Higher Wages, Fewer Cages.

Georgia justice is needlessly cruel. And our wages still trail most of America’s. The economy doesn’t work for workers. The criminal justice system locks too many decent people in jail. Focus is essential. Let’s do a better job prosecuting murderers, rapists and robbers. Don’t distract the police with low value chores.

Henry County Just Says No to Marijuana Reform

Henry County authorities recently seized 1,250 pounds of marijuana in the largest such raid in county history.  Marijuana laws have changed in many western and blue states, but Georgia’s have received only minor tweaks.  Georgia’s compassionate use statute authorizes only a few medical conditions and applies only to a non-psychoactive form of the drug.

The Henry County courts also have an old fashioned approach towards marijuana enforcement. The Henry County Solicitor’s Office has had a pretrial intervention program for several years. People accused of battery and shoplifting are eligible. Those caught with a few grams of marijuana are not. Typically, a first offense for possessing less than one ounce does not carry jail. However, many first time offenders soon go to jail.  Misdemeanor marijuana sentences uniformly entail 12 months of probation and frequent drug testing.  During a recent court session, I observed a few cases where misdemeanor offenders had been subjected to twenty or more urine tests.  These tests are often monitored by a probation officer.  The defendant is charged for the cost of the test and threatened with jail if he can’t pay. Those who fail drug tests almost always serve jail time and are saddled with a permanent criminal history.

Georgia law requires only a token fine for misdemeanor possession. These procedures are a policy choice made by the prosecutors and judges at the Henry County State Court.

This Statue Exalts White Supremacy. Tear it Down

This Statue Exalts White Supremacy.  Tear it Down

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For ten years, I have practiced law in the shadow of a monument “To Our Confederate Dead.”  It towers smack dab in the middle of the McDonough courthouse square.  The epigraph reads:

“To our confederate soldiers those who fell in the fiercest fighting and sleep beneath the sod of every southern state, those who have passed away in the after years of peace and whose ashes now hallow old Henry’s hillsides, those who like a benediction still limp in our midst, may God preserve forever in our hearts, their memory and in all minds a knowledge of their motives and their cause.”

How very Southern.  What were their motives?  What was their cause?  Why aren’t these things spelled out?

The statute was erected in 1910, while Georgia was in a state of racist hysteria.  In 1906, Atlanta saw one of the deadliest race riots in American history.  The riots began with rumors that four white women had been accosted by blacks, though none of these allegations was ever proven.  For two days, blood flowed on the streets of Atlanta, leaving between two and four dozen African Americans, and two whites, dead.  Throughout that decade, most years saw two or three lynchings in Georgia alone.

Most blacks had been effectively disenfranchised since 1877, when Georgia became the first state to adopt a cumulative poll tax.  A citizen could vote only if he paid the tax for every year he had been an adult.  Fewer than 20% of Georgia blacks voted in the 1900 and 1904 elections.  Despite white economic and political hegemony, Georgia politicians played on white racial anxieties to win votes.  Hoke Smith, governor of Georgia from 1907-1911, proclaimed it would be “folly for us to neglect any means within our reach to resist the present danger of negro domination.”  He championed an amendment to the Georgia Constitution to further tighten voting requirements.  It left the poll tax in place and further restricted the vote to those who: (1) could pass an (arbitrary) literacy test; (2) had served in the U.S. or Confederate military or had ancestors who had done so; (3) owned at least 40 acres or $500 of property; or (4) were of “good character.”  The Amendment, like the epigraph, never mentioned race.  It didn’t need to.  Everyone who mattered knew that light skin was an essential ingredient of “good character.”

The legislative sponsor of this amendment, Thomas Hardwick, openly predicted it “would disenfranchise about 95% of the negro vote—in fact about all of them.”  The legislature passed the amendment overwhelmingly, and the voters who could pay the poll tax ratified it by a margin of 79,968 to 40,620.  As late as 1940, fewer than 5% of adult African Americans were registered to vote in Georgia.

