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Philip Holloway

    Indigent defense is a complicated issue. Criminal defendants have an absolute constitutional right to be represented by competent counsel and the government has to provide counsel for defendants who cannot afford a lawyer. It doesn’t stop there, however. There is more to indigent defense than simply paying the lawyer. A lawyer without resources for investigators and even expert witnesses is like a captain without a ship. As far back as 1957 the U.S. Court of Appeals for the Second Circuit explained:   Furnishing … a lawyer is not enough: the best lawyer in the world cannot competently defend an accused person if the lawyer cannot obtain existing evidence crucial to the defense, e.g., if the defendant cannot pay the fee of an investigator to find a pivotal missing witness or a necessary document, or that of an expert accountant or a mining engineer or chemist. It might indeed be argued that for the government to defray such expenses which the indigent accused cannot meet, is essential to that assistance of counsel which the Sixth Amendment guarantees …. In such circumstances, if the government does not supply the funds, justice is denied the poor—and represents but a upper-bracket privilege. Most counties in Georgia have a public defender’s office. The Georgia Public Defender Council (GPDC) was created in 2003 and is funded by taxpayers to handle the majority of indigent defense in Georgia. Some indigent defense happens outside this system however. The Grinstead murder trial is one such instance. Ryan Alexander Duke is scheduled to stand trial in Irwin County, Georgia for the murder of high school teacher and beauty queen Tara Grinstead. Duke was arrested with great fanfare in February 2017 for the 2005 alleged murder of Grinstead. He was represented for the next year and a half or so by the public defender’s office for the Tifton Judicial Circuit. He later elected to accept the volunteer services of three Atlanta-area lawyers. His defense is a complicated one and the evidence in the case appears to be extremely voluminous, hyper-technical in some ways, and convoluted. Among other things, the defense is alleging his incriminating statements to investigators qualifies as a “false confession.” For these reasons, the Duke defense team has asked the court to provide funds to pay for defense resources such as investigators and expert witnesses – the sort of resources that any lawyer, prosecutor or defense attorney, needs to properly prepare for and conduct a trial of this magnitude. So far, this funding has been denied. Mr. Duke is of course presumed to be innocent and he is clearly indigent. His election to accept pro bono services of three private attorneys has not changed his indigency. Ironically for Duke, because he accepted the services of volunteer lawyers of his own choosing, he may have to defend himself without the resources he would have had if stayed with the public defender’s office. This illustrates a broader problem with indigent defense in Georgia: How does an indigent defendant level the playing field when represented by private counsel? The Georgia Public Defender Council as an independent state agency and by law is “responsible for assuring that adequate and effective legal representation is provided, independently of political considerations or private interests, to indigent persons…” In 1986, The Georgia Supreme Court held that an indigent defendant has a right to state funds to pay for expert witnesses as related to “critical evidence” that might be open to interpretation among experts. Specifically, the Georgia Supreme Court said that a trial court shall order payment of these funds from public coffers. Every year the legislature funds the GPDC so the GPDC can do its work and pay experts and investigators as needed. The legislature has not made the same provision to fund indigent defense when it occurs outside the framework of the GPDC. So, if the GPDC doesn’t agree to pay these costs, who does? There can be only one answer: the county where the case is pending. But what if the county simply can’t afford it? What if there is a case so big and so complicated that any given county just doesn’t have the money? What if due process and the right to effective counsel demand monies to be paid yet a county – or a court – refuses? Prior to the creation of the GPDC the procedure for obtaining public funds for experts was fairly simple. It was outlined by the Georgia Supreme Court in 1988. Defense counsel – usually court appointed – files a sealed motion with the court explaining what was needed and why. These requests were / are routinely approved so long as the price tag was reasonable. The creation of the GPDC did not abolish this procedure and it is still the norm in many counties in Georgia where indigent defendants are represented by counsel outside of the public defender system. Now back to the earlier question - What if due process and the right to effective counsel demand monies to be paid yet a county – or a court – refuses? Well, in the event of a conviction an appellate reversal may occur. If a trial was expensive the first time around it will be extra costly the second time around. It’s more important to get it right the first time. Judges are obligated to ensure that due process happens in our courts so if the state won’t provide the necessary resources counties are just going to have to step up – and pay up. Philip Holloway, WSB legal analyst, is a criminal lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association's criminal law section. Follow him on Twitter: @PhilHollowayEsq The opinions expressed in this commentary are solely those of the author. 
