Georgia Criminal Defense Lawyer Blog

Atlanta police are investigating a sexting incident involving students at The Lovett School. One eighth grade student has already been suspended and another has withdrawn.

The Atlanta Journal Constitution has the story.

The Child Exploitation Unit of the Atlanta Police Department has launched an investigation into the matter after learning that more Lovett School students may have sent or received inappropriate photos. Police have not yet said whether charges will be filed against those involved.

The term “sexting” most commonly refers to the sending and receiving of sexual images via cell phone. When the picture is of a person under the age of 18, the sender and receiver can be charged with a felony. This is true even when the photo in question is of the person sending the text message.

Individuals arrested for sexting are commonly charged with the crime of sexual exploitation of a child. If convicted, a person aged 17 years or older could face between five and 20 years in prison and would be forced to register as a sex offender. Those under 17 could also face tough penalties.

In cases where the underage person made the image, or was the person transmitting or receiving it, there may be constitutional protections that apply. This is a new area of law and our firm is working hard to make sure that kids are not prosecuted under unduly harsh sex offender laws for communications that occur exclusively between minors. There is a big difference between a 40 year old sexual predator who molests young children, and a teenage girl sending naked pictures of herself to her boyfriend.

Athens-Clarke County police claim that fake reports of crime are reaching epidemic levels. In response, authorities have announced that they will begin prosecuting anyone they believe to have invented a crime.

The Athens Banner-Herald has the story.

In one recent case, a UGA law student told police that she had been mugged on College Station Road after walking home from work one night. Police say that the story was false and that the student was only trying to gain sympathy from her husband. Several other high profile cases have also turned out to be nothing more than made-up stories.

The crackdown on false reporting is due largely to the fact that police claim to spend a great deal of resources investigating fake crimes. This includes interviewing witnesses, interrogating suspects and collecting evidence. Authorities are also worried that the fake crimes will give Athens an inflated crime rate and make some parts of the city appear to be more crime ridden than they actually are.

Under Georgia law, the false reporting of a crime is a misdemeanor and is punishable by one year in jail. Prosecutors in Athens have pledged to make sure that offenders actually serve jail time if they are convicted of the offense.

Unfortunately, false reports of crimes do happen. Many times, it will take an experienced defense lawyer to investigate the charges and convince the prosecutor that the alleged "victim" simply made the whole thing up. In many cases, a false arrest can lead to the loss of a job, the expense of significant attorney's fees, public humiliation, and possible jail time.

We hope that the police in Athens, and elsewhere in Georgia, remain diligent for false reports of crimes. If they do a thorough job of investigating these claims, some wrongful arrests could be avoided.

Gwinnett police have charged Lori Reineke, 48, with homicide by vehicle for striking and killing a pedestrian with her vehicle while allegedly texting. This is the first case in Gwinnett County where authorities have charged a driver with homicide by vehicle for texting.

The Atlanta Journal Constitution has the story.

Reineke was driving her Ford Edge through an intersection on Sugarloaf Parkway when she struck and killed 48-year-old James Eaton III. The accident occurred around 8 p.m. on October 30 during dark and rainy conditions. Police reports indicate that Eaton stepped into the crosswalk while Reineke had a green light. Reineke was not speeding or violating any other traffic laws.

Gwinnett police arrested Reineke on the notion that the outcome may have been different had she not been texting. Reineke’s defense attorney, Larry Delan, has publicly stated that his client was not texting at the time of the accident. Delan also believes that authorities are using Reineke as a test case in hopes of expanding vehicular homicide prosecutions. Currently, texting while driving is not a crime in Georgia although proposed legislation may change that in the near future.

Under Georgia law, homicide by vehicle is generally punished as a misdemeanor when a minor traffic violation results in the death of a person. However, the offense can be prosecuted as a felony if the driver was driving recklessly, under the influence of drugs or alcohol, fleeing a police officer, involved in a hit and run or failed to stop for a school bus.

Our criminal defense attorneys have successfully resolved several vehicular homicide cases. One of the most powerful defenses to a homicide by vehicle charge is to show that the driver’s conduct did not cause the death. As in this case, there are many times when the deceased’s own actions largely contributed to the death. Another powerful defense is to argue that the driver did not intend the act which resulted in the death. A good criminal defense attorney will work with law enforcement and prosecutors to show that his client is not criminally liable. Early intervention can often lead to dismissed or reduced charges.

On Monday, a DeKalb County judge declared a mistrial in the case of a Dunwoody woman accused of shooting and killing her wealthy husband. The mistrial was handed down after jurors became deadlocked as to whether the woman acted in self-defense.

The Atlanta Journal Constitution has the story.

The week-long trial forced jurors to answer whether Lona Scott, 47, shot her husband six times to protect herself or whether she was after his millions of dollars. After 20 hours of deliberation, the jury, which consisted of four women and eight men, were evenly divided as to guilt. It was at that time that Superior Court Judge Cynthia Brown issued the mistrial.

Lona’s husband, Ralph C. “Cliff” Scott, 42, was described as a muscular man who ran a successful trucking company. Lona and Ralph Scott wedded in 2000 and endured a turbulent marriage with alleged past acts of violence and cheating.

During trial, jurors heard Lona Scott explain how her husband, Ralph C. “Cliff” Scott, became angered late one night in March of 2008 after she refused to have sex with him or talk about the divorce petition she had filed. She then described to jurors the scene that took place in the couple’s master bedroom. Cliff Scott apparently pulled Lona’s hair and put her in a choke-hold. He only released her after she told him that he was going to wake their 5 year old daughter. Lona then retrieved a .22 caliber hand gun from a desk in hopes of leaving the home safely.

However, Cliff Scott refused to let her leave and told her that he could kill her since she had a gun. He then allegedly charged after Lona at which time she fired a single bullet into his chest. Lona claims that Cliff charged her again causing her to pull the trigger five more times. Three of those bullets struck Cliff in the elbows and forehead. The other two lodged in his back as he turned and fell to the floor. Lona then called 911.

Defense attorney Brian Steel, of the Steel Law Firm in Atlanta, asked Lona Scott why she did it. She told jurors, “Because he was going to kill me.” However, Assistant District Attorney John Melvin believes that money was the true motive. Melvin argued to jurors that Lona was after Cliff Scott’s five million dollar estate. Melvin explained that Lona became enraged after learning that Cliff was in the process of transferring his money into a secretive account in the Bahamas where he planned to live.

The District Attorney’s Office expects to retry the case soon.

Georgia’s governor and members of the Georgia Senate have introduced legislation that would create a special unit designed to combat mortgage fraud.

The Atlanta Journal Constitution has the story.

Currently, Georgia ranks fourth in the nation for mortgage fraud. It is estimated that mortgage fraud referrals have cost Georgia around $145 million from 2005 to 2008. The special law enforcement unit that has been proposed would investigate crimes involving mortgage fraud throughout the state. Legislators hope that the unit will act as a deterrent and result in more prosecutions. If the unit is created, it will draw resources from the Georgia Bureau of Investigation as well as the Department of Banking and Finance.

Under Georgia’s Residential Mortgage Fraud Act, a person convicted of mortgage fraud may receive a one to ten year prison sentence as well as a $5,000 fine. If a person engages in a pattern of mortgage fraud, he or she could face a three to 20 year sentence and a $100,000 fine.

Our criminal defense attorneys have successfully represented numerous clients charged with mortgage fraud, including brokers, attorneys, investors, agents, appraisers and "straw-buyers.". A key element of mortgage fraud is knowledge. In other words, the state must be able to prove that a person knowingly engaged in the alleged fraud. A good criminal defense attorney will intervene early to work with prosecutors and law enforcement to show that his client had no knowledge of any alleged fraud or illegal activities. This early intervention can often lead to dismissed or reduced charges well before trial. Our lawyers have been able to get several mortgage fraud charges dismissed or successful resolved well before an indictment or trial.

The Bibb County District Attorney’s Office is dismissing an undetermined number of cases after a sheriff’s investigator was caught committing perjury. Most of the cases that will be dismissed involve allegations of child molestation.

The Macon Telegraph has the story.

The investigator, Allie Seckinger, testified during a suppression hearing that she did not coerce a suspect into making a statement. Specifically, Seckinger testified that she only told the suspect that she should think about her child’s welfare, and that she never threatened to have DFACS take the suspect’s child from her for refusal to admit to an armed robbery.

However, an audio tape surfaced two days later which revealed that Seckinger’s testimony was a lie, and the statement was eventually suppressed. The DA’s Office is also throwing out cases in which Seckinger was an essential witness and contemplating charges against Seckinger herself. Many of the cases that will be thrown out deal with sex crimes.

Seckinger is currently on paid administrative leave. If District Attorney Howard Simms chooses to prosecute Seckinger, she could face 10 years in prison.

It is an unfortunate reality that some members of the law enforcement community are willing to lie under oath. Perjury is particularly damaging in matters which lack physical and documentary evidence as is often the case with coerced confessions and false child molestation allegations.

Athens-Clarke County police raided Fantasy World, an adult entertainment club on Baxter Street, after receiving complaints of prostitution and drug use. The raid resulted in the arrests of two employees, and police expect more arrests to follow.

The Athens Banner-Herald has the story.

Police conducted the raid on Wednesday after investigating the club for months. During the investigation, undercover officers posed as club customers and allege that the club was in fact engaged in prostitution. The club’s manager, Robert Barry Dillard, was arrested for keeping a place of prostitution. A 20-year-old employee was also arrested for possessing amphetamines, marijuana and sedatives.

Authorities are also expanding their investigation to include club ownership and management. The club’s owner, Emanuel Isaacs, has been in the adult entertainment business for decades and has owned clubs in both Athens and Atlanta. Isaacs, who is now 85, was convicted in 1982 of bombing a competing Atlanta strip club. He also owned a Fantasy World located in Winder which shut down four years ago after three people were charged with prostitution.

The penalties can be severe. Under Georgia law, the offense of keeping a place of prostitution is a misdemeanor of a high and aggravated nature which can carry a year in jail. Authorities may also elect to charge management and ownership under Georgia’s racketeering statute (commonly known as RICO). Racketeering carries a 5 to 20 year sentence along with a possible $25,000 fine.

Barrow County High School student Leland Martin, 18, died of suffocation in 2007 after passing out during a prom party. Authorities say alcohol contributed to the death. On Thursday, a Barrow County jury acquitted Anthony Perry, who was 19 at the time, of playing a role in Martin’s death.

The Athens Banner-Herald has the story.

The Barrow County District Attorney’s Office had charged Perry with reckless conduct, since the party at which Martin died occurred in Perry’s home. At trial, it was revealed that Martin’s body was not found until the following morning even though 20 to 40 people were at the prom party. Perry's defense attorney, Christine Koehler, did a fantastic job defending her client.

The trial came on the heels of a plea deal prosecutors made with Barbara Ann Michael, Perry’s step-mother. Michael was accused of allowing her teenage children to throw parties at her home. Prosecutors alleged that Michael was aware that alcohol was being served at the prom party even though she was not at home during the party and did not provide the alcohol. She ended up pleading to eight misdemeanors.

Our firm was hired last year to represent a Savannah man accused of being a co-conspirator in a major drug trafficking case. The alleged drug conspiracy involved 10 kilograms of cocaine that was being transported by van from Atlanta to Savannah.

After we successfully suppressed an illegal wiretap and our client's statements, prosecutors agreed to drop all charges against our client. The dismissal was filed in open court yesterday.

The case began a couple of years ago when the Chatham Counter Narcotics Team placed a wiretap on an individual accused of trafficking cocaine from Atlanta to Savannah. Based on the tap and other information, the Chatham County Sheriff’s Department pulled over a van being driven by a different individual in November 2008. Inside the van, police found 10 kilos of cocaine. Police then began arresting individuals they believed they heard on the wire tap.

Our client was one of those individuals. Police interrogated our client without ever reading him his Miranda warnings in the hopes of eliciting incriminating statements. He was then indicted for conspiracy to distribute a controlled substance and trafficking in cocaine. The trafficking in cocaine charge alone carries a mandatory minimum sentence of 25 years in prison.

We fought and won a motion to suppress the statements our client made to police during his interrogation. Under Georgia and federal law, only voluntary statements may be used against a defendant in a criminal trial. For a statement during a custodial interrogation to be voluntary, police must first give the defendant his Miranda warnings. In this case, such a warning was not given, and as a result, our client’s statements were suppressed.

Along with a Savannah criminal lawyer who represented a co-defendant, we were also able to suppress all phone conversations recorded on the wiretap.

With the wiretap and statements suppressed, the state had no evidence which linked our client to the 10 kilos of cocaine, other than the fact that our client may have known some of the alleged co-conspirators.

We were fortunate to have been successful in our pretrial motions. Drug conspiracy cases like this one can lead to very long prison sentences if the person is convicted at trial, regardless of the person's alleged role in the conspiracy.

The District Attorney for Gwinnett County has impaneled a special grand jury to investigate four land purchases made by county officials. The reason for the investigation centers on the purchase price of the parcels of land and possible political connections between county commissioners and land developers.

The Atlanta Journal Constitution has the story.

Closed door hearings began last Friday. At the conclusion of the investigation, the special grand jury is expected to issue a report stating its findings as well as whether any individuals should be indicted. The judges who makeup the Superior Court of Gwinnett County will then vote as to whether any further actions should be taken.

At Friday’s hearing, Jock Connell, Phil Hoskins, Steve North and Chuck Warbington appeared before the panel. Connell, a former county administrator, worked for the county for 20 years before retiring in December. Hoskins, the director of community service, oversees the county’s park department. North heads the department which supervises land purchases, and Warbington is a representative on the county planning commission.

Gwinnett County saw a similar investigation 1989 when a former DA impaneled a special grand jury to look into allegations of price-fixing on school milk contracts.

Our criminal defense attorneys have successfully represented several local, state and federal officials who have been charged with corruption offenses. Public corruption cases can be quite difficult due to intense media exposure and political pressures. In addition to fighting any criminal charges, a good defense attorney will work to ensure that allegations of corruption do not lead to false media reports, discipline, or any other actions which could potentially damage one’s reputation.

Today, federal, state and local law enforcement officers spanned out across Georgia looking for individuals possessing child porn. The combined effort, known as Operation Restore Hope, has led to 25 arrests and 143 seized computers so far. The operation began at first light and is expected to run well into the night.

The Atlanta Journal Constitution has the story.

The operation consisted of 24 local police agencies which came from Gwinnett, DeKalb, Clayton, Cobb, Paulding, Hall and Cherokee counties. There were also federal agents from the FBI, ICE, the U.S. Marshal’s Service and the Secret Service. All in all, 40 teams were sent to addresses across the state in hopes of arresting 89 different people.

The background investigation began three months ago out of the GBI’s office in Cleveland. Police tracked various peer-to-peer networks which allow computer users to download videos and pictures containing child pornography from other users. Authorities then obtained search warrants for the addresses of these users. Tuesday’s sweeps were planned to coincide with the time that the users would be home in order to maximize the number of arrests. Some of those arrested will face prosecution in federal court.

Our criminal defense lawyers have successfully defended numerous clients accused of internet offenses including possession of child pornography. In our experience, these types of cases can be defended in many ways. For instance, it is not uncommon for law enforcement to charge people who were unaware that illegal videos or images were being stored on their computers. A good criminal defense attorney will show this by hiring a computer forensics expert to determine how the unlawful images got onto the computer. It is also not uncommon for the search warrant which allowed for the seizure of the computer to be deficient in some respect. This can be shown by conducting a thorough examination of the police investigation as well as examining the language of the search warrant itself.

Regardless of the defense, it is vital that an experienced criminal defense firm be retained as soon as possible after the arrest or search. Many times, a lawyer's early involvement in the case can make a huge difference in the outcome.

A Macon man accused of rape has asked a judge to dismiss the charge, since DNA evidence which linked him to the crime was destroyed by police in 2006. The man’s attorney argued for the charges to be dropped based on due process grounds.

The Macon Telegraph has the story.

John Paul Battle, 25, was originally sent to prison in 2008 after being convicted of aggravated assault. Last spring authorities found that his DNA matched the DNA police recovered from a rape victim in 2002. The rape victim then picked Battle out of a lineup. Authorities also took a fresh DNA sample from Battle and concluded that the DNA recovered from the victim matched Battle’s.

However, the DNA evidence which came from the 2002 rape was destroyed sometime in 2006. The evidence included swabs, a rape kit and a condom. Battle’s attorney, Allen Wheeler, filed a motion arguing that Battle has due process rights which includes having the original evidence tested by an independent expert. And since that evidence no longer exists, it cannot be independently tested. Wheeler also pointed to a 2003 Georgia law requiring police to preserve biological evidence relating to a defendant’s identity.

Prosecutors argue there is no constitutional violation, because police did not act in bad faith when they failed to preserve potentially exculpatory evidence. The detective in charge of the 2002 rape case marked the evidence to be destroyed in 2005. It is unknown as to why the detective marked the evidence, but Macon Police did state that the detective is no longer employed with the department.

Our criminal defense lawyers have handled numerous cases in which potentially beneficial evidence was destroyed or lost. Cases such as these can involve destroyed DNA samples, shattered cell phones, lost blood and urine specimens, and missing finger prints. In our experience, there is almost always an issue of whether a person’s rights were violated any time this type of evidence is destroyed or lost. If it can be shown that the evidence was destroyed in bad faith, the court may be forced to drop the case against the defendant.

