Back in January, I created the Shingular Sensations series, intended to spotlight a significant victory or accomplishment by a solo.  Shingular Sensation posts are not vanity pieces, but rather, interviews that I carefully design to glean lessons to help other lawyers.

This installment of the Shingular Sensation series belongs to Georgia solo, Warren Caswell.   Just five years out of law school and a solo for his entire career, Caswell received what at the time must have seemed like an impossible case: post-conviction representation of an indigent defendant found guilty by a jury of his second failure to register as a sex offender.   Based largely on hearsay, the jury concluded that the defendant had moved to a new residence when in fact, he was simply visiting his mother in the next county.   And as if Caswell wasn’t under enough pressure to reverse a jury verdict, the stakes were raised even further by draconian sentencing laws that resulted in a mandatory life sentence because of a failure to fill out necessary paperwork!

After reviewing the transcript, Caswell initially intended to attack the verdict as insufficient due to admission of hearsay.  But an interesting conversation with jurors post-verdict lead Caswell to consider a constitutional argument that the duration of the sentence was so utterly shocking and contrary to societal notions of proportionality that it violated the Eighth Amendment’s prohibition on cruel and unusual punishment.  In the end, both the hearsay and the constitutional arguments carried the day.

Read this interview to learn what it was like for Caswell to represent a criminal defendant in his most desperate hour and to see the amazing process that lead to the development of the constitutional argument.

1.  Please share a little about your background.

I graduated from LSU law school in 2003 and went solo straight out. I practiced in insurance defense in Baton Rouge for 1 year before returning home to Georgia and opening my second solo office in late 2004.  Since opening my Georgia office I practice primarily in criminal defense, but I also represent several small business owners in the areas of law important to them- litigation, entity formation and governance, family law, wills and estates, etc.

2.   Do you specialize in criminal law?  How much experience do you have in criminal law and with sex offender clients specifically?

Criminal Law is not an area in which I have received a specific recognition as a specialist nor have I ever attended any education to be accredited as a specialist.  However, since I began practicing in Georgia I have handled in excess of 250 separate cases and I am under contract with the State of Georgia to serve as the conflict defender for the Northern Judicial Circuit, which encompasses five counties.

This was the first sex offender registration case that I have handled though I have previously served as second chair to our Circuit Public Defender in a child molestation case and I currently have a child molestation/statutory rape case on my own docket.

3.   How did this client find you?

This client was represented by the Public Defender through trial and after verdict the client filed an ineffective assistance claim against the office.  This was probably a purely strategic move as IAC claims are now direct appeal issues in Georgia.  I personally know that the attorney who represented my client through trial is an excellent attorney.  However, after filing the IAC claim the Public Defender’s office was conflicted out of the case and it was pushed to me pursuant to my contract for conflict representation.

4.   Where there any plea offers made in the case?  What motivated the decision to take the case to trial, particularly with such high stakes?

The plea offer in this case, prior to trial, was a life sentence, which was in effect no plea offer at all.  That offer was first made several weeks before trial and it never changed.  The District Attorney’s unwillingness to negotiate with the defense pushed this case to trial on its own.  However, my client was fully convinced of his innocence, both before and after trial, and would likely have refused any plea bargain.

5.  What sentencing guidelines applied to the failure to register charge?

The failure to register charge carries a mandatory minimum of a life sentence.  When the verdict of guilty was given,  the Judge’s hands were tied.  My client was aware of this and knew what the penalty would be.

6.  What did it feel like when the jury convicted your client?  Did you second guess your decision to go to trial at that point?

I wasn’t trial counsel and wasn’t present in the courtroom when the verdict was handed down.  However, after reading the transcript I was shocked at the verdict.  As I was reading the transcript looking for evidence to support the motion for new trial as well as the IAC claim I could take no fault with the decision to go to trial- it was absolutely the right thing to do in this case.

6.  Did you receive any feedback from the jury on its reasons for conviction?  Why do you think the jury reached that decision?

Yes, I attempted to conduct an interview with all of the jurors in this case as part of my investigation into the courtroom proceedings.  I also wanted to know how they came to their verdict.  Some of the jurors would not discuss the case but several were happy to discuss it.  Some of the jurors that did speak indicated that they did not believe that it was a very good case for the State, but that they were not going to believe my client or his family over the testimony of the police and probation officers who testified.  Other jurors simply didn’t believe my client at all and felt it was an excellent case for the State.  However, unanimously they were all shocked when I informed them of the Judge’s sentence according to the law.  Three jurors specifically stated to me that they would never have voted guilty had they been told the minimum sentence prior to verdict- each believed that the most my client would receive would be probation and a leg monitor.  I suspect that even more of the jurors would have voted not guilty had they been informed of the sentence during trial.

