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Senate Candidate Loeffler Attacks Collins for Work as a Defense Attorney

July 28, 2020/by admin

In a recent ad, incumber Senator Kelly Loeffler has attacked challenger Doug Collins for purportedly being a criminal defense attorney, having a website that advertised for clients, and for accepting appointed cases. Her campaign website posted a list of Georgia sheriffs who condemned Collins for his “criminal defense history.”

https://www.youtube.com/watch?v=dh9whAOo7cI&feature=youtu.be

Sen. Loeffler presumably had the assistance of criminal defense counsel when the FBI investigated her for insider trading last Spring. Senator Burr, who was also investigated in that probe, employed a criminal defense attorney, who (like Collins), has a website. It appears that it would have been acceptable for Collins to represent the criminally accused in white collar matters. Perhaps the challenger’s sin was that he represented poor people.

The Loeffler campaign also does not take exception to how her challenger honed those criminal defense skills for use in defense of his highest profile criminal defense client ever. Looking at the Loeffler ad, I can see one interesting pattern in the sort of client she takes issue with — given that she has no issue with white collar criminal work or work involving the defense of “high crimes and misdemeanors.”

My criminal defense colleagues have taken to social media to point out the many issues with this ad, noting that John Adams was a criminal defense attorney and that our system is based on strong adversaries on both sides of criminal cases. Alas, I would imagine that this ad worked well in focus groups. And the target market for this ad has neither the capacity to appreciate the flaws in the message nor a clue who John Adams was.

0 0 admin /wp-content/uploads/SK-Logo-Black-White.png admin2020-07-28 13:15:462020-07-28 13:15:46Senate Candidate Loeffler Attacks Collins for Work as a Defense Attorney

Why the Upcoming Amendment to the Georgia Court of Appeals Rules is a Good Idea

July 27, 2020/by admin

Beginning on August 1, a single dissent in a three-judge Court of Appeals case will no longer remove its value as precedent for future cases, nor will one judge’s disagreement with the reasoning of the case. Here is the text of new Court of Appeals rule 33.2:

If an appeal is decided by a division of this Court or by the Court sitting en banc, a published opinion in which a majority of the judges fully concur in the rationale and judgment of the decision is binding precedent.

According to Chief Judge McFadden, “This rule change brings the Court of Appeals of Georgia in line with other federal and state intermediate appellate courts throughout the country. It will further our role in building and maintaining a clear and a consistent body of case law throughout the state.”

The new rule does not reverse a historic trend; rather, its reverses rule that had been in effect for just a few years when the legislature gave the Court the power to set its own rule regarding the establishment of precedent.

I do not think that the rule will effect any lawyer’s win/loss rate (though I will note that many of my wins have been with a concurring vote or a dissent), I think the rule change is good for two reasons.

  1. Most intermediate appellate courts do not require unanimity for cases to set precedent. Our court should function the way federal circuit court and the similar state courts around the nation.
  2. The close cases are the ones where we need precedent the most. Generally, when a panel is in complete agreement, the case is not close or is setting forth established law.

While some may be concerned with quality control with a case that is as busy as Georgia’s intermediate appellate court, the Court has the ability to issue non-published opinions to avoid a turn of phrase creating inadvertent precedent in a case that the panel saw as a restatement of established law.

One final note, the rule is not retroactive. So 2-1s and JO opinions from the past will not become precedent on August 1.

0 0 admin /wp-content/uploads/SK-Logo-Black-White.png admin2020-07-27 13:50:582020-07-27 13:50:58Why the Upcoming Amendment to the Georgia Court of Appeals Rules is a Good Idea

Toward the Post-Monument Era

July 13, 2020/by admin

If you have practiced law for any time in Georgia, you have walked by Confederate monuments. The smaller and more remote the jurisdiction, the greater the likelihood that you walked beneath the shadow of a Confederate soldier, general, or political figure on your walk to court. Recently, the county commission in Henry County, Georgia, voted 4-1 to remove the Confederate monument on the square. This one is steps from my office. It is slated to come down within 60 days. Leon Stafford, of the Atlanta Journal, writes, “[a] Confederate monument in McDonough’s square will be removed in the next 60 days, the latest shrine to the Confederacy to be taken down in metro Atlanta.”