The statute that blots our courthouse square does not state what the “cause” was because that cause had been declared illegal by the Thirteenth, Fourteenth and Fifteenth Amendments to the U.S. Constitution.  These Amendments were still on the books, still the supreme law of the land, but lay dormant after Northern enthusiasm for enforcing them collapsed in the wake of the 1876 election.  They could be evaded but not openly defied.  White supremacy could be and was the essential fact of Georgia politics, as long as it dared not speak its name.

Many of the confederate dead were poor yeomen bamboozled by their slave driving betters.  For them, I feel more pity than contempt.  Many, possibly most, of their white grandsons were disenfranchised by the poll tax.  The 120,000 votes that were cast in the 1908 Georgia election represented less than 5% of the total population and only 25% of the adult, white, male population.  The “cause” for which the sons of Henry County fought and died was a narrow one indeed.

The statue needs to go.

Henry County Public Defender Takes Four Plus Years to Obtain Transcripts

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The Henry County Public Defender’s office has dropped the ball in at least three criminal appeals.  In each case, the defendant was convicted at trial and sentenced to prison.  In each case, the conviction is over four years old.  In each case, the Public Defender’s Office has not finished one of the basic, preliminary tasks in appellate practice: obtaining the trial transcript.

I don’t know exactly why this breakdown has occurred, but there are a couple of potential reasons.

Appeals are hard.  Investigating a case, researching the law, and writing a good brief takes a lot of time.  I just filed a brief in a case that took me, in total, over 300 hours. That case required an unusual level of work.  The trial court record was very spare, a lot of dubious things that should have been in the trial court record were not, the trial court did not make my job easy, remand proceedings dragged on for four years, and the client is serving a life sentence for a non-violent crime.  While that case was unusually time consuming, even straightforward appeals take scores of hours to do well.

Appeals are also hard to win.  Even if you bust your but and do a great job, the chances of winning are slim.  Each year, the Supreme Court of Georgia hears roughly 120 to 150 non-capital murder appeals and vacates only a few convictions.  Winning an appeal creates yet more work.  Unless the appellate court says the evidence was insufficient to support a conviction, the winning attorney has to start from square one and prepare for trial all over again.

In many Georgia appeals, the appellate attorney basically packs it in and gives up.  It’s really easy to write a bad appellate brief: limit your argument to the sufficiency of the evidence, maybe throw in an evidentiary issue (which you won’t win because it’s reviewed for abuse of discretion and the state will argue harmless error) and move on to the next case.   Oftentimes, the strongest issues are not apparent from the transcript because they involve matters defense counsel failed to investigate or the prosecution failed to disclose. In 2013, over 19,000 people began a Georgia prison sentence, yet the Court of Appeals awarded only four new trials based upon ineffective assistance of counsel.  In a system where most public defenders are undertrained and overwhelmed and many private attorneys have little trial experience, this statistic is staggering.  In that same year, the Court of Appeals did not order a single new trial based on the failure of the prosecution to turn over exculpatory evidence.  The post-conviction process is doing a horrible job of identifying errors at trial, especially errors which can only be proven through hearing additional evidence in post-conviction proceedings.

Being a state-level public defender is an exercise in triage.  Even if you work to the point of exhaustion, something is going to fall through the cracks and some of your clients are going to get walloped.  Appeals are a poor investment of a public defender’s time because effort spent preparing for trial is much more likely to lead to victories and the payoff for trial work is much more immediate.  I do not fault individual assistant public defenders for devoting their time to more productive work.  I blame the system for underfunding indigent defense to the point where it is pragmatic for assistant public defenders to ignore their clients’ appellate rights.

Judge Amero Experiments With a Shorter Trial List

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Henry County’s criminal calendars have gotten a little less onerous.  For years, each Henry County superior court judge has required 80 to 160 criminal defendants to report for trial at the same time.  Some other counties use short lists where only 20 to 30 of the oldest cases are required to report for trial.  The physical impossibility of trying 100 or more defendants in a single trial week makes it difficult to predict when a given case will be tried.  It creates a system where defendants and counsel must rreport to court multiple times before a case is actually tried, and be prepared for trial each time.  This makes defending Henry County cases time needlessly time consuming and significantly increases the cost of a zealous defense.

