When D. W. was found not guilty of murder back in January, you would have thought that the weight of the world had been lifted from his shoulders. NOT GUILTY. That is what the jury had said. Very loud and very clear. It only took 30 minutes to decide that he was not guilty.
Unfortunately, D. W. had been sitting in a jail cell for over 13 months at that time. NOT GUILTY did not equal GET OUT OF JAIL.
The same Judge who presided over D.W.'s trial had revoked his probation 11 months prior to his trial. The Judge had imposed a very long sentence becaue he had already decided that D.W. was guilty.
This wrong had to be righted.
After the acquittal, I filed two seperate post conviction documents. First, I filed a Rule 32 Petition setting forth actual innocence. Second, I filed a Renewed Motion to Reconsider the revocation of his probation. I wanted the Judge to rule on the motion immediately. But no, he still believed that the jury got it wrong and my client was guilty. The motion was set for a hearing the end of February - 3 weeks away.
Finally, the hearing date arrives. The family is assembled in the court room. The D.A. who proceeded over the trial is not in court. A substitute D.A., one who I consider a friend, has agreed to handle the hearing. After discussions with the D.A., he agrees - the jury said not guilty - let him go home.
With some resignation, the Judge issues an order immediately releasing my client and returning him to probation. Everyone gets a copy and we all scramble off to arrange for my client's release.
Problem is that the Department of Corrections needs to get the order from the court. To accomplish this the following has to happen:
The court file needs to go back to the clerk's office.
The clerk's office needs to input the order into the computer and produce a sentencing transcript.
The sentencing transcript and releasing order need to be faxed/emailed to the Administrative Office of Courts in Montgomery.
The Administrative Office of Courts then transmits the information to the Department of Corrections.
DOC then releases my client to his family.
Long story short. After waiting 13 months in jail for a trial. After being found not guilty. After waiting another 5 weeks for a hearing on a motion. After the court issues a releasing order. It still took another 5 days to get out of jail.
FREE AT LAST. FREE AT LAST
Thursday, March 5, 2009
Wednesday, February 18, 2009
Holidays are Tough
Why is it that the day after a holiday is such a pain in the butt?
I am not referring to the inevitable hangover that many of you might be suffering from. I am referring to the choas that seems to develope when people have an extra day off.
Monday was President's Day. A local, state and federal holiday. That means that the courts and schools were closed. I took the day off and spent time with my kids. We hiked down by the Cahaba River and generally had a good day.
However, when I returned to work on Tuesday, the world had changed for the worse yet again. The stock market crashed (again) and clients would not stop calling with problems. Job security is nice, but it never fails. I just don't get it.
Anyone out there have an answer? Please enlighten me.
I am not referring to the inevitable hangover that many of you might be suffering from. I am referring to the choas that seems to develope when people have an extra day off.
Monday was President's Day. A local, state and federal holiday. That means that the courts and schools were closed. I took the day off and spent time with my kids. We hiked down by the Cahaba River and generally had a good day.
However, when I returned to work on Tuesday, the world had changed for the worse yet again. The stock market crashed (again) and clients would not stop calling with problems. Job security is nice, but it never fails. I just don't get it.
Anyone out there have an answer? Please enlighten me.
Wednesday, February 11, 2009
Mission Impossible - Atlanta, Georgia - The run continues
Mission Impossible
The Date: February 3, 2009
The Scene: United States District Court, Atlanta, Georgia
The Mission: Get a probationary sentence for a career offender involved in an internet pharmacy conspiracy.
The results: Downward Variance of 8 levels. Three years probation. One happy client.
Over the past couple of weeks, I have been working on the AUSA in an effort to secure his assistance in getting the District Court to grant a probationary sentence. Leading up the the sentencing, I continued to discuss probation with the Assistant U.S. Attorney. Never got him to agree with me, but never figured he would come right out and say so.
Friday before sentencing. Client is getting nervous now. I am finally finished with my sentencing memo. I have 6 letters from the client's employers, mother, girlfriend and drug rehab graduate counselor. I have brand new U.S. Supreme Court law (Nelson Read more... and Spears Read more...) which I am hoping will convince the Judge to he can put my client on probation despite the impossible odds. The problem is that my client has 3 prior drug distribution/conspiracy convictions. He is looking at a sentence of between 3 1/2 and 4 years in prison. No wiggle room under the United States Sentencing Guidelines.
