Scott Key is absolutely correct that the current executive branch decision of the governor’s public defender agency creates dual standards, one standard for those criminally charged individuals with money and the clients of the public defender office.

He goes on to note the number of ways that the executive branch’s decision runs afoul of ethical standards, not just the Georgia Rules of Professional Responsibility, but also ABA standards and standard for how Federal defenders should conduct themselves in conflict cases. And Professor Mears says that nothing less than the credibility of GPDSC is at stake in this question.

The Ad Hominem Arguments

Mr. Merritt does a couple of rhetorical things in the post. They’re both worth examining as examples of a classic ad hominem attack. An ad hominem argument is an attempt to refute the truth of a claim by pointing out something negative about the person supporting it. Mr. Merritt shrouds the opening and closing of this argument with this rhetorical device. Note that paragraph one is an attack on me as either uninformed or misinformed. Of course, Mr. Merritt doesn’t know me at all and can’t possibly know how informed I am. He doesn’t know, for instance, that I am the chair of the amicus committee for the Georgia Association of Criminal Defense Lawyers and that our committee, in conjunction with our organization’s indigent defense committee chair provided amicus support for a similar proposed rule regarding conflicts in public defender’s offices. He wouldn’t know that I have read the briefs, watched the oral argument in its entirety and have been in conversation with our indigent defense chair, himself a man who represents indigent defendants, about this rule. But his post is not about me, it’s about the fact that he disagrees with me.

And Mr. Merritt’s argument also closes with an ad hominem attack, this one a bit more powerful for its subtlety. I’ll quote it verbatim to demonstrate its worthiness to be included in a philosophy 101 textbook as an example of the ad hominem fallacy: “But I do take issue when someone from outside the public defender world undertakes to criticize one of my colleagues …” This passage is from Mr. Merritt’s last sentence. We have two choices in how to interpret this passage. One, is that it’s merely a rhetorical device. Better to attack me as the person making the argument than to attack the argument itself (it’s the kind of thing, by the way, that prosecutors often do in closing argument.). At least, I hope that it’s merely a rhetorical device. The less charitable view of the argument is that it expresses an honest belief that nobody had better dare criticize GPDSC or its actions unless they are a person within that system. I am hesitant to indulge the latter too terribly much because of how offensive it potentially is. GPDSC, as Mr. Merritt points out, is a government agency. And it is troubling to think that there is any government official or agency that is beyond criticism from an ordinary citizen unless the citizen part of that “world.”

Think, for a moment, how the argument sounds if directed to criticism of another government agency. Don’t like the governor? Tough. You don’t work in his office. Don’t like what the legislature is doing? Unless you are a legislator yourself, I take issue with your right to even say things about the legislature. So, you’ll see, I hope that the closing comment was merely a rhetorical thing. If it expresses an honest heartfelt belief about my right to even criticize, then it is a perfect example of the iron law of bureaucracy I spoke about in my previous post. The First Amendment, of course, exists precisely so that ordinary people outside the “world” of government can criticize it. And Mr. Merritt’s colleague appeared at the Supreme Court as a government agent, in a public courtroom, where he articulated an official agency position. When he did that, I understand (not merely an understanding I developed in law school but an understanding that dates back to a high school civics class I took in the 9th grade) that citizens can criticize. If I’m wrong about that, either government has changed or I’m just fundamentally mistaken. Or maybe I’ve been teleported to Iran and was unaware until recently.

Another observation before I move on. I’m not sure what the membership requirements are to enter the “public defender world.” Apparently, the fact that I carry an indigent appellate caseload (albeit from a county that opted out of GPDSC and therefore funds experts and actually pays the lawyers without cutting their bill) and have for the past ten years, does not make me eligible for citizenship in the “public defender world.” And perhaps Mr. Merritt didn’t know these things about me before he penned his comment in which he criticizes me for being uninformed. And if you, as the reader, are a citizen of the State of Georgia, you are bona fide to criticize Mr. Merritt’s colleague, too. Why? Because he is part of a government agency that took a public position on that agency’s behalf in a public courtroom. Were the Justices who questioned Mr. Merritt’s colleague at the oral argument out of line, too? They, too, are not part of Mr. Merritt’s “public defender world.”

