212 (2001) (grantee of parol license who makes improvements or invests capital in consequence of it becomes a purchaser for value).
Dunning, 213 Ga.
695 (446 SE2d 199) (1994) (whole court) (a promise to terminate the controversy or litigation is a necessary implication to an "offer to settle").
B) Significant Appeals Litigated, Briefed & Argued: 1.
Bench Trials: Certain judges in Fulton superior court would order the State to proceed with a bench over the State's objection that a jury should be empanelled.
This unlawful practice started in routine drug cases but was quickly extended to murder charges; and at least twice to death penalty cases.
In both Howard v.
Lane, 276 Ga.
688 (581 SE2d 1) (2003) and State v.
Martin, 278 Ga.
418 (603 SE2d 249) (2004) I attempted (unsuccessfully) to get the Georgia Supreme Court to rule definitively on whether Georgia follows the common-law rule that, in order for a defendant's waiver of a jury to be effective, the resultant bench trial must be consented to by the government's counsel, as well as by the trial court.
See Patton v.
United States, 281 U.
276, 312 (1930).
Both times, the Court studiously avoided answering the question and dismissed the State's appeal concluding that the question presented was not one of the limited grounds for which the Legislature authorized the State to appeal under OCGA § 5-7-1 (a).
Only Justice Carley expressed an opinion on the merits, agreeing with my analysis that the common law rule is also the Georgia rule but concluding that the State was not permitted to appeal even the erroneous denial of a jury trial.
The General Assembly subsequently adopted Justice Carley's suggestion that the State be permitted to appeal the grant of a new trial and the denial of a motion to recuse a trial judge.
Then in State v.
Zigan et al., in Baker Superior Court, the Hon.
Wallace Cato denied those defendants a bench trial expressly because the State objected.
Defendants appealed that denial pre-trial.
Former Court of Appeals Chief Judge Marion T.
and myself were made special assistants.
I briefed the case and Judge Pope argued it in the Georgia Supreme Court.
We no longer were hindered by the procedural obstacles of an appeal by the State in a criminal case.
The Supreme Court agreed with our analysis and held that, in order for a defendant's waiver of a jury to be effective, the resultant bench trial must be consented to by the government's counsel, as well as by the trial court.
State, 281 Ga.
415 (638 SE2d 322) (2006).
Police Officer's Murder: Terry Jackson v.
State, 279 Ga.
449 (614 SE2d 781) (2005).
This was the successful 2002 prosecution for the 1975 murder of Atlanta police detective Sam Guy, 27 years after his death.
The significant issue was the delay (24 years) in indicting the case in 1999, despite probable cause to arrest this defendant as early as 1982.
The test for pre-indictment delay is different from post-indictment Constitutional Speedy Trial analysis and there is not much Georgia law on the subject.
Update Georgia Law re Invocation of Miranda Rights: Perez v.
State, 283 Ga.
196 (657 SE2d 846) (2008) (overruling Georgia precedent that had imposed a "clarification" rule on investigating officers to address an ambiguous statement regarding assertion of right to silence, to bring Georgia in line with modern rule rejecting such "clarification" requirement).
The Panty Hose Rapist's Convictions Reinstated: The jury found Ali Nejad guilty of rape, aggravated sodomy, aggravated assault with a deadly weapon (two counts), and aggravated battery (two counts).
His motion for new trial was denied after an evidentiary hearing.
The Court of Appeals reversed on two grounds: because trial counsel provided ineffective assistance when he refused to allow Nejad to testify and did not inform Nejad that he had a right to do so; and because the trial court charged the jury that a pellet gun was a per se deadly weapon.
State, 296 Ga.
163 (674 SE2d 60) (2009).
On certiorari, the Supreme Court reversed on both grounds because the Court of Appeals failed to abide by the proper standard of review regarding ineffective assistance; and failed to follow applicable precedent regarding the jury instruction State v.
04/2001 to Current
Attorney Senior Assistant District AttorneyFulton County District
STATE'S MEMORANDUM OPPOSING JURY INSTRUCTIONS OR CLOSING ARGUMENT REGARDING MANDATORY MINIMUM SENTENCES There is a motion in circulation from the defense bar requesting permission to inform the jury of any mandatory minimum sentences to be imposed upon a guilty verdict.
