Criminal Law - Franklin J. Hogue and Laura D. Hogue

• Publication year: 2008

Criminal Lawby Franklin J. Hogue^* and Laura D. Hogue^**

I. Introduction

The significance of the cases reported in this article represents the perpetual tension between the prosecution and defense of people accused of crimes. This tension, which creates the necessary balance between the State's interests and the accused's, makes for interesting debate by the Georgia Supreme Court justices and for important decisions that guide those attorneys who practice criminal law.

II. Pretrial Issues

A. Discovery

In this reporting period, the Criminal Justice Act¹ came under yet another attack in Muhammad v. State,² a death penalty case. Muhammad challenged the constitutionality of the amended Act on several grounds that had been raised and decided only a few months earlier in Stinski v. State,³ in which the Act was upheld as constitutional.⁴ The principal change to the Act now requires capital defendants who opt into it to provide to the State, at or before the announcement of a verdict in the guilt/innocence phase of the trial, books, papers, documents, photographs, films, recordings, tangible objects, and audio and visual recordings, and to allow inspection and photographing ofbuildings ifthe defendant intends to use any of these items as evidence in the sentencing phase.⁵ A defendant must also disclose, at or before the guilt/innocence verdict, reports regarding any mental health examinations or other scientific tests the defendant intends to introduce into evidence in the sentencing phase.⁶ Finally, the defendant must disclose the identities of witnesses that the defendant intends to call at sentencing five days before trial and must disclose at or before the guilt/innocence verdict any nonprivileged statements of witnesses that are in the defendant's possession, custody, or control.⁷

The assertions made by the defendant in Muhammad mirrored several arguments that the Georgia Supreme Court had previously decided in Stinski: (1) Even though the defendant had "opted-in" to the reciprocal provisions ofthe Act prior to its amendments and then the amendments laid new obligations on the defendant, this was not an unconstitutional ex post facto law or bill of attainder; (2) the amendments do not violate due process of law because, contrary to the defendant's argument, the Act does impose reciprocal discovery requirements on the State; (3) the amendments do not violate the defendant's right to present mitigating evidence; and (4) the imposition of additional discovery duties on the defendant by the Act arises regardless of whether the defendant waived her right not to participate in the amended Act.⁸

What new arguments, then, did Muhammad make? First, Muhammad argued that the Act violated her right to effective assistance of counsel under federal and state constitutions⁹ because "defense counsel cannot effectively perform their constitutionally-mandated duty of investigating and preparing mitigating evidence for use in the sentencing phase while simultaneously being concerned with the possibility that such efforts will result in the discovery of evidence that is both harmful to the defendant and discoverable by the State."¹⁰ The court noted that the new requirements imposed upon a defendant, with one notable exception, need not be met until "at or before the announcement of a guilt/innocence verdict."¹¹ The defendant must comply with the disclosure requirements of the Act with respect to evidence covered by the "at or before verdict" language of the Act¹² before "the announcement of the jury's verdict or the publication of the court's judgment in a bench trial."¹³ For example, the defendant may wait until the light comes on outside the jury room, the customary signal that a verdict has been reached, used in most courthouses where we have tried cases, then counsel for the defendant may say to the prosecuting attorney, "Say, we have a whole bunch of mitigation evidence over here behind counsel table that you may want to inspect before the sentencing trial begins, assuming we are about to get a guilty verdict and then begin the sentencing trial."¹⁴

The one exception to the "at or before verdict" language of the amended Act is the defendant's witness list for the sentencing phase, which must be disclosed five days before trial.¹⁵ After noting that nothing in the Act requires that the defendant produce to the State the identities of witnesses the defendant does not intend to call, the court addressed the more difficult question: What about the mixed witness, the one who can offer evidence in mitigation but knows some damaging information as well?¹⁶ The court's answer: The mixed witness "presents the type of difficult tactical choice that trial attorneys routinely face. Such choices do not deny a defendant her right to effective assistance of counsel."¹⁷ In other words, defense counsel must weigh the good against the bad, make a decision, and go with it.¹⁸