  • From a court watcher’s perspective it’s apparent to most that the upcoming trial of Ryan Duke, charged with the 2005 murder of South Georgia high school teacher Tara Grinstead is sure to be nothing short of a spectacle of epic proportions. We got a preview of things to come during - of all things - a bond hearing where Duke asked, for the first time in two years, to be released on bond. It wasn’t the denial of bond, nor the fact that Duke asked for bond that is particularly noteworthy. It’s what the bond hearing devolved into that raised eyebrows. Despite losing the motion, the defense unexpectedly was able to depose the lead GBI investigator on a wide range of topics in a dress rehearsal for what promises to be a most controversial trial.  To start, let’s have a look at what a bond hearing is supposed to be.  It’s uncommon for bond to be set in murder cases but it’s not unheard of. Courts are supposed to consider the following factors in making bond decisions and the burden of proof is on the defendant to show that he:  Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;  Poses no significant threat or danger to any person, to the community, or to any property in the community;  Poses no significant risk of committing any felony pending trial; and  Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.  Probable cause is not an issue and of course neither is guilt or innocence. A bond hearing is not a trial.  The Duke bond hearing started out as most bond hearings do. The defense called Duke’s brother to testify regarding each of the factors set out above. But then it started a downward spiral into the surreal when the prosecutor called the lead GBI case agent as a witness - presumably as a rebuttal to the defense. A state’s witness, such as an investigator, can occasionally testify - to a point - about “what happened” because that’s relevant - to a point - for the court to determine whether the person poses a danger to the community. But in this case, the testimony was literally all over the place and went into minute detail about many things that have never been heard before. The “bond hearing” was effectively transformed into a deposition - a legal luxury not normally available to a criminal defendant in Georgia.  So just what did we learn from this “bond” hearing? We learned that DNA from the bodily fluid of a police officer was mixed with the victim’s blood on some bedding and that “touch DNA” from Grinstead and Duke (along with DNA from at least two other people) was on a latex glove found outside her residence. “Touch DNA” has its own share of problems in terms of reliability and we can safely expect the defense to explore those problems at trial. Some of that other unidentified DNA from the glove could have come from Bo Dukes - the person accused of helping cover up the murder - and who the defense claims is the actual killer.  We learned there were many investigative steps that could have been taken to verify statements made by both Duke and Dukes. The defense will argue that these follow up steps point to a biased investigation. This could have a huge impact in a trial where the defense will claim that the defendants confession was a false confession.  We learned the GBI, in a breach of protocol and constitutional law, interviewed / talked with Duke twice after he had a lawyer. These interviews were undocumented in the GBI case file. They were not recorded. The DA apparently was unaware at the time that this tactic was being employed by the GBI until the defense raised it with them. The agent didn’t even sign in at the jail. We can only speculate as to why not.  On top of all this, an abundance of otherwise inadmissible evidence consisting of hearsay and innuendo managed to come out publicly at a bond hearing. Most of this wouldn’t have seen the light of day at a trial. As the prosecution correctly pointed out “hearsay” may be admissible at a bond hearing, but it still has to be reliable evidence - not a regurgitation of all the salacious rumors from 2005. And it must be relevant to the issue of bond. It may turn out that the DA made a great tactical mistake by calling their lead case agent to testify and turn this bond hearing into an evidentiary free-for-all with no apparent boundaries. At a minimum it was surely heartbreaking for friends and family of the victim to have to re-live all the pain of the last 13 years by having old wounds reopened in such painful detail.  I’ve previously written about why the venue for this trial really needs to be changed. Now more than ever the jury pool is really tainted - as if it weren’t already. Philip Holloway, WSB legal analyst, is a criminal lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association's criminal law section. Follow him on Twitter: @PhilHollowayEsq The opinions expressed in this commentary are solely those of the author. 
