Saturday, September 17, 2011

Breathtaking Idaho

Breathtaking Idaho

As I am writing this column, I am sitting  against a Rocky Mountain fur camouflaged by thick logs and brush. I am hunting the Idaho black bear. A tributary of the Snake River flows to my left and an open meadow scattered with various conifers surrounds me. This is truly my natural element.

I will be in Idaho for a week and have been made a believer in the American west. For starters, the people here closely resemble our men and women at home. They are friendly, fiercely independent, and take their 2nd Amendment rights as seriously as our Founding Fathers.

The people of this wild country rely on themselves, are eager to serve others, and take care of this beautiful environment. They do not have a panic attack (like I do) when cell service is unavailable and seem to personally be able to manage by self reliance and the voluntary help of their fellow citizens.  If a disaster hit the state of Idaho, at least in the mountain areas, I am sure that the people would not wait on government assistance, but would take action immediately.

Idahoans also seem to be serious environmentalists.  To my surprise, I have not found even one piece of litter on my trip so far.  This provides an example that reasonable environmentalists and hunters/conservationists actually have much in common.

I am told that the state of Idaho has just over 1.5 million inhabitants with around 30% of those people living in Boise. (I must say that I am still not over the Dawgs losing to Boise State, but I have chosen to look past all of the blue and orange in the city).

Many of the Boise residents leave after work and travel north to hunt the bear, elk, whitetail, and mule deer that inhabit the vast national forest. In fact, around 80 percent of the state is publicly owned wildlife habitat.

Because of the culture of personal responsibility that exists here, the crime rate is very low. I met a corrections officer in Boise who was kind enough to give me some interesting statistics. When I asked her where a large supermax facility may be located, she gave me a puzzled look and said that there are currently only 800 maximum security inmates in the whole state. Wow.

She did say that the death penalty will be handed out in Idaho though it has been a long time since an execution took place. Like most states, lethal injection is used.  But, in keeping with their western tradition not too long ago, an inmate could have also chosen the firing squad.  This practice was ended by the governor’s signature in 2009.

I feel blessed and very grateful to have had the opportunity to experience this part of America. Idaho seems to have brightened my attitude about the current state of this country.

Remember, we are an independent, self reliant people who trust in God to lead our country on the right path. God himself gave us these vast natural resources to enjoy and protect.  He also presents tough challenges for us to face and expects to ask for His guidance.

I pray that we can dig deep in the next few months and years and live the way our Founding Fathers were inspired to set the example.  Let’s get it done, folks.

Thursday, September 8, 2011

DRUG AWARENESS SUMMIT

THE SIXTH ANNUAL DRUG AWARENESS SUMMIT

On October 20, 2011, our community will be holding one of the most critical educational opportunities that exists today.  The Carroll Meth Awareness Coalition (CMAC) will be hosting their annual Drug Awareness Summit at Tabernacle Baptist Church in Carrollton from 8am to 4pm. 

To give you a little background about this vital organization, the mission of the Carroll Meth Awareness Coalition is to provide support for the community in combating the epidemic caused by the use, distribution and manufacturing of methamphetamine and other controlled substances. It is the Coalition’s goal to offer prevention and education programs as well as links to treatment services and law enforcement agencies. The coalition consists of churches, schools, community agencies, businesses, local civic groups and non-profit organizations.

One aspect that I particularly admire about CMAC is that it is a faith based organization.  Without faith based support, the chances of recovery from substance abuse are less than when a belief system is used in conjunction with other help.

This year, the Summit will be not only focusing on meth, but on other “dead ends” that create decay in the lives of the citizens in our community.  These other issues include prescription drugs, synthetic drugs, gangs, violence, and other related topics.  The speaker lineup includes doctors, addiction counselors, and law enforcement officers. 

As I have stressed in some recent columns, education and the willingness to face these issues head on are the key to eradicating the evil that persists in our community and destroys the lives of our children.  I can assure you that this organization is at the forefront of this fight. 

I hope that many of my readers will attend this event.  You will be able to see first hand what I consider to be the number one classification of problems affecting our community as a whole.  We all need to get behind the Coalition with full force.

For more information about CMAC or the upcoming Summit, just visit www.carrollsubstanceabuse.org or call 770-832-9140. 

If you cannot attend, please consider giving a financial donation to this organization. 

Checks need to be made out to the Community Foundation of West Georgia with CMAC in the memo line.
They can be mailed to:
Community Foundation of West Georgia Inc.
807 South Park St.
Carrollton, Ga. 30117

I have been told that any contribution will be greatly appreciated.  Your time and financial gifts are needed. 

Monday, September 5, 2011

The Capital Trial of Jesus

THE CAPITAL TRIAL OF JESUS CHRIST

Around 2000 years ago in the Roman province of Judea, a death penalty trial took place that entirely changed the world.  During the Passover celebration, Jews gathered by the thousands in the ancient city of Jerusalem.  During this festival, Jesus of Nazareth and his disciples journeyed to the city for what would be the last days of his life.

The Jewish religious leaders became aware and fearful of Jesus’s presence in the city.  They had heard that he was claiming he was the Messiah spoken of by the prophet Elijah and was the King of the Jews.  Acting on a tip from one of the disciples, Judas Iscariot, the religious leaders went to the Garden of Gethsemane in the middle of the night and arrested Jesus.  A warrant for his arrest was not needed.

The religious leaders, with their abundant laws and regulations, brought Jesus back into the city where he was questioned by some of the members of the high council and accused by numerous false witnesses.  This questioning and “trial” was done under the cover of darkness which was against Jewish law.  Jesus was beaten, ridiculed, and interrogated until the Jewish leader, Caiphas, finally asked him if he was the Son of God.  Jesus replied, “Yes, it is as you say”.       .  This response was enough for the Jewish council to issue a verdict of guilty for the crime of blasphemy.  The sentence for such a “crime” was death.

However, the religious leaders could not carry out a death sentence in their occupied territory.  A death sentence could only be ordered by the Roman provincial governor.  So, the religious leaders brought Jesus before Governor Pontius Pilate the next morning.  To the governor’s amazement, Jesus did not reply to the charges made by his accusers.  Additionally, Governor Pilate did not find that Jesus had committed a crime and was reluctant to punish an innocent man.  However, Pilate was tired of political uprisings in his outlying province and would make sure that the violent crowd did not get out of hand.  In order to pacify the people chanting “crucify him”, Pontius Pilate released a murderer named Barrabas and ordered the execution of Jesus Christ.

Before he was executed, Jesus was severely beaten by Roman soldiers.  He was then lead to his execution site just outside the walls of Jerusalem.  He was hung on a cross and left to die an excruciating death.  As he suffered on the cross, the Romans continued to ridicule, taunt, and insult the Son of God.

Alongside Jesus were two criminal defendants hanging on crosses.  One of them realized that Jesus was being unjustly executed.  He asked Jesus to remember him.  Jesus promised this violent criminal that he would join him in paradise.

Jesus finally died and was buried.  He was arrested without probable cause, tried on false and lacking evidence, and executed by an angry mob with the blessing of a weak politician.  There was no appeal, plea for clemency, or stay of execution.

However, unlike in most death penalty trials, the story of Jesus was not complete.  He rose from the grave on the third day and reunited with his scattered and afraid disciples.  After the disciples saw Jesus, they began their own ministries to spread the word that Jesus died for all of our sins.  As a result, human beings were saved from their own egregious inhumanity.  The world was saved after the death penalty trial of Jesus Christ. 

Limited Role of Judges

THE LIMITED POWER OF TRIAL JUDGES

Trial judges in Georgia wield enormous power in their respective courtrooms.  They have the power to take children from their parents, award millions of dollars to litigants, and put people in prison for life.  However, the most important power that a trial judge has is the mandate to oversee the entire proceedings in a case.  This means that the judge should function as a disinterested entity who applies the law and sometimes finds the facts in a case.  United States Supreme Court Chief Justice John Roberts put it best when at his confirmation hearing, he said that the role of a judge should be like that of an umpire in baseball calling strikes and balls.

So, how much involvement can a judge have in the process of a criminal prosecution?  If the prosecution takes place in Georgia, the answer is not very much.

Last month, The Georgia Supreme Court reversed the conviction of a defendant (Elmer Pride) in Fulton County who had been serving a 20 year sentence on a guilty plea made in connection with allegations that he repeatedly stabbed his estranged wife in front of their young children because the trial judge became too involved in the case.  The Court found that the trial judge improperly inserted herself in the defendant’s plea negotiations by saying that she wanted him tried so she could sentence him more harshly.

In this case, Pride’s attorney negotiated a deal with prosecutors under which Pride would serve 13 years in prison.  However, the judge would not accept the deal, even when prosecutors explained they were trying to avoid having the children testify.  The trial judge told the attorneys that the lowest plea agreement she could accept in good conscience was a prison term of 20 years.

Pride ended up entering a guilty plea to a variety of felony offenses under the judge’s terms and received a sentence of 20 years in prison.  He later tried to rescind his plea which was denied by a superior court judge.  The Georgia Supreme Court ended up hearing the matter and issued the ruling.

Justice Hunstein, who wrote for the majority, said that judicial participation in the plea negotiation process could not go so far as to invade a defendant’s constitutional rights.  She said that due to the force and majesty of the judiciary, a judge’s participation in plea negotiations may skew the defendant’s decision making and render the plea involuntary.  Justice Hunstein went on to say that the trial judge crossed the line in repeatedly stating she would impose a harsher sentence if Pride went to trial, noting the comments had led Pride to agree to terms far less favorable than originally negotiated with the district attorney’s office.

Quite frankly, I am pretty surprised that the Court reversed the conviction in this case.  In reality, defendants who go to trial and are convicted typically serve more time than defendants who work out a plea deal in a case.  There are many legal and legitimate reasons for this, but it is a pretty consistent rule in all of the counties where I practice.  It seems that the main difference in this case is that the judge actually voiced her opinion about punishment before the trial or plea even took place.  She also said that she felt like the state had a good case which is prejudging the guilt of the defendant.

A vast majority of the judges who I appear before do not come close to involving themselves in plea negotiations.  I must say that sometimes I wish that they could.  But, after this decision in Fulton County, you will see trial judges taking an even less active role in the workings of criminal cases.

Kids and Confessions

KIDS AND CONFESSIONS

A vast majority of the public knows the term “Miranda rights” because of television and popular culture.  In general, a suspect in a crime must be warned of his rights under Miranda for a statement made in custody to be admissible at trial.  The main thrust of these warnings is that the defendant does not have to say anything and can remain silent.  Prosecutors routinely use Mirandized statements from defendants during the criminal trial of the defendant.

But, does the age of the defendant have any bearing on the Miranda analysis?  In a 5-4 decision, the United States Supreme Court says yes.  In the recent case of JDB v. North Carolina, the Court wrestled with the question of whether the defendant’s age should be considered when determining if a person is in custody.  This analysis is important because Miranda rights only apply to suspects who are actually in custody.

The JDB case arose out of police questioning of a 13 year old boy in connection with two burglaries.  The boy was taken from his middle school classroom by a uniformed officer to a school conference room where, behind closed doors, he was questioned for about 45 minutes by a second officer who knew the boy’s age.  The boy finally confessed.

The trial court refused to suppress the confession given by the boy holding that the boy was not in custody at the time of the confession.  The boy’s age was not taken into consideration by the lower court.  Eventually, the case made it to the highest court in the land.

In order for a court to find that a suspect is in custody, the court must look at the circumstances surrounding the interrogation and then ask whether a reasonable person would have felt free to leave.  The Supreme Court has now ruled that when dealing with children, the age of the child must be considered.

The majority of the Court stressed that children are not “miniature adults” and that it is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave.  “Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child’s age properly informs the Miranda custody analysis”.

This is a pretty interesting and important case for a couple of reasons.  First, this is one of the first federal cases that I am aware of that directly deals with the application of Miranda rights to juvenile offenders.  Secondly, the facts of this case surround an interrogation at a school as opposed to a police department interrogation room.  This is a key development in juvenile law because the opinion seems to suggest that a child can easily be placed into custody while at school.  Many of the juvenile court cases that I have worked on have stemmed from interrogations taking place on school property.

Its also a decision based on common sense.  If a court must consider circumstances such as the intelligence of the defendant, the defendant’s surroundings, the officer’s demeanor etc. in determining whether or not someone is in custody, why should their age be ignored.  Would a 10 year old child feel the same freedom to walk away from a police officer as a 40 year old man? 

High Court Erodes 4th Amendment

HIGH COURT ERODES 4TH AMENDMENT IN SEARCH AND SEIZURE CASE

Last month, an 8-1 majority of the United States Supreme Court ruled in favor of law enforcement in a case involving the exigent circumstances rule which is an exception to the 4th Amendment’s search warrant requirement.

The case, Kentucky v. King, arose when police were chasing a drug trafficker into an apartment building but did not know into which of two apartment units the suspects entered.  They approached the unit where they said they smelled marijuana.  After knocking and announcing their presence, the officers said they heard noises inside “as if things were moving around.”  Thinking that evidence was being destroyed, they kicked in the door and found illegal drugs.

The police arrested Hollis King, who subsequently sought to have the drug evidence suppressed.  The Kentucky Supreme Court ultimately held that the exigent circumstances (the possible destruction of evidence) could not justify the warrantless search.

In reversing the state high court, Justice Alito wrote, “A rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well established exception to the warrant requirement.”  Where the police, as in this case, did not create the exigency “by engaging or threatening to engage in conduct that violates the 4th Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed,” he said.

Justice Ginsburg authored the lone dissent.  As the Kentucky Supreme Court found, she said that nothing made it impractical for police to post officers on the premises while they went to get a warrant to enter the apartment.  “The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct,”she wrote.  “How secure do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving around, forcibly enter and search for evidence of unlawful activity?”

I must say that in this rare circumstance, I fully agree with Justice Ginsburg.  While she does not generally adhere to a judicial philosophy that appreciates the original meaning of the Constitution, she seems to make exceptions on 4th Amendment cases.

No offense to my law enforcement friends, but my concern is that this case will make it easier for an officer to enter a home without the hassle of getting a search warrant.  This case described the shuffling noises that were heard inside to justify a warrantless search.  Next time it may be a banging noise, unusual music, or some other strange thing that can be heard from outside the house.  Where do we stop?  The slippery slope of 4th Amendment warrant exceptions has steepened over time and it is difficult to draw the line in these type of cases.

The 4th Amendment warrant requirement is one of the aspects of American jurisprudence that makes the citizenry the safest group of people in history.  The concept was taken from England where the king and his minions could ransack the homes and imprison his subjects with impunity.

By strictly applying this constitutional protection, we are secure in our homes, bodies, and personal possessions.  The courts must take an originalist approach in applying the 4th Amendment warrant requirement to cases where a search warrant was not secured.

Unfortunately, in order to protect the people, good and bad, you must sometimes allow a criminal to go free.  This is one of the truest realities of life. 

Implied Consent in Georgia

IMPLIED CONSENT IN GEORGIA

I have found that one of the key concepts of DUI procedure in Georgia is often misunderstood by motorists in our community.  This concept is known as “implied consent”. 

Implied consent is an idea that was created many years ago after cars and trucks became part of everyday life and the highways of our state became used with regularity.  The idea, which is outlined in the Georgia Code, encompasses the belief that because a motorist decides to use roads and other terrain to drive, that person has impliedly consented to submit to chemical testing if a law enforcement officer has a legitimate belief that the driver is impaired by consuming alcohol or drugs. 

When a police officer pulls a driver over and believes that the driver is impaired, he or she will frequently want for the driver to take a chemical test of their breath, blood, or urine.  Under most circumstances, the officer must read the implied consent warning.  The implied consent warning is typically read from a small card kept in the officer’s pocket.  The implied consent warning for motorists over 21 years of age informs suspects that (1) the officer is requesting a chemical test, (2) failure to submit to the test or blowing over 0.08 will result in a suspension of the driver’s license for 1 year, and (3) after taking the test, an independent test can be obtained. 