Former Marietta High School teacher Christopher King, 36, was found not guilty a few weeks ago after prosecutors accused him of having a sexual relationship with a 17-year-old student. The trial ended when Cobb County Superior Court Judge Robert Flournoy granted Cobb County defense attorney Scott Semrau’s request for a directed verdict. Judge Flournoy agreed with Semrau that prosecutors failed to put forth any evidence that the alleged victim did not consent to the relationship.

The state’s evidence showed that King and the student began a relationship in the fall of 2008 after meeting through the school’s newspaper club for which King was the faculty advisor. The relationship soon turned sexual in nature and was eventually ended when school officials and the alleged victim’s father found out. The Cobb County District Attorney’s Office then filed the charge of sexual assault against a person in custody despite the fact that King and the alleged victim have consistently maintained that the relationship was mutual and consensual.

TrialClips covered the trial, along with other TV and print media. Here is a clip of Defense Attorney Semrau's opening statement from the TrialClips YouTube channel:

The decision to prosecute King swirled with controversy, since it followed a Georgia Supreme Court ruling which held that consent was a defense for teachers accused of sexually assaulting students 16 years or older. The Court’s decision was primarily based on Georgia’s age of consent law which allows anyone 16 years old or older to consent to sex. Thus, in such cases, a prosecutor must overcome a defendant’s defense of consent to win a conviction.

In King’s case, the state had to persuade the judge and jury that there was no consent without the alleged victim’s cooperation. During the state’s case, Assistant District Attorney Maurice Brown conducted a direct examination of Marietta High School’s principal, the detective who interviewed the alleged victim, and the father of the alleged victim. The testimony of these witnesses focused on the life of the alleged victim after the relationship was exposed such as embarrassment and having to change schools. However, the testimony failed to demonstrate a lack of consent. The state’s case was further hampered when it put the alleged victim on the stand. Instead of showing manipulation or force on King’s part, the alleged victim demonstrated that she was an independent young woman who consented to King’s advances and even pursued King.

The final witness for the state was an expert witness on child sexual abuse and the state’s last hope to show a lack of consent. On direct, the expert witness described how sexual predators will “groom” their prey through a process of buying gifts, giving compliments, and showing attention. Scott Semrau, King’s attorney, dismissed these acts as being what two consenting adults do when they engage in dating. Semrau also attacked the expert witness for her lack of knowledge and research on relationships between consenting adults.

Semrau then moved for a directed verdict citing a lack of evidence showing force or coercion. Judge Flournoy granted the motion but not before calling the relationship “gross” and “awful”. If King had been convicted, he would have faced between 10 to 30 years in prison and a lifetime on the state’s sex offender registry.

The Court of Appeals of Georgia recently upheld a trial court’s ruling which suppressed a defendant’s statement due to being involuntary. The court reasoned that the interviewing officer told that the defendant that he had committed theft by taking rather than armed robbery which induced the defendant to make the statement.

In State v. Klepper, the defendant, Klepper, was indicted for armed robbery in Fulton County. On the day in question, Klepper was suspected of committing an armed robbery in a store parking lot. An officer saw Klepper in his vehicle detained him. Officer Orrick, the investigative officer, then arrived at the scene with the alleged robbery victim. The alleged victim was able to positively identify Klepper as the perpetrator. Klepper and Orrick, who knew each other from college, began a personal conversation. During this conversation, Orrick brought up the issue of whether the alleged crime was theft by taking instead of armed robbery.

The original officer then drove Klepper to jail. During the ride, the officer stated that Orrick would probably charge Klepper with armed robbery. Klepper responded that Orrick told him it was theft by taking. Upon arriving at jail, Klepper wrote a handwritten statement in which he admitted to putting his fist under his shirt and telling the alleged victim to hand over his or her money. Klepper also wrote, “This is not an armed robbery, this is theft by taking.” On another page, Klepper had written but struck through “Please help me as much as [you] can.”

Klepper’s attorney moved to suppress these statements as involuntary and the trial court agreed even though Orrick denied telling Klepper that his actions constituted theft by taking. Upon appeal, the state argued that the proffered evidence only showed a hope of benefit that began in Klepper’s own head. However, it is well established law that for a statement to be admissible it must be made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear if injury. The state bears the burden of showing that a statement is voluntary by a preponderance of the evidence, and the trial court considers the totality of the circumstances when deciding if the statement is voluntary. On appeal, a trial court’s factual findings will not be disturbed unless clearly erroneous.

When the appellate court reviewed the evidence, it found that the trial court’s factual findings were supported by the evidence. Specifically, the court noted that 1.) Orrick admitted to starting the conversation concerning the lesser offense 2.) Klepper told the original officer of the conversation with Orrick and 3.) Klepper admitted to the lesser offense in his written statement. As a result, Klepper’s custodial statements were suppressed.

Our criminal defense lawyers have won numerous suppression hearings due to police officers or prosecutors making promises or threats to defendants accused of serious crimes. In our experience, there is almost always an issue of admissibility any time law enforcement garners a statements or confession through promises, manipulation, threats or physical abuse. A good criminal defense lawyer will challenge the admissibility of a confession or incriminating statement by conducting a thorough investigation including where and under what conditions the statements were given, the length of time the defendant was interrogated, what promises or threats were made, and whether the defendant was intoxicated or mentally impaired.

The Court of Appeals of Georgia recently reversed the denials of motions to dismiss based on speedy trial grounds in two different cases. The court found that the 35 and 36 month delays were both presumptively prejudicial and violated a defendant’s right to a speedy trial under the four-part balancing test.

In Davis v. State, the defendant, Davis, was arrested for kidnapping with bodily injury, burglary, armed robbery and aggravated assault in March of 2005. 17 months later he filed a motion for immediate trial or dismissal which the trial court denied. However, Davis was able to post bond at the time. Davis then filed a second motion in April 2008, which was denied, 35 months after the arrest.

In Ditman v. State, the defendant, Ditman, was arrested for child molestation on October 11, 2005 for molesting the three year old son of his girlfriend. On May 22, 2006, Ditman demanded a speedy trial. However, in July of that year, Ditman’s counsel asked for a continuance, since the state had failed to comply with discovery demands and he failed to locate the mother of the victim. Prosecutors then told defense counsel that if he dropped the speedy demand the discovery would be made available. Counsel did so to which Ditman wrote several letters in protest. Ditman’s counsel then withdrew from the case and he received a new attorney in May of 2007. In June of that year, nearly 36 months after arrest, Ditman’s counsel filed a motion for discharge and acquittal on speedy grounds which the trial court denied in October of 2008.

Under the law, the right to a speedy trial is violated if 1.) the length of delay is presumptively prejudicial and 2.) the Barker four-part balancing test weighs in favor of the defendant. The clock begins to tick, for purposes of the length of a delay, at the time of the arrest or when formal charges are brought. The law is also clear that any delay approaching a year raises a threshold presumption of prejudice. If a court finds this presumption, it will then engage in a four-part balancing test. This includes 1.) the length of delay; 2.) the reasons for delay; 3.) defendant’s assertion to the right to a speedy trial; and 4.) the prejudice to the defendant. No one factor is necessary or sufficient to give rise to a violation.

In Davis, the court found that 33 months of the 35 month delay was attributed to the state, and that the delay was attributed to a lack of diligence. While a deliberate delay weighs more heavily against the state, a lack of diligence also weighs against it. The court then noted that there were two long periods in which Davis failed to assert his right to a speedy trial which weighed against him. However, Davis was able to show prejudice, since two of the robbery victims had made exculpatory statements. The two were illegal aliens who could not pick Davis out of a photographic line up. In balancing these factors, the court found that the trial judge erred in not finding sufficient prejudice to support a speedy trial claim.

Similarly in Ditman, the court found the 36 month delay to be presumptively prejudicial. In its analysis under Barker, the court found that the state was slow to comply with discovery requests which caused the continuance, and that 23 of the 36 month delay was directly on the hands of the state. However, while Ditman did assert his right by filing a motion, he also withdrew that motion. Yet, the court also noted that 16 months elapsed between his motion for discharge and the trial court’s denial which meant his initial withdrawal could not be weighed heavily against him. The court further found that Ditman was prejudiced, since he could not find the victim’s mother who stated that her son had never mentioned any abusive acts and that she never saw any physical signs. The court ruled that these factors weighed in favor of Ditman, and that the trial court should have granted the motion for discharge and acquittal.

Our criminal defense lawyers have successfully won several speedy trial challenges. In our experience, it is not uncommon for prosecutors to drag out prosecutions in order to gain some advantage at trial or to simply keep a defendant in custody for a longer period of time. As in these cases, a long delay can severely impact a defendant’s case due to a greater chance of having to deal with missing witnesses or lost evidence. However, in some cases, it may be advantageous for a defendant to delay a trial especially if the defendant is out on bond or if the district attorney may lose interest in the case. An experienced criminal defense attorney will know when it is advantageous to bring a speedy trial claim and when it is simply better to allow a case to sit.

The Supreme Court of Georgia recently held that the state’s failure to disclose a co-defendant’s changed sentence from the plea agreement, which allowed the co-defendant to potentially reduce his sentence after testifying against the defendant, robbed the defendant of his right to impeach the co-defendant by showing a motivation to lie.

In State v. Gonnella, the defendant, Gonnella, was convicted of felony murder but acquitted of malice murder. On the night in question, Gonnella and his friend Evans drove to an apartment to buy marijuana from Williams. Williams stated that he had no marijuana, but that he had $500 to buy marijuana if Evans found a seller. Gonnella and Evans left, but then drove back at Gonnella’s request. While Evans waited in the car, Gonnella went into the apartment at which time Evans heard a gunshot. Gonnella later told Evans that Williams went for his gun and that a struggle ensued during which time the weapon was discharged. The two men then drove to Evans’ brother’s home where Gonnella stated that he had killed someone. Gonnella gave the brother his bloody shirt, and Evans later disposed of the gun in a wooded area. Evans eventually told police the location of the gun, and police were able to match the gun to the bullet pulled from Williams. Police also learned that the bullet was fired close to the skin and that it traveled downward into Williams’ head.

Evans and Gonnella were then indicted on three counts with Count One being malice murder. Before trial, Gonnella asked the court for an order forcing the state to reveal all agreements between the state and any of its witnesses. At the hearing, the state disclosed a plea agreement with Evans. Gonnella then simply asked the state to disclose any future plea agreements. When Evans took the stand, the state gave Gonnella a document entitled “Plea Agreement.” According to the agreement, Evans would plead guilty to voluntary manslaughter as to Count One and receive 20 years with 15 in prison. In exchange, Evans would testify against Gonnella at trial.

However, the state failed to provide a document entitled “Defendant’s Change of Plea.” In that document, Evans altered his plea from “not guilty” to “guilty” to voluntary manslaughter. On these forms, there is a sentence which reads: “In addition, the defendant waives any right to modification of the sentence to be imposed pursuant to this agreement, and agrees that he shall not seek modification of said sentence in the future.” However, this text was crossed out on Evan’s change of plea form. The lack of this text meant that Evans could ask for a better sentence for himself after testifying against Gonnella.

Under the U.S. Supreme Court case Brady v. Maryland, the state has a duty to reveal any agreement with a witness which concerns criminal charges against the witness. Failure to comply with Brady constitutes a due process violation. For a defendant to succeed on a Brady claim, he must show that the state possessed evidence helpful to the defendant, that the state suppressed the evidence, that the defendant did not have the evidence nor could he through reasonable diligence, and that a reasonable probability exists that the outcome would have been different had the state disclosed the evidence.

The Supreme Court of Georgia reasoned that being able to impeach the state’s primary witness is of great importance. In this case, the state denied Gonnella the ability to impeach Evans by demonstrating a motive to lie. The Court explained that if the state had disclosed the change, Gonnella would have had the opportunity to show that the state left open the possibility that Evans could receive a lighter sentence. Gonnella would have been able to argue that the state did this so that Evans would be motivated to testify in such a way as to ensure Gonnella’s conviction. Thus, the state denied favorable evidence that Gonnella could not have found by reasonable diligence. The Court also found that there is a reasonable probability that the outcome would have been different, since the jury acquitted Gonnella of malice murder and the other witness, Evans’ brother, also had a motive to lie which was to protect his brother.

Our criminal defense attorneys have defended numerous clients who have had co-defendants testify against them at trial. In our experience, it is not uncommon for a defendant to be denied full knowledge of deals or agreements that are made between the government and witnesses. It is also not uncommon for a witness or a co-defendant to lie in hopes of getting a better deal. A good criminal defense attorney will pressure the state by filing disclosure motions and conducting independent investigations to ensure that a jury knows of any deals that a witness has accepted and whether the witness is telling the truth about what happened. An independent investigation often consists of running background checks, interviewing other witnesses and persons who know the witness as well as reviewing police and court transcripts for inconsistent statements.

The manager of the Atlanta strip club Body Tap, Frederick Richardson, was arrested for manslaughter in connection with the death of A.J. Jewell in October. Richardson’s attorney asked the judge this week to dismiss the charge after an autopsy revealed that Richardson may not have been the primary actor in causing Jewell’s death

The Atlanta Journal Constitution has the story.

Jewell is best known for being the former fiancé of Kandi Buress, a member of the “Real Housewives of Atlanta”. Police say a fist fight between Jewell and Richardson broke out in the parking lot of Body Tap on October 2. Jewell died at a hospital several hours later which sparked Richardson’s arrest. The Fulton County Medical Examiner released an autopsy report last week which revealed that Jewell suffered from an uncommon sickle cell trait which was the principal cause of death. However, the medical examiner still classified Jewell’s death as a homicide.

Richardson’s attorney, Dennis Scheib, filed a motion on Monday for the voluntary manslaughter charge to be dropped. Scheib claims that Paul Howard, the Fulton County District Attorney, has lost objectivity in the matter since he refuses to acknowledge the medical examiner’s findings. Howard intends to verify the sickle cell trait finding by exhuming Jewell’s body and performing a second autopsy. His office has stated that the decision of whether to prosecute Richardson will depend on the second autopsy’s report. Richardson is currently out on bond pending Howard’s decision.

Our criminal defense lawyers have successfully represented numerous clients who have been accused of voluntary manslaughter. Voluntary manslaughter is similar to murder except that the defendant commits the act under an irresistible and sudden urge due to some provocation. As in this case, the charge is often levied against people who were involved in fights that resulted in a death. A good criminal defense attorney will conduct a thorough investigation into whether some medical condition or intoxication contributed to the death and whether the defendant was simply acting in self defense.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon, Madison and Savannah. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The Supreme Court of Georgia recently suppressed the confession of a murder suspect after finding the confession to be involuntary. In particular, evidence suggested that the suspect had been beaten by police, shocked with a Taser, stripped naked and denied medical attention before he confessed to the murder.

The Atlanta Journal Constitution has the story.

In State v. Lynch, the defendant, Lynch, was suspected of killing a man in DeKalb County and then driving the victim’s car to North Carolina. Officers in North Carolina spotted the car which resulted in a high speed police chase. Lynch was eventually taken into custody and later interviewed by detectives from DeKalb County which is when he confessed to the murder. However, before detectives from DeKalb County could interview Lynch and obtain the confession, Lynch claimed that he was assaulted and denied medical care.

At a pre-trial hearing to determine whether the confession was admissible, only Lynch and one detective from DeKalb testified. Lynch testified that he had been beaten, tasered, stripped of his clothes and denied medical attention until he gave a statement to police. Moreover, the detective who obtained the confession was impeached on the stand. The trial court ruled that a statement given to police under such circumstances was the product of duress and coercion and therefore involuntary and inadmissible. The Georgia Supreme Court upheld the ruling.

Under Georgia law, involuntary confessions or statements made by a defendant are not admissible at trial. For a statement to be admissible, it must be made freely and voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury. Furthermore, it is the state that must show that a confession is voluntary by a preponderance of the evidence. The trial court then makes a ruling based on the totality of the circumstances, and the trial court’s ruling will not be disturbed unless it was clearly erroneous.

The Supreme Court found that Lynch’s testimony and the fact that the detective was impeached on the stand supported the trial court’s ruling to suppress the confession. The Court further blasted the prosecution for not making a greater effort in determining what happened prior to the confession. Specifically, none of the North Carolina officers who arrested and detained Lynch ever testified as to what happened.

Our criminal lawyers have successfully won pretrial suppression hearings for many clients charged with serious crimes. As this case shows, statements made by suspects are often the product of promises, threats, manipulation or outright physical abuse. In our experience, there is almost always a question of whether such statements made to police are admissible at trial. A good criminal defense attorney will challenge the admissibility of a confession by investigating where and under what conditions the confession was given, how long the interrogation lasted, what promises were made, whether any forms of abuse were involved, whether the suspect was intoxicated or not in his or her right mind when the statement was made

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

On Friday, a Houston County jury decided that Mario Harris was not guilty of murdering Stephen Register outside a Warner Robins Buffalo’s in December of 2007. The defense argued that Harris was acting in self-defense when he stabbed and killed Register.

The Macon Telegraph has the story.

Harris was facing charges of malice murder, felony murder, possession of a knife during the commission of a crime, aggravated assault and manslaughter. The charges stemmed from an incident in which Harris unexpectedly met his half-sister and the man she was dating inside the restaurant. Moments later the boyfriend and two other men, including Register, charged Harris in the parking lot. Harris testified that he stabbed Register because he feared that the men were going to kill him. He also told jurors that he thought one of the men may have had a gun. Register received a single stab wound just below the chest and died six hours later at the hospital.

The jury deliberated for only 30 minutes before deciding to find Harris not guilty on all counts. The jury later told the attorneys that there was simply no evidence to prove that Harris was the initial aggressor. Under Georgia law, malice murder generally carries a sentence of imprisonment for life, or in the alternative, the prosecutor may choose to seek the death penalty. Frank Hogue was the defense lawyer and did an outstanding job representing his client.

