Bearing Witness

"We set our sights on the embarrassing target of mediocrity. I guess that means about halfway. And that raises a question. Are we willing to put up with halfway justice? To my way of thinking, one-half justice must mean one-half injustice and one-half injustice is no justice at all." --Harold G. Clarke (former Chief Justice of the Georgia Supreme Court)


By John Cole Vodicka

In our nearly two-years of courtwatching in Athens-Clarke County, it hasn't happened often that something or someone puts a crimp in path of the conveyor belt that directs our criminal legal system. Sometimes when I'm in court observing bond hearings, probation revocation proceedings or guilty pleas, I'm reminded of the children's song my wife and I once sang to our boys and now to our grandson, "The wheels on the bus go 'round and 'round, 'round and 'round....all day long." The punishment system's assembly line moves along without much to interrupt it; case after case after case is called, each heard for a short period of time and then either continued or resolved. If not prison or jail time, the accused is saddled with probation, which will include monetary fines, fees, surcharges and electronic monitoring devices and court-ordered treatment for drugs, alcohol, anger or mental illness Defendant after defendant--the majority of the persons of color and even more who are poor--appear in court to watch and listen as prosecutors and judges attempt to keep them tethered to a system that has never worked to restore, reconcile, or heal. Defense attorneys, overworked and overwhelmed with cases, are too often forced into the role of just trying to obtain a "lesser-of-so-many-evil options" for their clients. This is why last Wednesday, fellow courtwatcher Steve Williams and I were astounded as we witnessed a defense attorney use his legal skills and knowledge--and gumption--to successfully advocate on behalf of a client who, among other things, is on felony probation until 2038. In a hearing that lasted just over one hour (instead of the usual 10 minutes), Steve and I were party to a legal proceeding where the needle on the scale of justice moved, at least a bit, away from mediocrity. It took persistent and passionate advocacy on the part of a defense attorney, and it forced the court to listen up. William "Andy" T. was one of nearly 20 Clarke County jail prisoners who were brought into Superior Court Judge Patrick Haggard's courtroom that morning. Mr. T. was in court to admit to a felony probation charge and hoping that instead of receiving more jail or prison time, be returned to probation. His lawyer is Ryan Swingle, a private practitioner here in Athens. Mr. Swingle was also asking Judge Haggard to consider granting Mr. T. a probation bond if the judge was disinclined to have the mitigation hearing on the revocation charge. Mr. T. has been locked up since September 1, 2020. The State was alleging--and Mr. T. was prepared to admit--that he had violated the terms of his probation by absconding from Favor House, an Jackson County residential treatment program. As the chained Mr. T. shuffled to the defense table, Steve and I were sitting directly behind Mr. T.'s mother, who was present in the courtroom to lend support to her 40-year-old son. Sitting across the gallery aisle from us were eight bound-and-shackled prisoners whose cases were also on the day's docket. "We're prepared to go forward with the admission, your honor," says attorney Swingle. "But we'd also like to present some mitigating evidence. I have ready to testify, by Zoom, our witness, Mr. Charles McDonald, the assistant director at Favor House. His testimony will inform the court that despite Mr. T.'s leaving the program this summer, Favor House is willing to have him return and start over. I have Mr. McDonald on the line and he is ready to testify from my laptop." Judge Haggard seems startled. "Mr. Swingle, we're not going to do Zoom on the fly," he says. "You need to give me notice when you intend to have someone appear remotely. This is the first I'm hearing of it. I wasn't notified about this before now." Swingle, holding the open laptop in one hand, turns away from the judge and walks back to the defense table. He turns back to face the bench. He speaks, raising his voice: "Your honor, we're in the middle of a pandemic, my client has been in custody for four months, and my witness, Charles McDonald, is vulnerable to the virus." And, louder still: "The State Supreme Court has asked the courts of Georgia to be creative in how they conduct these kinds of hearings." Judge Haggard leans forward from above. "Mr. Swingle, I'll hear your request for a probation bond but I won't hold the revocation hearing today. You can see if your witness can be available at another date and time." Swingle asks for time to consult with his client. He does that, then sits on a bench in front of Steve and me, next to Mr. T.'s mom. Judge Haggard calls the remaining cases on the docket. Attorney Swingle opens his laptop, first to email his witness, Mr. McDonald, then to begin researching. He's quickly making notes on a yellow legal pad. After 30 minutes, Haggard calls Mr. T.'s case again. "Are we ready on the probation bond matter?" he asks Swingle. "Yes," Swingle responds, adding, "But I'd also like to proceed on the revocation hearing, too, and ask that we proceed with my witness appearing on video." "Denied." They proceed with the probation bond hearing. The Assistant District Attorney refers to Mr. T.'s criminal history, citing crimes--almost all