Georgia Criminal Defense Lawyer Blog

Looks like we may have a new judge to replace Judge Fuller who recused himself from this case yesterday. Believe it or not, two judges have actually volunteered for this job. The Atlanta Journal Constitution reports that Judge Michael Clark (a Gwinnett County superior court judge) and Judge Mary Staley (a Cobb County superior court judge) have both agreed to accept this case.

Both of these judges are active superior court judges with full dockets. That could make things very busy in their respective circuits if they are absent for a trial that could last several months. But both of these judges are experienced and well-qualified to tackle a case of this magnitude. I am sure they will be able to manage their existing caseloads with a little help.

In an earlier post, I discussed the comments that led to this recusal. It's still a mystery to most people why the judge agreed to be interviewed about this case. In recent news reports, however, Judge Fuller denied speaking with the New Yorker Magazine reporter "on the record," and he does not remember making the statement that was attributed to him. Regardless, in my opinion (shared by at least a few other lawyers that have been interviewed by the media), it was poor judgment to agree to be interviewed about a case that was pending before him. It shouldn't matter whether the case was a high-profile a death penalty case or a simple DUI. You just don't talk to the media about cases pending in your court.

I was interviewed on WABE, the local Atlanta public radio station about the problems facing the replacement judge, whoever it is. A short audio clip of the interview is posted on their website. Download file

I have never personally appeared in front of Judge Fuller. But many judges, prosecutors and respected defense lawyers consider him to be a fair, ethical and diligent trial judge. A recent Atlanta Journal Constitution article quotes some of these lawyers and judges. So it's unfortunate that he will probably be most remembered for his involvement in this case, despite all the positive things he has done on the bench.

It will be interesting to see how long it takes the new judge to get the case back on track for trial, and whether we will see any more delays due to funding problems. Considering the two judges that have volunteered so far, I don't think we will have to wait long before we see a trial date.

The Federal Bureau of Investigation announced this week that it is investigating 14 companies for their involvement in the subprime mortgage business. CNN has the story.

The companies were not named, but the companies that have been targeted certainly know it by now. As in most fraud investigations, the FBI is looking into over-valued assets and false documentation. Executives with these companies may have also been involved with insider trading (selling company stock on non-public information before the problems in their asset portfolios became obvious).

The FBI claims that they are on track to receive 60,000 reports of suspicious activity in connection with mortgage transactions, a huge jump from a few years ago.

It's no secret that Atlanta, and other parts of Georgia, have been hit hard with mortgage fraud. The real question is where to place the blame. We have represented all types of people in mortgage fraud investigations and prosecutions - from the "straw-buyers" to the closing attorneys, and everyone else in between. (See my earlier post on our appraiser client, and my earlier post on the dynamics of mortgage fraud prosecutions.)

I have often said that there would have been no fraud had the lenders not been so greedy. They were out to close as many loans as possible and it became a free-for-all. Of course people took advantage of the "no doc" loans, and the "wink, wink" advice from their brokers to fudge the paperwork. But lenders approved some pretty sorry loans, and they knew it. It should come as no surprise that many of these loans are going into default.

Writing off a bad loan is one thing, but appearing in front of a federal judge in a criminal case is a whole other ballgame. I don't know if the feds will start naming some corporate defendants in these cases, but it would be nice if they didn't always just go after the little guys.

I don't have a blog category for "I can't believe he said that," but if I did, this would top the list. For reasons that are known only to him, Judge Fuller agreed to be interviewed by The New Yorker Magazine about the Brian Nichols death penalty case currently (indefinitely?) pending in Atlanta, Georgia. Just so I don't get it wrong, here's the quote:

If the case ever gets to trial, the defense will offer an even more contentious argument: that Nichols, who has pled not guilty, acted out of a “delusional compulsion” (a version of the insanity defense allowed under Georgia law). “That’s their only defense, because everyone in the world knows he did it,” Judge Fuller told me.

I'm not saying he's wrong. No sane person doubts Nichols' guilt. But the real question is why in the world would he publicly say this when the case is still pending in his court? Why did he agree to an interview at all? Didn't he put a gag order on everyone involved in the case? Doesn't that also apply to him? I really don't get it. Maybe it's an intentional move to get off the case. But why not simply recuse himself without all the fuss and delay? As much as I would like to explain his comment, or offer some insight, I just don't get it.