Our criminal defense attorneys have won many acquittals and dismissals for clients charged with serious violent crimes including murder, aggravated assault and manslaughter. As seen in this case, murder and violent crime charges are often levied against people who were simply defending themselves or others. Under Georgia law, a successful self-defense claim will justify any death or harm that the defendant may have caused. To prove self-defense, a good criminal defense attorney will conduct an independent and in-depth investigation which may include interviewing all relevant witnesses, examining physical evidence and retaining qualified medical and psychological experts.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

On Sunday night, Chamblee police raided six businesses suspected of paying out cash to customers using video gaming machines. Police arrested 14 people on gambling charges and seized thousands of dollars in cash.

The Atlanta Journal Constitution has the story.

Under Georgia law, video gaming machines are legal, but businesses can only pay out store credit or prizes with a value of no more than $5. Paying out cash is illegal. Police say they raided the six businesses because an undercover officer obtained video of the businesses paying out cash the week before.

In total, the raids netted 74 machines, two guns and over $20,000 in cash. The machines were mainly “Triple 7” slots and video poker which took ones, fives, tens and even hundred dollar bills. Police have not yet opened the machines to count how much money is inside.

Of the 14 arrested, 12 are charged with felony commercial gambling. If convicted, they could face between one to five years in prison or fined up to $20,000, or both. The other two face misdemeanor gambling charges. Police said the raid was aimed at arresting the owners and managers of the businesses, and that most of the customers were released.

Our criminal defense attorneys have successfully defended several clients charged with commercial gambling and other gambling offenses. It is important to understand that a person charged with a gambling offense may also be subject to forfeiture laws. All property that is used to “facilitate” or that which is “derived from” the offense may be seized and forfeited. This may include anything from vehicles to money. A good criminal defense attorney will not only fight the gambling charges, but he will also vigorously fight to prevent the government’s taking of property by challenging any forfeiture proceedings.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

There is a growing trend among teenagers and children which involves texting naked images of oneself to others by the use of cell phones. Police call it "sexting," and it could lead to numerous minors being charged with possession of underage pornography.

The Columbus Georgia Ledger Enquirer has the story.

What many children and parents fail to understand is that possessing or distributing a naked image of a minor is illegal even if the receiver or sender is a minor. When it comes to juveniles and sexting, the Sex Crimes Unit of the Columbus Police reports that they mainly see cases involving sixth, seventh and eighth grade children. Police estimate that they only know of a small fraction of the actual cases, since most cases are handled by school officials and parents. Whether or not charges are filed in a particular case depends heavily on the ages of the sender and receiver, what exactly was sent and how much was sent.

When charges are filed, the consequences can be severe. One of the most common offenses that is charged for sexting is sexual exploitation of a child. This law makes it illegal for any person to knowingly possess or control any material which depicts a minor engaged in sexually explicit conduct. If convicted of this crime, a person 17 or older would face between five and 20 years in prison and have to register as a sex offender. Minors may also face stiff penalties in juvenile court.

Our criminal defense attorneys have successfully defended numerous clients charged with possessing child pornography after their computers or cell phones were seized by police. As this story shows, there are many times that a person may not realize he or she is breaking the law, or a person may not be aware that such images are on their computer or cell phone. Regardless of the circumstances, a good criminal defense attorney will analyze every element of the police investigation and resulting arrest to determine if the images were lawfully seized by means of a properly executed warrant or by the defendant’s consent. If the computer or cell phone was illegally seized, the images found on them must generally be suppressed.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

On Tuesday, a DeKalb County jury acquitted a man of murdering a 2-year-old. The child was killed in early 2007 by a blow to the stomach that caused her internal organs to rupture.

The Atlanta Journal Constitution has the story.

Rodney Terrell Hood was arrested for the death Maya Johnson and charged with cruelty to children, aggravated assault, felony murder and malice murder. Hood had been living with Maya’s mother for a few months in an apartment. Hood’s three children who ranged in age from 3 to 5 also lived in the apartment. On the night Maya was killed, her mother had gone out for the evening and left Hood in charge of the kids. Sometime while she was out, Maya sustained a blow to the abdomen which nearly caused her organs to explode.

Hood’s attorney, Corinne M. Mull, argued that one of the other children caused the fatal blow and not Hood. Mull produced evidence that one of the boys was removed from a day care for kicking a child in the head. Another boy was taken off a bus for kicking a child in the face. Most importantly, Mull showed that one child had previously jumped off a piece of furniture and landed on Maya’s abdomen. That incident scarred her pancreas. Mull argued that whichever child caused the scarred pancreas was also the child that caused her death.

The prosecution had Maya’s mother testify that Hood fled the morning after Maya died. However, the defense countered the mother’s testimony by discrediting her. Mull showed that the mother failed to protect Maya from previous abuse, and that Maya lost custody of the three other children. The prosecution even admitted that she was not a very good mother. After the verdict was read, the prosecution still maintained that there was no evidence to support the claim that one of the three children killed Maya.

Our criminal defense attorneys have won numerous acquittals for clients who have been charged with serious violent crimes. In murder cases, a good defense lawyer will track down, interview, obtain criminal histories and employ the help of investigators and experts when investigating the backgrounds of all parties involved. Such diligence can often lead to a dismissal or acquittal, as it did in this case.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

Frederick Richardson faced a magistrate judge this week for allegedly killing Ashley “A.J.” Jewell. Jewell was the former fiancé of Kandi Burruss who is the newest member of The Real Housewives of Atlanta. He reportedly died several hours after fighting Richardson in the parking lot of an Atlanta strip club.

The Atlanta Journal Constitution has the story.

On Tuesday, Magistrate Sylvia McCoy ordered that Richardson be held without bond until his next court appearance on October 20 due to the nature of the crime. Richardson’s attorney, Dennis Scheib, argued that the charge of voluntary manslaughter should be dismissed, since the medical examiner has yet to determine a cause of death. Police believe the two men got into a disagreement on Friday over a business decision at the strip club, Body Tap, which then escalated into a fight in the parking lot. Jewell died several hours later at Piedmont Hospital. Richardson sustained a broken finger.

Richardson had been the general manager at the club since May, and Jewell was seeking to buy an interest in the club. Scheib believes that Jewell started the original argument, and that sometime prior to the fight Jewell had brandished a handgun and pulled the slide back in front of Richardson while in Richardson’s office. Scheib also believes that later in the day Jewell started the fight in the parking lot, and that after the fight was over, Jewell walked away under his own power. While police believe the parking lot fight led to the death of Jewell, Scheib maintains that no one knows what killed him.

Our criminal defense attorneys have successfully defended many clients who have been charged with voluntary manslaughter. Voluntary manslaughter is essentially several of the same elements as a murder charge, except that the defendant acts under a sudden and irresistible passion as the result of some provocation. In many voluntary manslaughter cases, a good criminal defense attorney will argue that the defendant acted in self-defense of himself or others. Under Georgia law, a successful self-defense claim justifies a death that may have occurred as the result of the defendant’s actions.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The Court of Appeals of Georgia recently had to determine if a suspect could be briefly detained where the facts showed that he was driving slowly and looking into the woods of an area where an alleged car thief was hiding. The court held that on these facts alone a person could not be detained.

In Thomas v. State, the defendant, Thomas, was convicted of possession of methamphetamine, possession of a firearm during a crime, and obstructing a police officer. The facts showed that a man by the name of Morris stole a car and abandoned it at a house on Penland Road in Walton County. Police believed that Morris then went to hide in the nearby woods.

An officer saw Thomas in his truck driving very slowly along the same road while looking into the woods as if trying to find someone. Thomas apparently stopped and continued driving very slowly several times. The officer ran Thomas’ tags and discovered that Thomas lived near Morris. This led to the officer stopping Thomas’ truck. While approaching Thomas, the officer saw a cell phone in Thomas’ hands and took the phone after Thomas refused to hand it over. The officer searched the call history and saw Morris’ number. Thomas explained that he was looking for pulp wooders. The officer then asked Thomas to get out of the truck so that the officer could take a picture of Thomas, but Thomas refused. As a result, the officer arrested Thomas for obstruction. A gun was found in the truck, and meth was later found on Thomas at the jail.

The encounter between Thomas and the officer was a second tier encounter. This is where an officer may briefly detain a suspect if the officer has a particularized and objective basis for suspecting that a person is involved in criminal activity. Here, the court reasoned that Thomas had not broken any traffic laws, presented a valid license, and explained that he was looking for pulp wooders. Thus, the court held that his arrest for refusing to get out of the truck to be photographed was illegal. Moreover, the evidence found after the arrest should have been suppressed.

Our criminal defense lawyers have also won many drug and weapons cases due to police officers executing illegal stops of persons and vehicles. In our experience, there is almost always a question of whether a stop was lawfully conducted any time drugs or weapons are found on a person or in a vehicle. To challenge a stop that reveals contraband, a criminal defense attorney must be able to argue that the officer had no legal reason to detain or arrest the person and that consent was not given. An experienced criminal attorney will do this by conducting a battery of assessments which may include reviewing police and witness statements, obtaining police video recordings, and analyzing any form of technology which led to the stop such as radar, laser, sensors, taps or dog sniffs.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The Court of Appeals of Georgia recently ruled that an eight year delay between the time of a defendant’s arrest date and trial date was presumptively prejudicial. The court went on to find that the state failed to rebut this presumption, and upheld the trial court’s dismissal of charges based on the right to a speedy trial.

In State v. Porter, the defendant, Porter, was arrested for allegedly molesting his child in 2000. He was indicted in 2001 and released on bond. New allegations arose in 2004 that he had molested his other child, and the trial judge issued a bench warrant for his arrest in 2005 for failing to appear on those charges. He was arrested in 2006 and a second indictment was issued against him for the new allegations. In 2006, the state moved to set a trial date for both cases. In 2008, the trial judge recused herself, and the case was transferred and set for trial in December 2008. The defendant then moved the court twice for continuances followed by a motion to dismiss or plea in bar for violation of his right to a speedy trial. The trial judge agreed and dismissed the 2001 charges. The state appealed the ruling.

The Sixth Amendment and the Georgia Constitution promise criminal defendant’s the right to a speedy trial. The courts use a two part test to determine if a violation of this right has taken place. First, the court will look to see if the time between arrest and trial is presumptively prejudicial. Here, eight years had passed from arrest to trial, and the court found this to be presumptively prejudicial. Second, the court will look to see if the delay was uncommonly long, who was responsible for the delay, the timeliness of the defendant’s assertion of his right to a speedy trial, and prejudice to the defendant. The court found that nearly 7 years of the delay was the government’s fault, and that the state failed to rebut the actual prejudice suffered by Porter. The court found this to be true even though Porter didn’t raise his right to a speedy trial until 2009.

Our criminal defense attorneys have also won dismissals in numerous child molestation cases in many parts of Georgia. It is important to understand that a conviction for child molestation can severely impact the rest of a person’s life through long periods of incarceration and having to register as a sex offender once released. Hiring an experienced criminal defense attorney early on is often critical to winning these cases, since an investigation into a molestation case is multifaceted. Among the many steps in an investigation, a criminal defense attorney will look for inconsistencies in the statements made by the alleged victim, hire medical or psychological experts to give testimony on what events took place, and examine the context of each case in order to determine if the child was coerced by a third party.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The Court of Appeals of Georgia recently held that a traffic stop is improper where the suspect simply parks in front of a residence where criminal activity has taken place.

In Pritchard v. State, the defendant, Pritchard, was convicted of a single count of possession of methamphetamine. On the day of Pritchard’s arrest, an unidentified person called the Newton County Sheriff’s Department to report suspicious vehicles around a residence that the police had previously identified as a “drug house.” Upon arriving, the deputy was flagged down by the caller who stated that a truck and a Camry had just pulled out of the residence. As the deputy approached the Camry, Pritchard, the driver, pulled into another driveway. A different deputy then went to converse with Pritchard and discovered that she did not live there. The deputy then instructed Pritchard to pull out of the driveway. The deputy later testified that the driver was “stopped” and not free to leave at this point. As the deputy was speaking to Pritchard, he saw a clear plastic baggie in the middle console which later tested positive for methamphetamine and subsequently led to her conviction.

The Court of Appeals noted that a police officer must have a particularized and objective basis for suspecting a person of criminal activity in order to make an investigatory stop. Furthermore, the Supreme Court of Georgia has held that an officer lacks a reasonable and articulable suspicion necessary to stop a person who is driving near or parking near a location where crimes have been committed. Here, the only evidence to justify a traffic stop was that Pritchard’s vehicle was in front of a “drug house.” Thus, the traffic stop which led to the methamphetamine was a violation of Pritchard’s Fourth Amendment rights which required her conviction to be reversed.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The DeKalb County Recorder’s Court was plagued by a ticket scam earlier this year which led to the indictments of three employees and five other individuals. A grand jury recently concluded that the court is haunted by lax oversight and leadership problems which continue to make it vulnerable to fraud.

The Atlanta Journal Constitution has the story.

The DeKalb County Recorder’s Court handles traffic tickets and misdemeanor crimes. In 2008, a review of the court found that millions of dollars in fines were never paid to the court. Three employees were then indicted this year in an alleged ticket-fixing scam. One of those employees pleaded guilty last week to violating the Georgia Racketeer Influenced and Corrupt Organizations Act and received a 12 month sentence.

A grand jury was empaneled during July and August to review the court’s operations and oversight. It heard testimony from various officials including Chief Judge R. Joy Walker who is the head of the DeKalb County Recorder’s Court. The grand jury found that there was no oversight at the time of the scam, and that Judge Walker took no action even after learning of the scam.

Judge Walker disputes the findings and claims that action was taken. She believes that court workers would carry out the fraud by telling judges that police officers had reduced tickets from fines to warnings. The workers would then charge fees for dismissing the tickets. Walker claims that upon learning of the scam she created a new policy in which an officer would have to show up in court or put a request in writing in order to downgrade a ticket from a fine to a warning.

DeKalb County CEO Burrell Ellis stated that the grand jury’s findings confirmed prior suspicions, and that the findings justify an audit of the court. The grand jury also recommended several changes including more officers to enforce warrants and an improved computer system to monitor cases.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The Court of Appeals of Georgia recently ruled that a suspect who walks away from police in a known drug area and appears nervous does not form enough of a particularized suspicion necessary to detain or seize the suspect.

In Walker v. State, the defendant, Walker, was convicted by a jury of possession of cocaine and two counts of misdemeanor obstruction of an officer. During the daylight hours of March 27, 2007, four Covington police officers were driving through a high-drug area in an unmarked car. The area received ongoing complaints about drug activity, but the police had not received any complaints on this particular day. They came upon four men, including Walker, standing in the street, and as the car came to a stop, the four men began walking out of the street and into a yard. An officer got out of the vehicle and told the men: “hey, hold on guys, come here, come here.” Walker complied. The officer noted that Walker was very nervous and patted Walker down for weapons but found none. The officer then asked if he could search Walker. Walker responded that the officer had already searched him. The officer explained that, “a search is where I go inside pockets. . . do you have a problem with me doing that.” Walker consented. In addition to checking every pocket, the officer pulled Walker’s pants out from his stomach and found a small bag in the crotch area. Walker attempted to pull away but was tackled and police ultimately used a taser gun on him. Cocaine was found in the small bag.

The appellate court determined that the stop made by the officers was a Terry stop. During a Terry stop, an officer may only detain a person briefly if he has a particularized and objective basis for suspecting that the suspect is involved in criminal activity. Yet, the officer here could not articulate a particularized basis for suspecting Walker of criminal activity, since nervousness and walking away are not enough to detain a suspect for purposes of a Terry stop. Thus, the detention was illegal. Furthermore, the search would have been invalid even if Walker had not been illegally detained, because a search in this case would only be legal if Walker had consented to it. However, he only consented to his pockets being searched and not his crotch area. Consequently, the search was illegal and the cocaine should have been suppressed. The court reversed Walker’s conviction as a result.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The former chairman of the Crawford County Commission, Harry Spillers, was indicted in 2005 for false swearing of which he was ultimately convicted and removed from office. However, the Court of Appeals of Georgia reversed Spillers’ conviction for false swearing last week.

The Macon Telegraph has the story.

The conviction and controversy centered on whether Spillers knowingly lied in 2004 on a form which he was required to fill out in order to hold office in Georgia. Specifically, the form asked if he had ever been convicted of a felony. Spillers stated that he had not been convicted of a felony even though he pleaded nolo contendere to the charge of aggravated assault in 1986.

In last week’s ruling, the Court of Appeals found that he was never formally convicted of the aggravated assault charge, since he only pleaded nolo contendere. Thus, he was still eligible to hold office after pleading nolo contendere and did not lie in the 2004 statement.

Prosecutors are now considering whether to appeal the case. They may also bring additional charges against Spillers. Prosecutors say Spillers used county labor for personal use during his time as commissioner.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The Court of Appeals of Georgia has held that a conspirator’s statements made after his arrest which incriminate a co-conspirator are only admissible against the conspirator who made the statements, since such statements effectively end the conspiracy. The court also held that allowing statements from the interrogation of a non-testifying conspirator is a violation of the defendant’s right to confront those who testify against him.

In Verdree v. State, the defendant, Verdree, was convicted by a jury of armed robbery, kidnapping, aggravated assault, possession of a firearm during the commission of a crime, and use of a firearm by a convicted felon. Between November 1997 and March 1998, three Taco Bell restaurants were robbed. In each case, the robber would enter the targeted restaurant when it opened for business and threaten the employees with a silver handgun. The robber would then order an employee to open the safe and force the employees into a large refrigerator.

