Georgia Criminal Defense Lawyer Blog

Nichols' criminal defense attorneys are trying to recuse their second judge from presiding over the Brian Nichols trial. The lawyers' recusal motion is based on comments Judge Bodiford made at the time of the courthouse shooting. He was reported to say that the crime was a "brutal murder," and that the death of "his friend" hit close to home. The Atlanta Journal Constitution has the story.

I can't imaging anyone would argue that this crime was not a brutal murder (regardless of who committed it). And it is very different to say you are a friend of the victim than to prejudge the guilt of the person on trial. (That was the reason the last judge had to step aside.) Georgia law recognizes this difference, and does not require a judge to step down just because he was a friend of the victim.

Last week, I was asked to comment on this development by WABE, Atlanta's National Public Radio affiliate. I said what most other Atlanta criminal lawyers would say - there is no chance that Judge Bodiford will recuse himself from this case. He knew about his relationship with Judge Barnes well before he took this assignment, and he almost certainly consulted with the judge that appointed him about any conflicts.

Instead of simply denying the motion and requiring the lawyers to try to appeal that ruling, Judge Bodiford asked another judge to step in and consider the recusal request. According to the Atlanta Journal Constitution, Judge Dan Coursey, Jr. of Dekalb County was named today as the judge who will consider the recusal motion.

Despite these delays, Judge Bodiford hopes to keep the trial scheduled for July. We'll see.

Posted by Page Pate | Permalink | Email This Post

Posted In: Georgia Criminal Law , Violent Crimes

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Yesterday, we were able to successfully resolve a federal criminal case for our client in Atlanta. He had initially been threatened with prosecution for false statements and violations of federal law governing the importation of endangered species for his involvement in assisting a Texas hunter and South African safari operator get a leopard skin into the United States.

The Atlanta Journal Constitution reported the case, based on a press release issued by the United States Attorney's Office in Atlanta.

Although our client was facing the possibility of being charged with more serious offenses (felony charges with possible prison time), we were able to resolve the case for a plea to a misdemeanor, 12 months of probation and a fine. Read the misdemeanor sentence here

Although Endangered Species Act cases are not a large part of our practice, federal law enforcement agents from the Fish and Wildlife Service expect the number of these cases to increase in Atlanta.

Because there are very few Atlanta criminal defense lawyers experienced in fish and wildlife prosecutions, we will follow these cases and watch for any developments in the law.

Posted by Page Pate | Permalink | Email This Post

Posted In: Federal Criminal Law

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Is this police officer also a child molester?

That's the unfortunate question facing Brent Powell, a Cochran, Georgia police officer who was arrested earlier this week on charges of child molestation, enticing a child for indecent purposes and interference with custody. In addition to being a member of the Cochran, Georgia police department, Mr. Powell had also served as the police chief for a small town in Wilcox County, Georgia. The Macon Telegraph has the story.

But Officer Powell is not alone. There were at least two other police officers charged with serious sex crimes this week in Georgia.

Gregory Graham, a Fulton County police officer, was charged this week with child molestation, incest and rape. He was arrested at his home in Coweta County where the charges are pending. The investigation took all of "two weeks." (Unfortunately, that's usually about all the time most local police departments spend investigating this type of allegation before arrest warrants are issued.) The Atlanta Journal Constitution has the story.

And there's one more. A Forest Park, Georgia police officer was also arrested this week and charged with child molestation. The Atlanta Journal Constitution is following that story as well.

If any of these officers are convicted or later plead guilty to these charges, they are looking at mandatory minimum sentences of 10 years and up. Child molestation charges also require sex offender registration and onerous conditions of probation once the prison terms have been served. Of course, as police officers, they will likely have problems with their POST certification and ability to continue in law enforcement.

