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2012 LEGISLATIVE REPORT FINAL

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2012 LEGISLATIVE REPORT FINAL Powered By Docstoc
					                      2012 LEGISLATIVE REPORT

      This was the second of the two year legislative session. All in all a
pretty good session for GACDL with a couple positive bills, a couple
disappointing results, no death penalty and hundreds of little fixes and
corrections and several out right killings of bad bills. Thank you first to our
fabulous interns, law students Katie Ginnane, and Emily Strongwater, both
of whom were always able to cut quickly to the issues in the bills. They
spent a lot of time between classes and jobs to help at the Capitol where
often we would have bills in three separate committees at the same time and
always with intelligence and good humor. (The latter a necessity at the
Capitol!).

Remember: to look at and print the bills, go to the Georgia General
Assembly Website, and get the copy of the bill that passed both Senate and
the House, as agreed to. There may be amendments that are separate, such
as in HB 1176, so be sure to check for those.

TOP BILLS

HB 1176 Comprehensive Sentencing and Corrections Reform Bill

       PASSED The impetus for the bill was to save money on the rapidly
growing prison population due to non violent incarcerations. Many different
stakeholders met and tried to come to agreement. We prevailed on some
issues, the prosecutors on others, neither on some, but all in all a good start.
We hope next year mandatory minimums and juvenile issues will be
addressed.

       The bill is huge, so take a look at it for particulars. Hopefully we can
address the bill at the Spring and Fall Seminar. In a nutshell, the bill creates
degrees of burglary based on the seriousness of the offense as measured by
residential v. non-residential, creates degrees of forgery based on the
seriousness of offense as measured by amount and type of forgery, raises the
felony theft threshold from $500 to $1,500 with a graduated scale of
penalties for felony theft based on the value of the stolen items. The penalty
for the most serious theft is higher and the threshold for felony shoplifting is
raised from $300 to $500. The bill also revises the penalties for simple
possession of drugs based on weight and establishes a graduated scale of
penalties. The bill restricts drug possession offenses from applying to the
recidivist statute. Again, we hope next year to take a serious look at
eliminating mandatory minimums and/or having a “safety valve” similar to
the Federal Sentencing Guidelines.

      While the bill did not really go far enough in improving problems
with the probation system (private probation companies have a lot of
spending power at the Capitol…..), it allows the courts to order electronic
monitoring with all offenders, allows probation to impose graduated
sanctions.

       Drug and Mental Health Court divisions will have policies and
practices established by the Administrative Office of the Courts. It
increased the fees up to $1,000 for drug programs, but will allow the Court
to determine if defendant can pay or not. We are hoping to make additional
changes in the Accountability Courts.

       There were administrative changes that should help our clients. The
bill requires sentencing packets to be submitted electronically to the state
Department of Corrections from counties to reduce the time spent in jail
awaiting transfer to prison and caps sentences at probation detention centers
to 180 days to reduce time spent in jail awaiting transfers.

       Statute of Limitations – this is an area we took a hit. The State Bar
committee recommended an increase in the statute of limitations for certain
offenses, mainly sex offenses, the Senate had passed a bill increasing the
statute of limitations for offenses involving children and this bill
ELIMINATED the statute of limitations for a number of offenses. We
fought this section hard, had an agreement to substitute the previously
passed Senate bill for this section and our supporters either failed to show
for the hearing or bagged it in fear they would “look soft on crime at election
time”.

       Record Restriction or “Expungement”- first, a HUGE thank you to
Marissa McCall Dodson of the Georgia Justice Project. I was a mere foot
soldier to her countless hours of writing and re-writing of this bill, which
became a part of the Reform Bill in a major part due to Rep. Jay Neal
(please thank him) pushing it forward. Marissa was new to the legislative
process and how frustrating it can be with the continual obstacles thrown at
us, even from our friends, but persevered and was a total rock star to the end.
(Please thank her and Doug Ammar and Ashley Deadwyler when you can)

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While the record restriction section is not all we wanted it to be as a result of
last minute shenanigans by the prosecutors and their inside lackeys, it does
increase the ability to get a larger number of non prosecuted arrests as well
as acquittals sealed from the public. We are hoping this will help our
clients, particularly in employment issues. We are also hoping to address a
few issues, mainly the prosecution retaining veto power (with the right to
appeal) of the requests in next year’s Session.

       This section does not address “old” convictions. A number of you
have contacted me about this. Sorry. If you only knew how hard it has been
to get the above changed after at least 8 years in the making! But for Rep.
Neal committing to moving this, it would not have happened.

      Mandatory Child Abuse Reporting – HB 1176 was a Christmas tree
for a variety of legislation. There is now a criminal penalty for failure to
report child abuse by various employees and volunteers at churches,
colleges, clubs, summer camps, etc…..

      The bill goes into effect in gradations depending upon section.


