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Articles Posted in Constitutional rights

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The global pandemic has caused many state legal systems to declare a judicial state of emergency. The state of Georgia is currently under state of emergency protocols that are set to last through August 11, 2020.  When jury trials will restart in Georgia is any one’s guess. I just received a new Order from the Chief Judge of the Northern District of Georgia, Hon. Thomas Thrash, dated July 10, 2020, extending the Federal Judicial Order through August 30, 2020. In his Order, Chief Judge Thrash stated:

Data from the Georgia Department of Public Health reflects that the average number

of new COVID-19 cases per day in the State of Georgia has increased and remains higher

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This has been some week. Our Georgia Community was in the grips of disbelief and shock due to the murder of Ahmaud Arbery in Glenn County, Georgia, hoping and praying that things could not get worse…and then they did. The murder of George Floyd in Minneapolis has electrified the Nation to protest for Equal Justice Under Law for African-Americans, which is overdue by about 200 years. Because of these recent murders of African American males, the term of art “excessive force” has, unfortunately, wormed its way into our daily lexicon, heard as frequently now as “Facebook” or “Twitter” or “Coronavirus” (remember that?).  So let’s look at what exactly is “excessive force,” how do you bring a lawsuit for “excessive force” and how difficult are they to be successful?

First, a civil action for “excessive force” by a police officer must be brought against the individual police officer, not the police department, pursuant to a Federal Statute, 42 U.S.C.A. § 1983. That statute states:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

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I am struck today by the decision of the Wisconsin Supreme Court yesterday to rule that the Governor and the head of its Public Health Department did not have the authority to issue stay-at-home mandates during the Covid-19 pandemic. As the Governor of Wisconsin said, Wisconsin is now the “wild, wild west.” Chaos has already ensued in the less than 24 hours since the ruling, as predicted by Governor Tony Evers. Bars were packed last night in Wisconsin, with absolutely no social distancing (from the photos it looks like no distancing at all) and no masks being worn. World-leading scientists and epidemiologists predict this will necessarily cause a spike in Covid-19 cases and unnecessary suffering and deaths.

The first thing to note of this decision is that the case was brought by Republican Wisconsin Legislators against the Governor, so that essentially the Legislators were suing saying a bill they had passed was unconstitutional. Wait. What? How is that possible? They passed it. Surely, they can’t now file suit claiming the very thing they wrote, voted on and passed was actually unconstitutional from the get go. This turns the legislative process on its head.

The second thing to note is that this was a decision that ran along party lines in a very politicized state supreme court. The Wisconsin Supreme Court’s conservative-backed majority split in the 4-3 decision, with Chief Justice Patience Roggensack, Justice Daniel Kelly, who recently lost his bid for election, Justice Annette Ziegler, and Justice Rebecca Bradley voting to overturn Palm’s order. Conservative-backed Justice Brian Hagedorn joined the court’s two liberal-backed members, Justice Ann Walsh Bradley and Justice Rebecca Dallet, in dissent.  You may remember that Justice Kelly, a Republican, recently ran for reelection as a Republican and even had the President of the United States come to Wisconsin and campaign for him in a unabashed political statement. Justice Kelly lost to a Democrat, Jill Karofsky but, alas, that Democrat hasn’t taken her seat on the bench yet. Otherwise, there is no question this decision would have come out the other way given the fact that even one Conservative justice sided with the dissenters. This recent election, you may recall, was another politicized decision by the Wisconsin Supreme Court as it ruled that the election in April, during the height of the Coronvirus crisis, had to proceed as originally scheduled and that Wisconsin citizens had to vote in person. Undoubtedly, the Republican members of the Supreme Court thought this would hold voting down as surely folks wouldn’t want to risk their lives voting, of all things But surprise! It didn’t work, and the Liberal Democratic candidate beat the Republican candidate who POTUS personally endorsed. Karofsky credited her win to voters rising up and rejecting Republican efforts to suppress turnout. “People were willing to do that because they wanted their voices to be heard in this election,” she said. “A lot of times on election day we’re wringing our hands because we’re so upset about voter apathy. That wasn’t the problem on Tuesday. People wanted their voices heard.”

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Friends:

To say we are experiencing unprecedented times with the global pandemic of Coronavirus-COVID-19 would be a massive understatement. I hope you and your family are well, staying safe and healthy and weathering this storm. I am continuing working on all of my cases to the maximum extent I can at my home. With remote work capability, super high-speed internet and my case management system “in the Cloud,” I can work on any case from any location. I want to let you know how our Georgia Civil and Criminal Justice Systems are adapting to this season we find ourselves in and keep you up to date on all things legal in Georgia right now.