The Attorney General’s Role

Mr. Merritt calls the fact that the Circuit Public Defender and the Attorney General appeared as co-counsel at the argument a fairly normal thing – “[h]ardly a surprise, a secret, or a sign of skulduggery.” He is right about the fact that the Attorney General represents executive agencies. And, yes, GPDSC, is an executive agency. It was not always so, of course. At its creation, GPDSC was in the judicial branch of government. In 2008, Gov. Perdue and the Georgia General Assembly moved GPDSC into the executive branch, the same branch of government as the attorney general, the prosecutor who seeks to put defendants in jail, and the police officer who arrested the defendant. That move, itself, was criticized as creating an inherent conflict. A surprise? Hardly. A secret? Not at all. In fact, the public defender and the Assistant Attorney General shared the same table as co-counsel in a very deliberate and public way (which was part of the point of my original post). Sculduggery? At a systemic level, I’m not so sure.

The attorney general’s office represents the State at the appellate level in murder cases, in cases where the constitutionality of a criminal statute is at question, and on certain occasions to prosecute indigent defendants in trial courts. So, yes, it is interesting to note that the attorney general is also GPDSC’s lawyer. My original post was about one type of conflict. But I welcome the opportunity to speak of another.

Financial Incentive

I want to spend a little time with this argument: “a public defender’s office is NOT the same as a private law firm because public defenders do not have a financial interest in the outcome of their case …” (author’s all caps). As a lawyer in private practice, I actually don’t have a financial interest in a case’s outcome. If I took a criminal case on a contingency arrangement (“you don’t pay unless I get you acquitted or your conviction reversed on appeal”), I’d likely go out of business before the folks in Atlanta could disbar me. My clients pay me to represent them, but my fee arrangement is not results-based. I’d commend my fellow member of the bar to Rule 1.5 (d)(2) of the Georgia Rules of Professional Conduct.

The conflict rule does not exist to deal with a profit motive. The conflict rule exists so that a lawyer’s duty to one client does not conflict with a lawyer’s duty to provide zealous advocacy to another client. It’s not a matter of finances, it’s a matter of loyalty. I’d commend my fellow member of the bar to the Comments to Rule 1.7 of the Georgia Rules of Professional Conduct. Finances aren’t mentioned at all. Count the number of times you see the world “loyalty” or some similar word.

To be sure, I’m more likely to be hired if I’m a good lawyer than a bad lawyer. And I’m more likely to command a better fee if I can do a good job than if I’m mediocre. And while being a public defender is certainly different, I would hope that there are still incentives to be good at your job. And I would hope that those incentives are somewhat financial (if you can’t do the job well, you lose your paycheck). And I am sure that there must be performance standards in place for circuit public defenders as well. There’s a profit motive for all of us, even if we are employees in a law firm or a public defender’s office.

Again, why should a client who hires a private lawyer expect a different duty of loyalty than a client who must rely upon GPDSC? Why does the definition of what is ethical differ based upon the amount of money in a person’s bank account?

Profit motive fuels GPDSC’s argument. With a legislature that chooses not to adequately fund the system, the agency seeks to change the very definition of what ethical representation is. But they don’t seek to change the game for those with money. If economics weren’t an issue, would GPDSC ever undertake its present course of action? Would the agency seek to lower the bar on principle alone? One would hope not.

Enter the Star Chamber

Mr. Merritt refers to the meeting of the Formal Advisory Board as a “Star Chamber Proceeding … that the public was not able to attend.” And he refers to the “brand new idea that the imputed conflict rule applies to public defenders.”

My knowledge of 14th through 16th century English history is a bit rusty, but I thought that the Star Chamber was a secret court where people were prosecuted and were sometimes ordered to be beheaded. I was unaware that the Star Chamber promulgated rules for barristers.

