THE GEORGIA LAW BLOG

Legal Troubles at the Fulton Jail

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:54:00 +0000

The jail administrator has quit, and the auditor for the U.S. District Court judge that is monitoring the jail found 4 deputies shredding documents yesterday. The deputies claimed the documents were personal papers and not originals, but upon inspection the documents contained originals. Oh my, what is this gonna lead to. Read reports here from the AJC and here from the FCDR.

Genarlow Wilson Freed

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:53:00 +0000

Read this report from the AJC.

Update: Attorney General Thurbert Baker has announced that the ruling will be appealed, and Wilson's attorney, B.J. Bernstein, is ranting live on CNN.

Jesus, Mr. Baker, can't you let this one go? Nobody except a handful of prosecutors wants to see this man stay in jail. You represent the State of Georgia, the people of the State of Georgia, and we want Genarlow Wilson freed.

DAs Won't Have to Do Furloughs

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:52:00 +0000

After Supreme Court Chief Justice Leah Ward Sears declared a "judicial emergency", Gov. Perdue signed an executive order today providing funds that will allow DA offices across the state to avoid weeklong furloughs of ADAs that were going to be necessary because of a shortfall in the budget. Read this report from the AJC.

Community Activist Questions Wilson's Attorneys' Tactics

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:51:00 +0000

Rev. Markel Hutchins says B.J. Bernstein's decision to not accept plea offers from the State is a mistake, and he's worried that Wilson will have to serve his entire 10-year sentence as a result. Bernstein counters that Hutchins has not spoken with Wilson or his family and does not know the facts or law of the case. She also blasts Hutchins for meeting with prosecutors against her wishes.

Was Sonny's Un-Veto Constitutional?

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:50:00 +0000

Sonny's "un-veto" of the budget bill, followed by a line-iteming out of the worrisome tax cut, constituted a fairly sound practical solution to the budget crisis, but was it constitutional? Some aren't sure (e.g. this from AJC Political Insider and this from Peach Pundit). The line-item veto is authorized by Georgia law (why didn't he just do that in the first place?), but I must confess that I struggle to find any constitutional language that authorizes the taking back of the veto that Sonny executed.

I doubt that anything will come of this, and Sonny's actions will likely stand. In this case that's probably for the best; the tax cut was ridiculous political posturing. But in the future we need to know the rules, preferably before the veto is made.

10th District Special Election

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:48:00 +0000

It appears that it will be a runoff between Whitehead and a surprisingly strong Paul Broun, Jr., though it is very tight between Broun and James Marlow, the leading Democrat. A handful of votes still need to be counted, and a recount will be likely, but people who I trust are calling it already for Whitehead and Broun. The runoff will be in three weeks.

Aggravated Assault Conviction Upheld

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:47:00 +0000

The Court of Appeals affirmed appellants' convictions, finding that 1) the evidence was sufficient to support them; 2) the trial court properly denied appellants' motion to suppress his pretrial admissions, since they were not the product of interrogation; 3) the trial court properly denied appellant's motion in limine seeking to prevent the victims' testmony regarding a pretrial incident between the appellant and the victim, since the victim gave no recorded pretrial statement that would have triggered the discovery duty to give the appellant pretrial notice of the evidence to be introduced; 4) the trial court's error in admitting the testimony of the investigating detective that he was "confident" appellant was responsible for shooting the victim was harmless; 5) the trial court did not abuse its discretion in limiting appellant's voir dire; and 6) appellant did not receive ineffective assistance of counsel.

U.S. Supreme Court Backs Police in Georgia High-Speed Chase Case

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:46:00 +0000

The U.S. Supreme Court ruled Monday that it was reasonable for police to terminate a high-speed chase by ramming the suspect off of the road if the lives of innocent bystanders were threatened. The Court found that, whether or not the officer's actions constituted "deadly force", the relevant test was whether the actions were reasonable under the circumstances. The Court framed the issue of the case as:

"Can an officer take actions that place a fleeing motorist at risk of serious injury or death in order to stop the motorist's flight from endangering the lives of bystanders?"

The Court answered this question in the affirmative.

