger conflict of interest. She spoke with Edwards about raising ineffective assistance as an issue and he declined. However, she isn’t sure whether she told him about the jury pool issue. That seems to be a stronger problem than whether or not any such deal existed. Appellate counsel was also a pretty newly admitted attorney, with only a couple of appeals under her belt. She gets specific again at page 53 saying trial counsel was the one who told her about the “deal.”

To me, the conflict issue is a murky one, but I think it’s best to err on the side of caution so I’m glad the appeal was granted. Trial counsel preserved the issue. But appellate counsel doesn’t reference knowing about this “deal” personally and only cites trial counsel as a source. There we seem to have a more significant problem. However, the Supreme Court’s assertion that a deal actually existed, seems to give the testimony from the habeas hearing more weight than it deserves. The references to the deal are vague and unsupported. No Judges were called, nor were any supervisors from the Public Defender’s Office. Overall, it seems like the habeas hearing was sloppy. Still, at the very least there’s appellate ineffective assistance even if it’s not a conflict. An issue should have been raised on appeal and was not. End of story.

But I’ll give it to the Supreme Court. Why? Because even though it’s a sketchy basis for the opinion, the standard in a conflict case is lower than that in a straight ineffective assistance case. So habeas is granted instead of denied. And it’s rare enough to see a court in Georgia err on the side of the defendant.

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The Future of Indigent Appeals

Posted by Maggie on March 3, 2008

The Daily Report has a follow-up today (subscription req’d) on last week’s Georgia Supreme Court ruling requiring GPDSC to provide outside counsel for appeals that assert ineffective assistance of counsel.

This throws a wrench in the works for the current budget crisis, as it’s possible that there could be a whole set of new appeals coming their way. While this worries me, I have to admit that I don’t feel too sympathetic on this particular issue. Whoever thought they could get away with a policy of having trial counsel claim their own ineffectiveness deserves whatever repercussions come their way.

The article discusses particularly the overlap between Garland and the new legislation about conflict counsel. HB 1245 has a neighboring PD office take over conflicts when feasible, with contract counsel as backup. Passing off cases to a PD’s office I can see as frustrating, but passing them appeals is worse. Most PD’s offices in Georgia aren’t equipped with any kind of appellate division and the ability to appeal your cases is pretty limited to your own time and resources. And I’ve long thought that our switch away from salaried conflict offices is a big problem.

GPDSC actually comments in this article. We hear from Council member Don Oliver and director Mack Crawford. The enlightening information came from Operations Director Nolan Martin. Martin was the one organizing the Conflict offices where salaried attorneys would handle conflicts in neighboring circuits when they arose. Especially with the new appeal issue, they could definitely fill a niche if we kept them around. But with budget cuts, they were the first to go. It sounds like Martin wants to bring them back.

Martin, who has worked for more than a year to put together a regional system of conflict offices to handle such cases where the local caseload warrants one, worried that shifting emphasis to a “one-size-fits-all” contract system for private attorneys will be more expensive than providing salaried, dedicated conflict attorneys.

Martin provided figures showing a more than 50 percent reduction in conflict cases assigned to private attorneys from 2006 to 2007 and said that the council’s efforts to winnow out and assign such cases in house whenever possible had cut the costs of such cases from $11 million to $9 million.

But, he warned, the Legislature’s proposal could hike that figure up to $12 million or $14 million.

Another issue GPDSC seems concerned about is the new spending outlines for capital cases that gives GPDSC the burden until a certain point. Then counties will have to share in the cost. Dan Oliver worries this will hurt Circuit PD’s and their ability to get funding from counties. I think if that happens, everyone is missing the point. I’m actually okay with the county-supporting-capital-cases idea. Why? Because the decision to impose capital punishment is very dependent on the county doing the prosecution. The DA needs to be accountable to the taxpayers and make decisions about seeking the death penalty with the understanding that it’s a situation where taxpayers would support the potential extra cost. I see this as a situation where the prosecution should be coming under scrutiny rather than the PD. Nichols is a perfect example of how defense spending is a result of and a response to prosecution strategy.

The article ends with Crawford saying he’s confident funding will come through the legislature. I am, too. But I expect the struggle to continue into 2009 and potentially for years to come unless everyone involved gets their act together. (I’m talking to you, Senate.)

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Nichols Civil Suit

Posted by Maggie on February 29, 2008

Nichols hasn’t been the only one in hot water since the shootings in 2005. Several victims have sued the Fulton County Sheriff. There are a lot of potential reasons for liability. Nichols, a large young male, was monitored only by a female deputy, while preparing for court. His initial escape was due almost completely to his ability to overpower the single deputy. Then there’s the additional problem: two people were killed in a courtroom where court was actively in session. No deputy was present, even though it’s a state law requirement.

There was a hearing yesterday and it sounds like quite the circus. Six plaintiffs, nine defendants, and “more than two dozen attorneys.” The big issue was what kind of actions the Sheriff was using at the time. If their acts were discretionary, they’re shielded from liability, but not if they were ministerial.

To me, it seems pretty cut and dry despite defense’s arguments. If state law requires particular action, it’s tough classifying that as anything other than ministerial duty. They’ve tried to claim that any variations from required action are discretionary, but I agree with one plaintiff’s attorney who said that would make any action discretionary. They also state that their policies are discretionary (it says so right there in the handbook!) but again, I don’t think it’s an issue of nomenclature.

Looks like the Sheriff is going to end up shouldering the blame, though the Judge hasn’t ruled yet. And I think it’s proper. Courtroom security has certainly improved since Nichols, it’s helped to step up all over the country by giving that reality check. But it’s also pretty apparent that proper action by the Sheriff could have affected, if not completely averted, the outcome of this terrible crime.

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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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Nichols Coverage

Posted by Maggie on February 27, 2008

It’s not exactly an update because nothing new has happened, but there is some coverage of Nichols today. (Thanks to StandDown Texas for catching this one. Creative Loafing isn’t on my normal list of sources.)

Creative Loafing, our local alternative paper, has a story on the Nichols case. It’s not surprising that their coverage is pretty critical of the State’s lack of adequate funding for indigent defense in general. (They quote Stephen Bright. But also add opinions from J. Tom Morgan, a former DeKalb prosecutor, and Charles Clay, one of the legislators who brought the indigent defense legislation through in 2003. All think that everyone needs to lay off and pay up.)

What I saw here that hasn’t received any attention that I’ve seen is this:

Senior Judge Hilton Fuller – who presided over the Nichols case until he resigned in late January – signed a secret court order in 2007 that earmarks all remaining state funding for death-penalty cases to the Nichols defense team.

Mack Crawford, executive director of the Georgia Public Defender Standards Council, which administers the death-penalty funds, let the cat out of the bag about that secret order when he testified in a court hearing in November that no money would be available for other trials until the end of June.

“There is a sealed order that I cannot discuss,” Crawford testified, according to a transcript. “If Judge Fuller’s order stands, all of the money I have available for the balance of this fiscal year would technically be embargoed or committed to that one case.”

Crawford declined to comment to CL, and Fuller’s order is so little-known that even Wilson Dubose, a Madison lawyer who chairs the council, expressed surprise when told of Crawford’s testimony.

Still, Bright points out that Fuller isn’t the only Judge who’s made this kind of order. Several other judges have demanded funds from the council to no avail. So my guess is GPDSC will do with the funds whatever it wants to, just like it always does.

And again, no surprise, Mack Crawford has no comment. Shocking.

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