After seeing a video of one of appellate public defender Andrew Fleischman’s oral arguments before the Georgia Supreme Court in a contested murder case, criminal defense lawyer Noah Pines hired him.
“I’m a bit of an appellate geek,” said Pines of Ross & Pines. “I watch Georgia Supreme Court arguments online.”
Before joining Ross & Pines last week, Fleischman, 33, handled conflict criminal appeals as a staff attorney for the Georgia Public Defender Council. In his six years in practice, he’s already argued five cases before the Georgia Supreme Court—winning four so far.
Pines said he was struck by Fleischman’s performance in oral arguments for a high-profile case, State v. Cash, on May 15 because Fleischman was “extremely well prepared, concise, understands the law and makes complicated arguments simple.”
Pines said he’s wanted to take on more appeals but has turned down “all but a handful” because he doesn’t have the time, adding that an appellate case can take 150 to 200 hours.
He won the last appeal that he brought before the Supreme Court, Watson v. State. The court’s Jan. 2016 ruling narrowed the legal standards for bringing a sexual battery charge against a defendant accused of touching someone younger than 16. It overturned a Court of Appeals opinion that the Supreme Court said would potentially criminalize even innocuous contact like diaper-changing—a case Fleischman coincidentally wrote about for legal publication Fault Lines.
After checking Fleischman out in a few appellate videos and interviewing him in person, Pines offered him a job.
Fleischman said he took Pines up on the offer because it’s a chance to get in on criminal defense cases at the trial level, so he can raise constitutional issues on the front end. If a constitutional issue isn’t raised at trial, it can’t be raised on appeal, he explained, adding that instead appellate attorneys often rely on arguments about ineffective trial counsel. That’s what he did to get another murder conviction reversed by the Supreme Court in Bryant v. State last May.
“I wanted an opportunity to do trials and start raising some of these issues I see in Georgia,” he said.
The Hat Case
State v. Cash was actually on its second trip to the state Supreme Court when Fleischman delivered the argument in May. His client, Jennifer Weathington, and her mother, Elgerie Cash, had been convicted of murder by a Paulding County jury in a two-week trial in 2013, after Weathington’s boyfriend, Lennis Jones, died of a gunshot wound to the head. Each was sentenced to life in prison plus five years.
The women said Jones accidentally shot himself in the head with the gun, thinking it wasn’t loaded. But the medical examiner found no gunpowder residue around the entry wound from the bullet and ruled it must have been fired from a distance. That led the Paulding County District Attorney’s office to charge Weathington and Cash with murder.
The women’s appellate lawyers, Fleischman and Robert Citronberg, respectively, won motions for a new trial from the trial court judge. The prosecution appealed and the Supreme Court upheld the new trial grant in 2015. A Paulding County judge then granted a posttrial plea in bar to the defense, acquitting the women without a new trial.
The prosecution appealed that decision to the Supreme Court, as well, leading to the May oral argument. Aaron Henrickson of Henrickson & Sereebutra represented Cash.
“My specialty is not sounding like a lawyer,” Fleischman said. His started his response brief in the second round of State v. Cash by saying, “This is a case about a hat.”
A baseball cap with a bullet hole and Jones’ blood was later retrieved from Cash’s house, where the shooting happened. But the trial lawyers for Weathington and Cash did not argue that Jones was wearing the hat when shot, which their appellate lawyers said would account for the lack of gunpowder around the head wound. Fleischman’s theory is that a police officer responding to the women’s 911 call took the hat off Jones’ head and set it down nearby as he tried to stop the bleeding from Jones’ head wound.
The Supreme Court is expected to issue an opinion any day.
A True Believer
Fleischman originally planned to be a bankruptcy lawyer in law school at Georgia State University, but then he interned in the public defender’s office at Atlanta Municipal Court. “People were held in jail for months because they couldn’t afford bond—mostly for crimes of homelessness, poverty and race,” he said.
He came in on the weekends to help the public defenders with first-appearance calendars, under the third-year practice act. Often there were more than 200 people on a calendar, appearing via video conference from the jail, Fleischman said.
