trial Tag Archives - Atlanta Injury Lawyer Blog

Cobb County District Attorney Makes the Right Call Not to Retry Ross Harris for Murder

May 31, 2023 | Robin Frazer Clark

I am happy to see that the Cobb County, Georgia District Attorney has now made the decision not to retry Ross Harris for the murder of his child when he left his child, Cooper, in a hot car. You may recall that the Georgia Supreme Court reversed the conviction in a strongly worded opinion. The Cobb County District Attorney’s office waited for almost a year before making the decision not to retry Harris for murder. Tip of the cap to Mr. Harris’s attorneys, Max Kilgore, Carlos Rodriguez and Bryan Lumpkin, who never gave up even after their client was convicted back in 2016. They have always maintained that Harris was a loving father and the boy’s death was a tragic accident.“Ross has always accepted the moral responsibility for Cooper’s death,” they said in a statement after the charges were dismissed. “But after all these years of investigation and review, this dismissal of charges confirms that Cooper’s death was unintentional and therefore not a crime.”

You may recall that I wrote a blog post back in June 2022 when the Georgia Supreme Court reversed the conviction of Ross Harris for killing his child by leaving him in a hot car. I thought then it was a prosecutorial overreach and that Mr. Harris never should have been tried on murder charges for the death of his son. My reasoning was based upon study after study showing how easy it is to forget you have a child in a car seat in the back seat, especially if your usual daily schedule is changed ever so slightly. Now, there are numerous cellphone applications (“apps”) that tell you to check the backseat and make sure you don’t leave your child there in the car. Waze Child Reminder and Kars for Kids are a couple of examples. Also, some newer model cars include such reminder to check the back seat and there are now child seat alarms that will alert you if you accidentally leave your child in his or her car seat. One low-tech suggestion is to leave a stuffed animal in the front seat to remind you your child is in the back seat. When my husband and I were raising our children, who are now adults, we didn’t have anything like that to help and it was a constant worry for us. In fact, there was a news report yesterday that an 11 month old baby girl died in a hot car when her parents left her in their car while they attended church.

At trial, the Cobb County prosecutors admitted a lot of evidence regarding Mr. Harris’s communications through the internet with women he wanted to have sex with. Some of these people turned out to be minors. It seemed as if the prosecution was trying to prove that Harris was not a nice guy. And they did that. But that evidence had nothing to do with leaving Cooper in a hot car in his car seat in the back. The Georgia Supreme Court upheld Harris’ convictions on three sex crimes committed against a 16-year-old girl that Harris had not appealed. He received a total of 12 years in prison for those crimes, and he will continue to serve that sentence, the district attorney’s office said.

Know the Truth About Personal Injury Lawyers Before Hiring One: You Need An Actual Georgia Trial Lawyer

October 3, 2022 | Robin Frazer Clark

Lately, I am seeing more and more advertisements, on T.V., on Youtube, on Court TV, on Instagram, on Tik Tok, essentially on every Internet Platform you can think of, of lawyers who tout their legal acumen and ability to get an injured person a lot of money with very little effort. Some of these advertisements have fake clients in them who look perfectly normal, healthy and uninjured, claiming their attorney got them a check for $350,000.00 or some high dollar amount “just like that” with “one call.” Some of these advertisements brag about their lawyers being “trial lawyers” when they actually haven’t even tried very many cases, if any. Some of these advertising lawyers claim to be “elite” (they actually use that word) and yet haven’t even tried 10 cases. Some of these advertisements actually mislead the injured consumer with false statements about what the law and ethical rules allow. Some of these advertisements brag that their lawyers have secured more money in verdicts than any other firm in the “universe” or the “metaverse,” and yet aren’t even licensed to practice law in the State of Georgia. Some of these advertising lawyers brag about obtaining a verdict but upon closer inspection, it was a bench trial, decided by a judge, with no opposition. Things that make you go hmmm…. As a Georgia trial lawyer with over 34 years of experience, I am really just plain sick of it.

I want to help the person who has been injured as a result of someone else’s or some entity’s negligence who is looking for a bona fide Georgia Trial Lawyer to represent them with their case, all the way through trial and appeal if necessary. These are things you should know when hiring a trial lawyer.

Is the attorney actually licensed to practice law in the State of Georgia? Any member of the public can find this out very easily, thanks to the State Bar of Georgia. Simply go to the State Bar’s website, gabar.org, and on the right side you will see a “Member Directory” where you can search for the person’s name. It will tell you if that person is a member of the State Bar of Georgia, where the person went to law school, and when the person first started practicing law in Georgia. This member search on gabar.org will also tell you whether the lawyer has been subject to any public discipline. This tells the consumer how much experience the lawyer has with the law of Georgia. Do you really want to entrust your case to someone who has been a lawyer for only two years? If you are looking at a law firm’s website, you should search every member of the firm here. If only one out of the entire firm is actually licensed to practice law in Georgia, that should tell you how little experience that one Georgia lawyer, in all likelihood, actually has in Georgia law and especially Georgia trial law. Stay away.

