Court-Watching on March 6, 2019, at the Atlanta Municipal Court

At the Southern Center for Human Rights, we’ve used court-watching as a tool for a long time. Court-watching was central to the litigation and advocacy that led to the creation of a Public Defender system in Georgia; it’s been central to our strategy in combating illegal practices by private probation companies, and it’s always helping us to uncover the rare and appalling corruption of city and court officials who are attempting to turn a profit off of the backs of poor people. We think that these stories matter.

Today, we’re launching our first court-watching summary. The below observations are from a staff investigator who watched court at the Atlanta Municipal Court on March 6th, 2019. The experiences of these defendants reflects what happens in Municipal Courts across the state on a daily basis: the imposition of many days in jail on poor, homeless, and/or mentally ill individuals who are charged with misdemeanors or ordinance violations.

A 56-year-old Black man was charged with Pedestrian Walking in Roadway. An officer rolled him into court in a wheelchair, where he was slumped, with his eyes mostly closed.

The assistant solicitor read some of the defendant’s prior charges: Pedestrian Soliciting in Roadway, with a Failure to Appear from 2014; another Pedestrian Soliciting in the Roadway charge from 2018. The public defender (PD) asked Judge Sloan to quash all three citations. She cited a Georgia Court of Appeals case, Strickland v. State, and argued that the citations were defective because they didn’t state the essential elements of the charged offenses. Judge Sloan gave the solicitor time to prepare a response as other defendants came before the judge. At the end of court, the defendant was brought back in front of Judge Sloan. The PD requested time served, because the defendant was indigent and the charges were non-violent, quality of life charges. The PD asked for leniency, as the defendant was “merely walking.” The solicitor recommended 30 days to serve in jail.  Judge Sloan sentenced the defendant to 20 days in jail on each count, to run concurrently.

A 32-year-old Black woman was charged with Begging/Soliciting by Accosting/Force. According to the arrest report, the defendant was homeless.

The assistant solicitor announced the defendant’s prior charge of Solicitation of Money within 15 feet of a business. Other prior convictions included Violating Rules at Passenger Train Station (she hadn’t paid a MARTA fare); Solicitation for Money on Train; Solicitation and Possession of Marijuana; and Failures to Appear for walking in between train cars. The defendant told Judge Sloan she did not want an attorney. The Judge told the woman that these charges could cost her $6,000, 3 years to serve in jail, or both. The defendant seemed confused. She said that she thought she had already served time for the charges that the Judge was reading, and became distressed, trying to inform the court that she had already served the time, and looked around the room in an attempt to find the public defender who had previously represented her. The public defender was not in the room, and the Judge did not respond. As the Judge read each of the charges, the defendant kept repeating “nolo” rapidly, cutting into each charge before it was finished being read. Her behavior seemed likely to be caused by a mental illness. Throughout the process, the defendant was bouncing up and down on her toes. Judge Sloan sentenced her to 10 days in jail.

A 49-year-old Latinx man was charged with driving without a license.

The public defender (PD) announced that this was the defendant’s second license charge in 5 years. The PD asked Judge Sloan to accept a negotiated nolo contendere plea (a plea by which a defendant accepts conviction as though a guilty plea had been entered, but does not admit guilt) so that he could be released from jail. As he pled nolo, he seemed to be relying on the PD’s prompting to answer questions. The PD told Judge Sloan (paraphrasing) that the standard sentence was $1,000 or 10 days to serve Judge Sloan said that he would impose a $1,000 fine and a 10 day jail sentence. He said he would suspend the fine, so the defendant can serve out the remainder of this 10 days. There was no inquiry into the defendant’s ability to afford a fine.

A 40-year-old Black man was charged with Walking Upon Control Access Highway. The defendant likely had a mental illness that appeared to make it difficult for him to understand what was happening in the courtroom.

