Georgia Criminal Defense Lawyer Blog

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.

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Posted In: Georgia Criminal Law , Public Corruption

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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.

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Posted In: Georgia Criminal Law , Public Corruption

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Georgia State Rep.Ron Sailor, Jr. pleaded guilty this week to federal money laundering charges in Atlanta. All the local news media covered the story. (The picture on the left is Sailor and his Atlanta criminal defense lawyer Bruce Maloy.) Bill Rankin provides a good summary of the investigation and the plea in the Atlanta Journal Constitution.

Now we know why Sailor has missed so many votes in the Georgia General Assembly - the government told him to. Federal prosecutors apparently instructed Sailor not to vote during the time he was cooperating with the government to avoid any appearance that the feds (a Republican controlled Justice Department) were telling Sailor how to vote. I am not sure how his constituents feel about that, or how silencing a reliable Democratic vote may have affected pending legislation. Because Sailor had not entered a guilty plea until this week, he would not have been prevented from holding his seat and voting on legislation. Interesting issue, but unlikely to get any attention. Another interesting issue is why Sailor was approached by this undercover agent. What led them to Sailor? Was it another cooperating witness? Or, did they just chose him at random?

U.S. Attorney David Nahmias told reporters that Sailor has been cooperating with law enforcement in an ongoing investigation into public corruption in Georgia. Apparently, he's been cooperating for several months while his arrest was kept under seal. Nahmias described Sailor's cooperation as "useful." Anyone who follows Georgia politics would not be surprised if there are additional legislators under investigation for violating various federal laws. The dome may be gold, but it's certainly not pure.

As with most plea agreements in federal court, Sailor is not guaranteed any specific sentence. The amount of time he will have to spend in federal custody will be determined by the judge after a Presentence Investigation Report is prepared by the U.S. Probation Office. The judge will consider the federal sentencing guidelines, but ultimately make his decision based on the sentencing factors set forth in the federal criminal code (18 U.S.C. 3553).

I am sure Sailor and his defense attorneys are hoping that the government will reward him for his cooperation by filing a "5K" motion before he is sentenced. "5K" refers to a section in the federal sentencing guidelines that rewards a defendant with a possible reduction in his sentence for providing "substantial assistance" to the government. Whether the defendant has provided "substantial assistance" is always up to the government. If a "5K" motion is filed, the judge can disregard any mandatory minimums and impose a reasonable sentence. That usually means the defendant will get less time. Although the government attorney usually makes a recommendation, the amount of the reduction is ultimately up to the judge.

Now that Sailor's plea is public, we should soon see if his cooperation results in any arrests. I expect the feds will likely wait until after the legislative session if they intend to charge any other state representative. But after March, who knows...

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Posted In: Federal Criminal Law , Public Corruption

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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.

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Posted In: Georgia Criminal Law , Public Corruption

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The police chief of Jefferson, Georgia was indicted this week on 30 counts of theft and invasion of privacy charges. According to the indictment, the chief was unlawfully using his access to the Georgia Crime Information Center to run background checks for his wife's security business. He is also charged with using city property to benefit his wife's business.

The indictment is the result of a two-year investigation by the GBI. The chief is being represented by Mike Bowers, the former Georgia Attorney General and an excellent lawyer. The chief's surrender to the local jail was covered by the Athens Banner-Herald.

It appears that Bowers has already started to fight. He filed a motion to dismiss the indictment because his client was not allowed to appear as a witness before the grand jury when it considered the charges against him.

He has a good argument. Georgia law provides as follows:

Section 17-7-52 of the Georgia Code: (a) Before an indictment against a present or former peace officer charging the officer with a crime which is alleged to have occurred while he or she was in the performance of his or her duties is returned by a grand jury, the officer shall be notified of the contemplated action by the district attorney of the county wherein the grand jury shall convene and the officer shall be afforded the rights provided in Code Section 45-11-4. (b) The requirements of subsection (a) of this Code section shall apply to all prosecutions, whether for misdemeanors or felonies, and no such prosecution shall proceed either in state or superior court without a grand jury indictment.

This means that police officers charged with serious crimes in Georgia have a legal right to appear before the grand jury considering the charges against them. They get to make a statement and sit through all the other evidence, but they do not have to answer any questions. Even their lawyers get to sit in.

The DA's know this and try to get around the statute. Their argument is usually that the cop was not "performing his duties" because he was violating the law. Of course, that begs the question. You can't assume that the officer is guilty until he is indicted and convicted. Until then, he is presumed innocent like everyone else.

Our firm has represented several police officers charged with crimes, in both Georgia and federal courts. (Read the local media coverage of our work in these cases.) In my experience, Bowers is right. Grand juries are reluctant to indict police officers when the officer is able to speak directly to them and explain the circumstances that led up to the allegations. I have never had one of my officer clients indicted after they appeared before the grand jury considering the charges.

Of course, it helps to have a client who is not guilty. We'll see how this case turns out.

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Posted In: Georgia Criminal Law , Public Corruption

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