Our firm has represented several law enforcement officers charged with serious crimes. Criminal cases involving police officers as defendants present some unusual challenges for defense lawyers. On the plus side, most jurors seem to require a higher level of proof before convicting a person who has a long and honorable record of serving their community. On the negative side, the punishment for officers convicted of serious crimes is usually more severe than for most other defendants. Many judges and prosecutors say that police officers should hold themselves to a higher standard. (In reality, they are probably more concerned about the negative public perception that is created when a police officer is charged with a serious crime.) Regardless, the punishment for a cop who breaks the law can be unusually harsh. There is also a lot more pre-trial publicity in these cases. That can make them harder to defend.

Obviously, we don't know if these officers are guilty of anything. They should get the benefit of the doubt they are entitled to under law before they lose their certification. Many times the allegations are not true. We have seen far too many cases where the investigating officers rushed to judgment without first conducting a proper investigation. We have had several clients accused of child molestation where the charges were later found to be false. Fortunately, we were able to get these cases dismissed before trial.

If the criminal defense lawyers representing these officers do their homework, the allegations will be thoroughly investigated prior to indictment. Perhaps they will also consider polygraphs and forensic experts. (Although polygraphs cannot usually be admitted in trial, absent a stipulation with the prosecutor, they can be very helpful in resolving these cases before they ever get to trial.)

If they are acquitted, or the charges are later dismissed, I hope these officers will remember that it's easy (but wrong) to charge someone with a serious sex crime like child molestation without a proper investigation. As they will no doubt soon appreciate, just an arrest for a sex crime can dramatically change someone's life. Even if the charges are later proven false.

Posted by Page Pate | Permalink | Email This Post

Posted In: Georgia Criminal Law , Sex Crimes

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Ronald Malcus James, a former Walton County Georgia teacher, was indicted this week in Athens for his alleged involvement in internet child pornography. The Macon Telegraph and Athens Banner Herald have the story.

In Georgia, internet child pornography cases are usually charged under Georgia laws dealing with sexual exploitation of children and computer pornography. The charges can be serious, although Georgia does not have the same mandatory minimum penalties that are provided under federal law for receipt and/or transmission of child pornography. But even in Georgia courts, most prosecutors will seek jail time for people convicted of possessing multiple images of child porn.

Not surprisingly, the Georgia Bureau of Investigation (GBI) is investigating this case. That agency usually gets involved in these cases because it has the capacity to conduct a computer forensic analysis and search for unlawful images on computers seized after arrest or through the execution of search warrants. Most local police departments in smaller Georgia cities and towns do not have this capability.

Our firm has represented several people charged with possession, transmission and receipt of computer child pornography. Like most criminal defense lawyers who handle these cases, we will first try to challenge the seizure of any computers and hard drives. We will also try to determine if there is a problem with the way the initial investigation was conducted.

The best way for a criminal lawyer to defend a case like this is to a retain top-notch computer forensic expert. We have used several computer experts to help us thoroughly review the physical evidence in child pornography cases to determine if there is a defense to the possession of the images. In several cases, we have found evidence that the images were inadvertently received and downloaded. We have also been able to show that, in some cases, the person charged with the crime tried to delete the image numerous times. In our experience, this is the only way a defense attorney can win or successfully resolve a case like this.

These cases can be particularly difficult to win at trial because the images are usually so disturbing that a jury may be ready to convict the person as soon as they see the pictures. That's why it is so important to try to get these cases resolved before they ever get that far.

Posted by Page Pate | Permalink | Email This Post

Posted In: Georgia Criminal Law , Sex Crimes

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William "Bill" McArthur III, a South Georgia doctor, recently pleaded guilty to violating federal drug laws as a result of his involvement in an internet pharmacy. The Macon Telegraph has the story.

Apparently, the doctor agreed to prescribe medication to patients who submitted orders via the internet or by telephone. The doctor, his father and another physician operated a "call center" in Mississippi where the orders were filled. Several discount pharmacies were also involved.

This is not the first time an internet pharmacy operation has been charged with violating federal drug laws. Our firm is currently representing a physician charged with approving certain low-level prescription drugs after reviewing and evaluating medical information submitted by patients through the internet. In our case, the government contends that doctors cannot approve any sort of controlled substance without a face-to-face physical examination of the patient. We disagree, and the case remains pending in federal court in Atlanta.