At this point, the motorist has an important choice to make.  A common misconception is that a driver should always refuse the test.  However, if the motorist refuses to take the state’s administered test, then the officer can file paperwork with the state whereby the motorist’s driver’s license will be subject to suspension.  This could put a defendant who may have just consumed 1 or 2 beers in an unfavorable position. 

However, if the motorist takes the state’s administered test, then the results of that test may be admissible in a future criminal prosecution for DUI.  A person who is well over the legal limit would have to deal with the consequences of a possible license suspension and the prospect of defending a case where a high blood alcohol content is involved.

Another important aspect of the implied consent law in Georgia focuses on the independent test.  I have had numerous clients who decided to take the state’s administered test and did not ask to have an independent test administered because they did not know that they had a right to get one. This request always needs to be made if the driver chooses to take the state’s test because the motorist has a right to have an independent test performed. 

The independent test is usually performed at a local hospital or other medical facility that has the means to legally obtain the driver’s blood or urine.  If the officer impedes the facilitation of an independent test or fails to reasonably accommodate the driver in obtaining an independent test, then the state’s administered test will be excluded from evidence at trial. 

The bottom line is that the implied consent law in Georgia is designed to strongly encourage motorists who are suspected of driving under the influence of alcohol or drugs to take a chemical sobriety test administered by law enforcement.  While there are differing opinions about the value of this law, it is probably a good idea overall.  The implied consent law assists law enforcement officers in keeping impaired drivers off the road. 

In order to avoid these consequences altogether, it would be a good idea to simply refuse to drive if you have had a sip of anything to drink.  Trying to gauge when you are “ok to drive” after you have been drinking is not a very effective way to avoid DUI related consequences.  Besides, having any amount of alcohol in your system while being pulled over by a law enforcement officer is never a pleasant experience. 

History of Voir Dire

THE HISTORICAL PERSPECTIVE OF JURY SELECTION

I have written a couple of columns in the past about some of the procedures associated with jury selection (voir dire) and the importance of jury service.  However, I have found that one of most interesting aspects of the voir dire process is found in the early historical record of our country. 

The word “voir dire” is a Latin term that means “speak the truth”.  In Georgia, juries are actually de-selected rather than selected by each side striking potential jurors from a case.  Each side usually has a good idea which jurors need to be removed from a case based on the answers that the jurors give during the voir dire process.  Today, voir dire is as much a fundamental American tradition as the right for a defendant to be presumed innocent in a criminal case until proven guilty beyond a reasonable doubt.  Without voir dire, the prosecution and defense would not be in a position to assist the court in developing the best jury for a particular case.  Thus, you could not actually have a trial by jury under such circumstances. 

Well, how did voir dire become such a fundamental American tradition?  As the United States was beginning to consider independence, England enacted the Massachusetts Jury Selection Law of 1760, which prohibited the questioning of jurors once the sheriff had chosen them for duty.  The inability of both parties to explore the views of potential jurors angered the citizenry and actually served as one of many justifications for independence. 

When our Founders drafted and signed the Declaration of Independence, one of the main justifications for breaking away from England was King George III’s depriving the colonists the right to be tried by a jury.  This continued denial of such a fundamental right based on natural law helped to spark the Revolution.

By the time the United States of America had come into being, voir dire had become a foundation of American jurisprudence.  One of the first legal cases addressing the importance of voir dire and cementing the right of parties to question juries about their preconceptions about a case was the treason prosecution of Aaron Burr.  In United States v. Burr (1807), Chief Justice John Marshall, while sitting as the trial judge, recognized that an impartial jury was required by the common law and secured by the Constitution.  This case put the world on notice that the United States was serious about protecting constitutional rights. 

Since the early 1800's, The United States Supreme Court has consistently recognized the importance of the voir dire process.  Case after case has held that the Constitution, particularly the 6th Amendment, recognizes the right to a trial by jury.  The prevailing view in legal circles today is that voir dire is the key tool for protecting an individual’s right to an impartial jury. 

Thomas Jefferson, perhaps the most courageous of our Founding Fathers, was quoted as saying “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”  It seems that Jefferson understood that holding government to its foundational, enumerated, and very limited principles is an ongoing process. I hope that a larger percentage of Americans will begin to understand why Thomas Jefferson felt this way. 

The Great Southern Outdoors

The Great Southern Outdoors

As I write this column, my family, friends and I are relaxing at Lake Wedowee in Randolph Co., Alabama. This Memorial Day weekend is special for many reasons. The biggest reason is that it gives us the opportunity to think about, pray about, and show gratitude for our troops both present and past. This weekend also reminds me that as southern Americans, we have a massive wealth of natural resources to enjoy with our loved ones.

This weekend, I am able to take my boys on one of the cleanest lakes in the southeast. Here, we experience the natural lake habitat which includes the waterfowl flying over at dawn, the fish in the lakes and streams, osprey nests, and the other fauna and flora which are native to this region..

The lake experience also makes me look forward to taking my son, Jake, down to  Meriwether County this fall. There is a peace which exists in the fall woods in Georgia that cannot be duplicated anywhere else. In the woods, you will see deer, turkey, and many other of God's creatures. This is all experienced while actually being in that natural environment as opposed to viewing wildlife and nature from a moving automobile.

In the mornings, the owls wake the woods with their hoots while the coyotes serenade throughout the night. Throughout the day, I can hunt with my son and teach him about the behavior and characteristics of the game animals that we pursue.  It is truly a blessing to be able to take your children into such natural environments.

I believe that God created us to commune with nature on a regular basis. In today's world, that may be harder to believe than in days past. Offices, automobiles, cell phones, and other modern inventions have taken us away from our natural environment. Many people would prefer to spend time indoors where the thermometer can be adjusted to the preferred temperature.

I am proud that Jake seems to have inherited my strong desire to be outdoors.  Shea and I can hardly keep him in the house when we are at home.  His yearning for adventure and interest in learning about the trees, animals, and environment has been a strong source of gratitude for me.

Fortunately, we live in a region of the country that not only provides enormous natural resources, but opportunity for us to enjoy it. Because of private property rights, we can own and use land in a manner that we see fit. Also, the states of Georgia and Alabama as well as the federal government have purchased property for public use as Wildlife Management Areas, state and national parks, and lake reservoirs.

This unique mixture of public/private land use allows Americans to experience the outdoors to the fullest extent possible.  In the United States, you can be rich, poor, or somewhere in between and still be able to live a lifestyle that includes the outdoors.  Hunting, fishing, camping, hiking, cycling, swimming, rock climbing and shooting sports are all freely available in this country.  I cannot say this for most countries on Earth.

We enjoy these freedoms because American soldiers and patriotic citizens have and continue to protect our Constitution.  I encourage all of my readers to get outdoors a little more this year.  When you do, also think about those Americans who have sacrificed to make your outdoor experience possible.

The Goodness of the American Lawyer

THE GOODNESS OF THE AMERICAN LAWYER

After practicing criminal law for a number of years, I have heard my share of lawyer jokes.  I must say that most lawyer jokes are quite funny because they are based on true events that take place in courtrooms.  In fact, I have probably seen things take place in court that are funnier than any joke that you could come up with.

Despite the good and bad natured jokes about lawyers and the sometimes negative press that we endure, I believe that my fellow attorneys are generally very good people.  Here are some of my observations about lawyers in the west Georgia area that support this conclusion:

1.    COMMUNITY SERVICE - I have noticed that lawyers in our community are some of the most giving people when it comes to time and money.  Whether it be representing someone on a pro bono basis or giving money to organizations like local churches and soup kitchens, lawyers are always there for support.

    For example, the West Georgia Trial Lawyer’s Association recently held our 2nd Annual C.A.R.E.S. Bicycle Helmet Giveaway at Mayfest in Carrollton.  We, along with the Carrollton FOP and the Carrollton Police Explorers gave out almost 300 bicycle helmets to children in our community to promote bike safety and injury prevention.