Some judges have taken to charging the jury that, if they return a guilty verdict, the defendant must be sentenced to a mandatory minimum sentence.
Such practice is contrary to Supreme Court precedents and the Pattern Jury Instructions.
The motion relies on two decisions by US District Court judges: United State v.
Datcher, 830 FSupp 411 (MDTenn 1993) and United States v.
Polizzi, 549 FSupp2d 308 (EDNY 2008).
While the Datcher decision supports defendant's argument, the district court holding in Datcher was subsequently rejected by the Sixth Circuit court of Appeals in United States v.
Chesney, 86 F3d 564, 574 (6th Cir.
1996) as "contrary to Supreme Court pronouncements on this issue." Similarly, United States v.
Polizzi, supra, was reversed by the United States Court of Appeals.
See 564 F3d 142 (2d Cir.
The Supreme Court of the United States has stated that, unless juries have roles in sentencing, such as in capital sentencing proceedings, juries should be instructed not to consider defendants' possible sentences during deliberations.
It is well established that when a jury has no sentencing function, it should be admonished to 'reach its verdict without regard to what sentence might be imposed.'" Shannon v.
United States, 512 U.S.
573, 579 (II) (114 SC 2419; 129 LE2d 459) (1994) (quoting Rogers v.
United States, 422 U.S.
35, 40, 45 LE2d 1, 95 SC 2091 (1975)).
The Shannon Court went on to note that jurors generally are not informed of mandatory minimum or maximum sentences or instructed on probation, parole, and sentencing ranges for lesser included offenses.
The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury.
The jury's function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged.
The judge, by contrast, imposes sentence on the defendant after the jury has arrived at a guilty verdict.
Information regarding the consequences of a verdict is therefore irrelevant to the jury's task.
Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion.
Shannon, supra, 512 U.S.
at 579 (II).
See also United States v.
Thigpen, 4 F3d 1573, 1578 n.3 (11th Cir.
1993) (en banc), (courts have 'no duty' to inform juries of the consequences of their verdicts absent statutory requirements); United States v.
Chesney, 86 F3d 564, 574 (V) (6th Cir.
Georgia law [formerly] provided that: '(In felony cases tried by a jury,) (t)he jury.
shall fix a sentence within the limits prescribed by law.
The judge shall impose the sentence fixed by the jury.
as provided by law.' Ga.
Laws 1973, pp.
159, 162." Spivey v.
State, 253 Ga.
187, 192 (5) (319 SE2d 420) (1984).
The law was subsequently changed to eliminate jury sentencing in all but death penalty cases.
Laws 1974, pp.
352, 357." Id.
Thus, "It [is] not error for the trial court to refuse to instruct the jury, as requested by [defendant], that consecutive life sentences require that a defendant serve a specified minimum of time for each consecutive count.
In this state, the jury does not determine the manner in which life sentences are served." Henry v.
State, 265 Ga.
732, 741 (10) (b) (462 SE2d 737) (1995).
The Georgia Supreme Court has "already concluded that it is not error for the trial court to keep from the jury truthful information regarding mandatory minimum periods of imprisonment before a defendant is eligible for parole[.]" Philpot v.
State, 268 Ga.
168, 170 (2) (1997).
In the Pattern Jury Instructions, 1.70.20 Sentencing; Responsibility for, the jury is admonished: You are only concerned with the guilt or innocence of the defendant.
You are not to concern yourselves with punishment.
Since juries should be instructed not to consider defendants' possible sentences during deliberations, the State submits that the jury should not be informed by counsel or instructed by the court as to any mandatory minimum sentence if a guilty verdict were returned.
01/1989 to 04/2001
Law AssistantGeorgia Court of Appeals
Senior counsel to several different judges on the nation's busiest appellate court.
Examine trial records for alleged judicial error, research applicable law.
1,000 published opinions.
Edit work of other appellate attorneys.
Review other judges' proposed opinions; draft any special concurrence or dissent as appropriate.
Collected and published standards of appellate review for civil and criminal issues.