What’s Wrong with Having a 13th Juror? Anything?

November 22, 2019 | Robin Frazer Clark

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Recently, there have been a couple of criminal cases heard by the Georgia Supreme Court which have involved the trial judge’s inherent duty to be the final arbiter of fairness and justice in the courtroom. Sometime this is referred to as the “13th Juror,” because the trial judge sometimes must base her or his ultimate decision on the facts, testimony and documentary evidence presented at trial…things an appellate court would not be in a position to know. A recent discussion about the notion of the trial judge as 13th juror came in an appeal of a criminal case, State v. Hamilton, 832 S.E.2d 836 (Ga. Sup. Ct. September 3, 2019) in which the Georgia Supreme Court heard oral argument on the issue of whether the trial judge was authorized to toss out three counts of assault when that the jury had convicted the defendant on, in the judge’s opinion, there was no way factually or legally for those three counts to be proven beyond a reasonable doubt. The Court affirmed the trial court’s granting of a new trial. “Having reviewed the entire record, and considering that the trial court was authorized, as the thirteenth juror, to discount Taylor’s and Hewatt’s testimony and to credit Hamilton’s story, and bearing in mind the standard of review set forth in OCGA § 5-5-50, we cannot say that the trial court’s conclusion was an abuse of its substantial discretion to grant Hamilton a new trial. See Hamilton, 299 Ga. at 670-671, 791 S.E.2d 51 (“An appellate court will not disturb the first grant of a new trial based on the general grounds unless the trial court abused its discretion in granting it and the law and the facts demand the verdict rendered.”).”

In another case recently argued before the Georgia Supreme Court, the Court told the Fulton County D.A., who was appealing a trial judge’s granting of a new trial, that the D.A. was “wasting the Court’s time” with such an appeal when the trial judge clearly has the power, right and, arguably, the duty, to grant a new trial. In that case, State v. Beard, NO. S19A0535 (Ga. Sup. Ct. October 31, 2019) quoted below, the Supreme Court’s opinion called the D.A.’s position “bizarre.” “Contrary to the State’s bizarre argument, the jury’s verdict was not demanded by the “great physical laws of the universe.” (“An appellate court will not disturb the first grant of a new trial based on the general grounds unless the trial court abused its discretion in granting it and the law and the facts demand the verdict rendered.”).’

State v. Beard, S19A0535, 2019 WL 5656338, at 4 (Ga. Oct. 31, 2019). Since then, the Fulton County D.A. dismissed its appeal and has vowed to take his argument to the Georgia Legislature in an attempt to get legislation passed that will eliminate this inherent duty and power of the trial judge.

The Overwhelming Emotion of a Trial

April 16, 2019 | Robin Frazer Clark

Recently, I was in a courtroom in Fulton County, Georgia watching a medical malpractice trial. I was not involved in the trial; I was just a trialwatcher. When I have time, I still enjoy watching trials, both civil and criminal, for the real life drama on display. No movie or play can capture the sheer, raw emotion of a trial. A jury’s decision can be life-altering. In a civil trial for money damages, a verdict for the plaintiff can give the family of the injured person or decedent a sense of Justice and much needed closure. A verdict for the defendant can give a defendant a sense of vindication. The whole trial process is designed to find the truth. In fact, the word “verdict,” in Latin, means “to speak the truth.”

I have often seen normal laypeople who are testifying realize, on the stand, they have underestimated the emotional pressure that the formality of the courtroom imposes on them. There is something about the utter dignity and formality of the Courtroom, with the judge sitting high on the bench, with a court reporter taking down every word uttered, with 12 citizens sitting in judgment, with a Deputy Sheriff at the door, that brings the enormity of it all into crystallized focus. In this medical malpractice trial I was watching, there was a moment with one of the defendants on the witness stand when he simply broke down during his testimony. He began to tear up on the stand and the began to cry, and the plaintiff’s attorney quickly asked the judge for a break. But it was too late. The defendant began crying uncontrollably, and literally fell down on the floor from the weight of it all. His attorney had to go help get him off the floor and then out of the courtroom as the bailiff quickly took the jury back to the jury room. It was clear that the defendant had suffered something so strong emotionally that he could not go on. We were all worried about his mental well-being. I knew his attorney and knew he would make sure his client was supported emotionally and not left alone. I believe his attorney was sincerely concerned about his client’s ability now to go on with the trial and meaningfully participate in the trial and assist his attorney. In speaking with several of the attorneys in the case, both plaintiff and defense, not one of us had ever seen something like that happen in a trial before. Most of us had practiced for over 30 years. Meanwhile, the plaintiff’s attorney felt just as strongly that the defendant’s outburst of emotion directly in front of the jury was so overly prejudicial that the jury could not help but sympathize with the defendant, regardless of any instruction the judge might give to the contrary. Telling a jury they may have no sympathy for either side is easier said than done when a witness has just broken down in front of their eyes. Discussion was had by all counsel with the judge in the judge’s chambers, and I was not privy to what they discussed and argued. Eventually, the defendant who had broken down on the stand reappeared in the courtroom. He looked shaken and seemed to be trembling. He was visibly trembling as he took sips out of a water bottle. There was no question in my mind that this was sincere and beyond his control. I felt empathy for him. After about an hour, though, the judge and all counsel came back into the courtroom and the jury was brought back into the courtroom. The judge declared a mistrial and thanked the jury for their work and instructed the jury they were no longer needed and that their jury duty had been fulfilled.

