FIRM MAJOR VICTORIES!

Stinchcomb v. Georgia

Supreme Court of Georgia

We are very proud of the firm and our law partner Leigh Schrope as she put all the pieces together to file a request to overturn the conviction of our client Mr. Stinchcombe through the newly structured Conviction Integrity Unit in Fulton County. The result of hard work and investigation is our firms’ purpose, and it matters.

Mr. Stinchcomb was convicted of murder and sentenced to life in prison but maintained that he was innocent and acting in self-defense. In August of 2018, our firm filed an extraordinary motion for new trial on Mr. Stinchcomb’s behalf in Fulton County Superior Court based on newly discovered evidence that was previously unavailable in the form of a critical eyewitness who was not located earlier because the State had indicated that it believed he was dead. While the Fulton County Superior Court denied this extraordinary motion for new trial in June of 2019 without an evidentiary hearing, our firm filed a discretionary appeal to the Georgia Supreme Court which was granted and the case was remanded for an evidentiary hearing. S20A0355. Our firm then approached the newly formed Fulton

County Conviction Integrity Unit with the newly discovered evidence, and, after discussions and investigation, the Fulton County Conviction Integrity Unit and our firm presented a Consent Order Granting the Extraordinary Motion for New Trial agreeing that the newly discovered evidence establishes that Mr. Stinchcomb was acting in self-defense and exonerates him. The Court signed the order on April 12, 2021, the original indictment was nolle prossed, and Mr. Stinchcomb was released that same day after serving over 18 years in prison.

This incredible victory was highlighted in the Atlanta Journal-Constitution by Bill Rankin. Ms. Schrope was quoted: “This case is another example of an innocent person having to wait a long time for justice. We are so happy that Mr. Stinchcomb has been exonerated and that he has been reunited with his loving family.”

SUPREME COURT VICTORY!

State v. Thomas, S21A0324

Georgia Supreme Court

        Attorney Elizabeth Brandenburg, with co-counsel, Howard Weintraub represented Mr. Thomas and is pleased to announce success in the appeal of this murder case. In September 2020 Fulton County Superior Court granted our motion for new trial based on a Brady violation by the State. The court agreed that the State had suppressed a deal it made with an important witness. The Supreme Court upheld the grant of the motion for new trial due to the State’s failure to disclose this deal. The witness was important because other than this witness, there was very little evidence to corroborate the alleged co-conspirator’s biased testimony, which is required by law. The witness had a deal with the State in exchange for her testimony to request dismissal of her felony charge in another county where she was facing mandatory prison time if convicted. After the trial, the charge was dismissed. This deal was not disclosed. Our firm is very pleased that Mr. Thomas will get a new trial with all of the evidence presented to the jury.

COBB COUNTY VICTORY!
State v. Morgan, 12-9-612-52
Cobb County Superior Court

On October 23, 2020, the Court of Appeals remanded the superior court’s denial of a motion for new trial for additional findings. On May 20, 2021, the superior court granted Mr. Morgan’s motion for new trial. Attorney Elizabeth Brandenburg, with co-counsel, Max Hirsh, represents Mr. Morgan.

Mr. Morgan rejected a plea offer and went to trial after being told by counsel that if convicted of armed robbery he could receive life with parole. However, the law required life without parole. He was convicted and sentenced to life without parole.

The court agreed that Mr. Morgan received ineffective assistance of counsel for the erroneous advice given by counsel. Mr. Morgan will get a new trial.

It is important to scrutinize the advice given by counsel in deciding whether to go to trial or take a plea. Contact us if you have concerns over the advice you were given in making this important decision.

PAROLE POLICY VICTORY!
Parole Eligibility for Murder in the Second Degree

After our firm’s advocacy especially that of attorney Brandenburg, on the subject on behalf of a client, the Parole Board has provisionally adopted a rule adding murder in the second degree to the Crime Severity Chart. Previously, the Board has not reviewed those convicted of murder in the second degree, claiming they are not eligible for parole. This is an important first step in righting this wrong and our firm will continue to support this change.

Once the change becomes permanent, over one-hundred incarcerated individuals will become eligible for parole. Contact our Firm for representation.

