Georgia Criminal Defense Lawyer Blog

A Georgia district attorney, his wife and a top assistant were indicted this week in Banks County, Georgia for theft, fraud and violating the oath of office. According to the indictment, the district attorney used his influence to get additional salary money for one of his assistants. The money was then allegedly split up between him and his assistant. The D.A. is also charged with getting his wife paid an additional salary that was not properly authorized. The indictment did not specify exactly how much money was allegedly taken.

An article discussing the indictment and the criminal charges was in the Gainesville Times (the Gainesville, Georgia newspaper). Another article was in the Athens Banner-Herald (the local Athens, Georgia newspaper), and a summary was in the Atlanta Journal-Constitution.

Before his resignation earlier this year, District Attorney Madison was the chief prosecutor for the Piedmont Judicial Circuit for 25 years. Because the local judges have worked with this D.A. for many years, a senior superior court judge from Dekalb County, Georgia will handle the trial. The case is being prosecuted by the Georgia Attorney General's office and the Georgia Bureau of Investigation. This is the first prosecution of an elected district attorney by the Georgia Attorney General in 15 years.

In addition to fraud and theft charges, the indictment also alleges that Madison and his assistant violated their oath of office. In Georgia, public officials take oaths to uphold Georgia law. Of course, that would also include a prohibition against violating Georgia law. The applicable statute is in the Georgia code (16-10-1) and is a felony offense. The statute provides that "any public officer who willfully and intentionally violates the terms of his oath as prescribed by law shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years."

Our firm has handled many cases of public corruption in Georgia. I have represented a former prosecutor, several police officers and even a judge on similar charges. Defending these cases can be difficult because of the public perception of elected officials. It's more like guilty until proven innocent, especially where the media coverage has been extensive.

Click the link below for a copy of the complete grand jury indictment.

Continue reading " Georgia district attorney indicted for fraud and theft " »

This is my last posting on this case unless something extraordinary happens. We have now seen the plea agreement, and it's nothing special. The federal government and Vick agreed to a specific offense level from the federal sentencing guidelines, and the government agreed to recommend the low-end of the sentencing range. Basically, that means the government will be recommending a 12 month sentence, but the guidelines would authorize a sentence of 12 to 18 months. Of course, as the judge told Vick, he could get a lot more time in federal prison. The statutory maximum is 5 years, and the judge previously told the co-defendants that he considers this case to be an aggravated violation of federal criminal law.

I was interviewed on the Atlanta, Georgia National Public Radio affiliate about the case. Here is the story on the possibility of additional state charges:

ATLANTA, GA (2007-08-24) The Atlanta Falcons' Michael Vick signed a plea agreement filed today in federal court that says he conspired to moving dogs across state lines for the purpose of dog fighting.

A judge will make plans to sentence Vick.

But what does the star quarterback's plea in federal court mean for possible state charges in Virginia?

The answer to that question lies in the hands of Virginia prosecutor Gerald Poindexter.

Dog fighting is a felony in Virginia punishable by up to five years behind bars. Vick could face a 40 year sentence if found guilty of abusing 8 dogs. A spokesman for Poindexter says the prosecutor has yet to make up his mind.

If Vick does face state charges, criminal defense attorney Page Pate says the quarterback's federal plea would hurt instead of help.

PATE: In fact, he's now agreed to a summary of facts that could put him in a very difficult position if the commonwealth of Virginia wanted to charge him.

Among other things, the summary of facts attached to the federal plea says Vick and his former co-defendants had their dogs practice brawling against each other to prepare for dog fights.

© Copyright 2007, WABE

I also contributed to a story on the possibility that the judge would go above the recommended sentence of 12 months:

ATLANTA, GA (2007-08-24) Atlanta Falcons quarterback Michael Vick says he's guilty of being a part of a conspiracy to operate a dog fighting ring across state lines.

Vick admitted to the charge in a plea agreement filed today in federal court in Virginia.

After a week of negotiations, Vick has agreed to cooperate with the government if they want to go after other dog fighting rings.

In exchange, federal prosecutors agreed to throw out the charges of killing dogs and gambling on the dog fights and they're recommending Judge Henry Hudson give Vick the lowest sentence possible; a year.

PATE: I don't see the judge going with the government's recommendation.

Page Pate is a criminal defense attorney based in Atlanta.

PATE: I think the judge considers this to be an egregious case and he has already put the co-defendants and everybody else in the world on notice that this is an aggravated sort of an offense.

The highest possible sentence is 5 years. Vick will officially enter his plea in court on Monday. It's unclear when the judge will schedule Vick's sentencing date.