Wow.

Jury Duty: The Chance to be a Hero

February 13, 2018 | Robin Frazer Clark

Image result for juror as hero Image result for you're my hero
Yesterday I was in the Chicago O’Hare airport after taking the deposition of a defense expert anesthesiologist at the University of Chicago and sat down for lunch next to a nice couple from the Boston area. We started talking and I, of course, told them I am a plaintiff’s personal injury trial lawyer from Atlanta in Chicago for the purpose of taking an adverse expert witness’s deposition. They were mesmerized. We talked a bit about the case which led, predictably, to their telling me about their personal experiences with both the Criminal and Civil Justice Systems.

The husband of the nice couple told me about his experience in serving on a criminal jury as the foreperson. Like most folks facing jury duty, at first he was upset about missing work, resented being herded around the courtroom like cattle and being kept in the dark about what was happening, and was overall just unhappy about being forced to take part in the entire process. Yet, as the testimony came in and the trial moved on,things, including his attitude, changed. The case was about a man, the defendant, who allegedly had abused his three year old son. The man had taken his son away from the child’s mother’s home but the mother wasn’t even aware of it. The evidence against the father was, apparently, overwhelming. My new buddy, who was telling me about his experience, was picked to be the foreperson of the jury. He immediately felt an enormous weight on his shoulders to do the right thing. Not all of the jurors at first wanted to convict, even though he felt the evidence to do so was overwhelming. Some of the jurors wanted to hear some of the testimony again, some of them wanted to see pieces of evidence again. They wanted to be sure. In the end, the jury voted unanimously to convict. My new friend said that when he read the verdict out loud in the courtroom, he felt an enormous sense of duty and pride. He felt moved to tears. The jurors, to a person, took their duty very seriously and followed the court’s instructions unwaveringly. He felt like he was the little boy’s hero. Now, looking back, he hopes he’ll get the chance to serve on a jury again. Both he and his wife said that if they were ever the parties in a trial, they would want people like themselves serving on their jury.

Fascinating story, but I’m not surprised. This is often the story I hear from people who have served on juries, criminal or civil. The sense of duty is extremely strong. By serving on a jury, you are breathing life into the United States Constitution and doing your part as a citizen to make our judicial system work. Without jurors, the system would collapse and we would cease to be a democratic nation. Jurors ensure that a person’s constitutional rights to a fair trial by a jury of his or her peers is protected. That is not overstating things. And something about being in the formal courtroom, where lives are at stake, where injured plaintiffs seek to have the harms done to them balanced by damages from the wrongdoer, makes that sense of honor and duty to your nation come alive. Jurors are the heroes of victims of crime and of those citizens who are personally injured through no fault of their own. The courtroom is the great Equalizer, where the son of the richest man in America is the equal of a homeless person, and where the smartest graduate of Harvard University is the equal of a high-school drop-out. All persons are treated equally in a court of law.

No Such Thing as an Unbiased Expert

May 4, 2017 | Robin Frazer Clark

You Supreme Court nerds out there (and you know who you are) are probably aware of the fact that the United States Supreme Court recently heard oral arguments in McWilliams v. Dunn. At issue in the case is whether James McWilliams, an indigent defendant whose mental health was a significant factor at his capital trial, was entitled to an independent psychological expert to testify on his behalf. The prosecution presented the expert testimony of one psychiatrist and argued the Defendant was not entitled to his “own” psychiatrist as the one offered by the prosecution was essentially neutral, even though he was retained and paid by the State. Stephen Bright, longtime president of the Southern Center for Human Rights, represented McWilliams. The issue presented to the Supreme Court in McWilliams was this: “Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.” Amicus, the podcast by Slate that focuses on the Supreme Court, covered the McWilliams case in its latest episode, “The Myth of the Neutral Expert.”

