House Judiciary Non-Civil Committee, March 5, 2026 (part 2)

Transcript

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1. 0:16:23

   Okay, we'll come to order.

2. 0:16:27

   We'll come to order.

3. 0:16:33

   All right.

4. 0:16:39

   Talk with Representative Clark. She's gonna try to make her way back. She had to step away for emergency. So what I'm gonna do is I'm gonna call back up House Bill 1255, and with no objection from the committee, I'm gonna present. This is a substitute that we're working on, and what I will do, not to belabor us here today, is to go over the changes. You'll be relieved to hear that the changes, uh, are not gonna take as long as what the presentation of the actual bill did.

5. 0:17:13

   So bearing with me, uh, sections one and two, uh, we've worked with several different stakeholders, and I understand that even though they may not be in favor of the bill as a whole, that I wanna acknowledge them and thank them for their cooperation. Uh, so after speaking with the prosecutor and the judges, the current substitute clarifies that the clerk is responsible for providing the required notice of the charging document accusation or indictment to the person being prosecuted.

6. 0:17:45

   Now, I spoke with the clerks this morning, and they informed me that for their office to actually be able to facilitate this, it would cause or cost them several thousands of dollars. So we need to revert that back to the prosecutor's office, and I understand the prosecutors would probably oppose that. But, um, that's something that I wanted to bring up. I, I wouldn't, I wouldn't treat it as unfavorable, uh, amendment.

7. 0:18:19

   But yes, sir, Chairman Gunter.

8. 0:18:22

   I, I would not be opposed if I were DA to send out those documents. They're critical documents for them to know what they're charged with, and I would have my people send it out so that I knew what they were looking at.

9. 0:18:36

   Okay.

10. 0:18:36

    They got the right thing.

11. 0:18:38

    Okay.

12. 0:18:38

    Um, plus it's in, it's in the budget. That was part of the ... I had six different budgets to work out of. Four of them were county budgets, and in those county budgets, they supplied me with money for mail outs.

13. 0:18:50

    Okay. Okay. Thank you.

14. 0:18:54

    All right. Uh, moving on. Uh, the current substitute would, uh, allow that charging document notice by email, and as written in the sub, it has, uh, the clerk already ... Or I'll note that the clerk already sends out the notice of arraignment, so, uh, that may be moot, uh, depending on the will of the committee. Section three, this is work with the judges, and I appreciate Judge Bearden and others, uh, that have helped us on this. The current substitute clarifies that the court has discretion to allow or not allow the defense to file motions in response to discovery served by the prosecution within 30 days of trial.

15. 0:19:36

    This would provide finality to the filing of defense motions by preventing a motions deadline for the defense from being a moving target without a backstop. Uh, section four, uh, working with the prosecutors on this, the current substitute generally adjusts discovery timelines to 30-day increments throughout, and the current substitute would maintain the timeline related to the state's provision of evidence and aggravation of sentencing. Uh, this substitute removes the requirement that the prosecutors provide evidence and discovery that would be described as material to the case.

16. 0:20:14

    In OCGA 17-16-9, the cost provisions reverted to current law at the request of the prosecutors. Lines 218 through 225 excludes GBI witnesses from having to provide the following, which would be the witness's qualifications, including a list of all publications authored by such witness in the previous 10 years, a list of all other cases in which during the previous four years the witness has testified as an expert at trial or by deposition.

17. 0:20:46

    I'll note that if either party does not provide the required expert witness information, it is now up to the judge's discretion whether to exclude the expert's testimony or evidence rather than it being mandatory to suppress. In collaboration with our sheriffs, prosecutors, and child advocate centers, the current substitute removes the definition of law enforcement agency in order to mitigate potential confusion and misapplication. Concerning the child advocate centers, the current substitute removes forensic interviews from the definition of written scientific reports and more appropriately categorizes it as a statement of a witness in OCGA 17-16-1, subsection two.

18. 0:21:33

    You'll see further in collaboration with our judges that there's a further refinement of a related change requested, uh, by the prosecutors. Current substitute clarifies that revoking an election to participate in reciprocal discovery is very limited and can only occur when the person seeking to revoke her election, his or her election was included in reciprocal discovery only by virtue of being indicted along with a person who did affirmatively elect to participate in reciprocal discovery.

19. 0:22:03

    I'll make a note here, the Judicial Council was concerned about the language indicating that the election to fall under this article was non-revocable in certain multi-defendant cases. Uh, unilateral non-revocability was asked by the prosecutors, and, uh, even though it may not be exactly , uh, how they wanted to see it written, uh, you know, I'm sure they'll testify to that. Uh, uh- This is actually still going through, uh, section four.

