Georgia Criminal Law Blog

Read the Yahoo.com article here.

This is from WSB.

DeKalb County police and many others want to see exactly what recording artist Kid Rock was doing at a local Waffle House restaurant.Police say musician Kid Rock was arrested after a brawl at the restaurant and spent about 12 hours in jail before being released on bond.Authorities say the musician stopped at the Waffle House restaurant shortly after 5 a.m. Sunday after his performance at The Tabernacle in Atlanta.Police said Rock and his entourage were finishing a meal when a male customer began exchanging words with a woman sitting with Rock. DeKalb County Police Department, Mekka Parish said it escalated to a physical fight between Kid Rock and the customer that moved outside to the parking lot. Police said 39-year-old Harlen Akins shattered a restaurant window during the fight. He was treated at the hospital.The fight was possibly caught on video tape. The restaurant manager’s girlfriend, Jennifer Carol, said, “Yes, I want to see it. New York Times already wants it.” Parish says Kid Rock left in his tour bus and was stopped by police about a mile from the restaurant. The musician and five members of his entourage were taken into custody on a misdemeanor charge of simple battery. The other customer was charged with criminal damage to property, a felony. Kid Rock was released from the county jail on bond about 5 p.m.Akins is also facing charges.

A U.S. Marine from the metropolitan Atlanta Area has been in our local news lately because he has been charged by the military with the murder in connection with a military operation in Iraq in which he was involved. He is currently at a Marine base in Hawaii where his court martial and related proceedings are being held. One recent news story related to what is called an “Article 32 Hearing.” As it’s name suggests, Article 32 hearings are held pursuant to Article 32 of the Uniform Code of Military Justice (UCMJ) and are a rough corollary to the Grand Jury process in state systems and the civilian federal system.

As a former U.S. Navy Judge Advocate and former Assistant District Attorney in Georgia, I have real world experience with both processes and felt like an article comparing and contrasting each would be appropriate and timely here.

Both the Article 32 hearing and the Grand Jury inquire are designed, in theory, to serve as a pre-trial determination of probable cause. Without getting too deep, the concept of “probable cause” is a term-of-art for legal professionals and cannot be easily described. Nonetheless, as I used to teach my students, “probable cause” is a level of proof or evidence that may lead a reasonable person to conclude that a crime probably has been committed and the accused probably committed it.

The 5th Amendment to the U.S. Constitution states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

UCMJ Article 32(a) states as follows:
No charge or specification may be referred to a general court-martial for trial until a through and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and recommendation as to the disposition which should be made of the case in the interest of justice and discipline.

Very different from each other, huh? On it’s face the 5th Amendment makes the right to grand jury review inapplicable to the military. So congress stepped in and filled that due process void with UCMJ Article 32.

I can say from my own personal experience that, in practice the two processes are very different from one another in real life as well. The Grand Jury hearing (in state practice) may last for less than 5 minutes in routine cases and the defendant is typically NOT present. In fact, the proceedings are secret and it is a crime to disclose anything said behind those closed doors. An Article 32 Hearing, however, can last for days and is wide open to the public and even the media in many instances. The accused participates with his or her attorney and gets to cross examine witnesses and is given access to documents and other items of evidence. A grand jury is not presided over by anyone (except the forperson who’s authority is quite limited). There is no judge present and the prosecutor and the police witnesses run the show. To the contrary, an Article 32 Hearing is conducted by a fiercely neutral commissioned military officer (frequently a JAG Officer) who follows limited rules of evidence and permits wide latitude on cross-examination of witnesses against the accused.

I like the Article 32 process much better than the Grand Jury. It just feels better to me to keep everything out in the open with an accused having the right to counsel and to participate. Grand Jury indictments handed down in secret have always bothered me because doing business that way can lead to abuse. To illustrate this point, one need look no further than to the prosecutor who got a grand jury to indict those innocent Duke lacrosse players.

For more detail on the Article 32 Hearing, check out:
www.jag.navy.mil/html/NLSOGlakesArticle_32_investigations.htm

Story from the AJC here.

Maria Rivera sits in the Cobb County Jail, facing deportation after a traffic stop.

If the Mableton mother of three, who is here illegally from Mexico, had been pulled over in any other county in Georgia, she likely would have bailed out and gone on with her life.

But Cobb County’s jail is at the forefront of local enforcement of immigration laws, going a step further than many states and further than a new Georgia law requires.

