Georgia Criminal Defense Lawyer Blog

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.

Savannah-Chatham Metro Police arrested four people this week on charges of racketeering and forgery for allegedly spending counterfeit money. Authorities say the four spent thousands of dollars in phony bills.

WTOC has the story.

The four allegedly spent around $2,000 of counterfeit money at the Target on East Victory Drive. Police believe they then returned around $800 worth of merchandise to the Savannah Mall Target. So far all of the bills were in $20 and $50 denominations.

According to police, a Target loss prevention officer followed one of the suspect’s cars and wrote down a tag number. That information led to the arrest of Necshelle Smart, Shauawquinette Smart, Tyler Murphy and Monica Miller. The four are believed to be related.

All of the arrested individuals were given a bond except Necshelle who apparently has a prior forgery conviction. They are expected to appear in court on February 8.

Under Georgia law, forgery can lead to a 10 year sentence while racketeering can result in a five to 20 year sentence.

Our criminal defense attorneys have successfully handled numerous racketeering and forgery charges. In some counterfeit cases, individuals are recorded on videotape exchanging cash for merchandise. In other cases, a tip will point police to a home where a counterfeit operation is being conducted. Whatever the case may be, a good criminal defense attorney will explore every step of a police investigation to determine if there was probable cause to arrest an individual or search a home. If police conducted an illegal search or seizure, the evidence used against that person will generally be suppressed.

In this case, as in any other criminal case, all of the individuals charged are presumed innocent. There will need to be proof beyond a reasonable doubt to convict any of them at trial.

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.

A former Bibb County Sheriff’s Deputy stands trial in federal court for allegedly enticing a child for sex. Prosecutors told jurors that he arranged to meet a mother and her 7-year-old child for sex in Sandy Springs. His criminal defense attorney argued that he was role-playing and never intended to have sex with the child.

The Macon Telegraph has the story.

Federal prosecutors say 43-year-old Gregory Todd Bowden, of Byron, drove to a Sandy Springs restaurant to meet the fictitious mother and her daughter for sex. An FBI agent with the Innocent Images Task Force testified that she initially made contact with Bowden in an online chatroom sometime in October 2008. The agent then explained a series of online chats, emails and telephone calls she had with Bowden which spanned around five months.

According to the agent, Bowden initially asked her to join a virtual role-playing relationship. Their chats eventually evolved into setting up an actual meeting in Sandy Springs where Bowden was arrested. One chat reveals Bowden expressing concern that the girl may possibly tell others of the sexual activity. He was also quoted as saying “I don’t want to go to jail.”

In addition to online chats, the jury was shown various pictures including a photo of a woman and a child which the agent had sent to Bowden. Jurors were also shown pictures that Bowden sent to the agent including his face and a man’s genitals.

Bowden’s attorney, Franklin J. Hogue, told jurors in opening statements that Bowden only intended to role play with the woman in an incestuous fantasy. This argument coincides with statements Bowden gave authorities when he was arrested in February. Specifically, he told agents that he did not think the girl was real.

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.

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.