Southern Criminal Law and Justice

Down Until Further Notice

This website is on hiatus until further notice. 

Failure to File a 5K1.1 Is a Violation of Due Process If. . .

The failure to file a 5K1.1 downward departure  is a violation of Due Process if the government's reason for refusing to file is to punish a defendant for exercising his 6th Amendment Right to a jury trial.

The  case, US v. Dorsey, was remanded to the district court to give Dorsey an opportunity to establish a substantial showing that the refusal to file the 5K1.1 was in retaliation for his use of the 6th Amendment.

Basham on the 11th's Recording Policy

Howard J. Basham, author of the blog How Appealing and an appellate lawyer, writes about the 11th Circuit Court of Appeals' recording policy.  Currently, the 11th Circuit allows access to recordings of their proceedings for "counsel's personal use" and the "exclusive use of the court."  If you don't fit one of those categories, then go to the proceedings yourself and brush-up on your shorthand.

Mr. Basham, quite reasonably, thinks there should be public access to the recordings.  If the U.S. Supreme Court permits public access to their oral arguments, then what reason does the 11th Circuit put forth for denying access altogether.

I imagine  some judges worry about having their words quoted out of context, which is a reasonable concern.    The certain educational and litigation benefits, however, outweigh any predicted misquotes.

Wanted: Two Amazing Civil Rights Advocates

Chris Adams of the Capital Defender's Office and Gerry Weber of the ACLU are both leaving their posts as leaders of their respective offices.

From 2005-2006, I had the opportunity to work as a clinic student in the Office of the Georgia Capital Defender.  While there, I had the opportunity to observe Mr. Adam's tireless efforts to fight on behalf those charged with death eligible crimes.  Occasionally, he'd take a few minutes to speak with the clinic students about his passion for the work or an interesting legal issue, and I always found those moments enlightening.

During my last semester in law school, I took a First Amendment course from Mr. Weber.  It was the best class I took in law school.  As the article linked to above indicates, Mr. Weber had an amazing ability to break down complex ideas I might not have been able to digest on my own.

I hope that both gentleman continue work in a leadership capacity in Georgia.  If they don't, we'll have lost two valuable leaders.

What Is Driving Georgia's Indigent Defense Budget Debate?

Greg Bluestein, the best criminal law newsman in the 11th Circuit, writes about the impetus behind the Indigent Defense Joint Study Committee: the skyrocketing costs of the defense for Brian Nichols.

Just to be clear, I think the costs are completely justified in that they are largely a response to the prosecution's expenditures and refusal to place LWOP on the table.  But this is a matter about which reasonable minds can disagree.  It would be  unreasonable, however,   to indict the entire Georgia public defender system based on a single case with facts and circumstances unlikely to repeat itself.

Georgia's public defenders are a frugal bunch, seeking to make sure that even the poorest among us are treated fairly.  Society will never thank them, but the Constitution will always require them.   To call into question the entire system based on an anomaly would be a mistake at best.

Premier Public Defense Training

The Southern Public Defender Training Center (SPDTC) is up and running.  It's an organization, according to their own website, "committed to providing training to new public defenders throughout the south."

Frequently, new public defenders are thrown into heavy caseloads with little knowledge of what it means to be a public defender, or how to provide zealous representation to poor folk.  While some states offer  training programs for new public defenders, the goal should be to provide quality training for all new public defenders.   SPDTC, through an impressive faculty, strong curriculum, and a truly motivating Executive Director, provides an inspiring program geared towards establishing quality indigent defense below the Mason-Dixon Line.

GA Public Defender Financial Woes 101

Greg Land of the Fulton County Daily Report does an incredible job of summarizing the myriad of financial woes facing Georgia's public defenders.  Some highlights:

By law, the council is restricted from requesting more than the revenue generated by certain fees and add-ons collected by superior courts and paid into a dedicated fund, which may not be used for any other purpose. But the Legislature this year cut the council’s Fiscal Year 2008 budget request to $35.4 million, a 20 percent reduction.