2.    FRIENDSHIP AND FELLOWSHIP - Some of my best friends in this world are other attorneys.  Personally, I have developed deep bonds with many of my colleagues through my practice, the storms of trials, and through our weekly Pathfinders Bible study which consists of lawyers and non-lawyers.  I can personally attest that some of the most loyal, trusted people I have come to know in my community are lawyers.

3.    JUSTICE SYSTEM - If I counted the number of complaints that I have heard over the years about the justice system, I would still be counting next month.  Nevertheless, as I have said many times in prior columns, we have the best system.  The attorney participants in that system significantly assist in making it work.

    Our judges must make the tough day to day decisions that have huge impacts on the lives of citizens.  The defense attorneys and prosecutors must put forward their respective positions of protecting the rights of the accused and of the victims of crimes.  The personal injury lawyers must protect the rights of the injured while the divorce attorneys are taking on the most devastating of circumstances when families are destroyed.

    This is all done in a relatively orderly manner and governed by the rule of law.  While many litigants are not happy with the outcome of their cases, the criminal and civil justice system provides for an alternative to raw human justice.  Raw justice would have such attributes as vigilante justice and violent retribution in criminal cases, the forceful taking of another’s property in civil disputes, and the violent disintegration of the family unit in divorce matters.  In a word, it would be chaos.

I am proud to be a member of my profession and am proud of my local colleagues as well.  We are a diverse group with different practice areas, and different belief systems.  But, I am happy that when I receive emails from people in the community with legal problems, I can, without hesitation, point them in the direction of a good local attorney who I can trust.

Georgia's New Immigration Law

GEORGIA’ NEW IMMIGRATION LAW


On May 13, 2011, Gov. Nathan Deal signed into law the Illegal Immigration Reform and Enforcement Act of 2011.  This new law, which is somewhat similar to the much publicized law in Arizona, is the most sweeping change in immigration policy in the history of this state.

While legal challenges are expected and might delay implementation, it is scheduled to take effect on July 1, 2011.

The law imposes new criminal penalties on anyone employing illegal immigrants. It also imposes new criminal penalties on anyone who uses fraudulent identification in order to get a job and on those who transport or “harbor” illegal immigrants. The law also gives law enforcement officers in the state the power to enforce federal immigration laws in certain circumstances and requires most private employers to use a federal verification system known as E-Verify to screen those who have been hired for jobs.

The new immigration law:

    1.    Creates a new criminal offense of aggravated identity fraud for anyone willfully using fraudulent documents to get a job. A person under 21 would be punished by 1-3 years in prison and/or a fine up to $5,000. Those 21 and up would face minimally 1-10 years in jail and/or a fine up to $100,000.
  
  2.    Empowers any peace officer with probable cause to believe a person has committed a criminal offense, including a traffic offense, to investigate their immigration status if they cannot produce valid identification and detain them if they are found to be in the country illegally.
 
3.    States that a person’s race, color or country of origin is not to be a determinant in investigating their immigration status.

 4.    States that a person who contacts the police to report a crime, as a witness to a crime or victim of a crime will not have their status investigated.
  
  5.    Requires that when anyone is held in county or municipal jail for any reason, an effort is made to verify that they are in the country legally and if they are not in the country legally, immigration authorities will be notified and they will be subject to detention.
  
  6.    Creates a new criminal offense: transporting or moving an illegal alien. Creates a new criminal offense: knowingly and intentionally inducing an illegal alien to enter Georgia. Penalties range from less than 1 year in jail and/or a fine to 1-5 years in jail and/or a fine.
        Creates a new criminal offense: concealing or harboring an illegal alien. Harboring is defined to mean anything that substantially helps an illegal alien to remain in the United States. Exceptions are: a person helping infants or children, a crime victim, in a medical emergency, a person offering privately funded social services, or attorney-client representation. Penalties mirror those for transporting an illegal alien.

    6.    Requires any private employer with more than 10 employees to use the federal E-Verify program to determine that any newly hired employee is in the country legally. This will be effective on Jan. 1, 2012 for employers with 500 or more employees, July 2012 for employers of 100 up to 499 employees and July 1, 2013 for employers of more than 10 but fewer than 100 employees. In order to receive a business license or renew a license, businesses will have to show they are registered with E-Verify. Violation of this will be a criminal offense.

Although this law will be tested by legal challenges, there is a substantial likelihood that it will pass constitutional muster.  Many of the problems with the Arizona law were preemptively addressed with this legislation.  Like it or not, the Illegal Immigration Reform and Enforcement Act of 2011 will become part of the legal reality in Georgia.

A Fair Trial and a Free Press

A FAIR TRIAL AND FREE PRESS

I recently had the opportunity to pen a column outlining the accused’s right to have a public trial.  While this is a bedrock principle of American criminal procedure, what about the right of the press to be present and report on the happenings of a trial?

In Richmond Newspapers Inc. v.Virginia, the United States Supreme Court in 1980 said that the press and the public have a federal constitutional right to be able to attend criminal trials unless the trial judge makes a finding which supports closure.  There is a presumption in favor of open trials even in cases where the defense and the prosecution agree that a non-public trial may be conducted.  Should either party, or the court itself, feel that there is a good reason to close any part of the trial to the public, the trial court has an independent duty to consider “all reasonable alternatives” that could ensure a fair and open trial even if neither party suggests an alternative to closure.

In 1982, the Supreme Court went on to give some of its reasons why the press should be able to report on criminal trials.  In reversing a mandatory closure order in Massachusetts, the Court held that such orders violate the First Amendment and pointed out that (1) criminal trials have historically been open to the press and general public, and that (2) public scrutiny of a criminal trial enhances the quality and safeguards of a fact-finding process, gives the appearance of fairness, and heightens public respect for the judicial process.

Even though the prosecution or defense may want for a portion or all of a trial to be closed from press coverage, the moving party carries a rather large burden to get this done.  The party seeking to close a hearing must (1) advance an overriding interest that it is likely to be prejudiced; (2) the court must ensure that the closure be no broader than necessary to protect that interest; (3) the court must always consider reasonable alternatives to closure; and (4) the court must make adequate findings on the record to support its decision.  

As with every rule of law, there are reasonable exceptions which need to be applied under some circumstances.  O.C.G.A 17-8-53 and 17-8-54 authorize the closure of the courtroom to the public where the subject matter of the proceeding involves evidence which relates to the “improper acts of the sexes and tends to debauch the morals of the young” or in a case where a child under the age of 16 who is testifying in a criminal case involving a sexual offense.  However, the trial court must still conduct an inquiry and exercise careful discretion when limiting press coverage even in these circumstances.

In reality, very few criminal trials are closed to press coverage.  All you have to do is turn on the television, plug into the internet, or pick up the local newspaper to see vast coverage of trials across the country.  Even though I have some cases where the allegations are such that I would prefer to have the least amount of coverage possible, I firmly believe that open press coverage in criminal trials is a good thing and 100% American.  By allowing the press to report on trials, the federal and state courts have clearly and almost unanimously sided with the Constitution, particularly with the First Amendment.  This cannot be said of most issues coming before the courts.
The other aspect of free press coverage of trials that I am proud of is that this freedom differentiates America from many other countries and cultures.  At a time when powerful forces both domestic and international seek to undermine and mock the idea of American prominence in the world, shining the light on our God-given constitutional law is all the more important.

Georgia's First Offender Act

GEORGIA’S FIRST OFFENDER ACT - A SECOND CHANCE AT LIFE

There are few circumstances in life that are more devastating than being charged with a felony offense.  A felony conviction is even worse.  Convicted felons face prison time, loss of constitutional rights, school opportunities, and job opportunities.  Additionally, there is the obvious stigma as being labeled in society as convicted felon. 

Fortunately in Georgia, the legislature has provided for a rare second chance for some people facing a felony prosecution.  Defendants who qualify as a first offender may be available to avail themselves to the provisions of OCGA 42-8-60 which provides in pertinent part:

    (a)    Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgement of guilt and with the consent of the defendant:

        (1)    Defer further proceedings and place the defendant on probation as provided by law.

This means that a first time offender can enter a plea in his case and the adjudication of guilt will be withheld until the period of probation is over.  If the defendant successfully completes the term of probation, he is discharged without a court adjudication of guilt.  This means no conviction.