of which are drug-related--dating back almost 20 years, when Mr. T. was in his early 20s. The probation bond hearing is short. Announces Judge Haggard: "I'm going to deny bond finding the defendant a danger to the community." Swingle is not done. He removes his face-covering. "Your honor, I'd like to have the probation revocation matter heard, with my witness appearing by video." Again, Judge Haggard: "Denied." "Then I'd like to protest on the record," Swingle responds. Judge Haggard is beginning to come a tad unglued. "Mr. Swingle! I'm not going to deal with that. I need advance notice! Contact my office and set up a time to have a remote hearing. I"m not going to hear this today." Swingle holds his yellow tablet in one hand and laptop in the other and cites the nine special judicial orders issued by the State Supreme Court since March 2020 and the pandemic's onset. "These orders tell the courts to hold remote judicial proceedings, to use technology when practical and logical," he tells the Judge Haggard. "The testimony of Mr. McDonald is important to my client but Mr. McDonald is under a doctor's care for cancer, he's undergoing chemotherapy, he's quarantined. I knew of no court order requiring me to notify your court in advance. I've had hearings in other courtrooms where my clients and witnesses have appeared virtually. This calls for some judicial flexibility." "I am not doing this today," Judge Haggard says again. "I've said all what I'm going to say." Swingle retorts, "I've said what I need to say, too, your honor." Meaning he's got what he wants on the record. At this point I look at Steve, then across the aisle at the prisoners sitting on the benches. To a person, each was leaning forward giving their full attention to what was taking place, something rarely seen in an ACC courtroom. Swingle returns to the defense table and his client. He asks if Mr. T. was okay. His client nods "yes." After a short pause, Judge Haggard begins to shift gears some, and asks Swingle if "Mr. McDonald would be available at 1:30 this afternoon? Let's reschedule until then." And then, Judge Haggard says to Ryan Swingle, as if to get in a final word, "The only apology I need from you is about your attitude." Swingle tells Judge Haggard that his witness can be available that afternoon. The judge shifts gears one more time. "I'll tell you what, if he can be available now we can go ahead and hold the hearing now." Mr. McDonald is indeed available and, just like that, Judge Haggard approves a remote hearing using Zoom and Swingle's laptop after all. Swingle connects his witness to the Zoom feed, checks the audio, places the open laptop on the rail in front of where a real live witness would otherwise sit, its screen open for the judge, prosecutor, defense attorney and defendant to see and hear. "Mr. McDonald," Swingle says, his hand raised and looking at the laptop screen, "Would you raise your right hand and state your full name to the court...." For the next 15 minutes or so, Swingle asks Charles McDonald questions, the ADA asks him a few, and Judge Haggard has one or two. McDonald's testimony is that Favor House would welcome Mr. T. back into the program, that Mr. T. had done extremely well during the six weeks he participated before absconding. McDonalds' testimony confirms that Mr. T.'s criminal history is directly related to years of drug use and abuse. After McDonald's testimony, Mr. T.--or "Andy" as he's called by Swingle--reads from a written statement he's prepared. He apologizes for his "bone-headed mistake" of walking away from Favor House. He apologizes to his mother, sitting in the courtroom, and to his two daughters who he said "have really never known their daddy." He asks for another chance at treatment. He is shaking, his voice cracks, he tears up as he talks to the judge. The back of his orange jump suit pants, caught in the chain wrapped around his waist, have fallen below his butt crack. "No excuses, Judge," Mr. T. concludes, "I'm just sick and tired of being sick and tired." The prosecutor attempts to discourage the court from allowing Mr. T. to reenter the treatment program, pushing for confinement in a probation detention center. In the end though, Judge Haggard decides to allow Mr. T. to go back to Favor House. "That'll be the order of the court," the judge says. Mr. T. thanks lawyer Swingle, who pats his client on the back, squeezes his shoulder. Mr. T. turns to the gallery and, stepping gingerly toward the prisoners' bench, passes within two feet of his mother. They look at each other quickly. "I love you, ma," Andy tells her. Other observations in ACC courtrooms this past week found us encountering a good bit of "one-half injustice." Of the cases we observed in Superior Court, most involved probation revocation hearings with underlying drug charges and convictions. Assistant district attorneys (ADA) were either asking for additional prison time or arguing against setting probation bonds that would allow defendants to be released from confinement. ADAs were almost uniformly opposed to just about anything the defense attorneys were proposing on behalf their indigent clients. And the Superior Court judges seemed to routinely deny bond and continue the conditions of probation for those who'd found themselves back in jail. Some defendants we saw were on probation for many years--10 years and longer in many instances. Here's a summary of two troubling cases we observed during this past Friday's State Court jail call: Justin C. walked into the courtroom on Friday wearing