Do You Have Payment Plans?

Yes!

Many clients facing criminal charges ask if I have payment plans.  I try to be as flexible as possible. Criminal charges are almost always unexpected and many clients cannot pay my full fee up front.  This is okay.  I am happy to take payments as long as it seems probable that I will be paid.

Here are a few good rules of thumb for clients who want payment plans:

  1. Contact me early in your case.
  2. The first payment should be at least one third of the total fee.
  3. The closer you are to trial the more quickly you need to pay.
  4. The attorney should be paid in full by your trial date.

I have never charged a client a late fee.  I haven never sued a client for non-payment.  I can be patient.  I just need to be paid before your case is over.

Republican Partisans to Decide Henry County State Court Election

Georgia’s ostensibly nonpartisan judicial elections will be decided by an overwhelmingly and artificially Republican electorate.  Judicial runoffs occur on the primary runoff day.  In blue counties, this electorate votes about 35 points more Republican than in the November gubernatorial election.  An extreme case makes this point vivid, the Clayton County election in 2014.

Clayton County is deep blue.  In the 2014 Governor’s race, Carter won Clayton County by 67 points (83%-16%) while losing the state by 8 points.  Nevertheless, a hypothetical, generic Republican would have been competitive in Clayton County on primary runoff day.

On primary day, both parties had top-of-the ticket races.   Republicans turned out at only a slightly higher rate than Democrats, and the gubernatorial electorate was 80% Democratic and 20% Republican.  Republican general election votes were about 20% more likely to turn out on primary day than Democrats, a material but not huge difference.

On runoff day, Democrats stayed home.  Republicans had a U.S. Senate primary to decide, Democrats were voting only for state school board.  Even in deep blue Clayton county, 3,285 Republicans voted in the Senate runoff.   Conversely, only 3,790 voted in the Democratic runoff, less than 3% of all registered voters in the county.  The Clayton County primary runoff electorate was 46% Republican.  In Henry County, the primary runoff electorate was 88% Republican even though Democrat Jason Carter received more votes for governor in November.

Elections for State Court have a similar profile to those for State Board of Education.  Some people care passionately, most have no idea of who the candidates are.  This year’s Henry County State Court election will be decided by Republican partisans.

There is a strange solution.  If more Democrats ran for governor or U.S. Senate, there would be a greater likelihood of a high profile Democratic runoff.   Democrats should welcome new voices to their primaries in hope of forcing runoffs and bringing their voters to the polls when judgeships are decided.  The present system rewards intrapartisan debate.  That’s a silver lining in a very Southern storm cloud.

Lewis’s Judicial Bid Threatened by Republican Election Laws

GraphChaundra Lewis had a great night Tuesday in her quest to become the first African American and the first woman elected to Henry County’s State or Superior Court bench.  She won 41.7% of the vote, almost twice as much as her nearest challenger, David Brown.  However, Lewis fell well short of the 50.1% threshold needed to avoid a runoff.  Subtle yet potent biases in Georgia’s electoral laws make Brown a strong favorite in the runoff.

Georgia Judicial elections are ostensibly non-partisan.  Party affiliations are not listed on the ballot, and candidates are discouraged from announcing them.  However, Henry County voters haven’t gotten this message.  In fact, partisan affiliation explains a whopping 98.9% of the variation in Lewis’s vote share between precincts.  In other words, voters behaved no differently than if Lewis were a Democratic gubernatorial or senate candidate.

We don’t have data for which candidate individual voters chose, so we can’t say X percent of Democrats voted for Lewis.  However, we do have excellent data for the partisan lean of each precinct.  Voters had to decide whether to cast a Democratic or Republican ballot in the partisan primaries.  Accordingly, we can gauge the partisanship of each precinct by the percent of voters who voted in the Democratic gubernatorial primary.  By comparing these figures with Lewis’s performance in each precinct, we can measure the effect of partisanship upon her vote share.

The results are staggering.  There is an almost perfect correlation between Democratic partisanship and Lewis’s vote share.  The horizontal axis plots the proportion of voters in each precinct who voted in the Democratic primary.  The vertical axis shows Lewis’s vote share.

Lewis’s dependence upon Democratic votes is likely a fatal weakness.  Henry County is “light blue.” Clinton won Henry County by a few points, and, in 2014, the county backed Democrats for Senate and Governor, albeit by very slim margins.  In yesterday’s gubernatorial primary, there were 15,599 Democratic ballots cast versus 13,065 for Republicans.  Why is relying on Democratic votes a disadvantage in the runoff when Democrats are winning Henry County elections?

The answer lies at the top of the ticket.  Stacey Abrams won the Democratic gubernatorial primary in a landslide.  However, Casey Cagle and Brian Kemp will meet in a Republican runoff.  The absence of any marquis Democratic runoffs means that Democrats are far less likely to vote in the runoff than Republicans.  The Republican legislators who designed our electoral system probably understood this dynamic.  Because Republicans are the dominant party statewide, their senatorial and gubernatorial primaries attract a greater number of viable candidates and are much more likely to result in runoffs.  Accordingly, the electorate for primary runoffs is, on average, more Republican than that for any other Georgia election.  What a fine time for judicial elections!  Brown will be able to grab onto the coattails created by the Republican gubernatorial contest.  Lewis is on her own.  Despite a resounding lead in yesterday’s balloting, her chances of victory are slim.

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.