While damage to Mrs. Hand’s vehicle was slight, and she did not require immediate medical attention, she did go get checked out the next day.  Fortunately, her injuries were relatively minor, soft tissue injuries common in low speed collisions and required less than $900.00 in medical treatment.  However, under Georgia law, DUI drivers are subjected to possible punitive damages designed to punish and deter dangerous, willful and unlawful conduct.  Clearly, by awarding a large punitive damage award, Mrs. Hand’s jury sent a message that DUI drivers are a threat to Georgia’s roadways and will be punished.  In practice, cases similar to Mrs. Hand’s frequently settle for much, much less under circumstances where a Defendant’s conduct does not rise to a level justifying punitive damages.

The point is clear: DUI in Georgia is a crime that subjects you not only to harsh criminal punishment, but to extreme civil liability as well.   In this case, the punitive damage award was nearly 25 times the amount of all other damages combined.

Other serious traffic violations that may allow Plaintiff’s to sue for punitive damages include Reckless Driving charges, excessive Speeding charges, texting while driving in violation of Georgia’s law, and Aggressive Driving.

District Court judge William Moore ruled that the evidence presented by Mr. Davis’ lawyer was not sufficient to warrant a new trial.  Davis’ attorneys appealed Judge Moore’s decision to the 11th Circuit Court of Appeals, but the three judge panel essentially ruled that only the Supreme Court could consider Davis’ appeal of Judge Moore’s ruling.

Now, Davis and his lawyers must hope that the United States Supreme Court will step in and overrule Judge Moore.

Misdemeanor defendants are most likely to appear without counsel – they often think that they may get a fine, then they can go home.

As an attorney, it is certainly easy for me to say “never appear in a criminal court without a lawyer.”  I fully understand that most people do not have ready access to the $1,000 to $2,000 that many defense attorneys charge to negotiate a deal.

On the other hand, if you decide to take your chances and appear without a lawyer, do your research and understand what you will be facing.  Remember, you are entering a different world and the prosecutor’s goal is not “justice” but it is to clear out his docket as quickly and efficiently as possible.  It is your problem if you accept his recommendation without negotiation.

Realize as well that the prosecutor, judge and court personnel are not under any obligation to explain the court processes to you or give you time to think about what you want to do.  Judges are very busy people and your case, while important to you, is only one of hundreds or thousands they have to handle.

When a potential client asks me whether it makes sense to hire a lawyer, I explain that my job is mainly to eliminate the uncertainty factor.  I have been in court before and I know how the process works.  I have perspective about what constitutes a “reasonable” plea bargain and when the prosecutor’s case is weak enough to take our chances in court.

Take a look at this blog post entitled Bargaining for Freedom, A Day in Criminal Court.  The author, a lawyer who does not handle criminal matters, describes the experiences of a friend who appeared in court without a lawyer.  While this article describes a day in a Los Angeles criminal court, the experience he describes is fairly universal and could have happened in any busy Atlanta area court as well.

When a defendant is convicted of a state law crime such as murder, he will generally file an appeal to a state appeals court.   Appeals generally involve supposed errors of law – the defendant may contend that certain evidence was improperly admitted or that the jury instructions were wrong.   Except in rare instances the appeals court will not reverse a conviction based on the judge or jury’s evaluation of the evidence.  In other words, an appeal of a criminal conviction is not a new trial – the defendant must convince the appeals court that the trial court made significant errors that could have changed the outcome.

If a defendant loses his state court appeals and does nothing further, the state will enforce its penalty by leaving the defendant in prison, or in capital cases, by executing the defendant.

Because “death penalty” cases involve the ultimate penalty, capital defendants have a second layer of appeal available to them under a concept called “habeas corpus,” which allows a federal court (and federal appeals courts, up to and including the United States Supreme Court) to consider issues involved in the state court trial or subsequent appeal as Constitutional matters.  The “due process” clause of the 14th Amendment to the Constitution guarantees all citizens fundamental fairness and justice in all criminal prosecutions, and the federal court can review the decisions of the state trial and appeal courts even in cases not involving federal criminal law.

Successful habeas corpus appeals are rare.   Federal judges have the power to decide which cases they will consider – thus there is no guarantee that the federal courts will accept a case for review.  The further along the appeal process a case travels, the less likely that it will be heard, much less be decided in the defendant’s favor.   Very, very few cases end up before the United States Supreme Court – only cases involving important legal issues with far reaching consequences will be accepted by the Supreme Court for review.

One such case that has made it through both state appeals procedures and federal appeals procedures all the way to the United States Supreme Court is the case of Wellons v. Hall, the case involving the chocolate penis.

