“He Took It Like a Man”: Harvey Weinstein’s Conviction and the Limits of Discrimination Law

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman comments on the recent conviction of Harvey Weinstein for criminal sexual assault in the first degree and rape in the third degree. Grossman points out that our country’s antidiscrimination laws do not actually protect the people they intend to protect, instead focusing on employer policies and procedures. She argues that we should take this opportunity to learn from the system of criminal law, which did work in this case, to fix the antidiscrimination laws that purport to protect against sexual harassment and misconduct.

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Dept. of Public Safety v. Ragsdale

Docket: S19G0422

Opinion Date: February 28, 2020

Judge: Ellington

Areas of Law: Civil Procedure, Criminal Law, Government & Administrative Law, Personal Injury

Matthew Ragsdale filed this personal injury action against the Georgia Department of Public Safety (“DPS”) after he was injured during an October 31, 2014 motor vehicle accident that occurred when Ross Singleton, the driver of another vehicle, fled from law enforcement. Ragsdale sent an ante litem notice to the Department of Administrative Services (“DOAS”) on December 3, 2014. The notice provided on that date failed to include all the information required by OCGA 50-21-26 (a) (5). Ragsdale filed suit, but dismissed this initial filing based on the deficiency of his first ante litem notice. Thereafter, in March 2017, Ragsdale sent a second ante litem notice to DOAS. Ragsdale then renewed the action, and [DPS] filed its motion to dismiss the appeal, contending that the March 2017 ante litem notice was untimely. In response, Ragsdale argued that because he was the victim of Singleton’s crime, the time for filing the ante litem notice had been tolled “from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated” pursuant to OCGA 9-3-99. The trial court agreed and denied the motion to dismiss in a single-sentence order, citing Ragsdale's arguments in response to the motion to dismiss. The Court of Appeals affirmed the denial of DPS’s motion to dismiss, following cases in which that court had previously “determined that limitation period tolling statutes apply to the period for filing ante litem notice as well as for filing suit.” The Georgia Supreme Court found the Georgia Tort Claims Act's ante litem notice period was not subject to tolling under OCGA 9-3-99.

Parham v. Stewart

Docket: S19A1498

Opinion Date: February 28, 2020

Judge: Harold D. Melton

Areas of Law: Civil Procedure, Election Law, Government & Administrative Law

This case stemmed from a challenge to the results of the March 2018 special election for the mayor of the City of Blythe, Georgia, wherein Appellee Phillip Stewart defeated Appellant Cynthia Parham by a margin of four votes. Appellant filed a petition contesting the election results, alleging that illegal votes had been cast in the mayoral election. After a bench trial, the court concluded that Appellant had failed to show that enough illegal votes had been cast to change or place in doubt the result of the election. Appellant filed a notice of appeal to the Georgia Supreme Court and, finding no reversible error, the Supreme Court affirmed the trial court.

Bowen v. Savoy

Docket: S19G0278

Opinion Date: February 28, 2020

Judge: Robert Benham

Areas of Law: Civil Rights, Trusts & Estates

In 2016, Priscilla Savoy, individually and as executor of her mother’s estate, filed suit against her sisters Eleanor Bowen and Margaret Innocenti (collectively “defendants”) contending that they colluded to appropriate funds from their mother’s estate for their own use. The defendants were served with the summons and complaint on June 20 and 22, 2016. On July 20, 2016, the defendants filed in the trial court a motion to dismiss the complaint for lack of personal jurisdiction, which was supported by a sworn affidavit executed by Bowen denying the factual allegations raised in the complaint. When the defendants did not answer the complaint within 30 days of service, as required by OCGA § 9-11-12 (a), the case “automatically [became] in default,” OCGA 9-11-55 (a). The Georgia Supreme Court granted certiorari in this case to address the following question: To show a proper case for opening default under OCGA 9-11-55 (b), must the defendant provide a reasonable explanation for the failure to file a timely answer? The Court answered that question in the negative and reversed the judgment of the Court of Appeals which held to the contrary. The matter was remanded for further proceedings.

