CLE Opportunities for Criminal Appeals and Habeas Lawyers in Georgia

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There are some great CLEs coming up in the next few weeks and months for lawyers who do trial, appellate, or habeas practice. They range from the National to the local, but all of them will have something to offer.

  • NACDL’s Free Seminar on Padilla v. Kentucky. The Seminar is Titled “Padilla in Practice: Your Duty to Advise Clients of Immigration Consequences.” The seminar will be streamed live, and the first 40 people to sign up can attend at NACDL’s headquarters in Washington, D.C. If you are a criminal defense attorney the seminar will apprise you of your duties when representing clients who are not U.S. citizens. As an appellate or habeas attorney, this seminar will help you spot possible claims in the post-conviction setting. Best of all, it is absolutely free. Sure the other two seminars have bars and this one doesn’t. But you can always drink in your office, Mad Men style.
  • GACDL’s Fall Seminar. I have not missed one of these in almost ten years. Chatting with old friends and meeting new ones around the big fireplace at Brasstown Valley Resort in North Georgia is worth the price of admission alone. Added to that, distinguished lawyer, Bubba Head has set up a fantastic panel of speakers. Check it out. Sign up. If you aren’t a member of GACDL, join right now (PDF).
  • The Henry County, Georgia, Bar Association Fall Seminar. I will be speaking on preserving a record for appeal, and Professor Paul Milich will speak on Georgia Evidence. Information on that event will be posted soon. The event will be held at Reynolds Plantation Ritz Carlton. There will be plenty of time to hang out in their pool and watch beautiful Lake Oconee .

Managing Motions for Mistrial in Georgia to Preserve Them for Appeal

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So, I just got finished reading a transcript on a case I am appealing. Halfway through the trial, a witness for the State said something highly improper. Counsel moved for a mistrial. These moments in the reading of a transcript are a little like watching a really close college football game, because I am pulling for some magic words that preserved the record for appeal. So, I flip the page, and the lawyer explains why the testimony was improper and why a mistrial is necessary. Good stuff.

Cue the drama and suspense music. The judge dismisses the jury. As soon as the jury is out of the room, there’s a little more argument. The Court tells the State and the witness not to say it anymore. The Court makes the prosecutor warn all the other witnesses not to say it. The objection is sustained.

Then, the jury is asked back in, and the trial continues. No ruling on the motion. No renewal after corrective action. Nothing but a good appeal down the tubes. Mistrial issuesin a transcript are often the litigation equivalent of a Gilligan’s Island rescue. They almost preserve the issue for appeal, but they don’t quite make it.

So, since my theme this week is preserving the record for appeal, let me say a few things about managing mistrial motions in Georgia.

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Kemp Investigating Qualifications of Georgia Court of Appeals Candidate

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According to a post by Alyson Palmer at ATLAW Blog, the Secretary of State’s Office is picking up where Atlanta Lawyer Justin Chaney left off. A month ago, Mr. Chaney challenged Adrienne Hunter-Strothers’s candidacy arguing that she had not been a member of the State Bar of Georgia long enough to be a candidate for the Georgia Court of Appeals. Ms. Hunter-Strothers was admitted to the New York Bar in 2002 and to the Georgia Bar in 2005.

At issue is the language in Article VI, Section VII, Paragraph II (a) of the Georgia Constitution that provides, “[a]ppellate … judges shall have been admitted to practice law for seven years.”

Mr. Chaney’s challenge was initially dismissed because it was filed 100 minutes too late, but the Secretary of State is picking up the ball to contemplate running with it.

The controversy turns on an argument that “admitted to practice of law for seven years” includes, by implication, a requirement that the candidate be admitted to practice law in Georgia for seven years.

Stories like this are always interesting because one wonders what the back story is.

The other interesting part of this story is that there does not appear to be an issue. “Admitted to practice of law,” means what it says. From what I see on TV, there are lawyers outside Georgia. The candidate was admitted to practice law over seven years ago. The Constitution does not say admitted to practice law “in Georgia.” She appears to be otherwise qualified.