These cases can be difficult to defend because many doctors would say that the best way to determine if a patient should received a certain medication is to conduct a physical examination of that patient. The government usually calls these doctors to testify as experts in the "legitimate practice of medicine."

The problem with the government's theory is that it ignores reality (many people receive prescription drugs from nurses and p.a.'s without ever seeing a doctor), and it assumes that a doctor cannot get the medical information he or she needs online. That is especially true when the drugs are pills like Viagra and weight loss medications. Just because it's not the best way to practice medicine doesn't mean it's a federal crime.

It looks like internet medicine cases will continue to be charged as computer crimes and/or federal drug crimes, and lawyers will continue to litigate them because there is so much money involved. In the South Georgia case, the government alleges that the business generated approximately $1.8 million.

Maybe if they had not been so successful they could have stayed under the radar. Now, the doctor is facing the loss of his ability to practice medicine, a hefty fine and up to five years in federal prison.

Posted by Page Pate | Permalink | Email This Post

Posted In: Federal Criminal Law

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A dentist in Carrollton Georgia was indicted this week and charged with multiple counts of aggravated assault, battery and child cruelty. The indictment is based on allegations that he assaulted several of his patients during treatment. The Atlanta Journal Constitution has the story.

Apparently, the criminal investigation started when 8 of Dr. Austin's patients claimed that the dentist assaulted them while they were under sedation or undergoing dental procedures.

There is also a civil suit (there usually is) brought by one of the patients seeking money damages. Dr. Austin's Atlanta attorney, Matt Coles, denied the allegations but could not provide specific details about his client's treatment of this patient because of federal privacy laws.

As the son of a dentist, I know that everyone dreads sitting in the dental chair - many patients feel assaulted as soon as they hear the drill. But the allegations in this case go way beyond general discomfort. Hitting a patient in the face with a "large metal object" seems a little extreme, even for a dentist.

Patients claiming inappropriate treatment by their dentist or doctor is nothing new. Our firm has represented several physicians charged with misconduct relating to their patients. One of our clients was charged with sexually assaulting several patients during an examination. The case is still pending, but we believe the allegations have no merit and were made up just these patients could sue the doctor and try to make some money. In fact, one of the patients has already threatened to sue while the investigation is still pending.

Unfortunately, it seems that doctors will need to make sure they have a nurse or other assistant as a witness for every patient examination or treatment. Other than videotaping the exam rooms, that may be the only way to defend these allegations. Otherwise, almost all of these cases will end up in a "he said, she said" trial.

With one allegation, it's easy to defend. But Dr. Austin's defense lawyer may have his hands full if there are 8 similar allegations.

Posted by Page Pate | Permalink | Email This Post

Posted In: Georgia Criminal Law

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T.I. entered a guilty plea today in the United States District Court to possessing machine guns and to the possession of firearms by a convicted felon. In an unprecedented plea deal, T.I.'s Atlanta criminal defense attorneys were able to negotiate a sentence of only one year in prison.

The binding plea agreement, which was accepted by District Court Judge Charles Pannell, allows T.I.'s sentencing to be deferred for up to a year. During this time, he will still be subject to home confinement although he will also be required to perform 1000 hours of community service for non-profit youth organizations.

If T.I. violates any of the conditions of his release or fails to perform all of the community service, he will then be subject to a sentence of up to 97 months in prison.

After the year in prison, he will be placed on supervised release for a period of three years, perform another 500 hours of community service, and pay a fine in the amount of $100,000.

Attached to the plea agreement were letters from the Boys and Girls Clubs of America, the NAACP, and the Catch Me Before I Fall Initiative expressing their interest in having T.I. serve as a spokesman for their campaigns against youth violence.

T.I. armed himself with with an arsenal of highly regarded Atlanta criminal defense attorneys who undoubtedly entered this case believing that he would have to go to trial in order to avoid years in prison.

Had T.I. gone to trial, he would have been facing upwards of 10 years in prison. It is unclear why the U.S. Attorney's Office was willing to agree to such a lenient sentence in this case since it has fought so vigorously over the past few years for much harsher punishment for lesser known defendants with similar charges.

