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A sharply divided Georgia Supreme Court has created a new procedural rule that allows lawyers to seek interlocutory appellate review against the wishes of the trial judge. The procedural ruling, which trumps a 1995 statute, evoked harsh criticism from three dissenters on the court. They accused the majority of overstepping the court’s jurisdiction and changing its role from “disinterested decision-maker to appellate advocate.” It was one of three key decisions the court issued Monday dealing with the right to counsel. � In a Newton County, Ga., case, the justices held that a constitutional right to counsel exists at proceedings where a defendant seeks to withdraw a guilty plea. Such a proceeding, wrote Justice Carol W. Hunstein, is a critical stage of a criminal prosecution where a defendant has the right to counsel The court reversed a Newton Superior Court judge’s denial of a murder defendant’s motion to withdraw his guilty plea and remanded the case for a new hearing on that motion. Fortson v. State, No. S00A0196 (Sup. Ct. Ga. June 12, 2000). � In a petition for a writ of habeas corpus, the Supreme Court reversed a habeas court’s finding that a man who pleaded guilty in 1994 to robbery had knowingly and intelligently waived his right to counsel. Writing for the majority, Hunstein said that a signed waiver-of-rights form, which turned up missing, and testimony by the prosecutor that he explained the form to the defendant prior to the proceedings, were no substitute for an on-the-record inquiry as to whether the defendant understood his rights. Clowers v. Sikes, No. S00A0234 (Sup. Ct. Ga. June 12, 2000). � The court split, 4-3, in a decision holding that habeas petitioners who assert ineffective assistance of counsel claims against prior counsel waive their attorney-client privilege. Presiding Justice Norman S. Fletcher added that those petitioners are entitled to a protective order restricting disclosure of documents to those assisting the state in the ineffectiveness claim, not future prosecutors. Waldrip v. Head, No. S00A0383 (Sup. Ct. Ga. June 12, 2000). INEFFECTIVE ASSISTANCE ARGUED The habeas petitioner, Tommy Lee Waldrip of Dawsonville, was sentenced to die in 1994. Waldrip was convicted for the 1991 kidnapping and murder of an eyewitness to his son’s robbery of a Cumming, Ga., grocery store. Waldrip’s habeas petition alleges ineffective assistance of counsel against his former trial and appellate counsel. In the habeas proceedings, the state obtained an order compelling those lawyers to produce their entire files, over the objections of Waldrip’s current counsel, who contended that only part of the documents — those relevant to the ineffective assistance claim — should have to be produced. The new lawyers, Lawrence J. Fox and David J. Kessler of Philadelphia’s Drinker, Biddle & Reath, also argued that the documents should be released only to state lawyers handling the habeas action, and not to law enforcement officers or prosecutors, because such release would make a fair retrial impossible. Writing for the majority, Fletcher said filing an ineffective assistance claim was an implied waiver of the attorney-client privilege but was limited to documents relevant to the petitioner’s claim. Should the parties not agree on what documents fit that description, he continued, the trial judge should decide the issue after an in-camera review. But the documents may not go to law enforcement officers or future prosecutors, Fletcher wrote. The most controversial portion of the ruling, however, came on a procedural matter. The court had agreed to hear the privilege issue on interlocutory appeal, despite the habeas judge, Douglas County Chief Judge Robert J. James, denying Waldrip’s lawyers permission to take the appeal. Under current appellate rules, interlocutory, or pre-trial, appeals require the trial judge to certify that the issue is of such importance to the case that it should be reviewed before trial. That rule, Fletcher wrote for the majority, was intended to “permit trial courts, rather than parties, to regulate the litigation; it is not to permit trial courts to deprive appellate courts of their jurisdiction.” Because the current rule provides no alternative should an appellate court disagree with a trial court’s decision on an application for interlocutory appeal, the court on rare occasions has assumed jurisdiction anyway, Fletcher wrote. That occurs when cases “involve an issue of great concern, gravity, and importance to the public and no timely opportunity for appellate review.” The state Constitution and code “give this Court authority to establish rules of appellate procedure for this state,” Fletcher wrote, adding that the court also has the power “to maintain a court system that provides for the administration of justice in an orderly and efficient manner.” FOLLOWS ABA RULES Fletcher noted that the new rule was consistent with American Bar Association standards that recommend appellate courts keep discretion on interlocutory review when such review would advance the litigation, protect parties from irreparable harm or clarify important issues. Justice George H. Carley, writing a dissenting opinion, said the majority’s decision to hear the appeal was unprecedented and “based upon nothing other than the majority’s own subjective determination that it is somehow appropriate.” “In my opinion, a duly enacted statute of our General Assembly does not constitute and cannot be considered to be a ‘defect’ which this Court or any court is at liberty to ignore because it prefers the pronouncements from a source which it perceives to be more enlightened,” wrote Carley. “The General Assembly, not the American Bar Association, determines the manner in which an order entered in a Georgia trial court is appealable.” He went on to warn that in the future, the majority would “dispense with the lower court’s input in any and every case which, in its unbridled discretion, it wishes to review.” Justices P. Harris Hines and Hugh P. Thompson joined in the dissent. MOTION TO WITHDRAW In the Newton County case, Shedrick Fortson pleaded guilty to felony murder and firearm possession in January 1998. A month later he filed a motion to withdraw his plea because he claimed his appointed lawyer was ineffective. At the hearing on his motion to withdraw, Fortson was not represented by counsel nor was he asked if he wanted a lawyer. Newton County Superior Court Judge Samuel D. Ozburn denied his motion. Fortson, now represented by James E. Millsaps of Covington, Ga., appealed Ozburn’s ruling. Writing for the majority, Hunstein said proceedings on a motion to withdraw are a critical stage of the prosecution. At such stages, defendants are entitled to counsel unless that right is knowingly waived, she continued. Hunstein rejected arguments by the state that a motion to withdraw a guilty plea was the equivalent of an application for a writ of habeas corpus, a proceeding in which the Georgia Supreme Court recently held that there is no right to an appointed lawyer. Gibson v. Turpin, 270 Ga. 855 (1999). The two proceedings are substantially different, she wrote. Justices Thompson concurred in part and dissented in part, writing that while defendants in similar situations should have the right to counsel, in this case the absence of counsel was harmless. Justice Carley dissented without opinion. 20 YEARS FOR $60 THEFT In the Clowers case, also written by Hunstein, the majority found that the record did not support Derrick Clowers’ knowing and intelligent waiver of his right to a lawyer. Clowers pleaded guilty in 1994 to robbery by sudden snatching for stealing $60. He was sentenced to 20 years, 10 to be served in prison, on the condition he testify against his co-defendant. Clowers entered the plea after talking with a prosecutor. He claimed the discussions, during which he signed a waiver of rights, were outside the courtroom. The Cook County prosecutor claimed they were in the courtroom with the judge present. In any event, the record of the proceedings shows no inquiry to determine if Clowers wanted a lawyer, Hunstein wrote. While the prosecutor claimed the procedure he followed was routine in that county, it was insufficient to establish a waiver of the right to counsel, she added. Thompson concurred with the majority, adding that, “The entry of a guilty plea is a magic moment which separates the guilty from the innocent. It cannot be undertaken lightly.” Carley and Hines dissented, with Carley writing that evidence of a routine procedure can be used to establish a waiver of the right to counsel and that the evidence showed the prosecutor went over Clowers’ right while the trial judge was in the courtroom.

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