Georgia Criminal Defense Lawyer Blog

Nichols' criminal defense attorneys are trying to recuse their second judge from presiding over the Brian Nichols trial. The lawyers' recusal motion is based on comments Judge Bodiford made at the time of the courthouse shooting. He was reported to say that the crime was a "brutal murder," and that the death of "his friend" hit close to home. The Atlanta Journal Constitution has the story.

I can't imaging anyone would argue that this crime was not a brutal murder (regardless of who committed it). And it is very different to say you are a friend of the victim than to prejudge the guilt of the person on trial. (That was the reason the last judge had to step aside.) Georgia law recognizes this difference, and does not require a judge to step down just because he was a friend of the victim.

Last week, I was asked to comment on this development by WABE, Atlanta's National Public Radio affiliate. I said what most other Atlanta criminal lawyers would say - there is no chance that Judge Bodiford will recuse himself from this case. He knew about his relationship with Judge Barnes well before he took this assignment, and he almost certainly consulted with the judge that appointed him about any conflicts.

Instead of simply denying the motion and requiring the lawyers to try to appeal that ruling, Judge Bodiford asked another judge to step in and consider the recusal request. According to the Atlanta Journal Constitution, Judge Dan Coursey, Jr. of Dekalb County was named today as the judge who will consider the recusal motion.

Despite these delays, Judge Bodiford hopes to keep the trial scheduled for July. We'll see.

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Posted In: Georgia Criminal Law , Violent Crimes

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Yesterday, we were able to successfully resolve a federal criminal case for our client in Atlanta. He had initially been threatened with prosecution for false statements and violations of federal law governing the importation of endangered species for his involvement in assisting a Texas hunter and South African safari operator get a leopard skin into the United States.

The Atlanta Journal Constitution reported the case, based on a press release issued by the United States Attorney's Office in Atlanta.

Although our client was facing the possibility of being charged with more serious offenses (felony charges with possible prison time), we were able to resolve the case for a plea to a misdemeanor, 12 months of probation and a fine. Read the misdemeanor sentence here

Although Endangered Species Act cases are not a large part of our practice, federal law enforcement agents from the Fish and Wildlife Service expect the number of these cases to increase in Atlanta.

Because there are very few Atlanta criminal defense lawyers experienced in fish and wildlife prosecutions, we will follow these cases and watch for any developments in the law.

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Posted In: Federal Criminal Law

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Brent Powell, a Cochran, Georgia police officer, was arrested earlier this week on charges of child molestation, enticing a child for indecent purposes and interference with custody. In addition to being a member of the Cochran, Georgia police department, Mr. Powell had also served as the police chief for a small town in Wilcox County, Georgia. The Macon Telegraph has the story.

But Officer Powell is not alone. There were at least two other police officers charged with serious sex crimes this week in Georgia.

Gregory Graham, a Fulton County police officer, was charged this week with child molestation, incest and rape. He was arrested at his home in Coweta County where the charges are pending. The Atlanta Journal Constitution has the story.

And there's one more. A Forest Park, Georgia police officer was also arrested this week and charged with child molestation. The Atlanta Journal Constitution is following that story as well.

If any of these officers are convicted or later plead guilty to these charges, they are looking at mandatory minimum sentences of 10 years and up. Child molestation charges also require sex offender registration and onerous conditions of probation once the prison terms have been served. Of course, as police officers, they will likely have problems with their POST certification and ability to continue in law enforcement.

Our firm has represented several law enforcement officers charged with serious crimes. Criminal cases involving police officers as defendants present some unusual challenges for defense lawyers. On the plus side, most jurors seem to require a higher level of proof before convicting a person who has a long and honorable record of serving their community. On the negative side, the punishment for officers convicted of serious crimes is usually more severe than for most other defendants. Many judges and prosecutors say that police officers should hold themselves to a higher standard. (In reality, they are probably more concerned about the negative public perception that is created when a police officer is charged with a serious crime.) Regardless, the punishment for a cop who breaks the law can be unusually harsh. There is also a lot more pre-trial publicity in these cases. That can make them harder to defend.

Obviously, we don't know if these officers are guilty of anything. They should get the benefit of the doubt they are entitled to under law before they lose their certification. Many times the allegations are not true. We have seen far too many cases where the investigating officers rushed to judgment without first conducting a proper investigation. We have had several clients accused of child molestation where the charges were later found to be false. Fortunately, we were able to get these cases dismissed before trial.

If the criminal defense lawyers representing these officers do their homework, the allegations will be thoroughly investigated prior to indictment. Perhaps they will also consider polygraphs and forensic experts. (Although polygraphs cannot usually be admitted in trial, absent a stipulation with the prosecutor, they can be very helpful in resolving these cases before they ever get to trial.)

If they are acquitted, or the charges are later dismissed, I hope these officers will remember that it's easy (but wrong) to charge someone with a serious sex crime like child molestation without a proper investigation. As they will no doubt soon appreciate, just an arrest for a sex crime can dramatically change someone's life. Even if the charges are later proven false.