  • Irwin County Superior Court Judge Bill Reinhardt appears set to attempt to seat a jury of Irwin County residents in the trial of Ryan Alexander Duke. Duke is charged with the 2005 murder of Irwin County High School teacher and beauty queen Tara Grinstead. The defense asked for a change of venue, the State did not oppose the change, yet the judge has declined. In my view, this is a mistake. This is a case I have followed closely since the beginning. Way back in what seems like another lifetime I was a police officer in the tiny South Georgia town. I grew up in the area and have even practiced law there. Things are just different there. There's really no other way to put it. It's a great place to live and work but it simply has its own unique character. And the same thing holds true for the local legal system. But a unique local 'flavor' can't outweigh due process and absolute right that a defendant has to a fair trial nor can it outweigh the public's strong interest in a process that yields a result that it can have confidence in. In Georgia, criminal defendants have a constitutional right to be tried in the county where the crime is alleged to have occurred. Defendants can waive this right however and seek a trial elsewhere if a fair and impartial jury can't be seated in that county. At any given time, the population of Irwin County is only about ten thousand people. This case touched nearly every person in Irwin County – personally – in one way or another. It was the local citizens who went door-to-door and field-to-field conducting searches for Tara Grinstead in the days, weeks, and months following her disappearance. It's the local citizens who talk about the case day in and day out in homes, restaurants, offices, and other gatherings. It's the locals who read the local paper when leaked excerpts from the GBI case file were published that described Ryan Duke's incriminating statements to law enforcement on the day of his 2017 arrest. It was the local community that loved their high school history teacher. It's the local community that's locked in a continual debate about whether the authorities have charged the right person. On top of all this, the pretrial publicity has been – and will continue to be – extreme and pervasive. Opinions are strong. The bottom line is that nearly everyone in Irwin County has likely heard of the case and surely a great deal has actually been personally affected by it in some way. Besides helping to ensure a fair trial, there are practical reasons why moving the trial just makes good sense. Chief among those practical reasons is this: in the event of a conviction, the issue of venue will be a major part of the appeal and changing venue removes that consideration. This is a strategic reason why the DA most likely did not oppose the change of venue. He doesn't want to have to try this case twice. In the event of a conviction, the DA needs as few appellate issues to deal with as possible. Moving any trial is no small feat. Logistically it's been described as more difficult than taking a three ring circus on the road. It's expensive too. Irwin County just doesn't have the financial resources that a larger jurisdiction has and moving a trial the likes of this one could cause major financial and other upheaval in terms of government resources. None of these considerations outweigh the right to a fair trial, however, and none of them outweigh the public's right to have confidence in the integrity of the process. Philip Holloway, WSB legal analyst, is a criminal lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association's criminal law section. Follow him on Twitter: @PhilHollowayEsq The opinions expressed in this commentary are solely those of the author.  
