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With the Braves out of the playoffs and the Falcons in last place, the best spectator sport for Atlanta’s lawyers may be found at … the Georgia Supreme Court. In oral arguments Tuesday, lawyers will match wits over allegedly sneaky legal tactics, the standard of proof in medical malpractice cases, a vexing wrongful-death question and the right of unmarried people to have sex. Georgia’s sex laws have made national headlines since 1986, when the U.S. Supreme Court in Bowers v. Hardwick, 478 U.S. 186, upheld the state’s right to prosecute homosexuals for sodomy. But in 1998, the Georgia high court declared in Powell v. State, 270 Ga. 327, that the state constitution’s privacy rights were broader than those in the U.S. Constitution. By a 6-1 vote, the court prohibited criminalizing sodomy as long as it is private, non-commercial behavior between consenting adults. The case on Tuesday involves a boy and girl, both 16 at the time, who were caught having sex last year on the girl’s bedroom floor by her mother. The couple got into trouble when the girl’s probation officer learned of the incident and filed charges in Fayette County, Ga., Juvenile Court. After separate trials, the girl was sent to boot camp and the boy was fined $250 and ordered to write an essay. Represented by the American Civil Liberties Union, the boy, identified as J.M., has challenged the constitutionality of O.C.G.A. � 16-6-18, which makes it a misdemeanor for unmarried people to have voluntary sexual intercourse. The ACLU’s Gerald R. Weber and Elizabeth L. Littrell and Peachtree City attorney Catherine B. Sanderson point out in their brief that 16 is the age of consent in Georgia — the age below which statutory rape charges may apply. The ACLU brief cites the Powell majority, in which then-Chief Justice Robert Benham wrote, “We cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than unforced, private, adult sexual activity.” Criticizing the majority ruling as based in political correctness and not law, Justice George H. Carley, the lone dissenter in Powell, wrote, “Presumably, under this new standard, the State can no longer enforce laws against fornication or adultery.” Fayette County District Attorney William T. McBroom and ADA Jamie K. Inagawa argued that Powell does not apply because it deals only with sexual activity between adults. They noted that 16-year-olds are considered children by the Legislature. McBroom and Inagawa added that J.M. did not have a right to privacy in his girlfriend’s parents’ home. The prosecutors argued that J.M.’s equal protection challenge should fail because, citing the Bowers v. Hardwick decision, “[t]here is no fundamental right to engage in consensual sexual activity.” In re: J.M., a child, No. S02A1432 (Ga. June 5, 2002). Washington, D.C., lawyer Julie M. Carpenter filed an amicus brief supporting J.M. for the DKT Liberty Project, a nonprofit privacy-rights group. LAWYER TO DEFEND ‘EGREGIOUS’ LEGAL BEHAVIOR The sex case is the last of seven scheduled for Tuesday. Atlanta lawyer Monte K. Davis will start off the day arguing against Georgia Court of Appeals holdings that his numerous continuances and leaves of absence made it nearly impossible for courts to meet his clients’ speedy trial demands. In three cases that have been consolidated for Tuesday’s arguments, the Georgia Court of Appeals rejected Davis’ claims that his leaves of absence were warranted. In two of the cases, judges said Davis’ leaves of absence were deliberate attempts to prevent prosecutors from trying his clients in the two-term window required by the state’s speedy trial law — which would get the cases dismissed. Chief Judge G. Alan Blackburn wrote in a special concurrence to one decision that Davis’ “interplay of motions, leaves of absence, and conflict letters … were used to both manipulate and abuse the system” as if it were a chess match. Jones v. State, No. A01A0576 (Ga. Ct. App. July 16, 2001). In another case, Presiding Judge J.D. Smith said it was “egregious” for Davis to file a speedy trial demand at the end of one term and then go on a vacation during the next term, thereby shortening the time in which a trial could take place. Linkous v. State, 254 Ga. App. 43 (2002). For his part, Davis said in an interview that his leaves of absence were either for legal seminars or vacations planned well in advance of the trials, in one case before his client was even arrested. He