How A Marietta Lawyer Blew Open a GM Scandal

"Although attorneys are often justly lampooned, litigation has been more effective at shaping responsible business practices than government. It’s why trucks beep when they back up and farm machinery comes equipped with safety guards, why asbestos no longer poisons homes, schools and workplaces, and fast-food restaurants, aware of their super-sized liability, convinced meat packagers to clean up processing plants. When juries speak, Corporate America listens."





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The Top 6 Things You Can Expect In Court

The Top 6 Things You Can Expect In Court

People who find themselves accused of a crime for the first time have no idea what to expect in court.  Most people never set foot in a courtroom, and form opinions about what to expect from what they see on television.  Here's my list of what to expect in court when you've been charged with a crime: 

  1. Expect POLICE OFFICERS who think you are guilty and should go to prison for a long time.  They have probably testified hundreds of times.  They have probably gotten together in advance with the other police witnesses to coordinate their testimony.  They know how to dress, how to act, and how to testify.  They will wear their badges and uniforms so that they look like authority figures that the jury can trust.   The jury will trust them.
  2. Expect one or more angry VICTIMS demanding that you go prison for a long, long time.  They will remind the prosecutor that they are registered voters, that he works for them, that he needs to do what they say, and that he needs to keep them safe from scum like you.  They won't care who you are, how sorry you are, how young you are, why you are accused, that you've never been accused before, or that you promise to never do it again.   They will not want the DA/Solicitor to plea bargain at all with your low-life defense lawyer (me).  All they will want to see is you going to prison for a long, long time. 
  3. Expect a PROSECUTOR who gets elected and paid by the victims.  He is looking to add your name to his list of people he has sent to prison.  If he is an ambitious young prosecutor, he wants to build his reputation as quickly as possible.  If he is an experienced old prosecutor, he has heard every story in the book and has no interest in hearing yours.  He knows he has charged you with everything he can think of so that he has the upper hand against you in negotiations.
  4. Expect an JUDGE who is elected by the victims (like the prosecutor), gets his paycheck from the same place as the prosecutor, cops and public defender, and wants to keep his job with a reputation for being "tough on crime."   He has heard ever sob story in the book, including yours.  He won't care that you are young, or poor, or have kids, or are a good student, or that this is your first time arrested.  You can apologize all you want, blame drugs, blame your "wrong crowd" of friends, and blame anyone else you want, but the judge won't buy it. 
  5. Expect a JURY of people who want to be anywhere but there.  They will see you as a personal inconvenience to them.  Half of them will think you are guilty from the start simply because you have been charged with a crime.  They will say that they will presume you to be "innocent until proven guilty," but they won't mean it.  They will tend to believe whatever the police witnesses say and disbelieve whatever you say (if you testify at all).  They will want to convict you quickly so they can go home.
  6. Expect to be offered a PUBLIC DEFENDER who is overworked and underpaid.  He might talk to you before your court date, but don't be surprised if he doesn't.  He gets paid the same whether you like him or not; whether he wins or not; whether you refer future business to him or not.  He does not need you to be happy.   He does not need to impress you, impress the judge, impress the jury, or impress anyone.  His job and future income are going to be exactly the same regardless of how your case goes.  You are probably just 1 of 100+ cases that he has, so don't be shocked and don't take it personally if he doesn't quite remember your name or the names of any of your family or witnesses.

Scared yet?  You should be.  Now go hire an attorney of your choosing and fight for your freedom. 

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Can My Accuser Drop The Charges?

Many times I am asked if the accuser can just "drop" the charges against the defendant.  Unfortunately, that isn't as easy as it is on television. 

In a criminal case, the charges do not belong to the victim, so the victim can't "drop" the charges any more than the victim could increase the charges.  Criminal charges are brought by a District Attorney or Solicitor on behalf of the victim, who is just a witness in the case like anyone else.  Victims can communicate with the prosecutor to express their disinterest in seeing the case prosecuted, but the ultimate decision is up to the prosecutor.

In most cases, the victims made statements to the police, either written or oral, when the case began.  The victim may have been the one who called the police to begin with.  If victims later make statements contradictory to their original statements, they can be charged with filing a false police report or the felony charge of giving false statements.

There is a big difference between saying "It didn't happen" and saying "It happened, but I no longer care."  If the victim says that it didn't happen, then the victim is likely admitting that they lied to police originally and now the victim can be charged.  If the victim says that it happened but they don't care anymore, they are just  reinforcing their original statement that it happened, which strengthens the prosecutor's case.

All the prosecutor really cares about is whether it happened.  The fact that the victim may now want to drop charges doesn't mean the prosecutor will drop charges.

A twist on this issue was when I was told by a client that the "victim" is offering to "drop charges" in exchange for money.  He asked me if he should pay it.   That is a horrible idea for both parties. 