The case involved a maneuver by the police officer known as a "Precision Intervention Technique" (PIT) maneuver, which consists of bumping the suspect's vehicle in such a way as to make it spin to a stop. In this case, instead of spinning to a stop, the suspect (plaintiff in this case) lost control of his vehicle, ran down an embankment, overturned, and crashed. He was badly injured and rendered a quadriplegic.

The 11th Circuit had previously affirmed the trial court's denial of summary judgment based on qualified immunity. In reversing the Court found that a videotape in evidence of the events in question so clearly contradict plaintiff's version of the facts on the issue of whether plaintiff was driving in a manner that was endangering human life that the plaintiff's version should not be controlling. Viewing the facts in the light of the video, the Court found that the officer's actions clearly did not violate the Fourth Amendment, as they were clearly reasonable.

The plaintiff urged to Court to analyze the case under Garner, 471 U.S. 1, which laid out a framework for "deadly force" cases. The Court, however, interpreted Garner as simply applying the ordinary reasonable test, and at any rate found it inapplicable to these facts since it involved a shooting. The Court then went on to apply the standard reasonable test, and determined that the officer's actions pass that test easily because the innocent lives that the officer was trying to protect outweighed any risk to the suspect's life caused by the officer's actions, especially in light of the fact that the suspect is the one who voluntarily placed himself in the situation. The Court refused to require police to cease the chase in order to protect the innocents, because it said that this would not have as certainly eliminated the danger (in other words, the suspect might have kept running anyway, not sure that the police had stopped chasing him). Also, said the Court, such a rule would be a perverse incentive for fleeing suspects to drive recklessly enough for the police to have to cut off the chase.

Ginsburg concurred, emphasizing that the ruling is not a per se one, but factually dependent.

Breyer concurred, asking that Saucier v. Katz, 533 U.S. 194 (2001) be overruled.

Stevens was the sole dissenter; he was apparently less impressed with the video.

The case is Scott v. Harris, and the opinion can be accessed here. The Court also took the unusual step of placing a link to the video in question on their website, and that can be accessed here; click the link next to Scott v. Harris to download it.

Cocaine Conviction Upheld

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:44:00 +0000

Defendant appealed on the grounds that his character was improperly placed into evidence and that the evidence was insufficient. Officers saw defendant throwing a crack pipe onto the ground while serving an arrest warrant, and so defendant was not "merely present" at the scene of arrest. In the arresting officer's testimony, she mentioned that she was on the lookout for defendant on the day of arrest because of an "outstanding warrant for burglary." The trial court admitted the testimony as part of the res gestae but gave a curative instruction to the jury to only consider the testimony for the limited purpose of explaining why the officer was in the area on the day of arrest. The Court of Appeals held that this was not error.

Judge Abused Discretion In Dismissing Without a Hearing

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:43:00 +0000

The Supreme Court reversed the Court of Appeals' affirmation of the dismissal of plaintiffs' action as a sanction for not appearing at their scheduled deposition. The Court held that the trial court abused its discretion in imposing the extreme sanction of dismissal without holding a hearing to determine whether the plaintiffs' had acted willfully.

According to the Supreme Court opinion, the evidence showed that the plaintiffs had complied with the discovery request of the defendants during the early part of the litigation. The plaintiffs' counsel then was allowed to withdraw when the plaintiffs fired him via letter. The defendants then scheduled depositions, which the plaintiffs sought to have rescheduled because they had not obtained replacement counsel. The defendants agreed to postpone the deposition twice for this reason. Prior to the third deposition date, the plaintiffs contacted the defendants and told them that they were talking to an attorney and expected to hire him; the defendants asked that they be notified when the counsel was hired. No further communication occurred between the parties, and the plaintiffs did not appear at the deposition because they had not yet hired counsel, and they were under the impression that if the third date would be rescheduled for this reason.

A few days later, defendants filed a motion to dismiss, and then a few days after that plaintiffs' new counsel entered an appearance. The plaintiffs and their counsel claim that neither ever received the motion to dismiss. The court granted the motion without a hearing four months later.

The Supreme Court found that these facts did not provide the type of "exceptional case" where dismissal can be had without a hearing on willfulness, and that therefore the trial court erred in not having one prior to imposing the extreme sanction of dismissal.