As the defendant stepped up to the podium, the bailiff tried to help him pull up his pants, which were falling down. The defendant began working on untying a belt or rope that was tied around his pants, which preoccupied him throughout the time that Judge Sloan was speaking to him. A public defender entered a negotiated guilty plea, and the solicitor recommended 5 days in jail. The Judge asked the defendant if he was aware of each of his rights, and he responded “yeah, yeah,” while continuing to fiddle with his pants. When the Judge asked how he wanted to plea, he said, again, “yeah, yeah.” The Judge changed his tone and asked: “do you plead guilty?” The defendant seemed startled and stopped fidgeting with his pants. He replied, in a surprised tone, “oh, ok!” The Judge sentenced him to 5 days in jail. The defendant, again seeming surprised, said “oh, ok!” He left the court-room still trying to tie up his pants.

Every Defendant Deserves a Trial Free of Race Discrimination

In September of 2017, Keith “Bo” Tharpe came within hours of execution; the Supreme Court granted a stay at the 11th hour. This week, the same Court announced that it would not be re-examining the 11th Circuit Court of Appeals’ decision to deny Mr. Tharpe the ability to appeal his death sentence. No state or federal court has yet to consider whether Mr. Tharpe’s death sentence is invalid due to one of his juror’s openly racist views

Mr. Tharpe, now 61, was convicted of murder and sentenced to death in Jones County, Georgia, in 1991. His trial — like so many others — was tainted by race discrimination. Racial bias can, and often does, infect a case early on in what are called “peremptory strikes.” In the jury selection process (called “voir dire”) potential jurors are questioned, and both prosecutors and defense attorneys are permitted a certain number of strikes, where they can block potential jurors from serving. While it’s unconstitutional to strike a potential juror on the basis of their race, coming up with race-neutral excuses is a strategy often employed – successfully –  by prosecutors. The Jury Sunshine Project found that prosecutors strike roughly 20% of available Black jurors in the pool, compared with only 10% of whites. In many communities, those numbers are much more extreme. According to the Equal Justice Initiative, Houston County, Alabama prosecutors have struck 8 out of 10 qualified Black potential jurors in death penalty cases. Studies have consistently shown that all-white juries are considerably harsher towards black defendants, are prone to making more errors, and less likely to discuss all of the case facts.

Joseph Briley, the prosecutor who secured Mr. Tharpe’s capital conviction, had earned a reputation for his use of peremptory strikes in jury selection. In 1988, Southern Center client Tony Amadeo’s conviction and death sentence were overturned in a unanimous opinion by the Supreme Court, after the court found that Briley and Putnam County, Georgia officials illegally kept Black residents out of the pool of potential jurors. In Mr. Tharpe’s case, Briley struck five out of eight black potential jurors. A white man named Barnie Gattie was selected to serve on the jury. Seven years after Mr. Tharpe’s conviction, his lawyers interviewed Gattie, and the evidence of his deep-rooted racial animus became clear.

In a sworn affidavit, Gattie said “after studying the Bible, I have wondered if black people even have souls. For example, look at OJ Simpson. That white woman wouldn’t have been killed if she hadn’t have married that black man.” Gattie further testified that the murder victim, who was also Black, came from a family of “nice black folks. “… If they had been the type Tharpe is, then picking between life and death for Tharpe wouldn’t have mattered so much,” Gattie said. “My feeling is, what would be the difference?”

Black people have been and still are systematically barred from serving on juries. This was the case for Southern Center client Johnny Lee Gates, who was wrongfully convicted of murder by an all-white jury after all potential black jurors were excluded. This was also the case for former Southern Center client Timothy Foster, whose conviction and death sentence were overturned by the Supreme Court in 2016. The court found racial bias during the selection of the all-white jury that decided Mr. Foster’s fate, bolstered by the prosecution’s own color-coded notes describing their efforts to keep Black people off the jury.

In light of Timothy Foster’s win at the Supreme Court, the court remanded the case of Curtis Flowers, a black Mississippi man who has been tried six times for the same crime, and argues that his conviction and death sentence should be thrown out due to his prosecutor’s history of excluding black jurors. The Mississippi courts denied relief again. On Wednesday, the Supreme Court heard Mr. Flowers’ case.

Black people are frequently sentenced to death for murdering white people, but white people are seldom sentenced to death for murdering black people. The death penalty as we know it today is a direct scion of racial violence in America, primarily in the South.

Read more about Keith Tharpe.