Cobb has trained some sheriff’s deputies to determine the legal status of all foreign born inmates at the jail, no matter how minor the charge. Cobb jailers now can start deportation proceedings under what’s known as a “287-G” agreement with federal immigration authorities.

“The computers are up and running,” Cobb County Chief Deputy Sheriff Lynda Coker said. “They can run inquiries on a federal database.”

A new state law effective July 1 requires jailers statewide to determine the legal status of inmates charged with felonies or DUI and report illegal immigrants to federal immigration officials, but they can leave it at that.

In Cobb, jailers have been trained by federal immigration officials on how to inspect immigration documents.

“They can initiate the removal proceedings themselves,” said Richard Rocha, a spokesman for U.S. Immigration and Customs and Enforcement, known as ICE. “Any time we can share resources with local law enforcement, it’s a plus for public safety,” Rocha said.

Proceedings against 42

In the four weeks since the program began, Cobb jailers and ICE have interviewed 86 inmates, placed immigration holds on 68 and started deportation proceedings against 42, Coker said. Deportation paperwork done by sheriff’s deputies must be reviewed by an immigration officer before it goes to a judge.

Although it’s sheriff’s deputies, and not Cobb County Police Department officers, who are now processing deportation paperwork, the program is sending a shiver through the immigrant community.

Fear destroys any rapport the community had with police, said Jerry Gonzalez, head of the Georgia Association of Latino Elected Officials.

“This is having a very negative effect on overall public safety,” Gonzalez said.

Muzaffar Chishti, director of the Migration Policy Institute’s office at New York University Law School, agrees. The institute is a nonprofit Washington think tank that studies global migration patterns.

“People are reluctant to report crimes to the police, or be witnesses in criminal proceedings,” Chishti said.

As for the agreement’s effect on immigration patterns, it’s hard to say. Since 2001, there’s been an annual net increase of 500,000 illegal immigrants entering the country, Muzaffar said.

“There’s no evidence these agreements have led to a decrease in illegal immigration,” he said.

Coker stresses that Cobb jailers have had a cooperative relationship with immigration authorities for about 10 years and have reported illegal immigrants to them. What is happening in Cobb now, Coker said, is not much different, except sheriff’s deputies can now pitch in on the paperwork.

Some Cobb inmates who have been flagged for immigration holds are charged with child molestation or drugs, weapons and alcohol-related offenses, Rocha said.

“With the success of the program, we’ve been able to identify people who may otherwise not have been flagged,” he said.

Nationwide since 2006, local jailers have identified more than 20,000 illegal immigrants through cooperative agreements with the federal government like Cobb’s, Rocha said.

Whether and how an inmate is flagged as illegal may differ in each case as it goes through the system. Some jails have dedicated ICE officers to identify illegal immigrants as they are booked. At others, ICE relies on local jailers to notify them if an inmate may be here illegally, Rocha said.

Inmates collected by ICE right away are usually those facing lesser charges, Coker said. Those with more serious charges usually go to trial and serve time if convicted, she said. It’s up to ICE to deport them after they serve their time.

Traffic violations

Rivera was flagged because she had been deported before, in March 2006, after crossing the Mexican border illegally, Rocha said.

Rivera crossed again last year and went to Chicago with her husband and three children, said Enrique Farias, her roommate. About six months ago she came to Mableton with her children, Farias said.

His sister cared for the three children a few weeks while their mother was in jail, he said, until an uncle from Chicago came last week took the children home with him.

Rivera was stopped by a Cobb County police officer July 11 on her way to work as a house cleaner, Farias said. She is charged with driving without a license, having no proof of insurance and an expired tag, according to jail records.

Cobb County police Chief George Hatfield said his officer had no choice but to enforce the law with Rivera.

“It’s sad if she’s got the three children and everything, but she should have thought about that before she got behind the wheel of a car,” he said.

Below is a story from the Associated Press.

David McDade has handed out some 35 copies of a video of teenagers having sex at a party.

McDade is no porno kingpin, but a district attorney. And he says Georgia’s open-records law leaves him no choice but to release the footage because it was evidence in one of the state’s most turbulent cases — that of Genarlow Wilson, a young man serving 10 years in prison for having oral sex with a girl when they were teenagers.

McDade’s actions have opened him up to accusations that he is vindictively misusing his authority to keep Wilson behind bars — and worse, distributing child pornography.

“This has been a ferocious, vindictive prosecution of Genarlow Wilson,” said state Sen. Vincent Fort, an Atlanta Democrat. “What is going on is a vendetta.”

McDade, who is district attorney in Douglas County, in suburban Atlanta, did not immediately return calls Thursday.

