Georgia Criminal Defense Lawyer Blog

It's not news to criminal defense lawyers in Georgia, but the Athens, Georgia newspaper reports today on the aging of the state prison population. This is a problem both for the elderly inmates who die in custody, and for Georgia taxpayers who have to fund the escalating costs of inmate health care.

I knew that the prison population was exploding and getting older, but I had no idea it was this bad. As the Athens paper reports:

Justice Department statistics show that the number of sentenced inmates in federal and state prisons age 55 and older has shot up 33 percent between 2000 and 2005, the most recent year for which the data was available. That's a far faster pace than the 9 percent growth overall.

The trend is particularly pronounced in the South, which is home to some of the nation's toughest sentencing laws. In 16 Southern states, the growth rate has escalated by an average of 145 percent since 1997, according to the Southern Legislative Conference.

The reason is obvious - mandatory minimum sentences, often for first-time nonviolent offenders. Some good policy resources on mandatory sentences and their consequences can be found on the Justice Fellowship website.

Of course, people charged with crimes don't have a lobbyist representing them in the state capital. So, it's easy and politically popular to increase punishment for crimes. But a lot of the "tough on crime" laws may be short-sighted.

Perhaps the Georgia legislature will take notice as the costs of incarceration keep climbing and reintroduce some fairness in sentence practices. But given what happened this last session (elimination of the Sentence Review Panel, etc.), I wouldn't hold my breath.

I argued a federal criminal appeal in front of the Eleventh Circuit Court of Appeals yesterday in Atlanta, Georgia. It was my sixth trip for an oral argument before that court. The case involved a very large drug seizure in Cobb County, Georgia ($4 million in cash and 270 kilos of cocaine and methamphetamine).

We were arguing about the scope of a consent search given by our client, the owner of the auto repair shop where the trailer was found. Our client told agents they could search the shop, but specifically told them that he did not own the trailer. Our position was that our client's statement limited the scope of the search under the Fourth Amendment, so that the agents had no right to look in the back of the trailer where they found the cash.

Under United States Supreme Court authority, a person has the absolute right to limit the scope of a search they otherwise consent to. For example, a person could consent to a search of their car when stopped by a police officer, but tell him that he could not search the trunk. The cops could then only search the trunk if they had independent probable cause to do so. (Ironically, the person telling them not to search the trunk may have just given it to them!)

In our case, our client had no problem allowing the agents to search his shop, but felt he did not have the authority to let them search a trailer that did not belong to him. They searched it anyway and found all that cash.

The judges were very prepared (as they usually are in that court), and asked a lot of questions. I don't expect a decision for at least a few weeks, maybe months.

The outcome could be huge. If we win, our client gets a new trial in federal court here in Atlanta. And, more importantly, the government can't use the $4 million in cash against him. That won't guarantee a win, but it will certainly help.

A Clayton County, Georgia police officer was charged this week in another internet sex sting. The Atlanta Journal Constitution has the story of the arrest.

These cases just keep coming. Some criminal defense lawyers, including this one, think it's becoming less of a law enforcement pursuit and more like a witch-hunt. One defense attorney recently went a step further and asked a superior court judge in Northeast Georgia to issue an arrest warrant for the leader of "Perverted Justice", the group Dateline NBC uses to set up these stings. The Athens, Georgia newspaper covered the story, and the lawyer's appeal to the Georgia Court of Appeals.

These cases are generally prosecuted in Georgia state courts, not federal courts. The only time the United States Attorney's office gets involved is if the person is found to have a large amount of child pornography on his computer, or if the person traveled across state lines for the purpose of committing child molestation. And even then, the feds have usually investigated the case from the beginning using federal agents (mostly ICE and FBI). Federal prosecutors have so far stayed away from cases brought by Perverted Justice. I think they see too many problems with an operation like this being run by people who are not working for law enforcement.

We've successfully represented clients in several internet sex cases. Usually, they have been charged with sexual exploitation of a minor, attempted child molestation, and/or enticing a child for indecent purposes. Fortunately, we have been successful in defending many of these cases. I have seen a few cases where the undercover cop goes too far and actually entraps the person into doing something they would not otherwise have done. We think there is also a defense for some of our clients who did not actually believe they were emailing an underage girl. Considering the role-playing that goes on in these chat rooms, a lot of people lie about their age, their height and anything else they can think of.

But people are still getting caught up in these email exchanges and they end up being arrested. We were just retained to represent a well-respected Marine who may have been entrapped by these people. The Albany, Georgia newspaper has the story. We look forward to defending him.