As with most things in life, there is a balancing down side to being sentenced as a first offender.  If the defendant is on first offender probation and violates the terms or conditions of probation, he can be brought back before the same judge who gave him first offender treatment and faces having his first offender status revoked and being sentenced to up to the maximum allowed under the criminal statute that he plead to.  Hearings on first offender revocations are not pleasant.

The trial judge may use his sound discretion in determining whether or not to impose first offender punishment on a defendant who is eligible for such treatment.  However, the defendant may not receive first offender treatment unless he consents to such a disposition of his case. 

The Court of Appeals has described first offender treatment rather accurately.  “In a strict legal sense, first offender treatment does not constitute a sentence at all.  Rather, under the Act, “sentence” is deferred while the defendant is given the opportunity by the trial court to show that he is capable of comporting himself as a responsible, law abiding citizen...”  O.Ree v. State, 172 Ga. App. 51 (1995). 

The bottom line is that when a good person has made a terrible mistake, the State of Georgia gives that person an opportunity for a  second chance.  Second chances in life provide the foundation for some of the best individuals that you will see during your lifetime. 

Criminal and Family Law

THE CHALLENGING COMBINATION OF FAMILY AND CRIMINAL LAW

In most criminal cases, the attorney is free to focus solely on the issues pertaining to the criminal prosecution of a client and implementing mechanisms to address those limited issues.  While this is the typical scenario, sometimes the world of civil law interferes with the handling of a criminal case.  This can happen when there is a motor vehicle accident, a deprivation proceeding, or even a business dispute.

However, I have found that the primary type of civil action that can significantly impact a criminal case is a family law matter involving a divorce or child custody issues.  In divorce and custody cases, the parties are put into positions where their property and/or children may be taken away.  For many people, these are the two most important things in life.  Therefore, drastic measures are often taken in family law cases.  Desperate people do desperate things.

I do want to add that many criminal cases arising out of a family law situation have merit and should be prosecuted.  There are numerous cases in our community where a spouse has committed a crime and should be punished, However, you may be surprised to learn that spouses also create criminal matters involving the other spouse in order to gain an advantage in a civil matter. Unfortunately, this happens all the time. 

The most common case of alleged criminal conduct in family law cases is in the area of domestic violence.  One party claims that the other party hit them, hit the children, or is doing something violent in the home.  Again, there are many cases where domestic violence is raging within a household.  But, in some cases that have a companion civil case, you will find that the allegations are false.  Most prosecutors take the civil case into consideration when evaluating the criminal case.

False allegations of drug use, alcohol abuse, and a wide variety of criminal activities are also common in family law cases.

The worst situation that I have ever encountered is when a spouse alleges that the other spouse is molesting one of the children.  Unfortunately, children are molested in Georgia and often by members of the family.  In these cases, the molester should be vigorously prosecuted if there is strong evidence to support the allegation.  But, there are also many people who are falsely accused of this egregious act.  Oftentimes, this happens in a divorce or family law case.  If the judge believes that one spouse is a child molester, the accusing party will typically receive anything that is asked for in the case.  If the accusing spouse is providing false information to law enforcement, it can ruin a life. 

Whatever the charge may be, it is important for the criminal defense lawyer and the family lawyer to be on the same page during the pendency of the cases.  I typically ask the family attorney to notify me when a civil hearing is set in their case.  This is because I need to be aware of who is planning to testify.  Most of the time, particularly in felony cases, I do not want for my criminal client to testify in a civil case.  This is because the client’s testimony can be used at the criminal trial.  Effective cross-examination at the civil hearing can be very damaging to the criminal case.

Likewise, the family law attorney wants to know how the client is proceeding with the criminal case.  Motions, pleas, and dispositions in the criminal case can all have a significant impact on the divorce or custody case.  The last thing that the civil attorney wants to hear is that your client entered a guilty plea to something before going to divorce court.  The attorneys really need to be on the same page and able to work with one another.

Its interesting how these cases can be so intertwined.  Its also important to appreciate how one case affects the other.  Communication between the client and the attorneys is key. 

Facebook Evidence

FACEBOOK EVIDENCE

I am a member of the Facebook community and really enjoy it.  I have been able to get in touch with old classmates and share information with all of my friends.  I routinely post pictures of my family, hunting trips, and other fun things for others to see. 

However, there is an inherent danger in using Facebook when viewed in the light of potential litigation.  I have noticed that I am starting to see attorneys use information posted on Facebook in court on a regular basis.  What you say, post, or provide information on Facebook, this information can be used in a court proceeding under certain circumstances.  This is true for criminal as well as civil cases. 

Recently, defense attorneys representing an Alpharetta man charged with sexually assaulting a female as she slept in the adjoining seat on a Delta Airlines flight from Dallas to Atlanta last fall have sought Facebook information on the alleged victim.  In this case, a friend of the defendant’s son “friended” the alleged victim on Facebook.  He then passed the information he had gleaned to defense attorneys who began contacting the alleged victim’s network of friends and family, according to federal prosecutors in Atlanta.  That access to the alleged victim’s Facebook page also prompted defense attorneys to seek a court order forcing Facebook to surrender all of the alleged victim’s public and private Facebook posts, including comments on her wall, chats with friends, messages, photos, notes, and relationship status updates. 

Prosecutors are of course opposed to this request.  They told U.S. Magistrate Judge Alan J. Baverman in the recent hearing that the victim, who had not been named in court records or in open court, believes that attempts by the defendant or his friends and family to mine her Facebook page for information are akin to being violated for a second time. 

Judge Baverman will issue a decision on what, if any, information must be provided to the defense. 

Interestingly, this case pits a defendant’s 6th Amendment constitutional right to confront, and cross-examine, his or her accuser against federal and state victims’ rights laws that attempt to shield victims from being victimized again by the courts in an era where social media such as Facebook and Twitter have somewhat confused the lines between what is private and what is public information.  In Georgia, victims’ rights laws limit defense attorneys’ ability to delve into a victim’s life and place them on trial for their past sexual behavior or lifestyle. 

I believe that judges are going to be more inclined to allow information on Facebook to be used in court.  Federal and Georgia law tends to protect information that is truly private in nature and to withhold protection from public information.  I tend to agree with Manny Arora, my law partner’s law school roommate and the attorney on this criminal case, when he was quoted as saying “The bottom line is that Facebook is inherently public.  The whole point is to share your private life with others on the Worldwide Web.”  Arora went on to say in his motion that his client’s right to information that would allow his lawyers to confront and cross-examine his accuser has got to trump personal privacy claims.   

I am not asking anyone to close their Facebook or Twitter accounts.  I just want to point out that the information that you choose to put on these and other forms of social media are potentially considered to be public information and thus at risk of being used by a court of law. 

Role of the District Attorney

THE CRITICAL ROLE OF THE DISTRICT ATTORNEY

In my practice, I must deal with the district attorney (DA) or one his representatives on a daily basis.  The DA and the criminal defense attorney form the adversarial pairing that create the basis of our criminal justice system. 

But what is the role and duties of the DA and how does the DA affect the community that he serves?  The DA or solicitor (misdemeanor cases) is an elected representative of the executive branch of government.  He serves as a link between law enforcement officers and the trial of cases.  He has the duty to see that the law is enforced, but this duty is to seek justice and not merely convict.  This little known aspect of a prosecutor’s job is important because it allows the DA to negotiate criminal cases in good faith whereby a defendant can avoid convictions and even prosecutions under some circumstances. 

In fact, a weakness in the adversarial system of administering justice is the possibility of unfairness arising (sometimes) from the prosecutor’s superior resources and special access to information and witnesses.  To protect the accused who might suffer from this unequal contest, Canon 5 of the American Bar Association Canons of Professional Ethics commands: “The primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done.  As an officer of the court, the DA has an obligation to ensure that proceedings are conducted in accordance with the rules of evidence and the laws of this State. 

The DA necessarily has discretion in which cases are to be tried.  For example, this discretion is demonstrated in the non-criminal disposition of some cases and in his action in connection with the placing of a case on a dead-docket (a case placed on hold for prosecution) or a nolle prosequi (dismissal after indictment), or in a dismissal prior to indictment. 