. . .

The issue of conflict attorneys is particularly urgent, said Sarah Haskin, deputy director of administration at the council. When adjusting the council’s budget earlier this year, Senate budget writers cut the council’s request for conflict counsel from $8 million to $2 million; the year before, she said, the council paid $11 million for such attorneys.

. . .

[Chris] Adams [, Director of the Office of the Georgia  Capital Defender] raised eyebrows around the room when he asked for $10.5 million for Fiscal Year 2009—nearly twice the sum penciled in by the council staff in its recommendation—to fund 49 new positions and regional satellite offices.

My sincere hope is that Mack Crawford, the new executive director of the GPDSC, will help Georgia's indigent defense program navigate the political minefield likely to appear as a result of the Joint Indigent Defense Study Committee.   While Committee members have repeatedly stated they will come to the table without an agenda, it seems inevitable that all members will come to the table with the agenda to slash funding for indigent defense.  I pray that I'm wrong.

Southeastern Highway Patrols Gear-Up for Holiday Constitutional Violations

Georgia and several other bordering states are participating  in Hands Across the Border, a DUI enforcement project, which runs for the six days leading up to the Labor Day weekend and coincides with other DUI enforcement projects (e.g. Operation Zero Tolerance).  The driving force behind the project would seem to be the  deterrence of  impaired driving.

Yet the 2004 Hands Across the Border report for Georgia (the most recent one available to me), lists the program as "a tremendous success" with a mere 16 DUI arrests in the entire Georgia portion of the program and no stats on how many were ultimately convicted.   The Georgia Department of Motor Vehicle Safety predicted 19 deaths for the 2004 Labor Day Holiday period, but only 13 deaths actually occurred.  The same prediction (19) and actual result (13) occurred in 1996.  Are these numbers the result of Hands Across the Border, a generous prediction to help make headlines, or totally random numbers?   Just to make it interesting, keep in mind that  the 1996 Hands Across the Border project  finished with 246 more crashes than predicted. 

I'd think if the numbers were decent  for other years that the Georgia Department of Motor Vehicle Safety would be tooting their own horn in every press release.  But the press releases are thin on numbers and the only reports I can find are for 1996 and 2004, which makes me think DUI deterrence is not the real reason behind Hands Across the Borders.   The real reason is to placate MADD and to create a media buzz for the various highway patrols involved.

Whatever the intent is, the ultimate effect is that hundreds (maybe thousands) of drivers are forced to submit to searches of their vehicles, prying police, and unnecessary stops in their travel not supported by a scintilla of reasonable suspicion or probable cause. 

If you don't already read it, you should read I Was the State, a great blog that hammers home some of the absuridites of DUI Check-points, MADD, and implied consent laws, among many other things.

Fulton Co. Strip Search Case Takes a Big Hit

A number of inmates at the notorious Fulton County Detention Center filed Section 1983 claims against various entities and people associated with the running of the jail.   The 11th Circuit released a 60 page opinion complete with charts, gutting  most of the claims and leaving only the claims against former Sheriff Barrett in her individual capacity.

Kennesaw to Fight Pro-Gun Law

Kennesaw is set to challenge, via lobbying, a state law prohibiting local governments from telling folks where they can and cannot take their guns.   Specifically, Kennesaw would like to prohibit guns in their parks. (See here and scroll down to 66-2).

It makes perfect sense to have a uniform rule for the entire state regarding where one can and cannot have a firearm.  Admittedly, different rules exist anyhow because of various federal buildings and lands that may be subject to different rules about guns (I'm not really sure if that's accurate), but that minor issue pales in comparison to the potential problem of having different gun laws for each of Georgia's 159 counties.

Judge Has PD Arrested for Failing to Have Case Ready for Trial in 24 Hrs

You've probably heard by now . . . ABC is reporting that an Ohio Public Defender was ordered arrested because he was unprepared on a case to which he was assigned one day prior to the trial.  Others (Simple Justice and A Public Defender) have written better items on the matter, but I had to get this off my chest.

