Georgia Criminal Defense Lawyer Blog

This is a great development. The Macon Telegraph has the story.

Anyone who has followed the work of the Georgia Innocence Project, and other Innocence Projects around the country, have no doubt been disturbed by the amount of people held in prison for crimes they did not commit. The sad fact is that many of these people were wrongfully convicted on the basis of "eyewitness testimony."

Hopefully, these new standards will help reduce the number of people falsely accused by mistaken eyewitnesses. But it's a shame that these standards could not have been adopted by the Georgia General Assembly when they were first introduced by Rep. Stephanie Stuckey Benfield.

Maybe this year?

The Georgia Supreme Court recently declared a life sentence for failing to register as a sex offender unconstitutional. In that case, the Court had to decide whether a life sentence for a second violation of failing to register as a sex offender was excessive punishment and violated the constitution. The Court held that it did.

In Bradshaw v. State, the defendant, Bradshaw, was convicted twice of failing to register as a convicted sex offender within 72 hours of changing his address. The trial court sentenced Bradshaw to life imprisonment as required by Georgia law requires. Bradshaw was originally convicted of statutory rape for which he was required to register as a sex offender. Upon his release from jail for that crime, he made two attempts to register his address at two different residencies, but both addresses were rejected by the sheriff’s department since they were located too close to a recreation center and a church. Bradshaw then attempted to register at a third address which did not exist, although it was close to a family friend where he hoped to live. An investigator made contact with his sister concerning Bradshaw’s failure to register, and within 24 hours, Bradshaw turned himself in to authorities.

Bradshaw appealed the sentence arguing that it was cruel and unusual under the Eighth Amendment. Thus, the Court had to consider whether the harshness of the sentence was grossly disproportionate to the gravity of the offense. In examining the gravity of the crime, the Court reasoned that failing to register does no violence to anyone but is instead a passive crime. In addition, Bradshaw made two attempts to register a valid address and was accessible to police. The Court then examined the harshness of the sentence. Only the penalties of capital punishment and life imprisonment without parole are more severe than life imprisonment. It is also the most severe sentence that can be issued for any crime except murder and repeat violent felonies. Based on this evidence, the Court felt that the issue of gross disproportionality was properly raised by Bradshaw.

The Court then confirmed their suspicion of an Eighth Amendment violation by comparing Bradshaw’s sentence to the sentences imposed for other crimes within Georgia as well as the same crime in other states. The Court found that the crimes in Georgia which require a mandatory life sentence are violent crimes such as murder and kidnapping with bodily injury, and that these crimes have a higher degree of culpability than the failure to register. Also, other violent crimes such as voluntary manslaughter and aggravated battery may receive as little as one year in prison. The Court then turned to other states where it found that only Georgia requires life imprisonment for a second violation of failing to register. Consequently, the court found the penalty of life imprisonment to be unconstitutional for failing to register and vacated Bradshaw’s sentence.

Our criminal lawyers have been helping people charged with sex crimes for many years. We have recently seen people charged with registration violations who are facing sentences more severe than sentences imposed for actual sex offenses like molestation and rape. We hope this strong statement from the Georgia Supreme Court will result in penalties that make more sense for this type of registration violation.

The Georgia Court of Appeals recently reversed the convictions of a defendant after the trial court failed to instruct the jury on the defendant’s self-defense claim.

In Harris v. State, the defendant was convicted by a jury of four counts of aggravated assault, three counts of aggravated battery, and two counts of burglary. The defendant’s sole defense at trial was self-defense and accident. Yet, the trial court judge failed to instruct the jury on this sole defense. Under Georgia law, a jury must be instructed on a defendant’s sole defense even if the defendant did not request for the jury to be instructed. The Court of Appeals reversed the defendant’s conviction as a result and sent the case back to the trial court to be retried.

Our defense attorneys have handled many serious criminal cases, including murder and aggravated assault. When our defense involves a claim that the client was defending himself, it is vitally important to have the trial judge properly instruct the jury on the law governing self-defense claims. Perhaps this decision will help insure that judges always give this charge in self-defense cases.

The Georgia Court of Appeals recently upheld a trial court's decision to suppress cocaine found in a vehicle for the lack of a proper consent to search when the arresting officer could only say that driver “pretty much” gave consent.

In State v. Holloway, two officers were dispatched to a Dekalb County residence with the suspicion that the occupants were selling drugs. When the officers arrived, they saw a man, woman, and their children on the front porch. The officers explained why they were there, and the woman freely gave consent for the officers to search her home.

