Georgia Criminal Trial and Appellate Law Blog

How to Prepare Yourself and Your Teen for Investigation in a Georgia School or by Georgia Law Enforcement

You should read this post even if your child has never made less than an A, is the president of his church youth group and is on the verge of selling more cookies than any other girl scout or is about to become an eagle scout.

Schools uniformly have zero-tolerance policies, and police officers seem to exercise discretion more poorly than ever before.  So, even great kids find themselves under investigation for things, and it is important that your children be armed with some information about their rights and about the possible consequences to "romantic" teenage behavior.

1.    There is almost never a duty to talk, but an assortment of bad things can happen when you do.

Just about every Georgia school district has a staff of school resource officers.  These guys are agents of law enforcement, and there are various constitutional restrictions on what they can do.  Generally they cannot search your child, his locker, or his car without probable cause and cannot hold your child in custody and questioning him without advising him of his rights.  School personnel are a different matter.  They operate as parents while they have your child at school.  They can search pretty easily.  They can hold your child and question him without informing you first.  School resource officers know to back away and let the school staff do the investigation because they can get away with more. 

Bottom line.  Talk to your child about what to do if she is questioned about a criminal or serious disciplinary matter.  Teach him to say "I can't talk until I speak with my mom or dad."  When in doubt, say that and hold firm to "i'm not going to talk to you unless mom and dad are here."  If you get a call after your child does this, then get a lawyer and do not let anyone speak to a child until you speak with a lawyer.

More damage is done to potential cases of young people because of school interrogation than anything else.

2.    Do not Supervise Young Children (Particularly of the Opposite Sex) Without an Adult Present at All Times

If you have a teenage boy, I would suggest that babysitting is not the job for him.  If your teenager is a leader in a youth group where he or she is supervising much younger (4 or more years of age difference) children, then the teen should assume that role only as an assistant to an adult who will be present the entire time. 

The reasons should be obvious.

3.    Do Not Consent to Anything

Tell your child not to consent to a search ever.  Even if your child is completely certain that there is nothing to be found.  If they are asking for consent it means that they probably couldn't do what they are asking to do without consent.  If you're innocent, you have nothing to prove.  If you're guilty, don't think that the police will think you are innocent because you consented.  That bluff always gets called.  It will get called here, too.

Even if you think they are going to search anyway, don't consent.  What they find may not be admissible, and if it would be admissible anyway, then your consent or lack of consent will be irrelevant, so don't consent.

Shift in the Law on School Searches

In Safford v. Redding, which can be found here, the United States Supreme Court found that the strip search of a thirteen-year-old girl by a principal in a public school violated her Fourth Amendment rights.  The opinion increases the level of scrutiny for school officials when the level of the intrusion of the search increases.  Under T.L.O., the level of scrutiny required was reasonable suspicion that the student has contraband on her person.  In this case, a fellow student was caught with over the counter and mild prescription pain pills.  She claimed that Redding gave her the pills.  Redding's bookbag and outer clothing was searched, and nothing was found.  She was then forced to strip to her underwear and bra and required to shake out her undergarments and remove the elastic strap of her bra. 

The 8-1 majority (Justice Thomas reasoned that students check their Fourth Amendment rights at the school door) held that, because the suspected contraband posed no or minimal danger to other students, and the principal's level of suspicion that the student was hiding advil and its equivalent in her undergarments was not sufficient to requre such an intrusive and humiliating search, his actions violated the student's rights under the Fourth Amendment. The student who claimed that Redding gave her pills did not say when Redding gave her the pills or whether she gave the pills to her at school.

Since no pills were actually found, the Court did not speak on how its opinion would relate to the exclusionary rule (whether, had contraband been found, it could have been used against the student in court).  The Court stopped short of saying that the principal could be sued for a civil rights violation -- though the dissent would have extended a private cause of action Redding.

This case will require a significant shift in Georgia law, which is laughable in this area.  School officials have, for too long, been given a blank check when it comes to the Fourth Amendment rights of students.  In Georgia v. K.L.M, 278 Ga. App. 219 (2006), the Georgia Court of Appeals held that the exclusionary rule dos not apply to searches by school officials and that their conduct is not improper unless the student is "whimsically stripped of personal privacy and subjected to petty tyranny."  Perhaps the United States Supreme Court is now taking that blank check away.

Consider what it has taken for a school search by a school official to be considered violative of the Fourth Amendment before now:

The administrator must be:

1.    Whimsical;

2.    engaged in stripping the student of personal privacy;

3.    petty; and

4.    tyrannical

Even then, the exclusionary rule has not applied in Georgia.  It is hard to imagine a search that would not have passed muster under Georgia law before this recent United States Supreme Court opinion.

Another interesting part of this case is that Justice Ginsburg seems to believe the fourth amendment implications of strip-searching a girl are more significant than strip-searching a boy due to body image and similar issues. 

The Supreme Court Overturns Significant Purpose of Georgia's RICO Statute

I was proud to be a part of this effort as the author of the amicus brief filed by the Georgia Association of Criminal Defense Lawyers (GACDL.) 