Meth Convictions Upheld

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:42:00 +0000

Defendant appealed his convictions for methamphetamine manufacturing and possession (and other charges), arguing that the trial court erred in admitting a portion of his custodial statement and some physical evidence.

Defendant challenged the admission into evidence of his custodial statement that he "turned the electric meter over," saying it improperly introduced his character into evidence. The Court of Appeals held that the trial court properly admitted the statement as part of the res gestae of the burglary.

Defendant also challenged the introduction into evidence of fluid samples allegedly collected at his residence because the State did not authenticate both samples introduced. The Court of Appeals upheld the trial court's decision, stating that, in the absence of any evidence of tampering on the part of the police officers, the testimony of one of the two officers that collected the samples provided a sufficient chain of custody.

11th Circuit Finds "Safety-Valve" Provision Mandatory

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:41:00 +0000

At the end of an otherwise glorious merchant marine career, defendant was convicted of smuggling heroine into the country. The government agreed pursuant to a plea bargain to recommend a sentence of 70 months, which is at the low end of the sentencing guidelines for the defendant. The district court instead sentenced defendant to the statutory minimum 120 months, believing it had discretionary authority to ignore the "safety-valve" provisions of 18 U.S.C. 3553 (f) (which shift sentencing to the guidelines regardless of any statutory minimums if five criteria are met). The 11th Circuit held that the safety-valve provisions are clearly mandatory in cases where the criteria are met, and that the district court did not have discretion to instead use the statutory minimum sentence. The sentence was vacated and remanded.

Teacher's Termination Reversed

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:39:00 +0000

A divided whole Court of Appeals held that the trial court erred in finding that the teacher's attendance at a pre-planning meeting before the 2004-05 school year constituted subordination pursuant to O.C.G.A. 20-2-940 (a) (1).

The teach, Dr. Sharon Brawner, was terminated after attending a pre-planning day at the school while on long-term disability leave because of treatment for cancer. The Marietta Board of Education terminated Brawner on grounds of insubordination and other "good and sufficient cause." The State Board of Education upheld the termination, as did the superior court, finding evidence of insubordination.

The Court of Appeals ruled that there was no evidence that Brawner's attendance at the pre-planning meeting was a demand to be reinstated to active duty. Brawner did not, therefore, disobey the reasonable requirement of the Board that she present a certification that she was medically fit to return to duty prior to returning to work.

Justices Andrews and Ellington dissented, saying that the superior court's decision should be upheld under the "any evidence" standard.

Roche "On Track TesTstik" Inadmissible Without Expert Testimony

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:37:00 +0000

The trial court revoked the 14-year balance of Sean Mann's probation after admitting the positive results from a Roche "On Track TesTstik" test for cocaine. The trial court apparently relied on only one Georgia case in determining that the test had reached a "scientific state of verifiable certainty", so that it could be admitted without the foundation of expert testimony. The Court of Appeals held that this is insufficient to establish that the test had reached a scientific state of verifiable certaintly, and that the majority of Georgia authority on the issue indicated that the test had in fact not reached such a state.

Because the trial court was also authorized to revoke the probation based on Mann's violation of a restitution condition of his probation, the Court of Appeals vacated and remanded with instructions for the trial court to exercise its discretion as to whether to revoke on that basis.

Partial summary judgment in favor of state affirmed in sale/leaseback payday loan case

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:36:00 +0000

The state, through the Industrial Loan Commissioner John Oxendine and the Attorney General Thurbert Baker, brought an action against numerous individuals and corporations operating cash advance and finance businesses, arguing that their sale/leaseback practices violated the payday loan statutes. The trial court found that the state had established that the sale/leaseback operations were a sham, and that all of the salient elements of a payday loan were present in the practice. The court therefore granted partial summary judgment to the state, finding that the sale/leaseback practice violated the payday loan statutes as a matter of law. The Court of Appeals affirmed.

Obsure Georgia case swings Kennedy in global warming case

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:35:00 +0000

Almost a century ago, Georgia sued Tennessee Copper Co. over noxious emissions from a copper plant that were destroying forests and crops in Georgia. In that case, the U.S. Supreme Court found that Georgia had standing, in its capacity as a sovereign, above and beyond that of an individual. Justice Kennedy, who provided the swing vote in last week's 5-4 decision in Massachussetts v. EPA (holding that the EPA can regulate greenhouse gasses), found this precedent persuasive in determining that Massachussetts had standing. Interestingly, none of the parties' briefs brought up the Tennessee Copper case; Kennedy himself did during oral argument.

