Jury Selection in Georgia

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Jury Selection or  to use the legal term “Voir Dire” (meaning  in Georgia the questioning of prospective jurors by a judge and attorneys in court) is very similar to the process in other states and federal courts. The judge asks certain statutorily required questions such as, “can you be impartial?” and jurors rarely indicate anything contrary to what the judge is asking. Later, the prosecution or “State” asks a series of questions that are usually scripted and have very little variation based on the particular charges in the case. Finally, the defense gets a chance to ask a few questions.

While most defendants would love to know what jurors will find them not guilty, the best case scenario in most counties is finding jurors who are willing to be fair and listen to all of evidence before making up their minds. Most judges and prosecutors will object vehemently when defense attorneys try to educate jurors as to a particular defense or interject specific facts into their minds prior to the start of the trial. You have to find a way to gain open and honest answers on the limited questions you are allowed to ask and find a way to really weed out the jurors that you do not believe can give you a fair shot. That is the art of jury selection. It requires the ability to read the prospective jurors and recognize when a juror is being untruthful. When that happens, you cannot attack that juror and accuse them of lying. You have to politely inquire further into their position and attempt to gain further insight into why they feel the way they do. You can’t change the way someone feels, but hopefully you can find out how they truly feel before you let them on your jury. If you plan on going to trial, you need an experienced attorney to ensure that you do not lose your case before the first piece of evidence is presented.

The Commerce Clause to the United States Constitution and Criminal Law

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I am interrupting my review of sentencing law to write about the “Commerce Clause” of the United States Constitution. Recently, I listened to an excellent podcast on the Commerce Clause. I encourage you to listen to is here.

The commerce clause is the legal fiction used to grant the federal government virtual unfettered jurisdiction in matters traditionally reserved to the states. The producers of the podcast at More Perfect note that the Commerce Clause was used effectively during the civil rights era to bring freedom to the oppressed. What they did not have time to develop is that the commerce clause has since been used to lock up a disproportionate number of African Americans. Until relatively recently, crime was largely a matter for states. Today, the federal government has gone beyond its traditional role to prosecute street-level, hand-to-hand drug sales, local fraud, and a host of other crimes that do not have a meaningful impact on interstate commerce.

Since the federal government got involved in the prosecution of what was typically thought of as local crime, the number of persons incarcerated in federal prisons has risen drastically. For instance, from 1980 to 2015, persons incarcerated in federal prison increased from 22,037 to 185,917, a 743% increase. Federal incarceration for drug offenses during the same period is even more severe with a 1826% increase. This prison growth occurred while the U.S. population increased by less than 50%. And, with over 10,000 attorneys, DOJ is the world’s largest “law firm!”

So, while most Americans were pleased to see the federal government use the commerce clause to desegregate the south, today it is frequently used as a means of inserting the federal government into local criminal matters. You will have to read my recent blog on mandatory minimum sentences to appreciate the impact of the federal government being involved in low-level and local crimes.

What are your rights to a search of your dorm room or locker in Georgia?

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As a student, what rights do you have to contest the search and seizure of drugs or alcohol on campus? Whether you are in high school or college, you still have limited rights to privacy that can only be overcome in accordance with school policies or a search warrant if law enforcement is involved. The Fourth Amendment prohibits unreasonable searches and seizures but those protections typically do not extend to actions taken by school officials. However, if the facts of your case show that the school officials violated their own handbook and/or acted in a law enforcement capacity, then there could be a valid defense to your case. There is no bright line rule, but you can contact us at 404-581-0999 for a free consultation to discuss the specifics of your case and decide whether hiring an attorney is in your best interest.

Mandatory Minimum Sentences in Federal Court

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by John Lovell

If you’ve been charged with a federal crime in the state of Georgia, many federal crimes require a “mandatory minimum” sentence. Mandatory minimum sentences reflect a “one-size-fits-all” form of justice. It is the legislative and executive branches of the government imposing arbitrary sentences without information pertaining to the person convicted or the specifics of the crime. Mandatory minimum sentences strip the judge hearing the case from deciding what is a just and fair sentence.* Mandatory minimum sentences range from 2 years to life without parole. Families Against Mandatory Minimums has compiled a list of crimes and mandatory minimums. These mandatory minimum sentences are not just unique to federal crimes in Georgia, but are mandatory all across the country.