This is a fascinating discussion, especially considering the very life of an inmate hinges on the opinion. Some states have even placed a temporary halt on executions for inmates on death row until the McWilliams opinion is delivered. As a personal injury trial lawyer, I mused how expert witnesses are treated differently in civil cases, you know, in cases where mere money is at issue and not someone’s life or liberty. Of course, having one so-called “neutral” expert witness, to testify for both sides of a case, would never happen in civil cases. I haven’t tried a case without the appearance of at least one expert witness at trial in well over 20 years now. My cases are complex and naturally either require or will benefit from expert testimony. At a minimum. I will present the testimony of a treating physician, who certainly is an expert in his or her medical specialty, even if not an expert “specially retained to testify at trial.” In civil cases, especially medical malpractice cases, we often hear such testimony described as “The Battle of the Experts.” Defense attorneys have gotten into the habit of hiring just one more expert than the plaintiff has so that they can argue they have “more” experts on their side and, therefore, naturally, you should side with the party who has more experts (regardless of how credible those experts are!). What jurors may not be aware of is that the defense experts are being paid by the defendant doctor’s malpractice insurance carrier, not the doctor himself, so the sky’s the limit. Not so for plaintiffs. Plaintiff’s must front those expenses out of their own pockets, and because no individual plaintiff can afford to do so, this means the plaintiff’s attorney must pay for the experts in a case on his or her own dime. That may not make sense to you but that’s how it works. As you can imagine, hiring numerous experts simply to have one more than the other side has can get expensive. Where does this end? But defendants have unlimited sources of money for this and plaintiffs don’t.

Here is the law of Georgia that the trial judge will read to the jury regarding expert witnesses:

My Falling Out With Mediation

November 3, 2016 | Robin Frazer Clark

Friends: I have to confess, I back slid recently and agreed to mediation of a client’s case. I had not agreed to a mediation of my clients’s cases in several years, primarily because of a sense that mediation generally was not successful and perhaps was even counterproductive, pushing the opposing parties even further into their corners as positions became entrenched due to ridiculous positions taken during mediation, all through the implicit stamp of approval of a rather expensive mediator (who, by the way, gets paid regardless of whether he or she is successful in resolving the case). I regret allowing my client to agree to mediate his case. And again, I have made my pact with myself not to make that mistake again. Here is a short list (certainly not exhaustive) of reasons why I have fallen out with mediation of personal injury cases.

Defense counsel get away with childish, immature positions and remarks. I had a case once in which the insurance carrier wanted to try to settle prior to my filing a lawsuit. I gave them a dollar amount to do just that. They refused. They took the “so sue me” attitude. So I accommodated them and sued their insured. After two years of litigation, when the insurance carrier is in the corner because of the egregious facts that I have now exposed during discovery, I make a new demand reflecting the increase in value of the case in the last two years. Defense lawyers and the insurance adjuster say they “are hurt” by the increase and take away their initial offer in bad faith at medication. Did I not tell them that their best opportunity to settle the case was before I filed suit and litigated the case for years, and that in so doing, their case would only get worse?
Defense counsel approach me to mediate, saying “they really want to get the case resolved.” So I agree to mediation. My clients take a day off from their jobs. We are paying a mediator. Insurance adjuster offers at mediation only what was already on the table BEFORE mediation and says that’s it, take it or leave it. That’s one of the most UNprofessional things I can even imagine, yet it happens. A simple phone call to me would have sufficed. Yet they put my client through the stress and expectation that maybe finally, after two years of duking it out, they have come to their senses and want to resolve the case for what is only fair. Nope.

Can a Jury Believe What It Sees?

July 25, 2014 | Robin Frazer Clark

Can a jury believe what it sees? That may seem like a stupid question, but a new study confirms it’s not. G. Daniel Lassiter, Ph.D., of Ohio University, recently conducted a series of experiments using focus groups and videotapes of criminal interrogations. Mock juries were shown exactly the same interrogation, but some saw only the defendant, while others had a wider-angle view that included the interrogator. When the interrogator isn’t shown on camera, jurors are significantly less likely to find an interrogation coercive, and more likely to believe in the truth and accuracy of the confession that they hear — even when the interrogator explicitly threatens the defendant.

Professor Lassiter and other psychologists have consistently shown this “camera perspective bias” across a substantial series of experiments, finding in one study that even professionals like judges and police interrogators are not immune.

Along the same lines we are definitely aware that people confess to crimes they did not commit. This has been proven scientifically time after time. But why?

Did You Think He Was Guilty, Too? The Lesson from the Jim Donnan Trial

May 27, 2014 | Robin Frazer Clark

The recent jury verdict in the Coach Jim Donnan trial surprised me. I thought the jury would find him guilty. That’s because, unlike the jury, I never heard all of the evidence admitted in court. All I heard was the media’s spin on things, which led me, without a doubt in my mind, to believe the jury would convict him.

Not so fast.

Remember innocent until proven guilty? Well, the State of Georgia just never made it that far in this trial. The jury foreman said: