Georgia Criminal Defense Lawyer Blog

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

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

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

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

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

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

The Gainesville Times has the story.

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

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

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

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

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

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

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Posted In: Georgia Criminal Law , Sex Crimes

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

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

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

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

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

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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.

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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.

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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.

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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.

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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.

Posted by Bernard Brody | Permalink | Email This Post

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

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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.

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A Clayton County, Georgia police officer was charged this week in another internet sex sting. The Atlanta Journal Constitution has the story of the arrest.

These cases just keep coming. Some criminal defense lawyers, including this one, think it's becoming less of a law enforcement pursuit and more like a witch-hunt. One defense attorney recently went a step further and asked a superior court judge in Northeast Georgia to issue an arrest warrant for the leader of "Perverted Justice", the group Dateline NBC uses to set up these stings. The Athens, Georgia newspaper covered the story, and the lawyer's appeal to the Georgia Court of Appeals.

These cases are generally prosecuted in Georgia state courts, not federal courts. The only time the United States Attorney's office gets involved is if the person is found to have a large amount of child pornography on his computer, or if the person traveled across state lines for the purpose of committing child molestation. And even then, the feds have usually investigated the case from the beginning using federal agents (mostly ICE and FBI). Federal prosecutors have so far stayed away from cases brought by Perverted Justice. I think they see too many problems with an operation like this being run by people who are not working for law enforcement.

We've successfully represented clients in several internet sex cases. Usually, they have been charged with sexual exploitation of a minor, attempted child molestation, and/or enticing a child for indecent purposes. Fortunately, we have been successful in defending many of these cases. I have seen a few cases where the undercover cop goes too far and actually entraps the person into doing something they would not otherwise have done. We think there is also a defense for some of our clients who did not actually believe they were emailing an underage girl. Considering the role-playing that goes on in these chat rooms, a lot of people lie about their age, their height and anything else they can think of.

But people are still getting caught up in these email exchanges and they end up being arrested. We were just retained to represent a well-respected Marine who may have been entrapped by these people. The Albany, Georgia newspaper has the story. We look forward to defending him.

In our opinion, there is a big difference between molesting a child and chatting with a 50 year old male cop who is pretending to be a sexually-active, promiscuous teenager. One is a crime, the other is just stupidity.

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Defense lawyers were successful yesterday in a child molestation case in Marietta (Cobb County), Georgia. The jury returned a verdict of "not guilty" on one count, and could not reach a verdict on the other counts. The defense lawyers who tried the case were obviously pleased with the result. The Atlanta Journal Constitution discusses the verdict and the lawyers' reactions.

Our law firm has handled dozens of false accusations of molestation. Many times, we can investigate the case before an indictment and convince prosecutors not to charge our client. But it takes a lot of work. One of our clients was arrested for molesting two of his step-daughters. We hired a former FBI polygraph expert, had the daughters re-interviewed by our investigator (another former FBI agent), and had a forensic expert review the videotaped interviews of the children to point out the leading questions used by the examiner. The client was never indicted and all charges were dismissed.

In another case, we were retained after indictment and had to defend the case at trial. The client was charged in Winder (Barrow County), Georgia with six counts of aggravated child molestation. We were able to convince the jury that the allegations were false and the jury found him not guilty on all counts.

Sometimes, we are brought in to handle the appeal. Earlier this year, we were successful in reversing a child molestation conviction for our client based on ineffective assistance of counsel. The client would have served the rest of his life in prison, but the Georgia Supreme Court reversed his conviction. He was released from prison last month.

There are certainly legitimate cases of child molestation. But we are seeing more and more false molestation arrests because law enforcement will often accept the child's version of the events without fully investigating the circumstances of the allegations. Given the recent statutes increasing the punishment for these offenses to mandatory prison sentences of up to 25 years for the first offense, lawyers defending these cases need to be diligent and reach out to experts in the field for ways to determine if the allegations may be false and/or motivated by an unknown agenda.

No one needs a good defense lawyer more than someone charged with a sex offense.

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Posted In: Sex Crimes

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