Unless the Secretary of State adds some language into the Constitution with a Sharpie, this one should be filed in the same category as the Obama is not a U.S. Citizen challenge that people keep forwarding to my email.

Sheepish or Sarcastic: It all Looks the Same on the Record

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Picking up on yesterday’s theme, I have been thinking more about why lawyers don’t make good records on appeal. So, I’m going to take a stab at it, and this stab is applicable to criminal trials only. As far as I know, civil practitioners have their own reasons for not preserving a good record for appeal.

I think that part of the blame goes back to the way criminal defense associations do their CLEs. There’s a steady undercurrent that I’ve noticed in the seminars I’ve been attending that encourages lawyers to engage trial judges in a war. I think for a young lawyer just getting started in the biz, it can make things more intimidating. There’s this sometimes subtle and sometimes not subtle at all theme that real lawyers should find a way to go to jail for their client. I’m not saying that the moment won’t arise where tough choices must be made and that those choices could equal incarceration. I just think that moment may be a once in a lifetime or so occurrence. Otherwise, there’s no need to go seeking it out.

But, you might ask, how do I preserve the record on appeal if I don’t get up in the judge’s face? If you are asking yourself this question, you’ve been listening to some radical criminal defense CLE speakers for too long.

Over time, I’ve noticed something about trial transcripts. I’ve talked to lawyers who tried the cases I’ve read, and they’ve asked me things like, “did you see where I showed that judge who was boss?” “Did you see where the judge screamed at me?” Often, the truthful answer is “no” and “no.” If you scream “objection, leading” at the top of your lungs, or if you whisper it gracefully and lovingly, it looks exactly like this on the page: “objection, leading.”

In fact, there are several other things that don’t make their way onto the page. The list includes mean looks, eye rolling, pointing, tears, and leaping up out of your chair.

At the end of the day, I think this saber-rattling stuff that speakers on record preservation shout is contributing to the problem of bad records. If preserving the record means engaging the judge in a shouting match, then better to just sit here.

Step back, take a deep breath, and reframe. Preserving an issue for appeal is pretty easy, and you can do it and sound like a yoga instructor while you do it. Listen for the objectionable stuff. Stand up. Smile. Put on your most soothing voice and say, “objection, your honor.” state your reasoning. Wait for the response. If the judge waves you off, rolls her eyes, or says “move along, counselor,” just smile again and ask, “I’m sorry, your honor, did you overrule my objection.” Wait for the answer. Then say, quite sheepishly, “may I have a continuing objection to this testimony on the same grounds already stated?”

Judges get it wrong sometimes, and it can be frustrating. And a fact of life for defense counsel is that you are going to lose most of your objections. The judge is not going to grant your mistrial motion. He won’t give your request to charge, particularly if the State is opposed to it.

When those moments come, channel your inner Columbo.

Ever notice that the umpire never changes his call, no matter how much the manager gets in his face, spits on him, or screams creative combinations of obscenities? Ever notice how many managers get thrown out of the game? Where does this analogy break down? The manager who’s thrown out of the game gets to hang out in the clubhouse, which is a pretty cush place.

Take the pressure off of yourself. You don’t need to go to jail. You just have to say a few words loudly enough for the court reporter to hear them.

How to Make the Transcript More Fun to Read

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The average trial transcript handled by the average criminal trial attorney is a sad sight to behold. All of my client’s hopes turn on what is said in this document and often, I am sad to say, on what is not said in this document. There is one word that makes the difference between dead lifeless prose and a story that leaps from the page. One word — objection. I am not sure why more lawyers don’t say it, but it doesn’t get said enough.

If criminal trials were a baseball game, then baseball would look much differently that it currently looks. Imagine the umpires paying close attention but not saying a word. Pitch by pitch, hit by hit, not a word spoken as the teams play the game. However, the moment that a player asks for a ruling, the umpire says “strike” or “safe” or “out.” Imagine if, for once, when the manager emerges from the dugout, the umpire could make a definitive ruling, but he won’t do anything at all until then. And, if you say nothing the whole game and you lose, it’s your fault because you never asked any of the umpires to make a call.

I read many transcripts where my team loses and nobody said a word.

