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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Sentencing Is Symbolic: Sentences for First Time Burglars Don’t Significantly Affect Recidivism

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Human nature is hard to change, so hard that even burglary sentences don’t have much effect upon  defendants’ future conduct.

Georgia uses a system of discretionary sentencing where most crimes carry a broad range of potential punishments.  For instance, a first time burglary can carry anywhere from two years of probation to 25 years in a state prison.  Trial judges have almost unbridled authority to impose any sentence in this range.

How to treat first time burglars is arguably the most contested criminal justice issue in the Henry County Superior Court.  In the last decade of his 24-year tenure as District Attorney, Tommy Floyd adopted a restrained approach towards first time burglars.  The “standard sentence” became five years probation with 60 to 120 days in a probation detention center.  Some first time burglars were able to avoid any jail time beyond their initial arrest.  Floyd’s approach was unusual and was more lenient than that of Democratic district attorneys in neighboring counties.  While Floyd’s prosecutors recommended the detention center for first time burglaries, prosecutors in DeKalb and Clayton County typically asked for prison time.  (Any custodial sentence of one year or more in a felony case is typically served in prison, shorter sentences are served in jails or detention centers).  The Superior Court of Henry County was a strangely enlightened place.

In the last decade, there has been push back against Floyd’s gentle ways.  Judge Brian Amero, a former Clayton County prosecutor, took the bench in 2006.  His “standard sentence” for a first time burglary is one year in prison, followed by four years probation.  Early on, Amero largely deferred to Floyd’s sentencing recommendations.  In 2007, the majority of Judge Amero’s first offender sentences for burglary did not involve prison time.  However, by 2011, Amero had become more confident in his sentencing philosophy, almost half of his first offender burglary sentences involved prison time.  Floyd’s successor as district attorney, Jim Wright, shared Judge Amero’s philosophy.  Under Wright, the standard plea offer for a first offender burglary involved a year in prison.  The current District Attorney, Darius Patillo, appears to be continuing Wright’s practice.

The competing approaches to first offender burglary sentences have created an intriguing natural experiment.  Henry County judges imposed at least 212 first offender sentences for burglary in cases filed between January 1, 2007 and December 31, 2011.  Virtually all of these sentences were imposed at least five years ago.  The structure of first offender sentences makes it possible to rigorously compare how defendants given different types of sentences have fared.

Under Georgia law, any person who is accused of burglary is eligible for first offender treatment if they have never been convicted of a felony and have not previously received first offender treatment.  This makes its possible to ballpark the criminal history of defendants given first offender sentences.  A typical felony sentence does not specify the offender’s criminal history.  A long sentence might indicate either an unusually severe offense or a substantial criminal history.  However, any time a first offender sentence is imposed, it is very likely that the defendant has not been convicted of a felony and has not received first offender treatment in the past.  In other words, we know that defendants who received first offender sentences had relatively limited criminal histories.

Every one of the first offender sentences for burglary entailed at least five years of probation.  This makes it easy to measure recidivism.  If a probationer is caught committing a crime or violating the terms of his probation, his probation officer initiates a probation revocation hearing.  When the violations are sufficiently serious, the probation officer also seeks an “adjudication of guilt,” which involves a felony conviction on the original felony charge.  If the judge finds that a first offender has violated his probation, he can adjudicate the defendant guilty and/or sentence the defendant up to the statutory maximum for burglary, which is generally 25 years.  If the judge imposes incarceration, he is required to give the defendant credit for any time served on probation.  Thus, a first offender who violated his probation after two years could receive up to 23 years in prison: the 25 year maximum minus the two years already served on probation.

I used probation revocation proceedings to gauge the success of the judicial system in rehabilitating first offenders.  A case was considered a failure if any of three things occurred: (1) the defendant was adjudicated guilty of burglary and became a convicted felon; (2) the defendant received a custodial sentence of 12 months or more because of a new offense or violation of probation; or (3) the defendant absconded from probation and has not yet been apprehended.  A case was considered a “success” if none of these three things happened.  Many “successful” probationers did violate their probation, but their violations were minor enough that the judge let them keep their first offender status and did not sentence them to 12 months or more.

