Georgia Criminal Appellate Law Blog

Offering Insight on the Practice of Appellate Law and Commentary from the 11th Circuit Court of Appeals

Beware the Generic Brand

By Scott Key on Posted in Attorney-Client Relationship

Scott Greenfield, today, looks critically at a lawyer’s website. The lawyer boasts that he started his practice with nothing and now has 500 clients. Mr. Greenfield’s post struck a chord with my thoughts of late. If you have 500 clients, you aren’t giving much time to any one of them or their case. Worse than that, you are rendering legal service as a commodity. And what we do, particularly as criminal defense lawyers in private practice and especially in post-conviction practice, is not a commodity. Though there are times when clients see us that way. There are so many lawyers out there willing to take on cases for less than they are worth that it makes sense that we would be viewed that way. There are some real dangers of discounting legal work for significantly less than what it’s worth (namely that clients don’t value what they don’t pay for and the pressures to deliver according to price even though the bar rules expect so much more).

I encounter the repercussions of the “WalMartification” of law at two distinct points in my practice.

  • First, I encounter it when clients or their families come in for an appeal. The story I hear is virtually formulaic (and perhaps not true some of the time). They were charged with a crime. They found a lawyer in the yellow pages or because he did a good job on a friend’s will. Or he was the least expensive of the ones interviewed. Or he oversold what he could do. Or he undersold all of the things that might happen. Or he underestimated the State’s case. After retaining the lawyer, he suddenly became impossible to get on the phone. The emails went unreturned. Some court dates came and went. The client would see the lawyer at those court dates, but he was in a hurry. The lawyer would have just enough time to reassure the client that everything was okay and not to worry. Until one day, the client came to court. This day was unlike the others. The lawyer had a grave look on his face. The offer involved jail time — a significant amount. And the choice was either to take it right there or start a jury trial a little later in the day. Either a plea was entered, and I am being asked what can be done to undo it, or a trial was had. In which case I am going to review the transcript. I read the transcript, and I am disappointed as I see objections not raised, motions not filed, defenses not asserted, and error waived.
  • I also carry some trial-level cases. When I meet with prospective clients about those, I carve out about two hours, more or less, to discuss the road ahead. I talk about how much work goes into doing a case right. I note that a lawyer’s ability to have an impact on the outcome diminishes the longer a case hangs around. Often, the most critical time is between the moment of arrest and the moment that the case is presented to a grand jury. Hard work and thorough preparation at this stage pays the highest dividends. And time and skill is all a lawyer has to offer. The higher the skill level and the more time devoted, the higher the fee. It is at this stage that I will often lose the case to one of the vast numbers of lawyers I described in the paragraph above.

If you have a high-volume practice, it is hard not to practice neglectfully of defensively. You saw neglectfulness described above. Practicing defensively is about as bad. When you practice defensively, you show up for the bond hearing. You wait for the case to get indicted. You wait for the discovery. You wait to hear a plea offer. You advise the client to take it. Sometimes you advise a trial. You shoot from the hip during the trial. Maybe it works or it doesn’t. You close the file. By the time you’re being assertive, the case has come out of grand jury, has been assigned to a judge, has lingered around for a while, and it’s almost time to try it (some cases should be worked that way, but it’s not a good general practice).

Law is not a commodity. But I’ve noticed it being treated that way in the past few months when I speak with families in my conference room. I spoke to someone facing a serious charge and who was on his way to be interrogated at the police station (in law enforcement parlance, “coming in to clear some things up”). I was informed that he thought he might be “in the market for a lawyer.” My concerns about not going to the interview without a lawyer or maybe not going to it at all were brushed off as if I were a car salesman giving him a pitch. I wonder how that all worked out? I never heard.

To take the commodity thing a step further, there are lots more generic lawyers out there than there are generic brands of peanut butter or mustard. But the generic brand of peanut butter or mustard isn’t toxic.

My Controversial Talk on Typography (No Kidding)

By Scott Key on Posted in Georgia Court of Appeals, Supreme Court of Georgia, Uncategorized, Writing

If you read this blog regularly, it is no secret that I am a recent convert and evangelist for Matthew Butterick’s Typography for Lawyers. I have a long way to go in my legal writing before I reach a point of mastery, but I am happy to be paying attention. One of the chairs for the Spring Seminar of the Georgia Association of Criminal Defense Lawyers is also an acolyte, and I was invited to speak on typography for an hour. It turns out that I spoke on a little more than typography — subtopics included the need to provide a succinct summary of the desired result, the issues on appeal, and the reasons the court should grant relief, and the need to limit the number of issues on appeal as much as possible. Most cases, after all, are about just one thing.

I was the next to last speaker on the last day. And, as passionate as I am on the topic, I feared that the topic was a bit nerdy and perhaps boring for some. I hedged my bets by putting some serious work into my presentation and the Keynote slides. Writing materials for a talk on typography is also an intimidating task. The project invites a more critical look than others might. And I put as much planning as I could into making the topic engaging.

It turns out that I was wrong to be afraid. Lawyers, even criminal defense lawyers, are a conservative lot and sometimes not good with suggestions about the need for change. And so it came to pass that I was the only speaker of the entire conference to get heckled. That’s right, in a talk on fonts and the structure of appellate briefs, given on the last day of a three day seminar in Savannah, Georgia, I had a heckler. The guy who spoke on abortion, contraception, and the right to privacy sailed right through without as much as a sigh.

I’ll add that I was thrilled to be heckled on this topic. It is heartwarming that anybody is passionate about typography to such an extent that she told me that an example brief I put on the screen “looked like [shiitake]” because I didn’t turn on full justify and that I was off my rocker for criticizing Times New Roman and Courier. I like passion, even when such passion is misplaced. I am thankful that the reception was so intense, and I also want to take a few lines to say more about these three things — justification (in a graphic design sense not in a theological sense, though I will strive to be graceful), the Courier font, and the Times New Roman font.

Full Justification is a Matter of Personal Preference

The audience member was a serious proponent of full justification, noting by way of simile, that my decision to left-align the text rendered an excrementitious product. The opinion was as wrong as it was hyperbolic. As to the hyperbole: at no point during the presentation did green flies begin to buzz about the screen where my Keynote was being projected. As to the heckler being wrong, I’ll respond here.

Butterick writes (and I defer to him because he wrote the book and because he is credentialed in this area) that “compared to left-aligned text, justification gives text a cleaner, more formal look.” He also notes that justification “alters the ideal spacing of the font, but in paragraphs of reasonable width it’s usually not distracting.”

In the end, he notes that “[j]ustification is a matter of personal preference. It is not a signifier of professional typography.” He cites as an example the fact that many newspapers mix it up.

I will add that I never endorsed either way. I just used a previous brief of mine, one where the text was left-aligned, as an example. The audience member has a strong preference for justification. She’s not wrong to have it but was wrong in the extent of her criticism of left alignment.

A Defense of Courier, Really?

I took some heat for my criticism of Courier. And I was actually quite surprised that anybody but a prosecutor or bureaucrat would feel so strongly about this font. This font served its purpose in 1955 when it was invented. The font was created for the “golfball” typing head that IBM was developing and would later premier in its 1961 Selectric Typewriter. The font, and other monospaced fonts, was created to deal with mechanical issues with the typewriter. To quote Mr. Butterick, “[monospaced fonts] were not invented to win beauty contests.”

To quote an article from Slate, “its design principles are little more than phantom limbs: Like any other typeface, it is whisked from the digital ether without regard for its original use. … What is most remarkable of all, of course, is that a typewriter font is still being used at all in the post-typewriter age.”

With the exception of Robert Caro, I do not know of anybody who still uses a typewriter. So, it really isn’t necessary to use a monospaced font.

When you use monospaced fonts, you get fewer words per page, and the font is hard to read when compared to proportional fonts. There really is no reason to use Courier unless a court rule requires it.

In 2004, Courier fell out of favor with the State Department. The preferred font is now Times New Roman 14.

It’s Time for the Decline and Fall of the (Times New) Roman Empire

The heckler also has a special place in her heart for TNR. It’s an okay font. Though its problem is its ubiquity. Using TNR is essentially not choosing a font at all. According to Mr. Butterick, the problem is the blah factor:

When Times New Roman appears in a book, a document, or advertisement, it connotes apathy. It says, “I submitted to the font of least resistance.” Times New Roman is not a font choice so much as the absence of a font choice, like the blackness of deep space is not a color. To look at Times New Roman is to gaze into the void.”