Defendant Wellons was convicted by a Cobb County jury of the rape and murder of a 15 year old girl named India Roberts.  Because of the vile and horrible nature of the crime, the jury sentenced defendant Wellons to death for the murder and life in prison for the rape.

After the trial was over, however, several of the jurors made the bizarre decision to give the trial judge a gag gift consisting of a chocolate penis.  None of the parties involved dispute this fact.  The defense attorneys also claim that the jurors gave the court baliff two chocolate breasts, although several of the parties involve dispute this part of the story.

In any case, the trial judge did not report this activity to the defense or the prosecution – the judge asserts that the “gift” was received after the trial and thus was not relevant.

Following the conviction, defendant Wellons and his defense team filed appeals in both state court and in federal court.  At every stage, his appeal was denied, mostly on procedural grounds.  In 2009, the Supreme Court took the very unusual step of accepting Wellons’ appeal for review and in a written opinion, vacated the conviction and sent the case back to the 11th Circuit Court of Appeals with direction to consider whether Wellons received a fair trial given the bizarre activities undertaken by the jury.

The Supreme Court’s actions do not mean Wellons will be released from prison or that he will likely be found innocent.  His defense, by the way, was that he was mentally ill and insane and therefore unable to form the specific intent required for a capital murder conviction.  Insanity defenses are notoriously difficult to prove and my reading of the Georgia Supreme Court’s opinion suggests that Wellons would likely be convicted by any reasonable jury considering the facts.

However, if the 11th Circuit Court of Appeals does find that the jurors actions mean that Wellons did not receive a fair trial, then Cobb County will have to go to the time and expense of retrying a 20 year old murder case, and India Roberts’ family will have to go through the stress of reliving the nightmare of the murder.

In its opinion, the Supreme Court notes that “from beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect.”   Even in the case of a murderer who is likely guilty inappropriate activities by the  jury will undermine the public’s confidence in our judicial system.

What do you think?  Is the Supreme Court creating a lot of work for Cobb County because of a technicality or is the principle here important enough to warrant a new trial for the defendant?   The Atlanta newspapers wrote about this case in February 2010 – you can read the article by clicking on the link.

In one of the Georgia cases, Presley v. Georgia, the Supreme Court came to a conclusion on two open issues concerning closed courtrooms.

The trial judge had kicked out an uncle of the defendant during jury selection and said her courtroom was too small to accommodate both potential jurors and the public. The defendant, Eric Presley, who had been convicted of trafficking in cocaine, appealed the conviction and claimed his Sixth Amendment right to a public trial had been violated.

In 1984, the Supreme Court had ruled that the press and the public have a First Amendment right of access to jury selection. Tuesday the court extended that right to criminal defendants under the Sixth Amendment for Presley’s case. “There is no legitimate reason, at least in the context of jury selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has,” said the opinion.

The Supreme Court also concluded that a defendant seeking to open a courtroom does not need to present alternatives to the trial judge. Whether trial judges are given alternatives or not, the majority opinion said, they “are obligated to take every reasonable measure to accommodate public attendance at criminal trials.”

Justice Clarence Thomas and Justice Antonin Scalia disagreed, saying the majority should not have decided the two questions in summary fashion without a full briefing and argument.

The second Georgia case, Wellons v. Hall, ordered the federal appeals court in Atlanta to reconsider its decision that there was nothing legally wrong with two gifts that had been given to court personnel by the jurors in a capital trial. The two gifts were a chocolate penis for the trial judge and chocolate breast for the bailiff.

“Judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect,” the unsigned majority opinion said.

The decision instructed the appeals court to reconsider the case in light of Cone v. Bell, a Supreme Court decision from last April clarifying how federal courts may take account of state court rulings in habeas corpus cases. Four justices dissented. Justice Scalia, joined by Justice Thomas, said that the majority had treated the appeals court with disrespect, “as though we were schoolmasters grading their homework,” and that “an appropriately self-respecting response” from the appeals court “would be summary reissuance of the same opinion.”

Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. also disagreed saying the gifts were “strange and tasteless” as well as “facially troubling,” Justice Alito added that the Supreme Court should either have agreed to hear the case or denied review, but sending the case back for reconsideration was inappropriate.

Davis’ current (and possibly final) appeal rests in the United States Supreme Court.  On June 29, 2009, however, the Supreme Court concluded its 2008-2009 session without making any decision on Mr. Davis’ petition for habeas corpus.   A petition for habeas corpus is a demand for extraordinary relief and is used in a criminal matter when a defendant contends that he has been denied due process by lower courts.