Read more about Curtis Flowers.

Read more about Johnny Lee Gates.

We Think These Stories Are Important

In 2006, the United States recorded a record high number of newly filed, reopened, or reactivated cases: across the nation’s state courts, a staggering total of 102.4 million cases. More than half of those — 54% — fell under the traffic category, which captures non-criminal traffic and local ordinance violations. 10 years later, in Georgia, an even higher percentage (65%) of all cases handled by the state were these same traffic and ordinance violations.

These might not seem like serious, life-altering cases — but in many instances, they can be. Traffic and ordinance violations are how the majority of Americans first encounter the courts, and for people experiencing poverty, it’s how they often become trapped in the system. These encounters with the courts are how public trust and confidence is shaped. They are critically important.

At the Southern Center for Human Rights, we’ve used court-watching as a tool for a long time. Court-watching was central to the litigation and advocacy that led to the creation of a Public Defender system in Georgia; it’s been central to our strategy in combating illegal practices by private probation companies, and it’s always helping us to uncover the rare and appalling corruption of city and court officials who are attempting to turn a profit off of the backs of poor people.

Now, we’re launching a new project on the blog: bi-monthly summaries of our staff’s experiences watching Municipal Courts across Georgia. Seemingly banal interactions in these courts have long-lasting, corrosive effects on individuals, families, and communities. We think that these stories are important, and we hope you do, too. We’ll share the first #CourtWatchGA post next Wednesday.

Civil Rights Lawsuit Challenges the Illegal Mass Arrest of 60+ Partygoers for Less Than an Ounce of Marijuana in Cartersville, Georgia

Today, the Southern Center for Human Rights and the Merchant Law Firm, PC are filing suit against the City of Cartersville, Georgia, and select employees of the Cartersville Police Department, Bartow-Cartersville Drug Task Force, and Bartow County Sheriff’s Office on behalf of seven plaintiffs and other putative class members. The suit challenges the mass detention, search, and arrest of over sixty students, college graduates, and military servicemen attending a birthday party at a private residence in Cartersville, Georgia, on December 30th, 2017. Plaintiffs seek damages and declaratory relief on behalf of a class of all visitors who were detained, arrested, and charged with crimes that were dismissed just 12 days later.

In the early hours of December 31st, Cartersville Police Officers were dispatched to an apartment complex near the private residence after reports of gunshots (which they found no evidence of). Despite their car windows being up, officers claimed to have somehow smelled marijuana as they grew closer to the residence. Bolstered by a city policy that allows warrantless home entry on the mere basis of purported marijuana odors, officers entered the private residence without consent, a warrant, or probable cause.

Once inside, the officers found less than an ounce of marijuana. Though the officers could not tie the marijuana to any of the partygoers, they detained and searched everyone at the party. These searches yielded no drugs or contraband, but an officer announced that everyone was going to jail anyway. In total, sixty-four putative class members were arrested and taken to the Bartow County Jail for allegedly possessing less than an ounce of marijuana. Of those 64, 50 were African-American, 10 were white, 3 were Latino, and 1 Native American.

“Cartersville and Bartow County officers swarmed a predominantly black and brown house party, and arrested everyone because of a small amount of marijuana.  This mass arrest wasted taxpayer dollars and undermined the public’s faith in unbiased policing,” said SCHR Senior Staff Attorney Atteeyah Hollie.

Upon arriving at the jail, everyone – including some persons as young as 17 — were stripped-searched in front of multiple officers, and placed in crowded and freezing cold holding tanks, where they stayed for 1-3 days without access to phones, the courts, or counsel. Some were placed in solitary confinement when they complained about their treatment. The solitary cells were so cold that some people wrapped toilet paper around their appendages, or exercised in place to stay warm. One person who experiences seizures informed a jail nurse of her condition, but did not receive her anti-seizure medication until the third day of her detention. A pregnant woman was denied prenatal pills and received no care when she vomited repeatedly in a holding cell garbage can. A diabetic received a dosage of insulin that exacerbated his condition.

“It’s a different type of hurt when you get arrested for something you didn’t do,” plaintiff Nija Guider told The Appeal. Guider lost her job as a result of the arrest, and had to resort to food pantries to feed her young son while she spent two and a half months looking for a new job.