Victims from the first two robberies stated that they could see that the robber was missing a front tooth even though part of his face was covered with a stocking cap. Surveillance videotapes also revealed images of the robber’s face. Investigators also asked Verdree’s mother if the man in the pictures was Verdree or one of his brothers. The mother allegedly replied that she could tell it was Verdree, since the man in the photo had a broken tooth. At trial, the mother explained her statements by saying that she meant the man in the photo looked more like Verdree than her other children. Investigators then attained an arrest warrant for Verdree and went to his girlfriend’s home. Officers saw Verdree through the window along with his girlfriend and cousin. His cousin, Roberts, answered the door and told the officers that Verdree was not there. Upon searching the home, police found Verdree hiding along with a silver handgun which belonged to Roberts.

Police soon discovered that a car seen in the surveillance video belonged to Roberts, and he was subsequently arrested. During interrogation, Roberts explained that he didn’t know of the robbery before or after it occurred, but that he had driven Verdree to the specific Taco Bell on the morning in question. At trial, an investigator told the jury what Roberts had said during interrogation, and Verdree was subsequently convicted.

On appeal, Verdree argued that Roberts’ statements should not have been admissible at trial. The appellate court agreed. Under Georgia law, a conspirator’s post-arrest statements to police incriminating a co-conspirator terminate the conspiracy. As a result, the statements can only be used against the conspirator that made the statements. Furthermore, allowing Roberts’ testimony violated Verdree’s Sixth Amendment right to confront his accuser, since Verdree did not have an opportunity to cross-examine Roberts at trial. The court deemed this violation to be harmful error, because Roberts’ statements were the only pieces of undisputed evidence which placed Verdree at the Taco Bell on the morning of the final robbery. For these reasons, the appellate court ordered that Verdree receive a new trial. However, Verdree may be retried on all counts.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

A single-car wreck near Savannah Georgia left a 9-year-old boy dead this past weekend. The driver, James Malcolm Bell, has been charged with vehicular homicide, DUI, and reckless driving.

The Savannah Morning News has the story.

Police reported that Bell, 23, was driving a 1998 Corvette when it skidded off a road and crashed into one or more trees before becoming partly submerged. The vehicle, which only had two seats, was carrying four people at the time of the accident. None of the occupants were wearing seatbelts. The 9-year-old passenger was unresponsive at the scene and pronounced dead at Memorial University Medical center.

Bell turned himself into authorities earlier this week after being released from the hospital on Sunday evening.

His defense lawyer will likely attempt to convince a judge to release him on bond sometime this week. Under Georgia law, vehicular homicide in the first degree is a felony and carries with it a sentence of between three and 15 years. Homicide by vehicle in the second degree is a misdemeanor.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

On Tuesday, jurors in a Chatham County courtroom heard testimony of how a Savannah man urged the killing of a convenient store clerk during an armed robbery.

The Savannah Morning News has the story.

On December 23, 2005, Vipin Patel, 65, was gunned down while working at his Kwik Way Food Mart in Garden City during an apparent armed robbery. Prosecutors believe four men entered the convenient store with the intention of robbing it while a fifth man remained outside in a getaway car. After the shooting, the getaway car ran out of gas and the men had to run from the scene on foot.

It is alleged that the shooter, 23 year-old Hector Gibson, fired his gun at the urging of 35 year-old Harry Roosevelt Newkirk. It was Newkirk’s cousin, 23 year-old Anthony Gerald Haynes, who told jurors that Newkirk instructed Gibson to shoot Patel, and that Newkirk was one of the men who had planned the robbery. Prosecutors also offered evidence showing Newkirk carrying the store’s safe out the front door immediately following the shooting.

Newkirk’s defense attorney argued that Newkirk was by himself when the other men enticed him into joining. Defense counsel also alleged that prosecutors made deals with the co-defendants in exchange for testimony against Newkirk. In fact, Haynes was able to plead guilty to voluntary manslaughter in return for his testimony against Newkirk and the other men. Newkirk’s attorney also introduced evidence showing that Haynes had given conflicting statements about what had occurred.

Gibson, the shooter, was convicted of murder last year.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

Federal and state authorities are probing allegations of misconduct on the part of Cochran police officers. However, the FBI and GBI have released few details about the investigation.

The Macon Telegraph has the story here.

The GBI reported that the current accusations stem from a 2008 investigation in which two former Cochran police officers were charged with enticing a child and interfering with custody. The two officers were working part-time in Pineview at the time the charges arose.

Brent Powell, one of the officers, was convicted of violation of oath of office and received five years on probation. The other officer’s case is still pending.

The mayor of Cochran, Gene Towns, has commented that no police officers have been arrested or suspended so far.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The Court of Appeals of Georgia has held that a police officer may not testify as to statements made by a co-defendant which implicate the defendant when the statements are gathered during the course of the investigation, and the defendant does not have an opportunity to cross-examine the co-defendant. Furthermore, the failure of defense counsel to object to such testimony constitutes deficient counsel.

In Grindle v. State, the defendant, Grindle, was convicted by a jury of robbery, aggravated battery, and battery. The conviction stemmed from an incident in a Walmart parking lot in which a man snatched a woman’s purse. Upon snatching the purse, the purse became entangled in shopping bags and the woman fell to the ground breaking her arm and causing other injuries. The woman described the man as a white male who jumped inside a light colored vehicle with a driver and a passenger in the backseat. A bystander had heard of the robbery and saw what he believed to be the getaway car on the road later that night. The bystander saw a driver, a front seat passenger with a roundish tattoo on his upper arm, and a backseat passenger. All three were looking into a purse which was being held by the front seat passenger. The man was able to take down the license plate number.

Detectives traced the number to a car driven by a woman named Gonzalez who had been arrested in her car along with two other people, Grindle and another man named Plunkett, the following day for snatching a purse from a woman in a K-Mart parking lot. At the time of the arrest, Gonzalez was wearing a ring which had been taken from the Walmart victim’s purse, and inside her car, there was a pager and a day-timer which came from the same woman’s purse. In addition, Grindle had a roundish tattoo on his upper arm.

Grindle denied being present at the Walmart robbery and told police that it was Plunkett who stole the purse in the K-Mart lot. However, according to a detective at trial, Plunkett stated during an interrogation that Grindle had taken the purse in the Walmart lot. Plunkett did not testify at trial, and defense counsel did not object to the detective’s testimony.

On appeal, Grindle argued that his lawyer was ineffective for failing to object to the detective’s testimony. Under the Supreme Court case of Crawford v. Washington, the Constitution forbids out-of-court statements which are testimonial (made during the course of an investigation) and when the defendant cannot cross the person who made the statements. Here, Plunkett’s statements were made to police during the investigation and Plunkett was not available to testify at trial. Thus, Grindle’s attorney should have objected, and the failure to object was deficient. Furthermore, since Plunkett was the only one who identified Grindle as the Walmart purse snatcher, there is a reasonable probability that the outcome would have been different had defense counsel raised an objection. Thus, the court found that defense counsel was ineffective and that Grindle was entitled to a new trial.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The Court of Appeals of Georgia recently ruled that defense counsel is deficient when it fails to object to expert testimony which improperly bolsters a victim’s credibility. Specifically, a psychological expert may not testify that his evaluation of a victim “strongly suggests” sexual abuse as alleged, and the failure of defense counsel to object to such testimony constitutes deficient counsel.

In Pointer v. State, the defendant, Pointer, was charged with aggravated child molestation, child molestation, and incest in regards to his first daughter and two counts of child molestation in regards to his second daughter. A jury convicted him of child molestation and sexual battery against the second daughter. The jury found him not guilty on the other charges.

During trial, a clinical psychologist testified as an expert for the state. The expert told the jury that the second daughter had told him that Pointer had fondled her three separate times, and that he “he stuck his finger in her” during the last incident. In preparation for trial, the psychologist had displayed psychological testing cards for the daughter and assessed her responses. At trial, the prosecutor asked the expert his opinion of the girl’s responses. The expert replied that the responses were “consistent with her reports of being sexually abused by her father.” The prosecutor then asked for the expert’s overall impression. The expert replied that the result of the evaluation “strongly suggests that [the child] had been sexually abused as alleged.” The prosecutor then asked if the abuse was committed by Pointer. The expert agreed. Defense counsel only objected to the final question. The trial court sustained the objection by ruling that the expert could only state that the child was abused but the expert could not state who committed the act. However, defense counsel did not ask for curative instruction and none was given.

On appeal, Pointer argued that defense counsel should have objected to the “strongly suggests” language used by the expert, and that the failure to object constituted ineffective assistance of counsel. The appellate court agreed with Pointer. In order to obtain a reversal based on ineffective assistance of counsel, a defendant must show that trial counsel’s performance was deficient, and that but for the deficient performance there is a reasonable probability the outcome would have been different.

In regards to expert witnesses, they may not testify as to whether a child has been sexually abused unless jurors are not capable of drawing such an inference for themselves due to a lack of specialized skill or experience. This is because such testimony takes the ultimate issue away from the jury. However, it is generally okay for an expert to say that a victim’s psychological exam was consistent with sexual abuse. The court determined that the language “strongly suggests” falls in the middle of these two examples, but when taken into consideration with the “as alleged” language, the testimony was a factual conclusion which should have been left to the jury to decide. Thus, defense counsel was deficient for not objecting.

The court also held that but for the deficiency there is a reasonable probability that the outcome would have been different. This is mainly due to the fact that the evidence against Pointer was not overwhelming and was largely based on the credibility of the witnesses. In holding so, the court reversed Pointer’s conviction and ordered a new trial.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

A Bibb County judge has thrown out charges against a former pastor and a former banker due to a defective indictment. The two men were charged with defrauding church members out of $600,000.

The Macon Telegraph has the story.

Jimmy Collins, 42, was the pastor of God’s Worship Center in Macon. Steven Pittman, 42, was a bank officer for BB&T. Prosecutors say that the two men obtained loans and lines of credit for around 10 church members. Collins allegedly found and influenced members to assist in his church’s alcohol and drug rehabilitation program as well as the Car Vision car lot in which he was a partner. Furthermore, Collins is said to have told the church members that the church would repay the bank loans.

Authorities also believe that the two men used false financial information about the church members, provided the bank with forged documents, and misrepresented the true nature of the loans. Records indicate that the scam may have persisted for as many as six years between 2002 and 2008.

The indictment totaled 13 pages and included a violation of the RICO Act, bank fraud, residential mortgage fraud, forgery, and theft. However, Superior Court Judge Phillip Brown ruled that the indictment lacked enough specificity to allow Collins and Pittman to know what they must defend against. The District Attorney’s Office can either create a new indictment or appeal Judge Brown’s ruling.

In addition to criminal charges, members have filed lawsuits against the two men and BB&T. Since the initiation of the suits, BB&T has settled with the church members.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

A Baldwin County High School teacher was arrested in March 2008 for allegedly having sex with two students. The Baldwin County District Attorney’s Office has dismissed those charges in light of a recent Georgia Supreme Court case.

The Macon Telegraph has the story.

Alison Ivey was indicted on five counts of sexual assault in October of last year and was scheduled for trial in August. Prosecutors alleged that Ivey performed oral sex on a 17-year-old student off school property in late 2007. Authorities also believe that Ivey had intercourse with the student on two different occasions in her home in the spring of 2008. She was also accused of having intercourse with an 18-year-old student in her classroom and in her car off school property in late 2007. In addition to the charges, Ivey was placed on administrative leave after her arrest and later resigned as a teacher.

In the past, Ivey’s alleged actions were criminal under the law. In fact, it was generally criminal for a teacher to have relations with any student regardless of age. However, the Georgia Supreme Court ruled in June that consensual intercourse between a 16-year-old student and a teacher is not a crime. This is because the legal age of consent in Georgia is 16. Charges against Ivey were dropped when the Georgia Supreme Court refused to reconsider its June decision.

Ivey has always denied having sex with the students and is happy with the District Attorney’s decision according to her defense attorney, Macon criminal lawyer Frank Hogue.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The former principal and assistant principal of Atherton Elementary School in Decatur have been arrested on charges of cheating on student tests. A state investigation revealed last week that the two changed answers on student tests in an attempt to increase their school’s performance.

The Atlanta Journal Constitution has the story.

The principal, James Berry, had resigned last week during the investigation and was arrested at his home on Friday. He is currently being held without bond. The vice principal, Doretha Alexander, turned herself into police on Thursday after being reassigned by school district officials. She has since been released on $1,500 bond. Both face charges of altering public documents.

The two arrests come after the state audited test scores and discovered that four schools had higher scores which helped them avoid sanctions under No Child Left Behind. Specifically, the audit revealed that some answer sheets had as many as 40 erasures and that most had been changed from wrong to right. The average number of erasures on tests that were not altered was two.

The state school board must now decide whether to keep the scores of those four schools. If the state does not keep the scores or if a school does not meet the standards of No Child Left Behind, the school must offer extra tutoring and give parents the opportunity to send their kids to a better school.

Deerwood Academy, Parklane Elementary, and Burroughs-Molette Elementary are also being investigated for possible alterations.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

A Gwinnett County woman was arrested last Friday for restraining her 15-year-old son with handcuffs while trying to perform an exorcism. A family friend was also arrested with the mother.

The Atlanta Journal Constitution has the story.

Sandra Alfred, 46, has been charged with false imprisonment and cruelty to children for restraining her son against his will. The family friend, Larry Powell, was also charged with cruelty to children.

Police say that on June 10 one of the two called Lilburn Police to report an unruly juvenile. Upon investigating, police discovered that the boy had been restrained with handcuffs against his will. Police also learned that the boy had not been allowed to eat or drink for 12 hours at a time over a period of three days. Alfred and Powell apparently told police that they were trying to perform an exorcism on the boy. Police believe the mother may suffer from delusions.

The boy was treated at Gwinnett Medical Center for injuries and dehydration before being released. For now, Alfred and Powell are being held in jail and are scheduled to appear in court on June 26.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

On Monday, the Supreme Court of Georgia reversed the conviction of a high school teacher who had a sexual relationship with a 16-year-old student. The court overturned the conviction after determining that the teacher should have been allowed to argue that the student consented to the sexual activity.

The Atlanta Journal Constitution has the story.

Melissa Lee Chase, 28, was convicted of sexual assault of a person enrolled in school. Chase was a respected teacher and coach at Harlem High School which sits just outside of Augusta. However, she developed a romantic relationship with a 16-year-old female student between August and November of 2006. The student’s mom found a note in her daughter’s purse written by Chase. The mother called the police and Chase was arrested as a result. At Chase’s bench trial, the girl testified that she initiated the relationship and pushed the issue. However, Chase was not allowed to argue that the girl consented to the sexual acts. Under Georgia law, a person may be sentenced up to 30 years in prison but no less than 10 for having a sex with a student. Chase was sentenced to the minimum 10 years with five years on probation. She would also have to register as a sex offender.

On appeal, the appellate court agreed that consent cannot be a defense to having sex with a student. However, the Supreme Court of Georgia disagreed. The age of consent in Georgia is 16. This means it is generally not a crime to have sexual contact with anyone who is 16 or older. Yet, the Court noted that the crime Chase was convicted of would make it illegal for a teacher to have sex with a student of any age. The Court gave the hypothetical that under the law a 30 year old college professor could be sentenced to 30 years for having a sexual relationship with a 50 year old student.

The Court refused to adopt such a reading of the statute calling it “truly absurd and unjust.” Instead, the court found that the statute does not prohibit the defense of consent, and that sex with a 16-year-old is generally not a violation of the law. Thus, consent is a viable defense in such cases so long as the student has reached the age of consent.

Two justices, Carley and Thompson, argue that the Court’s ruling produced a disturbing result. They believe that the statute was enacted to protect students from exploitation by teachers, and that the Court’s ruling strips students of that protection.

Our firm has represented many people, including teachers, doctors and other professionals charged with this offense. The Court's ruling in this case will, hopefully, allow a more common sense application of this statute in the future.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

New York authorities are seeking to extradite Raoul Desmin Cooper, 38, of Cobb County for a murder which occurred 18 years ago. New York and Georgia authorities arrested Cooper Wednesday night in Cobb, but New York authorities returned home empty handed as Cooper fights extradition.

The Atlanta Journal Constitution has the story.

The 1991 case stems from the shooting death of a 17-year-old victim in New York City. Authorities say the teenager was shot in the face by two men who wanted his 8-ball jacket. At the time, 8-ball jackets were very popular and led to numerous robberies. In late 2007 or early 2008, detectives received tips on the cold case which led them to Cooper and another man who has already been charged.

Cooper moved to Georgia in 1998 to be closer to family and has held a job installing fiber optic cable. Since moving to Georgia, he has lived in eight different cities in the metro area although detectives say he was not trying to hide.

On Wednesday night, Cooper thought he was meeting police in a vacant parking lot in Mableton to discuss a child neglect case. Upon his arrival, he was immediately surrounded and arrested by police from New York City, Cobb County, and a SWAT team. Cooper now faces the charge of second degree murder in New York which carries a sentence of 25 years to life.

New York detectives attempted to bring Cooper back to New York on Friday but were unable to do so as Cooper fights extradition. The governors of New York and Georgia will now have to decide how to handle extradition. For the time being, Cooper remains in the Cobb County jail.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

A Twiggs County man stood trial earlier this week for allegedly holding a sheriff’s deputy at gunpoint in his home in 2007. A jury of his peers found him not guilty on all charges.

The Macon Telegraph has the story.

On the night of July 11, 2007, Twiggs County Sheriff’s Deputy Tony Watson went to the home of Harold Lee Hartel after a neighbor complained that Hartel had dumped watermelon rinds in a county ditch. In addition to Hartel, two women were also inside the home. When Watson arrived, prosecutors allege that Hartel pulled a handgun on Watson and forced him inside the home. Prosecutors believe that Hartel threatened to kill Watson, but that Watson was able to talk his way of the situation and eventually call for backup. The situation progressed into an hour long standoff after which time Hartel surrendered. As a result, Hartel was charged with aggravated assault, false imprisonment, and terroristic threats.

The jury returned a verdict of not guilty after deliberating for two and a half hours Wednesday and Thursday. Watson is still currently employed as a deputy, and Sheriff Darren Mitchum says he still stands behind Watson’s story.

Hartel’s criminal defense lawyer, Laura Hogue, was the winning attorney. She is a well-known Macon attorney, and a good friend of our firm. We congratulate her and her client on their impressive victory in a difficult jurisdiction.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

Georgia’s sex offender law has come under intense fire from critics, since a provision of the law requires some people who did not commit sex crimes to register as sex offenders. On Monday, the lawyer of a man who had to register for being convicted of false imprisonment moved a Fulton County judge to declare the provision as being unconstitutional.

The Atlanta Journal Constitution has the story.

When Jake Rainer was 18, he and some friends picked up a 17 year old girl with the intention of buying marijuana from her. After taking the marijuana, they drove her to a cul de sac and dropped her off without paying. As a result, Rainer pleaded guilty to robbery and false imprisonment and was sentenced to five years in prison and five years on probation. He also had to register as a sex offender.

Anyone convicted of kidnapping or false imprisonment of a minor in Georgia is required to register as a sex offender. Whether sexual conduct was involved is irrelevant. Aside from the stigma, registered sex offenders cannot live or work within 1,000 feet of anywhere children congregate. This includes schools, parks, and pools. Under Georgia law, Rainer cannot ask a judge to be removed from the registry until 10 years after the completion of the sentence. For Rainer, that will be in 2020.

Rainer’s Atlanta criminal attorney, Ann Marie Fitz, argued that the provision of the Georgia sex offender law making her client register should be held as unconstitutional, since Rainer never committed a sex crime. The Attorney General’s Office sympathized but simply argued that the law is the law. Fulton County Superior Court Judge Jerry Baxter also sympathized, and he is expected to make a ruling on the matter soon. However, Judge Baxter seemed inclined to uphold the law, and he suggested that Rainer should try to get his false imprisonment conviction stricken from his record.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

A fifth grader at Dunaire Elementary School in DeKalb County committed suicide last Thursday. Family members say it was because he was being bullied at school, and the DeKalb District Attorney’s Office has stated that it will look into the matter.

The Atlanta Journal Constitution has the story.

The 11 year old, Jaheem Herrera, apparently hung himself in his families home. His mother claims that she had complained to school officials about her son being bullied and taunted on previous occasions.

District Attorney Gwendolyn Keyes Fleming will speak with Jaheem’s parents and school officials before deciding if any criminal charges should be brought. If charges are brought, it would be the first case of its kind while Fleming has been the DA.

Charging school officials will be difficult considering the facts of this case, but there are several theories of possibile criminal and/or civil liability that could be explored.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

A Georgia criminal defense lawyer recently won a bank robbery trial in Floyd County for a Texas man accused of armed robbery and aggravated assault charges.

The Rome News Tribune has the story.

John Edinbyrd was accused by prosecutors of being the getaway driver in the robbery of a Citizens First Bank in Rome. Edinbyrd pleaded not guilty to the charges while his codefendant, Shawn Colson, pleaded guilty last week. Edinbyrd testified that he was the unwitting participant in the bank robbery, and that it was only after they had left the scene did he realize what the Colson had done.

Colson testified that Edinbyrd was the mastermind behind that robbery and that Edinbyrd forced him into committing the act. Edinbyrd claims that the two were in Rome looking at used cars, and while in Rome, Colson decided spontaneously to rob the bank.

The defense argued that Edinbyrd never once stepped inside the bank, and that the only thing linking him to the crime was Colson’s statements. The jury deliberated for three hours before returning the not guilty verdict.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

The Georgia Court of Appeals recently had to determine if circumstantial evidence which was consistent with both the prosecution’s story and the defendant’s story was enough to convict a defendant of burglary and criminal trespass. The court ruled that the evidence was insufficient to find the defendant guilty, since there was a reasonable alternative to the prosecution’s story.

In Parker v. State, the defendant, Parker, was convicted by a jury after he was accused of stealing a generator and a guitar from the victim’s barn. Parker argued he was simply dropping off a saw. Parker knew the victim through a friend which he stayed with. Five days before the incident Parker tried to sell a saw to the victim, but the victim did not want it. The victim then went out of town for a few days. When the victim returned, there was an answering machine message by Parker stating that he had left the saw in the victim’s barn; however, the victim never gave Parker permission to enter the barn. It was also then that the victim realized the generator and guitar were missing.

Parker then called the victim to ask if he could come by and talk about selling him the saw. The victim agreed and notified police that Parker would be coming. Soon after Parker arrived, officers arrested him. Three months later a friend of Parker’s told the victim that Parker had brought over a machine that was either a generator or an air compressor two weeks prior to the arrest, but that he never saw a guitar. Additionally, the friend Parker was staying with testified that she saw Parker at the victim’s house while the victim was out of town. Parker told her that he was dropping off a saw, and she never saw Parker take anything. Furthermore, the victim stated on cross that a friend of his entered his barn while he was away to retrieve a four-wheeler. This friend also saw Parker at the barn and described him as fidgety.

On appeal, Parker argued the circumstantial evidence was not enough for a conviction. The general rule is that for there to be a conviction based solely on circumstantial evidence, the facts must only be consistent with guilt and must exclude every other reasonable possibility. The state contended the evidence was direct, since witnesses saw Parker at the scene. However, the court disagreed by reasoning that the witnesses never saw Parker take anything. Furthermore, the court noted that proximity without additional evidence of participation in a crime cannot support a conviction. The only additional evidence offered was that the defendant was fidgety which the court dismissed as hearsay and of no value. Since there was another reasonable possibility aside from the state’s burglary story, a conviction of Parker was improper and the court reversed his convictions.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

A Coweta jury found Jason Veitch of Newman not guilty of felony murder, aggravated assault, and possession of a firearm while in the commission of a felony. The charges stem from an incident in June of last year in which Veitch shot a man to death near a house Veitch was building. Veitch was represented by Newnan attorneys Mike Kam and Ron Harwell.

The Newnan, Georgia Times-Herald has the story.

In the weeks leading up to the shooting, Veitch had reported theft of copper wire and pipe from homes he was building. The day before the shooting he realized four more homes had been hit with losses of up to $6,000 per house. He met with a Coweta deputy who told him he needed to catch the thieves in the act. Veitch claims the deputy told him to make a citizen’s arrest and hold the thieves until law enforcement could arrive. The deputy also allegedly told Veitch that he should not shoot or injure the thieves. That night Veitch waited in the woods next to his job site with a 12 gauge shotgun and .22 caliber pistol.

In the early morning, Veitch saw an unfamiliar van park in front of a house under construction. Three drywall workers that had been assigned to work on Veitch’s homes by a drywall company were inside the van. The workers claim that they were going to sleep in the van and start work in the morning instead of driving back to their home in Norcross. Veitch called 911 and reported a robbery. He then called his father-in-law who came to the scene before the police could arrive. Upon arriving, his father-in-law ordered the men to exit the van.

Veitch, fearing for his father-in-law’s safety, came out of the woods and fired a shot from the shotgun in the air. Two of the men got on the ground and put their hands behind their heads. The third man, Gaston Gonzalez, got on the ground but kept trying to get back up. Veitch claims he began poking Gonzalez with the shotgun to keep him down. Veitch says that the shotgun went off on the second poke which resulted in a wound to the back of the neck. Veitch then called 911 and asked for an ambulance; however, his father-in-law drove Gonzalez to Piedmont Newnan Hospital where he was pronounced dead.

Veitch claimed that he had never seen the van before and that he did not recognize the three men. Veitch also argued that workers never sleep on a job-site. The overall theme of the defense was that Veitch was acting within the law, since he feared there was a threat to himself and his father-in-law. The prosecution contended that Veitch was responsible for what happened, because he was the one who initiated the confrontation and the actions which led to the death of Gonzalez.

The owner of the drywall company that employed the three men felt the jury outcome would have been different if Gonzalez had been white or black.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

A program known as Internet Crimes Against Children leads to hundreds of arrests for online solicitation and child pornography in Georgia every year. A recent three-month sweep led to 23 arrests across the state.

The Savannah Morning News has the story.

The Georgia Bureau of Investigation heads up the federal program in Georgia which began in 2002. Across the state, there are nearly 100 affiliate police agencies involved in the program. In many cases, police use tactics similar to those seen on the popular television show “To Catch a Predator.” Agents pretending to be underage girls will engage in conversation with men in online chat rooms. Sometimes these conversations will turn sexual in nature and the men may ask to meet the underage girl for sex. When the men show up at the meeting spot, police will make the arrest.

There are about 700 such arrests every year in Georgia. Police maintain that there is no entrapment, since the officers only respond to whatever the men in the chat room initiate. Additionally, officers claim that it is always the men who urge a meeting.

Some of our clients, however, were entrapped and falsely charged. That's why it is vital to have retain a criminal defense lawyer with experience in this area if you are charged with this type of offense.

The GBI program also attempts to target anyone who possesses, distributes, or manufactures child pornography, and agents here are interconnected with law enforcement all over the nation. Tips flow into the GBI’s Atlanta office from all over the nation which are then forwarded to local police. Many times child pornography will be found on a computer in another state which came from Georgia. In some cases, they are able to trace where the pornography came from by using IP addresses to track down those who share child pornography online. When child pornography is suspected, officers will seize hard drives and search for any trace of illegal pornography.

Our firm has been extraordinarily successful in resolving these cases prior to trial so that our clients avoid prison time and, in some cases, even avoid prosecution. Our best results occur when we can get involved in the case early and review the computer forensics and alleged probable cause that led to the search.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

The Georgia Court of Appeals recently held that marijuana found in a vehicle after a citation was issued should be suppressed as the result of an illegal search. The court based this ruling on the conclusion that the encounter was not consensual, and there was no reasonable suspicion of criminal activity.

In State v. Felton, the defendant, Felton, was in the passenger seat of a vehicle which was pulled over because the driver was not wearing a seatbelt. The officer noticed that the driver’s hands were shaky and that he had eye tremors. The officer took the driver’s license and returned to his police cruiser where he filled out a citation. The officer noticed that the driver and Felton were turning around to look at the officer while he was issuing the citation. When the officer returned, he asked the driver to step out of the car. The officer handed the driver the citation, and then asked for consent to search the driver’s car. The driver agreed and the officer told Felton to exit the car. During the search of the vehicle, the officer found a potato chip bag which contained marijuana. Felton admitted that it was his and was then arrested for possession.

Felton argued that the marijuana should be suppressed, since the initial stop was unjustified and the officer exceeded the scope of the initial stop. The trial judge found that the stop had ended when the license and citation were given to the driver. The judge also found that there was not sufficient evidence to expand the stop at that time to request a search. The state appealed.

The Georgia Court of Appeals noted the general rule that an officer exceeds the scope of a traffic stop when he continues to detain the person after the conclusion of the stop and then interrogates or seeks to search without reasonable suspicion of criminal activity. The evidence showed no reasonable suspicion to search. It is also illegal to search at the end of a traffic stop when an encounter with a police officer is not consensual in the absence of reasonable suspicion. The court found that at no time did the encounter between the officer and the men become consensual, since it was not apparent that the men were free to leave. This is partially because the officer made the driver exit the vehicle before giving the citation and then the officer asked to search. Thus, the search was illegal, since it was not a consensual encounter nor did the officer have any reasonable suspicion to believe that criminal activity was afoot. As a result, evidence of the marijuana was suppressed.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

The Georgia Court of Appeals recently had to determine if a jury instruction which allowed a jury to use a witness’ level of certainty as a factor in determining the reliability of an identification of a defendant was harmless error. The court ruled that such an instruction was not harmless under the facts of the case.

In Robinson v. State, the defendant, Robinson, was accused of committing two separate robberies. On October 14, 1999, a victim walked from his home to his car to retrieve his cell phone. He was approached by Robinson and another man. Robinson put a gun to the man’s head while the accomplice searched the man. They then walked the man back into his home where his wife and son were. The wife was on a telephone in her bedroom telling someone what was happening. The man gave the accomplice keys to a safe and retrieved money from the safe. Robinson then took the bedroom phone along with a kitchen phone and left with the money. The accomplice allegedly had a shirt over his head the whole time.

On October 20,1999, a man was approached by two men as he neared his home. The men pointed guns at the victim and took $286 from him. The victim reported to police that prior to the robbery he had noticed two men on bicycles. A nearby officer saw two men on bicycles and searched them. The officer discovered $286 but no weapons. One of the men was Robinson who admitted to the October 20 robbery.

A week after the October 20 robbery, the victims of the first robbery recognized Robinson in a newspaper story about the second robbery. They told the police and Robinson was charged with the first robbery as a result. At trial for the first robbery, the wife identified Robinson. In addition, fingerprints that were lifted from the phones had not been fully processed, but police testified they were not Robinson’s. Nonetheless, Robinson was found guilty and sentenced to 20 years for burglary and kidnapping and life for the three robberies.

Robinson moved for a new trial based on improper jury charge on identity and newly discovered evidence. The trial judge had told that jury that in assessing the reliability of the witnesses’ identification they could consider the witness’ level of certainty. It was also discovered after trial that the finger prints on the phones were of another man already in jail for another armed robbery. That man claimed that it was not Robinson who robbed the couple, but that it was in fact he and another man.

The Court of Appeals recognized that the Georgia Supreme Court ruled that “level of certainty” instructions were not allowed in assessing the reliability of the identification. In determining if the error was harmless, the appellate court reasoned that the couple picked Robinson out of a newspaper one week after the crime had occurred. In addition, the couple did not provide police with a description of the assailant on the night of the robbery, and they did not pick Robinson out of any kind of lineup or photo array. The court concluded that they could not find such an instruction to be harmless, and thus, the conviction was reversed and a new trial was set.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

On Monday, a federal district court judge granted an injunction against a Georgia law which bans sex offenders from volunteering at churches. The injunction will prevent Georgia from enforcing the law.

The Atlanta Journal Constitution has the story.

District Judge Clarence Cooper held that allowing offenders to volunteer at churches will further public safety by providing support and stability. The plaintiffs offered testimony from several ministers who work with offenders about the healing power of volunteering at churches.

The ruling stems from a class-action suit on behalf of 16,000 sex offenders. The plaintiffs seek to overturn Georgia’s strict sex offender laws which have been described as the toughest in the country. Among the provisions, Georgia prohibits offenders from living or working within 1,000 feet of virtually anywhere children congregate. This includes schools, school bus stops, parks, pools, and churches. Plaintiffs also seek to permanently overturn the provision banning offenders from volunteering at churches. Monday’s ruling allowed this class-action suit to go forward.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

The passage of tough sex offender laws three years ago has been criticized by civil rights groups as being too harsh and too broad. Georgia lawmakers are now contemplating changing the toughest provisions of the sex offender laws to quell the debate.

The Macon Georgia Telegraph has the story.

The tougher laws against sex offenders were passed in 2006 in hopes of preventing the state from becoming a haven for sex offenders. Indeed, the laws passed in 2006 are said to be among the toughest in the nation and have sparked many court cases and controversy. One provision prevents offenders from living or working within 1,000 feet of almost anywhere children congregate. Another provision prevents offenders from volunteering in churches.

The current law also treats those convicted with crimes such as statutory rape, which deals with consensual relations, the same as those who are convicted of more serious crimes such as child molestation. Proposed changes would allow offenders convicted of statutory rape to petition the court to be removed from the state’s sex offender registry.

Other changes would allow the homeless to use a street on which they stay when registering instead of having to provide a home address so as to comply with the law. Offenders would also not be required to hand over internet passwords to officials under the revised law.

The changes in the law are supported by sheriff’s groups, defense attorneys, civil rights groups, and many lawmakers. We'll see.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

In one of our firm's recent appeals, the Georgia Supreme Court last week determined that a Georgia statute prohibiting medical doctors from issuing blank prescriptions was constitutional despite its vague language. The Court was sharply divided, and there were two separate dissenting opinions. (Our firm represents the doctor.)

In Raber v. State, Dr. Raber was charged with 33 counts of unlawfully issuing prescription forms which were signed but left blank. Dr. Raber, a small town doctor, left the pad of 33 prescriptions signed in blank with a nurse practitioner on his staff while he was out of town. The nurse took the pad to her residence. However, at the residence, the nurse’s daughter stole some prescriptions. Someone forged one of the signed prescriptions to obtain a powerful drug, and this resulted in the death of another woman who died of a drug overdose. The investigation into the death resulted in the discovery of the 33 prescriptions signed in blank by Dr. Raber.

Section (h) of a Georgia statute which deals with controlled substances states that, “[i]t shall be unlawful for any practitioner to issue any prescription document signed in blank.” Dr. Raber’s attorney argued that this law is unconstitutionally vague, because it does not define what a physician must do to “issue” a prescription document. In other words, the law does not give a physician notice that it is illegal to provide a prescription signed in blank to a member of his medical staff. The trial judge denied this argument, and the defense appealed the decision to the Georgia Supreme Court.

