Nov. 18, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Fault Lines contributor Andrew Fleischman, an appellate advocate with the Georgia Public Defender Council.
Q. You graduated from Georgia State Law School in 2011, not exactly the best time in the history of law to find gainful employment in the profession. But you started as an intern with the Atlanta Municipal Public Defender’s Office. Was that where you wanted to be? Any dreams of lawyer riches, or did you see yourself more as Atticus Finch in the pre-racist days?
A. I had no idea that I wanted to be a public defender until I started interning with the Atlanta Municipal Public Defenders. Honestly, I thought I wanted to be in bankruptcy (2011 was, at least, a boom year for that). When I got there, I was astounded. I had always assumed that there was a presumption of innocence. But people who couldn’t make bail were routinely being warehoused for months if they insisted on a trial, sometimes past the maximum sentence if they had pleaded guilty. It was infuriating.
What clinched it for me was Sunday calendars. For “budget reasons,” judges were holding court only three days a week. Many of the people who were heard on Sunday had been held for longer than 48 hours without a probable cause hearing. When I brought up that it was constitutionally mandatory that these people get released, I was ignored. And I didn’t know enough to take it to a higher court (plus, I didn’t have a bar license). I fought like hell about it. I filed briefs and motions. I still lost. Given a choice between what was right and what was convenient, the system didn’t even struggle.
Then, I had a fluke win. Atlanta’s indecent exposure ordinance had a comma in the wrong place. Under the “last antecedent” rule, the ordinance could be applied only to women. I litigated the issue, and for a few months, the ordinance wasn’t enforced. It made me feel like a real lawyer–as though, if I just paid enough attention, and worked hard enough, I could have an impact on the law.
Being a public defender meant that I could fight hard for a client who, in a private setting, could never afford to pay me to put in the work. I fell in love with the job.
Q. After graduating, you went to work for an Atlanta firm, Head, Thomas, Webb & Willis, which specialized in drunk driving. Why? Did you have enough of saving the downtrodden, or did you want something new? What was it like going from a public defender’s office to being a private lawyer?
A. Unfortunately, though I spent a lot of time interning with the Atlanta Municipal Public Defenders, they weren’t able to offer me a position when I graduated law school. There were hiring freezes throughout the state. So I lucked into a position with a private DUI firm.
Candidly, I probably sucked at it. I really enjoyed litigating a case, but I hated chasing people down for money. Also, private, educated clients tend to have wildly unrealistic expectations about how prosecutors are going to treat them. By contrast, the clients I’d had at the Atlanta Municipal Court were often grateful just to see someone go up and argue with a little fire in his belly. They’d been screwed over before, so they understood that getting any kind of due process at all was its own kind of victory.
Also, I’ve never been much good at negotiating with prosecutors. In one early case, a prosecutor promised my client a particular deal. I accepted. When a different prosecutor tried to renege, I brought a pile of caselaw and said that he was bound by the offer I’d accepted. That prosecutor was so affronted that he contacted my boss to complain. I ended up getting the deal, but only after a protracted process. It taught me a valuable lesson– for most prosecutors, you need to sell the client during plea negotiations. It’s only at court that you sell the law.
Q. When you went private, you turned to doing appeals. Was that something you wanted to do, or did you get stuck doing them as the newest hire? How hard was it to transition from trial guy to law guy? Was that what you wanted to do? How did it turn out?
A. I totally stumbled into doing appeals. There was a brief due to the Supreme Court of Georgia in my first couple of weeks with the DUI firm. My boss had me do it. I agonized over that brief. I’d never considered myself to be a very strong legal writer. When I turned in the finished product, glowing with pride, my boss said it was crap. But it was the day that it was due, and he didn’t have much time to make changes. We ended up winning, and I got assigned to do a lot of the other appeals for the firm.
Some of the issues were fascinating. We fought constantly about whether Georgia could keep the workings of its breathalyzer machine secret, without a meaningful opportunity for defense counsel to ask how it operated. We ended up taking a case all the way to Kentucky, where I learned the dangers of litigating a case in a courthouse named after opposing counsel’s father.