OTHER INTERESTING NEWS YOU CAN USE
Probation Reform Signed into Law

SB 105 has been passed and signed into law. This law clarifies individuals who have served at least three years of probation, have paid all restitution, no technical revocations in the last 24 months, and no new offenses are eligible for early termination. Such individuals can file a motion with the court and the Judge will decide. Up to 25% of all felony probationers qualify for this early termination.

Duke v. State, S20A1522
March 15, 2021
Georgia Supreme Court.

The Supreme Court has held that the Indigent Defense Act of 2003, O.C.G.A. 17-12-1 et. seq allows an indigent defendant to obtain state-funded experts and investigators when represented by private, pro-bono counsel.

Hunt v. State, A21A0339
March 12, 2021
Georgia Court of Appeals

The court of appeals held that a defendant’s probation could not be revoked for the new crime of possessing a firearm as a convicted felon where no evidence was presented to show the defendant ever had dominion or control over the firearm.

Mr. Hunt was the front seat passenger when the police pulled over the vehicle. A gun was found under Mr. Hunt’s seat. The driver, Mr. Hunt’s girlfriend, claimed ownership of the gun, testifying that Mr. Hunt did not know the gun was there. The court revoked his probation, but the court of appeals reversed.

Robinson v. State, A20A1900
March 16, 2021
Georgia Court of Appeals

The court of appeals reversed the trial court’s denial of a lesser-included misdemeanor charge of obstruction where the evidence, 3 separate dashcams, was ambiguous as to whether there was a threat or offer of violence. The court of appeals also held that the trial court abused discretion in admitting the defendant’s prior burglary conviction where it was not shown to be an act of dishonesty.

Poteet v. State, A20A1728
January 7, 2021
Georgia Court of Appeals

The court of appeals held that there was not enough evidence to convict Ms. Poteet of possession of methamphetamine. Ms. Poteet was present in a man’s home when police executed a search warrant. They found a meth pipe with what they thought was lipstick on it. The man and Ms. Poteet denied ownership of the pipe. The State did not test the pipe for fingerprints or DNA. They did not even confirm the substance was lipstick or try to connect the lipstick to Ms. Poteet.

The court was vehement that Ms. Poteet’s attorney almost waived the sufficiency argument on appeal and that the DA brought the case based only on the assumption that generally women wear lipstick and Ms. Poteet was the only woman there at the time of the search.

Roundtree v. State, A20A2067
January 22, 2021
Georgia Court of Appeals

In a prosecution for possession of Alpha PVP, (alphapyrrolidinopentiophenone), a substance that does not appear in the drug statute, the State did not connect the substance to any enumerated controlled substances. The court of appeals reversed the conviction.

SOME FINAL THOUGHTS

            The best time to affect a change in your case if you went to trial is to change counsel for a motion for new trial brief and hearing as well as on appeal or habeas petition. (Any claims of ineffective assistance of counsel must be raised at the first opportunity. Trial attorneys cannot raise claims of ineffective assistance on themselves so if you feel there is any IAC    complaint you need to change counsel after trial).  If you entered a plea, the key to any habeas petition is to determine if you would have gone to trial but for counsel’s advice misrepresenting the consequences of the plea or failing to investigate the case adequately or call witnesses or seek expert advice before giving you advice on taking the plea. To withdraw a plea, you have to show that but for counsel’s errors, you would have gone to trial or there would have been some other outcome. Many have been offered pleas but reject them on the hope of success at trial. Make sure your attorney gives you clear advice on either taking the plea or telling you that if you go to trial not only what your defense is but also what he or she will do to affect success with witnesses and evidence.

In Cox v Howerton, 290 Ga.693, (2012): A defendant entering a guilty plea is entitled to the effective assistance of competent counsel. McMann v. Richardson, 397 U.S. 759, 790, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. 2052. The Strickland standards are applicable where a defendant complains of ineffective assistance of counsel in the entering of a guilty plea (Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). A defendant must show that there is a reasonable probability that, but for counsel’s errors, [s]he would not have

pleaded guilty and would have insisted on going to trial. (emphasis on [her] parole eligibility in deciding whether or not to plead guilty.” Id. at 60) A court making a Strickland/Hill prejudice inquiry must examine what the defendant would have done at the guilty plea hearing had she been given the correct information. Davis v. Murrell, 279 Ga. 584, 586, 619 S.E.2d 662 (2005).