© Copyright 2007, WABE

We'll see what happens to Vick on December 10. Until then, he and his top defense lawyers will review the presentence report prepared by the probation office, and do everything they can to prepare for the sentencing hearing. It looks like their strategy will be to focus on the good things Vick has done outside of football, and his recent apology. It's the only strategy available to them, but I wouldn't be making travel plans for the next couple of years if I were Vick. My guess (and that's all it is) is 18 months to serve.

It looks like Michael Vick's defense lawyers have convinced him to enter a guilty plea to federal criminal charges in Virginia. Considering the evidence, and the co-defendants lining up to testify against him, it's not a surprise. The story is still developing, and the details of the plea agreement have not been released. But Vick's lawyer said the following earlier today:

"Mr. Vick has agreed to enter a plea of guilty to these charges and to accept full responsibility for those actions and for the mistakes he has made," Billy Martin, Vick's attorney, said in a statement issued Monday afternoon. "Michael wishes to apologize to everyone who has been hurt by this matter."

The Atlanta Journal Constitution discusses the plea and its possible effect on Vick's career with the Atlanta Falcons.

What happens now is simple, but uncertain. Vick will appear in federal court on Monday for a change of plea hearing under Rule 11 of the Federal Rules of Criminal Procedure. The judge will review the factual basis of the plea to determine if there are enough facts to prove that Vick committed a federal crime. The judge will also advise Vick about the rights he is giving up by entering a guilty plea. The judges will probably discuss the main provisions of any plea agreement between the defendant and the government to make sure Vick understands them and they are on the record.

After the plea agreement is accepted by the judge, Vick should be free to go until his sentencing hearing. In the meantime, the federal probation office will draft a presentence investigation report that will discuss the facts of the offense and Vick's personal background. The report will also recommend a sentence based on the federal sentencing guidelines.

Like his co-defendants, Vick may be able to get the benefit of a reduction in his sentence if he cooperates with the government and gives them any information that leads to other people involved in dogfighting. My previous post discusses the benefits of cooperating under the federal sentencing guidelines.
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Vick's sentencing will not occur for another few months. Until then, his lawyers may try to negotiate with the Atlanta Falcons, the NFL and the state prosecutors. It will be interesting to see how the state prosecutors deal with this case. Vick could be facing more prison time on animal cruelty charges if Virginia pursues this case aggressively.

I know this is not a Georgia criminal case, but it is a case involving a famous Georgian. It seems impossible to avoid coverage of this case in the Atlanta news media. (I've even been quoted a few times on the local National Public Radio affiliate about my opinions.)

Here's what's happening now. Three of Vick's co-defendants have entered pleas and will almost certainly be testifying against Vick if he goes to trial. That changes things. Before the plea agreements, Vick was facing the testimony of some unknown informants who were expected to say that Vick attended and bet on some dog fights. There was also undisputed evidence that Vick owned the house where the dogs were trained. All of that information is outlined in the indictment. But the real evidence will come from the people who were at the dog fights and who know Michael Vick. Unfortunately for Vick, three of those people just joined the government's team.

But Vick is not completely without hope. Any decent defense lawyer would be able to impeach the testifying co-defendants based on their plea deals with the government. As reported today in the Atlanta Journal Constitution, Vick's co-defendants have entered plea agreements that will help them avoid some jail time if they help the government convict Vick.

It's a common practice in federal criminal cases. In most federal prosecutions, a convicted defendant's sentence is primarily determined by the federal sentencing guidelines. In a dog-fighting case like this, the guidelines would likely call for some prison time. The best way to avoid prison time, or at least reduce it, is to get credit for cooperating with the government. When someone enters a plea and cooperates with the government, there is a provision in the plea agreement that allows for a "5K motion." A 5K motion is a motion filed by the government pursuant to Section 5K1.1 of the federal sentencing guidelines. Section 5K1.1 allows the sentencing judge to depart from the federal guidelines when a defendant has provided "substantial assistance" to the government in a criminal investigation. It is up to the government to determine whether the assistance has been substantial, but once the motion has been filed, the amount of the reduction is up to the judge.

Even if Vick cuts a deal, his co-defendants will probably get that 5K reduction because their pleas helped bring Vick to the table. Unfortunately for Vick, the first to talk is usually the first to walk in a federal criminal case. We should know by Friday if Vick will bite the bullet and cut a deal.