I perceive no (to borrow a word) “skulduggery” in the fact that a State Bar meeting where proposed formal advisory rules are promulgated would be closed to the public. The State Bar of Georgia is not a governmental entity. It is set up as as self-regulating professional association for persons in Georgia who practice law. I would commend my fellow member of the bar to Rule 4-402, which sets out the membership and procedures of the Formal Advisory Rule Committee. There is a place on the Board for one member of the Georgia Association of Criminal Defense Lawyers and one member of the Georgia District Attorneys Association. Note, that the criminal defense lawyer representative could either be a public defender or a private lawyer. There also seats for five members of the Bar at large. And there is a place for a faculty member of each Georgia accredited law school (who could be an indigent defender, assuming that a faculty member who provides indigent defense services is a bona fide member of the “public defender world”) There is also a place for a member of the Investigative Panel (who could be a public defender) and a member of the Review Panel (who could be a public defender). If public defenders are not on that committee, it could be because either (1) there’s a vast conspiracy afoot to get them out of the room; or (2) because public defenders aren’t terribly active in the Bar. I don’t want to risk making another uninformed comment on this subject, so I won’t guess which.

Also, one more thing as to the “Star Chamber” piece. The Board operates by a transparent set of rules. They’re worth reading.

The Notion of “New Law”

The conflict rule isn’t new. I’ve been out of law school for around a decade, and I remember hearing about it in my Professional Responsibility class. I think it might have been on day one – right after the professor finished explaining the syllabus. Rule 1.7 predates GPDSC. Nor, by the way, is the concept of imputed disqualification anything new to the practice of law.

The “new,” “dreamed up,” “incorrect and frankly insulting” rule states simply this: “[l]awyers employed in the same circuit public defender office in the same judicial circuit may not represent co-defendants when a single lawyer would have an impermissible conflict in doing so.” If a public defender is insulted by this language then so should every lawyer in every office or firm where the concept of imputed disqualification applies. I suppose we could scrap Rule 1.10 altogether, reasoning that it hurts our feelings and that the Bar should just trust us all. By that rationale, perhaps we should scrap the Rules of Professional Conduct wholesale.

Conclusion

If the fact that I am not a member of the “public defender world” prohibits me from criticizing a particular government agency, then I suppose you’ll have to add another count to my indictment. And if I was misinformed in my previous post, I hope that I have been remediated through my links above. After reading Mr. Merritt’s observations, I am still among the ranks of “most lawyers” who disagree with his position, probably more so now.

If a member of the agency “takes issue” with my criticisms again, then I suppose that there is just no hope for me.

 
I’m not sure you have all of the facts and I’d appreciate an opportunity to
make some observations and clarifications.

For instance, the reason the AG’s Office was representing the public
defenders is because . . . the AG’s Office always represents every executive
agency and GPDSC is an executive agency. Hardly a surprise, a secret, or a
sign of skulduggery.

Also, every single prior appellate decision in Georgia that has dealt with
the issue has recognized that a public defender’s office is NOT the same as
a private law firm because public defenders do not have a financial interest
in the outcome of their cases and so the imputed conflict rule doesn’t apply
as long as ethical screens are in place to preserve confidentiality. (That
was the state bar’s own opinion in 2007, see Proposed Formal Advisory
Opinion No. 07-R1.) It’s the State Bar’s Formal Advisory Board, in a
star-chamber proceeding in 2010 that the public was not able to attend, that
came up with brand new idea that the imputed conflict rule applies to public
defenders.  (Heck, I’m dues-paying member of the bar and I was denied entry
to the proceeding because I wasn’t a member of that particular board–no
public defender is a member I believe although there is a district
attorney).