The Atlanta Journal Constitution helped spread the news in Atlanta, and included some additional commentary from local criminal defense lawyers in Atlanta. The consensus is that Judge Fuller's comment may violate the judicial cannon of ethics. It will certainly provide fodder to members of the Georgia General Assembly who want to get him off this case. The Assembly is currently in session in Atlanta.

I was also interviewed about Judge Fuller's comment on Atlanta's local National Public Radio affiliate, WABE FM 90.1.

I expect we will soon see another motion to recuse, but I'm not sure who will file it. His comment obviously prejudices the defense, but the D.A. has not been shy about expressing his desire to remove Fuller from this case. Perhaps we'll see a joint motion to recuse, which the judge may reluctantly grant. This may be the only time the prosecutors and defense lawyers actually agree about something in this screwed up case.

It's been out of the news for a while, but celebrity fitness trainer Darius Miller was seriously injured after a night out in Midtown Atlanta. He was out late with Atlanta Mayor Shirley Franklin's daughters and others at a local restaurant/bar. As a result of a serious fall, he suffered a head injury and fell into a coma. According to media reports, he is still in serious condition at a local Atlanta hospital.

While no one doubts the severity of his injury, there were a lot of inconsistencies in the initial report about the incident. Friends of Mr. Miller alleged that he was "beaten" and "attacked" by a group of "10 to 15" employees of 01 Entertainment, a party promotions and dj business. The way the story was initially reported, employees of the entertainment company were trying to film the mayor's daughters and they objected. Mr. Miller then supposedly "went to their aid" and confronted the cameraman. They argued, and the other 01 Entertainment people there that night attacked and beat Miller into a coma.

Realizing the devastating effects of such negative publicity, 01 Entertainment retained our firm to immediately investigate and get the story straight. The media coverage was intense (must have been a slow news day in Atlanta), and we had to act fast.

We heard a very different story from our client's employees who were there that night. First, there were only 3 or 4 people associated with 01 there (not the 10-15 that had been reported). According to our client's employees, they were not trying to film the Mayor's daughters; they had no idea who they were. Instead, they were simply filming the guests leaving the 01 party at the club next door. It is true that the Mayor's daughters objected be being filmed, probably because one of them is awaiting sentencing in a federal criminal case in North Carolina. So, they confronted the 01 cameraman and demanded his camera. He refused. Mr. Miller then got involved and tried to physically take the camera away from the 01 employee. Again, he refused to give up the camera and a struggle ensued. According to several witnesses, Mr. Miller was very intoxicated. During the struggle, he fell and his head hit the concrete parking pad at a strange angle. His head must have been injured in the fall. He was immediately taken to the hospital.

We did our best to get our side out to the news media and, fortunately for our client, the negative publicity quickly died down. Here's a video clip of the local Atlanta TV news coverage.

This case is an excellent example of what happens when the media runs a story after only hearing one side. Fortunately, our contacts in the local media were very quick to answer our calls and get the story straight.

Some criminal defense lawyers stick with the basic "no comment" when faced with a news camera and bright lights. Many times, that is the best course of action. But some cases require more, especially in today's fast-paced news environment and internet blogs. I don't like to see my clients convicted in the media before the case even starts. When I see that happening, I'm going to respond in a manner that does not damage our defense if the case has to go to court. It's a fine line, but sometimes we have to try to walk it.

It's not breaking news that there have been a lot of federal mortgage fraud prosecutions in Atlanta. One of the biggest cases is finally finishing up. Several of the last remaining defendants in the Phillip Hill case will be sentenced soon. We represented one of the appraisers in this case who agreed to cooperate with the government. His story was recently covered by Bloomberg News.

I discussed these cases in an earlier post on mortgage fraud in federal court. It's always been my opinion that the lenders share some responsibility for the fraud. Most "white collar" crimes (actually, most all crimes) are crimes of opportunity. When you have lenders throwing money around, it's not difficult to find people who will willingly take it. Especially people who are not worried about ever paying it back. It's only when the loans stopped performing that the lenders screamed "fraud!"

