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.

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Posted In: Georgia Criminal Law , Violent Crimes

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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.

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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.

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Posted In: Georgia Criminal Law , Sex Crimes

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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.

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Posted In: Georgia Criminal Law

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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.

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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.

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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.

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Posted In: Georgia Criminal Law

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"Metro Atlanta may get a little bloodier. Call it a sign of success."

So begins a recent article in the Atlanta Journal Constitution about "progress" in the so-called war on drugs.

Federal drug agents are claiming that they have "decreased the quality and raised the price of drugs on the street." As a result, they are expecting more violence between drug dealers, and more crimes committed against average citizens because the drug users need to steal more money to buy drugs at the inflated price.

The author of the article, Steve Visser, has a good understanding of how drugs get to Atlanta, and why the traffic has increased so dramatically over the past few years.

Metro Atlanta became an outpost of organized crime for reasons of geography, logistics and immigration. It also has a strong and diverse market for drugs — powder cocaine for the suburbs, crack cocaine for the city, crystal meth for the exurbs and ecstasy for Midtown raves — for the cartels to fill, Killorin said.

Moreover, the region is a transportation hub — by rail, air and interstate highways and even by sea, by way of Savannah — to make it a natural distribution point, whether to New Jersey or Chicago.

"We've got the busiest airport. We've got three major interstates passing through. We're just accessible," said Atlanta Police Lt. Robert Browning, deputy director of HIDTA. "It is not that the drugs are coming to Atlanta and stopping. This is the transportation route for the whole East Coast."

The reason is simple logistics.

Cocaine is still manufactured in South America, but instead of being shipped directly to the U.S. by plane or ship — as was the case in the Miami Vice heyday — the Colombia cartels are now selling it to Mexican cartels.

Those organizations then ship it, along with marijuana, methamphetamine and heroin, to Atlanta, a major metro area with a large Hispanic population in which the traffickers can hide.

They often hide shipments in cargoes of legitimate goods that thousands of trucks ferry across the border each day. Drug shipments even have been hidden with truckloads of produce bound for the state Farmer's Market in Forest Park, according to the 2007 HIDTA annual report.

The cartels' operatives in metro Atlanta repackage the drugs for distribution in the region or shipment elsewhere, Benson said. Then, millions in dollars are transported back to Atlanta, where the cash is packed and ship to Mexico.

The trafficking organizations rent houses in affluent neighborhoods in Cobb and Gwinnett counties that shield them from surveillance because they're on large, private lots, the HIDTA report noted.

Of course, an increase in drug traffic and drug arrests keeps criminal defense attorneys busy as well. Atlanta defense lawyers have seen a lot of federal drug cases in the past few years. In fact, our law firm has been involved in a few federal drug trials where the quantity of drugs seized exceeded several hundred kilos. In a case I tried two years ago, federal drug agents had also seized 4 million dollars in cash as a result of a drug operation in Atlanta and Marietta, Georgia.

We have posted on several of these cases before - 88 people indicted for drug conspiracy in Atlanta; and my recent drug trafficking case in the Eleventh Circuit Court of Appeals.

I don't see how an increase in violence is a good thing, or a sign of the demise of drugs being imported into the U.S. I am sure the federal government could be a lot more effective if they spent just a fraction of that money on treatment and reducing the demand for drugs. But I don't expect that to happen anytime soon. There is just too much money and bureaucracy dedicated to this un-ending, and un-winnable, war on drugs.

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Posted In: Drug Crimes , Georgia Criminal Law

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Former District Attorney Tim Madison was sentenced last week to 6 years in a Georgia prison for his role in a scheme to steal money from Banks County. Madison pleaded guilty to a number of counts, but they all basically involve the same crime - taking money from county funds that he was not authorized to take.

He convinced Banks County to pay a salary to an assistant district attorney who was already being paid by state funds. Madison and the attorney then split up the extra salary. Madison also admitted falsifying time cards for his wife who was on his payroll at the time. The other charges - false statements and violating his oath of office - were part of the scheme to cover the fraud.

The Athens Banner Herald did an excellent job of covering this case from start to finish.

Madison got 6 years to serve, but the total sentence is 12 years - the first six will be served in prison, the remainder on probation. In reality, Madison will most likely only serve 2 or 3 years before being paroled, considering his age and the improbability of recidivism. He also has to pay $40,000 in restitution. The sentence imposed by the judge sets forth the prison term and the conditions of his probation.

I'm not sure where Madison will actually serve his time. Other Georgia officials convicted in public corruption cases have often been moved to out-of-state federal facilities, especially if they are former law enforcement officers. If he went to a Georgia prison, he may run into one of the people he prosecuted. Not a good thing for the former "tough on crime" D.A.