I sorted the first offenders into three categories.  First offenders who were not sentenced to incarceration, those who received incarceration short of prison, and those who received a year or more in a state prison.  The most common sentence, “incarceration short of prison” typically involved assignment to a detention center for 60-120 days, assignment to a boot camp program for 90 days, or between 60 and 120 days in the county jail.  Most offenders in this category spent about 60 days incarcerated before beginning their probation.  The “no incarceration” category included suspended custodial sentences.  The outcomes for each category were as follows

No Incarceration Incarceration short of prison One plus year of prison Totals
Successes 40 68 15 117
Failures 30 46 13 86
Total 70 114 28 212

Here are the success rates of each category, as well as the standard deviation attributable to sampling error:

No incarceration                               57.1% +/- 5.9%

Incarceration short of prison         59.6% +/- 4.6%

Prison                                                   53.6% +/9.4%

Overall                                                  55.1% +/-4.2%

Superficially, these results suggest that the most effective sentence is incarceration short of prison.  These defendants were 4 to 5% more likely to successfully complete a five year (or longer) period of supervision than defendants who went to prison.  However, these results are nowhere near statistical significance.  The standard deviation for each of the three subsets was at least 4.6%.  This means the plausible ranges for the three figures overlap significantly.  When using sampling, the true value is within one standard deviation of the sample mean 66% of the time, and within two standard deviations 95% of the time.  Thus, there is a 95% chance that the true success rate for “incarceration short of prison” is between 50.2 and 69.4%.  Any value within that range is plausible.  Nor can we reduce the sampling error by adding more observations.  Judge Amero took the bench in 2007, and we need a five year observation period to gauge whether a defendant succeeded on probation.  We might scrounge a few more cases charged in late 2006 and early 2012, but this would not materially reduce the sampling error.

The takeaway from the data is that sentences probably don’t have a big effect on rehabilitation.  This is not a trivial finding.  A year in prison costs taxpayers $23,000.  Two months in a detention center cost about $4,000.  The detention center is probably a more effective punishment, and there is no evidence at all that prison lowers recidivism rates beyond what the detention center achieves.  Though the data are murky, they buttress my respect for an old-fashioned type of conservatism, one I have often seen Judge Crumbley display on the bench.  Human nature is imperfect and stubborn.  Once a defendant gets out of jail, the best predictor of his actions are his temperament, family, and associates.  If prison isn’t demonstrably effective, why not try something else first?  Burglary is a poor predictor of murder, and the hardened criminals will be back in court soon enough.

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Warning: You Are Probably Being Recorded

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Today, I was in Judge Blount’s courtroom for a probation revocation.  I watched a hearing involving an inmate (not my client) who is serving a sentence for battery.  Judge Blount had ordered him not to contact the victim.  He had other plans and called her roughly 70 times from the jail.  The prosecution had an airtight case.  Not only were there call logs of every number he had called using his jail account, there were high quality audio recordings of each call.  Some people in the audience were shocked that every call from a jail inmate was recorded.  I was not.  Recording equipment is ubiquitous.  As I type this, there are five video cameras within five feet of me.  All of them were included in phones, computers, and tablets I purchased with no intention of buying a video camera.  Never before have so many people recorded so many things so cheaply.

Henry County’s extensive surveillance apparatus has even snagged attorneys.  Recently, a lawyer was jailed for contempt of court after falsely telling a judge that she had a scheduling conflict.  Courthouse video footage showed her filing documents in the clerk’s office during her alleged conflict.  Every court in McDonough has an extensive video surveillance system.  The McDonough City Court also has microphones in its common areas.  Almost every court proceeding is audio taped either by the court reporter or, if there is no court reporter, by the court itself.

Here is a list of other things which are typically recorded:

  1. Virtually every patrol car in Henry County has a “dash cam” that captures a roughly 45 degree arc centered on the middle of the car’s hood.
  2. Virtually every patrol car in Henry County has a microphone and/or video camera which records what suspects do after they are taken into custody. Sometimes, officers will leave defendants in the patrol car alone with their cell phone in hopes of obtaining incriminating statements.
  3. Almost all common areas at the jail are monitored by digital video. This includes the booking area.  It can be useful to pull this tape in DUI cases.
  4. All 911 calls are audio recorded.
  5. All communications between officers in the field and dispatch are audio recorded.
  6. Many officers who are trained to investigate DUIs have cameras mounted in the flash lights they use in these investigations. The flash cams can also record audio.
  7. Some interview rooms at the police precincts have audio and video recording equipment. Others, apparently, do not.
  8. Some gas stations and other businesses have street facing cameras that capture which cars passed a given location.
  9. Virtually any big box store has dozens of cameras within the store and a few monitoring the parking lot.
  10. If your cell phone is GPS enabled, there is a fairly precise record of its location. Even if it is not GPS enabled, your carrier has a record of which towers it communicated with.  This record can be used to establish the phone’s location within 5 or 10 miles.

