A David and Goliath story recently emerged during Georgia Supreme Court oral arguments in Ballin v. the State. “David” being the very few Georgia evidence scholars who got it right and the “Goliath” being a systemic disregard for the most fundamental body of law in a murder trial: evidence.
In a Georgia Supreme Court oral argument in a murder case, Justice David Nahmias courageously slung his first pebble at Goliath number one, segments of Georgia’s bar who continue to heave outdated case law at Georgia courts.
Sadly this deficiency frequently appears in evidence law, which is the most important body of statutes in the justice system. The reason? As Georgia’s nationally renowned evidence scholars — professors Ronald L. Carlson and Mike Carlson– have elucidated for years, evidence law exclusively controls the two most vital concerns of any litigant: (a) what information the jury will receive; and (2) how the jury will be allowed to consider those facts.
When Georgia adopted the Federal Rules of Evidence in 2013, it rendered nearly all of Georgia’s Civil War era inspired evidence precedent defunct. Still, our courts remain clogged with attorneys who, due to incompetence or hubris, refuse to utilize federal and new Georgia precedent, opting instead to cram evidence law concepts birthed and promulgated during the Confederacy on modern Georgia tribunals.
The practice, named after a case, is referred to as “Davis violations.”
This sets an abbreviated stage for the outrageousness Presiding Justice Nahmias and his colleagues contended with and he adroitly brought to light. At the five minute mark in the video in Ballin v. State, Nahmias slung his final pebble: a brilliant 3- minute oration which publicly served notice that Davis violations are no longer tolerated.
Nahmias reiterated that he and the other justices on the Supreme Court have said “over, and over, and over, [40+ times]” that you just can’t submit briefs with “old code” cases.
The issue in the murder case was whether an insurance policy on the victim is admissible as motive in a murder case, and the old Georgia and federal rules are different. As it turns out, all parties in this case failed to cite federal evidence law cases and instead chose to cite stale and inapposite Georgia case law which was based on pre-abolition, nineteenth century concepts of justice.
Of particular concern is that Goliath Number 2— the prosecution— according to Nahmias “likes to pretend like we don’t have new evidence rules.” That this was done at taxpayer expense in a murder case in our state’s highest court should raise eyebrows across Georgia. No amount of implicit bias training or criminal justice reform can fix this deficit.
The courageous United States Attorney for the Southern District of Georgia, Bobby Christine, has vehemently warned against committing Davis violations, but these warnings seem to have gone unheeded– at least by some in prosecution. Clearly, persistent Davis violations by competent lawyers raise issues under counsel’s duty of candor– the primary responsibility that lawyers have to only present valid legal authority to courts before which they appear.
So why do Davis violations still occur, other than ego (“those legislators and courts won’t tell me which law to use”), or incompetence?
Enter Goliath No. 3. When Georgia’s new Evidence Code came online, almost all the academics, commentators, lecturers, bench and bar members who took a position maintained that our courts would continue to use the old law. Really, this was a low expectation imputing that Georgia’s bench and bar would ignore the specific direction of our General Assembly.
Some speculate that Davis violations have political roots. Republicans effectuated the change to an evidence code that, like its federal corollary, emphasizes statutory policy decisions of the legislative branch. Democrats pushed to retain old Georgia provisions and concepts that encourage judicial supremacy over the will of the people. In this way, Davis violations invite judicial activism.
Astute legal scholar, professor, and GBI chief of staff John Melvin has made a convincing case that the fight to maintain former Georgia as opposed federal philosophes came from the undue influence of the criminal defense bar and its academic patrons on the Georgia process. Fortunately, that Goliath was slayed in favor of a federal framework.
This brings an eerie parallel of fortunes that were realized for literally a handful of Georgia legal visionaries, who, like the Biblical David, were willing to take on these Goliaths; they advocated in favor of using federal precedent to interpret federalized new Georgia evidence statutes. While this effort received criticism and denigration from the rank-and-file, Georgia’s Supreme Court has slung Georgia jurisprudence in the superior federal direction to the benefit of those seeking justice in Georgia courthouses. Those right minds included the Carlsons, GBI Director Vic Reynolds, Christine, Melvin, and a handful of others.
Meanwhile, the David of Atlanta’s John Marshall Law Journal, who did the deepest dive into the realm of Davis violations, fought the Goliaths of UGA, Emory, GSU, and Mercer law journals who seem to, as did the State in Ballin, basically “pretend like we don’t have new evidence rules.”
Let’s hope Georgia lawyers heed Justice Nahmias’ call and stop wasting valuable public money with Davis violations. Our justices, judges, clients, and citizens at large deserve better. Better is especially entitled from prosecutors whose in court escapades are funded from our taxes.
Bill Black is a Georgia attorney who graduated with honors from Atlanta’s John Marshall Law School where he was Editor-in-Chief of the John Marshall Law Journal. He is concluding his LL.M. degree at Georgetown University Law Center and is an Air Force veteran.