a gray jail jumpsuit, ankles bound and hands cuffed and chains wrapped around his waist. Deputies directed him to sit on the back bench, four or five rows behind where I, along with courtwatcher Kevin Moran, were sitting. Almost immediately, Mr. C., tall and thin with unkempt hair, began speaking loudly, to no one. "Anyone here named Clay? Clay--you know who you are!" The deputies tell Mr. C. to be quiet. He continues to mumble, at first softly, but then his his voice grows louder. Deputies talked to him again. His public defender, noticing they've brought Mr. C. into the courtroom, leaves the defense table and walks back to his client. The two of them sit together, the lawyer attempting to explain what's about to happen, trying to calm the agitated Mr. C. The case is called. It's a hearing in front of the State Court judge to determine Mr. C.'s bond status. The 34-year-old African American was charged with trespassing and simple battery, and is being held in jail on a $1,000 good security (cash) bond. Standing at the podium with his client, the lawyer asked the judge to grant Mr. C. an Unsecured Judicial Release (UJR) bond, telling the court his otherwise homeless client would stay at the Salvation Army shelter until his next court date, which was January 20. Mr. C. attempted to interject something but it was unintelligible. The solicitor argued against releasing Mr. C. and asked the court to keep the $1,000 bond in place. The judge decided to release Mr. C. with the condition that he appear in court on January 20. I'm certain that Mr. C. did not understand what had just transpired as he was shuffled from the courtroom downstairs to the courthouse's basement holding cells. Mr. C. was released late Friday afternoon. This morning, Sunday at 9:43 a.m., he was rearrested, charged with battery and trespassing. His total bond is now $7,000 good security (cash). He will certainly now remain in jail at least until this coming Wednesday, probably longer. It is also clear that, in addition to being homeless, Mr. C. suffers from severe mental disabilities. Jail should not be the answer to his afflictions. Joseph D., was back in State Court Friday. I'd seen the 27-year-old African American in court last month, bound and shackled, looking completely bewildered. At his previous appearance, he was granted a release on an OR bond after the judge, prosecutor, defense attorney and probation officer all agreed on the conditions that Mr. D. would have to abide by. Now, on Friday, Mr. D. was back in jail, having been arrested one day earlier for violating the conditions of his bond. Mr. D. is severely mentally ill. His original charge was misdemeanor "loitering and prowling." A neighbor had called the police after seeing Mr. D., in his pajamas, wandering along Whitehead Road "touching trees and a mailbox." At the hearing in December, Mr. D. was released from jail, with bond conditions that ordered him to wear a GPS ankle monitor and charge the device two hours each day, take his prescribed medications "in front of his mother," abide by a dusk-to-dawn curfew and not enter a court-imposed "exclusion zone" that included the address of the "victim's" residence and a nearby Golden Pantry store. Not surprisingly, Mr. D. was arrested and jailed on last Thursday afternoon, 1/15/21, charged with violating the terms of his bond conditions. His ankle monitor was not being regularly charged, but when it was it was tracking Mr. D's every move, and alerted his probation officer that he was hanging around the Golden Pantry parking lot. He'd also been staying away from his mother's house beyond the 6 p.m. curfew. The hearing on this past Friday seemed nothing short of surreal. We observers listened as Mr. D.'s public defender told the court that his mentally challenged client has a good friend who lives near the Golden Pantry--"right behind the store"--and the most direct route to the friend's house is to cut through the store's parking lot. At another point the lawyer suggested that Mr. D. "get a watch" so he would "not have to look at the sun" to tell when it was time to head home. An argument was made that, given Mr. D.'s mental health, he has a hard time "breaking habits" and taking a different, authorized route to his friend's house was problematic for him. Mr. D.'s mother, appearing remotely from home, said she was monitoring her son's medication but that the "new drugs prescribed by Advantage (Behavioral Health Systems) were making him do weird stuff." At one point the prosecutor claimed Mr. D.'s behavior was "an issue of community safety." And the judge told Mr. D. that he would have to remain in jail until the probation officer could reinstall the ankle monitor (which had been removed when Mr. D. was jailed). The probation officer said the earliest she could latch the monitor would be Tuesday, January 19. The judge then asked Mr. D. to "repeat after me these three rules: Charge your monitor two times a day, stay out of the exclusion zone, take your medications." A fourth rule was added: "You must call your probation officer every morning if you want to take a walk, and you can only be away from home from 11 a.m. until 6 p.m." And, yes, the judge had yet one more condition for Mr. D. to try to remember: "I want you to not have any violations from January 20 through January 25." Mr. D. is in our jail tonight, waiting for his Tuesday evening (January 19) release. Remember, Mr. D. is still presumed to be innocent and has not been convicted of the November 2020 misdemeanor loitering and prowling charge.