We have represented appraisers, mortgage brokers, real estate agents, investors and even closing attorneys in mortgage fraud cases in Georgia and several other states. There were also some "strawbuyers" who we defended. Fortunately, we kept most of them from being prosecuted because the "strawbuyers" are often just as much the victims as the lenders. The "strawbuyers" usually end up holding the bag and stuck with ridiculous mortgages they could not afford. Their savings were lost, and their credit ratings ruined.

For a while, we were handling so many of these cases and related investigations that I thought mortgage fraud was going to consume our practice. But I think we've seen the high-water mark for these cases. I don't expect to see this much mortgage fraud in the future, now that money is tighter and the lenders are finally becoming a little more diligent.

The Georgia General Assembly meets again this month in Atlanta. It should be an interesting session. We are watching a number of bills introduced in this session that concern criminal cases in Georgia.

The big bill is the new sex offender bill. This bill was rushed out of the House Judiciary (Non-Civil) Committee, and it is almost guaranteed to pass. (The story is in the Macon Georgia Telegraph.) Unfortunately, there seems to be no real debate over the effectiveness of the proposed statute. Many criminal defense lawyers, and even several Georgia sheriffs, oppose the legislation as written because it does very little to protect children.

Another piece of legislation we have been watching is the eyewitness identification bill. The study committee prepared an excellent report recommending some changes in the way eyewitness identifications are conducted by law enforcement. We expect the legislation to get passed this session. With the recent exonerations in Georgia of people falsely convicted of serious crimes based on faulty identifications, there is a lot of support for this bill.

There are other criminal justice bills that will likely be considered this session. One bill would clarify the rules on expungement of criminal convictions and arrests, and several others deal with the treatment of mentally disabled defendants.

You can follow the progress of these bills and other legislation on the Georgia General Assembly's website. We'll try to provide updates when we get them.

Not that this is surprising news, but a "reliable" confidential drug informant pleaded guilty today in federal court in Atlanta, Georgia to lying to federal drug agents about drug deals. The Atlanta Journal Constitution has the story.

Any defense lawyer who has tried a drug case in federal court can tell you about snitches. In virtually every federal drug case (especially those involving drug conspiracy charges), the government will call informants to testify. Sometimes the informants are paid by the government, sometimes they are trying to avoid being charged by cooperating. The most common type of informant, however, is the co-defendant who has already pleaded guilty and is hoping for a reduction in his sentence pursuant to Section 5K1.1 of the federal sentencing guidelines.

Defendants who are facing time for federal drug charges have a strong motivation to do whatever the government asks them to do. It is one of only two ways to avoid a draconian mandatory minimum sentence; and it is the only way to avoid a mandatory minimum if the person already has a record.

The problem is that informants in drug cases are generally not the most credible people to begin with (most have long criminal records). When these informants are offered the chance to cut their sentence by several years for "cooperating," you often end up with some highly dubious testimony, and more often than not, some questionable convictions.

There is no way to tell how many people have been convicted based on informants who have lied. Our firm is often asked to handle federal criminal appeals where the person was convicted of federal drug charges based solely on informant and co-defendant testimony. Unfortunately, the defense lawyer who tried the case could only try to impeach the informant with his criminal record and his plea deal with the government. It is very difficult to prove that an informant is actually lying unless the defense lawyer has access to the same information the government has. But that doesn't happen in federal court.

There is some good news. I tried a federal drug case recently where the government's evidence against my client was based almost entirely on the testimony of five informants who were given deals to testify. Despite the testimony of these five witnesses, the jury did not convict my client. Several of the jurors told me afterwards that they did not believe the informants. They said they placed very little weight on their testimony because they thought the informants had a strong motivation to lie. I was pleased to hear that, and I've been told by other federal criminal lawyers that they have heard the same thing from their jurors.

But the best way to stop informants from lying is to stop rewarding them for it and start prosecuting them. Maybe the prosecution of this informant in Atlanta will be the first of many. I know there is no shortage of lying informants out there if the government wants to pursue them.