Republican Run-Off for Georgia Attorney General Devolves into Dealth Penalty Smackdown

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I’ve been talking about the Democratic side of the Attorney General election for too long. But what about the Republic side? Georgia is such a red state, that the Democratic ticket is largely irrelevant anyway. Meanwhile, the Republicans are in a run-off. And, as Republicans are apt to do when they square off, the candidates are starting to compete to see who is more enthusiastic about killing criminal defendants.

Austin Rhodes, an Augusta, Georgia, conservative talk show host published a letter from Barry Fleming, legal counsel to the Georgia House of Representatives, to Sam Olens, Preston Smith’s rival for Georgia Attorney General. In the letter, Fleming tells Olens that Smith blocked passage of a bill that would have allowed juries to recommend a death sentence by less than a unanimous vote from the jury.

Fleming alleges that Smith “killed the bill in his committee” (Not kidding. He said “killed”) by waiting until Republican senators left the committee room to call it for a vote where democrats could vote against it.

Smith maintains that the bill would have created expensive litigation in death penalty cases over the law’s constitutionality — particuarly given the fact that the bill would have allowed the judge to decide whether to impose the death penalty in the event of a non-unanimous death verdict.  The bill would also have put Georgia in a minority of states that allow the death penalty to be imposed after a non-unanimous verdict. Of the 35 States that have the death penalty, few allow for non-unanimous death verdicts. Georgia lost a rare opportunity to distinguish ourselves as being politically more conservative than Alabama.

While it is fun for Republicans to compete to see who loves the death penalty more, they don’t seem to want to talk about the fact that life for a Georgia death penalty defendant in Georgia involves more or less taking up permanent residence in a county jail for years at a time with a lawyer the State refuses to pay. The constituency these guys are competing for think that it’s silly that the State pays for the lawyer anyway.

So, Senator Smth’s death-cred has been called in to question. When Republicans start attacking each other this way, bad stuff can happen.

I’m going to take this opportunity to predict what Smith will do next to get his death-cred back:

  1. He will try to get an actual execution set before the run-off, where he will stand in as a substitute to administer the lethal dose to the inmate — the ultimate red state photo op
  2. He will photo-shop himself into Leni Riefenstahl’s Triumph of the Will, to win back all the Tea Party Republicans who were likely swayed by Fleming’s letter. Sure, it was filmed in 1934, but most of those people think that the universe is only 4000 years old anyway. So, the date won’t be a huge problem. A little sleight of hand will be all it takes to get around the date problem.

Of course, none of the above may be necessary if cooler Republican heads prevail such as Bob Barr, who wrote an a letter to the editor of the Fulton Daily Report supporting Smith stance on non-unanimous verdicts.

Man, this general election is going to be fun between Hodges and allegations that he monkeyed around with a grand jury proceeding involving a police officer who shot an unarmed man and these Republicans who want to compete to see who is more in favor of killing defendants than the other.

This whole thing is going to make life fun for me in future habeas proceedings and murder appeals no matter which person wins this election.

 

 

Good Appellate Writing is Not Stuffy or Formalistic

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I love Kendall Gray’s piece on Brevity and the use of conjunctions to start sentences. I, too, learned never to begin a sentence with But or And. It seemed like good advice at the time. But now I have learned that it is not a law of physics.

He quotes Professor Wayne Scheiss, who presented at a CLE in Texas, who recommended “that in place of however, on the contrary, on the other hand, and the like, you try but and yet without a comma afterward.”

Holy cow! That’s kooky talk. But it’s actually quite liberating. Mr Gray notes:

After attending that conference ,therefore, I no longer have to write in this tortured syntax where formal, introductory clauses are inserted and set off with commas or even semicolons in order to guard against preparatory conjunctions, which are something up with which we will not put.

With this blog, I am now retiring my use of the phrase, “to be sure.” I usually resort to “to be sure,” because I get sick of all the other clauses in a brief. And I won’t miss it one bit.

Are Law Review Articles Relevant in Georgia or 11th Circuit Appellate Decisions?