Defense lawyers were successful yesterday in a child molestation case in Marietta (Cobb County), Georgia. The jury returned a verdict of "not guilty" on one count, and could not reach a verdict on the other counts. The defense lawyers who tried the case were obviously pleased with the result. The Atlanta Journal Constitution discusses the verdict and the lawyers' reactions.

Our law firm has handled dozens of false accusations of molestation. Many times, we can investigate the case before an indictment and convince prosecutors not to charge our client. But it takes a lot of work. One of our clients was arrested for molesting two of his step-daughters. We hired a former FBI polygraph expert, had the daughters re-interviewed by our investigator (another former FBI agent), and had a forensic expert review the videotaped interviews of the children to point out the leading questions used by the examiner. The client was never indicted and all charges were dismissed.

In another case, we were retained after indictment and had to defend the case at trial. The client was charged in Winder (Barrow County), Georgia with six counts of aggravated child molestation. We were able to convince the jury that the allegations were false and the jury found him not guilty on all counts.

Sometimes, we are brought in to handle the appeal. Earlier this year, we were successful in reversing a child molestation conviction for our client based on ineffective assistance of counsel. The client would have served the rest of his life in prison, but the Georgia Supreme Court reversed his conviction. He was released from prison last month.

There are certainly legitimate cases of child molestation. But we are seeing more and more false molestation arrests because law enforcement will often accept the child's version of the events without fully investigating the circumstances of the allegations. Given the recent statutes increasing the punishment for these offenses to mandatory prison sentences of up to 25 years for the first offense, lawyers defending these cases need to be diligent and reach out to experts in the field for ways to determine if the allegations may be false and/or motivated by an unknown agenda.

No one needs a good defense lawyer more than someone charged with a sex offense.

An Atlanta real estate closing attorney was sentenced yesterday in a federal mortgage fraud case. The Atlanta Journal Constitution reports that the lawyer received a three year sentence for his role in a large-scale mortgage fraud scheme involving real estate investor Phillip Hill.

Our firm has handled many mortgage fraud cases in the past few years. We have represented closing attorneys, appraisers, mortgage brokers, investors and "straw-buyers" investigated for mortgage fraud in federal and state court.

Mortgage fraud cases can be complex, but they usually follow a similar pattern. A house is purchased by an investor, then resold to a straw-buyer at an inflated value. The inflated value is the result of an overstated appraisal. The loan documents are usually falsified so that the straw-buyer can qualify for the loan. The house is then sold to the straw-buyer from the investor and the investor gets the profit. The straw-buyer gets a little something for his role, usually a few thousand dollars. Unfortunately, the straw-buyer also gets a house that's worth less than he owes on it.

Mortgage fraud prosecutions usually focus on the key players in real estate transactions - investors, brokers, appraisers and attorneys. One of our recent mortgage fraud cases involves a prominent real estate lawyer arrested on RICO and mortgage fraud charges in Georgia. Here is the story from the local newspaper:

Attorney: Fraud case flimsy

An Athens attorney might have worked on some 60 mortgages that authorities allege were part of a $7 million fraud scheme, but he turned away about 40 more because he sensed there was something amiss, said the Atlanta attorney who is defending the local lawyer.

"Based on everything I have seen, they should never have charged him," said Page Pate, the attorney representing C. Michael Rose. Pate, who specializes in mortgage fraud, said the case against Rose is so flimsy he should never have been arrested for allegedly violating the state's Racketeering Influenced and Corrupt Organizations Act.

Although Rose was the closing attorney for many sales in the subdivision, he turned down others that involved "insufficient paperwork and other indications the documents were not in order," Pate said. The closings Rose did participate in were all legitimate, Pate claimed. "Any disbursements or payments that were made in connection with those loans were fully disclosed to the lenders, and the lender approved each and every closing that Mike Rose did," he said...

In that case, unlike the closing attorney sentenced yesterday in Atlanta, our client had no involvement in any fraud. There was no way for our client to know that the loan documents were false.

Prosecutors often overlook the fact that there would be very little mortgage fraud if lenders had not been so greedy to fund questionable deals. Some of the mortgage brokers are also to blame because they did everything they could to get people qualified for loans that they could not afford. In many cases, the brokers and the lenders did not care what happened after the loans closed because they sold the loans to some other lender or investor. Getting the mortgages paid became someone else's problem.

I expect an increase in mortgage fraud prosecutions on both the federal and state level as more and more lenders get into financial trouble because of bad loans. We've heard of a lot of mortgage lenders getting out of the business and announcing major financial losses. If history is any guide, they will be looking for someone to blame and encouraging federal and state prosecutors to indict more cases.

