Georgia Criminal Defense Lawyer Blog

The Georgia Supreme Court today struck down a critical portion of Georgia's Sex Offender Registration law by declaring its residency restrictions unconstitutional. In Mann v. Georgia Department of Corrections, the Court held that the statute unconstitutionally forces individuals to move whenever a new child care facility, church or school happens to move within 1,000 feet of the person's previously permissible residence.

Anthony Mann is a registered sex offender who in 2002 pleaded nolo contendere in North Carolina to the offense of taking indecent liberties with a child. In August 2003, he got married and he and his wife purchased a home in Clayton County, Georgia. At the time it was purchased, the home complied with Georgia's sex offender residency restrictions as it was not "within 1,000 feet of any child care facility, church, school or area where minors congregate." Additionally, in October 2004, Mann became a part-owner and day-to-day operator of a barbecue restaurant that similarly was in compliance with the statute (the statute also prohibits Mann from being "employed by any business or entity that is located within 1,000 feet of an area where minors congregate").

At some point thereafter, child care facilities were erected within 1,000 feet of Mann's home and business. Mann's probation officer demanded that he quit the barbecue business and remove himself from his home or be subject to arrest on felony charges.

Mann filed a civil suit in Clayton County Superior Court alleging that the statute's residency and employment restrictions constitute an unconstitutional government taking of his property in violation of the Fifth Amendment to the U.S. Constitution. The Court partially agreed holding that forcing Mann to give up his home without providing compensation was unconstitutional, but that the Constitution did not prohibit the government from forcing him to find new employment.

The Court was particularly troubled by the legislature's failure to include a "move-to-the-offender" exception that would allow a person who establishes residency or accepts employment in a permissible location to stay there when a new child-related establishment moves nearby (the statutes in Alabama, Iowa and other states contain this type of exception). Without this exception, the Court reasoned that "there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected."

Essentially, the statute amounts to an unconstitutional taking of a person's property when it forces an offender who owns his residence in a permissible location to move when a new child-related establishment moves in. An individual who rents his residence does not have the same constitutionally protected property interest as a landowner. The Court also found that Mann's interest in his barbecue business was not protected by the Constitution either. Although the statute directly deprives Mann of his right to work on site at the restaurant, it does not compel him to relinquish his ownership interest or to relocate the business in order to maintain his interest in it.

Over the last two years, our firm has been asked to handle many sex offender registration cases similar to the one decided today. The decision will not only affect our current clients, but will likely open the door to future litigation to address the rights of others, like Mann, that had been forced to leave their homes as a result of this law.

The decision today puts an end to a sixteen month campaign where the state forced thousands of people out of their homes--many of them were landowners like Mann. There are also many criminal prosecutions, for violations of these restrictions, that will now undoubtedly be dismissed.

Several proponents of the statute have criticized the decision fearing "that now convicted felony sex offenders are free to live anywhere they want to in Georgia." In reality, though, the legislature will most likely take their first opportunity in January to amend the statute by adding the "move-to-the-offender" exception that has been adopted by other states. Doing so will likely satisfy the Supreme Court and allow the state to enforce a modified version of these residency restrictions next year.

Posted by Bernard Brody | Permalink | Email This Post

Posted In: Georgia Criminal Law , Sentencing and Prisons , Sex Crimes

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The Gwinnett County District Attorney's Office has dismissed animal cruelty charges against Atlanta Falcon's defensive tackle Jonathan Babineaux stemming from the February death of Babineaux's girlfriend's pit bull-mix. Babineaux's criminal defense lawyers were able to prove that the dog had a history of unprovoked attacks and that a dog trainer had instructed Babineaux to spin the dog on a leash when it became aggressive. District Attorney Danny Porter stated that his office conducted an exhaustive investigation and eventually concluded that they would not be able to prove that a crime had been committed.

The prosecutors had an uphill battle in this case. Babineaux was charged with aggravated cruelty to animals which, under Georgia law, requires the state to prove that the person maliciously caused the death or physical harm to the animal. Moreover, a person may not be convicted of this offense if the death or injury to the animal is sustained while the person is (a) defending himself or another person from a potential attack; or (b) is protecting his property or the property of another from potential damage.

Although the dismissal of the felony charges is undoubtedly a victory for Babineaux and his criminal defense lawyers, it will take time for Babineaux to overcome the rash of negative publicity the case attracted from animal rights groups. According to Babineaux's lawyers, Falcon's owner Arthur Blank was under a lot of pressure to trade him, especially after the Michael Vick charges surfaced later in the year.

Local law enforcement agencies typically prefer to arrest a person first and then conduct their investigation later. This is much unlike federal criminal cases, where the prosecutors will sometimes investigate a case for years before making an arrest. The main advantage to the prosecution in making a quick arrest would be to secure the person in jail or on bond in order to ensure that he will still be around when the case is eventually indicted and tried.

In this case though, it is highly unlikely that the $2,300 bond posted by Babineaux was his only incentive to stay in Georgia while the case was being investigated. Perhaps, had the "exhaustive investigation" been conducted before the police arrested Babineaux, he would have been spared the public embarrassment and this would not be news.