Some things still are not recorded.  Relatively few Henry County officers have body cameras.  Accordingly, if an officer comes into your house, or is canvassing a street for witnesses, it is unlikely those interactions were recorded.  As previously noted, some interviews of criminal suspects still are not recorded.

Overall, I’m glad recording equipment has become so pervasive.  Early in my practice, many criminal defendants were subjected to “swearing contests” where criminal liability hinged on whether an officer or the suspect was telling the truth.  This is not a good situation to be in.  Many jurors (and most judges) trust police officers more than criminal defendants.  A criminal defendant who argues that a cop lied and is convicted can expect a harsh sentence.  Police officers knew this.  Some officers knew that they could get away with the occasional lie in a big case.

The ubiquity of recording equipment helps criminal defendants three ways.  First, officers who know they are being recorded are less likely to misbehave.  Second, the best way to predict a defendant’s odds of conviction is by watching a video of the incident.  After I watch a DUI or shoplifting video, I have a very good idea of what a jury will do.  Watching a video early in a case helps a client make the plea/trial decision when there is still time to accept responsibility and pursue mitigation.  Finally, juries are coming to expect that law enforcement should record most of what it does.  The absence of a video seems dubious when most jurors have a video camera in their pocket.

Finally, if law enforcement fails to collect available video evidence, this weakens the prosecution’s case.  Suppose my client is accused of a non-fatal drive by shooting.  Several sources of video might corroborate or disprove guilt.  Did any of the neighbors have video surveillance systems?  Did any of the local stores have street facing security cameras?  Could one drive to the crime scene without passing these cameras?  Did the defendant have a cell phone?  Was it GPS enabled?  Where was it at the time of the shooting?  Which towers did it communicate with?

In a murder investigation, law enforcement may run down all of these leads.  In a non-fatal case, they rarely do.  When the State has the burden of proof, its failure to collect available evidence can be the best path to an acquittal.

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Gaming the Constitution: the Tactics of the Henry County K-9 Unit

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Interstate 75 is one of the busiest North-South routes in the United States.  It is also a major drug trafficking corridor.  The Henry County K-9 Unit uses drug-sniffing dogs to interdict drugs on the 19 miles of interstate that pass through Henry County.  Its tactics are effective, resulting in a dozen or more drug trafficking prosecutions each year.  They are also legally dubious.

The K-9 unit has targeted black motorists driving rental cars, especially those with Florida tags.  It’s easy to identify a Florida rental car because the Florida DMV conveniently tags all rental cars with certain initial letters.    More than 50 major drug busts in Henry County have resulted from stopping motorists matching this profile.

Federal constitutional law permits a K-9 officer to conduct a “free air sniff” of the exterior of a car, so long as this occurs while a driver’s license is being checked or a citation is being written and there is not “undue delay.”  Henry County has gamed this rule.  Most Henry County patrol officers are trained in using the GBI’s computer database to check drivers’ licenses.  They have internet enabled computers in their patrol cars that can check a driver’s license in seconds.  K-9 officers do not.   Accordingly, K-9 officers have to radio motorists’ identifying information to dispatch and wait for a response.  As the Georgia Court of Appeals detailed in Bodiford v. State, the K-9 unit uses this artificial delay to conduct drug investigations:

The video of the traffic stop shows Hart standing between Bodiford’s car and his patrol car, using his shoulder-mounted radio to provide dispatch with Bodiford’s driver’s license number. After transmitting the license information to dispatch, Hart asked Bodiford whether he had any contraband in the car, such as drugs, guns, or excessive amounts of cash. When Bodiford responded negatively, Hart asked for permission to search the car. Bodiford questioned Hart as to whether he was required to consent to an automobile search and Hart explained that Bodiford had a constitutional right to refuse, but that if Bodiford refused consent, “what I’m gonna do is, I’m gonna get my dog out of the [patrol] car, run my dog around [your] car and see if he shows any positive odor response on the vehicle.” When Bodiford refused to give an unequivocal “yes” to Hart’s request for consent to search the car, the officer patted him down, instructed him to stand away from his car and next to Hart’s patrol car, and asked for and received permission to turn off Bodiford’s car.