Knowing where to fight the battle is the biggest part of winning the war. I chose not to fight the guidelines. Instead I focused my attention and all of my efforts on winning the battle over the sentencing factors contained in the U.S. Code. By focusing on the law, I was able to cut the probation officer out of the equation and limit her input in the process. I was also able to get the prosecutor to agree with each and every point I made about my client's very limited involvement and lack of financial gain. Finally, I was able to focus on the amazing transformation that my client had been through. From a broke and homeless drug addict to a clean, sober, manager at one of the biggest dealerships in the city. After getting the general manager and owner/partner to advocate and testify during the sentencing hearing, I knew things were starting to shift in our favor.
By the time I finished with my argument for a probationary sentence and the AUSA essentially seconded my argument there was little else the Judge could do.
In what was discribed as "a scene out of a movie" the Judge granted my motion for a downward variance. After moving downward in the sentencing guidelines by 8 levels, the judge placed my client on probation for a period of 3 years. You could have heard a pin drop in the courtroom before the Judge finally imposed sentence.
As my client perfectly stated, the sentencing was a MIRACLE. Based on the steep odds facing us when we walked in that afternoon. I would tend to agree. Another great result.
The Date: February 3, 2009
The Scene: United States District Court, Atlanta, Georgia
The Mission: Get a probationary sentence for a career offender involved in an internet pharmacy conspiracy.
The results: Downward Variance of 8 levels. Three years probation. One happy client.
Over the past couple of weeks, I have been working on the AUSA in an effort to secure his assistance in getting the District Court to grant a probationary sentence. Leading up the the sentencing, I continued to discuss probation with the Assistant U.S. Attorney. Never got him to agree with me, but never figured he would come right out and say so.
Friday before sentencing. Client is getting nervous now. I am finally finished with my sentencing memo. I have 6 letters from the client's employers, mother, girlfriend and drug rehab graduate counselor. I have brand new U.S. Supreme Court law (Nelson Read more... and Spears Read more...) which I am hoping will convince the Judge to he can put my client on probation despite the impossible odds. The problem is that my client has 3 prior drug distribution/conspiracy convictions. He is looking at a sentence of between 3 1/2 and 4 years in prison. No wiggle room under the United States Sentencing Guidelines.
Knowing where to fight the battle is the biggest part of winning the war. I chose not to fight the guidelines. Instead I focused my attention and all of my efforts on winning the battle over the sentencing factors contained in the U.S. Code. By focusing on the law, I was able to cut the probation officer out of the equation and limit her input in the process. I was also able to get the prosecutor to agree with each and every point I made about my client's very limited involvement and lack of financial gain. Finally, I was able to focus on the amazing transformation that my client had been through. From a broke and homeless drug addict to a clean, sober, manager at one of the biggest dealerships in the city. After getting the general manager and owner/partner to advocate and testify during the sentencing hearing, I knew things were starting to shift in our favor.
By the time I finished with my argument for a probationary sentence and the AUSA essentially seconded my argument there was little else the Judge could do.
In what was discribed as "a scene out of a movie" the Judge granted my motion for a downward variance. After moving downward in the sentencing guidelines by 8 levels, the judge placed my client on probation for a period of 3 years. You could have heard a pin drop in the courtroom before the Judge finally imposed sentence.
As my client perfectly stated, the sentencing was a MIRACLE. Based on the steep odds facing us when we walked in that afternoon. I would tend to agree. Another great result.
What a Month - January 2009
Well it has been a wild and crazy month. Very productive and very successful though.
We started off the month on January 5th with a bang. Three different clients, three different courts, in two different parts of town.
On Wednesday of that week, I was involved in a federal bank fraud sentencing. The client was looking at a prison sentence of between 2 1/2 and 3 years. I pre-filed a very extensive sentencing memorandum with the court setting out my argument for a probationary sentence. Following an hour of argument, the court agreed with me. To place my client on probation, the court varied downward by 10 offense levels. What a glorious day for everyone involved.
On Friday, in another federal social security fraud case, I was able to get a second judge to place a client on probation. Funny thing about this case was the Judge's comments to my client after sentencing. The U.S. District Court judge told my client that she was happy to see me with such a nice client for a change. She said she was tired of seeing me come into her courtroom with bad clients facing long sentences. It was refreshing.