In Georgia, “all evidence is admitted as a matter of course unless a valid ground of objection is timely interposed.” Moore v. State.

So, it is important to describe the words that, when found on a transcript, are music to an appellate lawyer’s ears:

  • Objection followed by reasoning. For instance, “objection, the question calls for hearsay,” or “objection “the evidence is irrelevant, it’s hearsay, and it is unduly prejudicial.” Keep in mind that you don’t need to scream it. You don’t need to smirk or anger anybody. In fact, a sheepish frighteneed quivering voice objection looks exactly like a loud, sarcastic, smirking objection in the Courier New font on the prited page of a transcript. If you don’t state the reason for the objection, then you haven’t objected really. Hawkins v. State.
  • A Ruling. The judge ideally will say “overruled,” “sustained,” “I’ll allow it,” “I won’t allow it.” Those words are distinct from “move along,” “I note your objection,” “okay,” “ummm huhhh,” or silence. If your judge doesn’t rule, you can ask, again, with a quivering voice, sheepishly, with a single tear running down the side of your flushed red face, whether the objection is sustained or overruled. Remember, it all looks the same on the transcipt.
  • Continuing. If something happens once, it’s likely to happen five more times, particulalry if it really hurts your client. So, you can object every time or you can ask that your objection be continuing.

Three things make the difference between a dull lifeless depressing transcript and a transcript that is the equivalent of something written by Tolstoy: (1) objection plus reasoning; (2) a ruling; (3) and an objection that continues.

Think about it and make your next transcript a great written work.

Weekend Music About People who Need a Criminal Appellate Lawyer

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Music is replete with songs about people who had some bad stuff happen to them at their trial and who need an appellate lawyer. So, I am kicking off a weekly series featuring songs about people who need a good criminal appeals or habeas lawyer. To kick things off, let’s listen to Steve Earle from 1991, singing “Billy Austin.” Billy needed a good appellate lawyer, and now it’s a little late. As you listen, see what issues you can spot. There’s a pretty good ineffective assistance of counsel claim in here, and it also appears that some mitigation got left on the table. He called the police on himself — acceptance of responsibility. But maybe it just makes him sound more cold.

We find out pretty quickly that Billy wasn’t tried in Georgia. One, he got a “court appointed lawyer,” which we don’t really fund for death penalty defendants in Georgia. Also, his “trial was over quickly.” Defendants in death cases in Georgia don’t really get a speedy trial. They languish in the county jail.

 

 

 

What to Do if You’re Not the First Lawyer on the Case

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Another lawyer contacted me about a case she is working on. She wasn’t the trial counsel. She wasn’t the lawyer on the motion for new trial. In fact, one lawyer handled the trial. A second lawyer handled the motion for new trial. She was hired after the motion for new trial was denied but just before the appeal was docketed in the Georgia Court of Appeals. She wanted to raise ineffective assistance of trial counsel on appeal How could she do that?

She had found a case that seemed to speak to this situation. In Ruiz v. State (2009), appellate counsel took over in just the situation described above. Appellate counsel entered an appearance after the appeal was docketed for appeal. Motion for new trial counsel entered an appearance after the trial was over but chose not to raise a claim of ineffective assistance of counsel. Counsel requested a remand so that he could raise ineffective assistance of motions counsel.

The Court held that ineffective assistance of trial counsel was waived because new counsel failed to raise ineffective assistance of counsel at his earliest practicable opportunity, which would have been the motion for new trial stage. However, the Court went ahead and reached the merits of the ineffective assistance of motions counsel issue on the record before it without making a remand. Though, from the language of the opinion, had the issue not been apparent from the record, a remand for a hearing on ineffective assistance of motions counsel would have been authorized.