  • Police use of force, deadly or otherwise, has been a particularly hot topic in the news in recent years. In this age of social media and near real-time access to cell phone and other video of law enforcement activity it's inevitable that police work, which has always had an element of violence associated with it, would come under an unprecedented degree of scrutiny. Traditionally, nearly all police work occurred 'out of sight' and accordingly was 'out of mind' - at least to the general public. But those days are over and the police and the public are having to adjust to this 'new normal.'   When I went to the police academy in 1989, I remember being taught in no uncertain terms that deadly force was authorized to stop a fleeing felon. In other words, we were told we could shoot someone who was a felon if they were running away from us. Fortunately I was never in a position to test that dubious training. Police training in all subjects is now light years ahead of where it was then. Training in the area of use of force is even further ahead in my view.   So what is the law in this area? Can an officer lawfully use lethal force against a felon who is merely running away? The answer of course is no. But unfortunately most examples are not that clear.   When we look at any police use of force, there is one word in the English language to consider. That word is: reasonableness   In 1989 the Supreme Court of The United States decided the landmark case of Graham v. Connor and the precedent set by Graham has been the foundation of police training on use of force ever since.   Graham provides that any use of force incident -deadly or otherwise - must be 'objectively reasonable' under the totality of the circumstances and that '[t]he 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.' It also clarified 'the 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.'   So the next time we see a viral video of a police shooting or other use of force incident try to apply the apply the Graham standard to it and you'll find that it can be extremely difficult to immediately decide whether it was 'justified.' In fact, the Graham case tells us that these things require a careful, deliberate, and thorough investigation into all the facts and circumstances before deciding that issue. Rarely - if ever - are knee jerk decisions based on a single video or social media post helpful. It's worth noting that under the Graham analysis, the presence or absence of a weapon doesn't prove anything either way. The presence of absence of a weapon is merely one factor that must be considered along with the totality of all other circumstances.   Police work can be - by it's very nature - quite ugly and violent. It's never like it is on TV or in the movies. But it is real life and involves real people. We demand that our police swear to support and defend the constitution and laws so we must in turn judge them - and their actions - according to the constitution and laws as interpreted by the courts. Unlike the court of public opinion or social media, courts and investigators don't have the luxury of picking and choosing what parts of the constitution to apply - in these cases they must follow the Graham analysis to wherever it leads - even if it leads to an unpopular place.   And by the way, it turns out that the 'Fleeing Felon Rule' - which I was taught about in the police academy in 1989 was an old rule, grounded in the old English common law that was largely done away with in 1985 when the Supreme Court decided Tennessee v. Garner and held that the police could be sued for shooting a 15 year-old who was merely fleeing and who otherwise posed no lethal threat. In other words, shooting Garner was not 'reasonable.' Philip Holloway, WSB legal analyst, is a criminal lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association's criminal law section. Follow him on Twitter: @PhilHollowayEsq The opinions expressed in this commentary are solely those of the author.
  • Holloway is the legal analyst for WSB Radio. 

News

  • A man who survived five days lost in the wilderness on the Montana-Idaho border said he pulled through, in part, because he promised his pregnant wife he'd return home safe. >> Read more trending news  Kaden Laga, 25, of Utah, was backpacking with his family when one of their horses went lame, Laga told KPAX-TV. Laga volunteered to hike ahead of the group to the trailhead. But he took a wrong turn and wasn't able to find the trail. After a few hours, Laga realized he was lost. Hours turned into days. On his first night alone, Laga was wet and cold, and didn't think he'd survive. He wrote a text to his wife, Arden, on his phone. “I wrote a little text in case they found my body cold,” he told KSTU-TV. “I just said, ‘In case I don’t make it out of here, I love you. I loved my life with you and I’m so sorry I left you to be a single mom.’” But Laga said he was determined to be reunited with his family. Before he had left on the trip, Arden had told him, 'You better promise me that you come home safe,'' Laga told KSTU-TV. Laga drank water from streams and ate berries and crickets. One day, he noticed helicopters flying overhead. “I’m like, 'This is it, they’re going to get me,' and they just take off into the other direction,” he said. Laga realized the searchers couldn't see him, so he continued hiking to try to find a way out. Finally, around 1 a.m. on Aug. 16, he stumbled upon a campsite. Volunteers helped Laga down the mountain, and he was reunited with his family the next day. Laga kept his promise to his wife. The couple told KPAX-TV they plan to name their baby boy after one of the rescuers.