If there were ever a statute that deserved to be struck, it was this one.  In the case, police seized the appellant's home, his business, his bank accounts, the money in his wallet, the watch from his wrist, and appointed a "receiver" to administer his property.  The receiver hit his property to the tune of about half a million dollars.

He was never arrested or charged with a crime, but he was compelled to give up his fifth amendment rights or have his silence be construed as an admission for purposes of salvaging all that he owned.

The Supreme Court of Georgia extended to him and to those similarly situation all the rights afforded to the accused in a criminal matter and found that the in personam provisions of Georgia's RICO statute are unconstitutional.

Check out some of the coverage here.  The opinion is here.

Lawyering Up

That old adage about "he who represents himself has a fool for a client," is true.  A month ago, I got a speeding ticket and had to be in court a couple of weeks ago.  The citation sat on my desk.  I called the solicitor and worked it out.  The citation sat on my desk and sat some more.  I have never missed a court date on a client matter, but I never calendared my court date because, after all, it was my court date.

So, I woke up one morning, put on some jeans, and was running errands when my secretary called me to let me know that the judge's office called, and that I had missed court on my own matter.  It all worked out, but it was a frantic couple of hours until it did.

I had a fool for a client.

Now, let me imagine that the matter were more serious and I were under investigation for a felony of some sort.  How would I respond if the police wanted to talk to "clear some things up"?  Might I, with all I know about how it all works, come down for an interrogation?

The one thing a lawyer brings to the table that is as valuable as skill and knowledge is distance.  It is as distinct  being a chess player versus being one of the chess pieces.

What should you do, then, if the police want to talk to you?  If you refuse to talk, do you seem more suspicious? Does a matter that would have worked itself out become more serious because now you appear guiltier than before?  If you talk, do you appear guiltier because you look like you are not telling the truth completely or with 100% accurately?  You could escape criminal liability on the underlying offense and get in trouble for the accuracy of what you say in the interview.  Ask Martha Stewart if you don't believe me.

First and foremost, ask for a lawyer.  Really ask for a lawyer.  Don't say, "maybe I should get a lawyer."  Don't ask the investigator if he thinks you should.  Say, "I want a lawyer."  Say, "I want to speak to a lawyer, and I can't talk to you until I speak to a lawyer."

Even if you are very smart, even if you are a lawyer, you should ask for a lawyer, because what you say is etched in stone, and you are not objective or distant enough from what is going on around you to do othwise.

When you get that lawyer, tell him the complete truth, and make sure that nobody but you and the lawyer are there when you have that conversation -- even if the person you want to be there with you is paying the fee.

Sometimes, I would think rarely, your lawyer may want you to talk to the police.  Often, he may want to provide information to them himself.  Most often, he will say nothing and advise you to say nothing. His decision will come from a clearer mind than yours would.

So, if that day comes for you, be nice.  Be polite.  But say that you want a lawyer.  No matter what they say in response to that, be a broken record.  Say it over and over.

You are not objective enough in that situation to say anything else.

Watch out for that Chocolate Contact High at the Next Bake Sale

Nearly every agency in Georgia uses the Duquenois-Levine test as a screening agent for THC, the active ingredient in marijuana.  The test is cheap, easily stored, and even recognized as scientific to prove that a substance is marijuana in the State of Georgia.  See Cunrod v. State, 241 Ga. App. 743 (2000).  The reagent has been around for approximately seventy years (strange to imagine people smoking the stuff seventy years ago).  Our Georgia Court of Appeals approves of this test as scientific at a criminal trial.

The test does react to THC, but it also reacts to other things including Hershey's Dark Chocolate Kisses, plain chocolate M&Ms, and shavings from Thin Mint Girl Scount cookies.

In fact, the test shows positive for THC with Cocoa Puffs (not saying it's coo coo). 

Well, on sight, it would be difficult to confuse marijuana with chocolate.  The KN reagent test, another popular screening tool, also tests positive for oregano and thyme.

Of couse, you might also think that, since these tests are just used in the field, there is not much risk of a misidentification.  However, Georgia does not require any further testing for marijuana other than microscopic examination, the fast blue salts test, and the D-L test.

Further testing is done at the GBI crime lab, but the turnaround can be months.  During those months, a defendant may be held without bond and under the cloud of suspicion for being charged with a drug offense.  Unfortuntately, there is no screening tool to give you your reputation back.

For more on chocolate and THC see the April edition of The Champion, NACDL's magazine.

The Photo is Sometimes Best Not Admitted

I had a trial the other day.  Midway through, I had some pictures that I wanted to put into evidence.  In the jury's presence, the prosecutor objected on relevance grounds, and we had a little debate about admissibility right in front of the jury.  The debate turned into a lengthy bench conference, and the bench conference turned into an argument and proffer outside the jury's presence.

Then the photos were deemed admissible.  In retrospect, I bet the pictures would have helped me far more had they been excluded.  Then, the jury would have been left to imagine just how bad they were and upset that the State didn't want them to see the light of day.

With their admission, they were what the were -- worth a thousand words, true.  But the photo in the mind's imaginative eye, how many words would it have been worth?

