Former Detention Officer at Fulton County Jail in Atlanta Arrested on Federal Criminal Charges

March 30, 2009 by Kish & Lietz

The Department of Justice announced on March 20th that Curtis Jerome Brown, Jr. was arrested by FBI agents and charged with violating civil rights, filing a false report, making false statements to federal agents, and obstruction of justice.

These charges arise out of Brown’s alleged cover-up of two incidents at the Fulton County jail. The criminal complaint alleges that during the first incident, on August 11, 2007, Brown beat a handcuffed inmate in the face and head with gloved fists. The second incident, which took place in mid-March 2008, involved a physical altercation between another inmate and Brown with two staff members, resulting in the inmate’s death. Brown allegedly obstructed justice by interfering with the investigations of these incidents.

The Fulton County Sheriff’s Office has referred allegations of another incident involving detention officer Denita Shaw to federal prosecutors, as well.

We have handled cases such as these in the past, in which corrections officers were arrested with much fanfare by the press and prosecutors, only to have a jury decide that the officers never did anything wrong. In these types of cases, prosecutors often rely on testimony from other inmates who are seeking to get out of jail early. Inmates seeking freedom have been known to lie. Although that may or may not be the case here, we must remember that press releases by prosecutors often tell only a portion of the story.

The full Department of Justice’s press release is available here.
Relevant articles in the Atlanta Journal-Constitution are available here and here.

Federal Criminal Mortgage Fraud Cases on the Rise

March 20, 2009 by Carl Lietz

In a move that is sure to keep federal criminal defense attorneys in Atlanta and other places busy, the Federal Bureau of Investigation recently announced an increase in federal criminal mortgage fraud investigations. According to recent news reports, since last October, the FBI has transferred 75 agents working on other matters to the more than 2,000 open, federal mortgage fraud cases.

In total, there are approximately 254 FBI agents working on this task force, and as expected, this has resulted in an increase in the number of open federal mortgage fraud investigations. Indeed, based on figures provided to Congress by the FBI Director, the FBI has opened about 200 mortgage fraud investigations in the past five weeks.

As our firm noted back in 2007 on this earlier Georgia Federal Criminal Lawyer Blog post, "those of us that handle federal criminal cases have seen a surge in federal mortgage fraud prosecutions. And from what we have seen, we do not expect this surge to slow down anytime soon."

Atlanta Criminal Case: U.S. Attorney Decides Not to Initiate Federal Prosecution of Brian Nichols

March 19, 2009 by Kish & Lietz

As we mentioned in this post, after failing to obtain a death penalty sentence against Brian Nichols, Fulton County District Attorney Paul Howard requested U.S. Attorneys for the Northern District of Georgia to pursue a federal death penalty case against him.

David Nahmias, U.S. Attorney for the Northern District of Georgia, announced on Wednesday that they would not initiate a federal prosecution of Nichols, but may reconsider the decision if he challenges his state conviction or if his security situation changes. Nahmias cited several reasons for his decision, including the difficulty of “significant evidentiary issues” and the value in not disrupting closure that victims and their survivors, witnesses, and the community gained from the finality of the state case. He also emphasized the “extensive pre-trial proceedings, lengthy trial and sentencing proceeding, and extended appeals” that a successful case would require. In making this decision, Nahmias met with the criminal defense lawyers that represented Nichols, the Fulton County prosecution team, and victims and their survivors.

The entire press release can be viewed here.

Another Miscarriage of Criminal Justice in Atlanta: The Eleventh Circuit Federal Court of Appeals Renews our Tenacity in Fighting for Rights

March 11, 2009 by Kish & Lietz

Demarick Hunter is serving a sentence of 15 years and 8 months in federal prison for possessing a firearm. The Armed Career Criminal Act (ACCA) provides for a minimum sentence of 15 years for career criminals who carry firearms. Mr. Hunter’s prior convictions do not qualify him as a career criminal under the ACCA. The Eleventh Circuit acknowledged that he is serving an illegal sentence, but refused to allow him to appeal it.

The ACCA applies to people with at least 3 prior convictions for violent felonies or drug offenses. Mr. Hunter was sentenced as a career criminal under this act because in addition to one conviction for a drug offense, his two prior convictions for carrying a concealed weapon were considered violent felonies. Last year the Eleventh Circuit acknowledged that carrying a concealed weapon may not be a violent felony. In the Hunter case last month, the Eleventh Circuit agreed that Hunter was erroneously sentenced, but denied his request for a certificate of appealability because “a sentencing error alone does not amount to a substantial showing of the denial of a constitutional right.” The miscarriage of justice in this decision for Mr. Hunter is maddening in and of itself.

However, there is an even more infuriating aspect to this decision. The Court notes at the end of this decision that Mr. Hunter can’t show ineffective assistance of counsel because his lawyers didn’t argue at sentencing or direct appeal that carrying a concealed weapon was not a violent felony under the ACCA. Most lawyers wouldn’t have done so. At the time of Mr. Hunter’s sentencing and direct appeal, binding case law held that carrying a concealed weapon was a violent felony.

The reason this is so galling is that Mr. Hunter’s lawyers, like many attorneys, presumably did not challenge this law because judges often get upset with lawyers for raising challenges that are contrary to established precedent. Judges think lawyers are being unprofessional when they raise such challenges. Down the road, though, when the law finally turns in the favor of defendants, they suffer the consequences. Had Mr. Hunter’s attorneys raised this argument at sentencing and on appeal, the outcome of this case would have been quite different.

Lawyers must not be afraid of upsetting trial judges by challenging bad law. We must be willing at the trial and appellate level to raise challenges that may fly in the face of existing precedent. The Hunter case reminds us yet again of why we fight with such resolve.

The opinion in the Hunter case can be found here.