HB 641 Juvenile Code Re-Write

      DEAD          - This is a total disappointment. In a stunning upset,
after years of hundreds of hours of stakeholder meetings, compromises,
agreements, this bill died after passing unanimously out of the House, and
unanimously out of Senate Judiciary Committee, the bill was stopped in
Rules. The prosecutors, the counties and the Georgia Public Standards
Council testified they were in favor of the bill but did not think it would
work “due to the high cost of implementing” the provisions, namely
providing public defenders and prosecutors in juvenile cases. The Governor
indicated that he wasn’t comfortable with the cost of the bill. Maybe next
year. Again, thanks to a number of our members and friends for all their
hard work: Linda Pace, Jan Wheeler, Nicki Vaughan, Randee Waldman,
Kirsten Widner of the Barton Clinic.


HB 711 – Elimination of Spousal Privilege - sorry folks, we were totally
outnumbered. We did get some changes, a hearing to determine what
evidence can be used and some balancing factors. The bill conflicts with the

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new evidence code. Basically, a spouse can no longer claim the privilege
when a spouse is charged with a crime against their spouse, or damage to
their property, or the crime occurred prior to their marriage. I did try to get
them to include same sex partners in the definition of spouse but for some
reason no one would agree to it…….

HB 397 Open Records - the bill changes some of the provisions of the
open records act and open meetings act, but, fortunately, did not make major
changes to the sections that could affect defense lawyers, namely habeas
attorneys. The AG’s office, namely Sam Olens and Nel Peterson were
extremely open to meeting with us to address our concerns. Thank you to
Brian Kammer of the Georgia Resource Center for all his help. (OT Note:
the Resource Center took a financial hit and will have to cut down on
providing legal assistance to our clients post conviction. If you can donate
to this amazing group, please do so).

OTHER LEGISLATION: (unless otherwise noted, the following bills
passed)

CRIMES/PENALTIES

HB 237 – Mortgage Fraud – expands the crime of mortgage fraud. We
successfully defeated the part of the bill that allowed for DA and AG
subpoena power.

HB 541 expands the crime of obstruction of public administration by adding
threatening or intimidating an officer and or their family.

HB 685 Vicious Dogs - there were at least seven dog bills after the recent
tragic occurrences with children being maimed by dogs. This bill, although
still problematic, was probably the best of the pack. Creates criminal
liability for owners of dogs under certain circumstances. No “free bite” rule
(not that there ever was one, but an urban myth continually argued at the
Capitol during these numerous hearings). I don’t think the bill can
ultimately stand up to scrutiny, but I have been wrong before!

HB 827 – Eluding an Officer – makes it a felony to flee and elude an officer.




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HB 997 – creates a new crime of false lien statements against public
officers. This is a result of those repeat litigants than bring suits against
officials. Like a law is going to stop our clients!

HB 1093 – requires stores to post the law that it is a crime to steal shopping
carts. (Note: see above comment).

HB 1114 – makes it a crime to assist in the commission of a suicide.
(allegedly clarifies a recent Supreme Court Decision).

SB 13 – DUI with Minor in Vehicle – makes it a felony.

SB 225 – Transmitting a False Report – a GBI bill, creates a crime of
knowingly submitting a false report of a crime with the intent of getting law
enforcement involved.

SB 236 – DUI - expands limited driving permit provision for certain drivers
with a suspended license.

SB 366 – Juvenile Detention Centers – increases penalties for bringing
contraband into juvenile detention centers and allows the centers to publish
what is contraband. We were able to make significant improvements in this,
as original bill left open what was contraband.

SB 370 – criminalizes the fake marijuana called “spice”.

SB 431 – Medical Identity Fraud – expands crime of fraud of using
another’s identity to obtain medical services/prescriptions

SB 441 – Pointing a Laser at an Officer - creates a crime of knowingly
pointing a laser at a law enforcement officer

INDIGENT DEFENSE

HB 648 - (Passed out of House, but did not pass out of Senate) Fees – this
bill provides that certain funds collected from fines shall be dedicated to the
Georgia Public Defender Standards Council for funding indigent defense.

HB 940 – (Did not pass out of Senate rules) Judicial approval is required
before conflict lawyers can be paid in death penalty cases. (conflict death

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penalty lawyers: contact me with your thoughts on this. I opposed this bill,
lost, but the bill got lost in shuffle in the last two days of session with Rep.
BJay Pak, the sponsor, saying he will bring it back next year. I promised to
work with him and the Georgia Public Standards Council folks over the
summer).

HR 977 – (Passed out of House, but did not pass out of Senate)
Constitutional Resolution to dedicate existing fees to indigent defense. (Was
not moved).

DOMESTIC VIOLENCE/SEX OFFENSES/JUVENILE

HB 272 – Eliminates right to request a re-hearing in juvenile court if the
matter was heard by an associate juvenile court judge as opposed to a
juvenile court judge.