Finally, he advises, “if you have a choice about using Times New Roman, please stop. Use something else.” A person can choose Times New Roman and be passionate about it (I know one person who does and is). But that choice conveys apathy.

A Final Word

If you are in the Georgia Supreme Court or the Georgia Court of Appeals, you have little choice about your font selection. You can go with Courier New 12 and look like a prosecutor, or you can go with Times New Roman 14. At either of those courts, TNR conveys that you don’t want your appeal dismissed and that you don’t want to be sanctioned. It does not convey apathy. In client letters and in filings in other courts, you can and should (in the name of all that is holy) choose other fonts.

 

 

 

Video Interview: Discussing the Latest in the Trayvon Martin Case with LXBN TV

By Scott Key on Posted in News

Yesterday I had the opportunity to speak with Colin O’Keefe of LXBN TV on the latest developments in the Trayvon Martin case. In the short interview I give a brief explanation on the background of the case, touch on Florida’s unique “Stand Your Ground” self-defense law and compare the situation to two past cases that were similar and also received a significant amount of national media attention: the Duke lacrosse case and the Bernie Getz case.

SCOTUS Requires Effective Assistance at Plea Bargain Stage: Absurd?

By Margaret Flynt on Posted in Opinions and Analysis, Uncategorized

Today, the Supreme Court released two opinions that define standards for defense lawyers during criminal plea bargains.

First, in Lafler v. Cooper, No. 10-209, 566 U.S. ___ (2012), recall that Cooper was charged with assault with intent to murder and possession of a firearm. Cooper rejected a plea bargain after his attorney (wrongly) informed him that the state could not prove intent to murder since the shots were fired below the waist. Cooper was later convicted after a trial and received a harsher sentence than the original plea bargain.

In a five to four decision, the Court vacated the lower court’s decision and held: “Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.”

Justice Kennedy, relying on Missouri v. Frye, an opinion also released today, explained that:

“the right to adequate assistance of counsel cannot be defined or enforced without taking into account of the central role plea bargaining plays in securing convictions and determining sentences.”

Justice Kennedy was supported by Justices Ginsburg, Breyer, Sotomayor and Kagan.

Next, in Missouri v. Frye, No. 10-444, Frye was not informed of favorable plea offers before he pled guilty to driving with a revoked license. He was later sentenced to three years in prison—a sentence much harsher than the plea offers.

In another split decision, the Court held that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected, and applies to “all ‘critical’ stages of the criminal proceedings.”

This holding concerned Justice Scalia, who was joined in his dissent by Chief Justice Roberts and Justice Alito: “While the inadequacy of counsel’s performance in this case is clear enough, whether it was prejudicial (in the sense that the Court’s new version of Strickland requires) is not. The Court’s description of how that question is to be answered on remand is alone enough to show how unwise it is to constitutionalize the plea-bargaining process.”

In addition to written opposition to the Court’s holding, Justice Scalia reportedly gave an oral dissent, referring to the majority decision as “absurd” and “unheard-of.”

In short, both decisions clearly recognize a Sixth Amendment right to effective assistance of counsel at the plea bargaining stage, even though there is no constitutional right to a plea bargain.

Erroneous Verdict Form = New Trial

By Margaret Flynt on Posted in Opinions and Analysis, Supreme Court of Georgia, Uncategorized

On Tuesday, the Georgia Supreme Court unanimously ruled that a Fulton man’s convictions would be reversed due to an improperly worded verdict form. Cheddersingh v. State, S11A1929.

In 2008, Soniel Cheddersingh was convicted of malice murder, aggravated assault, armed robbery, possession of a firearm during the commission of a felony, and possession of firearm by a convicted felon. At trial, the jury was given as set of written jury instructions, including a preprinted verdict form. The verdict form stated: “As to the offense of Murder (O.C.G.A. § 16-15-1), we the Jury unanimously and beyond a reasonable doubt find the Defendant _______.” Below the blank space were the words “Guilty or Not Guilty.” The remaining charges were formatted similarly.

The Court held that the verdict form erroneously instructed jurors that to find the defendant not guilty, they had to do so “beyond a reasonable doubt.” This error would mislead jurors about the presumption of innocence and the burden of proof, and could cause a reasonable juror to believe that the defendant has the burden of proving his innocence beyond a reasonable doubt. Despite proper oral instructions by the judge prior to jury deliberations, as well as sufficient evidence against the defendant, the Court reversed all of Cheddersingh’s charges. Justice Hines, writing for the Court, reasoned that:

“The presumption of innocence is fundamental to a fair trial and a conviction resulting from a procedure in which the trial court misinformed the jury regarding that presumption affects not only the fairness of that proceeding itself, but public confidence in the judicial process as a whole.”