Troy Anthony Davis may die this year. He will be executed by the State of Georgia unless the Georgia Supreme Court overturns the denial of his motion for a new trial in Savannah.

Yesterday, the Georgia Board of Pardons and Parole suspended its clemency hearing to give the Supreme Court time to review the case. If you have not read about Troy Davis, you can visit his website. Cynthia Tucker's AJC column also discusses the case and the merits of his appeal. The Savannah Morning News article reports on the initial denial of his request for a new trial in Chatham County, Georgia.

Troy Davis was convicted of murdering Savannah police officer Mark Allen MacPhail almost 20 years ago. Seven of the nine prosecution witnesses have since changed their stories and have said that they are not sure Troy was involved. Another witness says she may have seen the real killer (not Troy Davis), but she was too scared to tell the police about it when it happened. The case was full of holes, but there was an understandable rush to convict someone for this crime that had the City of Savannah up in arms.

This is not the first case where eyewitness testimony has been questioned or later proven to be flat-out wrong.

In studying cases of innocent people who have been wrongly convicted, University of Virginia law professor Brandon L. Garrett has concluded that erroneous identifications by eyewitnesses are, by far, the leading cause, occurring 79 percent of the time. (Garrett examined 200 cases of people later exonerated by DNA evidence.) All six of the Georgia men who have been exonerated by DNA evidence were convicted because of faulty eyewitness testimony.

We have challenged many cases that were based on eyewitness identification. Sometimes, we use experts to explain to the jury how someone can say they saw something they didn't and be so certain about it. As recently as a few years ago, Georgia judges would instruct juries that, the more certain an eyewitness was about what he saw, the more reliable his testimony. The scientific evidence proves that such an instruction is wrong and misleads the jury.

Legislation introduced in Georgia this year created a committee to study the problems of eyewitness identification. The Committe will be chaired by Rep. Stephanie Stuckey Benfield (a friend, and a strong legislative supporter of justice). We hope the Committee will recommend significant changes in the laws to strengthen line-up procedures, and eliminate the "show-up" identifications that can lead to wrongful convictions.

Hundreds of people have been released from prison due to DNA evidence that proves their innocence. Many of these people were convicted solely on eyewitness testimony. Given the numbers, it is almost a certainty that people have been executed based on faulty eyewitnesses testimony. Hopefully, Troy Davis won't be next.

A recent criminal case pending in Macon Georgia is another example of the danger of no-knock search warrants.

Legally, a no-knock warrant is a search warrant that allows the police to enter a home without first knocking on the door or announcing who they are. The officers (usually about 10 officers working as a team) break down the person's door with guns drawn. Police argue that these warrants preserve evidence and contraband (usually drugs) because the occupants of the home being searched do not have a chance to hide or destroy anything before the police can seize it. Officers also like to catch people by surprise in case someone inside the home is armed and dangerous.

There are many problems with these warrants. The most common problem is the use of excessive force. One of our clients ran an investment firm being investigated for fraud. Police got a warrant to search for documents and they executed it during business hours at our client's high-rise office in Atlanta. About 20 police officers stormed through the door in riot gear with assault rifles. They pointed the guns at executives and secretaries alike, ordering them to get down on the floor. They held them like that for many hours. Of course, no one at the office had any guns, and they could have obtained any documents they wanted just by asking. After a lengthy investigation, no one was ever charged with any crime. Fortunately there were no serious injuries during the raid, but the people who lived through it are unlikely to ever forget it.

Officers also sometimes get the wrong house. A recent case in Atlanta serves as a tragic example of what can happen when an innocent person is surprised and attacked in her home by men with big guns.

In the Macon case, a sheriff's deputy named Joseph Whitehead was shot as he and other police stormed into the defendants' home on Atherton Street in Macon, Georgia. The Macon Telegraph article describes the case and the defendants who are facing the death penalty. The lawyers are arguing that the people inside the home had a right to defend themselves when Whitehead and his group slammed down their door and ran into the house with guns drawn. (A Georgia law protects people who shoot someone in self-defense from being prosecuted.) If the lawyers can convince either the judge or the jury that their clients did not know the men with guns were police, and that they acted in self-defense, they will win.

There is currently a congressional investigation into the use of no-knock warrants and confidential informants. The publicity surrounding the Neal Street incident in Atlanta has focused the nation's attention on the danger of these warrants. Hopefully, there will be some meaningful reform. In most cases, the risks of no-knock warrants greatly outweigh the supposed benefits. A dime bag of dope should never be so important that the police kill someone while trying to get it.