Departing from tradition, on July 10, Judge Amero required only the first 25 cases on his calendar to report for trial.  This may represent a one-time occurrence rather than a new practice as Judge Amero had planned in advance to try a murder case during his July 10 trial week.   It is unclear how many cases Judge Amero will require to report the next time he has not preselected a major case to be tried first.  Furthermore, even those defendants who were not required to report to court were placed on two hour call, meaning they and their attorneys were expected to be in court and ready to pick a jury within two hours of being notified by phone.  Thus, a conscientious attorney must be prepared to try a case every time it appears on Judge Amero’s trial calendar, regardless of whether he must report to court.

I hope Judge Amero’s small experiment represents a step towards shorter trial lists, where cases appear on fewer calendars and all involved know that a notice to report for trial means what it says.

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DUI Breath Tests are Really Hard to Beat

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Defendants who fail a blood or breath test are almost certain to be convicted of DUI.  Those who refuse a breath test have a substantial chance of acquittal.

I take an empirical approach to the law.  The best predictor of what a jury will do is what past juries have done in similar cases.  The best predictor of what a judge will do is what he has done in similar cases.  This approach informs a realistic, pragmatic style of advocacy.  Clients who know the mean outcome and differentiate themselves from run of the mill defendants can consistently achieve above average results at very low risk.  Conversely, defendants who shoot for the moon often end up losing jury trials and making their situation worse.  This does not mean that jury trials are always a bad idea.  It means that jury trials are risky and should be undertaken only with an empirically informed understanding of the probability of acquittal and the downside risk.

In Georgia, a Defendant can be convicted of “per se DUI” if his blood or breath test result was greater than or equal to 0.080%.  Defendants whose results exceed this threshold are almost always convicted of DUI.  I studied the case outcomes of an experienced Henry County attorney with an active DUI practice.  I attempted to locate every one of this attorney’s DUI cases in the Henry County State Court which was filed after March 15, 2015 and concluded by June 5, 2017.  No cases were intentionally excluded from the sample.  However, the data may be incomplete because some records may have been sealed and the clerk may have coded some cases under the wrong attorney.  I triple checked the results, but cannot completely exclude the possibility of compilation error.  Accordingly, these data should be viewed as a rigorous estimate of the outcomes of a single, experienced DUI attorney in the Henry County State Court.

Case Type DUI Conviction Reduced Acquitted/Dismissed
BAC >= 0.080 27 0 0
Other Adult DUI 27 10 11
Under 21 3 0 1

The data are striking.  Every defendant who “failed” a blood or breath test was convicted.  This does not mean that every future defendant who fails a chemical test will be convicted of DUI, but it does show that the odds are bleak.  There are three categories of per se DUIs that are potentially beatable: (1) cases where the result was under 0.085% and therefore within the margin of error; (2) cases where the chemical test is not admissible at trial because the officer stopped the defendant illegally or failed to read Georgia implied consent; and (3) “parking lot cases” where an officer approaches a parked or stopped car and it is unclear what the driver’s BAC was when he stopped driving.  If your case falls into one of these categories, a jury trial might be a good idea.  However, if your BAC was over 0.085 and none of these situations apply, you are almost certain to be convicted.

Cases without an illegal blood alcohol concentration are much easier to beat.  Indeed, 46% of such defendants escaped a DUI conviction.  Certain DUI defendants have an even better chance of acquittal.  Many of the 48 adult defendants who did not fail a breath test were, nevertheless, visibly intoxicated.  This category is subjective, but real.  A defendant who cannot walk straight, talk calmly or stand without swaying will probably be convicted of DUI whether or not a breath test is introduced.  I have seen enough DUI cases to know that many (perhaps 25-35%) involve obvious intoxication.  If we assume that these cases resulted in conviction by plea or trial, then the acquittal rate for cases where the defendant refused a chemical test and was not obviously intoxicated would be roughly 69%.

