Summary: The Prosecuting Attorneys Council wanted to pass an expansion
of search warrant powers, but didn’t want to do it openly. Their
almost-successful strategy: convincing defense attorneys that they would block
much-needed eyewitness identification reform and force an even greater
restriction of 4th amendment rights unless the criminal defense bar agreed to add
HB430 after the legislative deadline; this agreement was then used as a shield
against criticism. Defense lawyers who took the position “we want eyewitness ID
reform but NOT search warrant expansion” were told that that simply wasn’t an
option. Fortunately, we were able to get through the prosecutors playing
liberals and conservatives against each other, and the sponsor of SB94
recognized that we all have a common interest in preventing government
overreach and abuse. Almost all of HB430 was removed from SB94, and eyewitness
ID reform didn’t have to be purchased at the expense of the 4th amendment.
SB94 started
out strong in the 2015 legislative session. Barely three pages long, the
original bill required all Georgia law
enforcement agencies to adopt written eyewitness identification procedures
including best practices such as: using multiple fillers, having lineups
conducted by officers who don’t know the identity of the suspect, using fillers
who generally resemble the suspect, and other common-sense measures designed to
increase reliability and reduce mis-identification. It was sponsored by two
popular Republican senators, the Secretary of the Judiciary Committee and the Majority Caucus Chair. Media coverage
was favorable.
The Senate
Judiciary Non-Civil Committee added some weakening language about failure to
follow written procedure not mandating exclusion of identification evidence,
but the version of SB94
that passed the Senate 53-0 on Feb. 26, 2015 was a good bill. Having passed one
chamber of the General Assembly well before March 13th (Crossover Day), SB94
was on track to receive the same highly favorable treatment in the House that
it had received in the Senate – a big win for the tireless advocates who had
been fighting for years to reform flawed eyewitness procedures.
Unfortunately,
HB430 intervened – 33 pages of reducing 4th amendment protections through
secret search warrants and other expansions of government power over
individuals who haven’t been charged with crimes. Although this massive expansion of search warrant powers hadn’t passed the House before Crossover Day, Chairman
Rich Golick of the House Judiciary Non-Civil Committee brought it up on
March 18th during the committee’s first hearing
of the day, (video),
to be added as an amendment to an as-yet-undetermined Senate bill (termed a
“vehicle bill”, a term in the legislature that allows either chamber to attach
a bill they want to slip through the normal review and debate process with as
little input from the public as possible).
The Committee
hearing on SB94 was scheduled for 3:00 p.m. on the same day, and the agenda
for the hearing did not mention the proposed inclusion of HB430. Indeed, at
that 3pm hearing,
sponsor Senator Charlie Bethel (starting at 36:40) discusses SB94 solely
in the context of identification procedures. While he mentions “interest” from
the prosecuting attorneys council in adding language to the bill, and that he
is amenable, there is no discussion of the search warrant expansion until
Chairman Golick moves to offer HB430 as an amendment to SB94. No description of
the content of HB430 is offered, though Rep. Ed Setzler moves to amend the
amendment as to the language involving body cameras and that provision (to
exempt law enforcement officers from existing privacy laws) is discussed for
approximately 20 minutes. The amendment to the amendment failed, but the
amendment to attach HB430 to SB94 passed the committee, and the revised SB94
bill was approved on the House floor a few days later.
After passage
in the House, the revised SB94 was headed back to the Senate. This new version
clocked in at 35 pages and included the full text of HB430 – the prosecutors’ expansion of search warrant powers. This was where I became involved, having previously been
focused on the trio of no-knock search warrant legalization bills and HB310, creating the Department of Community Supervision. An eagle-eyed colleague noticed HB430 on a House report,
and after reading it I was absolutely shocked that it could have possibly been
attached to SB94. I assumed treachery was afoot, and alerted my fellow criminal
defense lawyers that their efforts on eyewitness identification reform were
being undermined.
I was told that
the Georgia Association of Criminal Defense Lawyers had agreed to attach HB430
to SB94. It was explained to me that HB430 was definitely going to pass, that
previously it had been even worse (including a good faith exception to the
exclusionary rule to mirror federal practice), and that agreeing to attach it
to SB94 was the only way that the defense community would be able to avoid that
good faith exception becoming law. The GACDL representatives saw our situation
as desperate, and were willing to accept even such an obviously
prosecutor-focused “reform” as HB430 in order to hold off worse consequences.
But here’s the
thing: there’s an awesome, diverse coalition of citizens who are sick of big
government sneaking around and seizing more power for itself. This coalition
spoke out against no-knock search warrant legalization and were successful in
holding off three bills that would have legalized that dangerous practice. This
coalition spoke out against HB310 and saw half the Senate not show up for the
vote on that bill. And we were ready to speak up against the prosecutors’
caucus sneaking HB430 onto the important eyewitness identification reform
provisions of SB94 whenever that bill was going to be heard in the Senate
Non-Civil Judiciary Committee.
Every time we
talked to legislators about it, there was one refrain: “But the defense
attorneys agreed to it, so it must be good!” That’s how powerful the GACDL
endorsement was – it served as the shield and justification for HB430. Without
that endorsement, HB430 was in serious jeopardy, but our GACDL representatives
were convinced there was no possibility of removing it without jeopardizing the
original SB94.
Fortunately, we
were able to connect with the sponsor of SB94, and helped him realize that
supporters of HB430 had not given him the full picture of the bill – calling it
only a “search warrant modernization” without revealing the true extent of the
expansion of powers involved. When SB94 came back to the Senate on the last day
of the 2015 legislative session, Sen. Bethel offered-up two amendments to the
Senate to remove almost all* of the provisions of HB430, and return SB 94 to
99% of its original purpose. These amendments passed the Senate by a wide
margin, and the new SB94 then went back to the House that evening to pass the
House. It is now on the Governor’s desk awaiting his signature.
The
moral of the story: we shouldn’t give up on fixing bad
laws – and we definitely shouldn’t agree to making more of them.
*The two that
remained, regarding intangible evidence and privacy exception for police body
cameras, are problematic in their own right. More on that to come.
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