Bamberg v. Georgia

Dockets: S19A1052, S19A1054

Opinion Date: February 28, 2020

Judge: Boggs

Areas of Law: Constitutional Law, Criminal Law

After a 2009 jury trial, Damon Bamberg and his mother, Sonya Bamberg, were convicted of murder and other offenses arising out of the shooting death of Damon’s ex-wife, Allison Nicole “Nikki” Bamberg. They appealed, claiming error in the reconstruction of a missing transcript of the first day of trial and in the denial of their motions to reopen the evidence to submit a transcript of a “true crime” television show. In addition, Damon claimed the evidence was insufficient to support his conviction, and the admission of a statement made by Sonya was made in error. Sonya claimed the trial court impermissibly commented on the evidence and the credibility of witnesses. Finding no reversible error, the Georgia Supreme Court affirmed the convictions.

Calhoun v. Georgia

Docket: S19A1411

Opinion Date: February 28, 2020

Judge: Robert Benham

Areas of Law: Constitutional Law, Criminal Law

Appellant Thanquarius Calhoun was convicted of felony murder and various misdemeanors in connection with the death of Marion Shore. On appeal, Calhoun argued his trial counsel rendered constitutionally ineffective assistance. After its review of the transcribed record of proceedings, the Georgia Supreme Court found no such ineffective assistance and affirmed Calhoun’s convictions.

Debelbot v. Georgia

Dockets: S19A1474, S19A1475

Opinion Date: February 28, 2020

Judge: Keith R. Blackwell

Areas of Law: Constitutional Law, Criminal Law

Albert and Ashley Debelbot were tried by jury and convicted of the murder of their infant daughter, McKenzy. Following the denial of their motions for new trial, the Debelbots appealed, asserting, among other claims of error that the evidence was legally insufficient to sustain their convictions and that they were denied the effective assistance of counsel. In Debelbot v. Georgia, 826 SE2d 129 (2019) (“Debelbot I”), the Georgia Supreme Court affirmed in part, concluding that the evidence was legally sufficient to sustain the convictions, although it noted that the sufficiency of the evidence was a “close question.” The Court also, however, vacated in part the denial of the motions for new trial and remanded for further consideration of the claims that the Debelbots were denied the effective assistance of counsel. The trial court again rejected the claims of ineffective assistance and denied the motions for new trial. The Debelbots appealed for a second time, and this time, the Supreme Court reversed, “[t]he Debelbots have shown a reasonable probability that, but for the failure of their lawyers to object during closing argument to the gross misstatement of the law by the prosecuting attorney, the outcome of their trial would have been different.”

Edwards v. Georgia

Docket: S19A1577

Opinion Date: February 28, 2020

Judge: Boggs

Areas of Law: Constitutional Law, Criminal Law

Appellant Cornelius Edwards challenged his 2018 convictions for felony murder and other crimes in connection with an attempted armed robbery of Delvin Phillips and Marvin Goodman that resulted in the shooting death of Appellant’s accomplice, Billy Favors. Appellant contended: (1) the evidence was insufficient to support his convictions and that the trial court failed to fulfill its role as the so-called “thirteenth juror;” (2) the trial court abused its discretion in admitting a recording of a recording of a telephone call; and (3) the trial court committed reversible error in admitting other acts evidence. Finding no reversible error, the Georgia Supreme Court affirmed.