First, the Chief Justice of the Georgia Supreme Court Harold Melton has issued a Statewide Judicial Emergency Order through 11:59 a.m April 13, 2020.  I believe Chief Justice Melton has shown great leadership with the issuance of this Order and through it, is doing the Court’s part in not spreading the virus in our courtrooms and alleviating much anxiety among litigants and lawyers.

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I was struck this week with an opinion of the Georgia Court of Appeals in what is probably a very rare scenario:  where the defendant has already served his entire sentence but the Court exercises jurisdiction to hear the appeal anyway. I would be curious to know how often that happens. My guess is almost never. So the scenario grabbed my attention since it is probably so rare.  And you might be asking “What’s the point?” if the defendant is already out of prison anyway. Well, the Court answers “what’s the point” succinctly by saying Justice is the point. Justice is the point.

The case I am talking about is Denson v. State, A19A2307, 2020 WL 255433 (Ga. Ct. App. Jan. 17, 2020), authored by Judge Yvette Miller and concurred by Judge Rickman and Judge Reese.  I commend it to your reading. It is a doozy.  In this criminal appeal, the trial court did not hear the convicted defendant’s motion for new trial (that had ben timely filed in 2007) until 9 years after it had been filed, and the Georgia Court of Appeals did not resolve the defendant’s direct appeal until 13 years after the original conviction of defendant and after the defendant had served his entire sentence.  Wait. What?

That’s right. And the Georgia Court of Appeals made it clear it would ignore the mootness of the their review, since the Defendant had already served his unjustly imposed sentence, to issue a warning to Georgia trial courts of the grave injusctice they may be doing to otherwise innocent criminal defendants.  Whew.  Like I said, it’s a doozy.

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Recently, there have been a couple of criminal cases heard by the Georgia Supreme Court which have involved the trial judge’s inherent duty to be the final arbiter of fairness and justice in the courtroom. Sometime this is referred to as the “13th Juror,” because the trial judge sometimes must base her or his ultimate decision on the facts, testimony and documentary evidence presented at trial…things an appellate court would not be in a position to know.  A recent  discussion about the notion of the trial judge as 13th juror came in an appeal of a criminal case, State v. Hamilton, 832 S.E.2d 836  (Ga. Sup. Ct. September 3, 2019) in which the Georgia Supreme Court heard oral argument on the issue of whether the trial judge was authorized to  toss out three counts of assault when that the jury had convicted the defendant on, in the judge’s opinion, there was no way factually or legally for those three counts to be proven beyond a reasonable doubt.  The Court affirmed the trial court’s granting of a new trial.  “Having reviewed the entire record, and considering that the trial court was authorized, as the thirteenth juror, to discount Taylor’s and Hewatt’s testimony and to credit Hamilton’s story, and bearing in mind the standard of review set forth in OCGA § 5-5-50, we cannot say that the trial court’s conclusion was an abuse of its substantial discretion to grant Hamilton a new trial. See Hamilton, 299 Ga. at 670-671, 791 S.E.2d 51 (“An appellate court will not disturb the first grant of a new trial based on the general grounds unless the trial court abused its discretion in granting it and the law and the facts demand the verdict rendered.”).”

In another case recently argued before the Georgia Supreme Court, the Court told the Fulton County D.A., who was appealing a trial judge’s granting of a new trial, that the D.A. was “wasting the Court’s time” with such an appeal when the trial judge clearly has the power, right and, arguably, the duty, to grant a new trial. In that case, State v. Beard, NO. S19A0535 (Ga. Sup. Ct. October 31, 2019) quoted below, the Supreme Court’s opinion called the D.A.’s position “bizarre.”  “Contrary to the State’s bizarre argument, the jury’s verdict was not demanded by the “great physical laws of the universe.” (“An appellate court will not disturb the first grant of a new trial based on the general grounds unless the trial court abused its discretion in granting it and the law and the facts demand the verdict rendered.”).’

State v. Beard, S19A0535, 2019 WL 5656338, at 4 (Ga. Oct. 31, 2019). Since then, the Fulton County D.A.  dismissed its appeal and has vowed to take his argument to the Georgia Legislature in an attempt to get legislation passed that will eliminate this inherent duty and power of the trial judge.