  • An irate customer was arrested Tuesday after pounding on a fast-food restaurant’s drive-thru window while threatening employees and yelling obscenities, police said. >> Read more trending news Jonathan Gullett, 31, was upset about an order around 10 p.m. and was asked to leave a fast-food restaurant at Nitro Marketplace, WSAZ reported. Police said Gullett placed a drive-thru order, pulled around and paid. As he was waiting, he started yelling and hitting the drive-thru window.  When the manager opened it, Gullett told her he was upset about items missing from an order earlier in the day. The manager asked to see a receipt. He did not have one, so she told him there was nothing she could do.  This made Gullet more upset, investigators said. The manager shut the window, called 911 and showed Gullet the phone. Gullett drove off, parked at a nearby restaurant and walked back, police said. The manager locked the restaurant doors before Gullett returned.  When investigators arrived, Gullett was pounding on the drive-thru window, blocking customers, shouting obscenities and yelling about how he wanted to kill the restaurant employees, WSAZ reported.  Gullett was arrested and charged with threats of terrorist acts. He is being held on $5,000 bail. 
  • The nation's first death possibly linked to vaping has been confirmed by the Centers for Disease Control and Prevention. The Illinois Department of Public Health says an adult person who recently vaped died after being hospitalized with 'severe respiratory illness.' The agency didn't give any other information about the patient, including a name or where the person lived. The CDC says there are currently 193 potential cases in 22 states, including Georgia. Patients reported similar symptoms – shortness of breath, chest pain, cough, and vomiting in some cases – and some were admitted to the intensive care unit.
  • An 8-year-old boy was bitten on the head Wednesday night by a mountain lion, Colorado wildlife officials said. >> Read more trending news The boy was jumping on a trampoline with his brother around 7:30 p.m. when a friend called to him from a nearby house, Colorado Parks and Wildlife said in a release. When the boy ran to visit the friend, he was attacked by the mountain lion. “The kid was running, and it probably triggered the lion’s natural response to a prey animal running,” Mark Lamb, wildlife manager, said in a release. “We all hope that the child will be alright, and you just hate to see this occur.' The boy’s brother ran inside and told their father something was wrong. The father came out, found the animal on top of his son and scared off the mountain lion.  “He did what a father would do, run out and protect his son knowing that he was in trouble,” Jason Clay, parks spokesman, told KCNC. “The father saved his son’s life.” The boy was taken to a hospital, where he was in serious but stable condition, KCNC reported.  Because the animal attacked a human, it must be euthanized, wildlife officials said. They set traps and used dogs to try and track the mountain lion.  On Thursday, a homeowner realized one of his goats was missing, saw two mountain lions and called wildlife officials. Officers were already in the area, which was about a mile from where the boy was attacked. They captured and euthanized the animals, which were about 12 months old and 65 pounds. A necropsy will be conducted to determine if they are the same lions involved in the boy’s attack. “That is how we would be able to confirm with absolute certainty that we got the mountain lion from the attack,” wildlife officials said. Because the mountain lions were feeding on livestock, they can be euthanized. If a mountain lion is captured alive in a trap, it will be kept alive until DNA samples are tested. If the results are negative, the lion will be relocated, officials said.  Officials are still monitoring mountain lion activity in the area but do not have plans to actively search for them. Mountain lions have attacked humans 22 times since 1990, with three attacks coming this year, officials said. A trail runner was attacked Feb. 4 and there was another attack Aug. 10. The last year there had been a mountain lion attack was 2016. The last time there were three attacks in a year was 1998. “We don’t want people to panic, they are very aware of all the wildlife that lives around them, but the proper precautions need to be taken,” Lamb said in a statement. “There are obligations that people must be committed to for living responsibly with wildlife.” Three more mountain lions were seen on the property where the goats went missing Friday, but no more goats have gone missing since.