Georgia v. Hamilton

Docket: S19A1363

Opinion Date: February 28, 2020

Judge: Warren

Areas of Law: Constitutional Law, Criminal Law

An appeal of Marlina Hamilton’s indictment for the murder of her ex-husband Christopher Donaldson, went before the Georgia Supreme Court three times. After Hamilton was convicted of felony murder and other crimes in connection with Donaldson’s death in 2010, the trial court granted a motion for new trial on the general grounds. The State then brought its first appeal, and the Supreme Court affirmed the trial court’s order. After the State elected to retry Hamilton, she moved for immunity from criminal prosecution based on self-defense under OCGA 16-3-24.2. In connection with that motion, Hamilton also requested that the trial court admit into evidence, for the purposes of deciding whether she was immune from prosecution, the transcripts of her jury trial and of her motion for new trial hearing. The trial court granted that request, over the State’s objection, by written order. The State appealed that order under OCGA 5-7-1 (a) (5) (A), but the Supreme Court dismissed that appeal. The trial court entered an order granting Hamilton’s motion for immunity from criminal prosecution under OCGA 16-3-24.2. The State then appealed Hamilton’s grant of immunity, arguing the trial court erred by considering Hamilton’s immunity motion before retrial; by admitting and relying on the transcripts from Hamilton’s first trial and her motion for new trial to decide Hamilton’s immunity motion; by granting Hamilton’s immunity motion; and by failing to recuse from the case. The Supreme Court held the trial court properly considered Hamilton’s immunity motion before retrial. Furthermore, the Court held that although the trial court abused its discretion by admitting the transcripts of Hamilton’s jury trial and her motion for new trial hearing under OCGA 24-8-804 (b) (1) without making any determination regarding whether the witnesses who provided the testimony in those transcripts were available for the 2019 immunity hearing, the trial court did not abuse its discretion by considering and admitting that evidence under OCGA 24-8-807. And because there was evidence to support the trial court’s determination that Hamilton was justified in using deadly force to defend herself under OCGA 16-3-21, the Supreme Court affirmed the trial court’s order granting Hamilton immunity under OCGA 16-3-24.2. Finally, the Court held the trial court properly rejected the State’s motion to recuse.

Hogan v. Georgia

Docket: S19A1448

Opinion Date: February 28, 2020

Judge: Warren

Areas of Law: Constitutional Law, Criminal Law

Appellant Fernando Hogan appealed his convictions for malice murder and other crimes stemming from the shooting death of Kilon Williams and the aggravated assault of Williams’s friend, Nicholas Gibson. On appeal, Hogan contended only that the trial court erred by granting the State’s challenge to Hogan’s peremptory strikes of three prospective jurors and reseating those jurors. Upon review of the record, the Georgia Supreme Court concluded Hogan’s conviction and sentence for the aggravated assault of Gibson should have been merged, and so it vacated that conviction and sentence. Finding no other reversible error, the Court otherwise affirmed the judgment of the trial court.

Hyden v. Georgia

Docket: S19A1496

Opinion Date: February 28, 2020

Judge: Harold D. Melton

Areas of Law: Constitutional Law, Criminal Law

Clark Hyden was convicted by jury of malice murder, felony murder, kidnapping with bodily injury, and various other offenses in connection with the beating death of Tommy Crabb, Sr. On appeal, Hyden contended: the evidence presented at trial was insufficient to support his kidnapping conviction under the standard set forth in Garza v. Georgia, 670 SE2d 73 (2008); that the trial court erred by allowing the State to waive its initial closing argument; that Hyden was denied his right to a speedy appeal; and that Hyden’s trial counsel was ineffective. Finding no reversible error, the Georgia Supreme Court affirmed.