When Confederate monuments started coming down a few weeks ago, I walked to the square for a closer look. For years, it had existed beneath the level of consciousness. The granite soldier has stood impassive as I paced the square while waiting for a verdict. Somehow he was there for years without me looking at him that closely. What I notice (or what I believe I notice) about this soldier is that he appears to be low ranking. He holds a single rifle, boots, hat, and sack. His is not a dress uniform. He bears no sword. He appears to be infantry. I don’t know much else. I don’t know if he is the likeness of a particular person or is something of an everyman. When I went to check him out, I imagined him as a conscript. I noticed something else. There had been an attempt to recast the setting of this monument as part of a larger war memorial. Today, he is surrounded by various flags of the military branches. Before recent events, there had been an attempt to render the statue less a “shrine to the Confederacy” than as a war memorial more generally. To be sure, the Confederate soldier dominates the scene, and he is now surrounded by the flag of the nation against whom he took up arms. But I noticed the effort, such as it was.

In light of recent events, I turned to Shelby Foote’s Civil War series (Foote has also been criticized. I’m well aware). I used my monthly Audible credit to download volume one of that series. Volume One alone is 38 hours long — so, I am in it now for the long haul. In volume one, Foote describes the build-up to the war. In 1856, Senator Charles Sumner, an avid abolitionist, was beaten and nearly killed on the Senate floor by Preston Brooks of South Carolina who used a cane as his weapon. He suffered no consequence for the action. Afterward, he was sent additional canes as a gift. Following the election of Lincoln, states began seceding one-by-one. Foote gives a lengthy treatment to Senator and soon-to-be Confederate President Jefferson Davis’s speech announcing his resignation from the Senate. The Republican Party, then the party of Lincoln, was new on the scene. There was party upheaval and splintering in the election of 1860. The result of that election was the catalyst for succession.

The War wasn’t fought between Senators or even generals though. Over 750,000 died in the war. An interesting piece of data — 500,000 foreign-born soldiers served in the Union army. The Civil War was considered the first modern war but fought with the tactics of a bygone age. Many of the bloodiest battles consisted at men being hurled against artillery fire. The numbers were brutal. In the Battle of Shiloh, 23,000 were killed in two days of fighting — a single battle in the Western theater. Those who did the bulk of the dying on their respective sides had much common with one another. The stark differences in philosophy, views on slavery, and economic interest were to be drawn between those in charge. There were two conscription acts by the Confederacy. As an aside, North Georgians did not uniformly want to secede. But sitting it out, particularly in the South, was not an option. Near my home, there is a Confederate graveyard where the markers are small, rectangular, and uniform. If you are from the South, you have no doubt seen such a place. Generally, the generals — the kind of people depicted on Stone Mountain — are not buried there. The poor often die fighting the battles of the powerful. That much has not changed.

Most of the confederate monuments were built in the 20th century as part of what is known as the lost cause movement. They were built in reaction to anniversary dates of the civil war and often in response to efforts to further civil rights. And the impetus was generally aimed at mythologizing and rallying together around a common (most certainly racial) identity in the face of possible discomforting social change.

Now the Confederate statue I’ve walked by thousands of times is slated for removal. And I have thought on what it is like to live in this particular time. I have also tried to imagine what it would have been like then. I look and see some parallels — the breakdown of civil debate in the Senate, two sets of people stuck in their own narrative with little concept of nuance, and a political divide that resulted in hundreds of thousands of deaths (ours by a pandemic theirs in a brutal war of a different sort). Those dynamics were at play in the lead up to the Civil War, combined with the unraveling of party politics. And The Lost Cause movement was an attempt by those in power in Southern States to recast truth as they knew it. To use a phrase coined by a White House Official, the movement that led to the construction of Confederate memorials was all about the casting of “alternate facts.” The more things change, the more they stay the same.

To see into the build up to The Civil War and in the events that preceded the construction of monuments is to peer into the mirror. And, alas, I see the teachable moment being lost on those around me. Monuments do not seem to be the only things going away. Alongside this movement, perhaps even within it, I see the very forces at play that led to the monuments themselves.

“The past is never dead. It’s not even past,” said William Faulkner. We do not escape it and are perhaps never more wed to it than when it is beneath the level of our consciousness. When the day comes that the monuments are no more, what will wake us to the way we are acting? When we are freed from walking by the monument on the way to the courthouse, will we have the discipline to understand the history that led to what awaits us when we are inside the building? What does our present look like when we have taken down the reminders of our not-so-pleasant past?

0 0 admin /wp-content/uploads/SK-Logo-Black-White.png admin2020-07-13 03:59:162020-07-13 03:59:16Toward the Post-Monument Era

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