The Court’s majority noted prior sections of the statute in question state that a prescription is issued only when the name and address of the patient, the kind and quantity of the controlled substance, directions for taking, the signature and name of the physician, and the DEA registration number are present. The Court also noted that the other sections imply that a prescription is only issued when the “ultimate user” has received it. However, the Court found that section (h) is different, because it calls the form a “prescription document” instead of just a “prescription” which is used in the other sections. The majority reasoned that section (h) deals with only prescriptions that are signed but that have no other information listed, and thus, there does not need to be the additional information which is required by the other sections for a physician to issue a prescription. The Court also explained that the prescription does not need to be given to the “ultimate user” for it to be issued under section (h).

Thus, according to the majority, a doctor who hands a prescription signed in blank to any person for any reason has committed a felony.

Three justices dissented. Justice Hunstein found section (h) to be unconstitutionally vague and criticized the majority’s opinion as one which will lead to absurd results. For instance, Hunstein notes that a doctor who momentarily hands a signed but blank prescription to a nurse while he looks up a drug’s name has committed a felony under the majority’s interpretation. Justice Hunstein believed that the Georgia legislature enacted the statute at issue in order to punish doctors who are drug dealers. The purpose was not to incarcerate doctors who are trying to carry out their patients’ legitimate medical needs. Hunstein also argued that the majority failed to exercise common sense by giving the term “issue” a separate meaning under section (h), and that “issue” under section (h) should require that the prescription be given to the ultimate user.

Justice Melton also dissented, to which Chief Justice Sears joined, by writing that the majority’s definition of “issuance” is simply wrong. Melton believed that a prescription can only be issued when it is given to its ultimate user.

The case was covered by the National Law Journal as an important decision in the area of criminal law.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

Recently, the Georgia Court of Appeals was asked to determine if the introduction of a prior independent act which places a defendant’s character at issue should result in a mistrial when the defendant does not induce error nor open the door to the independent act. The court ruled that a mistrial should be granted in such cases.

In Smith v. State, the defendant, Michael G. Smith, was convicted by a jury of kidnapping, aggravated assault, and burglary. The conviction stems from three intruders entering an apartment which was occupied by the owner. One intruder put a gun to the head of the owner and asked for a man by the name of “Rod” as well as for information about where the “dope” was located. The owner managed to escape and saw the men leaving in a white Dodge Intrepid. The owner was friends with a man named Rodney Milledge who was the man the intruders were looking for. Milledge contacted the police and told them he believed Michael Smith committed the invasion. It was also discovered that Smith’s girlfriend owned a white Dodge Intrepid, and that Smith had taken it on the night in question.

On redirect examination of Smith’s girlfriend, the prosecutor showed that Milledge went to her residence looking for Smith while carrying a gun two weeks prior to the invasion. Smith hid in a closet at the time. The prosecutor then asked her why Smith thought Milledge was upset. The defense objected arguing that the question was irrelevant and that the defense did not open the door to any prior bad acts. The judge allowed the girlfriend to answer the question. It was revealed that Smith had stolen cocaine from Milledge. The defense then moved for a mistrial which the trial court denied.

The appellate court determined that the evidence showing that Smith had stolen Milledge’s cocaine was a similar but independent offense. The general rule is that a defendant is to be tried only for the offense charged in the indictment. Court rules state that if the state wishes to introduce such independent acts it must give notice and a hearing by the trial court must be held. At the hearing, the state must make three showings for the evidence to be admissible. The court found no such notice or hearing to exist in this case. As a result, the court concluded that a mistrial should have been granted, since the defense did not induce error and it did not open the door to the prior act.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

The Georgia Court of Appeals was faced with deciding whether a trial court properly granted a defendant immunity when the alleged victim recanted her story and the state failed to produce any other evidence at a pretrial hearing. The court ruled that the defendant was entitled to immunity, since there was evidence for the trial court to find that defendant acted in self-defense prior to trial.

In State v. Yapo, the defendant, Yapo, and his girlfriend got into a fight on the way to a convenient store. The girlfriend held her car door open while Yapo drove which forced Yapo to pull the car over. The girlfriend then left the car and found a large bolt which she threw at the windshield and shattered it. She then got into the back-driver side seat and kicked the driver’s seat. This forced Yapo into the steering wheel and broke the seat. Yapo then retrained his girlfriend by grabbing her and giving her a “bear hug.” Someone called the police, and the girlfriend allegedly told the police at the scene that Yapo had choked her. From this incident, Yapo was arrested for battery and simple battery for choking his girlfriend.

Yapo moved to dismiss the battery charges by claiming he acted in self-defense and was therefore immune. At a pretrial evidentiary hearing, the girlfriend testified as to the facts stated above; however, she denied telling the police that she had been choked. The State had no other witnesses or evidence to offer the trial judge. The judge found the girlfriend’s testimony credible and ruled that Yapo was immune from the battery charges. The State appealed.

The State argued that the trial court erred in granting immunity, since the ruling will harm domestic violence prosecutions in the future. The State argued that domestic violence victims often recant prior testimony even though the alleged crimes actually occurred. However, the court reasoned that Georgia law clearly grants immunity to a defendant who acts in self-defense. Immunity for acting in self-defense is decided by a trial judge prior to trial, and the defendant must prove he acted in self-defense by the greater weight of the evidence. At Yapo’s pretrail hearing, the trial court found the girlfriend’s testimony to be credible and the state offered no other evidence. Thus, the appellate court concluded that this was enough evidence to properly grant immunity.

This opinion is important because the court recognized the defendant's right to a pretrial hearing on the self-defense claim. This type of immunity is provided by statute, but it is an unusual provision in Georgia criminal law.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

The Georgia Supreme Court recently had to decide whether the rule that prosecutors may not comment on a defendant’s pre-arrest silence is limited to situations where the defendant remains silent in the face of questions by state agents and where a defendant fails to come forward when he knows he is the target of an investigation. The Court held that the rule is not limited to these two situations.

In Reynolds v. State, the defendant, Reynolds, was arrested and convicted for aggravated battery. During closing arguments, the prosecutor told the jury that, “I want you to consider that Mr. Reynolds had the opportunity to stay . . . that night and call the police or wait for police to respond to give his version of the facts.” Reynolds’ attorney at trial did not object to the comment, and his attorneys upon appeal argued that the failure to object constituted ineffective assistance of counsel. The Court of Appeals rejected this claim, and it relied on a prior appellate court ruling which only restrained prosecutors from commenting on pre-arrest silence in the two situations noted above. Thus, the prosecutor was free to comment, since Reynolds’ silence did not occur during an interrogation or when he knew he was the target of an investigation. His attorneys appealed the appellate court’s decision to the Georgia Supreme Court.

A unanimous Supreme Court overturned the appellate court’s ruling. The Court reasoned that the failure to speak or act by a criminal defendant will often be judged as evidence of guilt, and as a result, allowing such comments about a defendant’s silence is far more prejudicial than probative. In doing so, the Court overruled prior cases which limited the rule that prosecutors may not comment on pre-arrest silence. The conviction of Reynolds was also reversed and remanded.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

The Georgia Court of Appeals recently had to determine if evidence was sufficient to support a conviction for possession of methamphetamine with intent to distribute and possession of marijuana under a theory of constructive possession. The court held there was not sufficient evidence, since the defendant’s cousin had equal access to the drugs but was not charged.

In Xiong v. State, the defendant, Xiong, allowed a police officer to search his home after the officer received a tip that a stolen car was on the property. The officer found a car that had been stripped of parts in the carport, and after checking the VIN which showed the car as stolen, Xiong was placed under arrest. A search warrant for the property was then issued. In addition to auto parts strewn throughout the property, officers found 14 bags of methamphetamine and a gun in the master bedroom as well as a small amount of marijuana in the kitchen. Electronic scales and additional handguns were also found. Police also discovered a notebook with writing that inferred that the defendant’s cousin and others were handling drugs in exchange for money.

The defendant’s wife testified that the defendant’s cousin, Vang, had moved into the home prior to the arrest since he was unemployed and homeless. The wife moved out a couple of months later due to a separation, but she returned a few days before the arrest of her husband. Her testimony revealed that Vang had moved into the master bedroom with his wife while she was away. Vang moved out shortly before the arrest of Xiong due to the wife’s return, but he had left personal belongings behind and retained a key to the home. Several days later Xiong was arrested but his wife and cousin were never charged with any crimes.

Xiong was convicted on the drug charges under the state’s theory of constructive possession. Under Georgia law, there is a presumption of constructive possession of an entire premise by the owner. Yet, the state must show sole constructive possession by the defendant if the state only charges one of two or more people who had equal access to the drugs. Thus, the presumption of constructive possession can be rebutted by showing that someone else had equal access to the specific location where the drugs were discovered. The court found that Xiong’s cousin had occupied the master bedroom where the drugs were, and that he still had personal belongings in the bedroom as well as a key to the home. The cousin also had the same access to the scales and notebook as Xiong. Furthermore, evidence suggested that the notebook was not Xiong’s. The court reasoned that the only evidence which connected Xiong to the drugs was his own equal access. Since the state only charged Xiong and could not show sole constructive possession by Xiong, the court reversed the conviction.

As a result, the court firmly established the rule that a conviction based on constructive possession cannot stand where others have equal access but are not charged.

Our criminal defense lawyers have successfully defended serious drug cases using similar defenses and equal access theories. "Being in the wrong place at the wrong time" is not enough, by itself, to justify a criminal conviction.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

After the recent allegations hit the Peanut Corp.of America about the presence of salmonella in products it shipped from its Georgia plant, we decided to explore what sort of federal or Georgia criminal laws might apply to this case. (If you are interested in the details, a legal memo addressing food safety and criminal prosecutions under federal and Georgia law can be found after the break.)

According to the Atlanta Journal Constitution, the GBI was initially asked to look into state criminal charges. Later, however, the GBI decided to back off and leave the criminal investigation to the FBI and other federal law enforcement agencies. But, according to an article in the Macon, Georgia Telegraph, the feds rarely bring criminal charges in food safety investigations.

Of course, the magnitude of this case may cause the feds to make an exception, and an example.

Continue reading "Georgia criminal law allows for "food safety" prosecutions" »

The Georgia Supreme Court recently rejected a defense lawyer's challenge to the state’s marijuana statute on constitutional due process grounds.

The case (In the Interest of D.H.) required the Court to decide whether Georgia’s possession of marijuana statute created a mandatory presumption of guilt in violation of constitutional due process guarantees. The Court held that the language of the statute does not violate the Constitution.

The ruling stems from the arrest of two juveniles for possessing marijuana. Police received a tip that two young men were involved in a drug deal at a gas station. Upon arriving, the police officers did not see anyone at the gas station; however, two teenagers matching the description were seen walking down a nearby road. The two officers stopped their vehicle and approached the two young men on foot. The suspects stated that they were coming from the gas station in question. The officers asked if they could search the two suspects and the suspects agreed. In the defendant’s pocket, an officer found rolling papers, and officers found marijuana on the other suspect. Both suspects admitted that they had just purchased the marijuana and were going to smoke it. The teenagers were issued citations for possession and were subsequently adjudicated as delinquent.

Their defense attorney appealed arguing that the text of the marijuana statute violates constitutional due process since it creates a mandatory presumption of guilt. The statute states that, “any person who is charged with possession of marijuana, which possession is of one ounce or less, shall be guilty of a misdemeanor. . .”

The Court disagreed with this argument, and it determined that a literal reading of the statue would result in the absurd consequence of a defendant who is automatically found guilty the moment he or she is charged with the possession of marijuana. The Court explained that the literal meaning of a statute will prevail unless it leads to an absurd result which the legislature did not intend. In such cases, the Court will interpret the language in a reasonable manner in order to conform to the legislative intent and to ensure the statute is valid. According to the Court, the intent behind the statute was to show that possession of one ounce or less of marijuana was punishable only as a misdemeanor and not as a felony. The intent was not to create an automatic presumption of guilt. Thus, the Court interpreted the statute so as not to violate due process.

Attorney Page Pate of our firm was interviewed about the Court's decision on WABE FM 90.1, the Atlanta public radio station and NPR affiliate.

We did not represent the defendant in this case, but our criminal lawyers have helped people charged with Georgia drug crimes for 15 years. Although the constitutional argument was not effective in this case, challenges like this can (and should) be raised in drug cases involving marijuana prosecutions and illegal searches and seizures.

The Georgia Court of Appeals recently decided that a driver displaying nervousness, a failure to make eye contact, and certain indicators of drug use during a routine traffic stop do not constitute reasonable suspicion necessary to search the vehicle for weapons.

In Bell v. State, Bell and his passenger were stopped by two Catoosa County Sheriff’s officers for traveling 39 in a 25 mph zone. The officers approached the sides of the vehicle and spoke with both men. Both officers noticed that the men refused to make eye contact and that Bell seemed very nervous and appeared to be under the influence of a drug. One officer stated that Bell had a very dry mouth and that his eyes were slightly closed which was consistent with drug use.

Upon noticing these peculiarities, the officer asked Bell if he could search the vehicle, but Bell refused. The officer then requested that a K-9 unit be dispatched from another county. One officer had also noticed an expandable baton in the cup holder next to Bell. Since the K-9 would take a while to arrive, the officers ordered Bell and the passenger out of the car to alleviate any threat that may come from the baton, and the two men were then patted down for weapons. No weapons were found.

While searching the vehicle for additional weapons, the officers found a bag under the seat which contained scales and suspected methamphetamine. The officers found additional contraband inside a water bottle under the passenger seat. Bell and the passenger were subsequently charged for possessing the contraband.

In its decision, the Court of Appeals noted that the general rule is that an officer can only detain someone after the conclusion of a traffic stop if there is reasonable suspicion of criminal activity. The only possible reasonable suspicion of a crime under these circumstances would have been that Bell was driving under the influence. However, the officers performed no sobriety tests and did not hold Bell to perform a DUI investigation. The men were simply being detained until the K-9 unit could arrive to search for drugs. The court reasoned that nervousness and dry mouth alone cannot constitute reasonable suspicion necessary to detain a suspect for the suspicion of drug possession. Thus, the search of the vehicle was performed after Bell was illegally detained, and as a result, the trial court should have suppressed the contraband found during that search.

In most drug cases, the traffic stop is a critical issue in a successful defense of the case. If the defense lawyer is able to show that the stop was not proper, the evidence will be suppressed and the case usually dropped. Our criminal defense lawyers have won many motions to suppress in drug cases like this, and have insured that the constitutional rights of our clients are protected.

Last week, the Georgia Court of Appeals reversed the conviction of Arthur Tesler. Tesler was one of the Atlanta Police Officers involved in the botched drug raid, and tragic shooting death, of 92 year old Kathryn Johnston.

The Atlanta Journal Constitution has the story.

The court reversed Tesler's conviction because the DA's office failed to prove that Fulton County had jurisdiction over Tesler's false statements to the FBI. The FBI office where Tesler made those statements is in Dekalb County, not Fulton County.

According to Tesler's defense attorney, the DA in Fulton County rushed to indict the case without properly considering the venue problem.

Now that the state conviction has been overturned, Tesler will be sentenced only in federal court based on his guilty plea to federal charges. In the federal case, the government is expected to ask that Tesler receive 10 years in prison.

Our firm's criminal defense attorneys represented one of the police officers initially identified as a subject of the federal criminal investigation into this incident. Our client testified in front of a federal grand jury, but was not charged.

Tesler's sentencing in federal court may be the end of the criminal cases arising out of this tragedy, but there are several potential civil lawsuits that will no doubt be filed and keep this incident in the media for some time to come.

There have been changes made to the way police officers obtain and execute warrants as a result of this incident. We can only hope those changes will prevent another innocent person from being killed by police officers who were taking shortcuts and lying to cover up their mistakes.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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 catching a "whiff" of raw marijuana coming from the car.

The lawyer filed a motion to suppress the marijuana. Among other things, the lawyer argued that the police officers could not have possibly smelled the marijuana that was wrapped up and stored in the trunk. It's a standard motion in this type of case, and defense lawyers file them all the time.

What's unusual about this case is that the defense lawyer asked the judge to require the officers to do a smell test. The lawyer suggested that the evidence be put into the trunk of a random car in the parking lot. The officers would then be required to determine which car it was in.

Bill Rankin of the Atlanta Journal Constitution covered the story. In the first article reporting the filing of the motion, he quoted both the defense attorney and a medical expert from the University of Pennsylvania's "Smell and Taste Center" who agreed with the lawyer that a person could not smell marijuana when it is wrapped up and stored in a trunk.

Novel idea, but the judge would not go for it. The Atlanta Journal Constitution covered the judge's decision denying the smell test in a follow-up article.

I think most criminal defense lawyers would like to see if the officers could really smell what they say they smell in these traffic stop cases. If the science doesn't support them, the judge should really question whether there is sufficient probable cause to search a car just because an officer says he smelled something incriminating.

But no judge wants to be the first judge to require a police officer to walk around a parking lot sniffing car trunks. It may lead to a lot of dismissed drug cases.

A man charged with murder in Gwinnett County Georgia was acquitted late last week. Charles Martin Coats was found "not guilty" of murder in the stabbing death of William Scott Carr that occurred on January 3, 2007.

The Atlanta Journal Constitution has the story.

Coats admitted that he stabbed the man, but his lawyer argued that it was in self-defense. According to the attorney, Coats and Carr got into an argument over Carr's dogs at Yellow River Park in Gwinnett County. The dogs were bothering Coats, so he tried to get them out of the way. Carr became angry, and the men started arguing and threatening each other. According to Coats' lawyer, Carr said he'd kill Coats. The two started fighting and Coats stabbed him with a knife he had on him at the time. He stabbed him once in the throat with a four inch blade.