According to one report, it is unclear how many verdicts were potentially contaminated by the erroneous verdict form.

This case reminds appellate lawyers of a few important points:

  • Look for issues everywhere. Even in the boring pattern jury instructions and verdict forms. This part of the analysis is always tedious to me, but it’s necessary.
  • If it seems too simple to be true, it still might be an issue. I can’t help but wonder how many other lawyers overlooked the issue in Cheddersingh because it was so obvious.
  • When reading jury instructions and other materials given to the jury, analyze them as though you are not a lawyer. Everyone who went to law school knows that the burden of proof is on the State, not a criminal defendant, but lay people don’t always know this, which accounts for the holding in this case. Make sure that the jury instructions give all of the elements of the offense and cannot be construed to mean something other than what the law allows.
  • Double check all of your pending appeals for erroneous jury instructions and verdict forms (if you haven’t already).

GPDSC’s First Executive Director Weighs In

By Scott Key on Posted in Attorney-Client Relationship, News, Opinions and Analysis

Aly Palmer, a reporter with the Fulton Daily Report, read the exchanges of the last few days and reported on it at the ATLaw Blog. Michael Mears, an Associate Professor at the John Marshall School of Law and the man who was GPDSC’s very first Executive Directer when it was created, wrote a very thoughtful comment. I’ll quote a passage from it here:

Scott Key is absolutely correct that the current executive branch decision of the governor’s public defender agency creates dual standards, one standard for those criminally charged individuals with money and the clients of the public defender office.

He goes on to note the number of ways that the executive branch’s decision runs afoul of ethical standards, not just the Georgia Rules of Professional Responsibility, but also ABA standards and standard for how Federal defenders should conduct themselves in conflict cases. And Professor Mears says that nothing less than the credibility of GPDSC is at stake in this question.

My Reply to the Circuit Public Defender

By Scott Key on Posted in Attorney-Client Relationship, News, Opinions and Analysis, Uncategorized

To catch you up to speed, I recently blogged about GPDSC’s recent argument to the Supreme Court of Georgia that public defenders should have the right to represent clients in the same circuit public defender’s office even when there is a conflict in the representation. Mr. Samuel Merritt, a Circuit Public Defender disagreed. I posted his comment, quite a lengthy one, as a blog post yesterday. I commend both to your reading. I also am going to offer some observations below about Mr. Merritt’s argument.

The Ad Hominem Arguments

Mr. Merritt does a couple of rhetorical things in the post. They’re both worth examining as examples of a classic ad hominem attack. An ad hominem argument is an attempt to refute the truth of a claim by pointing out something negative about the person supporting it. Mr. Merritt shrouds the opening and closing of this argument with this rhetorical device. Note that paragraph one is an attack on me as either uninformed or misinformed. Of course, Mr. Merritt doesn’t know me at all and can’t possibly know how informed I am. He doesn’t know, for instance, that I am the chair of the amicus committee for the Georgia Association of Criminal Defense Lawyers and that our committee, in conjunction with our organization’s indigent defense committee chair provided amicus support for a similar proposed rule regarding conflicts in public defender’s offices. He wouldn’t know that I have read the briefs, watched the oral argument in its entirety and have been in conversation with our indigent defense chair, himself a man who represents indigent defendants, about this rule. But his post is not about me, it’s about the fact that he disagrees with me.

And Mr. Merritt’s argument also closes with an ad hominem attack, this one a bit more powerful for its subtlety. I’ll quote it verbatim to demonstrate its worthiness to be included in a philosophy 101 textbook as an example of the ad hominem fallacy: “But I do take issue when someone from outside the public defender world undertakes to criticize one of my colleagues …” This passage is from Mr. Merritt’s last sentence. We have two choices in how to interpret this passage. One, is that it’s merely a rhetorical device. Better to attack me as the person making the argument than to attack the argument itself (it’s the kind of thing, by the way, that prosecutors often do in closing argument.). At least, I hope that it’s merely a rhetorical device. The less charitable view of the argument is that it expresses an honest belief that nobody had better dare criticize GPDSC or its actions unless they are a person within that system. I am hesitant to indulge the latter too terribly much because of how offensive it potentially is. GPDSC, as Mr. Merritt points out, is a government agency. And it is troubling to think that there is any government official or agency that is beyond criticism from an ordinary citizen unless the citizen part of that “world.”

