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?

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Posted In: Georgia Criminal Law , Recent Trends

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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.

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Posted In: Georgia Criminal Law , Sex Crimes

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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.

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Posted In: Georgia Criminal Law , Violent Crimes

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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.

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Posted In: Drug Crimes , Georgia Criminal Law

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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.

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Posted In: Georgia Criminal Law , Sex Crimes

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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.

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Posted In: Georgia Criminal Law , Violent Crimes

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A recent decision in Georgia helps clarify what is required to sustain a kidnapping conviction.

In Garza v. State, the Supreme Court of Georgia reversed the kidnapping convictions of Joey Garza, since the movements of his two victims were not adequate to constitute kidnapping under Georgia law.

According to the facts of the case, Garza entered the home of a woman and her three children after stating that he had left his wallet in the woman’s van. Garza locked the door, pulled out a handgun which he put against the woman’s head, and threatened to shoot her. He then struck the woman’s head with the gun which caused her to fall. While on the ground, Garza bound her wrists and ankles and placed her in a chair. After some time, Garza fell asleep and the woman and her two year old son managed to escape and alert police. The police entered the home and managed to rescue the woman’s infant. However, her nine year old son remained inside. When the police entered the home, Garza held the boy’s shirt and moved him to a different bedroom. Eventually, police negotiated the release of the boy for a six pack of beer. Garza was convicted of two counts of kidnapping, four counts of false imprisonment, and one count of aggravated assault.

Garza’s attorneys argued that the movement of the woman falling and being placed in a chair along with the boy being moved to a different room could not constitute kidnapping. Georgia law had previously recognized even a slight movement of the victim as being enough to convict someone of kidnapping. The Court was concerned with this standard, since a relatively minor crime like false imprisonment could turn into a major crime such as kidnapping with the smallest movement of the victim.

The Court overruled the old standard, and it instituted a new test which other states have adopted known as the Berry test. Part of the test examines the duration of the movement and whether the movement occurred during and inherent to a separate offense. Using this new standard, the Court partially reasoned that the woman falling and then being placed in a chair were movements of minimal duration, and the Court also determined that these movements were incidental to the charge of false imprisonment. The Court reached the same conclusion about the boy’s movement to a different bedroom within the house. Thus, these movements did not constitute kidnapping under the new standard.

Our firm has won criminal trials for people charged with kidnapping where the facts do not support a true kidnapping allegation. We hope judges and prosecutors will consider this decision before allowing a questionable kidnapping case to go to trial. There are many other crimes that may fit a certain set of facts. Trying to stretch the case into a kidnapping charge is not usually the best way to win a conviction, or promote justice.

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Posted In: Georgia Criminal Law , Violent Crimes

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It's getting close to the end. The prosecutor and defense lawyer have started their closing arguments in the Brian Nichols' murder trial in Atlanta. After the arguments, Judge Bodiford will instruct the jury on the relevant legal principles (often a point of contention among the lawyers). Then, it's in the jury's hands.

The Atlanta Journal Constitution has the story.

It's been a long trial, but not nearly as long as the lawyers first predicted.

Once the verdict on the guilt/innocence phase is returned, the trial will move into the "penalty phase." During that part of the trial, the jury will be asked to determine whether Nichols receives the death penalty (rare in Fulton County), life in prison without parole, or life with the possibility of parole (in 30 years).

Either way, expect the trial to be over well before Christmas (the judge's goal from the beginning).

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Posted In: Georgia Criminal Law , Violent Crimes

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A recent challenge to a trial court's order denying pretrial immunity was denied by Georgia's highest court.

The Supreme Court of Georgia agreed with a trial court ruling that denied Atlanta police officer Raymond S. Bunn’s motion to dismiss an indictment for murder. The indictment stemmed from an incident in July of 2002 in which Bunn and his partner came across a man breaking into a vehicle. Upon noticing the officers, the alleged burglar climbed into a van and began racing towards Bunn and his partner. The officers ordered the van to stop, but the alleged burglar refused to yield. Officer Bunn then discharged his weapon killing the man.

Over three years later, Bunn was indicted for murder and other charges related to the incident. Bunn argued that the three year delay had caused witnesses’ memories to fade which violated his right to a speedy trial, and that the case should be dismissed as a result. Bunn also argued that he was immune from prosecution under a theory that he was justified in using deadly force. The Court refused to dismiss the case, since the prosecution is generally free to bring a charge of murder at any point in time. However, the Court ruled that the trial judge used an incorrect standard in determining if Bunn was justified in using deadly force, and the Court directed the trial judge to reevaluate immunity using the correct standard.

Our firm has been involved in several criminal cases in Georgia involving law enforcement officers. We have represented police officers charged with a variety of different crimes. Our defense depends on the particular facts, but we have been successful in keeping several of our clients from being indicted by preparing them to make statements before the grand jury at the time it considers the DA's proposed indictment. While it is possible to obtain immunity prior to trial, it is difficult. We don't think this case will really change that fact.

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Posted In: Georgia Criminal Law , Violent Crimes

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Earlier today, the Georgia Supreme Court struck down a portion of the Georgia sex offender registration statute. The Court found that the statute is unconstitutionally vague because it does not sufficiently inform homeless persons how to register if they have no residential address.

The Atlanta Journal Constitution has the story. A copy of the full opinion can be found on the Georgia Supreme Court website.

This decision is especially important to William James Santos, the man who brought the legal challenge. He had been sentenced to life in prison because it was his second conviction for failing to register. An unfortunate and ridiculous result of the mandatory penalties of this statute.

We'll soon see how the Georgia legislature attempts to deal with this rejection of one of its most poorly drafted and confused laws.

