Georgia Criminal Defense Lawyer Blog

The Brian Nichols case is back in the news after a brief respite. District Attorney Paul Howard has filed a motion asking Judge Fuller to recuse himself from the case. The Atlanta Journal Constitution has the story. I was interviewed about the case and this recent motion on the local Atlanta affiliate of National Public Radio.

ATLANTA, GA (2007-12-28) A motion filed by Fulton County District Attorney Paul Howard yesterday asks the judge in the Brian Nichols case to recuse himself. Nichols is charged with killing four people as part of a courthouse escape attempt. But some criminal attorneys say that finding a new judge could further complicate things.

Howard's motion claims that Judge Fuller is biased in favor of the defense, an ethical violation. But Atlanta criminal defense attorney Page Pate doesn't buy it:

PATE: Even though Paul Howard says it's about ethics, it's really about money. It all comes back to money.

The case has dragged on for more than a year, has cost 1.2 million dollars, and is now suspended indefinitely. Pate says the latest motion won't help:

PATE: It's a losing game, and it's just going to cost additional time and money to go through this recusal process, because it won't be successful.

Fuller may rule on Howard's motion himself, or allow another Superior Court judge to make that decision. If the motion is denied, Pate says Howard will likely appeal the decision to Georgia's Supreme Court.

© Copyright 2008, WABE

Several judges, prosecutors and even some criminal defense lawyers have criticized Judge Fuller's handling of this case because of the delays and his willingness to apparently give Nichols' defense lawyers a blank check for their fees and expenses. But whatever people may say about Judge Fuller, he is no quitter and will not simply cave in to the DA's demands for a new judge. As much as this case needs to be tried, the D.A. shouldn't get to pick the judge to try it.

I seriously doubt that changing the judge or changing the defense lawyers at this point will speed things up. It looks like the only way the case will be tried soon is if Fulton County or the State of Georgia gives the defense lawyers more money. If I were Nichols' lawyer, I wouldn't hold my breath.

Yet another man wrongfully convicted on the basis of eyewitness testimony was released from a Georgia prison this week. John White was convicted in 1980 of raping a 74 year old woman in West Georgia. The Athens Banner-Herald has the story.

The dedicated criminal defense lawyers at the Georgia Innocence Project did it again. I am proud to be a founding member and supporter of this group. Here is a portion of their press release:

Hairs from the crime scene were matched to White during the investigation by microscopic analysis, the best technology available at the time. DNA testing of those hairs has now proven that they do not belong to Mr. White. A GBI comparison of the test results to files in the Combined DNA Index System (CODIS) reveal the hairs actually belong to another man who is now under investigation.

Mr. White was convicted in Meriwether County of rape, aggravated assault,
burglary and robbery for an attack on an elderly woman in her home in
August 1979. The court sentenced Mr. White to life in prison. When he was
paroled in 1990 as a convicted sex offender, Mr. White’s life began a
downward spiral that culminated in convictions for drug possession and
robbery, crimes Mr. White admits that he committed. These subsequent
convictions caused Mr. White’s parole to be revoked, and he was returned
to prison to serve his full life sentence.

Having gone to prison for the rape when he was 20 years old, Mr. White
says, “I was raised on the chain gang, and I didn’t know how to make my
way once I got out.” Along with Mr. White’s family, the Georgia Innocence
Project’s Life After Exoneration program will now work to help him make
the transition back to society. Mr. White says, now that he is exonerated
of a brutal crime and relieved of the sex offender status he has carried
for nearly 30 years, he is determined to rebuild his life.

This is the seventh person released from Georgia prisons on the basis of DNA testing. Every single one of them were convicted after being identified by an eyewitness who was "certain" that they did it. I discussed the problems with eyewitness identification in an earlier post, and we are hoping for some legislative reforms in Georgia this year.

I am always excited to hear about these cases, but it also disturbs me. I know that most inmates who were convicted on the basis of eyewitness identification do not have access to DNA evidence to prove their innocence. There is no way to know just how many innocent people are serving time right now for crimes they did not commit.

At least there's one less innocent person in prison tonight. Congratulations to the Georgia Innocence Project, and best wishes to Mr. White.

In the wake of the Supreme Court's decision in Kimbrough v. United States, the United States Sentencing Commission voted unanimously to retroactively apply a recent amendment to the federal sentencing guidelines that reduces the penalty for crack cocaine offenses.

Just a day earlier, the Supreme Court held in Kimbrough that a District Court was permitted to consider the great disparity in the sentencing guidelines' treatment of crack versus powder cocaine in issuing a sentence below the guideline range.