6.  What did you do to prepare the motion for a new trial? What issues did you think were most compelling?

The motion for new trial had been filed just days prior to the IAC claim by the public defender.  When I was put onto the case there was already a great push for a hearing and I was forced to go with the motion for new trial filed by the public defender.  I was forced to concentrate on preparing my arguments rapidly so as to effectively represent my client.

The transcript clearly illustrated the compelling issue of the hearsay which had made it into evidence in front of the jury.  Hearsay, even without objection, is inadmissible in Georgia and cannot form any basis for conviction.  The most damaging statements against my client were made by an unidentified and unavailable Hispanic man to the arresting officer.  This unidentified male told the officer that my client was “living” at the unregistered address.  The officer, a sheriff’s office investigator responsible for monitoring sex offenders, never went back to locate this person and never attempted to identify him.  Secondly, the transcript clearly stated the motion for directed verdict made by the trial attorney and her reasons therefore; further it recorded the Judge specifically reserving his ruling on it until later.  However, the ruling was never made and I decided that it was worth the shot to spare my client a second trial, which I felt he would probably lose, and attempt to get him acquitted now before his life was irrevocably impacted.

However, the most compelling issue, to me, came from the jurors themselves.  The jurors’ absolute shock as to the sentence given on their verdict triggered me to believe that this was a potential 8th Amendment claim.  Cruel and unusual punishment is gauged based upon a community standard according to the Supreme Court.  If 100% of the jurors that would speak to me were shocked at this sentence surely others would also believe it was cruel and unusual.  At some point that group of people would be large enough to represent the necessary “community” to render the mandatory minimum unconstitutional.  It was then that I decided this argument had to be made.  It also taught me to pay more attention to my own reactions.  I had already had the same shocked reaction to the verdict and the sentence, but the Constitutional issue hadn’t formed in my mind.  The punishment of sex offenders makes great political rhetoric but can make extremely bad law- especially when the public trying those cases cannot be informed of the consequences of their verdicts.

I proceeded, and argued, the unconstitutionality on two prongs.  Firstly, I argued that the sentence was unconstitutional as applied.  My client is in his early twenties and was charged, essentially, with failing to fill out some paperwork indicating he moved.  He hadn’t moved, but even if he had a life sentence for not telling the Sheriff that you were going to move is cruel and unusual.  Secondly, I argued that the sentence was unconstitutional as a matter of law.  My argument was based largely on the same reasons.  The registration statute essentially requires the sex offender to fill out some paperwork, keep it up to date and renew it every year.  There are also some provisions requiring the payment of fees and restrictions on where the sex offender can live (which have been found unconstitutional by our State Supreme Cout in another case:  Mann v. Georgia Dept. of Corrections, 653 S.E.2nd 740 (Ga. 2007).  Sending a person to prison for the rest of their life for failing to fill out paperwork, pay a fine, or living in the wrong place is extremely harsh.  Ultimately the court accepted the broader argument that the mandatory minimum was unconstitutional as a matter of law.

7.  What chances did you believe that you had of winning on a motion for new trial?  Were you prepared to appeal had you lost?

My chances of winning a new trial were extremely low.  I was aware of this fact going in, and made sure my client was prepared for it.  One of our judges, who has been on the bench for 11 years, has never granted a single new trial motion.  We have two other judges on the bench in our circuit, one has sat for 12 years and the other for 9, and they also, to my knowledge, have never granted a new trial motion in a criminal case.  Despite these statistics I was confident that I had a winner in this case.  The facts of the prosecution’s case stunk and simply did not hold the legal water to support a conviction.

I was absolutely prepared to appeal if I had lost.  The conviction in this case should never have been had and the fact that my client, who is in his early 20’s, was going to pay for that conviction with the rest of his life was unacceptable.  The Constitutionality of the sentence alone warranted an appeal regardless of what the facts were.  The decision in this case created precedent that if a sex offender took  a vacation and didn’t change his residence to his hotel room then he was potentially forfeiting the rest of his life.  Such a punishment for the failure to fill out simple paperwork is unheard of in a free society- and I dare say that it is unheard of in most dictatorial societies as well.

8.  What was your relationship like with your client and his family at this juncture of the case – i.e., after the verdict, but before your victory?.

My client and I never set eyes upon one another until the day of the hearing on our motion for new trial.  He was already serving his sentence, and had been serving for several months when I was appointed, in a south Georgia prison approximately 200 miles from my office.  It was impossible for me to arrange a visit with my client prior to the hearing between my own court docket and the bureaucracy of the Department of Corrections.

Unfortunately, as so often happens with cases involving indigent persons, my client’s family had effectively abandoned him after his conviction.  They too were indigent and under-educated.  They lacked the funds necessary to make a long drive for purposes of visitation, and further lacked the time.  The choice for them was pay for bills and food or visit their son.  They took no interest in their son’s case after he lost, or my work to attempt to rectify the situation.