20. 0:22:36

    And so judges, um, with their feedback again in lines one twelve through one thirteen, uh, the current substitute would clarify that a charging document accusation or indictment need not be provided a second time to the person being prosecuted prior to or at arraignment if already provided within five days of its issuance. You'll see in line three sixty-two, uh, there's a cross-reference line added to direct the reader to language elsewhere in the code. Section five, I'll note that no adjustments were made.

21. 0:23:09

    Uh, this simply points the reader to one of the code sec- or to the one code section of the evidence code, Title twenty-four, to the subpoena process laid out in Section six of the bill, which is also going to be in Title twenty-four. Section six, in, uh, conjunction with our sheriffs and child advocacy centers, uh, s- you'll see in lines five oh five through five thirty-two, adjustments were made to the single point of subpoena service to clearly distinguish our child advocacy centers from law enforcement agencies.

22. 0:23:45

    The requirement that these offices and agencies maintain a single person for service of process does remain within this substitute. The previously removed requirement that law enforcement maintain an email address for electronic transmission for service of process due to an ask by the sheriffs. It removes and, uh, excuse me, it removes language of, "Or other multidisciplinary investigative and diagnostic team," and the goals, uh, still remain supported that we'd set out to accomplish.

23. 0:24:21

    It would, uh, protect our child advocacy center staff and law enforcement officers from service being at their residi- residence, uh, to attempt personal service. Uh, it would prevent service from being achieved by someone lurking outside of a facility, agency, precinct, et cetera, to attempt personal service. I have had to do that personally at a GBI field office, and it is as awkward as you might, uh, imagine.

24. 0:24:51

    So, uh, it would also, the changes here would facilitate court scheduling when vacations or other leaves are known and can be readily communicated to the party seeking service and reduce unnecessary traffic in and around the child advocacy centers. Uh, section seven, I'll note, uh, does not contain adjustments for any stakeholders. That is the summarization I'll present to the committee here.

25. 0:25:24

    If any questions from the committee... And seeing none, what we can do is we can move on to testimony.

26. 0:25:39

    Let's see. Uh, Ashley Merchant.

27. 0:25:43

    Yes.

28. 0:25:43

    Come on down.

29. 0:25:52

    And you can proceed when ready.

30. 0:25:54

    Yes. Thank you so much. Thank you, everyone, for having me. Uh, my name is Ashley Merchant. I'm a criminal defense attorney, and I practice... I'm the past president of the Georgia Association of Criminal Defense Lawyers, um, but I practice throughout the state, and I, I practice in other states as well. And so I, I wanted to come and share some insight into how this bill would assist, um, our state sort of modernizing our discovery practice, um, and then answer any questions, but give some, some practical insight as well. Um, I, I listened to some of the testimony from earlier in the week, and I wanna talk about, um, some of that for a minute.

31. 0:26:28

    And I, I think it's important to, to explain how these reports really are generated. Um, it seemed like there was some, maybe some confusion that these reports are paper and that copying them, that the prosecutors are gonna have to scan them and upload them. They begin as electronic files. So the police, they don't use typewriters anymore. They don't use handwritten reports. They actually have computer systems where they enter it in, and it is an electronic file. So it begins as an electronic file. It is then submitted to the prosecution electronically.

32. 0:26:59

    They're not printing out and hand-walking papers over there. So how it is now, if we are, if we're forced to go under an open file policy and actually copy it, that's the prosecution printing it out so that we can copy it, because it originated as an electronic file, so it's actually being put into a paper format. Now, obviously there are some things that, um, you know, handwritten notes and things like that that are considered evidence, but I think the bulk of what we're talking about with discovery are police reports, GBI reports, expert reports. An expert is not handwriting.

33. 0:27:29

    They're not using a typewriter. An expert is emailing a report. So these, all of this discovery, ninety-nine point nine percent of the discovery we're talking about originates electronically. So providing it to us electronically isn't inconvenient. It's actually how it began. Um, forcing us to come and copy it under the open file policy actually puts it in a different format. Um, and I know there was a lot of concern about cost with that. Um, that's a printing cost. And just the practical reality, just so everyone knows, this works both ways.

34. 0:28:01

    I think that's important to point out. Um, I can give you some real-life examples. I had a trial that I had about three months ago in Irwin County. Um, and it, the, the prosecution down there has an open file policy. They will not send me discovery. I don't know if that's an open file policy, quite frankly, for everybody or if it's just me. Um, but I had to go down there. I actually think it is just me, so I'm just, just being very candid. Um, but I had to pay my investigator to go down and actually copy a file that was electronic. He had to go, and he took a scanner and took a computer and a printer and scanned it in for me, a file that started out with the Georgia State Patrol and that they actually printed so that we would have to go down there and scan it and bring it back Um, and I, you know, responded with them, "If, if that's how you want to do this, that's how we're going to do this.