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Kirk Jenkins, at The Appellate Strategist Blog, poses an interesting question. Does Legal Scholarship Have an Impact on the Work of the Courts? The ABA and some judges say no, and a recent study says yes.

Mr. Jenkins quotes United States Chief Justice John Roberts who recently characterized legal scholarship as not “particularly helpful” in deciding cases. He cites an ABA study that commented that practicing lawyers view legal scholarship as “irrelevant to their day-to-day concerns.” He reports that even law school professors believe that legal scholarship as increasingly removed from the work of the courts.

Such a view seems odd with the introduction of Google Scholar, blogs, and other places where law review articles are more available than ever before. You don’t have to be a member of a big firm with a library that subscribes to law review articles to get them, and you don’t have to trudge over to a law school or courthouse library to find law review articles.

In fact, I read my first law review article in a long time (PDF) after I found out about it on a blog. I found the article, put it on my iPad as a pdf, and found myself immersed in a seemingly esoteric debate with real world application to how I respond to my clients’ ideas for the handling of their case. It challenged some of my practices, made me consider some, reject others, and change my approach to hopefully be less paternalistic and more client-centered. So, not only are law review articles easy to find, they are easier to copy and to carry than they were just a few years ago. The law review article was very relevant to my practice.

From there I read another article about the professor who wrote the piece and discovered that one of her law review articles had come up in a Supreme Court Oral Argument and mentioned in the opinion. Now, I find myself more open to reading law review articles, particularly as a starting point for legal research as I begin to prepare a brief or consider issues to preserve for appeal.

Mr. Jenkins found some research indicating that legal scholarship may be in its heyday. According to a new study from Professor David Schwartz of Chicago-Kent College of Law and Lee Petherbridge of Loyola Law School, legal scholarship is on the rise in the appellate courts. This excellent study looked for citations to law review articles in 296,098 opinions and found an increase in citations.

The blog post ends with a question: are practitioners citing to law review articles in briefs? They really should — put differently, I really should. In fact, with the Georgia Supreme Court re-examining precedent and its value, now may be the best time ever to cite to law review articles that criticize the reasoning behind precedent.

I’d probably leave off the law review articles that apply de-constructionist literary theory to jury charges for now, though.

U.S. v. Irey: The Return of the Federal Sentencing Guidelines in the 11th Circuit

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There is a moment in most great horror movies where the evil presence/bad guy/ghost/homicidal maniac takes out a character who has it coming. For a moment, the audience applauds the wicked antagonist. Think of Jason from Friday the 13th taking out a weaselly teen or the scene in Jurassic Park where the velociraptors eat Dennis Nedry (a/k/a Newman from Seinfeld). Eventually, though, the antagonist continues to do damage to good characters, bad characters, and everyone in between.

If the Federal criminal justice system is the horror movie, then the Federal Sentencing guidelines are the antagonist. Last week, Jason from Friday the 13th re-emerged from the lake. It just so happens that he took out William Irey, a guy who had it coming. But the Guidelines are back with a vengeance to haunt us in a way they haven’t since the Booker decision, and they’ve already started slashing away at the discretion of Federal District Court judges. If Mr. Irey applies for certiorari, then it may be time to start thinking movie antagonist on the level of the big red eye from The Lord of the Rings.

 

The Bad Guy Who Got What was Coming

Meet William Irey. Mr. Irey was a successful businessman who took multiple trips to Asia where he filmed himself exploiting children. He came back to the States and distributed the images over the internet. I am not going to say more. In fact, I have not found a blog or article on this case that recites the particulars. For that, you have to read the opinion (PDF). In summary, I don’t think I’ve read about worse facts in a child sexual crime case.

Mr. Irey plead to a single count of child sexual exploitation under 18 U.S.C. Section 2251, an offense that carries a range of punishment from fifteen to thirty years to serve. The Federal Sentencing Guidelines called for a sentence of life in prison or the maximum sentence.

The sentencing judge deviated substantially from the guidelines recommendation and sentenced Mr. Irey to serve 17.5 years, just two and a half years over the minimum and a 12.5 year downward variance from the guidelines sentence.