He has said that while the law required him to release the video, he also believes the footage helps his case — by showing that Wilson is not the squeaky-clean football star and honor student portrayed by his supporters.

“Most of those who do not want people to see the tape know that it’s damning to their position,” McDade told The Associated Press.

He released the video after receiving an open records request from the AP, and said he has given it to about three dozen people, including reporters, lawmakers and several members of the public who requested it.

It shows Wilson, then 17, receiving oral sex from a 15-year-old girl and having intercourse with another 17-year-old girl. It was shot at a 2003 New Year’s Eve Party at a hotel room by another partygoer.

Earlier this week, Georgia’s chief federal prosecutor, U.S. Attorney David Nahmias, said the video “constitutes child pornography under federal law,” and he called on McDade’s office to stop releasing copies.

“These laws are intended to protect the children depicted in such images from the ongoing victimization of having their sexual activity viewed by others,” Nahmias said.

Nahmias’ office refused to say whether he would bring criminal charges against the D.A.

Critics say that at the very least, McDade should have obscured the faces of the underage girls to conceal their identity, or sought a protective order to keep the material under seal.

Such steps are common in sex abuses cases, especially those involving underage victims, said Diane Moyer, legal director for the Pennsylvania-based National Sexual Violence Research Center.

“The bottom line is we need to have respect for the victims in these kinds of cases,” Moyer said. “To release this kind of thing, to me it’s prurient and it takes the open records law too far.”

Several Wilson supporters likened McDade to disgraced Duke lacrosse prosecutor Mike Nifong and called on Georgia’s attorney general to investigate.

“Mike Nifong lost his license, and if he lost his license, then certainly a district attorney that distributes child pornography ought to be investigated,” the Rev. Raphael Warnock, pastor of Ebenezer Baptist Church in Atlanta, said Thursday.

State Sen. Emanuel Jones said he would introduce legislation to block district attorneys from handing over photographic images in sex cases.

“I’m going to call it the David McDade Act,” Jones said. “Sometimes we have to protect our kids from district attorneys.”

Wilson was convicted of aggravated child molestation for having oral sex with the 15-year-old girl. He has served more than two years of a mandatory 10-year sentence.

The law Wilson was convicted of breaking made consensual oral sex between teens a felony. It has since been changed by the Georgia Legislature. But the state’s courts have held that the new law cannot be applied retroactively.

A judge last month called Wilson’s sentence “a grave miscarriage of justice” and ordered him set free. But prosecutors are trying to block his release. The Georgia Supreme Court is set to hear the case next week.

McDade fought a bill in the Legislature earlier this year that would have helped Wilson. Some lawmakers who were on the fence changed their mind after seeing the tape.

A simple battery wouldn’t normally be news around here, but the media is still fascinated by John Mark Karr.  He is the man that falsely confessed to the killing of Jon Benet Ramsey.  Read the story here from Yahoo.

http://www.mdjonline.com/articles/2007/06/06/268/10261150.prt

You can’t really have a blog dedicated to criminal defense work and not mention the Duke “rape” case today.  As everyone with a radio or television knows, the charges against these young men were dismissed today.  There lives however have been changed forever.  So has the life of the District Attorney that rode this case to his re-election.  He now has the Bar Association to deal with and may get disbarred.  The Attorney General would not rule out criminal charges against Nifong.

For those of you that would like a very thorough discussion of this case, check out this blog.

I hope this case helps the public understand how easy it is to get charged with a crime in this day and age.  I hope the criminal defense bar will let this case inspire them to keep up the good fight.

I love this quote from one of the young men, Reade Seligmann,

“This entire experience has opened my eyes up to a tragic world of injustice I never knew existed. If it is possible for law enforcement officials to systematically railroad us with no evidence whatsoever, it is frightening to think what they could do to those who do not to have the resources to defend themselves. So rather than relying on disparaging stereotypes, or creating political and racial conflicts, we must all take a step back from this case and learn from it. This tragedy has revealed that our society has lost site of the core principle of our legal system, the presumption of innocence.”

Bond Reduced For Accused ‘Barbie Bandit’ - News

Heather Johnston’s bond was reduced to $10,000.00 for the theft in which she was involved. She was also ordered to live with her parents and obey a strict cerfew.  Apparantly, after the high-profile theft, they gave some money to the homeless.