By offering to refuse to cooperate as a witness in a criminal case in exchange for money from the victim was asking him to join her in the crime of witness tampering:

"A person who is or may be a witness at a trial, hearing, or other proceeding before any court or any officer authorized by the law to hear evidence or take testimony and who receives or agrees or offers to receive any benefit, reward, or consideration to which he is not entitled, pursuant to an agreement or understanding that his testimony will be influenced thereby or that he will absent himself from the trial, hearing, or other proceeding, shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years."
 ----GA. Code 16-10-92 Witness tampering - witness perspective (Georgia Code (2012 Edition)

In these situations, call the victim's bluff.  Keep good records of every email, text and voicemail where they offer to "drop charges" for money. Do not agree. Just let them keep offering.


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Can I Withdraw My Guilty Plea?

Can I Withdraw My Guilty Plea?

Some clients experience regret about pleading guilty and want to know whether it is possible to withdraw their plea and go to trial instead.  That's not as easy as it may sound.   A negotiated plea is essentially a contract between the prosecution and the defense.  

Official Code of Georgia § 17-7-93 (b), provides that “[a]t any time before judgment is pronounced, the accused person may withdraw the plea of ‘guilty’ and plead ‘not guilty.’” The phrase "at any time before judgment is pronounced" means at any time before the judge orally pronounces sentencing in court.  Therefore, the client had an absolute right to withdraw the  plea before sentence was pronounced, but not once sentence was pronounced. 

After sentencing, the decision whether to allow withdrawal lies within the trial court's discretion.   In order to withdraw a guilty plea after sentencing has been pronounced, the client has to show that it is necessary to correct a “manifest injustice”.   (An exception is in those situations where the plea is a negotiated plea and the judge sentences someone above and beyond the negotiated sentence.) 

Mere regret does not constitute manifest injustice.  The client has to show that the plea was not a knowing, intelligent and voluntary plea.  Clients can argue that they were not in their right mind, were misinformed, or for some other reason did not understand what was happening.  The trial court is the final word of all factual issues, and after sentence is pronounced a guilty plea may be withdrawn only to correct a manifest injustice. 

It would not be feasible for the client to use the same attorney to withdraw the plea as the client used before.   For example, one of the reasons the client may want to argue is that the plea was not knowing, intelligent, and voluntary because the lawyer misinformed the client.  Obviously, the same lawyer cannot make that argument against himself, and  certainly can’t cross-examine himself.  That’s why I advise the client to speak with an attorney other than the original one about withdrawing the plea. Clients are entitled to an attorney on a motion to withdraw a plea if the client cannot afford one and if the client is raising the issue of ineffective assistance of counsel in the client's motion, but if it was a public defender that got the client into a plea that the client now wants to withdraw, why would the client use a public defender again?

The client must also file the motion to withdraw a guilty plea in the same term of court as the plea.  After the expiration of that term, the trial court lacks jurisdiction to allow the withdrawal of the plea.   Thus, after the expiration of that term and of the time for filing an appeal, the only remedy available to the client would be through habeas corpus proceedings.   If the client is successful at withdrawing the plea, neither the client nor the prosecutor can mention the plea or the negotiations at trial.

Even if the client does not withdraw the plea in time, the client has four (4) years to challenge a felony plea (and one (1) year to challenge a misdemeanor plea) via a Writ of Habeas Corpus.  But the client has to have a reason to challenge the legality of the plea.  Regret is not a valid reason.  Valid reasons include that the client's attorney misrepresented something or that the client was promised something in exchange for the plea that the client did not get.  Most of these issues are covered in the long list of questions the client has to answer before a court accepts the plea, which is precisely why they ask the questions.


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Go to Trial, Crash the System

Go to Trial, Crash the System


I found this piece recently, discussing the prospect of what would happen if everyone accused of a crime demanded a trial:

[I]n this era of mass incarceration — when our nation’s prison population has quintupled in a few decades partly as a result of the war on drugs and the “get tough” movement — these [trial] rights are, for the overwhelming majority of people hauled into courtrooms across America, theoretical. More than 90 percent of criminal cases are never tried before a jury. Most people charged with crimes forfeit their constitutional rights and plead guilty.

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.

The author ponders what would happen if people accused of crimes all (or mostly all) refused plea bargains:

Can we crash the system just by exercising our rights?”

The answer is yes. The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.

The idea is similar to the James Mills book "One Just Man" where an idealistic attorney convinces New York prisoners to refuse all plea bargains.  The result brings New York City to its knees.

In theory, I think at least the math is correct:  In Gwinnett County, GA, for example, the DA's Office where I used to work indicts about 5000 cases per year.  (I'm rounding off to make the math easy).  There are 10 judges to hear these cases, meaning each judge gets 500 new feloniy cases per year.  In order to give every accused defendant a trial, a judge would need to dispose of 10 felony jury trials per week.  Rarely can a judge close even two felony trials in a single week.  Most felony trials take most of the week.  That means a judge might be able to try 50 or 60 of his 500 felony cases per year, if he ignored every other type of work (divorce, child custody, contract disputes, personal injury cases, real estate disputes, etc.)  The 90+% of cases that didn't get tried would remain on this docket while new felony cases keep coming in. 