Read this article about the Massachusetts case and the role of Kennedy and Tennessee Copper.

Fulton DA Remains on Nichols Case

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:34:00 +0000

The Superior Court judge in charge of the Nichols murder trial denied a motion to reconsider an earlier ruling not disqualifying the Fulton County DA's Office from the case. So, assuming that the trial ever happens, the local prosecutor will remain the prosecutor in the case.

Meanwhile, the trial has been put off until September because the public defender's office doesn't have the money to continue defending Nichols.

Is a plea bargain with a life sentence the best result for everyone involved now?

Winners and Losers

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:33:00 +0000

This week's winners and losers:

Winners -

Public Defenders - Court of Appeals decision means that counties will pay for appeal transcripts, not the Defender Standards Council.
Cash, Krugler, & Fredericks - $5 million jury verdict in Hall County.
Developers - "Private cities" bill passes in state Senate.

Losers -

Billboard treecutters - temporary restraining order issued to stop permits to cut trees around billboards in I-185 corridor, and bill that would have allowed more clearcutting around billboards fails to make it past crossover day.

Gun rights v. Property rights

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:31:00 +0000

The state Senate is scheduled to vote on SB 43 next Tuesday. The bill would let gun owners have guns in their vehicles anywhere, even on private property where businesses previously had policies not allowing guns. This is bad, stupid bill. It undermines the right of business and private property owners to set rules for their employees and workplace. It also potentially opens up a pandora's box of liability issues for the property owners. And all for a symbolic victory for gun rights proponents that will have all-too-non-symbolic results when one of the guns is used for a workplace massacre.

In short, urge your state senator to vote "NO" on SB 43.
POSTED BY BILLY MERCK AT 8:46 PM
LABELS: EMPLOYEE, EMPLOYER, GUNS, LIABILITY, PROPERTY, SB 43, STATE SENATE, WORKPLACE
2 COMMENTS:

Adrian said...
It is not a stupid bill. I understand your argument, but the status quo does more for allowing private employers to disarm law-abiding citizens than disarming potential criminals. The criminally minded are more likely to be breaking the property owner's rules to begin with. It would be an invasion of property rights, though it supports a result I feel comfortable with. I would rather the legislature fix our awkward and arbitrary school safety zone law before adding new types of awkward gun regulations, though.

MARCH 26, 2007 12:16 AM
Billy Merck said...
The status quo allows employers to disarm law-abiding citizens on its property; in other words, to make a decision to have a gun-free workplace. I want my employer to be able to make that decision (and I want them to make it, incidentally). Would an employee or other "law-abiding citizen" be able to stop a gun-bearing criminal with the weapon in their vehicle? Is that the reason they should be allowed to have it? If your answer to that question is no, then the only reason they should be allowed to have it on the employer's property is to protect some abstract 2nd amendment right. That abstract right is in direct conflict with the employer's property rights, which in this case seem to me to be much less abstract. I simply feel that the resolution of these conflicting rights should be resolved in favor of the property owner.

At any rate, the bill wasn't brought up before crossover day, so there's nothing for me to worry about this year.

And by the way, it's good to see somebody's reading Georgia Law Blog! Share the word.

City could deny permit for stadium because of traffic

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:30:00 +0000

The Supreme Court reversed the grant of Fellowship Christian School's petition for a writ of mandamus arising from it's application for a conditional use permit to build several buildings, including a 1500-seat football stadium.

Area residents opposed the permit, even after FCS agreed to several conditions designed to alleviate the impact of the stadium. The planning commission nevertheless recommended approval; the mayor and City Council approved the permit for the other buildings but not for the stadium. FCS filed a petition for mandamus, claiming the decision was an abuse of discretion and a violation of equal protection. The trial court granted the petition.