However, his discretion in the prosecution of a criminal case starts long before the steps in a criminal prosecution mentioned before and continues to some extent even after a defendant is sentenced.  But, there are limitations placed on the authority.  For example, Georgia provides no statutory authority to the prosecutor to dismiss criminal charges before indictment.  Also, a nolle prosequi cannot be entered without the consent of the trial judge. 

With all this being said, the main responsibility for the DA and the solicitor is to prosecute legitimate criminal offenses and protect the community from dangerous citizens living amongst us.  My experience has been that the vast majority of the prosecutors working in the west Georgia area are reasonable, professional, and mostly willing to work on the legal and factual aspects of our criminal cases which can benefit the defendant, the victim(s), the county, and the state by saving precious resources that would otherwise be used for costly trials and and court appearance. 

I would lastly like to wish all of my colleagues in the legal community and the community as a whole a very wonderful, safe, and happy Christmas season.  Be safe and careful on the roads and remember to keep God first in your life.

Convictions and Employment

CRIMINAL CONVICTIONS AND EMPLOYMENT

When a person is convicted of a criminal offense in Georgia, he or she will usually be facing jail time, fines, community service, and other conditions and terms of a sentence.  However, there are also collateral consequences that may be suffered as the result of a conviction.  These include, but are not limited to, loss of voting rights, gun rights, housing opportunities, government assistance, and the imposition of sex offender registry requirements under some circumstances.  While these and other consequences can significantly hinder a convicted person’s living a normal life, the most devastating collateral consequence is probably the loss of employment opportunities.

Ex-offenders who apply for employment usually face questions about their arrest and conviction record.  Further, a private or public employer can, with consent, obtain arrest/conviction records from the Georgia Crime Information Center (GCIC).

GCIC was established in 1973 as a division of the Georgia Bureau of Investigation (GBI) and charged with the responsibility for creating a statewide, central repository for the collection, maintenance, and dissemination of criminal records for all local law enforcement and criminal justice agencies.  Today, GCIC is required to obtain and preserve finger prints, descriptions, photographs, and any other pertinent identifying data for individuals arrested or taken into custody for felonies and certain categories of misdemeanors and violations of ordinances and to develop, operate, and maintain an information system which will support the collection, storage, retrieval, and dissemination of all crime and offender data.  In other words, if you have been in trouble with the law in Georgia, chances are that there is a record and that record is located at GCIC.

Most of my clients tell me that the majority of employment applications ask if the applicant has ever been convicted of a crime.  The applicant should always answer this question truthfully.  The employer is going to find out anyway.  If the conviction is for a misdemeanor not involving theft (such as a DUI), this should not affect most employment opportunities.  However, if the conviction is for misdemeanor theft or for a felony, employment opportunities can be very limited.  (Applicants who are on First Offender Felony Probation are not convicted felons and can honestly answer that they have not been convicted of a crime).

In some instances, the employer may reject the applicant based simply on a record of arrest without any consideration of whether the arrest resulted in a conviction.  Georgia law does not restrict an employer’s right to consider arrests not leading to conviction, and the state does not have standards prohibiting employment discrimination based on an arrest or conviction record.

These employment consequences can negatively impact a person’s basic psychological and economic well-being.  I have found that difficulty in finding employment is one of the greatest burdens to the reintegration of ex-offenders into society.    

For those people facing criminal charges or have been previously arrested, there are two things that may be worth considering.  First, make sure that you and your attorney are thoroughly prepared to address not only the direct but the collateral consequences of the criminal case.  Second, make sure that your GCIC record is accurate.  You can obtain a copy of your GCIC record by making a request at your local sheriff’s department.  If your record is inaccurate, Georgia law provides for a procedure for its correction.  

The Confrontation Clause

THE 6TH AMENDMENT’S CONFRONTATION CLAUSE

The 6th Amendment Confrontation Clause protects one of the most standard and essential parts of a trial in the United States which is the right to confront witnesses who are testifying against a defendant. In general, this clause guarantees that if a person is charged with a crime and tried in court, the witnesses must appear and make the accusations face to face.

The Confrontation Clause specifically provides:

"In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him."

The Confrontation Clause serves two main purposes. First, it protects the defendant from statements allegedly made outside of the court (hearsay statements) being used against him when he has no opportunity to test or challenge the alleged statement.   Second, the clause gives a defendant the opportunity to cross-examine the witness which allows him to test the memory, accuracy and sincerity of the witness.

As with all legal rules, there are evidentiary exceptions to the right to confront witnesses in a trial such as the many exceptions to hearsay.  Additionally,  there are limits to the extent that a witness may be cross-examined. 

The right to confront witnesses at a criminal trial is an ancient idea that has survived centuries of legal thought.  The roots of the 6th Amendment Confrontation Clause go back far into English and even Roman history. The first mention of issues addressed by the clause appear in the biblical account of the Apostle Paul's trials before he was sent to Rome.   In Acts 25:16, the Roman Governor over Judea was considering what to do with Paul who had been accused of various crimes. The Governor said to King Agrippa, "It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges."

In the 1600's, it was common in English courts for alleged statements to be collected outside of court and used as evidence at trial. Defendants often demanded that the witnesses be brought to face them in court, but it rarely happened. Many people were convicted on hearsay evidence and even put to death based on these convictions. 

The Founding Fathers were very familiar with out of court statements being used against people at trial. The British government allowed the colonial vice-admiralty courts to use written statements from witnesses, instead of live testimony, in certain cases. This abuse of the judicial system lead in part to the Revolution. 

The Bill of Rights was added to the Constitution in order to further protect certain rights from government interference. Among these are freedom of speech, freedom of religion, the right to trial by jury and the right to confront those who are testifying against you, as mentioned in the Confrontation Clause. There is no record of any opposition or discussion regarding the Confrontation Clause, an indication of how essential it was in the minds of the Founding Fathers.

Sunday, September 4, 2011

Expungements

IMPROPER CHARACTER EVIDENCE REVERSES A MURDER CONVICTION

Last month, a unanimous Georgia Supreme Court reversed the murder conviction of a teenage girl in the Appalachian Judicial Circuit because prosecutors improperly brought in evidence designed to show the girl was under “satanic influences.”  The Court held that evidence that Courtney Boring had what prosecutors called a “gothic lifestyle” was irrelevant to whether she shot her mother in the head in 2006. 

This case provides a pretty clear illustration of how this state treats character evidence regarding a defendant.  The general rule is that the defendant’s character may not be put in evidence unless he or she chooses to put it in issue.  In Georgia, if evidence places an accused’s character in issue, it is inadmissible unless it is relevant to some other issue in the case.  In other words, the character evidence must have a relevant link to another important issue in the case that is being contested by the parties in order for it to be admissible.  The evidence cannot be introduced to simply impugn the character of the defendant. 

In this murder case, the Court pointed out that prosecutors showed the jury photos of the defendant with dyed black hair and dark make-up, a document bearing the words of a “curse”, and several different inscriptions of song lyrics and other quotations containing themes of anguish, atheism, and violence.  The prosecutor’s theory of the case was that Courtney was angry at her mother for restricting her visits with her boyfriend. 

Chief Justice Carol Hunstein wrote that the evidence of the young woman’s character was so irrelevant and prejudicial as to warrant reversal, especially given the state’s case was circumstantial.  While the Georgia Supreme Court has on occasion allowed the admission of evidence regarding unpopular beliefs, organizations etc., this has only been done when the evidence had a direct link to the defendant’s alleged motive or intent or the defendant’s identity. 

An example of this type of permissible evidence would be when an alleged bank robber is identified as wearing a satanic mask at the scene of the crime.  If the same satanic mask id found at the defendant’s apartment during a subsequent search, the mask can be introduced in evidence to show that the defendant is the armed robber. 

Hunstein said that there was no testimony in this case linking the evidence in question to satanism or gothic beliefs.  She said that the link came in only during the opening statement and closing argument of the prosecutor, which was itself improper. 