11/1986 to 12/1988
Hon. Curtis V. Tillman Law Clerk
Elbow clerk to Chief Judge of the Stone Mountain Judicial Circuit in suburban Atlanta.
Research/draft orders; edit jury charge requests.
08/1984 to 05/1985
Research AssistantDean Paul L. Verkuil
Research administrative/due process issues for then-Dean of Tulane Law School while a student at Tulane Law School.
Pastor, Catholic Shrine of the Immaculate Conception
A) Significant Rulings: Attorney General Has Public Duty to Enforce the Law: In 1987, I wrote DeKalb Chief Judge Curtis V.
Tillman's order granting the Georgia Attorney General a Writ of Prohibition.
This was directed against the State Bar of Georgia to halt disciplinary proceedings brought on the theory that the AG breached an ethical duty to a state agency (a statutory client) by bringing an enforcement action against that agency under the Open Meetings Act.
Judge Tillman ruled that the AG, as an elected constitutional officer, has a public duty that prevails over the ordinary ethical standards applicable to private lawyers.
The Supreme Court agreed and adopted this position in amending former Standard 69 and promulgating former Standard 70 on the duties of public lawyers.
Under the [former] Disciplinary Standards of the State Bar of Georgia, the term 'client' does not include a public agency when represented by a full-time public official, such as the Attorney General.
Nothing in the [former] Code of Professional Responsibility prohibits a full-time public lawyer, representing this State or its agencies, from taking a position adverse to the State, its agencies or officials, when such action is authorized or required by the Constitution or statutes of this State." Warren v.
of Regents of the Univ.
Sys., 247 Ga.
758, 762 (3) (2001).
B) Court of Appeals Opinions Drafted: 1.
Signet Bank/Virginia v.
Tillis, 196 Ga.
433 (1990) (Virginia's lack of personal jurisdiction over non-resident defendant precluded Georgia court from giving Full Faith & Credit to Virginia default judgment); 2.
Bank South, N.A.
Roswell Jeep Eagle, Inc., 204 Ga.
432 (1992) (UCC/OCGA § 11-4-302 (a): where a demand item is also a documentary draft, payor bank need not comply with midnight deadline for other demand items); 3.
Garden Way, Inc., 231 Ga.
723 (1998) (Georgia public policy does not permit confidentiality provision in settlement agreement to foreclose others from obtaining discovery of relevant non-privileged evidence); 4.
of Regents of the Univ.
of Ga., 247 Ga.
758 (2001) (plaintiffs lacked standing to sue charitable educational trust, either as donors or possible beneficiaries); Marc A.
J.D: lawTULANE University Law School AMHERST College － New Orleans Amherst, New York Louisiana Massachusettslaw Case note submitted to Tulane Law Review Competition
Moot Court National Appellate Competition
Moot Court Client Counseling Competition
B.A: Political Science EconomicsGPA: cum laudecum laude Political Science Economics
This is to certify that I have served the foregoing State's Memorandum re Mandatory Minimum Sentences on James Robert King by EMAILING the same to counsel of record: Jessica Seares, Esq. email@example.com firstname.lastname@example.org Courtesy copy: Judge Russell This the ___ day of _________, 2015. s:/ Marc A. Mallon 11
PAUL L. HOWARD, Jr. DISTRICT ATTORNEY ATLANTA JUDICIAL CIRCUIT GEORGIA STATE BAR NO. 371088 By /s:/ Marc A. Mallon MARC A. MALLON SR. ADA/APPEALS GEORGIA STATE BAR NO. 467735
RESPECTFULLY SUBMITTED PAUL L. HOWARD, Jr. DISTRICT ATTORNEY ATLANTA JUDICIAL CIRCUIT GEORGIA STATE BAR NO. 371088 By /s:/ Marc A. Mallon MARC A. MALLON SR. ADA/APPEALS GEORGIA STATE BAR NO. 467735 CERTIFICATE OF SERVICE This is to certify that I have served the foregoing State's Memorandum re Mandatory Minimum Sentences on James Robert King by EMAILING the same to counsel of record: Jessica Seares, Esq. email@example.com firstname.lastname@example.org Courtesy copy: Judge Russell This the ___ day of _________, 2015. s:/ Marc A. Mallon 11