The Court of Appeals reversed, finding that there was evidence before the Council that the stadium would exacerbate an already existing traffic problem in the area. The Council's decision was therefore not so unsupported by evidence so as to constitute an abuse of discretion. The Court of Appeals additionally found that the traffic problem constituted a rational basis for treating FCS differently than similarly situated applicants, so that there was no equal protection problem with the Council's decision.

Genarlow Wilson Freed

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:27:00 +0000

The judge considering Genarlow Wilson's appeal not only freed Wilson today, but amended his felony convicton to a misdemeanor one, thus exempting him from sex offender registration. Monroe County Superior Court Judge Thomas Wilson found that the 10-year sentence and sex offender registration requirement that accompanied it were both clearly "cruel and unusual punishment" in light of the circumstances of the case and also considering the change in Georgia law subsequent to Wilson's conviction that transformed the same crime he was convicted of into a misdemeanor.

Read this report from the AJC.

Update: Attorney General Thurbert Baker has announced that the ruling will be appealed, and Wilson's attorney, B.J. Bernstein, is ranting live on CNN.

Jesus, Mr. Baker, can't you let this one go? Nobody except a handful of prosecutors wants to see this man stay in jail. You represent the State of Georgia, the people of the State of Georgia, and we want Genarlow Wilson freed.

Georgia Set for Execution Despite Concerns in Other States

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:26:00 +0000

Georgia is a couple of weeks away from its first execution in a couple of years on June 26. John Washington Hightower will be executed by lethal injection for three murders.

9 states currently have lethal injection executions on hold because of concerns about challenges to the execution method as being "cruel and unusual punishment". Georgia, on the other hand, has reaffirmed the constitutionality of lethal injection as recently as October of last year. See Walker v. State, 2006 Ga. Slip (S06P0992)(no evidence, however, was entered in this case as to the lethal injection protocol itself).

Interestingly, Georgia just finished revamping its lethal injection protocols last week. State officials claim the timing is just a coincidence and a byproduct of lengthy appellate procedures.

Habeas Court Reversed

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:25:00 +0000

the habeas court erred in relying on the assumption that Gibson could have discovered the factual basis for his conflict of interest claim prior to filing his first habeas petition to reach the conclusion that Gibson’s conflict of interest claim was barred as successive, since Gibson was entitled to presume that the potential conflict of interest did not exist inasmuch as Gibson’s trial counsel had multiple duties of disclosure.

Immigration Debate Rages

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:24:00 +0000

The Senate yesterday voted to proceed again to the immigration reform bill, and several amendments have been tabled so far today. A cloture vote is set for tomorrow, with a final vote on passage possible on Friday if cloture is invoked.

Whatever you might think of the current bill, it's clear that something must be done to address the 12 million plus illegal immigrants in this country (somewhere between 500,000 and 1 million, depending on whose numbers you believe, are currently in Georgia [11 Alive]). The cited 11 Alive piece also points out that Georgis has the highest rate of new illegal immigration, at least as of last year at the time of the piece.

Something must be done, and deportation of all illegals is not feasible. It is for that reason that I support the bill being debated in the Senate despite what I perceive as some fairly serious problems (e.g. the unnecessary guest worker program).

AJC Wonders About Vick's Contract

noreply@blogger.com (Todor slavkov) — Mon, 12 May 2014 13:23:00 +0000

The Falcons have given no indication of any inclination to unload Vick, who has been involved in a series of off-field controversies. But from a contractual standpoint, what would happen if the team got to that point with him?

NFL contracts, unlike those in Major League Baseball, the NBA and the NHL, are not fully guaranteed. That means football players are assured of receiving only the portions of their contracts that are stipulated to be guaranteed — generally signing bonuses. Vick's contract included $37 million in guaranteed bonuses.

The rest is in base salary, which increases each year, payable only as long as he remains on the team.

The NFL's standard player contract stipulates various grounds under which clubs may terminate the contract. One such stipulation: ". . . [I]f player has engaged in personal conduct reasonably judged by Club to adversely affect or reflect on Club, then Club may terminate this contract."

If a contract is terminated under that clause, the player has the right to file a grievance and have an arbitrator decide whether the club acted reasonably.

I've got a question that is perhaps more to the point: How deep into this does Vick have to get before the Falcons do "give an indication of an inclination" to dump him?