  • According to many polls, Americans – especially those who say they are Democrats -- are not that fond of the Electoral College. Neither are many of the Democratic candidates for president. >> Read more trending news  With just over 14 months until the 2020 presidential election, a movement to change the way electoral votes are awarded and who will be elected president has gained some steam. The National Popular Vote Compact (NPV), which has its roots in the most contested presidential election in U.S. history, sets in state law a policy that awards all a state’s electoral votes to the candidate who wins the national popular vote. Under the Electoral College system used today, 48 states have a “winner-take-all” system that awards all the state’s electoral votes to the person who gets a majority of votes in that state. The Electoral College does not take into consideration that national popular vote. Sixteen states, along with the District of Columbia, have passed the NPV agreement. They are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Massachusetts, Maryland, New Jersey, New Mexico, New York, Oregon and Rhode Island. While legislation has been passed in the 16 states and the District of Columbia, the agreement would not go into effect until states with a collective 270 electoral votes — the number needed to win the presidency — agree to join. Currently, the District of Columbia and the 16 states in the agreement hold a combined total of 196 electoral votes, meaning the pact would need enough new state members to get 74 electoral votes.Supporters say the system would give the person who got the most votes country-wide the presidency he or she deserves. Opponents say states would be forced to hand over electoral votes to a candidate who did not win that state. For instance, in the 2016 election, a state such as Florida, in which President Donald Trump earned more votes, would have had to pledge its 29 electoral votes to Trump’s opponent, Hillary Clinton, who won the national popular vote in the 2016 election. The Electoral College of today was established by the Twelfth Amendment to the Constitution which replaced the method for electing the president and vice president provided in Article II, Section 1, Clause 3. Under the system, when voters cast a ballot for president, they are actually choosing members of the Electoral College, called electors, who are pledged to that presidential candidate. Following the election for president, electors then meet to choose the president. Electors almost always vote for their state’s popular vote winner, and some states have laws requiring them to do so. However, electors are not bound by federal law to vote for a specific candidate – for instance, the one who won the popular vote in their state. In 29 states and the District of Columbia, electors are bound by state law or by a pledge they sign to vote for the candidate who won the popular vote of the state they represent. Five men have won the presidency in the Electoral College while not winning the country’s popular vote: John Quincy Adams in 1824, Rutherford B. Hayes in 1876, Benjamin Harrison in 1888, George W. Bush in 2000 and Donald Trump in 2016. The National Popular Vote campaign goes back to Democratic presidential candidate Al Gore's loss to Bush in 2000, according to The Associated Press. Gore won the popular vote but lost the election over a vote count in Florida.
  • Fans of all things Disney are in Anaheim for the D23 Expo. And news of future development for the properties at the Disney Parks around the world has already started being released. Inside the Disney Parks 'Imagining Tomorrow, Today' Pavilion at the 2019 D23 Expo visitors will be able to see what is coming next to the Disney Parks around the world. While there are a lot of cool things to share, in this post we are going to focus on the upcoming additions coming to Walt Disney World! There is an all-new Star Wars vacation experience coming to Walt Disney World!  >> Read more trending news  The Star Wars: Galactic Starcruiser will be a new, first-of-its-kind vacation experience where guests will check in for a two-night adventure aboard a glamorous starship called the Halcyon.  Once onboard, guests will interact with characters and become active participants in stories that unfold around them on their galactic journey.  Also in the pavilion is a model of the multi-year transformation of Epcot complete with new experiences, 'that will make the park more Disney, more family, more timeless, and more relevant.' The reinvention of Epcot will include several new additions, and the first one we learned about was a new attraction called Journey of Water which is inspired by 'Moana.' This first-ever attraction based on the Walt Disney Animation Studios film, 'Moana,' will let guests interact with magical, living water in a beautiful and inspiring setting. And this October, guests will be able to visualize all the exciting plans for Epcot at a new experience center in the Odyssey Events Pavilion called Walt Disney Imagineering presents the Epcot Experience. Inside this first-of-its-kind offering within a Disney park, guests will discover engaging and interactive exhibits that allow you to step inside excitement to see some never-before-revealed details driving the future of Epcot during this unprecedented period of transformation. The Disney Parks pavilion also features other upcoming Walt Disney World attractions including TRON Lightcycle Run coming to Magic Kingdom Park as well as Mickey & Minnie's Runaway Railway coming to Disney's Hollywood Studios. On Sunday, August 25, we'll find out more details on these and other announcements during the Disney Parks, Experiences, and Products presentation at D23 Expo 2019!