In reality, it isn't as simple as it looks.  "Cases" means "people."  So for the 90% or more of cases that don't get tried, that represents people whose cases are still pending.  They may be in jail without bail (or with a bail they can't make), or they may be free on bond with a felony case hanging over their head.  Either way, they might want to 'get it over with" by pleading guilty rather than awaiting their turn for a trial.

Who really wins and loses?  If a person awaiting trial on Aggravated Assault facing 20 years in prison negotiates a plea of guilty with 5 years of probation, is that person really a victim of an overburdened system?  Or is that person using an overburdened system to his advantage?  Perhaps the DA wanted prison time, but is forced to negotiate plea deals to probation.  So who is really "forced" in this situation?  Is it the priosecutor?  Is it the defense?  And who is doing the forcing?

We have the justice system we are willing to pay for.  In my example of Gwinnett County, the voters seem content with a justice system that can have trials for about 5% of the felony cases.  The remaining 95% must be negotiated.   That's about normal.  If the voters want more cases to be tried rather than negotiated, they can spend more tax dollars for more judges, prosecutors, jails, jailers, courtrooms, etc.    Whether that works in favor of the defense or the prosecution is really a matter of perspective and each particular case.  Each side wants more resources when it would benefit their iside.  Each side is happy to use the lack of resources to apply pressure to the other side when it benefits them to do so. 

Finally, the hypothetical idea of a prisoner's "strike" against plea bargains faces what is known as the "prisoner's dilemma." I.e., each prisoner will do what is best for them, rather than prisoners as a whole.  (This is why multi-defendant cases often have defendants who cut deals to become witnesses for the State.  "The first to squeal gets the deal.")   So while a widespread prisoner "strike" would crash the system, it's not anymore likely to happen now than when James Mills wrote "One Just Man" almost 40 years ago. 

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Ochocino Gets Thirty Days for a Butt Slap

Ochocino Gets Thirty Days for a Butt Slap

Former NFL start Chad "Ochocinco" Johnson accidentally earned himself 30 days of incarceration when he raised the ire of a Broward County judge by congratulating his attorney with a pat on the butt:

Johnson on Monday accepted a plea deal for violation of probation. The charge stemmed from his domestic battery conviction last year.

The plea deal he accepted extended his probation until Dec. 21.

"You better thank your lawyer. He did a great job for you," Broward Circuit Court Judge Kathleen McHugh told Johnson after he accepted the plea deal.

Johnson then slapped his attorney, Adam Swickle, on the butt. The courtroom erupted in laughter, but McHugh said she didn't think Johnson was taking his case seriously and rejected the plea deal.

The case was recalled, and after Johnson pleaded guilty to violation of probation, McHugh sentenced him. His probation was also extended to Dec. 21 and he must perform 25 hours of community service, two of the same terms included in the plea deal she rejected.

During his probation, Johnson must attend counseling twice a week.

Johnson apologized several times to McHugh, saying he didn't intend to disrespect her or the court.

Johnson worked in a sport where men routinely slap each other on the butt as a sign of congratulations.  Johnson's lawyer was a man.  He didn't seem offended.  Nevertheless, the judge was.  And that's all that matters.   

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Georgia General Assembly Awards Wrongfully Convicted Man $400,000

The Georgia Legislature has quietly awared wrongfully convicted Lathan Rydell Word a total of $400,000 for his eleven years spent in prison for a crime he didn't commit:

NOW, THEREFORE, BE IT RESOLVED AND ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA that the Department of Administrative Services is authorized and directed to pay the sum of $400,000.00 to Mr. Lathan Rydell Word as compensation as provided above. Said sum shall be paid from funds appropriated to or available to the Department of Administrative Services and shall be in full and complete satisfaction of all claims against the state arising out of said occurrence. Said sum shall not be subject to state income taxes and shall be paid in the form of an annuity over a 20 year period with an initial lump sum payment of $100,000.00 and monthly payments thereafter. None of the funds provided by this resolution shall be used to pay attorney's fees if such fees are calculated on a contingency fee basis.

Mr. Word was wrongfully convicted of an Armed Robbery and sentenced to fifteen years in prison just as he was about to join the USMC.  After winning a new trial, he refused to plea guilty to time served and demanded a new trial, in which he was acquitted. 

I wish these things would get more publicity.  Out of a jury pool of 50, I will typically get at least 5 people willing to admit that they think anyone in court charged with a crime must be guilty of something.  They naively believe that there are filters in place to prevent innocent people from getting to trial, and that their job as jurors is little more than to rubber-stamp the indictment.  It is that sort of thinking that costs taxpayers hundreds of thousands of dollars down the line with the innocent person finally wins their freedom.  Jurors ARE the filter, and more of them need to realize it.

Note how the bill prohibits any of the award from being used to pay attorney fees.  By doing so, the legislature protects itself.  By prohibiting attorney fees, the legislation eliminates the financial incentive for attorneys to take these kinds of cases, which reduces the number of times the legislature has to deal with it, and makes it more difficult for people like Mr. Word to get the legal assistance he needs. 

The entire bill, including details about Mr. Word's case, can be found here.

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