This is a very good ruling that highlights a very good rule of law in criminal cases.  While I do not necessarily approve of a “gothic lifestyle” and am disturbed by satanic activity, I should not be able to judge whether or not someone is guilty of a crime based on the defendant’s unsavory beliefs or lifestyle.  This rule protects unpopular people from being judged on who they are as opposed to what they may have done.  Criminal trials are about the actions of the defendant. 

However, Courtney Boring is not out of the woods just yet.  Even though her conviction has been reversed, the Georgia Supreme Court held that she can be retried on the case.  According to the Appalachian Judicial Circuit District Attorney, this is exactly what they intend to do. 

Citizens United

IMPROPER CHARACTER EVIDENCE REVERSES A MURDER CONVICTION

Last month, a unanimous Georgia Supreme Court reversed the murder conviction of a teenage girl in the Appalachian Judicial Circuit because prosecutors improperly brought in evidence designed to show the girl was under “satanic influences.”  The Court held that evidence that Courtney Boring had what prosecutors called a “gothic lifestyle” was irrelevant to whether she shot her mother in the head in 2006. 

This case provides a pretty clear illustration of how this state treats character evidence regarding a defendant.  The general rule is that the defendant’s character may not be put in evidence unless he or she chooses to put it in issue.  In Georgia, if evidence places an accused’s character in issue, it is inadmissible unless it is relevant to some other issue in the case.  In other words, the character evidence must have a relevant link to another important issue in the case that is being contested by the parties in order for it to be admissible.  The evidence cannot be introduced to simply impugn the character of the defendant. 

In this murder case, the Court pointed out that prosecutors showed the jury photos of the defendant with dyed black hair and dark make-up, a document bearing the words of a “curse”, and several different inscriptions of song lyrics and other quotations containing themes of anguish, atheism, and violence.  The prosecutor’s theory of the case was that Courtney was angry at her mother for restricting her visits with her boyfriend. 

Chief Justice Carol Hunstein wrote that the evidence of the young woman’s character was so irrelevant and prejudicial as to warrant reversal, especially given the state’s case was circumstantial.  While the Georgia Supreme Court has on occasion allowed the admission of evidence regarding unpopular beliefs, organizations etc., this has only been done when the evidence had a direct link to the defendant’s alleged motive or intent or the defendant’s identity. 

An example of this type of permissible evidence would be when an alleged bank robber is identified as wearing a satanic mask at the scene of the crime.  If the same satanic mask id found at the defendant’s apartment during a subsequent search, the mask can be introduced in evidence to show that the defendant is the armed robber. 

Hunstein said that there was no testimony in this case linking the evidence in question to satanism or gothic beliefs.  She said that the link came in only during the opening statement and closing argument of the prosecutor, which was itself improper. 

This is a very good ruling that highlights a very good rule of law in criminal cases.  While I do not necessarily approve of a “gothic lifestyle” and am disturbed by satanic activity, I should not be able to judge whether or not someone is guilty of a crime based on the defendant’s unsavory beliefs or lifestyle.  This rule protects unpopular people from being judged on who they are as opposed to what they may have done.  Criminal trials are about the actions of the defendant. 

However, Courtney Boring is not out of the woods just yet.  Even though her conviction has been reversed, the Georgia Supreme Court held that she can be retried on the case.  According to the Appalachian Judicial Circuit District Attorney, this is exactly what they intend to do. 

Improper Character Evidence

IMPROPER CHARACTER EVIDENCE REVERSES A MURDER CONVICTION

Last month, a unanimous Georgia Supreme Court reversed the murder conviction of a teenage girl in the Appalachian Judicial Circuit because prosecutors improperly brought in evidence designed to show the girl was under “satanic influences.”  The Court held that evidence that Courtney Boring had what prosecutors called a “gothic lifestyle” was irrelevant to whether she shot her mother in the head in 2006. 

This case provides a pretty clear illustration of how this state treats character evidence regarding a defendant.  The general rule is that the defendant’s character may not be put in evidence unless he or she chooses to put it in issue.  In Georgia, if evidence places an accused’s character in issue, it is inadmissible unless it is relevant to some other issue in the case.  In other words, the character evidence must have a relevant link to another important issue in the case that is being contested by the parties in order for it to be admissible.  The evidence cannot be introduced to simply impugn the character of the defendant. 

In this murder case, the Court pointed out that prosecutors showed the jury photos of the defendant with dyed black hair and dark make-up, a document bearing the words of a “curse”, and several different inscriptions of song lyrics and other quotations containing themes of anguish, atheism, and violence.  The prosecutor’s theory of the case was that Courtney was angry at her mother for restricting her visits with her boyfriend. 

Chief Justice Carol Hunstein wrote that the evidence of the young woman’s character was so irrelevant and prejudicial as to warrant reversal, especially given the state’s case was circumstantial.  While the Georgia Supreme Court has on occasion allowed the admission of evidence regarding unpopular beliefs, organizations etc., this has only been done when the evidence had a direct link to the defendant’s alleged motive or intent or the defendant’s identity. 

An example of this type of permissible evidence would be when an alleged bank robber is identified as wearing a satanic mask at the scene of the crime.  If the same satanic mask id found at the defendant’s apartment during a subsequent search, the mask can be introduced in evidence to show that the defendant is the armed robber. 

Hunstein said that there was no testimony in this case linking the evidence in question to satanism or gothic beliefs.  She said that the link came in only during the opening statement and closing argument of the prosecutor, which was itself improper. 

This is a very good ruling that highlights a very good rule of law in criminal cases.  While I do not necessarily approve of a “gothic lifestyle” and am disturbed by satanic activity, I should not be able to judge whether or not someone is guilty of a crime based on the defendant’s unsavory beliefs or lifestyle.  This rule protects unpopular people from being judged on who they are as opposed to what they may have done.  Criminal trials are about the actions of the defendant. 

However, Courtney Boring is not out of the woods just yet.  Even though her conviction has been reversed, the Georgia Supreme Court held that she can be retried on the case.  According to the Appalachian Judicial Circuit District Attorney, this is exactly what they intend to do. 

Administrative License Suspensions in Georgia

ADMINISTRATIVE LICENSE SUSPENSIONS

One of the biggest problems and most misunderstood consequences involving some DUI arrests is the administrative suspension of the defendant’s license.  An administrative license suspension (ALS) is a process whereby the State can suspend a person’s license after a DUI arrest even though the person has plead not guilty or has not been to court on the case.

This typically happens in two different scenarios.  The first is when the driver refuses the state’s administered test.  The state’s administered test is a test of your blood, breath, or urine requested by the officer after he has read the implied consent warning to the driver.  Most of the time this is a request to have the driver give a breath sample into the Intoxilizer 5000, which is the “breath machine” at the police station.  This should not be confused with the portable breath test that is sometimes administered at the scene of the traffic stop.  Portable breath tests are completely voluntary.

If the driver refuses to give a sample to the officer after the implied consent warning is read, then the officer will likely consider that a refusal.  If the officer believes that the driver has refused the state’s administered test, then he can file a 1205 form with the State which will automatically suspend the driver’s license after 10 business days.

However, the driver will be given a copy of this form which will look like a yellow piece of paper a little larger than the traffic tickets given to the driver.  If the driver is given a copy of the 1205 form, then immediate action should be taken to save the driver’s license.  If the driver requests a hearing on the license suspension within 10 business days of the arrest, a hearing will be scheduled before an administrative law judge and the suspension of the driver’s license will be stayed under most circumstances until a disposition at the hearing.  This allows the defendant to drive until the lawyer can determine the merits of the case and gives the lawyer and defendant time to make informed decisions.

The other scenario where driver’s licenses are administratively suspended is when the driver consents to the state’s administered test but blows over 0.08.  (0.02 for driver’s under 21).  This situation is less common because many officers choose not to file a 1205 form under these circumstances, particularly when the driver is not excessively over the limit.  The procedure for requesting a hearing is the same as a refusal.

At the ALS hearing, the judge will call the case and see if the defendant and the officer are present in court.  If the defendant does not show, then the appeal is dismissed and the license is suspended.  If the officer does not show, then the ALS case is dismissed and the license will remain valid.  If both parties show then one of two things will happen.