The prosecutors charged Coats with murder based on their theory that Coats killed Carr because of "anti-gay sentiments," and an ongoing disagreement over the dogs. The jury didn't buy it.

Congratulations to Brain Steel, Coats' Atlanta criminal defense lawyer, for an excellent job. I understand he spent many months preparing for this trial. The hard work obviously paid off.

Chiman Rai was sentenced this afternoon to life in prison. That's the best sentence possible after a murder conviction.

The Atlanta Journal Constitution has the breaking story from just a few minutes ago.

A life sentence offers Mr. Rai a shot at parole. But parole is never guaranteed, and usually isn't even possible until the person has served 30 years in prison. Mr. Rai would be 98 years old.

While the case will almost certainly be appealed, Mr. Rai will remain in custody and will likely be sent into the state prison system soon. His lawyers will have to file a notice of appeal or motion for new trial within 30 days. Because this is a murder case, the appeal will go directly to the Georgia Supreme Court.

I didn't see the trial, but I was surprised by this verdict. This afternoon, Chiman Rai was convicted for the murder of his daughter-in-law.

The Atlanta Journal Constitution has the story.

Prosecutors claimed that the murder was racially motivated. Rai's son (of Indian descent) had married an African-American girl. The state's theory was that Rai disapproved of the marriage because an interracial marriage would be frowned upon in "caste-conscious" Indian society (the AJC's word, not mine) .

Because prosecutors decided to seek the death penalty, Rai's defense lawyers will now have to prepare for the sentencing phase of the trial. The jury will have the option of sentencing Rai to death, life without parole, or life with the possibility of parole after 30 years. The penalty phase usually focuses more on the circumstances of the defendant (his background, character, etc.) than the facts of the offense. Rai's lawyers are two of the best defense lawyers in Atlanta and I am sure they will do everything they can to save Rai's life.

I heard about this case shortly after Mr. Rai was arrested. It did not sound like a death penalty case then, and it still doesn't. I would be very surprised if Rai is sentenced to death. Juries generally shy away from the death penalty, especially in urban areas, unless the crime is horrific and the evidence overwhelming.

Every murder is tragic, but the evidence presented at trial against Rai was far from overwhelming. It was, however, enough to convince the jury that he arranged for the murder of his daughter-in-law. I am sure the prosecutors will now try to convince the jury that the murder was racially motivated. In my opinion, that would be the only way they could secure a death sentence in a case like this.

The penalty phase of the trial starts on Friday.

More drama in the Brian Nichols death penalty case currently pending in Atlanta.

Judge Bodiford recently granted the State's request to have Brian Nichols interviewed by a state doctor. The State requested this examination so that they would be able to present expert testimony to counter the mental illness defense that Nichols' lawyers intend to present at trial

The Atlanta Journal Constitution has the story.

This is not a surprising request, and it is routinely granted in cases where the defendant intends to raise any type of mental illness defense through the use of medical experts. Once the defendant notifies the State of its intent to raise this defense, then the State has the opportunity to have its own expert examine the defendant.

The only thing unusual about this request is the timing. The State has known for a long time that Nichols' defense attorneys intended to raise a mental illness defense.

I was interviewed yesterday on WABE (Atlanta's public radio station) about this development. I was asked why Nichols' defense lawyers would want to prevent the State from having Nichols interviewed by another doctor. Nichols' attorneys, like most criminal defense lawyers, would want to prevent the examination because the request came so late in the process. Nichols' lawyers have also argued that they did not want to subject Nichols to questioning that might incriminate him in the offense.

While these are certainly understandable concerns, Judge Bodiford granted the State's request. He did, however, did put some limitations on the length of the examination.

The trial is still supposed to start this Summer.

Tesler got much more time than I thought he would. I am sure his lawyer feels the same way.

Yesterday, Judge Johnson sentenced Arthur Tesler to four and a half years, just 6 months short of the maximum sentence for this crime.

The Atlanta Journal Constitution has the story.

Normally, a conviction for making a false statement would not put someone in prison for close to 5 years. It's a 1 to 2 year offense, at worst. It's likely that Judge Johnson considered the effect of this offense on both the Atlanta Police Department and the community. Although the jury found that Testler was not responsible for the shooting, he was culpable for the cover-up. Considering the collateral damage of the whole incident, the judge probably wanted to send a message. Looks like he did.

Of course, Tesler has the right to pursue an appeal of both the conviction and the sentence, but his defense lawyer may advise him not to. Tesler basically admitted the only count of conviction, and Georgia judges have a lot of discretion in sentencing after a criminal trial. If Tesler and his lawyer want to appeal or ask for a new trial, they have to file a notice within 30 days.

There are some community activists asking for a federal criminal investigation, but that would be unlikely. The feds have already charged the other two officers and apparently gave Tesler a pass based on what they knew about his involvement. I see no reason for the U.S. Attorney in Atlanta to re-visit that decision now.

The jury finally reached a decision.

Former Atlanta Police officer Arthur Tesler was found guilty of making a false statement to investigators in connection with the 2006 Neal Street shooting, but was found not guilty on the false imprisonment and violation of oath of office charges.

With the conviction on one count, he faces a maximum of 5 years in prison. Realistically, he is looking at a lot less time.

Although the judge is authorized to sentence Tesler to straight probation, it's unlikely. The judge ordered him taken into custody after the verdict. That's unusual for a false statement case, especially when the sentencing has been postponed until later in the week. Maybe a 12 month sentence? Just my guess. The extra couple of days should allow Tesler's criminal defense lawyer to call witnesses to the sentencing hearing.

The Atlanta Journal Constitution has the story.

The verdict looks bad for the Fulton County DA's office because Tesler was convicted on only 1 of the 3 counts. And the count of conviction was something Tesler admitted to doing when he testified - lying to the FBI after the shooting occurred.

If the DA's office had drafted the indictment differently, Tesler would likely have also been convicted on the oath of office charge. Ultimately, it probably won't matter for purposes of sentencing. Judge Johnson heard all the evidence and probably has a good idea of what sentence he will impose.

Sentencing is set for Thursday.

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.

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.

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.

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.

A mortgage fraud case pending in Athens Georgia for over a year may be close to indictment. The case involves a local real estate developer who allegedly engaged in a scheme to over-inflate the value of a subdivision he had purchased.

We represent an Athens attorney who was initially arrested and charged with fraud in this case. The Athens Banner Herald has the story. I was interviewed and had this comment:

"The delay in bringing an indictment is not unusual," said Atlanta attorney Page Pate, who represents one man accused in the Milford Hills case, Athens real estate attorney C. Michael Rose.

"I have been involved in several mortgage fraud investigations at both the state and federal level and I have learned that it takes a lot of time to properly review the closing documents and related paperwork," Pate said.

Last year, for example, a U.S. District Court jury convicted 10 people involved in a $41 million mortgage scheme that encompassed more than 50 homes and 250 condominiums in eight Atlanta-area complexes - several years after the plot was uncovered.

Several others pleaded guilty to the fraud conspiracy before trial.

Pate is pleased that prosecutors didn't seek quick indictments because he wants a thorough investigation he believes will exonerate his client.

"Although we would like to get this matter cleared up sooner rather than later, it's more important to be patient and let the investigators do their job," Pate said. "If they have adequate time to review this case, I am confident that they will reach the same conclusion as I have - Mike Rose did nothing illegal."

I don't know when the case will be indicted. I only hope that the Attorney General's Office will not charge our client. Mike only closed the loans that were brought to him. He did not know that a lot of the paperwork was fraudulent. Like so many other people in Athens, Mike was deceived by the developer. He was not a part of the scheme, only a victim of it.

There have been a lot of mortgage fraud cases in Georgia in the last few years. We have been involved in many of them. I posted about one of our most recent mortgage fraud cases earlier this year. We have represented lawyers, mortgage brokers, investors, appraisers and the people who end up buying these properties.

Fortunately, we have been able to keep many of our clients from being charged with a crime. We hope we can do the same for Mike.

A Cobb County teacher was found "not guilty" of aggravated child molestation earlier this week after a jury trial. The Atlanta Journal Constitution has the full story.

Apparently, the teacher (Gregory A. Leontovich) was charged because one of his students told authorities that he sodomized her in a restroom at the school where he worked.

According to the teacher's defense attorney, however, the state's case fell apart once the jury realized that the girl's story was impossible - she could not have been alone with him in the restroom because the students are not allowed to go to the restroom without a "buddy."

Amazingly, the teacher had not even been interviewed by the police before they decided to arrest him. It also looks like neither the police nor the District Attorney's Office tried to determine whether the girl's story was credible before Leontovich was arrested, indicted and humiliated. They did not even interview the other teachers at the school until 10 weeks after the alleged incident.

Leontovich went through two years of humiliation, and thousands of dollars in legal fees for his top-notch criminal defense lawyer. He had to resign from his job, and is having difficulty finding work.

Leontovich had been a teacher since 1992. He loved the work, and was respected and admired by his students and the other teachers. In fact, many of them came to court to support him before and during this difficult trial. (Seventy of them showed up at the bond hearing.) But now, even though he was acquitted at trial, he will always have an arrest record and will carry the "scarlet letter" of an aggravated child molestation charge for the rest of his life.

The AJC's Mike King wrote an excellent editorial about the devastating effects of a false child molestation charge, and how a "not guilty" verdict won't repair the damage done by this allegation.

Our firm has had our fair share of false child molestation cases. In several of these cases, we were able to get the charges dismissed prior to an indictment or trial. In fact, we recently helped a client avoid an indictment for molestation in Cobb County, where Leontovich was charged. Our client, like Leontovich, had been charged and arrested without an adequate investigation. As in so many of these cases, the police just accepted the story and then tried to make all the other facts fit their version of what happened. Fortunately, we were hired before the indictment and had time to develop a strong defense. We convinced the district attorney's office to dismiss the case. We are currently trying to help this client get his arrest record expunged. But the damage done to him and his family as a result of the arrest and initial jail time will take many years to heal, if it ever does.

A couple of years ago, I tried an aggravated child molestation case where the witness had completely made up a story that she was sodomized by our client at knife point. The story was incredible, but there was no one else present to disprove it. It was just our client and the complaining witness, a typical "he said, she said" problem. The district attorney refused to consider our client's innocence, so we went to trial. We won and our client was acquitted of all 6 counts charged against him. But the case was very difficult and expensive, and unnecessary.

There would be far fewer false child molestation allegations if the police did a better job of screening these cases before indictment. A thorough investigation is not too much to ask when you consider how the sentences for these offenses are going through the roof. (Aggravated child molestation now carries a mandatory minimum sentence of 25 years to serve in prison, no parole or probation).

Congratulations to Mr. Leontovich and his Atlanta defense lawyer Barry Hazen for their win in Cobb County. It's a shame he had to go through it, but it does remind us of the importance of a good defense and an impartial jury. I only hope Mr. Leontovich is able to get his life back on track after enduring this unnecessary persecution.

It's an unusual move, but a great idea. Athens Georgia criminal defense attorney Ed Tolley is trying to get the judge to allow him to question grand jurors before they consider a murder indictment against his client. The Athens Banner Herald has the story. The case is pending in Oconee County, part of the same judicial circuit as Athens.

According to the Athens article, the defense lawyer wants to determine the effect of pretrial publicity on the grand jurors before they decide whether to indict his client for murder. The lawyer also wants the judge to put a "gag order" on the parties to prevent any additional publicity before the case goes to trial.

Generally, a judge won't consider the effect of pretrial publicity until the jury is being selected right before the case is tried. If it appears that a lot of the potential jurors have heard about the case and made up their minds, then the judge may consider a change in venue or other remedy. The judge usually doesn't care if the potential juror has heard about the case, only if the juror can still be "impartial" despite what he has seen or heard.

Of course, most judges are reluctant to change venue and start over at that point. That usually means pretrial publicity won't help you get a criminal trial moved to another county. Only the really big "high-profile" criminal cases get moved before trial. A trial doesn't get moved to another court just because the newspaper runs a couple of articles, or the local tv news gives the case 30 seconds of coverage. It takes a whole lot more.

The hearing is set for Tuesday, March 18. If the judge lets the defense attorney question the grand jurors, it may set a precedent in Georgia for screening grand jurors prior to indictment. That would be a big change from the "rubber stamp" the grand jury usually gives prosecutors. I bet many other lawyers would like to use this approach for other cases that get covered in the news before trial. I know I certainly would.

"Metro Atlanta may get a little bloodier. Call it a sign of success."

So begins a recent article in the Atlanta Journal Constitution about "progress" in the so-called war on drugs.

Federal drug agents are claiming that they have "decreased the quality and raised the price of drugs on the street." As a result, they are expecting more violence between drug dealers, and more crimes committed against average citizens because the drug users need to steal more money to buy drugs at the inflated price.

The author of the article, Steve Visser, has a good understanding of how drugs get to Atlanta, and why the traffic has increased so dramatically over the past few years.

Metro Atlanta became an outpost of organized crime for reasons of geography, logistics and immigration. It also has a strong and diverse market for drugs — powder cocaine for the suburbs, crack cocaine for the city, crystal meth for the exurbs and ecstasy for Midtown raves — for the cartels to fill, Killorin said.

Moreover, the region is a transportation hub — by rail, air and interstate highways and even by sea, by way of Savannah — to make it a natural distribution point, whether to New Jersey or Chicago.

"We've got the busiest airport. We've got three major interstates passing through. We're just accessible," said Atlanta Police Lt. Robert Browning, deputy director of HIDTA. "It is not that the drugs are coming to Atlanta and stopping. This is the transportation route for the whole East Coast."

The reason is simple logistics.

Cocaine is still manufactured in South America, but instead of being shipped directly to the U.S. by plane or ship — as was the case in the Miami Vice heyday — the Colombia cartels are now selling it to Mexican cartels.

Those organizations then ship it, along with marijuana, methamphetamine and heroin, to Atlanta, a major metro area with a large Hispanic population in which the traffickers can hide.

They often hide shipments in cargoes of legitimate goods that thousands of trucks ferry across the border each day. Drug shipments even have been hidden with truckloads of produce bound for the state Farmer's Market in Forest Park, according to the 2007 HIDTA annual report.

The cartels' operatives in metro Atlanta repackage the drugs for distribution in the region or shipment elsewhere, Benson said. Then, millions in dollars are transported back to Atlanta, where the cash is packed and ship to Mexico.

The trafficking organizations rent houses in affluent neighborhoods in Cobb and Gwinnett counties that shield them from surveillance because they're on large, private lots, the HIDTA report noted.

Of course, an increase in drug traffic and drug arrests keeps criminal defense attorneys busy as well. Atlanta defense lawyers have seen a lot of federal drug cases in the past few years. In fact, our law firm has been involved in a few federal drug trials where the quantity of drugs seized exceeded several hundred kilos. In a case I tried two years ago, federal drug agents had also seized 4 million dollars in cash as a result of a drug operation in Atlanta and Marietta, Georgia.

We have posted on several of these cases before - 88 people indicted for drug conspiracy in Atlanta; and my recent drug trafficking case in the Eleventh Circuit Court of Appeals.

I don't see how an increase in violence is a good thing, or a sign of the demise of drugs being imported into the U.S. I am sure the federal government could be a lot more effective if they spent just a fraction of that money on treatment and reducing the demand for drugs. But I don't expect that to happen anytime soon. There is just too much money and bureaucracy dedicated to this un-ending, and un-winnable, war on drugs.

Former District Attorney Tim Madison was sentenced last week to 6 years in a Georgia prison for his role in a scheme to steal money from Banks County. Madison pleaded guilty to a number of counts, but they all basically involve the same crime - taking money from county funds that he was not authorized to take.

He convinced Banks County to pay a salary to an assistant district attorney who was already being paid by state funds. Madison and the attorney then split up the extra salary. Madison also admitted falsifying time cards for his wife who was on his payroll at the time. The other charges - false statements and violating his oath of office - were part of the scheme to cover the fraud.

The Athens Banner Herald did an excellent job of covering this case from start to finish.

Madison got 6 years to serve, but the total sentence is 12 years - the first six will be served in prison, the remainder on probation. In reality, Madison will most likely only serve 2 or 3 years before being paroled, considering his age and the improbability of recidivism. He also has to pay $40,000 in restitution. The sentence imposed by the judge sets forth the prison term and the conditions of his probation.

I'm not sure where Madison will actually serve his time. Other Georgia officials convicted in public corruption cases have often been moved to out-of-state federal facilities, especially if they are former law enforcement officers. If he went to a Georgia prison, he may run into one of the people he prosecuted. Not a good thing for the former "tough on crime" D.A.

The Georgia Attorney General's Office asked the judge to impose an 8 year sentence. Madison's defense lawyers asked for a long term of straight probation. No doubt that Madison had two of Georgia's best criminal defense lawyers representing him, but it appeared that the judge had already made up his mind. Perhaps he was influenced by the tough stance Madison used to take on plea deals and sentences for theft cases. He probably would have given himself 10 years to serve.

Madison had served as District Attorney in that circuit for over 25 years. On Saturday, he will begin serving his sentence in the Banks County jail. It's a big change. Some local attorneys thought the sentence was too harsh, but defense lawyers and prosecutors that know Madison consider the sentence an appropriate one. Most criminal defense attorneys that have gone up against Madison agreed with Georgia's Attorney General - "Madison's sentence was not only consistent with the harm that Madison wreaked on the Piedmont Circuit, but was also consistent with sentences that Madison himself had sought from accused or convicted thieves in similar cases."

The case is not over. Charges still remain pending against Madison's wife and the assistant district attorney who agreed to the scheme to divert part of his county salary. Their trial date should be set by March 25.