Nija Guider and her son.

“Imagine being arrested simply for attending a party,” said SCHR Staff Attorney Ebony Brown. “Then, imagine being subjected to a dehumanizing strip-search in front of multiple people, and forced into a crowded, freezing cage for days on end, away from your loved ones, your children, and your source of income. It is anything but inconsequential.”

Twelve days after the arrests, the Bartow County District Attorney dismissed the charges.  The arrests had already been highly publicized — mugshots were available online — and multiple people lost jobs or had to take drug tests to keep them. Others had potential scholarships affected, military enlistment deferred, and suffered public ridicule, online harassment, and humiliation.  Many partygoers had never been arrested before. Some plaintiffs report that they are now fearful, and no longer trust, law enforcement because of this incident.

“Police should know better than this. These arrests went well beyond sloppy police work; they were unconstitutional.  They arrested everybody at a party, literally everyone, without regard to proximity and without even posing questions to individuals,” said SCHR Senior Attorney Gerry Weber.

Read the complaint here.

When a Lawyer’s Conflict Can Be Fatal

“A deeply troubling truth about the death penalty is that it is often handed down not to people who commit the worst crimes, but on those assigned the worst lawyer to represent them.” – Steve Bright, Former President of the Southern Center for Human Rights

Southern Center for Human Rights client Nicholas (Nick) Acklin’s case is now up for review at the United States Supreme Court. His story serves as a clear and tragic reminder that bad or conflicted lawyering can be potentially fatal.

Nicholas Acklin.

Days after Nick was arrested, in September of 1996, his mother Velma Acklin Evans contacted a Huntsville, Alabama attorney named Behrouz Rahmati. Rahmati agreed to represent Nick, and Velma agreed to a $25,000 retainer and a fee of $150 per hour. When it became clear that she would not be able to afford the costs, Rahmati contacted Nick’s father, Theodis Acklin, for help. Theodis became the attorney’s primary source of funds.

Just two days before Nick went to trial, Velma met with Rahmati alone. She shared with him that Theodis had routinely abused her and their children; they endured frequent beatings, emotional abuse, and threats at gunpoint. In one such incident, she fell out of a second-story window while fighting with Theodis over a rifle.

Years later, all of this abuse was corroborated. Nick’s brother testified that his father would come into a room when the siblings were all together, strike them with a belt, and “have the gun in hand and tell us he will kill all of us and kill himself.” This abuse was confirmed by the Alabama Department of Human Resources, which had investigated an incident in which Theodis had admitted to pulling a gun on his sons and stating, “I brought you into the world and I can take you out.”

Nick Acklin as a child.

Rahmati was aware of how powerfully persuasive mitigating evidence can be to both juries and judges. He was aware that the evidence of Theodis’s abuse could mean the difference between life and death for his client. But when Rahmati asked Theodis if he would be willing to testify in court about this abuse, Theodis angrily refused. “You tell Nick if he wants to go down this road, I’m done with him” and “done with helping with this case,” he told Rahmati.

Because Theodis was the only person paying him, Rahmati acquiesced. He did not investigate the matter any further. He did not ask the court for a continuance. And, crucially, he did not inform the court or his client about the conflict. What he did do, within just 36 hours of learning about the abuse, was to sit Nick down and have him sign a document stating that he did not want the evidence of abuse presented at trial.

This meant that instead of hearing this crucial mitigating evidence, Nick’s jury heard falsehoods. At the penalty phase, Theodis was put on the stand. He testified — falsely — to the jury that Nick was raised in a loving and safe home. He told the jury that his son sang in the church choir. He talked about taking his son to the dentist and parent-teacher conferences. If anything, he testified, he was “overprotective” of Nick. Two weeks later, at a judicial sentencing proceeding before the judge, Theodis again testified falsely, telling the judge that Nick was “raised in a Christian home” with “good values” but “somehow slipped.”

The jury voted 10-2 for death – the minimum number of votes required for a death recommendation under Alabama law.