Upon finding no evidence, the officers noticed a vehicle in the driveway. The officers then asked the man and woman for consent to search the vehicle. The man stated that the woman was the primary driver, but that the vehicle was registered in his name. The officer who conducted the search testified that the woman “pretty much” consented to the search. In addition, the officer stated that she “pretty much advised that she did see a bag containing a white substance in the vehicle.” The man never gave consent for a search. The officer then used a K-9 dog from his patrol car to conduct a free air search. This search resulted in the officers finding a bag of suspected cocaine in the glove compartment. Ultimately, the man was arrested for trafficking cocaine and possession with intent to distribute.

The man challenged the legality of the search by arguing that the consent given by the woman was involuntary. The trial court found that the officer’s testimony was vague and disingenuous when he used the words “pretty much” during several parts of his testimony. After hearing the officer and observing his demeanor, the trial court suppressed the cocaine. The state argued that the officer’s language was simply a “verbal tic.” The Court of Appeals ruled that the trial court was the trier of fact which determines the credibility of a witness, and it is free to reject the testimony of a witness. Furthermore, the Court of Appeals wrote that it will not disturb the trial court’s ruling on the credibility of a witness unless there is evidence demanding a different finding. Since there was no evidence that suggested a different result, the trial court’s ruling was affirmed and the cocaine was suppressed.

This decision may help to prevent police officers from searching vehicles unless owners give clear and unambiguous consent to search. Our criminal defense lawyers represent people charged in situations where the legality of a search conducted by police officers is disputed. This case will help us defend people whose constitutional rights have been violated by searches without warrants, probable cause or proper consent.

Gainesville criminal lawyer and public defender Anne Watson won a very difficult child molestation trial for her client earlier this week. Her client, Joshua Stewart, had been charged with aggravated child molestation based on allegations that he molested a 4 year old girl he was babysitting. He had spent the last year and seven months in jail because the judge had twice refused to grant him a bond.

The Gainesville Times has the story.

Ms. Watson did an outstanding job of representing her client. She obtained a medical expert to rebut the State's medical expert, and focused on problems with the forensic interviews and protocols followed by law enforcement. Apparently, there was also a delayed "outcry" and some inconsistent statements made by the alleged victim. But the case was especially difficult to win because the State had introduced evidence of a supposed similar transaction - another molestation allegation involving an 8 year old child.

Child molestation cases are very difficult to defend. Once a child claims to have been molested, law enforcement and child protective services like DFACS are sometimes quick to jump to conclusions without really considering all the evidence and the credibility of the person reporting the incident.

Had Mr. Stewart been convicted, he would have served a minimum of 10 years in prison. More likely, he would have been sentenced to 20 or 30 years. Had the crime been committed this year and he was convicted, the mandatory minimum would have been 25 years. It is obviously a very serious charge. But that doesn't mean he did it.

Child molestation is a tragic crime, and it certainly does occur in our society. People who abuse children sexually also deserve harsh punishment. But our firm has seen more than our fair share of people falsely charged with this offense.

Fortunately, we have been able to help several of our clients get these allegations dismissed prior to indictment by re-investigating the case with our investigators, forensic and medical experts and polygraph examiners. Once we prepare a solid defense, we often try to convince the prosecutor not to pursue the charges. In the few cases that do go to trial, we have been successful in wining acquittals through extensive pretrial preparation.

Congratulations to Ms. Watson and her obviously relieved client. We are encouraged that the jury held the State to their burden of proof beyond a reasonable doubt.

Gwinnett County Superior Court Judge Michael Clark set bond for the four Meadowcreek High School students charged with the armed robbery of a man at the Orchard Park Apartments in Norcross last month. The students are all current or former members of the school's football team. The bond was set at $50,000, and the judge imposed a condition of house arrest and ankle monitoring.

The Atlanta Journal Constitution has the story.

Bond in armed robbery cases is not automatic and it usually takes some time to get a full hearing in court. Georgia law provides that pretrial bond in certain serious crimes (like armed robbery) can only be set by a superior court judge. (For most felonies, bond can be set by a schedule at the jail or by a local magistrate judge.) Because superior court judges are the only judges who can set bond in this type of case, it also generally takes longer for defendants to get bond hearings when they are charged with armed robbery. In some jurisdictions, however, the local superior court judges empower certain magistrate judges to set bond in these cases. That often shortens the time that the defendant has to wait for a hearing, but it doesn't necessarily improve the chances that bond will be granted. Like so many other things in the Georgia criminal justice system, a lot depends on the particular judge conducting the hearing.

Our firm has successfully handled many armed robbery cases. We know from experience that the issue of bond is vitally important, not just to the person in jail but also to his or her family. If bond is granted, it also helps the lawyer and client communicate more freely and work to build a better defense. There is also less pressure to enter a quick guilty plea simply to avoid more jail time.

Now that bond has been set for these defendants, the case will remain pending until the DA's office obtains a grand jury indictment. In Gwinnett County, that process can take several months.