Muhammad's second new attack on the amended Act was her contention that requiring her to disclose mitigating evidence violated her privilege against self-incrimination, guaranteed by both federal and state constitutions.¹⁹ The court listed "four requirements for triggering the Fifth Amendment privilege. The information sought must be (1) incriminating; (2) personal to the defendant; (3) compelled; and (4) testimonial or communicative in nature."²⁰ The court then held that production of the items listed in Official Code of Georgia Annotated (O.C.G.A.) Sec. 17-16-4(b)(3)(A)-(B) does not constitute "compelled selfincrimination."²¹ With respect to statements of witnesses that the defendant intends to call, the court ruled that these are "not personal to the defendant" and, thus, are not protected by the Fifth Amendment.²²

By contrast, however, the defendant's witness list, which must be produced five days before trial,²³ is personal to the defendant.²⁴ It is also testimonial in nature.²⁵ While in most instances a defendant's witness list will not be incriminating, because a defendant may simply omit the incriminating witnesses, the court acknowledged it could be incriminating under some circumstances.²⁶ Thus, the court concluded that ifa defendant invokes his or her privilege against self-incrimination with respect to a witness list for the sentencing phase of trial, then the trial court can conduct an inquiry to determine whether compelled production would be incriminating.²⁷ If so, the court may fashion a just and sufficient remedy, which could include granting a continuance after the guilt/innocence phase has ended to allow the State to investigate the defendant's sentencing phase witnesses.²⁸

So, what is the lesson ofStinski and Muhammad? For capital defense lawyers, it is this: If you possess those items listed in the statute that you intend to use in your mitigation case, hold them until the close of evidence, then tell the State about them. If your witness list includes a person whose testimony would offer exculpatory evidence as to guilt but may have inculpatory evidence of the defendant's participation in the crime—for example, if the State's theory is that the defendant was the triggerman, but the defense mitigation witness says that the defendant was merely there to rob the victim but not to shoot him—then you should ask for a hearing to protect the defendant from having to reveal the incriminating witness's identity five days before trial.²⁹

B. Conflict of Interest

In Britt v. State,³⁰ Donald Sanders was accused of murder, for which the State sought the death penalty. Sanders's lawyers, Walter M. Britt and Douglas A. Ramseur, were concerned over the financial crisis in the relatively new statewide public defender system and how the lack of money would impinge upon Sanders's defense. Accordingly, the attorneys served subpoenas on the executive director of the Georgia Public Defender Standards Council (Council) and others, seeking documents that would reveal the expenditure of funds in capital cases, including the highly publicized Brian Nichols case in Fulton County. Sanders's lawyers also challenged the constitutionality of the funding scheme for capital cases mandated by O.C.G.A. Sec. 17-12-120.³¹ Britt, a private attorney, represented Sanders pursuant to a contract with the Georgia Capital Defender (Captial Defender); Ramseur was an employee ofthe Capital Defender. The Council moved to quash the subpoenas, but the trial judge denied their motion.³² In the companion appeal, the supreme court reversed the trial court, holding that "the Council correctly argues that the trial court erred in denying its motion to quash" because "the documents requested here have no bearing on Sanders' guilt or innocence and are entirely irrelevant to Sanders' criminal case."³³

In the companion cases brought individually by Britt and Ramseur against the State, the attorneys appealed a finding by the trial judge that they were in contempt of court for refusing to proceed with a motions hearing when ordered to do so. The two lawyers had filed 106 motions, which were called for hearing on February 6, 2007. They refused to go forward with the hearings, claiming that a conflict of interest prevented them from proceeding.³⁴ The conflict, they argued, consisted of their having been "placed in an adversarial position with respect to their employers (the Council and the Capital Defender), and that this conflict of interest could adversely affect their representation of Sanders."³⁵

The supreme court, in a 5-2 majority, affirmed the trial court's finding of contempt, agreeing with the trial court that "the attorneys attempted to use a collateral conflict of interest that was (1) of their own making; (2) that had nothing to do with the underlying issues of the case; and (3) that involved documents requested on matters outside the scope of permissible discovery."³⁶ The court concluded that "to the extent that Sanders' attorneys believed that the trial court erred by ordering them to proceed...