If you had three or four drinks, are not a lightweight, and did not fail a chemical test, you can probably beat a DUI charge.  However, if you took and failed a chemical test, and do not fall into one of the three categories described above, your best strategy is to accept responsibility and attempt to minimize the consequences of conviction.

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What’s Wrong With Criminal Defense Lawyers?

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As a group, criminal defense attorneys have failed miserably. Despite our efforts, prisons have grown like a strain of kudzu that thrives in any climate. In 1900, the American incarceration rate was 0.69 per 1,000 adults. In 2000, it was 4.78 per 1,000. Only prisoners are included in these numbers, almost a million more people are locked up in local jails. This orgy of incarceration has occurred amid a similar increase in the number of lawyers. In Georgia, the number of attorneys per capita tripled between 1900 and 2003. During that century, increases in household income expanded the population who could afford lawyers. For the first time, governments began helping those who could not. In 1900, no state provided attorneys to indigent defendants. By the 1950s, many states provided attorneys for indigent defendants, and, in 1963, the U.S. Supreme Court required all states to do so in Gideon v. Wainwright. Yet the decades after Gideon saw the biggest increase in incarceration in human history. If the job of criminal defense attorneys is keeping salvageable human beings out of prison, we have failed.

Compare this performance to medicine. My wife is alive because of a doctor. My son was born because doctors were able to save her life. Both of my grandfathers have lived well into their 80s as a result of modern medical advances. Their experiences are not uncommon. Between 1900 and 2000, life expectancy in the U.S. increased from 47 years to 77 years. Roughly 39% of the people who are alive today owe their lives to modern medicine.

If naïve Martian tried to study the effect of criminal defense attorneys armed only with statistics and regression software, he might conclude that an increase in the number of criminal defense attorneys causes greater incarceration. There is a tight correlation between the two. Even highly skilled criminal defense attorneys do not mean less incarceration. The federal system has long had well-compensated public defenders, most of whom earn six-figure salaries. Competition for these positions is keen, and they often go to graduates of top law schools. As a staff attorney at the U.S. Court of Appeals for the Eleventh Circuit, I read scores of polished briefs written by federal public defenders. These attorneys’ hard work and fine words did their clients little good. The defendant almost always lost.

Effective representation is not a panacea for the problems of the criminal justice system because society would never tolerate “miracle defenses” the way it embraces “miracle drugs.” Bacteria and tumors don’t vote. They are a common enemy, and no employable politician wants his constituents dead. Doctors are warriors in a communal fight, and roughly a third of government revenue is spent on health care. Crime victims, property owners, and concerned parents do vote, and they often care passionately about controlling crime. They tolerate criminal defense attorneys not to “help criminals,” but to keep law enforcement from arresting the wrong people. Many good citizens are leery of our trade. Let an advocate become too eloquent, and he might place his clients above the law. Let him mass produce this elixir and we’d be half way to anarchy. Free judges from mandatory minimums, and silver-tongued advocates might prove them gullible. No defense attorney has found the equivalent of penicillan, and if one did, it would soon be illegal.

When criminal defense attorneys claim the same efficacy as doctors, they become charlatans. There is no cure for a DUI, though there are many people eager to buy one. There is a course of treatment, which typically involves jail, fines, and license suspension. An attorney can help you win acquittal in a close case or one with police misconduct. He can help you win a charge reduction if the courts are swamped or the prosecutor is sympathetic. He can muster mitigating evidence, craft a course of rehabilitation, and advocate alternatives to incarceration. But he cannot give you impunity to violate the law.

The shame of our profession is that too many attorneys ignore the best arguments for the arguments that scared and naïve clients want to hear. American criminal sentences are disgracefully harsh. In the land of the free, we incarcerate more people than communist China, despite having one quarter of its population. Prison expenditures have impoverished state universities and forced many students deep into debt. The financial cost of many burglary sentences is greater than the cost of a four-year college degree.  Mass incarceration ruins lives, guts families, and has scarred an entire generation. There are principled arguments for humane sentences, and Georgia law often gives judges the discretion to impose them. The criminal defense bar should stop selling snake oil and focus on justice.

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