The criminal justice system too often views public defenders as a fungible resource: if someone in the public defender's office was assigned the case, then any of the public defenders in the office can try the case.   There's probably some very experienced defenders who could have a case ready in less than 24 hours, but it's unfair, maybe unconstitutional, and unnecessary to assume that every public defender can have a case ready in 24 hours.

All is fair that ends fair.  Judge John Plough can have a randomly assigned attorney appointed to represent him 24 hours before his disciplinary hearing, if it gets that far.

Please Welcome Of Counsel

Of Counsel is now up and running.  An earlier post on Of Counsel:

I’d like to add other Southern states to the roundup, and would be welcome to add other contributors who wouldn’t mind helping out.  I’ll try and figure out how to throw in other rulings of note.  But I do feel that particularly public criminal defense in the South is having a rough time of it these days and needs more visibility.  I’ll certainly be checking in on the new PD system in New Orleans and the ongoing funding issues for PD’s in Georgia.

According to my plans, I’ll also cover other issues of note.  I’m hoping to check in soon with the status of the Sex Offender lawsuit by the Southern Center for Human Rights, which I haven’t heard about for a while.  I also hope to keep up with Civil Rights law, particularly in the 1st Amendment arena, which is one of my personal passions.

Sounds awesome to me.  (H/T Defending People).

11th Cir. to Rehear Garey En Banc - Could Spell Trouble for the 6th Amendment

I wrote about U.S. v. Garey here.  The 11th Circuit has agreed to an en banc rehearing. 

Garey, who was eventually convicted of charges related to a number of bomb threats,  had expressed concerns with his then lawyer, who worked in one of the buildings he was alleged to have threatened.  The Court asked him if he wanted to continue pro se or with his current lawyer, who Garey believed to be acting in conflict.  Garey stated he wanted a conflict-free counsel.  Garey,  given only the option between pro se and his then lawyer, was required to proceed pro se without clearly waiving his right to counsel.  The 3 judge decision found  Garey had not voluntarily waived his right to counsel.

I am aware of this one article the purports to show that pro se defendants in state courts do as well as represented defendants.  But presumably this is a self-selected group (i.e. they voluntarily waived their right to counsel), taking a calculated risk to fight the government alone.  In any event, the article makes clear that the sample size is too small to draw definitive conclusions. 

Of  all the rights a person can waive, the waiver of counsel should be stacked with the strongest presumption against a valid waiver.   A pro se defendant who is  not voluntarily acting pro se smells like the kind of sham that could do irreparable harm to the  6th Amendment.    

New Articles on SSRN

New articles are up on SSRN.  There's an interesting cross-over article covering labor law and the collateral consequences of a felony conviction and an article about what happens to the people that have been acquitted in the international criminal court.

Faking Death to Avoid Court . . . .

Steven Haun was facing charges related to exposing himself to two girls.  So he did what any industrious, boat-owning criminal defendant with a snowball's chance in hell of winning his case would do: he took some unsuspecting friends out on the boat, had them tow him on a raft with a 100 foot line in the middle of the night in the Gulf of Mexico, shed his life vest to trick the friends into thinking he had fallen from the raft, swam to a nearby island where he had stashed a jet-ski, and went on the lam for a bit. 

His stunt caused his friends to call authorities who eventually called the Coast Guard to assist in a search and rescue operation.  It's a federal crime to "knowingly and willfully communicate a false distress message to the Coast Guard or cause the Coast Guard to attempt to save lives and property when no help is needed."

Haun appealed his conviction for that crime, arguing it's a specific intent crime and that the evidence against him proved, at most, a general intent related to the actus reas.  The 11th Circuit disagreed and found that the statute, despite its use of "knowingly and willfully," is a general intent crime and  the evidence fit the general intent requirement.