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Posted In: Georgia Criminal Law , Sentencing and Prisons , Sex Crimes

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On Friday, the Eleventh Circuit Court of Appeals (the federal appeals court in Atlanta) issued a stay of execution for Troy Davis. The Atlanta Journal Constitution has the story.

This is a great victory for Mr. Davis and his lawyers, but it is only temporary. The defense lawyers will now have to file briefs to convince the appeals court that Mr. Davis deserves another appeal.

Considering the fact that seven of the state's nine key witnesses against Mr. Davis have recanted, the appeals court should give serious consideration to the defense lawyers' request for permission to pursue another habeas petition on the grounds of actual innocence. An evidentiary hearing is the best way to test the credibility of the witnesses' testimony and review any other evidence suggesting that Davis may actually be innocent of this crime.

Davis' lawyers have 15 days to file their written brief. The State has a right to file a response brief 10 days after that.

The question for the court will be whether Davis' lawyers have shown that there is clear and convincing evidence that Davis is actually innocent, and that such evidence could not have been discovered earlier. It is a difficult standard, but one I am sure Davis and his lawyers are anxious to try to meet.

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Posted In: Georgia Criminal Law , Sentencing and Prisons

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The Cobb County Police Department has added a Light Armor Vehicle (LAV) to its arsenal. The LAV was donated and then refurbished at a cost of $45,000 for "police use."

The Atlanta Journal Constitution has the story.

Cobb County already has a Peacekeeper vehicle used by its SWAT officers. Apparently, SWAT intends to use these military-type vehicles together when making calls.

It looks like Cobb County will be well prepared in the event of a land assault, but what about its missile defense capabilities? Perhaps we will see some Patriots deployed soon.

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Posted In: Georgia Criminal Law , Recent Trends

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The Georgia Supreme Court heard arguments yesterday from a Gwinnett County lawyer challenging the constitutionality of the law that prohibits the possession of less than one ounce of marijuana, a misdemeanor offense.

The Atlanta Journal Constitution has the story.

The constitutional challenge is based on the language of the statute which seems to make someone automatically guilty simply because they are charged with the crime - “Notwithstanding any law to the contrary, any person who is charged with possession of marijuana, which possession is of one ounce or less, shall be guilty of a misdemeanor.” The obvious problem with that language is that it creates a presumption of guilt.

But the Georgia Supreme Court may not be persuaded to strike the law done just because it was poorly drafted. Such a decision could result in many other cases being reversed on appeal.

Our firm has represented many people charged with marijuana and other drug crimes in Georgia. We will closely watch this case. If the law is struck down, we may be able to people who were convicted or pleaded guilty to a violation of this statute.

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Posted In: Drug Crimes , Georgia Criminal Law

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The Georgia Supreme Court heard arguments yesterday in James Sullivan's appeal of his murder conviction in Fulton County. Atlanta defense lawyer Don Samuel argued before the Court and urged them to grant his client a new trial.

The Atlanta Journal Constitution has the story.

Sullivan's appeal is based primarily on his challenge to the search warrant used to seize evidence from his home. According to his defense lawyer, the search warrant contained material omissions and "half-truths" and should not have been signed by the magistrate judge. Apparently, a lot of the information in the warrant came from a confidential informant used by the FBI. According to the defense lawyer, the informant had multiple criminal convictions and had recently escaped from custody. Those facts were not presented to the judge when the warrant was signed. The defense lawyer claims that these omissions, among other things, made the warrant defective.

If the defense lawyer is right, then the magistrate judge should never have issued the warrant. The District Attorney's Office is arguing that the undisclosed facts are not material, and that there was sufficient probable cause for the warrant to issue. Of course, the DA's office is also stressing the seriousness of the crime, and the parents of the victim were in court for the arguments.

If the Court agrees with Sullivan's defense lawyer, then the case may be remanded for a new trial. It would go back to the same judge that tried the case the first time, but this time without the evidence seized pursuant to the challenged warrant.

Although murder cases are difficult to overturn on appeal, it does happen. In fact, our firm currently has a new trial motion pending in a murder case from Dekalb County. Considering the legal errors made by the trial judge in that case, we are hopeful that our client will be granted a new trial.

Considering the stakes involved (death or life with/without parole), criminal lawyers who try murder cases must be extremely vigilent to insure their clients get a fair trial. Sullivan's defense lawyer is one of Atlanta's best criminal lawyers. We'll see if he is successful in getting his client a new trial.

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Posted In: Georgia Criminal Law

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A recent article by my friend Joe Johnson in the Athens Banner Herald reports that the GBI is cutting services again. This time, the cuts go right to the heart of the GBI's mission - regional crime labs and forensic services.

For years, Georgia's elected officials have chopped away at the GBI, reducing the once well-regarded agency to an afterthought. That is a big mistake.

For the most part, the GBI is much better equipped to handle complicated criminal cases than local sheriffs and municipal police departments. Better investigations lead to better cases, and fewer innocent people being charged with crimes they did not commit. A state-wide professional police agency benefits everyone involved in the process - prosecutors, criminal defense lawyers, and, most importantly, defendants and crime victims.

I sincerely hope all Georgians will support professional law enforcement and ask their legislator to strengthen the GBI and adequately fund its mandate. Georgia deserves no less than the best when it comes to fighting crime and protecting the innocent.

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Is it possible for a police officer to smell raw marijuana when it's wrapped up and locked in a car trunk?

That was the question asked by David West, a Georgia criminal defense lawyer, in a drug case currently pending in Gordon County.

Mr. West's client was arrested and charged with drug crimes after law enforcement officers found 10 pounds of marijuana in the trunk of the car he was driving. The police believed they had probable cause to search the car after cat