In our opinion, there is a big difference between molesting a child and chatting with a 50 year old male cop who is pretending to be a sexually-active, promiscuous teenager. One is a crime, the other is just stupidity.

The police chief of Jefferson, Georgia was indicted this week on 30 counts of theft and invasion of privacy charges. According to the indictment, the chief was unlawfully using his access to the Georgia Crime Information Center to run background checks for his wife's security business. He is also charged with using city property to benefit his wife's business.

The indictment is the result of a two-year investigation by the GBI. The chief is being represented by Mike Bowers, the former Georgia Attorney General and an excellent lawyer. The chief's surrender to the local jail was covered by the Athens Banner-Herald.

It appears that Bowers has already started to fight. He filed a motion to dismiss the indictment because his client was not allowed to appear as a witness before the grand jury when it considered the charges against him.

He has a good argument. Georgia law provides as follows:

Section 17-7-52 of the Georgia Code: (a) Before an indictment against a present or former peace officer charging the officer with a crime which is alleged to have occurred while he or she was in the performance of his or her duties is returned by a grand jury, the officer shall be notified of the contemplated action by the district attorney of the county wherein the grand jury shall convene and the officer shall be afforded the rights provided in Code Section 45-11-4. (b) The requirements of subsection (a) of this Code section shall apply to all prosecutions, whether for misdemeanors or felonies, and no such prosecution shall proceed either in state or superior court without a grand jury indictment.

This means that police officers charged with serious crimes in Georgia have a legal right to appear before the grand jury considering the charges against them. They get to make a statement and sit through all the other evidence, but they do not have to answer any questions. Even their lawyers get to sit in.

The DA's know this and try to get around the statute. Their argument is usually that the cop was not "performing his duties" because he was violating the law. Of course, that begs the question. You can't assume that the officer is guilty until he is indicted and convicted. Until then, he is presumed innocent like everyone else.

Our firm has represented several police officers charged with crimes, in both Georgia and federal courts. (Read the local media coverage of our work in these cases.) In my experience, Bowers is right. Grand juries are reluctant to indict police officers when the officer is able to speak directly to them and explain the circumstances that led up to the allegations. I have never had one of my officer clients indicted after they appeared before the grand jury considering the charges.

Of course, it helps to have a client who is not guilty. We'll see how this case turns out.

Just a few hours ago, a Houston County, Georgia jury convicted a husband and wife of felony murder for the death of a friend who had overdosed on drugs they provided her. The Macon Georgia newspaper has the story and the verdict returned this afternoon. The Atlanta Journal Constitution also covered the trial.

The case sounds like a scene straight out of Pulp Fiction, but it's true and it's tragic. The convicted couple were with their friend and gave her a syringe with a significant amount of Oxycontin. The friend injected herself with the drug and died shortly thereafter. Apparently, she had been drinking alcohol earlier (her BAC was .198), and the Oxycontin put her over the edge. No one was trying to kill her, but the couple panicked when the girl had a bad reaction. They left her on the front lawn to die.

The story is a tragic example of how the felony murder statute works in Georgia criminal cases. In Georgia, a person commits the offense of murder when, in the commission of a felony, he causes the death of another human. There is no need for malice or intent to kill. You don't have to pull the trigger to be convicted of murder in Georgia. And the penalty - life in prison - is the same.

In the Houston County case, the couple were convicted of felony murder because their friend died as a result of the drugs they gave her. Providing the drugs is a felony (unlawful distribution of a controlled substance), and their friend died as a result. The judge sentenced them both to life in prison. It's the same sentence they would have received if they had shot their friend in the head with a gun.

Our firm has handled several felony murder cases, and we have one pending now in Dekalb County, Georgia. In that case, our client is alleged to have been engaged in an armed robbery that caused the death of the person being robbed. The fact that our client was not the shooter doesn't matter. It wouldn't even matter if our client was just the getaway driver. Anyone involved in the commission of a felony that results in the death of another person is guilty of felony murder and faces life in prison if convicted.

Because the penalty is so severe, most criminal defense lawyers will try to negotiate a plea to a lesser charge if there is significant evidence that their client was involved in a crime that led to a murder. If their client was only a minor player in the underlying felony, a plea to a lesser offense can usually be obtained.

Perhaps this couple was offered such a plea and gambled on a trial. Sometimes that works, but as this Middle Georgia couple just learned, you usually get the max if you lose. It's a tragic end to a tragic case.