When Race Really is an Issue in a Criminal Trial in the Atlanta Area

It was a very interesting case that I defended last week.  Let's start at the end.  There was one African-American juror, and the rest were white.  Our trial was in a suburban Atlanta courtroom in a community that was rural fifteen years ago. 

After deliberating for fifteen minutes, the African American juror was elected foreperson, and she delivered a not guilty verdict.

The judge was white, the prosecutor African-American American, the bailiffs were white, and the judge was white.  The defense attorney (me) is a white man.  The arresting officers white.  The defendant a Hispanic school teacher who grew up in Queens, New York, in "public housing," according to his testimony.  He grew up and became a special education teacher. His principal testified to his character, as did his pastor, as did his friend and co-worker.  Everybody smiled to talk about him and his work with children.

The charge.  An off-duty officer claims that he didn't like the way my client was driving.  He calls 911 and asks a fellow officer to pull him over because "he'd like a word with him."  He writes on his police report that he is a black male.  He's not a black male.

Four fellow officers are dispatched.  The first to arrive yanks him out of his car, slams him into the door, and forcefully cuffs him.  My client is roughed up.

In his defense, the man offers up, "I haven't done anything.  I'm a teacher.  I'm a teacher"

The off-duty officer screams at him, "I don't care if you're teacher.  I don't care if you're a nigger.  I don't care if you're a Jew.  You're going to jail."

To cover up for beating up the man, the police claim that he "obstructed" them by resisting arrest.  Why exactly was he under arrest?

The jury saw it clearly. 

The prosecutor went forward after the officer was caught making up things that didn't correspond to the 911 tape (he didn't know I had the 911 tape and felt free to lie at will).

The prosecutor became indignant in her closing and accused me, the defense attorney, of "playing the race card."  After the fifteen minute not guilty verdict she left the room.  No after-the-trial handshake and polite, "good job."

The arrest, by the way, took place one day after the presidential election.

Race has a place in our courtrooms, particularly when it motivates those in our justice system to act with injustice.  While it should not be a tool for manipulation, we should never fear bringing it up.  To deny it when it exists is to do an injustice to more than my client.  And when I can countenance not bringing up race, particularly when it is the big ugly elephant in the room and when it motivates brutality against an innocent man, is the day I should surrender my bar card.

Are You Marketing Yourself or Marketing Victory as a Concept?

Open up the yellow pages, and take a look at the ads.  Google criminal defense lawyers for your area, and check out the webpages for law firms who do what you do.  How could you ever distinguish one from another?  Chances are that if you are prospective client looking to meet the right lawyer to handle your case, you are already sold on the concept of victory and success.  Why, then, is everyone trying to sell that concept in their marketing.  For this, lawyers are spending thousands per month. 

How do you become the best lawyer for the parent who's child was caught with a pocketknife at school, for the executive who went into a roadblock after having wine over dinner, or the helpless man or woman suddenly propelled into the frightening maze that is the criminal justice system?  They are looking for victory, yes, but they are looking for a guide, too.  They need help sorting things out, and they must somehow learn that you can do those things when they have never had to hire a lawyer before.

Market you to them when they call.  Be that person to those you represent now.  Without that, the web and the yellow pages ad doesn't matter.  Take care of the client, and much will take care of itself.

When you market, market yourself.  They already know that they want a way out.

For more on this concept and for the inspiration for this post, take a look at Seth Godin's blog post today.

Cross-Examining the Egotistical Witness

Do not let the egotistical witness intimidate you.  Egotistical witnesses come in three varieties:  the expert, the ex with an axe to grind, and the robocop witness who comes to court with all sorts of weapons and accessories strapped to his arm, waist, and legs.  These witnesses can make you feel as if you are not doing well.  When you ask, "so what is your name?" they retort with something like, "it's James Jones, and your client lied to me"  The best thing you can do with this witness is keep your cool.  The jury won't like him and won't pay much attention to his non-responsive pontificating.  If you retort back, raise your voice, or move to strike his answer, you only lend this witness credibility.

You can ask the exact same question over and over until you get the answer you want, or you can nicely ask, "so was the answer to my question yes."  Make sure you chop your questions to this witness to the bare bones. Take for instance:  "you saw my client walking down main street, right?"  Change it to, you were on a Street?  It was Main street?  You were looking around?  You saw a man?  That man was my client?  And he was walking? 

Short questions allow much less wriggle room and provide training for the witness in the rhythm of short answers.

If the witness continues to do it or insists on mouthy responses, just let him go.  In your closing argue that he had an agenda and was acting as much of advocate as you and the prosecutor.  Point out that a witness like that cannot be trusted not to shade the truth.  Argue that the officer probably approach the investigation with the same single-minded determination to cram the facts through a pre-determined conclusion.

In short, if the witness wants to cover himself in mud, don't jump in and wrestle.  Just let him roll around in it.

The Paperless Office

I have been moving toward the paperless office ever since I opened for business in my own firm a year ago.  The final piece wasn't in place until I got a second monitor on our office computers a few weeks ago.  A fast scanner and a good case management program is a must.  Another key is this great blog called PDF for lawyers.  You will never approach discovery and transcripts the same way again after you start converting it all to pdf.