Ultimately, it wasn’t much of a transition becoming an appellate guy. The Atlanta court had a rule that allowed prosecutors to send the case to a higher court on the day of trial–which they would use liberally whenever they weren’t prepared. The biggest shift was that, instead of helping just one client, I had an opportunity to help whole groups of people. Even when my arguments got shot down or ignored, I found I had a drive to do the work.
Q. You left the firm to work for the Paulding County public defender. This wasn’t Atlanta anymore, though no doubt Paulding County is pretty much like New York or Los Angeles, but without the people, culture or, well, anything. We hear terrible things about such places up north, but are they true? What was it like practicing public defense in Paulding? It’s not far from Atlanta, so was it more cosmopolitan than those other places we hear about?
A. Paulding County is a bizarre fluke county where the Public Defender’s Office won 85% of their trials. In my first year there, we lost only two trials, and both of those convictions were reversed on appeal. The judges were unbelievably kind, knowledgeable, and patient. The juries seemed to take reasonable doubt seriously.
It seemed like everything else about the way that county worked existed to make sure that the prosecution’s worst impulses were kept in check. When the State managed to convict a woman for murder despite strong evidence of actual innocence, a trial judge courageously stepped in, six months later, and reversed her conviction. He said he did not think there was even a 51% chance that she committed the crime. I got to watch that woman, who had given birth in prison, hold her baby for the very first time. It was the single best moment of my life. [And to make this even sweeter, between cross and posting, the Supreme Court of Georgia affirmed the decision.]
Q. By now, you were firmly established as an appellate lawyer, but you spent your time in the trenches before reaching that lofty height. You tried two cases (and went 2-0, which isn’t too shabby). Did you love it? For many criminal defense lawyers, there’s nothing better than trying cases. What did you get out of it? What was your favorite memory of your days as the trial guy?
A. Well, I only stumbled into trying cases. I had not tried a single case when I went to Paulding–I was supposed to be a purely appellate lawyer. But the day of trial, a woman in our office quit. Just showed up for jury selection and quit. On such short notice, I got all of her cases. This was fairly hellish, since my first calendar call, where I had to calm down 40 or so of her former clients, was the same day as the Snowpocalypse (when Atlanta completely shut down in the face of two inches of snow).
The trial court judge gave me a week and a half to prepare for the trial, which dealt with a robbery. My client’s brother said he acted alone in robbing a convenience store, but the State claimed that he had been driven by my client, and had a video supporting that story.
But the State just kept making mistakes. They had trouble certifying their witness as an expert (they weren’t familiar with Georgia’s lax rules), and their presentation of evidence was a little disjointed. They claimed my client was responsible for another robbery a few days earlier, but the store clerk said he was 110% sure that my client hadn’t been the one to rob him, and the State had done no investigation of the man that the clerk did identify in the lineup.
It was a nerve-wracking trial, because my client faced a mandatory 20 years if convicted, and he turned down an offer of two years mid-trial.
After my client got acquitted, the jury asked me for my business card. I had the satisfaction of telling them that I was free, and that no, it was not the prosecutor’s first trial.
Q. You’re now back in Atlanta with the Georgia Public Defender Council, and it looks like you have dedicated yourself to criminal appeals. That can be a pretty depressing gig, given that the likelihood of winning on appeal isn’t nearly as good as being hit by lightning. Why did you decide to stick with appeals? Ever get the sense that you’re just banging your head against the wall?
A. Appeals are ridiculously fun. It never feels hopeless. I’m supposed to lose. Courts are going to do everything in their power to make sure the conviction sticks unless you can tell your client’s story in a way that makes a new trial palatable. That’s the part of the job I love.
But if you can do that, if you can tell your client’s story in a way where the judge can imagine walking in her shoes, then you can get great results.
Also, I’ve been very lucky with my appeals so far. I’ve stumbled into a lot of winnable cases, or cases where, once I’ve studied the record enough, something worth arguing pops up. Georgia’s appellate win rate is around 5%. As long as I can stay ahead of that, I feel like my work is worthwhile.
Q. Most appellate lawyer get that one case with the big issue, the one that can change the law and impact thousands of people. Did you get that case? What was it, and how did it turn out?