At that closed board meeting in 2010, this new rule was dreamed up under the
incorrect and frankly insulting assumptions that public defenders care about
anything other than their own client, that public defender supervisors
choose sides in multiple-defendant cases, that public defenders snoop around
in each other’s offices, and, perhaps most significantly, that conflict
lawyers from other towns who are not full-time dedicated public defenders
can get as good a result as quickly as the full-time public defender who
works with the same judges and the same prosecutors in the same courtroom
all the time can get. (Remember, most of Georgia is not like Atlanta; when
we have to send a case out of the office, we often have to send it to
lawyers that are far away and do not get our “home cooking” in court.) A
very wise career public defender once pointed out that, every time we have
to send a case out of the office, we are doing that client a disservice.

Oh, and last but not least–the young statewide public defender system has
been rocked by budget shortfalls since we started operations on January 1,
2005 and the legislature has seemed close to getting rid of it entirely and
going back to the patchwork county based public defender system several
times. So, when the State Bar comes up with a brand new rule that imposes
new restrictions on public defenders and which is at odds with the rule in
most other states, criticize single prior appellate opinion in Georgia, AND
the State Bar’s own 2007 opinion, and when that brand new rule is going to
cost so much money that it increases the odds that the legislature will
scrap the statewide public defender system, yeah, in those circumstances you
will find public defenders opposing the State Bar.  Not because we are
dedicated to the organization itself. No, because we are dedicated to the
goals of the organization. To the extent that imposing this new and
unnecessary rule taken from a minority of other states even slightly
increases the chances that the legislature will scrap the system, it’s a bad
rule for the indigent defendants in Georgia.

Now, I do understand that many if not most lawyers disagree with my position
so, no matter which way the Supreme Court decides to go, I’ll be happy to
comply and I’ll just hope that the legislature doesn’t carry through on the
many threats to throw public defense back to the counties. But I do take
issue when someone from outside the public defender world undertakes to
criticize one of my colleagues for suggesting that the rule the majority of
states follow is also the rule we should follow.

Thanks for your consideration,

Sam Merritt
Circuit Public Defender
Southwestern Circuit

In an opinion authored by Justice Scalia, the United States Supreme Court unanimously held that the government must get a warrant before placing a GPS tracking device on a person’s vehicle. In reaching this conclusion, the Court held that placement of a tracking device constitutes a search. Adam Liptak, of the New York Times summarized the opinion and noted that the divided rationale for the conclusion may raise as many questions as it answers. Writing the majority opinion, Justice Scalia reasoend that “the government physically occupied private property for the purpose of obtaining information.” Others have noted that the majority’s decision to base the opinion on concepts of trespass leaves unanswered more pressing questions about expectations of privacy in the digital realm. Still, this opinion is victory for supporters of the Fourth Amendment. And it is easy for a defense attorney fighting it out in the trenches to wonder if the Fourth Amendment has been abandoned. 

Also in the news yesterday was a story of Kentucky Senator Rand Paul’s run-in with TSA at an airport in Nashville. Sen. Paul set off a body scanner, with an alert to the knee area. TSA protocal calls for a frisk in this event, which the Senator refused and requested to go back through. TSA ordered him into a cubicle. When he then used his cell phone to call staffers to report that he would not make it to an event in Washington, he was told that he would be subjected to an even more intense screening. Talk about picking on the wrong guy. Writer Jerry Pournelle notes that TSA’s action violated more than the Fourth Amendment. It actually is a violation of Article I, Section 6 of the United States Constitution to arrest or detain for questioning a US Senator in his travels to attendance in a session.

The third unlikely hero in yesterday’s Fourth Amendment story was Fox News with its 6-minute interview of Senator Paul. Well worth a watch. Sen. Paul was told off the record by TSA officials that the machine is set up to randomly alert on people. So, the mandatory detention (TSA said it wasn’t a detention. Defense attorneys will recognize law enforcement’s attempts to make something not a detention simply by giving it a different label) and pat-down was required. And it was unacceptable to send him back through. 

