Georgia Criminal Defense Lawyer Blog

The Georgia Court of Appeals recently reversed the convictions of a defendant after the trial court failed to instruct the jury on the defendant’s self-defense claim.

In Harris v. State, the defendant was convicted by a jury of four counts of aggravated assault, three counts of aggravated battery, and two counts of burglary. The defendant’s sole defense at trial was self-defense and accident. Yet, the trial court judge failed to instruct the jury on this sole defense. Under Georgia law, a jury must be instructed on a defendant’s sole defense even if the defendant did not request for the jury to be instructed. The Court of Appeals reversed the defendant’s conviction as a result and sent the case back to the trial court to be retried.

Our defense attorneys have handled many serious criminal cases, including murder and aggravated assault. When our defense involves a claim that the client was defending himself, it is vitally important to have the trial judge properly instruct the jury on the law governing self-defense claims. Perhaps this decision will help insure that judges always give this charge in self-defense cases.

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Posted In: Georgia Criminal Law , Violent Crimes

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Gwinnett County Superior Court Judge Michael Clark set bond for the four Meadowcreek High School students charged with the armed robbery of a man at the Orchard Park Apartments in Norcross last month. The students are all current or former members of the school's football team. The bond was set at $50,000, and the judge imposed a condition of house arrest and ankle monitoring.

The Atlanta Journal Constitution has the story.

Bond in armed robbery cases is not automatic and it usually takes some time to get a full hearing in court. Georgia law provides that pretrial bond in certain serious crimes (like armed robbery) can only be set by a superior court judge. (For most felonies, bond can be set by a schedule at the jail or by a local magistrate judge.) Because superior court judges are the only judges who can set bond in this type of case, it also generally takes longer for defendants to get bond hearings when they are charged with armed robbery. In some jurisdictions, however, the local superior court judges empower certain magistrate judges to set bond in these cases. That often shortens the time that the defendant has to wait for a hearing, but it doesn't necessarily improve the chances that bond will be granted. Like so many other things in the Georgia criminal justice system, a lot depends on the particular judge conducting the hearing.

Our firm has successfully handled many armed robbery cases. We know from experience that the issue of bond is vitally important, not just to the person in jail but also to his or her family. If bond is granted, it also helps the lawyer and client communicate more freely and work to build a better defense. There is also less pressure to enter a quick guilty plea simply to avoid more jail time.

Now that bond has been set for these defendants, the case will remain pending until the DA's office obtains a grand jury indictment. In Gwinnett County, that process can take several months.

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Posted In: Georgia Criminal Law , Violent Crimes

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

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

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

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

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

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

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Posted In: Georgia Criminal Law , Violent Crimes

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

The Atlanta Journal Constitution has the story.

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

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

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

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

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

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

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

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Posted In: Georgia Criminal Law , Violent Crimes

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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.

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Posted In: Georgia Criminal Law , Violent Crimes

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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.

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Just a few hours ago, a Houston County, Georgia jury convicted a husband and wife of felony murder for the death of a friend who had overdosed on drugs they provided her. The Macon Georgia newspaper has the story and the verdict returned this afternoon. The Atlanta Journal Constitution also covered the trial.

The case sounds like a scene straight out of Pulp Fiction, but it's true and it's tragic. The convicted couple were with their friend and gave her a syringe with a significant amount of Oxycontin. The friend injected herself with the drug and died shortly thereafter. Apparently, she had been drinking alcohol earlier (her BAC was .198), and the Oxycontin put her over the edge. No one was trying to kill her, but the couple panicked when the girl had a bad reaction. They left her on the front lawn to die.

The story is a tragic example of how the felony murder statute works in Georgia criminal cases. In Georgia, a person commits the offense of murder when, in the commission of a felony, he causes the death of another human. There is no need for malice or intent to kill. You don't have to pull the trigger to be convicted of murder in Georgia. And the penalty - life in prison - is the same.

In the Houston County case, the couple were convicted of felony murder because their friend died as a result of the drugs they gave her. Providing the drugs is a felony (unlawful distribution of a controlled substance), and their friend died as a result. The judge sentenced them both to life in prison. It's the same sentence they would have received if they had shot their friend in the head with a gun.

Our firm has handled several felony murder cases, and we have one pending now in Dekalb County, Georgia. In that case, our client is alleged to have been engaged in an armed robbery that caused the death of the person being robbed. The fact that our client was not the shooter doesn't matter. It wouldn't even matter if our client was just the getaway driver. Anyone involved in the commission of a felony that results in the death of another person is guilty of felony murder and faces life in prison if convicted.

Because the penalty is so severe, most criminal defense lawyers will try to negotiate a plea to a lesser charge if there is significant evidence that their client was involved in a crime that led to a murder. If their client was only a minor player in the underlying felony, a plea to a lesser offense can usually be obtained.

Perhaps this couple was offered such a plea and gambled on a trial. Sometimes that works, but as this Middle Georgia couple just learned, you usually get the max if you lose. It's a tragic end to a tragic case.

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