The Georgia Attorney General's Office asked the judge to impose an 8 year sentence. Madison's defense lawyers asked for a long term of straight probation. No doubt that Madison had two of Georgia's best criminal defense lawyers representing him, but it appeared that the judge had already made up his mind. Perhaps he was influenced by the tough stance Madison used to take on plea deals and sentences for theft cases. He probably would have given himself 10 years to serve.

Madison had served as District Attorney in that circuit for over 25 years. On Saturday, he will begin serving his sentence in the Banks County jail. It's a big change. Some local attorneys thought the sentence was too harsh, but defense lawyers and prosecutors that know Madison consider the sentence an appropriate one. Most criminal defense attorneys that have gone up against Madison agreed with Georgia's Attorney General - "Madison's sentence was not only consistent with the harm that Madison wreaked on the Piedmont Circuit, but was also consistent with sentences that Madison himself had sought from accused or convicted thieves in similar cases."

The case is not over. Charges still remain pending against Madison's wife and the assistant district attorney who agreed to the scheme to divert part of his county salary. Their trial date should be set by March 25.

It's going to be a long, tough road for Tim Madison. But it's hard to feel sorry for him. I never personally tried a case with him, but other defense lawyers tell me he got what he deserved. I doubt he would have shown any mercy if he had been the D.A. prosecuting someone for theft of public funds.

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Posted In: Georgia Criminal Law , Public Corruption

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This week, a committee of the Georgia legislature approved an award of $1.2 million for a man who served almost 22 years in prison for a crime he did not commit. The Atlanta Journal Constitution has the full story.

$1.2 million works out to about $54,000 per year. It sounds good, but I would rather have the 22 years back. Think about what it would be like to lose some of the best years of your life locked up for something you didn't do. And it's not just the time and lost wages. Think of the family and friends who must have abandoned him. Think about the lost opportunities, and the normal everyday things we take for granted. Doing time is never easy. But I am sure it's almost intolerable when you know you are innocent.

Of course, there is no guarantee the Pete will see the money anytime soon. First, the bill has to get to the floor of the House, and then it must be approved by the Georgia Senate. Finally, the Governor must sign it. It may not happen this year, but I am sure Pete knows more about patience than most of us.

This is another win for the dedicated defense lawyers and support staff at the Georgia Innocence Project. They have done a tremendous job of uncovering wrongful convictions through the use of DNA evidence. I am proud to be one of the organization's Founding Members. I posted another one of their wins late last year. They have obviously been very busy.

Congratulations to the Innocence Project and Pete Williams.

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Posted In: Georgia Criminal Law

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This story in the Atlanta Journal Constitution raises more questions than it answers. There is still a lot about the Chief's "retirement" that remains a mystery. But one thing is for sure, he's gone from this department.

This story is especially interesting because this police department was one of the first (if not the first) department to start bringing these computer sex chat cases in Georgia. And they are still doing it. In fact, we have an internet sexual exploitation case currently pending in Fayette County, Georgia that was investigated (actually, initiated) by this department in Peachtree City. It may go to trial next month.

We have successfully represented many people charged with computer sex crimes, including sexual exploitation of children and computer child pornography. We have a dozen of these cases pending in different parts of Georgia, and we expect to be successful in our case in Fayette County as well.

Although sexual exploitation cases can be challenging, we have been successful in resolving several of these cases for probationary sentences. The key is extensive pre-trial preparation. Our law firm usually hires a computer forensics expert to assist us in evaluating the authenticity of the chats, and then we consider entrapment and other legal defenses. The character of our client, and the lack of any criminal history, also helps. I have heard from some of our clients that many defense attorneys simply want to give up when faced with computer pornography or sexual exploitation charges. But these cases can be won. It just takes a lot of time, effort and relevant experience.

I doubt that the Chief's "retirement" will have any effect on any pending case, or the future of these prosecutions in Georgia. It does show, however, the problem with interpreting online chats and conversations. Maybe this Chief now understands how emails and chats can be taken out of context.

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Posted In: Georgia Criminal Law , Sex Crimes

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And the winner is...

Judge Jim Bodiford from Cobb County, Georgia. A no-nonsense judge with a lot of experience in handling death penalty cases, including high-profile trials.

The Atlanta Journal Constitution covered the announcement. I was also interviewed about this selection on WABE FM 90.1 in Atlanta, the local public radio station.

Some defense lawyers may not like Judge Bodiford, but no one can deny his experience, especially in this type of criminal case. He is probably the best choice considering the difficulties that have arisen in this case, and the need to get it tried before the entire indigent defense budget in Georgia is exhausted.

Another thing about Judge Bodiford that makes him a good choice for this case is his genuine love of trials. From what I have seen, this judge truly enjoys his job and likes to preside over interesting trials, especially when experienced and talented lawyers are involved. He usually lets the lawyers try their case, but knows how to keep control of the courtroom.

I expect Judge Bodiford to waste very little time in resolving the pending issues and setting a trial date. The change in judges won't guarantee a fair or speedy trial, but it may at least move this case forward.

It's about time.