Posted by Bernard Brody | Permalink | Email This Post

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More weird developments in the Brian Nichols saga this week. On Friday, Fulton County District Attorney Paul Howard served Judge Fuller with a lawsuit seeking his removal from the Brian Nichols' death penalty case. Howard apparently also wants to remove Nichols' defense attorneys. It's an unprecedented move, and unlikely to be effective. The petition was filed with the Georgia Supreme Court and there is no guarantee the Court will even consider it.

The Atlanta Journal Constitution has the story. The local National Public Radio affiliate in Atlanta (WABE 90.1) is also following the Nichols case. Yesterday, I was interviewed on WABE and provided some commentary in their coverage of the DA's lawsuit.

I have never heard of a judge being forced off of a case because the prosecutor doesn't like the way he is handling the trial. If the Court allows this to happen, it will set a very dangerous precedent. Maybe the removal of Judge Fuller is what Howard has in mind. Perhaps he just wants to publicly add his voice to the growing chorus of voices asking Judge Fuller to either move things along or step aside and let someone else do it. Although Fuller has his defenders (and his reputation is certainly impeccable), I have not heard anyone publicly or privately applaud his handling of this case. Most people (including most of the prosecutors, judges and criminal defense lawyers I know) agree that this case has cost too much and taken too long.

But Howard's suit is unlikely to help. While I can understand Howard's frustrations, his office shares some of the blame for the delays and escalating costs to Georgia taxpayers. This case could have been resolved many months ago if the DA had not insisted on a long and expensive death penalty prosecution. Nichols' defense lawyers had indicated Nichols would have accepted a plea to life in prison without the possibility of parole. But that wasn't good enough, so the case drags on...

Of course, it's not all Howard's fault either. The defense lawyers in this case have been spending money like crazy. I am not involved in Nichols' case, so I have no idea what they've been spending all that money on. But I can't imagine ever telling a judge that I could not proceed with a trial after I've been paid close to $2 million.

Hopefully, everyone involved in this case will soon put aside their differences and get this case tried. The defendant certainly deserves a fair trial, but let's try to save at least a little bit of money for the thousands of other people in Georgia who need court-appointed counsel. Most of whom can't afford $500 for a lawyer, much less $2 million.

Posted by Page Pate | Permalink | Email This Post

Posted In: Georgia Criminal Law

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Things have now gotten ugly in the ongoing controversy over the death penalty trial for Brian Nichols in Atlanta, Georgia. Yesterday, Judge Craig Schwall called Judge Hilton Fuller, the judge presiding over the Nichols circus, a "fool" and a "disgrace" for his handling of the Nichols case. The email was provided by an unknown source to the Fulton County Daily Report, and the story was later covered by the Atlanta Journal Constitution. Here is an excerpt of the email -

"He [Judge Fuller] is a disgrace and pulling all of us down. He is single handedly destroying the bench and indigent defense and eroding the public trust in the judiciary. ... Surely he can be replaced. He is a fool. ... We should investigate if it can be done."

Nichols, as you may recall, is charged with the murders of a Fulton County judge, his court reporter, a sheriff's deputy and a federal agent in March 2005. Nichols went on a rampage when he escaped from custody during his rape trial (he didn't like the way it was going). In the process, Nichols killed one of the best judges in the state (who, ironically, was probably the fairest and most merciful judge Nichols could have drawn in Georgia).

Judge Schwall has never been one to mince words. In response, the Fulton County Superior Court judges issued a joint statement that "“One judge does not speak for the entire court, however Judge Schwall’s frustrations are shared by a great many, including some members of the Fulton judiciary.” In defense of Judge Fuller, one senior Fulton County judge, a lifelong friend of the judge, was quoted this afternoon in the Atlanta Journal Constitution calling Schwall's remark "very injudicious" and "inappropriate" considering the possible effect on the proceedings.

There are a lot of people frustrated by this case. Many public defenders and attorneys in Georgia have criticized the excessive spending on Nichols' defense lawyers because there are thousands of indigent defendants in dire need of the money that is being spent on defending Brian Nichols. But Nichols' lawyers keep asking for more. It's hard to understand because most Georgia criminal lawyers that have successfully defended death penalty cases have done so for less than a third of the money spent on the lawyers defending Nichols. And in most of those cases there was actually a defense to the charges that had to be investigated and presented in court.

Judge Fuller has even tried to get Fulton County or the Georgia Legislature to pay more money to Nichols' lawyers. The response from the legislature was probably not what the judge hoped for. The Speaker of the Georgia Legislature has created a panel to consider impeaching the judge. I'm not sure if they can actually impeach him (that's usually a matter for the Judicial Qualifications Commission and the Georgia Supreme Court), but the creation of this panel certainly sends a message that the legislature is opposed to spending taxpayer money like "a drunken sailor on shore leave." (The Speaker's words, not mine.)

Death penalty cases are expensive, and the appeals can last decades. That's one of the reasons many people oppose the death penalty. But $1 million for defense lawyers BEFORE THE TRIAL HAS EVEN STARTED is clearly ridiculous and an insult to Georgia taxpayers. It is also insulting to the very talented and successful criminal lawyers who fight these cases in trial courts every day for much less money. And it is a constitutional crisis for the thousands of other defendants in Georgia prisons and jails who need qualified counsel to defend them.

I don't know where it will end. But like so many other people in Georgia, I just hope it ends soon.

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Posted In: Georgia Criminal Law

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