The next week, on January 12th, I started a murder trial in the Jefferson County Circuit Court. Client was accused of beating a man to death. According to the State he did it because the victim took some money ($35.00) out of his mother's car. The State's evidence was contradictory and we had a real jerk as the chief investigator. I tried to warn the State that its' witnesses were not going to help the case. But no, the State did not believe me. The jury got the case at 4:45 p.m. on January 14th. The judge asked if they wanted to break for the evening and start fresh in the morning. They told the judge no, they wanted to get started. FIFTEEN MINUTES later they entered the courtroom. With a thumbs up the jury told the STate that my client was NOT GUILTY of MURDER. What a GREAT VERDICT. It is such a fabulous feeling to see all of your hard work and preparation pay off in such an important case.
Progress continues on my Atlanta, Georgia Federal internet pharmacy case. Sentencing is coming up the first week of February and my discussions with the Assistant United States Attorney are beginning to get the desired results. More on that next month.
We started off the month on January 5th with a bang. Three different clients, three different courts, in two different parts of town.
On Wednesday of that week, I was involved in a federal bank fraud sentencing. The client was looking at a prison sentence of between 2 1/2 and 3 years. I pre-filed a very extensive sentencing memorandum with the court setting out my argument for a probationary sentence. Following an hour of argument, the court agreed with me. To place my client on probation, the court varied downward by 10 offense levels. What a glorious day for everyone involved.
On Friday, in another federal social security fraud case, I was able to get a second judge to place a client on probation. Funny thing about this case was the Judge's comments to my client after sentencing. The U.S. District Court judge told my client that she was happy to see me with such a nice client for a change. She said she was tired of seeing me come into her courtroom with bad clients facing long sentences. It was refreshing.
The next week, on January 12th, I started a murder trial in the Jefferson County Circuit Court. Client was accused of beating a man to death. According to the State he did it because the victim took some money ($35.00) out of his mother's car. The State's evidence was contradictory and we had a real jerk as the chief investigator. I tried to warn the State that its' witnesses were not going to help the case. But no, the State did not believe me. The jury got the case at 4:45 p.m. on January 14th. The judge asked if they wanted to break for the evening and start fresh in the morning. They told the judge no, they wanted to get started. FIFTEEN MINUTES later they entered the courtroom. With a thumbs up the jury told the STate that my client was NOT GUILTY of MURDER. What a GREAT VERDICT. It is such a fabulous feeling to see all of your hard work and preparation pay off in such an important case.
Progress continues on my Atlanta, Georgia Federal internet pharmacy case. Sentencing is coming up the first week of February and my discussions with the Assistant United States Attorney are beginning to get the desired results. More on that next month.
Sunday, January 25, 2009
A Case of Murder or the Death of the State's Case
What a couple of weeks it has been. Trial work has to be some of the most exhaustive work that an attorney can handle. The mental and emotional toll on the body is beyond description. Knowing that your clients' future is in your hands is enought to scare some lawyers away. However, the truely great lawyer (not me) relish the chance to champion the case to the jury.
In my recent murder trial, I tried to convince the State that they were dealing with bad facts and even worse witnesses. Did they listen? Not one little bit. After the Judge shot down all of my suppression issues (identification) we started into the State's witnesses. One after the other, I was able to get them to shot holes in the State's theory of the case - my client beat the victim over $35.00 taken from his mothers' car the day before.
Finally, it came time for the State's key witnesses - the eye witness. By the time I finished my cross examination, the Judge was beginning to question the witness and his completely inconsistent identification of my client as the person who committed the crime.
Despite the Judge's best efforts to resuscitate the State's dying case, the Jury made short work of the verdict. In just under 30 minutes, the jury returned a NOT GUILTY verdict, complete with a thumbs up from one of the jurors as they returned to the box to announce the verdict.
What a great feeling. To know that all of the work and effort paid off in the long run. It doesn't happen often, but when it does . . . WOW.
In my recent murder trial, I tried to convince the State that they were dealing with bad facts and even worse witnesses. Did they listen? Not one little bit. After the Judge shot down all of my suppression issues (identification) we started into the State's witnesses. One after the other, I was able to get them to shot holes in the State's theory of the case - my client beat the victim over $35.00 taken from his mothers' car the day before.
Finally, it came time for the State's key witnesses - the eye witness. By the time I finished my cross examination, the Judge was beginning to question the witness and his completely inconsistent identification of my client as the person who committed the crime.
Despite the Judge's best efforts to resuscitate the State's dying case, the Jury made short work of the verdict. In just under 30 minutes, the jury returned a NOT GUILTY verdict, complete with a thumbs up from one of the jurors as they returned to the box to announce the verdict.
What a great feeling. To know that all of the work and effort paid off in the long run. It doesn't happen often, but when it does . . . WOW.
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