Overheard in the courtroom.

  • "You don't have to pay the fine immediately or all at once. Municipal Court has a pay-as-you-can plan. I know these are difficult financial times for many right now." -- Municipal Court Judge Ryan Hope explaining to a DUI defendant that he wouldn't have to pay his $852 fine in one lump sum. Replied the young white male defendant: "It won't be a problem for me, your honor. I'm prepared to pay the fine today. I work for a gun dealership and our sales are up. We actually have a problem now of keeping inventory in stock."

  • "I need to get medical attention before my gut explodes." -- David A., a 46-year-old misdemeanor defendant speaking remotely from the Clarke County jail during his bond status hearing at State Court's jail call. Mr. A. has been locked up since January 1, 2021, charged with driving with a suspended license and violation of the open container law. During his hearing, his lawyer told the court that Mr. A. suffers from advanced Hepatitis C and liver failure. "My stomach looks like a grapefruit growed inside it," Mr. A. told the court. "I gained 15 pounds in the two weeks I been in here, judge." The jail won't provide Mr. A. with the medical care needed, which according to his lawyer, would be to have his swollen stomach drained. He had an appointment for this medical procedure at Mercy Clinic, his health care provider. But he was arrested first. Mr. A.'s mother, sister and partner all spoke to the judge via StarLeaf, telling the court that "David is mentally and very physically ill. It takes all of us to manage his day-to-day needs." Upon his arrest, Mr. A. was given a $1,000 good security (cash) bond by the magistrate judge. He and his family all told the court they have no money to post bail. Mr. A. was requesting that his bond be reduced to a non-money, Unsecured Judicial Release (UJR) bond. "I'd like to get out and get my stomach drained so I can live a little longer," Mr. A. said as a matter of fact. "I don't want to lose my son," his mother added. The prosecutor recited Mr. A.'s history with alcohol and other driving offenses, telling the courtroom, "It's Mr. A.'s lifestyle choices that are the reason for his health issues." In the end, the judge was willing to release Mr. A. on the UJR bond, but only after he was fitted with an alcohol monitoring (SCRAM) device. The device costs $119 and, according to the probation officer, Mr. A. would be "number three on the indigent list" but even if Mr. A.'s family could pay the installation fee, the earliest Mr. A. could be hooked up would be Tuesday (1/19). If that doesn't happen, Mr. A. is likely to remain in jail at least until January 25, when he's next scheduled for a hearing on the misdemeanor charges. "I love you guys," Mr. A. told everyone in the courtroom and on the remote call. "Please, y'all get me out of this mess if ya can."

  • "Are you two twins?" --a prisoner's mother sitting behind me and my fellow courtwatcher Steve Williams, in Superior Court on last Wednesday morning. The woman and her sister were there to offer support to their imprisoned loved one, who they thought would appear in the courtroom. Unfortunately, the prisoner's lawyer had already had the case continued before the two women arrived, and they missed out on at least catching a glimpse of their son and nephew. During a break, Steve and I had turned around to acknowledge their presence and to encourage them to talk to a sheriff's deputy so that their jailed loved one would know they'd been in the courtroom, albeit too late. Steve and I both laughed when questioned about our being twin brothers, but we both know that, peering out from over our coronavirus masks--which leave our eyeglasses and white bald heads exposed, and the because we're just months apart in age, that it is not a stretch to think we might be brothers. "Yes, we are twins," I jokingly answered the women, and looking at Steve said, "he was born 15 minutes before me." Piped in Steve: "John's the better looking one." And me, looking at Steve: "But mom always liked you best." The four of us burst into laughter, introducing ourselves and making small talk. A few minutes later, as the women got up to leave the courtroom, having not had the chance to be in the presence of their incarcerated loved one, the aunt tapped me on the shoulder, saying to us, "Bye-bye. Good to meet you. And thanks for the giving us a chance to laugh."

Jail roster.