What remains to be seen is whether this case will be an anomaly or whether it will encourage the government and defense lawyers to be more flexible in its prosecution of firearms offenses like this one where human lives were not put in danger. If not, the only message that the T.I. case may be sending is that only he gets a second chance.

The public radio affiliate in Atlanta interviewed Pate & Brody partner Page Pate about the deal. Page agrees with most criminal lawyers in Atlanta - the deal is very unusual and was only possible because of TI's celebrity.

Posted by Bernard Brody | Permalink | Email This Post

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Looks like T.I. won't have to stay at home this Easter. This week, a federal magistrate judge in Atlanta agreed to modify T.I.'s bond to allow him to attend Easter Sunday services at the Georgia Dome. The Atlanta Journal Constitution has the story on T.I.'s bond modification.

It's not unusual for a defendant to get court permission to leave his home or travel outside the district while the case is still pending. In the Northern District of Georgia, and most other federal judicial districts, bonds usually have conditions that restrict a defendant's travel to the district where the case is pending. (Some defendants are detained without bond at all. In fact, in most major drug and firearm cases in federal court in Atlanta defendants are held in pretrial custody until the case is resolved.)

No word yet on a trial date for T.I. because the case has not yet been "certified ready for trial" by the magistrate judge. There is still a motion to suppress evidence pending that will have to be heard and ruled on before the case can proceed. T.I.'s Atlanta criminal defense lawyers have challenged the search of T.I.'s vehicle and residence and are trying to keep the guns that were found out of the case. If they are successful, it probably won't end the case because there are still cooperating witnesses who are expected to testify that T.I. was involved in unlawful gun purchases. But the suppression of the guns will make the case a whole lot more difficult for the government to prove.

I expect the hearing on the lawyers' motion will take place soon. After the hearing, the attorneys will probably file another legal brief with their arguments to suppress the evidence. The magistrate judge will then review their arguments and make a recommendation to the district court that the motion should be granted or denied. After the district court makes the final determination, the case can be set down for trial.

Although there is a speedy trial act in federal court, it usually doesn't mean much. Cases are supposed to be tried within 70 days after arraignment, but any pending motion will toll the time and keep the clock running. That's why cases often take a year or longer to get to trial in federal court, at least in Atlanta.

I doubt this case will last more than a year, but I don't expect the case to be resolved until late summer at the earliest. With or without the guns, it should be an interesting trial.

Posted by Page Pate | Permalink | Email This Post

Posted In: Federal Criminal Law , Firearm Offenses

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Georgia State Rep.Ron Sailor, Jr. pleaded guilty this week to federal money laundering charges in Atlanta. All the local news media covered the story. (The picture on the left is Sailor and his Atlanta criminal defense lawyer Bruce Maloy.) Bill Rankin provides a good summary of the investigation and the plea in the Atlanta Journal Constitution.

Now we know why Sailor has missed so many votes in the Georgia General Assembly - the government told him to. Federal prosecutors apparently instructed Sailor not to vote during the time he was cooperating with the government to avoid any appearance that the feds (a Republican controlled Justice Department) were telling Sailor how to vote. I am not sure how his constituents feel about that, or how silencing a reliable Democratic vote may have affected pending legislation. Because Sailor had not entered a guilty plea until this week, he would not have been prevented from holding his seat and voting on legislation. Interesting issue, but unlikely to get any attention. Another interesting issue is why Sailor was approached by this undercover agent. What led them to Sailor? Was it another cooperating witness? Or, did they just chose him at random?

U.S. Attorney David Nahmias told reporters that Sailor has been cooperating with law enforcement in an ongoing investigation into public corruption in Georgia. Apparently, he's been cooperating for several months while his arrest was kept under seal. Nahmias described Sailor's cooperation as "useful." Anyone who follows Georgia politics would not be surprised if there are additional legislators under investigation for violating various federal laws. The dome may be gold, but it's certainly not pure.