After turning off Bodiford’s car, and approximately nine minutes into the traffic stop, Hart returned to his patrol car to retrieve his dog. Although Hart cannot be seen on camera at this point, dispatch can be heard very clearly on the radio attempting to contact Hart. Hart, however, did not respond to the dispatcher. . . Seven seconds later, as he was standing together with his dog next to Bodiford’s car, Hart responded to the radio call, telling the dispatcher, “I’m in a bad spot here.” Hart testified that his response resulted from the fact that radio service on the part of I–75 where the traffic stop was occurring was “very poor” and that “90 percent of the time” officers in that area would need to use the radio in their patrol car to speak with dispatch. Hart further explained that once dispatch was told he was in a bad spot for radio, the dispatcher would know she should make no further attempts to contact him; rather, the dispatcher would wait for Hart to contact her.

Having thus instructed dispatch not to initiate any further contact with him, Hart walked his dog around Bodiford’s car. The dog indicated that there was contraband in the car and Hart then searched the vehicle. During that search, the officer found a large quantity of cocaine located underneath a passenger-side seat. Based on this discovery, Hart arrested Bodiford.

In Bodiford,  the Court of Appeals suppressed the defendant’s drugs because the K-9 officer unlawfully prolonged a traffic stop by ignoring the dispatcher’s attempts to communicate with him.  In a 2012 case, Weems v. State, the Court of Appeals found that a Henry County K-9 officer acted illegally by continuing a drug investigation after he had finished writing a warning for a traffic offense.  The drugs in Weems were also suppressed.

Bodiford and Weems both involved fairly obvious misconduct.  However, the tactics of the K-9 unit have evolved and are now more subtle.  I recently had a case where dispatch took over 8 minutes and 30 seconds to run a driver’s license and communicate the result to the K-9 officer.  This permitted lengthy questioning of the driver during the so-called “license check.”

K-9 Unit cases are a target rich environment for aggressive lawyering   Back in 2006, I managed to obtain statistics on the race of the motorists that K-9 unit officers pulled over.  I am still shocked that they kept these statistics.  The standard Georgia traffic citation thoughtfully lists the driver’s eye color but not his race, an omission which makes it harder to prove racial profiling.   In 2006, 52% of the motorists K-9 Unit officers stopped were white.  The chief of the K-9 unit probably thought he was in the clear because a (bare) majority of the motorists his officers stopped were white.  This was ridiculous.  At the time, Henry County was roughly 30% minority, and folks who have the time and money to drive to Florida (or engage in interstate travel generally) are disproportionately white.  I made a few trips to Exit 212, and observed the race of the motorists who passed.  Roughly a quarter of the motorists who passed were black, far less than the 40-some percent of the motorists who the K-9 unit stopped.  I never used these statistics in court, (it was unclear at the time whether racial profiling was grounds for suppression of evidence), but I did get great deals in a few K-9 cases.

If you are a defendant in a K-9 unit case, a good lawyer who knows K-9’s tactics is invaluable.   The penalties for drug trafficking are severe, with a mandatory minimum of 10 years in prison for possessing 28 grams or more of cocaine or methamphetamine.  The K-9 unit consistently pushes the edge of what the constitution allows.  I doubt they still keep statistics on the race of the motorists they stop, but this could be reconstructed through pulling the videos of an officer’s stops.  This is a labor intensive project and would not be cheap.  However, a defendant with relatively modest means could subpoena not only the video of his arrest but also the dispatch tape and the computer records showing when his license was run through the GBI computer.  When analyzed together, there is a good chance these records would show that law enforcement took longer than necessary to check the defendant’s driver’s license, that the defendant was illegally detained, and that any drugs discovered during such an illegal detention must be suppressed.

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