Think, for a moment, how the argument sounds if directed to criticism of another government agency. Don’t like the governor? Tough. You don’t work in his office. Don’t like what the legislature is doing? Unless you are a legislator yourself, I take issue with your right to even say things about the legislature. So, you’ll see, I hope that the closing comment was merely a rhetorical thing. If it expresses an honest heartfelt belief about my right to even criticize, then it is a perfect example of the iron law of bureaucracy I spoke about in my previous post. The First Amendment, of course, exists precisely so that ordinary people outside the “world” of government can criticize it. And Mr. Merritt’s colleague appeared at the Supreme Court as a government agent, in a public courtroom, where he articulated an official agency position. When he did that, I understand (not merely an understanding I developed in law school but an understanding that dates back to a high school civics class I took in the 9th grade) that citizens can criticize. If I’m wrong about that, either government has changed or I’m just fundamentally mistaken. Or maybe I’ve been teleported to Iran and was unaware until recently.

Another observation before I move on. I’m not sure what the membership requirements are to enter the “public defender world.” Apparently, the fact that I carry an indigent appellate caseload (albeit from a county that opted out of GPDSC and therefore funds experts and actually pays the lawyers without cutting their bill) and have for the past ten years, does not make me eligible for citizenship in the “public defender world.” And perhaps Mr. Merritt didn’t know these things about me before he penned his comment in which he criticizes me for being uninformed. And if you, as the reader, are a citizen of the State of Georgia, you are bona fide to criticize Mr. Merritt’s colleague, too. Why? Because he is part of a government agency that took a public position on that agency’s behalf in a public courtroom. Were the Justices who questioned Mr. Merritt’s colleague at the oral argument out of line, too? They, too, are not part of Mr. Merritt’s “public defender world.”

The Attorney General’s Role

Mr. Merritt calls the fact that the Circuit Public Defender and the Attorney General appeared as co-counsel at the argument a fairly normal thing – “[h]ardly a surprise, a secret, or a sign of skulduggery.” He is right about the fact that the Attorney General represents executive agencies. And, yes, GPDSC, is an executive agency. It was not always so, of course. At its creation, GPDSC was in the judicial branch of government. In 2008, Gov. Perdue and the Georgia General Assembly moved GPDSC into the executive branch, the same branch of government as the attorney general, the prosecutor who seeks to put defendants in jail, and the police officer who arrested the defendant. That move, itself, was criticized as creating an inherent conflict. A surprise? Hardly. A secret? Not at all. In fact, the public defender and the Assistant Attorney General shared the same table as co-counsel in a very deliberate and public way (which was part of the point of my original post). Sculduggery? At a systemic level, I’m not so sure.

The attorney general’s office represents the State at the appellate level in murder cases, in cases where the constitutionality of a criminal statute is at question, and on certain occasions to prosecute indigent defendants in trial courts. So, yes, it is interesting to note that the attorney general is also GPDSC’s lawyer. My original post was about one type of conflict. But I welcome the opportunity to speak of another.

Financial Incentive

I want to spend a little time with this argument: “a public defender’s office is NOT the same as a private law firm because public defenders do not have a financial interest in the outcome of their case …” (author’s all caps). As a lawyer in private practice, I actually don’t have a financial interest in a case’s outcome. If I took a criminal case on a contingency arrangement (“you don’t pay unless I get you acquitted or your conviction reversed on appeal”), I’d likely go out of business before the folks in Atlanta could disbar me. My clients pay me to represent them, but my fee arrangement is not results-based. I’d commend my fellow member of the bar to Rule 1.5 (d)(2) of the Georgia Rules of Professional Conduct.

The conflict rule does not exist to deal with a profit motive. The conflict rule exists so that a lawyer’s duty to one client does not conflict with a lawyer’s duty to provide zealous advocacy to another client. It’s not a matter of finances, it’s a matter of loyalty. I’d commend my fellow member of the bar to the Comments to Rule 1.7 of the Georgia Rules of Professional Conduct. Finances aren’t mentioned at all. Count the number of times you see the world “loyalty” or some similar word.

