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Two Recent Appellate Reversals

Court of Appeals Reverses in Two Cases

As a Criminal Defense Attorney, Criminal Appeals Attorney and Sex Offender Registration Removal Attorney, I know from experience that the victories must be celebrated and relished.  I am therefore happy to share two recent victories that resulted in excellent outcomes for my clients.

Illegal Search and Seizure

P.H. was an overnight guest at an apartment.  One day, the cops knocked on the door.  P.H. opened the door, and the cops came storming in.  P.H. was eventually arrested and charged with numerous serious drug offenses.  

I filed a motion to suppress the entry into the apartment and eventual search of the apartment and P.H.  The cops and prosecutors claimed the entry was justified.  The cops had been given a very vague description of a man suspected of theft and drug charges.  They believed a man standing behind P.H. when he opened the door matched that vague description.  When the man ran upon seeing the cops, they believed they were justified in entering the apartment based upon exigent circumstances and, specifically, the "fleeing felon" doctrine.  

The motion to suppress was denied, but the trial court issued what is called a certificate of immediate review.  Denials of motions to suppress are not directly appealable before trial, and you have to get the trial judge's "permission" to even try.  After the certificate of immediate review was issued, the Court of Appeals granted my application for interlocutory appeal.  

After reviewing the briefs of both parties, the Court of Appeals agreed with me and reversed the denial of the motion to suppress.  The Court of Appeals ruled that the cops did not have probable cause to arrest the other man in the apartment, and therefore lacked the right to enter the apartment without a warrant. 

All of the evidence obtained inside the apartment was obtained illegally, in violation of the Federal and Georgia Constitutions.  Instead of facing decades in prison, P.H.'s case was subsequently dismissed.

Violation of Constitutional Right to be Present

J.B. was convicted of trafficking in cocaine and related charges.  He was sentenced to 20 years, with 10 to serve in prison.  Ben came on board to handle the appeal.  One of the issues on appeal was whether J.B.'s constitutional right to be present was violated when the trial court conducted a portion of the jury selection process outside of his presence.  

The answer to that question was "yes."  J.B. was 15-30 minutes late to the second day of jury selection because he was having trouble finding a parking spot.  In that period of time, voir dire of at least one juror was conducted and another juror was dismissed.  J.B. did not know what had happened until he later read the trial transcripts.  

Criminal defendants have a constitutional right to be present at all critical stages of their case.  Jury selection is a critical stage.  The right to be present can be waived in numerous ways, and on appeal the State argued that J.B. had waived his right to be present.  However, the asserted waiver principles only apply once jeopardy has attached.  In a jury trial, jeopardy does not attach until the jury has been selected and sworn in.  

The Court of Appeals rejected the State's argument and reversed J.B.'s conviction.  Instead of serving 10 years in prison, J.B. will be coming home to his family very soon.  


"Without a Doubt the Best"

"I would highly recommend Ben. There were not any surprises or extra costs. He was very clear on what to expect. Even more impressive was what happened before I went to court and while in court, everything happened exactly as Ben had told me it would. When I was in the court room and Ben needed to make things happen, he was so articulate I felt as though I had an entire team of lawyers."

"Truly an attorney with not just intellect but heart!"

"When Mr. Goldberg came into my life, he went against all odds, believed in my innocence, fought for my justice, and supported me as my lawyer and my friend. I personally believe that when Mr. Goldberg chose to practice law, his goal was not money nor prestige, but was only the well-being of the client. More specifically, he values the lives of the individuals he represents and provides them with the best defense to see to it that justice is served."

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