House Bill 185 introduced by Rep. Barry Fleming is an attempt to re-write Georgia’s long standing and deeply-rooted law of requiring unanimous verdicts.  Interestingly, it seeks to rewrite the law where unanimous verdicts are needed the most, Death Penalty cases.  How in the world is in that we would require a unanimous verdict to convict someone of a minor misdemeanor, but 9 out of 12 would be OK to sentence a defendant to death?

This news comes on the heels of Willie Williams release from prison last week after being exonerated by DNA evidence.  He spent the last 21 years of his life in prison for a crime he didn’t commit.  It was the sixth time in seven years that DNA has cleared an inmate in Georgia.  This is an issue not limited to Georgia, it is happening all over the country, prompting many states to modify the procedures used in police line-ups and raising awareness on the fallability of eyewitness evidence.

For more, read these two articles here and here in the Marietta Daily Journal.

The shooting of an elderly lady in Atlanta takes a disgusting turn. This from the AJC.
An Atlanta police narcotics officer has told federal investigators at least one member of his unit lied about making a drug buy at the home of an elderly woman killed in a subsequent raid, according to a person close to the investigation.

In an affidavit to get a search warrant at the home Nov. 21, narcotics officer Jason R. Smith told a magistrate he and Officer Arthur Tesler had a confidential informant buy $50 worth of crack at 933 Neal St. from a man named “Sam.”

But narcotics officer Gregg Junnier, who was wounded in the shootout, has since told federal investigators that did not happen, according to the person close to the investigation. Police got a no-knock warrant after claiming that “Sam” had surveillance cameras outside the Neal Street residence and they needed the element of surprise to capture him and the drugs.

The resident at the home, Kathryn Johnston, who is reported to be either 88 or 92, was startled by the sound of her burglar-bar door being battered in, and she fired her revolver at the officers. She was killed and three officers were wounded by gunfire or shrapnel.

Buddy Parker, a former federal prosecutor, said that officers who lied to the magistrate could face serious charges in addition to making false statements to a judge.

“If that was the case, you have a conspiracy,” said Parker. “If you have a warrantless entry, you have no legal investigation. It can be either conscious disregard for the law and all conduct flowing from that is criminal — the entry, the homicide. It’s no different from people going in to rob a bank and kill someone in a shooting.”

U.S Attorney David Nahmias declined to comment on whether Junnier was cooperating in the investigation.

Rand Csehy, attorney for Junnier, an 18-year police veteran who retired last week, would only say his client has cooperated.

Tesler’s attorney, Bill McKenney, would only say, “My guy has told the truth.” But the attorney would not say whom Tesler has spoken with or what he said.

Smith’s attorney, Ed Garland, did not return phone calls.

All eight officers on the narcotics team were placed on paid leave pending the investigation by federal, state and Fulton County authorities.

Junnier has told investigators the arrest of a suspected small-time dealer named Fabian Sheats that afternoon set the fatal set of circumstances in motion. According to police reports, Sheats, who was arrested for the third time in four months, told police that he had seen a kilogram of cocaine at the Neal Street home earlier that day.

A relative of Sheats said Wednesday he is being held in jail as a government witness,

The narcotics team tried to contact Alex White, who has worked as a confidential informant, to buy drugs at the house but was unable to get him to come quickly, the person told The Atlanta Journal-Constitution. “But they rushed it” and went to the magistrate, telling the judge the story about an informant buying the drugs, said the person close to the investigation.

Alex White came forward to authorities a day after the shooting, saying narcotics officers were trying to tell him to lie and say he bought drugs at the house. White came to light after he jumped out of an Atlanta squad car Nov. 22 and called 911.

On a 911 tape, an insistent and anxious-sounding man identifying himself as White told an operator, “I have two cops chasing me. They’re on the dirty side, two undercover officers.”

Later, White, who acknowledged having worked as a confidential informant, told WAGA the cops told him “you need to cover our [rear]. . . . It’s all on you man. . . . You need to tell them about this Sam dude.” According to the WAGA report, the informant said Sam didn’t exist and he never went to the house. Speaking Wednesday night at a town hall meeting where dozens of speakers railed against the police action in the Johnston shooting, State Sen. Vincent Fort (D-Atlanta) said he plans to introduce legislation to stiffen the requirements for no-knock warrants.

“I’m outraged,” Fort said, “about how things went down on Nov. 21.”

Staff writer Jeffry Scott contributed to this article.

Man ordered to wear “sex offender” T-shirt | Oddly Enough | Reuters.com

It was only a matter of time!  $100.00 says within 2 years a bill gets introduced in our legislature requiring this as a punishment for sex offenders.