Oftentimes, I will be speaking with a new client who has had either their car or home searched by police officers.  During these searches, the police will find something that my clients wished they hadn’t found, be it an open container of alcohol, a small bag of marijuana, or some other controlled substance.

 When I’m told this information, my next question is usually along the lines of, “Well, how did they get into your house/car?  That is, did they have a search warrant?”  The typical response is, “No, they didn’t have a warrant, but when they asked me if they could search my car/house, I said, ‘Sure, go ahead, I’ve got nothing to hide’”.  

Well, as it turns out, my client DID have something to hide!  And yet, they gave up a very valuable constitutional right along the way, which led them to jail.  The right I’m speaking of can be found in the Bill of Rights of the United States Constitution.  The 4th Amendment protects all of us against unreasonable searches and seizures by government agencies.  

Generally speaking, the 4th Amendment provides us as individuals a right to privacy, or simply put, the right to be left alone!  There are several exceptions, but to legally search your car or home, an Officer will one or more of these:  Probable Cause, your permission, or a search warrant signed by a judge.

If the officer has a valid search warrant, then there’s little you can do other than to stay quiet and let them do their job.  However, when they don’t have a search warrant, and they still want to search your car or home, they will often simply ask you if you’ll allow them to search.  This is not the time to try reverse psychology and give them consent to a search, hoping that the officer will not take you up on your offer.  Trust me, they will search every square inch of your car or home if you allow them–otherwise, they wouldn’t have asked.  If you don’t want some stranger, who is looking for any reason to take you to jail, to invade your privacy then now is the time to say “No, with all due respect, I will not allow you to search my car/home.”  It is definitely more difficult to give this answer than to simply go along with the officer’s demands, but in the long run you’ve got to be willing to stand up for your rights if you want the courts to do the same.

You should also know that the police are trained to ask questions specifically designed to obtain your consent.  This is a typical conversation:

Officer:  You don’t have any high powered weapons or drugs in the car, do you?

Citizen:  No, of course not.

Officer:  Well then you wouldn’t mind if I check your car?

Citizen:  Ah…… no.

Officer:  Thanks, just step aside and I’ll be quick about it.

Note several things about this conversation.  First, the initial Officer question is designed to elicit a “no” answer as it often contains a gross exaggeration designed to take you off your guard, ie “high powered weapons…”  Next, the second question from the Officer is designed to force you to make good on your statement with the implication that you are a liar if you decline the request for consent.  Lastly, notice that the Officer’s second question is a leading question such that a “yes” or “no” answer can be twisted in either direction to authorize a search. 

Again, this article by no means covers all the exceptions and different situations that one can encounter during a police search.  However, this will hopefully provide at least a small piece of guidance when faced with a potential invasion of privacy by a police officer.  Below is the text directly from the 4th Amendment of our Constitution:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Troy Davis is Dead.  Killed by lethal injection by the State of Georgia – that is to say, by us.  He was convicted at trial—beyond a reasonable doubt.  But today, the only thing we can be certain of beyond a reasonable doubt is that everyone is a loser.  A trial is supposed to bring justice and finality and ultimately the ability to forgive and move on.  But in this case, justice, finality and forgiveness will forever be unattained because we can’t now be certain of Troy Davis’ guilty.

 To the very end, Troy Davis claimed he was innocent.  Moments before his death, he offered a chilling forgiveness to those who he claimed falsely accused him of murder and to those who carried out his death.   Look at the facts of this case and I think you will agree with me that perhaps Troy Davis was guilty, but his guilt was not certain.  And I think that administering the death penalty in this case was particularly wrong because certainty, absolute certainty, is essential to justice, finality and forgiveness if we are to kill another human being as a punishment.   Here are the facts:   

It was nighttime, on August 19, 1998, and Marc MacPhail, an off-duty police Savannah officer was working a security job when he rushed to the aid of a homeless man being beaten.  At his arrival, MacPhail was shot in the chest and face and died in the parking lot.

The next day, having heard that he had been accused of the murder, Troy Davis turned himself in at the police station, claiming that he was with Sylvester Coles, when Coles got into a fight with the homeless man.  Troy said that he heard the police coming and ran away.  Troy Davis testified in his own defense at trial that he was not the shooter.