To be sure, I’m more likely to be hired if I’m a good lawyer than a bad lawyer. And I’m more likely to command a better fee if I can do a good job than if I’m mediocre. And while being a public defender is certainly different, I would hope that there are still incentives to be good at your job. And I would hope that those incentives are somewhat financial (if you can’t do the job well, you lose your paycheck). And I am sure that there must be performance standards in place for circuit public defenders as well. There’s a profit motive for all of us, even if we are employees in a law firm or a public defender’s office.

Again, why should a client who hires a private lawyer expect a different duty of loyalty than a client who must rely upon GPDSC? Why does the definition of what is ethical differ based upon the amount of money in a person’s bank account?

Profit motive fuels GPDSC’s argument. With a legislature that chooses not to adequately fund the system, the agency seeks to change the very definition of what ethical representation is. But they don’t seek to change the game for those with money. If economics weren’t an issue, would GPDSC ever undertake its present course of action? Would the agency seek to lower the bar on principle alone? One would hope not.

Enter the Star Chamber

Mr. Merritt refers to the meeting of the Formal Advisory Board as a “Star Chamber Proceeding … that the public was not able to attend.” And he refers to the “brand new idea that the imputed conflict rule applies to public defenders.”

My knowledge of 14th through 16th century English history is a bit rusty, but I thought that the Star Chamber was a secret court where people were prosecuted and were sometimes ordered to be beheaded. I was unaware that the Star Chamber promulgated rules for barristers.

I perceive no (to borrow a word) “skulduggery” in the fact that a State Bar meeting where proposed formal advisory rules are promulgated would be closed to the public. The State Bar of Georgia is not a governmental entity. It is set up as as self-regulating professional association for persons in Georgia who practice law. I would commend my fellow member of the bar to Rule 4-402, which sets out the membership and procedures of the Formal Advisory Rule Committee. There is a place on the Board for one member of the Georgia Association of Criminal Defense Lawyers and one member of the Georgia District Attorneys Association. Note, that the criminal defense lawyer representative could either be a public defender or a private lawyer. There also seats for five members of the Bar at large. And there is a place for a faculty member of each Georgia accredited law school (who could be an indigent defender, assuming that a faculty member who provides indigent defense services is a bona fide member of the “public defender world”) There is also a place for a member of the Investigative Panel (who could be a public defender) and a member of the Review Panel (who could be a public defender). If public defenders are not on that committee, it could be because either (1) there’s a vast conspiracy afoot to get them out of the room; or (2) because public defenders aren’t terribly active in the Bar. I don’t want to risk making another uninformed comment on this subject, so I won’t guess which.

Also, one more thing as to the “Star Chamber” piece. The Board operates by a transparent set of rules. They’re worth reading.

The Notion of “New Law”

The conflict rule isn’t new. I’ve been out of law school for around a decade, and I remember hearing about it in my Professional Responsibility class. I think it might have been on day one – right after the professor finished explaining the syllabus. Rule 1.7 predates GPDSC. Nor, by the way, is the concept of imputed disqualification anything new to the practice of law.

The “new,” “dreamed up,” “incorrect and frankly insulting” rule states simply this: “[l]awyers employed in the same circuit public defender office in the same judicial circuit may not represent co-defendants when a single lawyer would have an impermissible conflict in doing so.” If a public defender is insulted by this language then so should every lawyer in every office or firm where the concept of imputed disqualification applies. I suppose we could scrap Rule 1.10 altogether, reasoning that it hurts our feelings and that the Bar should just trust us all. By that rationale, perhaps we should scrap the Rules of Professional Conduct wholesale.

Conclusion

If the fact that I am not a member of the “public defender world” prohibits me from criticizing a particular government agency, then I suppose you’ll have to add another count to my indictment. And if I was misinformed in my previous post, I hope that I have been remediated through my links above. After reading Mr. Merritt’s observations, I am still among the ranks of “most lawyers” who disagree with his position, probably more so now.

If a member of the agency “takes issue” with my criticisms again, then I suppose that there is just no hope for me.

 

 

Circuit Public Defender Responds to My Post

By Scott Key on Posted in Uncategorized

A Circuit Public Defender attempted to comment on a recent post of mine. For some reason, it never cued up for moderation. So, I am posting his comment here. I’ll likely respond this week when I dig my way out of this brief I am writing.