So, my advice to the lawyer who called me was to do one of three things:

 

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Georgia Judicial News: Judges Gone Wild Edition

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I don’t want to bury the lead. So, here it is. There must be enough error out there in Georgia to win a slew of appeals. Georgia judges must be messing up on hearsay, the Fourth Amendment, and jury charges. All those things are hard. Many of them, so far this year, are messing up on more basic things such as — do keep your hands to yourself, do show up for work, don’t make Facebook friends with a woman you think is hot and offer advice on a case pending in your court, don’t go parking with a public defender assigned to your court, and don’t — well, don’t do any of that Johnnie Caldwell stuff. Seriously, if Georgia judges haven’t nailed down those basics, then it’s very likely that some good objections at trial will probably produce some reversible error at trial

 

A Recap of Today’s News

It’s a good thing no apartments caught on fire in Atlanta today, because tonight’s 6 o’clock news was all about judges. First, Judge Kenneth O. Nix, who had been a judge since 1982, abruptly resigned today in the wake of what he called a “misunderstanding.” A female ADA assigned to his courtroom and a female investigator posed for pictures in his lap and apparently became upset after he, in his own words “flicked them both on the fanny.”  The incident landed the Georgia judiciary back in the national news. The local broadcast media also covered the story. Judge Nix was apparently known to dress as Santa and have people sit in his lap.

Meanwhile, the local broadcast media covered the abrupt resignation of Fulton State Court Judge Albert Thompson after a local media outlet examined records that showed he only entered the courthouse 55 weekdays aout of a possible 147 weekdays that the courthouse was open. In a 30-week period, he spent about 43 minutes per week in the courthouse.

 

More Judges in the News

The governor announced his replacement for Paschal English and Johnnie Calwell. Speaking of Santa, Judge Caldwell apparently had a Santa complex also. Their replacements were announced today — Fayette County State Court Judge Fletcher Sams and Former GPDSC head Mack Crawford. Mr. Crawford’s nomination had moments of controversy when Stephen Bright, of the Southern Center for Human Rights wrote a letter to the Judicial Nominating Commission opposing him as judge (PDF). Of course, the abrupt resignation of Caldwell and English was news when it happened.  The announcement of their replacements was news today.

 

And There was the Facebook Judge

Remember Judge Ernest Woods a/k/a Bucky Woods who got the ball rolling back in January, 2010? Seems so long ago and so many judicial scandals back. He was the first Georgia judge to get zapped this year based upon some Facebook contact with a local hair stylist who had a case pending before him. Katheryn Hayes Tucker covered the story on Law.com way back then.

 

And My Point Is

The point of this story is not that Georgia has suddenly become a giant Scott Turow novel — though that point could be made and defended. My point is not that there is some sort of conspiracy afoot to put more Sonny Perdue appointees on the bench — though that does sound interesting.  The point is that if Georgia judges are messing up on the basics, then you’ll likely get some mistakes on the record if you just object more. Who knows, after all, what Santa might bring.

 

And the Box Score

Number of Chief Judges who Abruptly Resigned: 4

Number of Times Santa Claus was Referenced: 2

Number of Times “Some people claim[ed] there’s a woman to blame:”5

Number of Resignations letters referencing need to spend time with family 5

Preserve the Record Alert: Felon in Possession Statutes are Low-Hanging Fruit

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, Professor at Moritz College of Law at Ohio State University reports at his blog, Sentencing Law and Policy, that the Seventh Circuit has suggested that a non-violent felon might prevail on a Second Amendment challenge if he brings an as-applied challenge to the Federal Felon in Possession statute (18 U.S.C. Section 922(g)(1))). In U.S. v. Williams.pdf, No. 09-3174 (7th Cir. August 5, 2010), with retired Justice Sandra Day O’Conner participating as a member of the panel, the court rejected a challenge to the statute brought by a defendant with a violent felony record.

Professor Berman finds particularly noteworthy the following paragraph from the Williams opinion:

And although we recognize that Section 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams. Even if the government may face a difficult a difficult burden of proving Section 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges [the statute] as it was applied to him. … Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of Section 922(g)(1).

Looks like an engraved invitation for a non-violent felon to bring it on. And though we Georgians are not in the 7th Circuit, it looks like a nice little opportunity to throw a challenge into your record if you are representing someone at the trial level who is a non-violent felon charged with a felon-in-possession charge under the Federal statute or under Georgia’s comparable statute. Wouldn’t hurt.

