Georgia Criminal Defense Lawyer Blog

Chiman Rai was sentenced this afternoon to life in prison. That's the best sentence possible after a murder conviction.

The Atlanta Journal Constitution has the breaking story from just a few minutes ago.

A life sentence offers Mr. Rai a shot at parole. But parole is never guaranteed, and usually isn't even possible until the person has served 30 years in prison. Mr. Rai would be 98 years old.

While the case will almost certainly be appealed, Mr. Rai will remain in custody and will likely be sent into the state prison system soon. His lawyers will have to file a notice of appeal or motion for new trial within 30 days. Because this is a murder case, the appeal will go directly to the Georgia Supreme Court.

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Posted In: Georgia Criminal Law

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I didn't see the trial, but I was surprised by this verdict. This afternoon, Chiman Rai was convicted for the murder of his daughter-in-law.

The Atlanta Journal Constitution has the story.

Prosecutors claimed that the murder was racially motivated. Rai's son (of Indian descent) had married an African-American girl. The state's theory was that Rai disapproved of the marriage because an interracial marriage would be frowned upon in "caste-conscious" Indian society (the AJC's word, not mine) .

Because prosecutors decided to seek the death penalty, Rai's defense lawyers will now have to prepare for the sentencing phase of the trial. The jury will have the option of sentencing Rai to death, life without parole, or life with the possibility of parole after 30 years. The penalty phase usually focuses more on the circumstances of the defendant (his background, character, etc.) than the facts of the offense. Rai's lawyers are two of the best defense lawyers in Atlanta and I am sure they will do everything they can to save Rai's life.

I heard about this case shortly after Mr. Rai was arrested. It did not sound like a death penalty case then, and it still doesn't. I would be very surprised if Rai is sentenced to death. Juries generally shy away from the death penalty, especially in urban areas, unless the crime is horrific and the evidence overwhelming.

Every murder is tragic, but the evidence presented at trial against Rai was far from overwhelming. It was, however, enough to convince the jury that he arranged for the murder of his daughter-in-law. I am sure the prosecutors will now try to convince the jury that the murder was racially motivated. In my opinion, that would be the only way they could secure a death sentence in a case like this.

The penalty phase of the trial starts on Friday.

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Posted In: Georgia Criminal Law

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A new mortgage fraud indictment was returned in federal court in Atlanta last week.

The new indictment alleges a mortgage fraud scheme involving the purchase of condos on Memorial Drive in Atlanta. The government alleges that the scheme involved fraudulently inflated appraisals. One of those charged is a former IRS employee.

The Atlanta Journal Constitution has the story.

There have been several large federal mortgage fraud prosecutions in Atlanta over the past few years. Our firm has been involved in many of them. We have represented closing attorneys, mortgage brokers, appraisers, investors and the inevitable "straw buyers." The alleged losses have been staggering, usually in the many millions of dollars.

While the government has been mostly successful in these prosecutions, defense lawyers who have represented defendants in these cases often try to point the finger at the lenders who were accepting obviously false loan applications and inflated appraisals without question. There's no doubt that mortgage lenders had a role in the rampant fraud that plagues the residential mortgage industry, especially in the so-called "sub-prime" market. The lenders were approving loans left and right with little concern if the borrowers later defaulted. While that sounds strange, the fact is that most lenders sell the mortgage on the secondary market shortly after the borrower closes on the property. At that point, it's someone else's problem.

But a false statement is still a false statement, and we expect both federal and state prosecutors in Georgia to continue to purse mortgage fraud indictments. There is certainly no shortage of foreclosed properties to review.

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Posted In: Federal Criminal Law , Theft and Fraud

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More drama in the Brian Nichols death penalty case currently pending in Atlanta.

Judge Bodiford recently granted the State's request to have Brian Nichols interviewed by a state doctor. The State requested this examination so that they would be able to present expert testimony to counter the mental illness defense that Nichols' lawyers intend to present at trial

The Atlanta Journal Constitution has the story.

This is not a surprising request, and it is routinely granted in cases where the defendant intends to raise any type of mental illness defense through the use of medical experts. Once the defendant notifies the State of its intent to raise this defense, then the State has the opportunity to have its own expert examine the defendant.

The only thing unusual about this request is the timing. The State has known for a long time that Nichols' defense attorneys intended to raise a mental illness defense.

I was interviewed yesterday on WABE (Atlanta's public radio station) about this development. I was asked why Nichols' defense lawyers would want to prevent the State from having Nichols interviewed by another doctor. Nichols' attorneys, like most criminal defense lawyers, would want to prevent the examination because the request came so late in the process. Nichols' lawyers have also argued that they did not want to subject Nichols to questioning that might incriminate him in the offense.

While these are certainly understandable concerns, Judge Bodiford granted the State's request. He did, however, did put some limitations on the length of the examination.

The trial is still supposed to start this Summer.

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Posted In: Georgia Criminal Law , Violent Crimes

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We've seen this before.

A federal grand jury in Savannah recently indicted Christian and Jennifer Navoy, a couple from Roswell, Georgia, on illegal distribution of controlled substances through the internet.

The Atlanta Journal Constitution has the story.

We are currently representing a doctor who is being charged with a similar offense for his involvement in an internet medicine business operated out of Atlanta. I discussed the case in a previous post.

In the Atlanta case, our client reviewed medical information submitted by patients through an online questionnaire. It was the same information they would have had to provide if they made a personal visit to the doctor's office; it just saved them time and money to do it this way. The drugs involved in our case are non-narcotic drugs like Viagra and weight loss medication, some of the same drugs involved in the Savannah case.