At this point, Mr. Davis is asking the Supreme Court to set into motion a process whereby he would end up with a new trial on the evidence.  He contends, among other issues, that since the original trial the eyewitnesses to testified against him in the original trial have recanted, and that other witnesses, previously unknown, were now available to testify.

In addition the Georgia Resource Center, which provided legal help for Mr. Davis (as well as for other indigent defendants) found its budget and staff cut, thereby reducing its effectiveness in presenting Mr. Davis’ case.

Davis’ plight has also garnered the attention of activists and celebrities throughout the world who are voicing support for a new trial.

It appears to me that at this point, Mr. Davis’ biggest  hurdle may be procedural.  One one hand, there seems to be a visceral reaction in the minds of even casual observers that when a man’s life is at stake, a court system should not put form over substance by denying a defendant his day in court on the basis of procedure.

On the other hand, prosecutors and many others argue that there must be rules regarding the finality of trials and appeals.  Civil and criminal courts are all subject to rules of evidence.  At some point both prosecutors and defense lawyers must present their best cases, recognizing that there is always new evidence or arguments not made.

My guess here is that the Supreme Court will decide that Mr. Davis should be given another opportunity to present evidence to disprove the State’s allegations of guilt.   This case has become something more than a murder trial – instead it has become a symbol of American criminal jurisprudence, and I think that the Supreme Court justices will incorporate this factor into their ruling this coming fall.

If a new trial does happen it will be interesting to see how a new jury evaluates the witnesses and their changing stories.   Given the political dimension of how this case has evolved, we will probably never know exactly what happened that early morning in Savannah, Georgia in 1989.

I. Blood alcohol above the legal limit – for drivers over the age of 21, a blood alcohol level of .08 or higher is considered a “per se” DUI violation.  This means that a judge or jury can convict you of DUI based on your blood alcohol level only.

For drivers under age 21, a blood alcohol level of .02 or higher will support a DUI conviction

II. Less Safe Driver – if you are over age 21, and have less than .08 blood alcohol in your blood but you are a “less safe” driver, you can be convicted of DUI.

Do not be surprised if the prosecutor argues both theories of DUI.  Blood alcohol level numbers can be challenged based on the equipment used, the measuring technique or based on the weight of the driver, but “less safe” prosecutions often turn on the testimony of the arresting officer.

The Georgia DUI law is codified at O.C.G.A. Title 40, Chapter 6, section 391.

The 11th Circuit Court of Appeals did, in fact, stay Mr. Davis’ execution, and on Tuesday, December 9, 2008, a three judge panel of the 11th Circuit heard arguments as to whether Mr. Davis and his attorneys have presented enough evidence to continue the stay of execution and to permit defense attorneys to pursue different theories of appeal.

Note that the 11th Circuit panel was not deciding guilt or innocence or even whether a new trial was warranted.  They were considering a very narrow procedural matter – was there enough evidence to continue to the stay of execution so that Mr. Davis would have time to present an argument for a new trial.

A decision has not yet been issued by the 3 judge panel and there is no indication as to when it may be released.  In the meantime, Mr. Davis, his family and supporters will continue to hope for redress, and Officer MacPhail’s relatives will continue their vigil for closure.

On the other hand, your case may be one where the State’s evidence is admissable and we may decide that a judge or jury trial may be risky. In such instances, we may be able to negotiate a favorable plea bargain to keep you out of jail or to other minimize the negative consequences of a DUI conviction.

What factors come into play when we negotiate a DUI plea bargain?  There are no published statistics to answer this but DUI defense lawyers around the country generally find similarities in their experiences. Ohio DUI lawyer Brad Koffel posted a list of the top ten risk factors that hurt his chances at negotiating a plea bargain. Brad’s list is not exhaustive but I agree with him that the more of these factors that apply in your case, the more difficult it will be to negotiate the most favorable terms of a plea bargain.

Here are the factors that attorney Koffel identifies:

1. Car Accidents
2. Blood Tests
3. Breath Tests
4. Urine Tests
5. Video showing an impaired client
6. State patrol hotline calls about our client
7. Client or passenger statements tantamount to confessions of being DUI
8. Rudeness & belligerence towards police officers
9. The county the DUI arrest occurred
10. Prior Convictions for DUI

Rest assured that even if your case seems hopeless, your DUI defense lawyer’s job is to identify each and every weakness of the State’s case and to guide you regarding steps you can take to help your chances. I have found that clients accused of the most serious DUI offenses need representation even more than first time offenders with limited alcohol impairment. I have yet to see a case where even a repeat offender with several of these risk factors does not have some redeeming character attribute that can help his case. I therefore urge you not to just give up if the case against you looks bleak.