Tonight 329 women and men are confined in the Clarke County jail. 244 of this week's total are African American; 10 Latinx; 1 Asian American. There are 22 women locked away in our jail today. 46 (13%) prisoners have been in the jail for one year or longer. 72-year-old George F. remains in custody (since July); two 66-year-olds are locked up, along with one 64-year-old; one 62-year-old; two 61-year-olds; and one 60-year-old. All told, 45 people (13%) 50-years-old and older are in confinement. There are four 18-year-olds and five 17-year-olds in jail. Over the last seven days local law enforcement arrested and booked 77 people into the jail, 55 of whom were BIPOC. 45 of those arrested were charged with misdemeanors. The remaining 32 charged with felonies. Of the 329 human beings in our jail, 66 are locked away who have good security (cash) bonds of $3,000 or less.


COVID-19.

As of yesterday (1/16/21) morning, the Georgia Department of Corrections is reporting cumulative totals of 1,456 prison staff members testing positive for COVID (up 77 from the previous week), with 1,270 recoveries (up by 64) and 2 deaths. 3,000 prisoners have tested positive (up by 129), with 2,685 recoveries (up by 142) and 87 deaths (up 1). The 129 Georgia prisoners testing positive this past week makes it three weeks in a row that the number tops 100. The GDC has again postponed the reopening of the state's prisons for visitation at least until 1/29/2021.

Good friend Al Lawler sends us this weekly update. Al, a long-time courtwatcher, lives and works at Jubilee Partners in Comer, GA. Thank you so much, Al.

COVID COVERUP AT OUR JAIL? We're hearing from folks on the inside that an entire area of the Clarke County jail has experienced an outbreak of COVID-19. We have not been able to confirm this--even with the change of administrations the sheriff's office isn't providing information to the community as it should have been doing since the onset of the pandemic last year. We have noted that there's been an uptick of prisoners who have been unable to appear in court (or even remotely from the jail) because they've been "COVID-quarantined." Still no one is being tested at the jail (coming or going). Equally disturbing is that prisoners who do appear remotely for court hearings are made to sit side-by-side--no more than one foot apart from one another--on the benches in the jail's small courtroom. Similarly, in Judge Haggard's courtroom in the courthouse, prisoners brought from the jail to appear in person at their hearings are also seated side-by-side in the pews reserved for them. This past Wednesday as many as 8 prisoners were stacked together on one of the benches, individually chained and shackled. They were not safe-distancing. And on Friday in State Court, it was announced that one misdemeanor defendant on the docket, Jeremiah C., was in jail and would not appear because he was "being COVID-quarantined." He had just a few weeks left to serve in jail, his release date January 28. Because of his possibly being COVID-positive, his lawyer asked the judge to consider allowing him to get out of jail now. Argued the prosecuting attorney, "If he's being quarantined, why would we want him out in the community?" Mr. C. is still in jail.


A continued reminder from BEARING WITNESS:

For me, and for everyone on our courtwatch team, it is always shocking to see people--the vast majority of whom are African American--in shackles. It's something from the Middle Passage or Jim Crow era. It's humiliating and demeaning. And it certainly sends the message to defendants, as well as to courtroom personnel and observers, that all the rights the courts say people have--particularly that they are innocent until proven guilty--are essentially meaningless.

For anyone who is jailed and is brought to an Athens-Clarke County courtroom, there ought to be, at a minimum, the appearance of dignity and self-respect of a free and innocent person. Instead, as the great-aunt of a Black defendant told me one day in the courtroom, "It looks like slavery days. It ain't human and it ain't right."

Let's demand change! Please contact the following individuals to urge them to change former Sheriff Edwards' policies and UNSHACKLE ALL Athens-Clarke County pre-trial prisoners when they appear in our courtrooms!

Sheriff John Q. Williams: sheriff@accgov.com Chief Judge Eric Norris: eric.norris@accgov.com District Attorney Deborah Gonzalez: deborah.gonzalez@accgov.com Solicitor C.R. Chisholm: crchisholm@accgov.com


John Cole Vodicka has spent over 40 years in the South as an activist, community organizer and writer. A graduate of LSU-New Orleans, John has worked since the early 1970s to challenge and dismantle the criminal legal system as we know it in Louisiana, West Virginia and Georgia. John lives in Athens, Georgia and, while mostly retired, coordinates the all-volunteer "Athens Area Courtwatch Project," which seeks to shine a light on what goes on in the Athens-Clarke County criminal courtrooms. He also researches and writes about lynchings that have occurred in northeast Georgia. johnvodicka@comcast.net

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