As with most plea agreements in federal court, Sailor is not guaranteed any specific sentence. The amount of time he will have to spend in federal custody will be determined by the judge after a Presentence Investigation Report is prepared by the U.S. Probation Office. The judge will consider the federal sentencing guidelines, but ultimately make his decision based on the sentencing factors set forth in the federal criminal code (18 U.S.C. 3553).

I am sure Sailor and his defense attorneys are hoping that the government will reward him for his cooperation by filing a "5K" motion before he is sentenced. "5K" refers to a section in the federal sentencing guidelines that rewards a defendant with a possible reduction in his sentence for providing "substantial assistance" to the government. Whether the defendant has provided "substantial assistance" is always up to the government. If a "5K" motion is filed, the judge can disregard any mandatory minimums and impose a reasonable sentence. That usually means the defendant will get less time. Although the government attorney usually makes a recommendation, the amount of the reduction is ultimately up to the judge.

Now that Sailor's plea is public, we should soon see if his cooperation results in any arrests. I expect the feds will likely wait until after the legislative session if they intend to charge any other state representative. But after March, who knows...

Posted by Page Pate | Permalink | Email This Post

Posted In: Federal Criminal Law , Public Corruption

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A mortgage fraud case pending in Athens Georgia for over a year may be close to indictment. The case involves a local real estate developer who allegedly engaged in a scheme to over-inflate the value of a subdivision he had purchased.

We represent an Athens attorney who was initially arrested and charged with fraud in this case. The Athens Banner Herald has the story. I was interviewed and had this comment:

"The delay in bringing an indictment is not unusual," said Atlanta attorney Page Pate, who represents one man accused in the Milford Hills case, Athens real estate attorney C. Michael Rose.

"I have been involved in several mortgage fraud investigations at both the state and federal level and I have learned that it takes a lot of time to properly review the closing documents and related paperwork," Pate said.

Last year, for example, a U.S. District Court jury convicted 10 people involved in a $41 million mortgage scheme that encompassed more than 50 homes and 250 condominiums in eight Atlanta-area complexes - several years after the plot was uncovered.

Several others pleaded guilty to the fraud conspiracy before trial.

Pate is pleased that prosecutors didn't seek quick indictments because he wants a thorough investigation he believes will exonerate his client.

"Although we would like to get this matter cleared up sooner rather than later, it's more important to be patient and let the investigators do their job," Pate said. "If they have adequate time to review this case, I am confident that they will reach the same conclusion as I have - Mike Rose did nothing illegal."

I don't know when the case will be indicted. I only hope that the Attorney General's Office will not charge our client. Mike only closed the loans that were brought to him. He did not know that a lot of the paperwork was fraudulent. Like so many other people in Athens, Mike was deceived by the developer. He was not a part of the scheme, only a victim of it.

There have been a lot of mortgage fraud cases in Georgia in the last few years. We have been involved in many of them. I posted about one of our most recent mortgage fraud cases earlier this year. We have represented lawyers, mortgage brokers, investors, appraisers and the people who end up buying these properties.

Fortunately, we have been able to keep many of our clients from being charged with a crime. We hope we can do the same for Mike.

Posted by Page Pate | Permalink | Email This Post

Posted In: Georgia Criminal Law

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A Cobb County teacher was found "not guilty" of aggravated child molestation earlier this week after a jury trial. The Atlanta Journal Constitution has the full story.

Apparently, the teacher (Gregory A. Leontovich) was charged because one of his students told authorities that he sodomized her in a restroom at the school where he worked.

According to the teacher's defense attorney, however, the state's case fell apart once the jury realized that the girl's story was impossible - she could not have been alone with him in the restroom because the students are not allowed to go to the restroom without a "buddy."

Amazingly, the teacher had not even been interviewed by the police before they decided to arrest him. It also looks like neither the police nor the District Attorney's Office tried to determine whether the girl's story was credible before Leontovich was arrested, indicted and humiliated. They did not even interview the other teachers at the school until 10 weeks after the alleged incident.