And for every story with a hero, there must also be a villain. Here, it is actually the Obama White House, that issued a statement yesterday in support of the TSA. In fact, in supporting the TSA, the White House referred to Senator Paul as “the passenger.“ 

I’ve been a long-time Democrat. I’ve been willing to put up with their social programs because I’ve long thought that Democrats were the best hope for my civil libertarian views and for why I do my job everyday. It was certainly a good place for my hopes during the recent Bush administration. Ron Paul’s success in this primary season, Scalia’s stance on the Fourth Amendment, Rand Paul’s stand yesterday, and Fox New’s attention to the matter, is beginning to sway me. Republicans seem to be shifting to a consistent policy on small government in their opposition to large social programs and in their opposition to the ascendancy of a government police state. Where might my vote go in November?

A dissent, written by Justice Sotomayor, reasons that improper identifications are the leading cause of wrongful convictions nationwide and that the judge should play a bigger role as gatekeeper to safeguard misidentifications.

The news may actually be good for Georgia criminal defense attorneys for several reasonsIt can often be difficult to admit expert witness testimony on witness memory. The Supreme Court’s new focus on the courtroom as the crucible for testing witness memory could arguably open the door to in-court scientific testing of identifications. It will be increasingly important to educate the jury about identifications as the burden of testing reliability shifts from the judge to jurors.

• This may be a good time to focus on jury charges. The Georgia Supreme Court has been on the cutting edge in this area for the last decade. It has eliminated the “level of certainty” charge, reasoning that witnesses are just as certain about misidentifications are they are about good identifications. Since the jury will now be the arbiter of eyewitness reliability, it is time for more jury charges to guide them in this endeavor.
• The precedent isn’t really all that earth-shattering. You may be practicing in different places than the places I go, but judges haven’t been tossing identifications left and right. In fact, the pre-trial ruling has often placed a gold star around the identification, rendering in-trial rulings harmless along the way. The holding shifts the case from one big ruling before trial to a bunch of little rulings on jury charges, expert witness admissibility, and curative instructions. Also, since cross-examinations are now the be all and end all, judges are going to have to give lawyers wider latitude or risk reversal. It’s now time to push the envelope on cross-examination of eyewitnesses. In addition, since it’s now all about confrontation, it will be time to preserve objections under the Confrontation Clause.

So, moving forward, it’s a good idea to keep the case handy and cite to it as positive authority to attack the eyewitness at trial through cross-examination and through experts.

The absence of conflict-free counsel is hardly the most shocking failure of the current system. When I was an APD, I carried 50-70 cases on a trial calendar at once. I had no idea which case would be tried when. I was expected to announce “ready” in the vast majority of my cases.

Assistant public defenders often carry a much higher caseload than ABA Standards would allow. I point out the state of affairs in no way with the intent to bash individual public defenders. Indeed, for many, the role of public defender is a noble calling. And some of the most talented appellate and trial lawyers are know are public defenders. My critique is more systemic.

Rather, the lack of resources for public defenders, in terms of money and personnel, is at the level of crisis in Georgia. We have a system in place operating without a committment to run it properly.

Unfortunately, for a defendant who finds himself convicted in the midst of this crisis, appellate courts are not going to be receptive to an ineffective assistance of counsel claim. Rarely, likely less than 5% of the time, does an IAC claim work because the standard for effectiveness it the ultimate low bar.

And the greater problem, at least in Georgia at the state level (there are a few county systems in Georgia that are wonderful), is that the free market is a greater delivery system for criminal defense representation than is the government. Of course, the indigent cannot enter the free market. Meanwhile, the government is quite a deadly deliverer of prosecutions.

I wonder if it isn’t time for a “no defendant left behind” model, which would provide government vouchers for indigents to hire criminal defense counsel.

Judge John Pridgen, the chair of the Council of Superior Court Judges is “very much encouraged” by the support of a governor, who is a lawyer and who has a son who is a Georgia Superior Court Judge.

