The Georgia Supreme Court met in Augusta before a packed room to hear oral arguments in two cases, one of which involves a Burke County murder of a woman who lived in Augusta.
The Supreme Court justices have had sessions outside of their home base in Atlanta, but this was the first time since the pandemic began, said Chief Justice Michael P. Boggs. And the last time the state’s highest court was in Augusta was in 1996, he said.
It wasn’t just a matter of two lawyers yammering on and on; the justices peppered the attorneys with numerous questions Thursday, Oct. 6 and challenged their positions.
In the Burke County murder case, several justices pressed hard against Assistant District Attorney Joshua Smith’s position that Garry Johnson was responsible for not having had an appeal for over 20 years, and that the plea for help Johnson made within days of his conviction seeking legal assistance shouldn’t be considered as valid because technically he still had an attorney.
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Johnson was tried in November 2000 for the slaying of Irene Shields, a 31-year-old mother of three who had broken off her relationship with Johnson. According to testimony at trial, Johnson kidnapped her from her Augusta home, bound her and drove her to Burke County where on a dirt road he repeatedly ran over her body with a vehicle.
The case was tried as a capital murder case, and while the jury convicted Johnson, it rejected a sentence of death in favor of life in prison without parole. Because it was a death penalty trial, Johnson had two attorneys as required by law – Jack Boone was the lead attorney and Luther McDaniels sat as second chair.
Within days of the verdict, Boone withdrew from the case and file a broiler plate motion for a new trial on Johnson’s behalf. McDaniels, who would be disbarred later, never withdrew from Johnson’s case but also never did anything more to represent him. A lawyer appointed by the judge who presided over the trial to do Johnson’s appeal, Paul David, also did nothing on Johnson’s behalf. He was also later disbarred.
Johnson wrote to the court to say he didn’t have an attorney to do an appeal, but no one ever addressed his letter, said attorney Lucy Dodd Roth, his appellate attorney appointed in 2018 when it came to a judge’s attention that Johnson had never had an appeal, which is a constitutional right.
One state argument against Johnson is the rule created when the state’s constitution was rewritten in 1983 says a person could act legally on his own behalf while he is represented by an attorney. Technically, Johnson was represented, although represented by an attorney who did nothing.
Roth said the solution to Johnson’s predicament had been to file a motion for an out-of-time appeal. But just this past year the Georgia Supreme Court did away with out-of-time appeals. If the justices rule against Johnson, he will be denied the constitutional promise of appeal, Roth said.
The court should carve out a rule for these exceptional cases like Johnson who was abandoned by the attorney just so the door to an appeal isn’t slammed shut, Roth said.
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The prosecutor barely got four words out before the justices started poking at his position. Justice Andrew A. Pinson asked what was wrong with having a narrow rule for people like Johnson. Smith said a defense attorney is prohibited from abandoning clients.
True, Justice Nels S.D. Peterson said, but if they agree with his position then Johnson never gets an appeal, and the time limit to file a habeas petition expired a long time ago.
But he could argue in a habeas petition that he had ineffective assistance of counsel that cost him the initial appeal, Smith said.
But there’s no right to an attorney in a habeas petition in Georgia, Justice Charles J. Bethel noted. How can a non-lawyer know how to do the job with no legal education or training? he asked.
Tanya Jeffords, who has argued three cases before the state’s Supreme Court, watched the oral arguments Thursday. She faced lots of questions from the justices during her cases, she said. “You have to know how to circle back to the points you really want to make.”
Randolph Frails said he thought the justices were faster with the questions when they sit away from their Atlanta courtroom. “But all of the questions were valid, they really were.” But, Frails added, he wouldn’t want to argue a case while the justices were sitting elsewhere in the state.
Sandy Hodson is a staff reporter covering courts for The Augusta Press. Reach her at sandy@theaugustapress.com.