It's going to be a long, tough road for Tim Madison. But it's hard to feel sorry for him. I never personally tried a case with him, but other defense lawyers tell me he got what he deserved. I doubt he would have shown any mercy if he had been the D.A. prosecuting someone for theft of public funds.

This week, a committee of the Georgia legislature approved an award of $1.2 million for a man who served almost 22 years in prison for a crime he did not commit. The Atlanta Journal Constitution has the full story.

$1.2 million works out to about $54,000 per year. It sounds good, but I would rather have the 22 years back. Think about what it would be like to lose some of the best years of your life locked up for something you didn't do. And it's not just the time and lost wages. Think of the family and friends who must have abandoned him. Think about the lost opportunities, and the normal everyday things we take for granted. Doing time is never easy. But I am sure it's almost intolerable when you know you are innocent.

Of course, there is no guarantee the Pete will see the money anytime soon. First, the bill has to get to the floor of the House, and then it must be approved by the Georgia Senate. Finally, the Governor must sign it. It may not happen this year, but I am sure Pete knows more about patience than most of us.

This is another win for the dedicated defense lawyers and support staff at the Georgia Innocence Project. They have done a tremendous job of uncovering wrongful convictions through the use of DNA evidence. I am proud to be one of the organization's Founding Members. I posted another one of their wins late last year. They have obviously been very busy.

Congratulations to the Innocence Project and Pete Williams.

This story in the Atlanta Journal Constitution raises more questions than it answers. There is still a lot about the Chief's "retirement" that remains a mystery. But one thing is for sure, he's gone from this department.

This story is especially interesting because this police department was one of the first (if not the first) department to start bringing these computer sex chat cases in Georgia. And they are still doing it. In fact, we have an internet sexual exploitation case currently pending in Fayette County, Georgia that was investigated (actually, initiated) by this department in Peachtree City. It may go to trial next month.

We have successfully represented many people charged with computer sex crimes, including sexual exploitation of children and computer child pornography. We have a dozen of these cases pending in different parts of Georgia, and we expect to be successful in our case in Fayette County as well.

Although sexual exploitation cases can be challenging, we have been successful in resolving several of these cases for probationary sentences. The key is extensive pre-trial preparation. Our law firm usually hires a computer forensics expert to assist us in evaluating the authenticity of the chats, and then we consider entrapment and other legal defenses. The character of our client, and the lack of any criminal history, also helps. I have heard from some of our clients that many defense attorneys simply want to give up when faced with computer pornography or sexual exploitation charges. But these cases can be won. It just takes a lot of time, effort and relevant experience.

I doubt that the Chief's "retirement" will have any effect on any pending case, or the future of these prosecutions in Georgia. It does show, however, the problem with interpreting online chats and conversations. Maybe this Chief now understands how emails and chats can be taken out of context.

And the winner is...

Judge Jim Bodiford from Cobb County, Georgia. A no-nonsense judge with a lot of experience in handling death penalty cases, including high-profile trials.

The Atlanta Journal Constitution covered the announcement. I was also interviewed about this selection on WABE FM 90.1 in Atlanta, the local public radio station.

Some defense lawyers may not like Judge Bodiford, but no one can deny his experience, especially in this type of criminal case. He is probably the best choice considering the difficulties that have arisen in this case, and the need to get it tried before the entire indigent defense budget in Georgia is exhausted.

Another thing about Judge Bodiford that makes him a good choice for this case is his genuine love of trials. From what I have seen, this judge truly enjoys his job and likes to preside over interesting trials, especially when experienced and talented lawyers are involved. He usually lets the lawyers try their case, but knows how to keep control of the courtroom.

I expect Judge Bodiford to waste very little time in resolving the pending issues and setting a trial date. The change in judges won't guarantee a fair or speedy trial, but it may at least move this case forward.

It's about time.

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 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.

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.

The Georgia Supreme Court today struck down a critical portion of Georgia's Sex Offender Registration law by declaring its residency restrictions unconstitutional. In Mann v. Georgia Department of Corrections, the Court held that the statute unconstitutionally forces individuals to move whenever a new child care facility, church or school happens to move within 1,000 feet of the person's previously permissible residence.

Anthony Mann is a registered sex offender who in 2002 pleaded nolo contendere in North Carolina to the offense of taking indecent liberties with a child. In August 2003, he got married and he and his wife purchased a home in Clayton County, Georgia. At the time it was purchased, the home complied with Georgia's sex offender residency restrictions as it was not "within 1,000 feet of any child care facility, church, school or area where minors congregate." Additionally, in October 2004, Mann became a part-owner and day-to-day operator of a barbecue restaurant that similarly was in compliance with the statute (the statute also prohibits Mann from being "employed by any business or entity that is located within 1,000 feet of an area where minors congregate").

At some point thereafter, child care facilities were erected within 1,000 feet of Mann's home and business. Mann's probation officer demanded that he quit the barbecue business and remove himself from his home or be subject to arrest on felony charges.

Mann filed a civil suit in Clayton County Superior Court alleging that the statute's residency and employment restrictions constitute an unconstitutional government taking of his property in violation of the Fifth Amendment to the U.S. Constitution. The Court partially agreed holding that forcing Mann to give up his home without providing compensation was unconstitutional, but that the Constitution did not prohibit the government from forcing him to find new employment.

The Court was particularly troubled by the legislature's failure to include a "move-to-the-offender" exception that would allow a person who establishes residency or accepts employment in a permissible location to stay there when a new child-related establishment moves nearby (the statutes in Alabama, Iowa and other states contain this type of exception). Without this exception, the Court reasoned that "there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected."

Essentially, the statute amounts to an unconstitutional taking of a person's property when it forces an offender who owns his residence in a permissible location to move when a new child-related establishment moves in. An individual who rents his residence does not have the same constitutionally protected property interest as a landowner. The Court also found that Mann's interest in his barbecue business was not protected by the Constitution either. Although the statute directly deprives Mann of his right to work on site at the restaurant, it does not compel him to relinquish his ownership interest or to relocate the business in order to maintain his interest in it.

Over the last two years, our firm has been asked to handle many sex offender registration cases similar to the one decided today. The decision will not only affect our current clients, but will likely open the door to future litigation to address the rights of others, like Mann, that had been forced to leave their homes as a result of this law.

The decision today puts an end to a sixteen month campaign where the state forced thousands of people out of their homes--many of them were landowners like Mann. There are also many criminal prosecutions, for violations of these restrictions, that will now undoubtedly be dismissed.

Several proponents of the statute have criticized the decision fearing "that now convicted felony sex offenders are free to live anywhere they want to in Georgia." In reality, though, the legislature will most likely take their first opportunity in January to amend the statute by adding the "move-to-the-offender" exception that has been adopted by other states. Doing so will likely satisfy the Supreme Court and allow the state to enforce a modified version of these residency restrictions next year.

More weird developments in the Brian Nichols saga this week. On Friday, Fulton County District Attorney Paul Howard served Judge Fuller with a lawsuit seeking his removal from the Brian Nichols' death penalty case. Howard apparently also wants to remove Nichols' defense attorneys. It's an unprecedented move, and unlikely to be effective. The petition was filed with the Georgia Supreme Court and there is no guarantee the Court will even consider it.

The Atlanta Journal Constitution has the story. The local National Public Radio affiliate in Atlanta (WABE 90.1) is also following the Nichols case. Yesterday, I was interviewed on WABE and provided some commentary in their coverage of the DA's lawsuit.

I have never heard of a judge being forced off of a case because the prosecutor doesn't like the way he is handling the trial. If the Court allows this to happen, it will set a very dangerous precedent. Maybe the removal of Judge Fuller is what Howard has in mind. Perhaps he just wants to publicly add his voice to the growing chorus of voices asking Judge Fuller to either move things along or step aside and let someone else do it. Although Fuller has his defenders (and his reputation is certainly impeccable), I have not heard anyone publicly or privately applaud his handling of this case. Most people (including most of the prosecutors, judges and criminal defense lawyers I know) agree that this case has cost too much and taken too long.

But Howard's suit is unlikely to help. While I can understand Howard's frustrations, his office shares some of the blame for the delays and escalating costs to Georgia taxpayers. This case could have been resolved many months ago if the DA had not insisted on a long and expensive death penalty prosecution. Nichols' defense lawyers had indicated Nichols would have accepted a plea to life in prison without the possibility of parole. But that wasn't good enough, so the case drags on...

Of course, it's not all Howard's fault either. The defense lawyers in this case have been spending money like crazy. I am not involved in Nichols' case, so I have no idea what they've been spending all that money on. But I can't imagine ever telling a judge that I could not proceed with a trial after I've been paid close to $2 million.

Hopefully, everyone involved in this case will soon put aside their differences and get this case tried. The defendant certainly deserves a fair trial, but let's try to save at least a little bit of money for the thousands of other people in Georgia who need court-appointed counsel. Most of whom can't afford $500 for a lawyer, much less $2 million.

Things have now gotten ugly in the ongoing controversy over the death penalty trial for Brian Nichols in Atlanta, Georgia. Yesterday, Judge Craig Schwall called Judge Hilton Fuller, the judge presiding over the Nichols circus, a "fool" and a "disgrace" for his handling of the Nichols case. The email was provided by an unknown source to the Fulton County Daily Report, and the story was later covered by the Atlanta Journal Constitution. Here is an excerpt of the email -

"He [Judge Fuller] is a disgrace and pulling all of us down. He is single handedly destroying the bench and indigent defense and eroding the public trust in the judiciary. ... Surely he can be replaced. He is a fool. ... We should investigate if it can be done."

Nichols, as you may recall, is charged with the murders of a Fulton County judge, his court reporter, a sheriff's deputy and a federal agent in March 2005. Nichols went on a rampage when he escaped from custody during his rape trial (he didn't like the way it was going). In the process, Nichols killed one of the best judges in the state (who, ironically, was probably the fairest and most merciful judge Nichols could have drawn in Georgia).

Judge Schwall has never been one to mince words. In response, the Fulton County Superior Court judges issued a joint statement that "“One judge does not speak for the entire court, however Judge Schwall’s frustrations are shared by a great many, including some members of the Fulton judiciary.” In defense of Judge Fuller, one senior Fulton County judge, a lifelong friend of the judge, was quoted this afternoon in the Atlanta Journal Constitution calling Schwall's remark "very injudicious" and "inappropriate" considering the possible effect on the proceedings.

There are a lot of people frustrated by this case. Many public defenders and attorneys in Georgia have criticized the excessive spending on Nichols' defense lawyers because there are thousands of indigent defendants in dire need of the money that is being spent on defending Brian Nichols. But Nichols' lawyers keep asking for more. It's hard to understand because most Georgia criminal lawyers that have successfully defended death penalty cases have done so for less than a third of the money spent on the lawyers defending Nichols. And in most of those cases there was actually a defense to the charges that had to be investigated and presented in court.

Judge Fuller has even tried to get Fulton County or the Georgia Legislature to pay more money to Nichols' lawyers. The response from the legislature was probably not what the judge hoped for. The Speaker of the Georgia Legislature has created a panel to consider impeaching the judge. I'm not sure if they can actually impeach him (that's usually a matter for the Judicial Qualifications Commission and the Georgia Supreme Court), but the creation of this panel certainly sends a message that the legislature is opposed to spending taxpayer money like "a drunken sailor on shore leave." (The Speaker's words, not mine.)

Death penalty cases are expensive, and the appeals can last decades. That's one of the reasons many people oppose the death penalty. But $1 million for defense lawyers BEFORE THE TRIAL HAS EVEN STARTED is clearly ridiculous and an insult to Georgia taxpayers. It is also insulting to the very talented and successful criminal lawyers who fight these cases in trial courts every day for much less money. And it is a constitutional crisis for the thousands of other defendants in Georgia prisons and jails who need qualified counsel to defend them.

I don't know where it will end. But like so many other people in Georgia, I just hope it ends soon.

Genarlow Wilson should soon be a free man. Earlier today, the Georgia Supreme Court issued its decision affirming the habeas court's order vacating Wilson's felony aggravated child molestation conviction. The Court found that the ten year prison sentence was "cruel and unusual" and violated both the Georgia and United States Constitutions. The Court disagreed, however, with the habeas judge's decision to impose a misdemeanor conviction on Genarlow. Instead, the Court held that Genarlow should have no conviction and should be released from prison as soon as the habeas court amended its order. I understand that the habeas judge amended his order earlier today. As a result, Genarlow may be walking out the prison door this afternoon. The full story can be found in the Atlanta Journal Constitution.

The Supreme Court split 4 to 3. The majority opinion was written by Chief Justice Sears. Justices Carley, Hines and Melton dissented. Justice Carley's dissent argues that the Court's decision ignores the legislature's intent that the new misdemeanor punishment for this offense should not be applied retroactively. According to Carley and the other dissenting justices, the legislature's decision to keep people like Genarlow in prison for at least ten years should be controlling, despite the fact that the same offense would now carry only a maximum of 12 months in jail.

The decision surprised some, but pleased many. Given the Court's decision to deny cert to Wilson in an earlier appeal, many commentators thought the cruel and unusual punishment argument would be dead on arrival. But the Court was "comfortable" finding Genarlow's sentence to be excessive considering the "evolving standards of decency" as recognized by the Georgia legislature when they enacted the new misdemeanor statute.

Congratulations to Genarlow and his vigilant team of lawyers, led by B.J. Bernstein. This case proves that hard-work, persistence and the right amount of public pressure can truly change lives.

In the past few months, we have been fortunate to convince district attorneys in two different Georgia counties to dismiss serious felony charges against our clients that had arisen out of business disputes. In one case, it was a former employer charging his employee with computer trespass and theft charges to avoid paying severance pursuant to a valid employment contract. In another case, it was a business partner who charged his former partners with robbery and kidnapping to cover up his own theft of company funds. Both clients are now free, but only after an incredible amount of work by their lawyer.

These cases are an example of a trend I've seen developing in the past few years - the pursuit of criminal charges in civil disputes. Some people (and even some lawyers) think the best way to win a business dispute is to have the other person arrested. And sometimes they're right. The pursuit of a criminal arrest warrant can be a devastating and highly effective weapon, if it is used correctly. But it can also be greatly abused, with drastic consequences for the innocent person involved.

Getting someone arrested is, unfortunately, not as hard as you may think. There are basically two ways to do it. First, call the police (Atlanta Police Department, Cobb County Police, Gwinnett County Police, etc.). If the responding officer thinks there is probable cause to arrest someone, he/she can do it. The other alternative is to visit your local magistrate court (Fulton County,Cobb County, Gwinnett County). If you can convince a magistrate judge that there is probable cause that a crime has been committed he/she can issue a warrant on the spot. If not, then the magistrate may set the case down for a pre-warrant hearing. At that hearing, both parties can present their witnesses and evidence and the magistrate judge will determine whether to issue a warrant.

Of course, if you do this, be careful and tell the truth. I have seen magistrate judges issues warrants for the people who asked for the hearing in the first place. The judge decided that the person made a false report of a crime and they were arrested on the spot.

Fortunately for both our clients, all charges were dismissed before any trial or conviction. But that doesn't mean they didn't suffer. In the kidnapping case, our client was held in jail for days before we could secure his release (kidnapping is a serious violent felony charge and bond can only be set by a superior court judge). In the computer trespass case, the client had to suffer the indignity of a public arrest and indictment (and a record that will take many months if not years to clean up). And, of course, both clients had to pay some hefty legal fees for all the work we had to do to vindicate them.

There is a remedy for our clients, and others who are falsely charged with a crime as a result of a business dispute. There are Georgia laws that prohibit malicious prosecution and defamation and allow people to pursue civil lawsuits and recover money judgments. But that involves more litigation, more lawyers and, of course, more money.

Hopefully, police officers and magistrate judges will be especially diligent in issuing warrants when there is evidence that a business dispute is behind the allegations of misconduct. It is also a good practice for magistrates to hold more pre-warrant issuance hearings to hear from both parties before someone is arrested. Many magistrates already do this, and we have been successful in representing our clients at these hearings and having the charges dismissed before anyone is ever arrested.

But people will still get arrested for crimes they didn't commit. As long as that happens, we will have plenty of work to do. If a deputy sheriff ever knocks on your door and serves you with notice to appear at a warrant hearing, don't panic. Just give us a call. We've been down that road before.

It's not news to criminal defense lawyers in Georgia, but the Athens, Georgia newspaper reports today on the aging of the state prison population. This is a problem both for the elderly inmates who die in custody, and for Georgia taxpayers who have to fund the escalating costs of inmate health care.

I knew that the prison population was exploding and getting older, but I had no idea it was this bad. As the Athens paper reports:

Justice Department statistics show that the number of sentenced inmates in federal and state prisons age 55 and older has shot up 33 percent between 2000 and 2005, the most recent year for which the data was available. That's a far faster pace than the 9 percent growth overall.

The trend is particularly pronounced in the South, which is home to some of the nation's toughest sentencing laws. In 16 Southern states, the growth rate has escalated by an average of 145 percent since 1997, according to the Southern Legislative Conference.

The reason is obvious - mandatory minimum sentences, often for first-time nonviolent offenders. Some good policy resources on mandatory sentences and their consequences can be found on the Justice Fellowship website.

Of course, people charged with crimes don't have a lobbyist representing them in the state capital. So, it's easy and politically popular to increase punishment for crimes. But a lot of the "tough on crime" laws may be short-sighted.

Perhaps the Georgia legislature will take notice as the costs of incarceration keep climbing and reintroduce some fairness in sentence practices. But given what happened this last session (elimination of the Sentence Review Panel, etc.), I wouldn't hold my breath.