The governor’s budget request includes a “$10 million grant to fund a system of accountability courts for alternative treatment of some low-level offenders.” There are several other budget increases reportedly in the works

• funding increases to allow for the hiring of more clerks, additional attorneys, and new equipment to reverse a backlog in court cases
• $3 million for district attorneys
• An infusion of cash for GPDSC (though GPDSC seems perfectly willing to deliver substandard representation, according to recent arguments at the Supreme Court)
• A grant of $145,000 to the Supreme Court to fund a pay increase for staff attorneys and to create a dedicated clerk for death penalty cases
• A $106,000 proposal to hire another investigator for the Judicial Qualifications Commission. This is good news for lawyers everywhere. Trial judges have been exceptionally polite lately since the JQC has become more active in the last few years
• The Georgia Resource Center, which handles death penalty cases on appeal and in the post-conviction setting, woudl get enough funding to stay open in the wake of recent cuts that would have killed the organization

Of course, time and the legislative process will tell whether all of this funding comes through. But it is quite nice to have a governor in office who recognizes that there is a third branch of government.

So, it came to pass that Michael Edwards, the leader of a circuit public defender’s office in South Georgia came to oral argument at the Supreme Court yesterday where he sat at the same table with an Assistant Attorney General, a prosecutor. Both the prosecutor and the the “public defender” appeared as co-counsel to argue against a bar rule regarding imputed conflicts in the representation of the poor.

One would expect this unusual alliance to be formed to oppose something really bad, or at least something pretty radical. But actually, no. Here’s the advisory opinion that they opposed. It was an opinion (PDF), by the way, that came from the State Bar of Georgia.

Lawyers employed in the circuit public defender office in the same judicial circuit may not represent co-defendants when a single lawyer would have an impermissible conflict of interest in doing so.

Mr. Edwards, nominally a public defender and a prosecutor (who has an incentive to win criminal cases) teamed up to argue that Conflicts should not be imputed within public defenders’s officers. And when is there a conflict? The law on that has been around for quite some time. It’s codified in Rule 1.7 of the Georgia Rules of Professional Conduct:

A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer’s own interests or the lawyer’s duties to another client, a former client, or a third person will materially and adversely affect the representation of the client.

The position of the statewide public defenders is literally: “this is a luxury the poor can’t have.”

What does all of this mean? In my office, I would be in serious trouble if I represented two defendants with adverse interests to one another. And, if I take the risk of representing co-defendants and a conflict arises later, I have to walk away from both clients. For instance, I can’t represent two defendants if there is a chance that one will take a plea and testify against the other. But the public defender standards councilwould like a special rule for the poor so that they don’t have to provide the poor with conflict-free representation.

As Bill Rankin of the AJC noted, Justice Nahmias asked a very good question yesterday: “Why are you asking us to treat public defenders offices differently?”

The answer, of course, is money. The legislature created the state-wide public defender system and doesn’t want to fund it adequately. And, instead of seeking adequate funding or saying that constitutional representation comes at a cost, the organization seeks to tell the poor that they better hire a lawyer if they want conflict-free counsel.

Mr. Edwards pointed out that he can’t afford to engage in egg-headed “philosophical” or “academic” discussions as a GPDSC bureaucrat. He has to be pragmatic about all this. We can’t afford to get off on this business about right and wrong. If you want conflict-free representation, then either stop getting accused of crime or stop being poor.

No matter how the Court might rule on this matter, the fact that the public defenders and prosecutors would team up to take this position should freak you out if you are accused of a crime. In fact, if you are technically indigent and there is a distant relative who could pay for a lawyer, I’d advise you to run, don’t walk, away from GPDSC. The Iron Law of Bureaucracy is alive and well in how the indigent are defended in Georgia.

Or you could leave it to Edwards and his ilk. He says that you can trust the Council. To quote him directly, “We are the experts in representing poor people.” They know what’s best for all poor people out there.

It should come as no great surprise that the former governor did not have a particularly bright spot in his heart for the judiciary or even for lawyers. From the comments I heard, things appear to be better now.

Supreme Court Chief Justice Carol Hunstein noted that the new administration is “kindler and gentler,” in terms of budgetary support and basic understanding of what judges and lawyers do. Governor Deal is requesting $10 million for “accountability courts.” Accountability courts are focused on particular needs of a category of defendant. Accountability courts include drug courts, DUI Courts, mental health courts, and veterans courts. The Chief Justice noted that the governor’s son runs an accountability court and that the governor himself was once a juvenile court judge. She and former chief judge Yvette Miller, spoke of how difficult it was for the two appellate courts to make ends meet in the darkest days of the Perdue administration. Both were complimentary of the new governor, and the dark clouds of former days appear to have moved away.