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Looks like we may have a new judge to replace Judge Fuller who recused himself from this case yesterday. Believe it or not, two judges have actually volunteered for this job. The Atlanta Journal Constitution reports that Judge Michael Clark (a Gwinnett County superior court judge) and Judge Mary Staley (a Cobb County superior court judge) have both agreed to accept this case.

Both of these judges are active superior court judges with full dockets. That could make things very busy in their respective circuits if they are absent for a trial that could last several months. But both of these judges are experienced and well-qualified to tackle a case of this magnitude. I am sure they will be able to manage their existing caseloads with a little help.

In an earlier post, I discussed the comments that led to this recusal. It's still a mystery to most people why the judge agreed to be interviewed about this case. In recent news reports, however, Judge Fuller denied speaking with the New Yorker Magazine reporter "on the record," and he does not remember making the statement that was attributed to him. Regardless, in my opinion (shared by at least a few other lawyers that have been interviewed by the media), it was poor judgment to agree to be interviewed about a case that was pending before him. It shouldn't matter whether the case was a high-profile a death penalty case or a simple DUI. You just don't talk to the media about cases pending in your court.

I was interviewed on WABE, the local Atlanta public radio station about the problems facing the replacement judge, whoever it is. A short audio clip of the interview is posted on their website. Download file

I have never personally appeared in front of Judge Fuller. But many judges, prosecutors and respected defense lawyers consider him to be a fair, ethical and diligent trial judge. A recent Atlanta Journal Constitution article quotes some of these lawyers and judges. So it's unfortunate that he will probably be most remembered for his involvement in this case, despite all the positive things he has done on the bench.

It will be interesting to see how long it takes the new judge to get the case back on track for trial, and whether we will see any more delays due to funding problems. Considering the two judges that have volunteered so far, I don't think we will have to wait long before we see a trial date.

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The Georgia General Assembly meets again this month in Atlanta. It should be an interesting session. We are watching a number of bills introduced in this session that concern criminal cases in Georgia.

The big bill is the new sex offender bill. This bill was rushed out of the House Judiciary (Non-Civil) Committee, and it is almost guaranteed to pass. (The story is in the Macon Georgia Telegraph.) Unfortunately, there seems to be no real debate over the effectiveness of the proposed statute. Many criminal defense lawyers, and even several Georgia sheriffs, oppose the legislation as written because it does very little to protect children.

Another piece of legislation we have been watching is the eyewitness identification bill. The study committee prepared an excellent report recommending some changes in the way eyewitness identifications are conducted by law enforcement. We expect the legislation to get passed this session. With the recent exonerations in Georgia of people falsely convicted of serious crimes based on faulty identifications, there is a lot of support for this bill.

There are other criminal justice bills that will likely be considered this session. One bill would clarify the rules on expungement of criminal convictions and arrests, and several others deal with the treatment of mentally disabled defendants.

You can follow the progress of these bills and other legislation on the Georgia General Assembly's website. We'll try to provide updates when we get them.

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The Brian Nichols case is back in the news after a brief respite. District Attorney Paul Howard has filed a motion asking Judge Fuller to recuse himself from the case. The Atlanta Journal Constitution has the story. I was interviewed about the case and this recent motion on the local Atlanta affiliate of National Public Radio.

ATLANTA, GA (2007-12-28) A motion filed by Fulton County District Attorney Paul Howard yesterday asks the judge in the Brian Nichols case to recuse himself. Nichols is charged with killing four people as part of a courthouse escape attempt. But some criminal attorneys say that finding a new judge could further complicate things.

Howard's motion claims that Judge Fuller is biased in favor of the defense, an ethical violation. But Atlanta criminal defense attorney Page Pate doesn't buy it:

PATE: Even though Paul Howard says it's about ethics, it's really about money. It all comes back to money.

The case has dragged on for more than a year, has cost 1.2 million dollars, and is now suspended indefinitely. Pate says the latest motion won't help:

PATE: It's a losing game, and it's just going to cost additional time and money to go through this recusal process, because it won't be successful.

Fuller may rule on Howard's motion himself, or allow another Superior Court judge to make that decision. If the motion is denied, Pate says Howard will likely appeal the decision to Georgia's Supreme Court.

© Copyright 2008, WABE

Several judges, prosecutors and even some criminal defense lawyers have criticized Judge Fuller's handling of this case because of the delays and his willingness to apparently give Nichols' defense lawyers a blank check for their fees and expenses. But whatever people may say about Judge Fuller, he is no quitter and will not simply cave in to the DA's demands for a new judge. As much as this case needs to be tried, the D.A. shouldn't get to pick the judge to try it.

I seriously doubt that changing the judge or changing the defense lawyers at this point will speed things up. It looks like the only way the case will be tried soon is if Fulton County or the State of Georgia gives the defense lawyers more money. If I were Nichols' lawyer, I wouldn't hold my breath.

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