 

 
I’m not sure you have all of the facts and I’d appreciate an opportunity to
make some observations and clarifications.

For instance, the reason the AG’s Office was representing the public
defenders is because . . . the AG’s Office always represents every executive
agency and GPDSC is an executive agency. Hardly a surprise, a secret, or a
sign of skulduggery.

Also, every single prior appellate decision in Georgia that has dealt with
the issue has recognized that a public defender’s office is NOT the same as
a private law firm because public defenders do not have a financial interest
in the outcome of their cases and so the imputed conflict rule doesn’t apply
as long as ethical screens are in place to preserve confidentiality. (That
was the state bar’s own opinion in 2007, see Proposed Formal Advisory
Opinion No. 07-R1.) It’s the State Bar’s Formal Advisory Board, in a
star-chamber proceeding in 2010 that the public was not able to attend, that
came up with brand new idea that the imputed conflict rule applies to public
defenders.  (Heck, I’m dues-paying member of the bar and I was denied entry
to the proceeding because I wasn’t a member of that particular board–no
public defender is a member I believe although there is a district
attorney).

At that closed board meeting in 2010, this new rule was dreamed up under the
incorrect and frankly insulting assumptions that public defenders care about
anything other than their own client, that public defender supervisors
choose sides in multiple-defendant cases, that public defenders snoop around
in each other’s offices, and, perhaps most significantly, that conflict
lawyers from other towns who are not full-time dedicated public defenders
can get as good a result as quickly as the full-time public defender who
works with the same judges and the same prosecutors in the same courtroom
all the time can get. (Remember, most of Georgia is not like Atlanta; when
we have to send a case out of the office, we often have to send it to
lawyers that are far away and do not get our “home cooking” in court.) A
very wise career public defender once pointed out that, every time we have
to send a case out of the office, we are doing that client a disservice.

Oh, and last but not least–the young statewide public defender system has
been rocked by budget shortfalls since we started operations on January 1,
2005 and the legislature has seemed close to getting rid of it entirely and
going back to the patchwork county based public defender system several
times. So, when the State Bar comes up with a brand new rule that imposes
new restrictions on public defenders and which is at odds with the rule in
most other states, criticize single prior appellate opinion in Georgia, AND
the State Bar’s own 2007 opinion, and when that brand new rule is going to
cost so much money that it increases the odds that the legislature will
scrap the statewide public defender system, yeah, in those circumstances you
will find public defenders opposing the State Bar.  Not because we are
dedicated to the organization itself. No, because we are dedicated to the
goals of the organization. To the extent that imposing this new and
unnecessary rule taken from a minority of other states even slightly
increases the chances that the legislature will scrap the system, it’s a bad
rule for the indigent defendants in Georgia.

Now, I do understand that many if not most lawyers disagree with my position
so, no matter which way the Supreme Court decides to go, I’ll be happy to
comply and I’ll just hope that the legislature doesn’t carry through on the
many threats to throw public defense back to the counties. But I do take
issue when someone from outside the public defender world undertakes to
criticize one of my colleagues for suggesting that the rule the majority of
states follow is also the rule we should follow.

Thanks for your consideration,

Sam Merritt
Circuit Public Defender
Southwestern Circuit

Great Day for 4th Amendment With Unexpected Heroes

By Scott Key on Posted in News

Yesterday, was was the best day the Fourth Amendment has had in a decade. And, while Libertarians might not be surprised who the two heroes were, others might be taken aback. In one Fourth Amendment story, the hero was Associate Justice Antonin Scalia. And in the other, the hero was tea party Junior Kentucky Senator Rand Paul. In the first story, the heroism came in the upholding of the Fourth Amendment. In the second, the heroism came in its violation. Let’s start with the story of upholding.

In an opinion authored by Justice Scalia, the United States Supreme Court unanimously held that the government must get a warrant before placing a GPS tracking device on a person’s vehicle. In reaching this conclusion, the Court held that placement of a tracking device constitutes a search. Adam Liptak, of the New York Times summarized the opinion and noted that the divided rationale for the conclusion may raise as many questions as it answers. Writing the majority opinion, Justice Scalia reasoend that “the government physically occupied private property for the purpose of obtaining information.” Others have noted that the majority’s decision to base the opinion on concepts of trespass leaves unanswered more pressing questions about expectations of privacy in the digital realm. Still, this opinion is victory for supporters of the Fourth Amendment. And it is easy for a defense attorney fighting it out in the trenches to wonder if the Fourth Amendment has been abandoned. 