To make things worse, the sentencing judge said some rather unfortunate things. The worst was the court’s decision to refer to Mr. Irey as a victim.

As Scott Greenfield put it in his post on the Irey case, the judges could not live with the prospect of Mr. Irey ever walking out of prison. David Oscar Marcus, at the Southern District of Florida Blog, reaches similar conclusions.

The problem is how they got there and the fact that the 11th Circuit has revived the Federal Sentencing Guidelines in a big way.

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Local Politicians are Criticizing the High Costs of Interpreters

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Due Process comes at a price. According to Patrick Fox, in a recent article in the Atlanta Journal-Constitution, it is expensive to provide interpreters for non-English-speaking defendants. In 2009, Gwinnett County paid $539,803 to provide interpreters. With a more diverse population comes an increased need for interpreters. Judge Davis of the Superior Court of Gwinnett County, estimates that interpreters have been provided in over 42 languages in 2009.

 

The Rosetta Stone Comment

Of course, it appears that the Constitution of the United States is being lost in translation to those responsible for funding court systems. One city council member said that he wishes that he had gotten the Rosetta Stone software because he believes the court interpreting is a “sweet gig.” Being a certified court interpreter is hard work, requiring proficiency in two languages, knowledge of the court system, and the ability to multi-task in a challenging often high stress environment. Buying some software from a kiosk at the mall probably won’t make you a certified court interpreter, but it might get you “close enough for government work” in some Georgia Courts, even if you are the arresting officer, a probation officer, or a co-defendant.

 

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The Supreme Court of Georgia Now Allows E-Filing of Briefs

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While it feels like August in Georgia, for appellate practitioners it may feel a little like it is Christmas. Today, the Supreme Court of Georgia has begun accepting briefs through its new e-filing system.

From today forward, lawyers who are in good standing and members of the State Bar of Georgia and the the Supreme Court of Georgia may file a brief and other pleadings before the court by uploading them to the Supreme Court e-filing website as a PDF. While the Georgia Court of Appeals has allowed e-filing for several months now, the Supreme Court will allow a wider range of filings than the Court of Appeals currently supports.

Beyond the Supreme Court’s website, several news have filed stores on e-filing. Bill Rankin, with the Atlanta Journal-Constitution used twitter to announce it. Jan Skutch with the Savannah Morning News ran a story about it. WLTZ News has covered it. My friends over at the SCOG Blog have a good post where they have registered and tried it out. Of Course, the Supreme Court’s own website has extensive coverage.

Among the types of filings that may be submitted the filing system our briefs on cases that are currently pending before the court, applications for interlocutory appeal, applications for discretionary appeal, and petitions for certiorari.

For those unfamiliar with E-filing, the Court has included several instructional videos to tell you how to do things such as register for the following with the Supreme Court, how to submit your first brief, and how to submit various petitions for matters that are not currently docketed before the court. If you have filed electronically in the Georgia Court of Appeals, you will find that the user interface here looks familiar.

I have already registered with the system and find that many of my filings are available to be reviewed. I wrote an article in the most recent issue of the appellate law section’s newsletter, the Appellate Review that discusses the filing in the Georgia Court of Appeals, and I am sure that the section will have a forthcoming article on the Supreme Court’s new move.

Chief Justice Hunstein is very excited about the development. She said today “What we’re talking about here is a revolutionary change that is a win-win situation for the Court and for the litigants,”. She added, “The parties will save time and money by no longer having to print, copy and deliver paper documents. No more fighting Atlanta traffic to get those documents into our Clerk’s office by the 4:30 filing deadline.”

Today’s announcement from the court will make several people happy, including lawyers, legal secretaries, court personnel, and many others who deal with the Supreme Court on a regular basis. No doubt, this system will make several people unhappy including Blumberg, copier suppliers, the United States Postal Service – particularly my old friends whom I used to see at the Hapeville post office at midnight (the last post office in the state you can file things up to midnight). The fact that those people will be unhappy actually makes the even happier.

In the long run, this new system will save me money as every time have ever had to file a brief with the Supreme Court of Georgia, it has been necessary to prepare an original and seven copies to mail out.

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