Johnson v. Georgia

Docket: S19A1404

Opinion Date: February 28, 2020

Judge: Keith R. Blackwell

Areas of Law: Constitutional Law, Criminal Law

Frederick Johnson, Jr. was charged with murder and unlawful possession of a firearm by a felony first-offender probationer, both in connection with the 2016 fatal shooting of Tyrell Jordan. Johnson contended he shot Jordan in self-defense, and that the shooting was a justified use of force in defense of self under OCGA 16-3-21 (a). But because Johnson was a felony first-offender probationer generally forbidden to possess a firearm, the State argued he was categorically barred by OCGA 16-3-21 (b) (2) from claiming that the shooting was a justified use of force in defense of self. The State filed a motion in limine to bar Johnson from asserting his theory of justification at trial, and pursuant to OCGA 16-3- 24.2, Johnson moved for pretrial immunity from prosecution for murder based on the same theory. Following an evidentiary hearing, the trial court granted the motion in limine and denied the motion for immunity, concluding as a matter of law that Johnson could not claim the shooting was a justified use of force in defense of self. The Georgia Supreme Court reversed, finding that “[b]y its own terms, OCGA § 16-3-21 provides a justification defense, but only for crimes that involve 'threatening or using force.’ It offers no defense at all for crimes that merely consist of possessing or carrying a firearm.” Here, if Johnson’s possession of a firearm at the time of the shooting was justified under the rule of law produced by the combination of OCGA sections 16-3-21 and 16-11-138, then it could not be said that Johnson was “committing . . . a felony” when he shot Jordan, and the preclusive bar of OCGA 16-3-21 (b) (2) would not apply. Accordingly, the trial court erred when it denied the motion for immunity and granted the motion in limine upon the rationale that it employed.

Kilpatrick v. Georgia

Docket: S19A1580

Opinion Date: February 28, 2020

Judge: Robert Benham

Areas of Law: Constitutional Law, Criminal Law

Appellant Charles Kilpatrick, Jr. appeals his convictions related to the shooting death of Joseph Wilder. In 1998, appellant and Wilder were driving westbound on I-20 in their respective vehicles. Appellant’s friend, Marcuss Herndon, was a passenger in appellant’s vehicle. Witnesses testified that appellant’s and Wilder’s vehicles were bumping into each other on the highway. The two vehicles ultimately ended up stopped in the emergency lane with Wilder’s vehicle, which was a maroon SUV, parked behind appellant’s vehicle, which was a dark-colored truck. Witnesses stated they saw appellant, who was positioned behind the back of his truck and in front of Wilder’s forward-facing SUV, point a gun at and fire it several times into Wilder’s vehicle, all while calmly walking backwards towards his truck. Herndon, who remained in the passenger seat of appellant’s vehicle, testified that he heard gunshots, but that he did not actually see the shooting. Immediately after his arrest, appellant told police he shot Wilder in self-defense. On appeal to the Georgia Supreme Court, appellant challenged the sufficiency of the evidence presented at trial, contending the State failed to meet its burden of disproving his defense of justification. He also argued the trial court made multiple errors, including excluding his expert witness, and excluding evidence that Wilder was a member of a motorcycle gang. Finding no reversible error, the Supreme Court affirmed appellant’s conviction.

McElrath v. Georgia

Docket: S19A1361

Opinion Date: February 28, 2020

Judge: Harold D. Melton

Areas of Law: Constitutional Law, Criminal Law

In 2017, a jury found Damian McElrath guilty but mentally ill of the felony murder and aggravated assault of his adoptive mother, Diane, whom McElrath killed by stabbing over 50 times in a single episode. Based on the same episode, McElrath was also found not guilty of the malice murder of Diane by reason of insanity. McElrath appealed, contending among other things that the jury’s verdicts were repugnant and that his conviction for felony murder had to be reversed or vacated. McElrath also appealed the trial court’s separate order that, upon his discharge from evaluation at a state mental health facility, he should be placed in the custody of the Department of Corrections. Under the specific facts of this case, the Georgia Supreme Court concluded that McElrath’s verdicts were indeed repugnant. Accordingly, the Court vacated both verdicts and remanded McElrath’s case for a new trial. The Supreme Court also vacated the trial court’s order placing McElrath in the Department of Corrections’s custody pursuant to the verdicts which now vacated.

Sawyer v. Georgia

Docket: S19A1341

Opinion Date: February 28, 2020

Judge: Bethel

Areas of Law: Constitutional Law, Criminal Law

In 2016, a jury found Devin Sawyer guilty of felony murder and other crimes in connection with the death of Michael Weeks, Jr. Sawyer appeals, contending that his trial counsel rendered constitutionally ineffective assistance because counsel: (1) did not object to a witness’ purported comments on Sawyer’s credibility; (2) did not object to testimony that allegedly placed Sawyer’s character into evidence; and (3) did not object to hearsay testimony involving statements made by Weeks’ mother. Because the Georgia Supreme Court determined that Sawyer’s counsel did not render ineffective assistance to Sawyer, it affirmed his conviction.