Despite this my client was simultaneously skeptical, hopeful and confident in my abilities.  Clients with an appointed attorney often want to see proof that we care about their case and that the attorney is actually working for them.  We communicated constantly through the mail and he worked tirelessly researching his own case as best he could and suggesting arguments to be used at the hearing and on appeal.  He quickly accepted that I did have an understanding of his case and was working for him as best I could.  After our hearing, but before the decision was given to us he even wrote me a thank you  letter- “regardless of how the judge decides.”

9.  You mentioned that you properly preserved your motion for directed verdict.  What were the consequences of failing to do so?

The Public Defender properly preserved her motion for directed verdict.  Had she failed to do the issue would have been waived- both at the motion for new trial and on appeal.  This would have required that my client face trial for a second time.  This would have been a losing proposition.  My client desperately needed a bench trial in this issue because jurors simply don’t want to set anyone free that has already been labeled a “sex offender”.  However, the State was absolutely opposed to a bench trial- I suspect for exactly the same reason.  Therefore, my client would have experienced Déjà vu, his life slowly melting away before him as the jury came back and enduring the whole process of motions and appeals all over again.  Further, the process would have taken time- time my client shouldn’t have had to waste.

10.  What advice do you have for Georgia lawyers – and more broadly for any criminal lawyers – handling sex offender cases?

First let me say I feel odd giving advice to any other lawyer about any topic.  I’m still too young and will have only been in practice for 5 years in October.

For Georgia lawyers, recognize that we have draconian sex offender laws, more so than any other state in the union and that we have a jury pool that is largely unaware of exactly what they are.  What our public does know is that sex offenders are evil and that the threat they pose must be diminished.  That means we must take the time to educate our jurors as to what one must do to become a sex offender.  For instance, in my client’s case he was 19 and wrote letters to a 14 year old girl whom he thought was of majority about what he felt about her and how he would like to express his feelings.  He never touched her and he was never alone with her.  We also have to stand up and fight for our client’s rights, make the courts sit up and take notice of what our legislature has done in this area of law and scrutinize it for constitutional compliance.  After we educate them about how a person becomes a sex offender- and how they can still be people once labeled a sex offender- we must educate our jurors about the consequences their verdict could have on the life of our client.  Our jurors may not like sex offenders, but as my jury showed they like harsh and uncalled for punishment even less.

Much of that advice will also apply to any criminal lawyer.  When we fight for our client’s rights we have to be prepared for the fact that it is going to be unpopular.  Punishing sex offenders is popular, getting them off on “Constitutional technicalities” is not.  We must take extreme caution when handling a case that will place our client on the sex offender registry.  If a plea is necessary then look at the requirements of the registry and see what your client can live with and what he can’t.  Does your client have children?  If so, most state registries prevent him from living within a certain distance of children- including his own- unless he has a court ordered exception.  It is much easier to gain these court ordered exceptions prior to entering a plea than it is to modify a sentence once it has been handed down.  Also, remember that as part of plea negotiations ask to have the charge reduced to a non-registry sex offense or seek to get the registration requirement waived.  Before a verdict of guilty the power is still in the hands of the defendant.

Also perhaps the best advice I can give for representing sex offenders, or any other defendant, is to listen to your gut.  After my research and preparing my arguments I instinctively knew that I had to argue for a ruling on the directed verdict at our hearing for new trial.  However, my colleagues whom I had consulted on the issue ardently opposed my strategy.  They were certain that I was asking for trouble and perhaps even jeopardizing my client’s chances at receiving a new trial.  Fortunately for my client, I ignored them.

Also, remember that if your client is charged with failing to comply with the requirements of the registry it isn’t necessarily an open and shut case.  Just because your client either did or did not comply with the registry does not mean there weren’t issues beyond his control which caused his non-compliance.  Perhaps he was injured and couldn’t report, perhaps some child or family moved into the prohibited range without the client’s knowledge.  Research and investigation are indispensible in these cases; they will provide you the facts you need to negotiate your case or take it to the jury.  Facts are where you win or lose any sex offender case.  Finally, just because your office is small doesn’t mean you can’t take on these cases, fight them and win.  My office is just me, not even a secretary and we certainly don’t have an investigator.  All it takes is a willingness to rub a little shoe leather on the pavement and to take a few hits on the chin.

11.  Any final remarks?

This case has a bigger meaning for me than simply my first big win.  Because this is not a victory of the Eight Amendment to me, instead it is a victory of the Sixth Amendment.  This is a case where indigent defense, the Public Defender system, worked.  Public Defenders and the public defense system, particularly of late in Georgia, are often maligned and regarded as something less than what a private attorney, like myself, can offer.  The truth is public defenders can deliver results which preserve the freedom and the lives of their clients.  My victory would not have been possible if not for the fact that the Public Defender in this case preserved her motion for directed verdict; by doing so she preserved the short-cut path to victory.  As a result, after 9 months my client is walking out of prison and away from a life sentence.  This case proves- beyond any reasonable doubt- that the Sixth Amendment has the power to change a person’s life.