HB 895 – Sex Offender Review Board – creates more effective methods of
gathering information about sex offenders regarding risk assessment
classifications.

HR 1151 – creates a Joint Human Trafficking Study Commission (a defense
lawyer is included!).

JURIES

HB 763 – in an oversight in law year’s bill which expanded the jury pool
source, it failed to prohibit felons from being included in jury selection. Not
anymore.

PROCEDURE

SB 50 – in a stealth move as an unannounced amendment to an innocuous
fee bill after the bill moved out of Senate and to non civil judy House
committee, the judge from Zebulon, Pike County got the jury statute
amended to allow a criminal jury trial to be held in a non courthouse over
defense objections. The statute previously provided that a criminal trial
could not be moved if defense objected. The purported reason for
amendment was because the courthouse in Zebulon is being repaired, but....




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SB 107 – Increases the monetary penalties for contempt of court to
$1,000.00.

SB 231 – expands list of offenses for which first offender status will not be
granted, includes offenses against law enforcement officers in performance
of their duties, aggravated assault, aggravated battery, obstruction.

SB 316 – allows for the civil statute of limitations to be tolled while criminal
prosecution is pending.

SB 350 – creates procedures for the disposition of firearms used in
burglaries once the case is disposed of.

SB 352 – expands the statute regarding solicitor’s authority to practice in
municipal courts.

SB 493 – Firearms, authorizes 18-21 year olds to carry under certain
circumstances.

DEATH PENALTY

Senator Vincent Fort authored the following bills for a public hearing only:

SB 442 – prohibits the imposition of the death penalty

SB 443 – requires that a defendant must be found mentally retarded
(intellectually impaired) by a preponderance of the evidence.

MISCELLANEOUS

HB 665 – Modernizes the clerk’s storage of documents for electronic
storage of civil records.

HB 954 – Abortion - this draconian abortion bill which criminalized
abortion after 11 weeks was watered down in the final days to exclude
pregnancies under certain medical circumstances.

HB 1048 – Process Servers – expands the definition of who may serve
process.



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SB 458 – (Failed) Status Verification – before you can received public
benefits

SB 469 – Anti Picketing Bill – we testified against the criminal part of the
bill which merged conspiracy to trespass and the crime and made it a felony.
The committee dropped it to misdemeanor. Key provisions of the bill
passed which prohibits certain picketing, but eliminated the prohibition
against mass picketing. This was one of the worst pieces of legislation in
years and I am confident it will be successfully challenged.

SB 292 – mandates drug testing for those receiving benefits.

DIED OR KILLED LEGISLATION

      Some of these were actual bills (often multiple bills of same concept)
and some were ideas floating around looking for a sponsor:

HB 196 – requires the recordation and retention of any oral testimony
provided during a video conference search warrant request.

HB 342 – Family Violence Order – allows law enforcement to arrest where
terms of bond are violated.

HB 680 – created a crime of an offense of defamation when a person falsely
claims a naked person is someone else.

HB 778 – would have prohibited the use of inmates as firefighters. As one
legislator noted before killing the bill, “If my house is on fire, I don’t care
who puts it out!”

HB 974 – “Caylee Anthony Law” creates a crime of failing to timely report
a missing child.

HB 1078 – Provides that victims of sex trafficking can have their expunged
records.

SB 31 – expanded privilege as to communications with juveniles to their
parents.




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SB 449 – DNA upon arrest. We are going to see this every year….. NY
passed it this year for misdemeanors.

SB 461 – demarcation on your driver’s license if on probation

Video Testimony - someone at the GBI wants to allow experts to testify via
videoconferencing and wanted to know our position. Our position is, fine, if
all parties agree. Their position was no, we want the judge to decide. I
suspect we will be fighting this next year.

FUTURE LEGISLATION

       Forfeiture Reform – got off to a bang up start, but got bogged down in
the Legislative Session chaos. Thank you to Laura Hogue, GACDL
representative to this committee. The bill will continue to be worked on
over the summer and I will let you know of the progress.

     “Sexting” – we have a sponsor, we have language, we have interns,
we hope to have a go for next session early on.

       Juvenile Code Reform – I feel like a musical should be made about
this. Hopefully, next year!

       Thank you to all of you who have sent comments, words of
encouragement and support during the Legislative Session, I appreciate it
more than you could know. I would also like to thank Jack Martin, my main
man at the Capitol. His service to our Association, our clients and to our
state cannot be underestimated. He is able, with good humor and brilliance,
to make major changes to legislation on a regular basis. Plus, he comes at
the drop of a hat when I beg and whine and there is a lot to be said for that.
Thanks, Jack! Honorable mention to Don Samuel, who would be my second
in command this year, but a full trial schedule prevented him from being at
the Capitol this year. He was available by text during court though!
Thanks, Don!

Sandra Michaels




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