Equally interesting was the general tone about the nature of judicial elections in Georgia. Chief Justice Hunstein, who faced down a well-funded challenge by Mike Wiggins in 2006 (PDF), noted optimistically that a judge’s job at election time is simply to “get the message out, and you can trust Georgia voters.” She looked back on her 2006 election as a time of fear that had she lost then every judge would be intimidated by special interest groups. And she hoped that the 2006 election proved that special interests can’t defeat a sitting judge. For candidates this year, she advised lawyers to inform the choices of non-lawyers. After all, if the judiciary is doing its job, judges should not be in the headlines. Hence, it should not be unusual for the general public to be unfamiliar with the judges.

To date, no challengers have announced an intent to run against any of the Court of Appeals judges or Supreme Court Justices who are up for election. The year ahead looks to be a time of stability for the appellate courts with apparently no contested elections and with a supportive governor in office.

Amanda Williams

Judge Amanda Williams resigned in the face of an investigation by the Judicial Qualifications Commission. But her troubles began long before the JQC got involved. Judge Williams was the subject of an hourlong program about her drug court on NPR’s show, This American Life. According to that story, her drug court was the toughest in the nation, and punishment for those in the program included such things as indefinite sentences. That story aired on March 25, 2011. On November 10, 2011, the JQC brought 12 charges of misconduct (PDF). I’ve been appearing in front of trial judges throughout the State for some time. And, though I am not familiar with Judge Williams and know only what I have read in the media, the sort of thing that aired in the NPR story is within the realm of arbitrary use of judicial power I have seen in other courtrooms. Most JQC complaints go nowhere, and the appellate process protects the discretion of the trial judge in most instance unless that discretion is abused. It is difficult to imagine more raw power by an official than that of a judge in the judge’s courtroom.

The story that emerged on December 15, 2011, may have been what proved to be the judge’s undoing. It was reported that drug court was used as much as a carrot as it was a stick. In the case of the relative of a prominent and power Sea Island business man, according to the story, drug court was the place for an accused child abuser to go to escape a harsher sanction. Shortly after this story surfaced, the judge resigned. It even made the New York Times.

The JQC’s action in this case does not underscore the point that judges can’t get away with stuff. Rather, it underscores just how far things have to go in Georgia before a judge is actually sanctioned. It is also interesting to note that none of the folks who were treated arbitrarily had controversies that made their way into the appellate courts.

If there is one lesson to be learned from the Amanda Williams story it is that the trial court is a powerful setting.

Troy Davis

The appellate setting is a different thing altogether. If witnesses start recanting, if prominent people start complaining that a convicted man is innocent, even if Big Boy shows up to protest, there is little that an appellate court can do or will do to undo a conviction and even a death sentence. The Department of Corrections ultimate executed Mr. Davis for a murder of a Savannah police officer in the 1990s. In the weeks leading up to that execution, there was much debate about how strong the evidence was against Mr. Davis at that original trial. It was a shame that all the effort that went into analyzing the evidence over a decade after the trial did not go into the trial itself. And others found out that hours before an execution was too late to try to get the death penalty abolished in Georgia. If such effort were sustained over a period of time while the General Assembly was in session, who knows what might happen.

Conclusion

These two stories demonstrate that the real power to shape a case’s outcome lies at the juries and judges who hear the trials and who handle justice at the evidentiary level. There is a real law of diminishing returns the deeper a case goes into the process. Even if a case ends up on appeal or before a habeas court, a lawyer’s ability to win can be significantly impaired by what happened before the trial court. That is the lesson I took from the two two stories of the year. The power of the courts to intervene diminishes the deeper you get into the system. And a judge has to go pretty far to be sanctioned for abusing it.