There are some ways to avoid mandatory minimum sentences. First and foremost, don’t commit a crime that exposes you to man mins! Obvious, right? If you are charged, seek an attorney who is familiar with federal law. I have seen many an attorney counsel a client to plea guilty, unaware of the mandatory minimum sentence. I have seen this where a life sentence was imposed. There are few circumstances where a person would voluntarily agree to be sentenced to life in prison, particularly for a drug offense.

Also, it may be possible to negotiate a plea to a charge that does not require a mandatory minimum sentence.

Finally, learn whether an exception applies that allows the judge to NOT impose a mandatory minimum sentence. Next month I’ll write about the most common exception under federal law, the “safety valve.”

*One of many examples: I had the privilege of representing a young man on appeal who received a mandatory life sentence for delivering drugs. There was no dispute but that he was a “mule.” I did not represent him at trial but read the transcript of the sentencing hearing where the conservative, George W. Bush appointed judge, described the mandatory sentence as “savage, cruel and unusual.” I filed a federal habeas motion and was able to get the young man’s sentence reduced to a term of years where he will, in the coming years, be free and not lose his life to a mandatory minimum sentence.

Sentencing Guidelines in Federal Court in Criminal Cases

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Perhaps the biggest difference between defending a criminal case in federal court versus trial courts in Georgia is the sentencing guidelines. The federal sentencing guidelines manual is complex, it includes over 500 pages of rules and formulas.

Often, to determine whether to go to trial, a person accused of a federal crime must be informed of the likely outcome of a plea and of trial. This is how one makes an informed decision. I have practiced as a federal prosecutor and private attorney since 2000. I have seen changes that have significantly affected the sentencing guidelines. The most significant change came in 2005 when the Unites States Supreme Court found that the guidelines would no longer be deemed mandatory (the “Booker” case). Prior to Booker, judges were largely compelled to follow the guidelines. Federal judges lacked discretion to determine what is a fair sentence. Lawyers were left to argue for a sentence within a narrow “guideline range.”

Today, federal judges have discretion and the lawyers advocating for clients are critical. A lawyer who has mastered the guidelines must first strive to place a client at the lowest possible guideline level. Then, the skilled attorney can argue for a “reasonable sentence” below the sentencing guideline range.

If you’d like to read the federal sentencing guidelines for yourself, they may be found at https://www.ussc.gov/guidelines.

The sentencing guidelines are one of the two most critical factors in determining what a sentence will likely be. The other is mandatory minimum sentences. I will discuss that in my next blog.

Trials in Federal Court

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by John Lovell

For my first blog with Peach State Lawyers, I’ll address trials in federal court. Because every client is cloaked in a presumption of innocence, I start with the view that the government has made an error in charging my client. My concern is based on my experience – the last three cases I tried in federal court resulted in acquittals for all or the most serious charges. The three trials resulted in acquittals for 1) murder and a gun possession charge, 2) two counts of attempted murder and a parallel gun possession charge for each count, and 3) four counts alleging the production of child pornography.

All three clients knew they were innocent of these charges and told me they wished to go to trial. After evaluating the government’s cases, I agreed with them and prepared for trial. The murder acquittal is an example of how we defend serious charges. In this case, we had more than a mere attack on the credibility of the government’s witnesses, we put up a case for innocence that was stronger than the federal government’s case. Together with my investigator, we discovered the person who committed the murder. We found witnesses who saw the murder and they were more credible than the “snitches” who testified with hopes of getting themselves out of trouble.

Not every case is appropriate for trial. However, a skilled attorney advises a client whether the case is triable.

When searching for an attorney in federal court, ask direct questions such as:
• How many cases have you handled in the courthouse where my case will be heard?
• How many trials have you represented a client as first chair (not as an assistant)?
• What were the outcomes of the cases you tried?

If an attorney tells you of terrific outcomes, ask to see proof. It is your duty as a person defending his freedom to find out which attorneys are marketing geniuses and which are skilled trial attorneys (some are both). The attorney focused on marketing may not have the skills to represent you in court. Even if the case is not a case that should be tried, you do not want an attorney negotiating for you who has a reputation of avoiding trials. You want an attorney who brings credibility to the table! After all, this may be the most important decision you make.