A lot of them had been in jail for more than 48 hours without a probable cause hearing, he added, which requires mandatory release. “I would argue it, brief it—and I lost every time,” he said.
“It made me mad. It made me want to do this work,” Fleischman said.
He got into appeals work after getting a job with a well-known Atlanta DUI lawyer, William “Bubba” Head, at Head, Thomas, Webb & Willis after graduating from law school in 2011.
“Most trial lawyers don’t want to do appeals. It’s lots of writing and research,” he said. “I was new, so they gave me some appeals. I won some, and I liked it.”
He landed a job with the Paulding County Public Defender in 2013, which is where he was when he won the initial appeal at the Supreme Court in State v. Cash.
“I’m a good memorizer, which is useful for this job. And I read about law all the time. It’s what I do over the weekends,” Fleischman said. “Knowing a little bit about a lot is helpful in trying to find parallels and analogies.”
As for challenging the law, Fleischman said his “white whale” at Ross & Pines would be taking a case to “fix Georgia’s felony murder law—the aggravated assault problem.” Georgia is one of only two states, he explained, where under the felony murder statute any death from an aggravated assault results in a felony murder charge.
“The problem is that, under Georgia law, you don’t need to intend to harm the person to be charged with aggravated assault,” Fleischman said.
If you hit someone with your car, that’s aggravated assault, he added. “The only reason every fatal car accident isn’t a murder is prosecutorial discretion.”
Another bugbear is that prosecutors don’t want jurors to know the sentences for the charges they are weighing when deciding whether to convict—a topic he’s written about. For example, a jury might think felony murder is a lesser charge than malice murder and convict only on that, Fleischman said, not realizing that both carry a mandatory life sentence in Georgia.
Meredith Watts has opened her own firm, The Watts Firm, representing individuals in employment discrimination and civil rights claims, as well as businesses in commercial litigation. She also offers appellate services to other Atlanta lawyers. Watts had been an associate at Decatur boutique Slotkin & Caiola after starting her career at Troutman Sanders. Slotkin & Caiola split into two firms this summer, The Slotkin Firm, where F. “Bobby” Slotkin Jr. handles general litigation and serves as general counsel to local businesses, and Caiola & Rose, where Annie Caiola and Elizabeth Rose represent franchisors. The Watts Firm is located at 2675 Paces Ferry Road in Vinings.
Andrew O’Connell has left Swift, Currie, McGhee & Hiers to start The O’Connell Law Firm, representing individuals in workers compensation claims. O’Connell is a 2009 graduate of The University of Georgia School of Law. His new firm is located at 160 Clairemont Ave. in Decatur.
Tania Trumble has joined McLain & Merritt‘s real estate litigation group from residential and commercial real estate firm Gilroy Bailey Trumble, where she managed the litigation group. Sally Cook joined her as an associate.
Drew Eckl & Farnham has added five first-year associates and two second-years. Joining the workers compensation group are Kayla Chiang, Mercer University Law School 2017; Earl King Jr., North Carolina Central University 2017; and Dana Schwartzenfeld and Paul Wildes, both University of Georgia Law School 2017. Janeen Smith, a 2017 graduate of Emory University Law School, joined the civil and commercial litigation practice.
J. Remy Jones joined the civil litigation practice from Macey, Wilensky & Hennings after graduating from GSU Law in 2016. Bartlett Benton, who’s focusing on general liability and premises liability defense, joined from Webb & Taylor, after graduating from GSU Law in 2016.
This year’s Intellectual Property Community Service Awards go to four lawyers for their contributions to the community: Jamie Graham of Kilpatrick Townsend & Stockton; Christopher Lightner of Alston & Bird; Rick McMurtry of Turner Broadcasting System; and Bill Ragland of Womble Carlyle Sandridge & Rice.
The joint awards from Georgia State University and Georgia Tech are made every three to four years. This year’ recipients will be recognized at a luncheon on Oct. 11 from noon to 1:30 p.m. at GSU Law.