Sylvester Coles was quickly arrested, but struck a deal with prosecutors and testified that it was Davis who was beating the homeless with a gun.  Coles testified that he heard shots as he was running away.  He told jurors he never saw the shooter.  He was never prosecuted for any crimes.

The gun was never found.  There was no scientific or DNA type evidence linking Davis to a gun or to the victim.

Davis was convicted and received the death penalty.

The case against Davis was based entirely on eyewitness identifications of the following witnesses:

1. Darrell Collins, who was with Davis and Coles the night of the shooting, initially told police that Davis was the shooter, but at the trial he denied that assertion:   “I told you that I didn’t see Troy shoot at them, or shoot that night, and I didn’t see him with a gun that night.  He claimed that police pressured him into pointing the finger at Davis.
2.  Antoine Williams, an illiterate, initially signed a written statement that Davis was the killer.  But at trial, he too changed his story, testifying that that he was sitting in a car with tinted windows, making it hard to distinguish clothing colors, and that he was only “60 percent” sure Davis was the gunman.  “I was definitely not sure that was the guy, because I was nervous and I was watching the gun,” Williams testified.
3. Larry Young, the homeless man who was pistol whipped testified at trial that he was unable to identify Davis as the shooter.
4. Harriet Murray, who was a friend of Larry Young’s testified strongly for the prosecution at trial.  She said that Davis was the killer:  “When he was shooting the police, he had a little smile on his face, a little smirky-like smile on his face.”  But in 2002 Ms. Murray signed a statement calling into question her eyewitness account, with no mention of Davis being the gunman.
5. Dorothy Ferrell testified at trial that Davis was the shooter, saying she saw him from across the street and was “real sure, positive sure, that that is him.”  But Ms. Ferrell also recanted her testimony, saying she was telling police what they wanted to hear, because she was on parole for a shoplifting conviction and feared returning to prison. “I don’t know which of the guys did the shooting, because I didn’t see that part,” Ferrell wrote.
6. Jeffery Sapp testified at the trial that Davis confessed to him hours after the shooting.  He admitted at trial that he exaggerated and embellished part of the supposed confession.  Again, Sapp also recanted this testimony, later signing a sworn statement saying he’d fabricated the entire confession.
7. Kevin McQueen was another witness for the prosecution.  Was an inmate at the jail where Troy Davis was being housed.  He testified that Davis confessed to him at the jail.  But McQueen took it all back in a signed 1996 affidavit, saying: “The truth is that Troy never confessed to me or talked to me about the shooting of the officer.”
8. Steve Sanders told the jury he saw the shooting from inside a van and was certain Davis pulled the trigger. He was impeached at trial and admitted that he initially told police that,”I wouldn’t recognize them again except for their clothing.”

I wasn’t in the courtroom when Davis was convicted and I appreciate that the jury who convicted Troy Davis had a better opportunity to assess the witness statements.  But today many of those same Jurors have called into question their own verdict.  For me, I’m not convinced and I’m not certain.  And my suspicion is that nobody is certain.  So, that means we killed Troy Davis because we cared more about the system than we did about Troy Davis, or justice, or finality or forgiveness.  That’s messed up.

My very first paid job as a lawyer, which I loved, was as an Assistant Pubic Defender in Douglas County, Georgia.  My “confession” is that during that time, I often provided what I now consider sub-standard legal defense to my clients.  The problem is simple:  too many clients.  I was a first-year lawyer, green and fresh out of law school, charged with closing 300+ misdemeanor and felony cases per year.  Today, with over 15 years of experience and two paralegal assistants, I close less than 100 case per year.  I took the job seriously then and worked non-stop for two years before I quit to start my own practice.  Why did I quit the job I loved?  First, my salary of $28.000 (for a family of five) put us just above the poverty line—although we did qualify for the Federal Government’s Earned Income Tax Credit.  Second, I realized that my best efforts would never be good enough and that the game was fixed so that I could never, even if I worked all day and all night, provide each client with a proper defense. 