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Posted In: Georgia Criminal Law , Sex Crimes

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Ronald Malcus James, a former Walton County Georgia teacher, was indicted this week in Athens for his alleged involvement in internet child pornography. The Macon Telegraph and Athens Banner Herald have the story.

In Georgia, internet child pornography cases are usually charged under Georgia laws dealing with sexual exploitation of children and computer pornography. The charges can be serious, although Georgia does not have the same mandatory minimum penalties that are provided under federal law for receipt and/or transmission of child pornography. But even in Georgia courts, most prosecutors will seek jail time for people convicted of possessing multiple images of child porn.

Not surprisingly, the Georgia Bureau of Investigation (GBI) is investigating this case. That agency usually gets involved in these cases because it has the capacity to conduct a computer forensic analysis and search for unlawful images on computers seized after arrest or through the execution of search warrants. Most local police departments in smaller Georgia cities and towns do not have this capability.

Our firm has represented several people charged with possession, transmission and receipt of computer child pornography. Like most criminal defense lawyers who handle these cases, we will first try to challenge the seizure of any computers and hard drives. We will also try to determine if there is a problem with the way the initial investigation was conducted.

The best way for a criminal lawyer to defend a case like this is to a retain top-notch computer forensic expert. We have used several computer experts to help us thoroughly review the physical evidence in child pornography cases to determine if there is a defense to the possession of the images. In several cases, we have found evidence that the images were inadvertently received and downloaded. We have also been able to show that, in some cases, the person charged with the crime tried to delete the image numerous times. In our experience, this is the only way a defense attorney can win or successfully resolve a case like this.

These cases can be particularly difficult to win at trial because the images are usually so disturbing that a jury may be ready to convict the person as soon as they see the pictures. That's why it is so important to try to get these cases resolved before they ever get that far.

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Posted In: Georgia Criminal Law , Sex Crimes

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William "Bill" McArthur III, a South Georgia doctor, recently pleaded guilty to violating federal drug laws as a result of his involvement in an internet pharmacy. The Macon Telegraph has the story.

Apparently, the doctor agreed to prescribe medication to patients who submitted orders via the internet or by telephone. The doctor, his father and another physician operated a "call center" in Mississippi where the orders were filled. Several discount pharmacies were also involved.

This is not the first time an internet pharmacy operation has been charged with violating federal drug laws. Our firm is currently representing a physician charged with approving certain low-level prescription drugs after reviewing and evaluating medical information submitted by patients through the internet. In our case, the government contends that doctors cannot approve any sort of controlled substance without a face-to-face physical examination of the patient. We disagree, and the case remains pending in federal court in Atlanta.

These cases can be difficult to defend because many doctors would say that the best way to determine if a patient should received a certain medication is to conduct a physical examination of that patient. The government usually calls these doctors to testify as experts in the "legitimate practice of medicine."

The problem with the government's theory is that it ignores reality (many people receive prescription drugs from nurses and p.a.'s without ever seeing a doctor), and it assumes that a doctor cannot get the medical information he or she needs online. That is especially true when the drugs are pills like Viagra and weight loss medications. Just because it's not the best way to practice medicine doesn't mean it's a federal crime.

It looks like internet medicine cases will continue to be charged as computer crimes and/or federal drug crimes, and lawyers will continue to litigate them because there is so much money involved. In the South Georgia case, the government alleges that the business generated approximately $1.8 million.

Maybe if they had not been so successful they could have stayed under the radar. Now, the doctor is facing the loss of his ability to practice medicine, a hefty fine and up to five years in federal prison.

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Posted In: Federal Criminal Law

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A dentist in Carrollton Georgia was indicted this week and charged with multiple counts of aggravated assault, battery and child cruelty. The indictment is based on allegations that he assaulted several of his patients during treatment. The Atlanta Journal Constitution has the story.

Apparently, the criminal investigation started when 8 of Dr. Austin's patients claimed that the dentist assaulted them while they were under sedation or undergoing dental procedures.

There is also a civil suit (there usually is) brought by one of the patients seeking money damages. Dr. Austin's Atlanta attorney, Matt Coles, denied the allegations but could not provide specific details about his client's treatment of this patient because of federal privacy laws.

As the son of a dentist, I know that everyone dreads sitting in the dental chair - many patients feel assaulted as soon as they hear the drill. But the allegations in this case go way beyond general discomfort. Hitting a patient in the face with a "large metal object" seems a little extreme, even for a dentist.

Patients claiming inappropriate treatment by their dentist or doctor is nothing new. Our firm has represented several physicians charged with misconduct relating to their patients. One of our clients was charged with sexually assaulting several patients during an examination. The case is still pending, but we believe the allegations have no merit and were made up just these patients could sue the doctor and try to make some money. In fact, one of the patients has already threatened to sue while the investigation is still pending.

Unfortunately, it seems that doctors will need to make sure they have a nurse or other assistant as a witness for every patient examination or treatment. Other than videotaping the exam rooms, that may be the only way to defend these allegations. Otherwise, almost all of these cases will end up in a "he said, she said" trial.

With one allegation, it's easy to defend. But Dr. Austin's defense lawyer may have his hands full if there are 8 similar allegations.

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Posted In: Georgia Criminal Law

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