When the judge imposed a death sentence on Nick, he expressly relied on Theodis’s testimony, specifying that Nick had not experienced physical abuse (which he had) and that he was not the product of a dysfunctional household (which he was). “Most killers are typically the products of poverty, a dysfunctional family, physical or sexual abuse and/or social deprivation,” the Court wrote. “Acklin was the product of a loving middle-class family.”

As Andrew Cohen writes for The Marshall Project, “Acklin, like all criminal defendants, had a constitutional right to an attorney who does not have an ‘actual conflict of interest.’ And there is plenty of legal precedent, as well as state and national bar association ethical rules, that reasonably label what happened between the lawyer and the client here as an ‘actual conflict.’”

In an amicus brief in support of Nick, legal ethicists say that the situation “created a textbook division of loyalties” for Rahmati. They urge the Supreme Court to accept Nick’s petition, because “[u]nder ethics norms and rules of professional responsibility applicable across every jurisdiction, Nicholas Acklin’s trial attorney labored under an acute and obvious conflict of interest that resulted in a denial of Acklin’s Sixth Amendment rights.”

What is clear is that Nick Acklin was convicted and sentenced to death based on a foundational misunderstanding of the facts on the part of both the jury and the judge. At every turn, his attorney sought to serve his own financial self-interest instead of the needs of his client. Nick, like every defendant, has a constitutional right to representation from a lawyer whose judgment is objective, and not tainted by the demands of anyone else. This critically important constitutional principle applies with even greater force in a case where a death sentence is possible.

Southern Center for Human Rights represents Nick Acklin, along with co-counsel Don Verrilli and Dahlia Mignouna.

Read more about Nick’s case here.

It’s Time to End Illegal “Pay-or-Jail” Sentences at the Atlanta Municipal Court

Today, the Southern Center for Human Rights sent a letter to Atlanta Mayor Keisha Lance Bottoms and Atlanta Municipal Court Chief Judge Christopher Portis, calling for an end to the “pay-or-jail” sentences that are regularly imposed on indigent people at the Atlanta Municipal Court.

Pay-or-jail sentences are those in which the Court requires people either to pay a set dollar amount or, if they are unable to pay, to be incarcerated in jail. A 1972 landmark federal appellate case, Frazier v Jordan — which actually originated in the Atlanta Municipal Court — found that an alternative sentencing scheme of $17 dollars or 13 days in jail was unconstitutional as applied to people who could not immediately afford to pay the fine. Despite this precedent, and despite our previous communications putting the Municipal Court on notice that the sentencing practice is illegal, it continues to occur.

In recent months, we have witnessed 68 cases in which judges have imposed a pay-or-jail sentence; these have been imposed almost exclusively on homeless or indigent individuals, and judges routinely fail to inquire into the person’s ability to pay. A few examples (full names have been redacted for privacy):

  • On January 23, 2019, LS pleaded nolo contendre to drinking a can of beer on a city sidewalk. He was given a “fine or time” sentence – either payment of a $75 fine, or 30 days in jail. Unable to pay, he served the jail sentence.
  • On November 8, 2018, MM pleaded guilty to soliciting money from patrons on a MARTA train. She was sentenced to $100 or 3 days in jail. She served the jail sentence.
  • On December 19, 2018, LD pleaded nolo contendre to being a pedestrian on a roadway. He was sentenced to $150 or 5 days in jail. He served the jail sentence.
  • On November 8, 2018, BW pleaded nolo contendre to shoplifting two packs of meat from a store. He was sentenced to $150 or 5 days in jail. He served the jail sentence.

Court documents show that these sentences are recorded as “FINE OR TIME” sentences.

“Atlanta is an outlier in the State of Georgia in its consistent imposition of so-called “fine or time” sentences on people who are homeless and destitute,” said SCHR Managing Attorney Sarah Geraghty.  “The Court violates the bedrock principle of equal protection under law when it jails people only because they don’t have money to buy their release.”

Pay-or jail sentences imposed on homeless people who clearly cannot pay are not only unconstitutional, they undermine the integrity of Atlanta’s criminal legal system. In the letter, SCHR requests that the city provide written assurance, by March 20, that the Court has issued a standing order or policy ceasing this practice.