When lawyers in private practice fail in a fundamental responsibility, clients have recourses. When government lawyers commit the same missteps, particularly in criminal cases, there are far fewer options.
Recent decisions from the Georgia Supreme Court shed light on this crisis in Georgia courts. A “Davis violation” occurs when attorneys (including elected prosecutors, public defenders, and the state attorney general) fail to cite the applicable evidence code in cases before the Supreme Court of Georgia or the Court of Appeals of Georgia. The term was named after a 2016 appellate case.
When Georgia federalized its evidence code in 2013, the Peach State walked away from an arcane, Confederate era code to govern its trials. Modern evidence statutes patterned after the federal rules became law.
This is important because evidence rules govern all aspects of the trial process: which information the jury receives and how its members are allowed to consider it. Lawyers must be avidly familiar with those rules if clients expect effective representation. Recognizing that Civil War-era statutes and case law no longer apply in Georgia courts is about as basic as it gets. Not for some, though, it seems. In two separate Monday, October 21, 2019 opinions, a unanimous Georgia Supreme Court delivered a stern message: “No more Davis Violating.”
In McKinney v. State, the Georgia Supreme Court referred to “useless and sometimes misleading citations to cases decided under the old Evidence Code” received from counsel for the prosecution and defense. Similarly, in Thornton v. State, the state Supreme Court explained that it was “disappointed” that the defense lawyer failed to heed the Georgia high court’s warning to use up-to-date evidence case law.
Significantly, these violations occurred in murder cases where the stakes are highest for the clients the lawyers serve: defendants and the people of Georgia. On top of that, these mistakes fly in the face of forceful, August 2019 declarations from Georgia’s highest court that it can do without Davis-violating briefs and arguments.
Were lawyers not listening?
Taxpayer-funded lawyers were guilty of Davis violations in the McKinney and Thornton cases. Clients, victims, and the general public deserve better.
Courts and judges do too.
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.