added that the appeals court judges “don’t recall what it’s like to be a private defense attorney,” saying he is often running from jurisdiction to jurisdiction trying cases. His cases are Jones v. State, No. S01G1816, Linkous v. State, No. S02G1032, and Mimms v. State, No. S02G1376 (Ga. cert grant’d, June 26, 2002). Because the cases come from three different circuits, Davis faces a host of prosecutors: Gwendolyn R. Keyes, DeKalb solicitor general, and Assistant Solicitors Heather C. Waters and Mirza Qader Ali-Baig; Cobb Solicitor General Barry E. Morgan and Assistant Solicitor Thomas E. Griner; and Atlanta City Court Solicitor General Joseph J. Drolet and Assistant Solicitor Katherine Diamandis. CAN MOTHER SUE FOR WRONGFUL DEATH? The second case of the day comes to the high court via a federal appeals panel stumped by a question of Georgia law. At issue is the 1998 shooting death of David Newton, for which Newton’s wife was convicted. A panel of the 11th U.S. Circuit Court of Appeals wanted to know if Georgia law allows Newton’s mother to sue her daughter-in-law for wrongful death. Two years ago, a federal judge in Macon, Ga., ruled only Newton’s wife, former police officer Ethel Elizabeth “Beth” Tessmer, could sue over the death for which she was sentenced to life imprisonment. But the 11th Circuit concluded that Georgia law isn’t clear enough to make a decision, so they passed the case on to the state high court. “There is unsettled tension as to the application of the Georgia wrongful death statutes that prevents us from being able to determine the proper application of those statutes in this case,” wrote 11th Circuit Judges R. Lanier Anderson III and Frank M. Hull and, sitting by designation, 6th Circuit Judge Cornelia G. Kennedy. Carringer v. Rodgers, No. 01-15258 (11th Cir. June 12, 2002). Among the questions posed to the Georgia justices was this mindbender: “Under Georgia law, does the parent of a decedent child who was murdered by his surviving spouse have a wrongful death cause of action against either the spouse-murderer and/or any other person or entity who was the proximate cause of the decedent’s death?” In ruling against Newton’s mother, Deborah M. Carringer, the Macon judge cited � O.C.G.A. 51-4-2, which provides that “a surviving spouse or, if there is no surviving spouse, a child or children … may recover for the homicide of the spouse or parent full value of the life of the decedent.” Tessmer and Newton had no children. The case is Carringer v. Rodgers, No. S02Q1483 (Ga. June 14, 2002). Ralph S. Goldberg represents Carringer. Sandra J. Popson, Andrew J. Whalen III and James Richard Westbury Jr. represent Tessmer and other defendants. COURT TO CONSIDER MEDICAL MALPRACTICE STANDARD Tuesday’s medical malpractice case will decide whether plaintiffs should have to prove their injuries were caused by a defendant’s negligence “within a reasonable degree of medical certainty as proven by a preponderance of the evidence.” The case stems from a Gwinnett County, Ga., trial judge’s instruction to a jury on how to decide whether a plaintiff proved her case against a plastic surgeon she claimed botched a breast reduction. The judge said the plaintiff’s medical experts had to show, “within a reasonable degree of medical certainty as proven by a preponderance of the evidence,” that her doctor’s negligence caused her injury. The jury in 2000 ruled for the doctor, but the plaintiff appealed and won a reversal. A panel of Judges Frank M. Eldridge and M. Yvette Miller and Presiding Judge Gary B. Andrews decided that the term “medical probability” should have replaced “medical certainty” because “certainty” was too high a standard. Andrews concurred in the judgment only. Thompson v. Zwiren, No. A01A1931 (Ga. Ct. App. March 12, 2002). The Medical Association of Georgia and others have filed an amicus brief supporting the doctor-defendant in a dispute over the burden of proof in medical malpractice cases. The Brain Injury Association of America Inc. has filed an amicus brief supporting the plaintiff. The high court on June 21 unanimously granted certiorari in the case, Zwiren v. Thompson, No. S02C1063. (Ga. June 21, 2002). Robert P. Monyak and Anna Burdeshaw Fretwell represent the doctor. Jim Neil Peterson Jr. represents the plaintiff. Thomas S. Carlock represents the medical association. J. Sherrod Taylor represents the Brain Injury Association.

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