Conviction Affirmed, Dissent Attacks Testimony Of Former Judge

The Georgia Supreme Court upheld the malice murder conviction of a defendant for the shooting death of a police officer.

The defendant was 17 years old at the time of the offense.

The court rejected an ineffective assistance of counsel based on the defense attorney’s failure to object to testimony of a former juvenile court judge who had presided over cases involving the defendant.

Justice Benham dissented on the sentence and the testimony issue

In addition to the constitutionality of the sentence imposed, I write because the testimony of Tracy Graham Lawson is deeply troubling whether or not an ethical violation occurred regarding her former status as a juvenile court judge for Clayton County. I believe counsel was deficient when he failed to object to her testimony at the sentencing hearing and that such deficiency was  prejudicial to Bun.

Lawson, who was never tendered as expert, was allowed to testify, among other things, that Bun began his “criminal career” at the age of ten, that she had Bun detained at the age of 13 because she was afraid of him, and that no one could change his behavior patterns. Although Lawson was no longer a juvenile court judge with any authority over Bun after December 2008, she was also allowed to testify about incidents occurring after her judicial tenure and for which she could not possibly have first-hand knowledge. Lawson called Bun a “menace to society,” she said that Bun “scared [her] from the very beginning,” and opined, “You can’t change this young man, I’m convinced of it.” Lawson also said she knew the victim, said the victim was “a wonderful human being,” and said she disqualified herself from prosecuting Bun in the instant case because she believed she could not be impartial.

Whether or not allowing Lawson to testify was a technical violation of judicial ethics, her testimony certainly had the appearance of impropriety inasmuch as Lawson was given a platform, under the guise of her professional status as a former juvenile court judge, to give her personal opinions about Bun while simultaneously admitting she could not be impartial where Bun was concerned. The fact that Lawson was no longer a judge at the time of her testimony does not mitigate the prejudicial effect the weight of her opinions had on the outcome of Bun’s sentencing. Indeed, I can think of no case where a former judge has testified against a defendant in a current criminal proceeding and essentially testified as to her personal opinion on the defendant’s predilection for criminality. When a defendant has a prior criminal record, we allow the certified copy of that prior record to speak for itself. We do not allow former prosecutors, former defense attorneys, and former judges involved in the prior case to testify about a defendant’s character for sentencing purposes or otherwise.

Justice Hunstein agreed that trial counsel’s failure to object amounted to ineffective assistance. (Mike Frisch)