Also in the news yesterday was a story of Kentucky Senator Rand Paul’s run-in with TSA at an airport in Nashville. Sen. Paul set off a body scanner, with an alert to the knee area. TSA protocal calls for a frisk in this event, which the Senator refused and requested to go back through. TSA ordered him into a cubicle. When he then used his cell phone to call staffers to report that he would not make it to an event in Washington, he was told that he would be subjected to an even more intense screening. Talk about picking on the wrong guy. Writer Jerry Pournelle notes that TSA’s action violated more than the Fourth Amendment. It actually is a violation of Article I, Section 6 of the United States Constitution to arrest or detain for questioning a US Senator in his travels to attendance in a session.

The third unlikely hero in yesterday’s Fourth Amendment story was Fox News with its 6-minute interview of Senator Paul. Well worth a watch. Sen. Paul was told off the record by TSA officials that the machine is set up to randomly alert on people. So, the mandatory detention (TSA said it wasn’t a detention. Defense attorneys will recognize law enforcement’s attempts to make something not a detention simply by giving it a different label) and pat-down was required. And it was unacceptable to send him back through. 

And for every story with a hero, there must also be a villain. Here, it is actually the Obama White House, that issued a statement yesterday in support of the TSA. In fact, in supporting the TSA, the White House referred to Senator Paul as “the passenger.“ 

I’ve been a long-time Democrat. I’ve been willing to put up with their social programs because I’ve long thought that Democrats were the best hope for my civil libertarian views and for why I do my job everyday. It was certainly a good place for my hopes during the recent Bush administration. Ron Paul’s success in this primary season, Scalia’s stance on the Fourth Amendment, Rand Paul’s stand yesterday, and Fox New’s attention to the matter, is beginning to sway me. Republicans seem to be shifting to a consistent policy on small government in their opposition to large social programs and in their opposition to the ascendancy of a government police state. Where might my vote go in November?

 

The Implications of the New SCOTUS Eyewitness Case on Georgia Cases

By Scott Key on Posted in News, Opinions and Analysis
Adam Liptak of the New York Times reports that the Supreme Court has held that courts are not required to conduct pre-trial hearings to determine whether the circumstances of an eyewitness identification were so unreliable that the jury shouldn’t hear about the lineup. The Court has held that, only in instances of police misconduct in the identification procedure, should the judge exclude the evidence. Otherwise, the Court held that defendants should rely upon cross-examination to attack the reliability of eyewitness identification.

A dissent, written by Justice Sotomayor, reasons that improper identifications are the leading cause of wrongful convictions nationwide and that the judge should play a bigger role as gatekeeper to safeguard misidentifications.

The news may actually be good for Georgia criminal defense attorneys for several reasonsIt can often be difficult to admit expert witness testimony on witness memory. The Supreme Court’s new focus on the courtroom as the crucible for testing witness memory could arguably open the door to in-court scientific testing of identifications. It will be increasingly important to educate the jury about identifications as the burden of testing reliability shifts from the judge to jurors.

  • This may be a good time to focus on jury charges. The Georgia Supreme Court has been on the cutting edge in this area for the last decade. It has eliminated the “level of certainty” charge, reasoning that witnesses are just as certain about misidentifications are they are about good identifications. Since the jury will now be the arbiter of eyewitness reliability, it is time for more jury charges to guide them in this endeavor.
  • The precedent isn’t really all that earth-shattering. You may be practicing in different places than the places I go, but judges haven’t been tossing identifications left and right. In fact, the pre-trial ruling has often placed a gold star around the identification, rendering in-trial rulings harmless along the way. The holding shifts the case from one big ruling before trial to a bunch of little rulings on jury charges, expert witness admissibility, and curative instructions. Also, since cross-examinations are now the be all and end all, judges are going to have to give lawyers wider latitude or risk reversal. It’s now time to push the envelope on cross-examination of eyewitnesses. In addition, since it’s now all about confrontation, it will be time to preserve objections under the Confrontation Clause.

So, moving forward, it’s a good idea to keep the case handy and cite to it as positive authority to attack the eyewitness at trial through cross-examination and through experts.