Prior to the recent amendment to the sentencing guidelines, a person convicted of possessing crack cocaine was subject to the same sentence as someone who possessed 100 times that amount in powder cocaine. This disparity was widely criticized as being racially motivated in that most of the crack cocaine offenses involved black defendants. For decades, we've watched defendant after defendant receive sentences of 10, 20 and sometimes 30 years for offenses involving just a few handfuls of crack.

Even with the guideline amendment, crack cases in federal court will be subject to mandatory minimum sentences for certain quantities that, for now, are still based on the disproportionate 100 to 1 ratio. For instance, in federal court the possession of 50 grams of crack triggers the same mandatory minimum 10 year sentence as 5,000 grams of powder cocaine. Hopefully, Congress will follow suit with amendments to the mandatory sentencing scheme to mirror the changes in the guidelines.

For now, it remains to be seen just how the retroactively applied guidelines will be implemented. It appears that the Commission has left it up to the District Courts to determine, on a case-by-case basis, whether a particular defendant's sentence should be reduced. It is evident though that the sentences of thousands of federal inmates will be cut.

Looks like we can finally close the book on this case. At least in federal court.

Yesterday, Michael Vick was sentenced to serve 23 months for his role in the dogfighting operation known as Bad Newz Kennels. ESPN and virtually every other news outlet in the U.S. covered the sentencing.

Vick and his lawyers were probably a little surprised by the length of the sentence because the judge did not go along with the original plea agreement Vick had with the government. That agreement called for a sentencing guideline range of 12 to 18 months. The judge found that Vick had not "accepted responsibility" for his conduct so he did not give Vick the 2-level reduction that would have applied. That put Vick's guideline range at 18 to 24 months, and the judge went with the higher end of that range. The minute sheet explaining the sentence was filed with the court later that day.

There is no parole in the federal system, but 23 months doesn't usually mean 23 months in custody. If Vick does his time without any problems, he should receive "good time credit" and get a 15% reduction in his sentence. That would get Vick home sometime in May 2009.

The judge said that he denied Vick credit for acceptance of responsibility because Vick made false statements about his drug use while on bond, and he minimized his role in executing some of his dogs. A judge has a lot of discretion under the sentencing guidelines in awarding credit for acceptance of responsibility. Most federal judges would have taken away acceptance of responsibility credit when Vick failed his drug test. All of the other things Vick did - apologies, early surrender, etc. did not seem to make a difference with this judge.

Of course, there's still the state indictment. I expect Vick's lawyers are now trying to resolve that case with a plea to concurrent time so that Vick will not be facing time in state custody once he is finished with his federal sentence. That may be the best his lawyers can do for him given the circumstances of this case.

The U.S. Attorney's office in Atlanta indicted 88 individuals who are alleged to be connected to two major drug cartels in Mexico. According to the Atlanta Journal-Constitution, the federal government's investigation in this case, which involved law enforcement officers from 300 agencies, led to the seizure of $10 million in cash, 111 kilograms of cocaine, 17 pounds of crystal methamphetamine, and 32 weapons.

The Drug Enforcement Administration (DEA) alleges that the currency was headed back to Mexico and the packaging of the drugs revealed unique markings indicating that they originated with the Mexican drug cartels.

The DEA has spent much of its resources over the past several years targeting Mexican drug trafficking organizations and considers the recent indictments a major blow to their alleged movement of drugs through Atlanta. Atlanta has become a major hub for drug trafficking in recent years.

Our firm has handled several recent federal cases involving alleged Mexican drug trafficking organizations in Atlanta, several of those cases involved literally truckloads of drugs and millions of dollars in seized cash. In these cases, the government sought to tender their DEA agents as "experts" in the field of Mexican drug trafficking organizations. The agents would then testify that the seemingly innocent conduct that our clients had engaged in was consistent with what their investigations had revealed were the practices employed by Mexican drug trafficking organizations. We have vigorously fought for the exclusion of this sort of testimony on the grounds that the agents were not "experts" in this field and that they could never prove that they ever reliably determined just how Mexican drug trafficking organizations did, in fact, operate. Moreover, the government has never been able to prove that "Mexican" drug trafficking organizations actually behave any different than those of other nationalities.

Many Georgia criminal defense attorneys have been critical of this "expert testimony" believing that it is nothing more than a ploy to allow the agents to tell the jury "trust us, we know these guys are drug dealers." This type of testimony has been offered in several cases where there was no other evidence at trial that the defendants had possessed or distributed drugs.

With the wealth of information that these recent indictments should reveal about Mexican drug trafficking organizations, we'll see whether these agents really knew what they were talking about.