One of the doctors in the Atlanta case has already gone to trial. The jury deadlocked and could not reach a decision. A retrial for this doctor, and any other defendant left in the case, is set for this Fall.

The government is not guaranteed a conviction in this type of case. We think juries will require more evidence than just the fact that someone used the internet to order drugs. Ultimately, the jury's verdict may depend on whether there was a doctor involved, and whether the doctor had sufficient information available to determine the person's need for the medication he ordered. Some jurors may find it difficult to convict a doctor for doing the same thing he would have done if the person had made an appointment to see him at the office.

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Posted In: Drug Crimes , Federal Criminal Law

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Not really surprising news, but it could be a significant development for criminal defense lawyers in Atlanta and other parts of Georgia.

The Georgia Bureau of Investigation (GBI) has joined with the FBI in Georgia to staff a training center for law enforcement officers involved in cybercrime and internet criminal investigations. The center will provide training in all aspects of computer crime, from internet child pornography to identity theft and fraud involving the use of computers.

The Macon Georgia Telegraph has the story.

The FBI says that the training will help law enforcement investigate cybercrime that costs the U.S. approximately $4 billion a year. The GBI's spin is that the training will help law enforcement protect children. Not sure how the two relate, but it sure makes good press.

Officials expect 70 Georgia police departments and sheriff's offices to participate in the training. That means a lot more local enforcement of complicated computer crime laws. Not sure that is a good thing, considering some of the misguided sexual exploitation cases we have defended in the past few years. But maybe a little training is exactly what some local departments need.

Our firm has handled dozens of internet porn cases. A lot of our work has focused on the forensics of the computer investigation, an area ripe with law enforcement errors. By using computer forensics experts, we have kept several of our clients from being indicted. In other cases, we have successfully challenged the techniques used to entrap unwary internet browsers and the curious surfer. Computer porn and enticement cases can be difficult for a criminal defense attorney because the stakes are so high. A conviction on a sexual exploitation case will usually result in a significant prison sentence, and possible lifetime registration on Georgia's sex offender registry.

We have also represented clients in identity theft and other white-collar fraud cases involving the use of computers. Like computer pron and exploitation cases, computer fraud prosecutions are best handled by a criminal defense firm experienced in complex criminal cases with access to the best computer forensics experts in Georgia. While we have always seen these cases prosecuted in federal courts, we are now seeing more and more of them in Georgia state courts. In our experience, recent Georgia fraud cases run the gamut, from simple online scams (sometimes using Ebay and other online services) to complex mortgage fraud that used to be prosecuted almost exclusively in federal courts.

If this new training does increase the amount of state-level computer crimes being prosecuted in Georgia, it will be interesting to see how prosecutors work this cases into crowded state court dockets already filed to the brim with violent crime and drug cases.

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Posted In: Recent Trends

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Tesler got much more time than I thought he would. I am sure his lawyer feels the same way.

Yesterday, Judge Johnson sentenced Arthur Tesler to four and a half years, just 6 months short of the maximum sentence for this crime.

The Atlanta Journal Constitution has the story.

Normally, a conviction for making a false statement would not put someone in prison for close to 5 years. It's a 1 to 2 year offense, at worst. It's likely that Judge Johnson considered the effect of this offense on both the Atlanta Police Department and the community. Although the jury found that Testler was not responsible for the shooting, he was culpable for the cover-up. Considering the collateral damage of the whole incident, the judge probably wanted to send a message. Looks like he did.

Of course, Tesler has the right to pursue an appeal of both the conviction and the sentence, but his defense lawyer may advise him not to. Tesler basically admitted the only count of conviction, and Georgia judges have a lot of discretion in sentencing after a criminal trial. If Tesler and his lawyer want to appeal or ask for a new trial, they have to file a notice within 30 days.

There are some community activists asking for a federal criminal investigation, but that would be unlikely. The feds have already charged the other two officers and apparently gave Tesler a pass based on what they knew about his involvement. I see no reason for the U.S. Attorney in Atlanta to re-visit that decision now.

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Posted In: Georgia Criminal Law , Public Corruption

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The jury finally reached a decision.

Former Atlanta Police officer Arthur Tesler was found guilty of making a false statement to investigators in connection with the 2006 Neal Street shooting, but was found not guilty on the false imprisonment and violation of oath of office charges.

With the conviction on one count, he faces a maximum of 5 years in prison. Realistically, he is looking at a lot less time.

Although the judge is authorized to sentence Tesler to straight probation, it's unlikely. The judge ordered him taken into custody after the verdict. That's unusual for a false statement case, especially when the sentencing has been postponed until later in the week. Maybe a 12 month sentence? Just my guess. The extra couple of days should allow Tesler's criminal defense lawyer to call witnesses to the sentencing hearing.

The Atlanta Journal Constitution has the story.

The verdict looks bad for the Fulton County DA's office because Tesler was convicted on only 1 of the 3 counts. And the count of conviction was something Tesler admitted to doing when he testified - lying to the FBI after the shooting occurred.

If the DA's office had drafted the indictment differently, Tesler would likely have also been convicted on the oath of office charge. Ultimately, it probably won't matter for purposes of sentencing. Judge Johnson heard all the evidence and probably has a good idea of what sentence he will impose.

Sentencing is set for Thursday.

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Posted In: Georgia Criminal Law , Public Corruption

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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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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.

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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.

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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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