I share this story because the Georgia Legislature is about to make the Public Defender system even worse.  The proposal is to abolish conflict of interest rules for public defender offices. The rule will allow two lawyers from the same office to represent two co-defendant’s with conflicting defenses.   Simply put, the rule will pit co-workers against each other.  This will stretch resources even further and demoralize an already demoralized group of tough and hardworking lawyers.  It is wrong and it will deprive many people of important protections from our government.  I have attached an article on the proposal and a letter in opposition. 

http://www.dailyreportonline.com/Editorial/News/singleEdit.asp?l=100319422991

http://www.dailyreportonline.com/editorial/pdf/pdf%20archive/letter%20to%20disciplinary%20rules%20committee_final.pdf

I recently had a potential client come visit with me regarding his desire to be released from Georgia’s Sex Offender Registry.  His case presented an unusual set of circumstances that I had not run across before.

 This potential client had been placed on the registry in 2006 and obeyed and followed all the applicable laws since that time.  However, after going through this for 5 years, the restrictions placed on him made it harder and harder for him to live and to work.  For example, he is not allowed to reside within 1,000 feet of any child care facility, church, school, or area where minors congregate.  These same restrictions also apply to places where he’s allowed to work.  Not only were these restrictions making his employment situation more and more difficult, the simple fact of being labeled and posted for public view as an offender made most employers afraid to hire him for something that occurred 25 years ago.

 In 1986, he was convicted at trial of what is now known as a “dangerous sexual offense”.  He was sentenced to 20 years in custody, but was released in 1993 by the parole board.  At that time, he was not required to register as a sex offender (as there was no registry prior to 1996).  He would be on parole until 2006.

Unfortunately, the potential client was arrested and sentenced again in 1998 on non-sexual offenses.  This violated his original parole, which was revoked, and he was sentenced to prison until July 2006.  It was at this point, that he was first informed that he was required to register as a sex offender for the acts that took place 20 years earlier.

 Taking a look at who is required to register according to O.C.G.A. 42-1-12, the law applies to anyone who “has previously been convicted of a dangerous sexual offense and may be released from prison or placed on parole, supervised release, or probation on or after July 1, 1996.”

 As I mentioned earlier, the potential client was originally released from custody and placed on parole in 1993, which is 3 years prior to requirements of the statute.  However, the question now becomes how does his subsequent parole revocation (1998) and new release (2006) affect his registry status?

 The answer was found in Georgia vs. Frazier, 284 Ga. 638 (2008).  In Frazier, the Supreme Court of Georgia had to make a ruling regarding a similar set of facts that my potential client had experienced.  The court stated that “the language [of the applicable statute] unambiguously requires registration by a sex offender who…is released from prison on or after July 1, 1996, regardless of whether that release is the initial release after imprisonment for the sex offense or a subsequent release following revocation of parole or probation and re-incarceration for that offense.”

 Ultimately, it appears that the case law of Georgia does not provide the type of relief that this potential client was seeking.  This seems like a situation where there is no connection between the law itself and the objectives it is trying to achieve.  It makes no sense that a person should lose the right to be removed from the sex registry for conviction of a non-sex-related offense.  Georgia has the toughest laws in the United States for sex offenders, but this case shows us that our laws may not be the best.  My lesson is that every case is unique and must be researched and treated as such.

Linton Johnson

In 2006 the Georgia State Legislature passed what has been called the most restrictive sex offender legislation in the United States.  It is possible to be removed from the Sex Offender Registry.

Georgia law currently provides for four (4) scenarios under which someone can petition for release from the requirements and restrictions of the sex offender registry.  Under any circumstance, a petition must be correctly filed, the proper authorities must be notified, a hearing will likely be held in front of the judge, and a decision shall be made by that judge.  Below is a guide to this important process.

To begin with, a petition must be filed by the defendant, asking to be freed of the sex offender registration requirements, which can include restrictions on where one is allowed to live or work.  This petition is to be filed in the Superior Court of the county in which the original crime was prosecuted.  A copy of this petition must be served upon the District Attorney of that Circuit, along with the Sheriff of that county.  If the defendant lives in another county, then the Sheriff of that location must also be properly served.