Smith v. Georgia

Docket: S19A1098

Opinion Date: February 28, 2020

Judge: Warren

Areas of Law: Constitutional Law, Criminal Law

Omari Smith was convicted of felony murder and other crimes in connection with the shooting death of T’Shanerka Smith (no relation). On appeal, Smith contended the evidence was insufficient to support his convictions; that the trial court erred by denying his motion for a separate trial; that trial counsel rendered constitutionally ineffective assistance by failing to object to the court’s jury charge on conflicts in testimony; and that the trial court erred in denying Smith’s motion for a continuance of the hearing on his motion for new trial. The Georgia Supreme Court disagreed and therefore affirmed Smith’s convictions.

Tolbert v. Georgia

Docket: S19A1579

Opinion Date: February 28, 2020

Judge: David E. Nahmias

Areas of Law: Constitutional Law, Criminal Law

In 2005, Appellant Contresstis Tolbert and his co-defendant Jeremy Butts were found guilty of malice murder and other crimes in connection with the 2001 shooting death of Robert Funderburk. Appellant contended the trial court erred by denying his motion to suppress his post-arrest statements to the police and by admitting “similar transaction” evidence. Finding those claims meritless, the Georgia Supreme Court affirmed.

Westbrook v. Georgia

Docket: S19A1120

Opinion Date: February 28, 2020

Judge: Warren

Areas of Law: Constitutional Law, Criminal Law

Appellant Rickey Westbrook appealed his convictions for malice murder and possession of a firearm during the commission of a felony stemming from the 2015 shooting death of Harry Wells. Westbrook contended, among other things, that the trial court erred by denying his motion to suppress evidence recovered from his cell phone, by denying his motion to suppress a witness’s identification of him during a photographic lineup, and by ruling that the recording of his call from jail to a friend was admissible. Concluding that Westbrook’s contentions were without merit, the Georgia Supreme Court affirmed.

Wilkins v. Georgia

Docket: S19A1403

Opinion Date: February 28, 2020

Judge: David E. Nahmias

Areas of Law: Constitutional Law, Criminal Law

Appellant Nathaniel Wilkins was convicted of two counts of malice murder in connection with the shooting deaths of Forrest Ison and Alice Stevens. He appealed, arguing: (1) the trial court erred by admitting into evidence an alleged adoptive admission and by denying three motions for a mistrial; and (2) his trial counsel provided ineffective assistance by not objecting when the trial court gave an inapplicable jury instruction about accomplice corroboration and defined aggravated assault three times. Finding no reversible error, the Georgia Supreme Court affirmed.

Hill, Kertscher & Wharton, LLP v. Moody et al.

Docket: S18G1436

Opinion Date: February 28, 2020

Judge: Boggs

Areas of Law: Legal Ethics, Professional Malpractice & Ethics

“Under longstanding Georgia law,” when a client sues his former attorney for legal malpractice, the client impliedly waives the attorney-client privilege with respect to the underlying matter or matters to the extent necessary for the attorney to defend against the legal malpractice claim. The issue this case presented for the Georgia Supreme Court’s review was whether the implied waiver extended to the client’s communications with other attorneys who represented the client with respect to the same underlying matter, but whom the client chose not to sue. The trial court held that the waiver did not extend to such other counsel and therefore denied a motion for a protective order in this legal malpractice case. The Court of Appeals reversed. The issue presented was a matter of first impression for the Supreme Court, which held that when a client sues his former attorney for legal malpractice, the implied waiver of the attorney-client privilege extends to the client’s communications who represented the client with respect to the same underlying transaction or litigation.