First, the attorney may be able to negotiate a plea with the officer in the case in exchange for him dismissing the ALS.  This usually only happens when the attorney feels that the legal issues surrounding the arrest are not in the client’s favor.

The other alternative is to have a full hearing on the ALS.  Here, the judge considers the legal issues brought to the attention of the court and determines whether the officer followed procedures during the stop, detention, and arrest of the defendant in accordance with state law.  Having a hearing is risky if the officer followed correct protocol or if you are facing a less than desirable judge.  An adverse ruling at an ALS hearing will result in the suspension of the driver’s license for a period of time.

Drivers who are arrested for DUI need to pay close attention to the documents they receive from the law enforcement officer.  Recognizing and acting upon the “larger yellow sheet” can have a huge impact on the defendant’s privilege to drive during the pendency of the case.  

Addiction and the Criminal Justice System

ADDICTION AND THE CRIMINAL JUSTICE SYSTEM

What do you think is the number one cause of crime in modern society?  Some people would say poverty, low moral behavior, or just the general propensity of many Americans to commit crimes.  These are definitely some factors associated with our high crime rate, but the fundamental problem that leads to the filling of our prisons and courthouses is clearly addiction. 

Addiction to chemical substances is involved in almost every single drug case that appears on the felony drug case docket.  The defendant is usually either addicted to the drug itself, selling the drug, or in some cases involved in trafficking activities.  Sometimes the defendant is addicted and selling at the same time.  This happens often when the addict must make money to support the drug habit. 

Addiction does not just affect the community with generating drug cases.  Violent crimes are often associated with substance abuse.  In looking back on the numerous family violence cases that I have handled, I can probably count on one hand the number of arrests that did not involve excessive drinking or drug use. 

Many armed robberies, aggravated assaults, and even murders are committed by defendants who are high on drugs at the time of the criminal act.  In those circumstances, the defendant’s addiction often leads him to the state penitentiary and the victim to the hospital or morgue. 

What about theft related crimes such as burglary, embezzlement, and financial type fraud.  Yes, addiction is heavily involved in many of these cases.  While some people are just simply thieves, many people charged with theft offenses take money and property to feed the insatiable appetite of their addiction. 

Addiction even contributes to a higher rate of sexual offenses committed in our community.  While many sex offenders are pre-disposed to commit these type of crimes, the abuse of drugs and alcohol lower their inhibitions and pave the way for them to engage in criminal conduct. 

So, what can be done to address the problem of addiction?  Unfortunately, the options are limited and the outlook uncertain.  Our local courts have already committed to addressing the problem with addiction through the use of drug courts, drug testing, mandatory drug treatment, and other oversight measures.  Many people do recover from addiction with help from the courts.  I have found that in some cases, the defendant’s life was actually saved by having to go to jail. 

I believe that the more educated our citizens are about addiction, the better our society will be.  Addiction is not often easy for people to talk about.  Sometimes it is a subject that people and families want to sweep under the rug.  The quicker that people are willing to talk about and learn about addiction, the better off we will be as a community. 
I believe that the Devil has a wide assortment of tools he uses to undermine the good of man.  However, his favorite tool in the workshop must be the tool of addiction.  Its effectiveness and wide path of destruction are unsurpassed.  

Douglas County Probation Case Makes New Law

DOUGLAS COUNTY CASE LIMITS 4th AMENDMENT IN PROBATION REVOCATION HEARINGS

The Georgia Supreme Court has recently handed down a decision stemming from a case in the west Georgia area which significantly impacts criminal law in our state.  In State v. Thackston, the Court ruled that the fruits of unconstitutional searches and seizures need not be excluded from probation revocations. 

The 6-1 decision limiting the protection of the 4th Amendment does away with more than three decades of state Court of Appeals precedent.  The ruling says the interest in giving complete information to judges faced with probation revocation petitions outweighs any concerns about deterring unconstitutional police behavior. 

In this case, Hulon Thackston was on probation for drug distribution offenses in Douglas County when he was stopped for a traffic violation in Paulding County in March 2007.  Police found methamphetamine in his pants during the traffic stop.  Thackston’s attorney filed a motion to suppress this search because the police performed an illegal frisk of his person during the stop. 

After Paulding officials filed drug charges against Thackston, Douglas Superior Court Judge Donald B. Howe Jr. issued a warrant for Thackston’s arrest for violating his probation. 

In October 2007, officers executed the warrant at Thackston’s Paulding County residence.  During the execution of the warrant, officers saw methamphetamine on the kitchen table, obtained a search warrant and found more drugs at the residence. 

Paulding County prosecutors adding a trafficking charge to their case against Thackston, but Superior Court Judge James R. Osborne granted Thackston’s motion to suppress evidence because the March seizure was unconstitutional thereby making evidence gathered during the search and seizure at his home in October inadmissible. 

In Douglas County, Thackston argued that since Judge Osborne had ruled in his favor on the search and seizure issue, that prosecutors could not contest the suppression motion again.  Judge William H. McClain disagreed and ruled that the search of the home was legal. 

As you can imagine, this case made it all the way to the Georgia Supreme Court who decided to look at the issue of whether the exclusionary rule (the rule that excludes evidence gathered after a 4th Amendment violation) should even apply to probation revocation hearings.  The answer was an almost unanimous no.  (Justice Benham dissented). 

Justice Thompson, writing for the majority, concluded that the U.S. Supreme Court had refused to apply the exclusionary rule to parole revocation hearings, and he said that the majority of jurisdictions that had considered the issue had declined to extend the rule to probation revocation hearings. 

So, the bottom line is this.  When a person is on probation, they will simply receive less protection from unreasonable searches and seizures.  This should also be a warning to people on probation who are involved with drugs.  Many drug cases are dismissed in this state based on 4th Amendment violations.  The number now will significantly decrease for those defendants who are on probation. 

I also have to acknowledge and congratulate my friend, Tom Kegley, who represented the state in this case.  You must have performed quite well to convince the Court to make such a dramatic change in the law. 

The Three Levels of Police/Citizen Encounters

THE THREE LEVELS OF POLICE/CITIZEN ENCOUNTERS

The United States Constitution protects us from arbitrary seizures of our person while living in the community.  However, police officer do come into contact with ordinary citizens on a daily basis.  Some of those encounters are uneventful while others can lead to violent arrest.

The state and federal courts have recognized 3 types of police/citizen encounters which are important from a legal aspect.

A first tier encounter is when a citizen and an officer come into contact voluntarily.  This may mean just speaking to one another on the street or when a citizen seeks the assistance of the officer.  First tier encounters also encompass situations where the officer approaches a citizen and asks questions.  The key question in determining whether or not it is a first tier encounter is whether or not the citizen is free to leave the encounter.  If so, it is first tier, if not it is second or third. 

A second tier encounter is called a Terry stop.  These type of encounters are named for the 1968 United States Supreme Court decision in Terry v. Ohio.  These situations are very tricky and are the foundation of hundreds of cases in Georgia alone.

A Terry stop occurs when an officers conducts a “brief investigatory stop” of a person.  The person is technically not free to leave during this brief detention.  However, police officers cannot just perform Terry stops whenever they choose.  They must have reasonable, articulable suspicion (more than just a hunch) that a crime has been or is being committed.  Under these circumstances, the officer is authorized to briefly detain the citizen to further investigate the situation.

An example of a Terry stop would be when an officer observes and approaches 2 individuals passing money and “something else” in the middle of the night in an area known for high drug activity.

A third tier encounter is an arrest.  The Georgia Supreme Court has said that “a person is under arrest whenever his liberty to come and go as he pleases is restrained, no matter how slight such restraint may be”.  In other words, when the handcuffs are on, you are under arrest. 

An officer cannot arrest a citizen unless they have probable cause (more than reasonable, articulable suspicion)  to do so.  This would be when in the above example, the officer finds that the “something else” happened to be a bag of cocaine.

As you can guess, our unique system of criminal jurisprudence provides more protections for citizens than any other in the world.  Make sure that you do your part to keep it that way.