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A neat thing happened last week in DeKalb County State Court as I was striking a jury. I’m not sure if anyone else noticed it or appreciated it, but I certainly did. The judge had called in 60 potential jurors to go through “voir dire,” or jury selection, in my case. DeKalb jurors are some of the most diverse citizens of any county in Georgia, and that wonderful diversity was in full display during jury selection. What really caught my attention was there was an interpreter for one of the jurors. This juror could not speak English, at least not fluently enough to be able to understand detailed questions about her thoughts and feelings about money damages in civil cases, medical malpractice cases in particular.

It was apparently arranged in advance, because by this woman’s side was an interpreter. The trial court judge needed to swear in the interpreter first, before swearing in the actual juror. The oath an interpreter must take states that she will truthfully and accurately translate from English to whatever language that juror spoke and back again. The trial court, before swearing in the interpreter, asked “It is Amharic? Is that correct?” The answer was yes. And so the judge swore in the interpreter with the oath that she would truly and accurately translate English into Amharic and Amharic into English. That being accomplished, the interpreter then translated not only the juror’s oath to the woman, but also every question asked of the panel.

I was fascinated by the fact that the subject language was Amharic, with which I was not at all familiar.  It is spoken principally in the central highlands of the country. Amharic is an Afro-Asiatic language of the Southwest Semitic group and is related to Geʿez, or Ethiopic, the liturgical language of the Ethiopian Orthodox church; it also has affinities with Tigré, Tigrinya, and the South Arabic dialects.  This doesn’t surprise me at all, as DeKalb County is Georgia’s most diverse county. DeKalb is primarily a suburban county, and is the second-most-affluent county with an African-American majority in the United States, behind Prince George’s County, Maryland, in suburban Washington, D.C.  As of the 2010 United States Census, there were 691,893 people, 271,809 households, and 161,453 families residing in the county. The population density was 2,585.7 inhabitants per square mile (998.3/km2). There were 304,968 housing units at an average density of 1,139.7 per square mile (440.0/km2).The racial makeup of the county was 54.3% black or African American, 33.26% white, 5.12% Asian, 0.4% American Indian, 4.5% from other races, and 2.39% from two or more races. Those of Hispanic or Latino origin made up 9.8% of the population. In terms of ancestry, 5.9% were English, 5.2% were German, and 3.5% were American.

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As I write this, many of the headlines in the news are about the so-called “shocking” suicide of alleged child sex trafficker, Jeffrey Epstein, who, allegedly, hanged himself while incarcerated in a Federal New York prison.  What is so shocking? The only thing shocking to me about this event is how the news media and on-lookers, including United States Attorney Bill Barr, think it is shocking for someone, who was known to be suicidal, predictably, takes their life by suicide.  I suppose it is only Mr. Epstein’s wealth and his ties to well-known, rich, influential people, including many politicians, that makes U. S. Attorney Barr suddenly express surprise and concern that incarcerated people are attempting suicide, many successfully, when many of them should have been on suicide watch in a Crisis Stabilization Unit (CSU) or an Acute Care Unit (ACU). We can do without the mock concern on the part of the U.S. Attorney.  This is happening right under his nose in  prisons every day and he only expresses concern when it is a wealthy person who does it?

Jeffrey Epstein’s suicide was foreseeable and predictable. Now it is being reported that he was not on a suicide watch, even though he had previously attempted suicide less than two weeks earlier. The prior suicide attempt placed him in the high-risk category for attempting again. Coupled with the fact that he was in prison for the first time awaiting trial with an indictment list that, if proven, would keep him in prison for the rest of his life (another risk factor for attempting suicide), Mr. Epstein was high risk for suicide attempt and should have been on suicide watch.

Unfortunately, this blatant disregard for the lives of inmates who are either mentally ill or acutely psychotic ( or both) and the risk it creates for them to take their own life, is prevalent in our nation’s jails and prisons.  It is particularly alarming in Georgia prisons.  As recently as just last week, the Macon Telegraph issued the results of its study into prison suicides and announced that Georgia’s rate has reached crisis proportions. Between 2014 and 2016, state records show that 20 state prisoners had taken their own lives. In the nearly three years since, 46 prison deaths were deemed suicides. Georgia’s prison suicide rate — at 35 suicides per 100,000 — is nearly double the national average. Between 2013 and 2014 alone, U.S. state prison suicide rates rose by nearly a third. And Southern states including Georgia, Alabama and Texas saw even larger increases in their rates. Georgia correctional officials believe one in five people incarcerated in state prisons have a documented mental health need.