A. I can’t say I’ve had an appellate win that has had huge ramifications throughout the State. Probably my most meaningful win was for a client who was charged with the drowning death of her grandchild and her friend because she left them to play in another room while she was on the phone.
In Georgia, it is almost impossible to sue someone for parental negligence. If a day-care center messes up watching your child, there’s a ton of precedent that says they’re not liable. But here, the State was going after this gentle, older lady, who suffered from diabetes and whose family described her as an excellent caretaker.
I was shocked when the jury convicted her. But taking the issue up on appeal, and watching the prosecutor try to justify his decision to charge her to seven Supreme Court of Georgia justices, was deeply satisfying. Even better was seeing her conviction get reversed six months later.
I’m still hunting my white whale, though.
Q. On the flip side, appellate lawyers are often the most frustrated, knowing the law, knowing they have the goods, and then watching as the case dies with an appellate panel that isn’t going to rule your way no matter what you say. Has this happened to you? Did you do anything about it? Can you? Have you ever had the urge to say, “I don’t give a damn if it pleases this honorable court or not”?
A. I’ve honestly never felt that way. My expectations of the justice system are very low. I’m pleasantly surprised if an appellate court just addresses all of my arguments.
And when a court blows off my appeal with an opinion that I don’t think is well-reasoned, I try to learn from it. Maybe I’m not good enough yet, but maybe a day will come when I can write well enough that a judge will want to learn more about my case, about what I’m arguing. That hope for improvement is what keeps me going even when things are frustrating.
Q. Among the problems I’ve often heard from appellate lawyers is that the trial lawyer failed to preserve a great issue or took some tactical position that was just woefully ignorant of the law. Have you come across that? What are trial lawyers doing wrong? What do they need to do to improve? And what about the trade-off of winning at trial versus preserving an argument to win on appeal?
A. You are describing my entire job. The most frustrating phrase I ever hear is, “I’m a trial lawyer, not an appellate lawyer.”
Every lawyer who has ever lost a case is an appellate lawyer.
When a lawyer fails to object, it’s usually because they’re either ignorant of the law, fearful of the judge, or caught in one of our state’s many nefarious appellate traps designed to prevent appeals from being heard.
I can forgive the third one, but I feel that many lawyers improperly balance the risks of objection. You can always avoid prejudicing the jury with a motion in limine. Or, if your judge allows speaking objections, you can always talk about the common-sense reasons for a rule when making your objections.
I think it can be a mistake for a lawyer to just say, “Objection, hearsay,” when they could say, “Objection, hearsay, the State hasn’t given us a chance to talk to that witness.” Or “Objection, leading,” when you could say “Opposing counsel is testifying, and it’s their witness we’re hoping to hear from.” The rules of evidence seem a lot more sympathetic, and a lot less technical, when people are aware of the common-sense reason why courts have developed them.
As for legal ignorance, it infuriates me. I once had a lawyer testify that he doesn’t bother to memorize the rules of evidence, because he has a book. No. Just no. Your job is to fight for your client, ferociously and well. You can’t do that if you’re flipping through a book. You’ve brought safety scissors to a gunfight.
Q. Your writing is usually cerebral and well-researched, often steeped in both a cutting edge story and a deep dip in the caselaw pool as well. What are you trying to do here, spreading the gospel of law when people just want the juicy part of an ugly law story? Do you feel a duty to try and help people to understand the law, or is that just what happens with law guys? Can you write interesting, readable stuff, and still make sure you get the nuance of the law right?
A. I hope that I get the nuance of the law right. There’s always room for improvement, and I’m always trying to get better.
My goal, writing here, is to get people who don’t already agree with me to have the same epiphany I had when I was a scared third year law student arguing in front of a big scary judge. We don’t have the fairest justice system in the world. It does not slant in favor of the defendant. It favors, at every angle, and in every way, the victory of the State.
And so we can’t fall back on reasonable doubt as the panacea that cures all the problems we hear about. We have to struggle, constantly, for real justice. That means a system that convicts the guilty and acquits the arguably innocent, and doesn’t punish more harshly for seeking due process than for committing the crime.
We’re not there yet. We’re not even close. But if we can just keep talking about this, maybe we’ll start moving in the right direction.