Leontovich went through two years of humiliation, and thousands of dollars in legal fees for his top-notch criminal defense lawyer. He had to resign from his job, and is having difficulty finding work.

Leontovich had been a teacher since 1992. He loved the work, and was respected and admired by his students and the other teachers. In fact, many of them came to court to support him before and during this difficult trial. (Seventy of them showed up at the bond hearing.) But now, even though he was acquitted at trial, he will always have an arrest record and will carry the "scarlet letter" of an aggravated child molestation charge for the rest of his life.

The AJC's Mike King wrote an excellent editorial about the devastating effects of a false child molestation charge, and how a "not guilty" verdict won't repair the damage done by this allegation.

Our firm has had our fair share of false child molestation cases. In several of these cases, we were able to get the charges dismissed prior to an indictment or trial. In fact, we recently helped a client avoid an indictment for molestation in Cobb County, where Leontovich was charged. Our client, like Leontovich, had been charged and arrested without an adequate investigation. As in so many of these cases, the police just accepted the story and then tried to make all the other facts fit their version of what happened. Fortunately, we were hired before the indictment and had time to develop a strong defense. We convinced the district attorney's office to dismiss the case. We are currently trying to help this client get his arrest record expunged. But the damage done to him and his family as a result of the arrest and initial jail time will take many years to heal, if it ever does.

A couple of years ago, I tried an aggravated child molestation case where the witness had completely made up a story that she was sodomized by our client at knife point. The story was incredible, but there was no one else present to disprove it. It was just our client and the complaining witness, a typical "he said, she said" problem. The district attorney refused to consider our client's innocence, so we went to trial. We won and our client was acquitted of all 6 counts charged against him. But the case was very difficult and expensive, and unnecessary.

There would be far fewer false child molestation allegations if the police did a better job of screening these cases before indictment. A thorough investigation is not too much to ask when you consider how the sentences for these offenses are going through the roof. (Aggravated child molestation now carries a mandatory minimum sentence of 25 years to serve in prison, no parole or probation).

Congratulations to Mr. Leontovich and his Atlanta defense lawyer Barry Hazen for their win in Cobb County. It's a shame he had to go through it, but it does remind us of the importance of a good defense and an impartial jury. I only hope Mr. Leontovich is able to get his life back on track after enduring this unnecessary persecution.

Posted by Page Pate | Permalink | Email This Post

Posted In: Georgia Criminal Law , Sex Crimes

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It's an unusual move, but a great idea. Athens Georgia criminal defense attorney Ed Tolley is trying to get the judge to allow him to question grand jurors before they consider a murder indictment against his client. The Athens Banner Herald has the story. The case is pending in Oconee County, part of the same judicial circuit as Athens.

According to the Athens article, the defense lawyer wants to determine the effect of pretrial publicity on the grand jurors before they decide whether to indict his client for murder. The lawyer also wants the judge to put a "gag order" on the parties to prevent any additional publicity before the case goes to trial.

Generally, a judge won't consider the effect of pretrial publicity until the jury is being selected right before the case is tried. If it appears that a lot of the potential jurors have heard about the case and made up their minds, then the judge may consider a change in venue or other remedy. The judge usually doesn't care if the potential juror has heard about the case, only if the juror can still be "impartial" despite what he has seen or heard.

Of course, most judges are reluctant to change venue and start over at that point. That usually means pretrial publicity won't help you get a criminal trial moved to another county. Only the really big "high-profile" criminal cases get moved before trial. A trial doesn't get moved to another court just because the newspaper runs a couple of articles, or the local tv news gives the case 30 seconds of coverage. It takes a whole lot more.

The hearing is set for Tuesday, March 18. If the judge lets the defense attorney question the grand jurors, it may set a precedent in Georgia for screening grand jurors prior to indictment. That would be a big change from the "rubber stamp" the grand jury usually gives prosecutors. I bet many other lawyers would like to use this approach for other cases that get covered in the news before trial. I know I certainly would.

Posted by Page Pate | Permalink | Email This Post

Posted In: Georgia Criminal Law

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