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There have been two  recent appellate decisions in Georgia that address the morass that is apportionment:  FDIC v. Loudermilk, No. S18Q1233 (Ga. S. Ct. March 13, 2019) and Trabue v. Atlanta  Women’s Specialists, LLC, No. A18A1508 (Ga. Ct. App. March 7, 2019).   Since the Georgia Legislature passed a new scheme of how a plaintiff receives justice in our Civil Justice System some 14 years ago, called “apportionment,” there have been 1,328 Georgia appellate opinions that mention apportionment. This suggests that the law as passed was anything but a model of clarity.
The Georgia Supreme Court’s opinion in FDIC v. Loudermilk reminds me of Mark Twain’s quotation:  “The rumors of my death have been greatly exaggerated.” I believe the rumors of the death of joint and several liability have been greatly exaggerated, ever since its passage in 2005.  Loudermilk makes it clear that joint and several liability is alive and kicking and coexists peacefully right next to apportionment.  Loudermilk, authored by Justice Sarah Warren,  involved a claim against a group of bank directors alleging that the former directors and officers were negligent and grossly negligent under Georgia law for their approval of ten commercial real-estate loans.  This case was tried to a jury in the Northern District of Georgia and the jury rendered a $5 Million verdict against the individual former bank officers. The bank officers appealed the verdict to the 11th Circuit Court of Appeals, which certified the question of whether the Georgia law of apportionment applied to this scenario to the Georgia Supreme Court. The Georgia Supreme Court answered no, that the statute did not end joint and several liability for co-defendants determined to have acted “in concert.”  The Court held “Georgia historically has recognized this principle: “[i]t has always been true that where concert of action appears, a joint tortfeasor relation is presented and all joint tortfeasors are jointly and severally liable for the full amount of plaintiff’s damage.” Gilson v. Mitchell, 131 Ga. App. 321, 324, 205 S.E.2d 421 (1974), aff’d, 233 Ga. 453, 454, 211 S.E.2d 744 (1975) (“We conclude that the opinion of the Court of Appeals correctly states the law of Georgia on this subject and we adopt [its] opinion.”). Cf. City of Atlanta v. Cherry, 84 Ga. App. 728, 731-733, (67 S.E.2d 317) (1951) (rejecting joint-tortfeasor status although plaintiff alleged that defendants acted in concert because plaintiff failed to allege adequately that there was “concerted action in operating [an airport runway] in such a way as to injure plaintiff”).”  Fed. Deposit Ins. Corp. v. Loudermilk, S18Q1233, 2019 WL 1303652, at *8 (Ga. Mar. 13, 2019).
This rule supports what many plaintiff’s lawyers have been saying since 2005, i.e., that there is no apportionment until a jury says there is apportionment. Thus, not only apportionment but also joint and several liability charges must be given to a jury and counsel must be allowed to argue joint and several liability.

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MY FIRST AND LAST MURDER TRIAL

It’s January 4, 2019 and I am in Division 5 of the DeKalb County Superior Court, otherwise known as Judge Gregory Adam’s courtroom. I let the Deputies know I am a lawyer representing an accused person in a case and am here for the motions calendar. They instruct me to sit in the jury box. I do. As soon as I step in the jury box, a friend of mine, Jan Hankins, a Georgia Public Defender, says “I know you. What are you doing here?”  She has that look on her face of seeing someone she knows but in the wrong setting. Things are out of context. She knows I am a plaintiff’s personal injury trial lawyer. She instantly computes that I have no Earthly business in a criminal motions hearing.  I explain that I will be trying a murder trial with Mike Maloof, Jr. because I have always wanted to try a criminal case and in my 30 years of practicing law, I have never handled a criminal case. A mutual friend put Mike and me together and Mike welcomed my help. Jan’s response: “If trying a murder case is on your bucket list, you need a new list.”

It is true that in 30 years of practicing law I have never handled a criminal matter. I watch a lot of criminal trial shows on TV, though. Shouldn’t that qualify me a little bit?  After all, I certainly know never to talk to the police or answer a single question they ask unless my lawyer is present. I know never to give the police consent to search my car. I know never to agree to take a sobriety test. I am armed with a lot of knowledge about the criminal justice system from this. So wouldn’t it be a neat chance to add to my plethora of TV criminal justice knowledge by trying a real murder case?

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