As noted above, there are four (4) classifications of sex offenders that may actually file this petition for relief.  The first group would include those with serious health problems, including those confined to a hospice facility, nursing home, or residential care facility for the elderly.  Also included are those that are totally and permanently disabled.  The second group includes defendants that were sentenced for a crime that became punishable as a misdemeanor on or after July 1, 2006 and meets the sentencing criteria of O.C.G.A. §17-10-6.2(c)(1)(A) through (F).  The third group includes any defendant that was initially required to register only because of their conviction for kidnapping or false imprisonment involving a minor, as long as the offense did not involve a sexual offense against the minor, or an attempted sexual offense against the minor.

Most offenders on the registry will not fall into any of the three (3) categories listed above.  If you are eligible for relief, you will likely fall into the fourth category which requires that you have completed all prison, parole, supervised release, and probation for the offense that required registration.  You will also have to meet the criteria listed in O.C.G.A. §17-10-6.2(c)(1)(A) through (F) which requires that:

(A)   The defendant has no prior convictions of a sex offense in any state or jurisdiction that would be the same or similar to the prohibited sex offenses in Georgia;

(B)   The defendant did not use a deadly weapon against the victim which would be likely to, or actually did, result in serious bodily injury during the crime;

(C)   The court found no evidence of a relevant similar transaction;

(D)   The victim did not suffer intentional physical harm;

(E)    The offense did not involve the transportation of the victim; and

(F)    The victim was not physically restrained during the commission of the offense.

Along with the factors above, to be eligible for further consideration, the defendant must either be classified by the Sex Offender Registration Review Board as a Level 1 Risk Assessment Classification, or have had ten years elapse since the defendant completed all prison, parole, supervised release, and probation requirements.

After making sure you are eligible for consideration, and having filed and served the petition, the next step is actually having a hearing in front of the Superior Court judge and introducing your evidence.  The court may consider any evidence introduced by the defendant, the District Attorney, or the Sheriff.

If the court finds by a preponderance of the evidence that the defendant does not pose a substantial risk of perpetrating any future dangerous sexual offense the court may grant the petition.  The court will have the power to release the defendant from registration requirements or residency or employment restrictions, in whole or in part.  If your petition is denied, you are ineligible to seek relief from the court for a period of two years.

For further information or questions regarding a specific case, please contact the attorneys at The Semrau Law Firm.  Our number is 770-795-7751.  Or feel free to email us at info@semrualawfirm.com.

At last, there finally some hope and good news pending in the State Legislature on expungement of criminal history records.  House bill 402 is a new expungement law that will substantially enlarge the pool of people eligible for expungement of their criminal history.

  Expungement means to seal the State GBI record of Arrest and Disposition.  As of today, nothing automatically “falls off” your criminal record in Georgia.  You are not eligible for expungement if there was a guilty plea to any charge following arrest.  Even if the charges were dismissed or you were found “not guilty,” expungment is not allowed unless you have the permission of the prosecuting attorney.   I think it is wrong that a person could win their trial and still find themselves having to explain the charges on job interviews, school applications, apartment applications, and any other time an organization pulls your criminal history.

  HB 402 attempts to eliminate the expungement application “process”, making it automatic for those who were wrongfully accused of a crime to seal the arrest on their record, keeping it from wrongfully affecting their job and school prospects.  HB 402 guarantees that the arrest record and disposition record automatically are sealed on any case that does not involve a conviction.  It also allows for expungement of misdemeanor convictions upon showing of a hardship caused by the criminal history.   This is a big step forward that would bring relief to many people who are being discriminated against on the basis of old criminal charges.

 And this is how it should be, right? We are presumed innocent, and we shouldn’t suffer setbacks when our case is dismissed or a jury finds us not guilty!  Not only will this make the Defendant’s life easier, it will also save on the government’s burden of processing the expungement application and not cost as many tax dollars to deal with it.

 This will be worth following in the State Legislature; please contact your local State Representative if you want to see the change.  You can be sure that we will let you know if the law changes in your favor!