When I get your record on appeal, it will give me something more than Jackson v. Virginia to talk about.

Use Good Story Technique in your Next Appellate Brief

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Who doesn’t like a good story? We start liking them before we know how to read. Trial lawyers generally know that juries like them. But what about appellate writing? Is there a place for story in the appellate brief or at oral argument?There is, and if you start weaving elements of story into your appellate brief writing, your client’s case will stand out from the stack of briefs the judge, justice, or law clerk is reading. While you may not be guaranteed a win, you increase the likelihood that your court will at least read your brief all the way through. A thorough an interested reading is your first and greatest hope if you are the appellant. The easiest thing for a court to do, after all, is affirm the trial court. A thorough reading gets your audience out of default mode.

Enter Kenneth D. Chestek, Associate Professor of Law at Indiana University School of Law. In a paper he presented at the Applied Legal Storytelling conference in 2007, he argues that the IRAC brief (adopted from the case method to help first year law students grasp legal opinions by breaking them down into the components of Issue, Rule, Application, and Conclusion) leads to dry and boring writing. He adds that “[t]he problem with IRAC, however, is that it doesn’t have much room for people.” Which leads to his thesis: “legal writing need not be — nay should not be — boring. When we write legal briefs to a court, we are trying to resolve some human conflict. That’s inherently interesting stuff!”

Great, you might think, it’s time to spruce up the statement of facts and make it more compelling. That’s a good start. Mr. Chestek argues that a strong narrative thread should wind through the argument section as well.

What, pray tell, is a strong narrative thread? It’s the stuff that made your favorite movie so great or that last novel that kept you up late reading. Broken down to its component parts:

a compellng story is a strong plot line, in which conflict is revealed, the protagonist struggles to resolve the conflict, and ultimately succeeds in doing so.

And that, in one deceptively simple expression, is it. Your brief, your entire brief, should have a clear conflict, a protagonist (and what’s a protagonist without an antagonist), and a resolution.

Do Stodgy Conservative Judges Want More Stories?

They don’t usually put it that way, but yes. According to Chestek’s piece, Judge Ruggero J. Aldisert, senior judge of the United States Court of Appeals for the 3rd Circuit, reports that most of his colleagues complain most that the briefs they read are “rudderless [and contain] no central theme [,]… lack … focus [, and contain] uninteresting and irrelevant fact statements.” Put another way, they don’t tell a story.

What Does a Good Story Have to Do with a Good Appellate Brief?

According to Mr. Chestek, good fiction shares several traits with a good appelate brief:

  • It is plausible.
  • It is readable.
  • Most importantly, for present purposes, it evokes an emotional response from the reader

He adds that a good story and a good appellate brief has a definite setting. Setting could be the literal place where a crime took place, a courtroom where mistakes were made, or a small cramped interrogation room that smells of industrial cleaning chemicals, nicotine, and sweat. It might also be the law itself. Setting defines and limits conflict. What is the setting of your next appellate brief?

Good appellate briefs also have clearly-defined characters and a central conflict. Who is the protagonist in your brief? Who is the antagonist?

Finally, what is the theme of your brief? What is the plot? What will the end of the story look like after the protagonist prevails? That’s the part of the story you ask the Court to write.

Find Yourself Getting Lost?

Return to the definition of a compelling story: “a compellng story is a strong plot line, in which conflict is revealed, the protagonist struggles to resolve the conflict, and ultimately succeeds in doing so”

  1. What is the conflict?
  2. Who is the protagonist?
  3. Who is the antagonist?
  4. How should the conflict resolve itself?

If your reader can identify the answers to these questions, then your brief is likely readable, interesting, and probably one of the best briefs in the stack of briefs the judge or law clerk is reading at 4:53 p.m. on Tuesday afternoon as deadlines approach and as fatigue sets in.

For more on story, start reading more novels or when you’re watching television, try to keep the questions above in mind.

If you really want to become a story ninja, check out Robert McKee’s Story, Donald Miller’s book and blog on story, and Joseph Campbell’s works, which identify the central components of all stories running through many cultures.

Then, makes your next brief a good story

 

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