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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

  • The daughter of gospel recording artist and songwriter Micah Stampley has died at age 15. >> Read more trending news  Mary Stampley died Tuesday after a seizure. No other information was available about her health history. The singer, who has been nominated for several Dove and Stellar Awards, lives in Fayetteville, Georgia. He and his wife, Heidi, own a cafe, Orleans Brews and Beignets. Stampley’s 2005 debut CD, “The Songbook of Micah,” debuted at No. 3 and included hits like “War Cry” and “Take My Life.” Arrangements are pending. 'Please keep their family in your prayers and respect their privacy as they deal with this traumatic event,' spokesman David Robinson said in a statement.
  • A woman is recounting a terrifying and vicious dog attack at a park in Pineville, North Carolina, Monday and when police tried to seize that dog, the owner took off, leading police on a slow-speed chase for miles.  >> Read more trending news  Abryana Heggins said she remembers all the thoughts that were rushing through her mind as a huge dog attacked her at a Pineville dog park.  'I just kept thinking 'What's happening? Why is this happening? How am I gonna get this dog off of me,'' Heggins said.  She said it all started when a very large dog owned by Terilyn Jackson started attacking a husky in the park.  'At first, he grabbed the husky by the back of its neck and then, grabbed its tail and started shaking its head aggressively,' Heggins said. 'The woman got a whistle and blowing at him.' She and her friend Jaylen rushed to get their dogs out of the park, but suddenly, she said she felt pressure on her arm.  'I just ended up being dragged across the ground by the dog, and he started shaking and locked onto my arm and there's people yelling, and she's yelling and Jaylen is trying to rip the dog off my arm,' Heggins said.  Her friend jumped on top of the dog and fought it until Pineville police arrived. Officers told Jackson they needed to take her dog into custody, but they said she took her dog and drove off.  Officers turned on their lights and sirens and followed her. They said she drove the speed limit the entire time, but refused to stop.  At one point, they said she tried to hit their patrol car. Six miles later, she arrived at an animal hospital on Archdale Drive in Charlotte.  Eventually, police arrested Jackson.  'I could have been an 8-year-old or a child and that would be worse than what I got or Jaylen,' Heggins said. Her friend Jaylen suffered several bites and broke a finger during all of this.  The dog is under what is called a 'rabies quarantine.' Animal control officials are monitoring it while police look into its background and decide if it should be put down. 
  • Pete Burdon received a call from his daughter about a post circulating on Facebook that was getting a lot of attention.  >> Read more trending news  Gunnery Sgt. John Guglielmino, a Marine Corps veteran from Clay County, Florida was sick in the hospital and his daughter’s final plea was to get as many visitors as she could to say goodbye to her dad.  “I contacted her right away and I said would this be a good time to go over there,” said Pete Burdon, a retired Navy civilian who spent 37 years working with the Navy. Burdon said he responded to the call because it felt like it was important to say goodbye to a fellow veteran, even if he didn’t know him personally. Last week he gave him a hat and a hero’s salute. “When I joked with him you can see that he tried to smile and then he tried to salute after he put that hat on, that was really a touching moment for me,” Burdon said.  His daughter Katherine Boccanelli told me her father served three tours in Vietnam. She said he suffered a stroke back in April and he was diagnosed with cancer from exposure to Agent Orange. She didn’t want him to feel alone with his last few days on earth so she put the post out on social media.  What she didn’t expect was to see the outpour from the community.  “For her it was a step she didn’t know was going to happen when she put it out there, about a 100 people showed up in that short time,” Burdon said.  Burdon says he said goodbye to Guglielmino in the hospital and he’ll be there tomorrow to say his final farewell at the funeral.  The funeral will be Wednesday at 11 a.m. at Crossroads to Victory Church in Raiford, Florida.  Guglielmino’s family says any veterans who visited who wanted to come out and pay their respects are welcome to attend. To contribute to the funeral services, click here. 
  • Within the past month, residents in Virginia-Highland have told police there were a dozen sightings of a peeping Tom in their neighborhood. Police have now released a photo of a person of interest, Channel 2 Action News reported. Neighbors who live on Greenwood Avenue have called police to report sightings of the man peeping into windows since September, Channel 2 reported. In some cases, he’s allegedly climbed on top of air conditioning units to try to look into bathroom windows. “There was a man standing and looking directly at me through the cracks in my blinds,” a woman, who asked the news station to remain anonymous, said. “We came face to face in the window. It’s very, very violating.” Last Thursday about midnight, another neighbor’s Ring doorbell camera spotted the man near her home, Channel 2 reported. The 12 sightings happened along the same street but at three different buildings. The most recent sighting was Saturday about 11 p.m., when a resident chased the man off while holding a screwdriver, the news station reported. “My fear is that eventually he’s going to get bored with just peeping into people’s windows,” the woman said. Anyone with information on the person of interest is asked to contact CrimeStoppers at 404-577-8477 or online at www.StopCrimeATL.com. Tips can be sent anonymously and information that leads to an arrest and indictment in this investigation can earn tipsters up to $2,000. In other news:
  • Officers with the Kissimmee Police Department banded together to help save a choking baby's life last week.  Kissimmee police said the child's mother approached a patrol vehicle in the area of North Clyde Avenue and Mabbette Street on Saturday and said that her 1-year-old child was not breathing or responsive after choking on a goldfish cracker. >> Read more trending news  Video captured the moments an officer began thrusting on the baby's back repeatedly as other officers responded for assistance. The baby soon became responsive and was transported to an area hospital for treatment. Officials said the baby was crying at the hospital and seemed to be doing well. 
  • More than $4,000 worth of fake Nike Air Max, Nike Air Jordan and Balenciaga shoes were seized by U.S.Customs and Border Protection officers recently at the Port of Vicksburg/Jackson. CBP said in a Tuesday news release that the shoes were from Hong Kong and found by officials in an express consignment facility. They were in four separate packages labeled 'casual shoes.' >> Read more trending news  Real Balenciaga shoes are sold online at prices ranging from $700 to $1,000. The price for legitimate Air Jordans ranges from $100 to $1,000.  'Counterfeit brand-name shoes is a multi-million dollar criminal industry that preys on consumers looking for deals,' CBP Vicksburg/Jackson Port Director Michael Morris said in a statement. “It’s best to keep in mind that if a product seems too good for the price, it may not be legitimate.” Days earlier, CBP said it seized more than $2.2 million worth of counterfeit shoes in Los Angeles.