35. 0:28:47

    You may come to my office and review my file." I had a lot more because I had experts. Um, they never came to my office to look at my file, um, in Marietta, um, because they did not want to do that, and they didn't have the resources to do that. So it works both ways. Um, I got a not guilty in that, and I think that was the right resolution, but, you know, it, it's, it works both ways. I think that's important to know. Um, it's one of those things that if ... Like, we actually have discovery also, and so it's reciprocal. This is not just the state.

36. 0:29:18

    This is us giving discovery. We should be required to give it in that way also. Um, if the, if the goal, as I heard earlier this week, is the truth, if that is our goal, and I heard someone say, someone testify that the goal is for the truth to come out, then we should want discovery given as soon as possible. Um, I've heard some concerns about costs. Um, the real cost is not giving discovery because when you don't give discovery, if you go to a calendar call in this state, you're going to hear many, many times, "I need a continuance because I don't have discovery." You're literally going to hear that all day, every day at these calendar calls every single month.

37. 0:29:54

    We get calendar call notices every single month, and every single time we go to court, you're hearing, "I need a continuance. I don't have discovery. I need a continuance. I don't have discovery." You know the cost of that? The clerk had to send out notice, okay? The sheriffs had to be there. The judge had to be there. The PDs had to be there. Some of them are paid hourly. The DAs had to be there. The bailiffs had to be there. The court reporter had to be there. The courtroom had to be staffed. It had to have security. It had to have, um, jurors are summoned. That's a lot of money for us to go and say, "Hey, guess what? I don't have discovery. I need a continuance. Sorry." Um, and then also the fact that people are in jail a lot of times, so we're paying to incarcerate people.

38. 0:30:28

    Um, and they're sitting there while we're waiting for discovery. I pled a case out, um, this morning. It was six years old. It took me four years to get the discovery. Um, I had a hearing on Tuesday, a Daubert hearing. I got the expert's CV on Monday. That case is four years old. I got it on Monday. You know when I found out what the experts was going to testify at trial about? When I asked them the question on the stand on Tuesday. I asked them the question because I didn't know, because the state's not required to put it in writing.

39. 0:30:59

    They're not required to talk to me. First thing out of my mouth, "What are your expert opinions gonna be in this case?" First thing. And at the end of the day, we actually didn't have a beef about a lot of their opinions, you know? So if I had known that ahead of time, we probably wouldn't have even needed to have that hearing because they were not testifying about exactly what I thought they were testifying about. So I mean, you wanna talk about cost, that's cost. You know? That's a lot of cost. Um, another thing that I wanna talk about, and I'm not quite sure how much time I have, so um-

40. 0:31:27

    But, uh, Ashley, we've got to yield to Judiciary Civil-

41. 0:31:32

    Okay

42. 0:31:32

    ... at 1:30.

43. 0:31:34

    Okay.

44. 0:31:34

    So JV's gotta get it, uh, wrapped up.

45. 0:31:37

    Gotcha. Okay. I'll be, I'll be brief. All right. I got it. I'll be brief. Um, so just a couple other things I wanted to, I wanted to sort of, um, explain is the, it, you know, we have a significant backlog in the state, and a lot of it is based on discovery. I mean, it's just, it's, it's just how it is. It's just unfortunately how it is. The sooner that we get access to information as defense attorneys, the sooner we can resolve cases. Um, they can't be resolved. I cannot plea out a felony without discovery. Like, I can't do it.

46. 0:32:07

    And I would tell every lawyer, "If you're gonna do that, hand over your bar card because you're not doing a good job." Um, and if you testified at habeas one day that you didn't review discovery, no. Y- y- that conviction's coming back, and that's gonna cost a lot of money. It's uncertainty if you're concerned about victims' rights. It's uncertainty for victims. Think about how many times victims get these same notices and have to come to court, um, just to hear the frustration. You know, "Hey, I don't have discovery. It's getting continued again." Like, that, it's something that we can easily fix, and so that's why we're hoping that it will get fixed. Um, there's also, if ...

47. 0:32:42

    I know that cost, you know, we keep hearing about cost and things like that, but these are things that if, if the system is working a little bit better, we're not going to end up with these costs because we're actually gonna resolve cases a little bit more efficiently. Um, if, if, you know, we have to buy some email programs or computer programs, that's not significant cost, and it's a cost that we're gonna realize in so many other ways. Um, one of the other things that I w- I wanted to, um, I wanted to mention is having this information easily helps lawyers do their job, and the reason I wanna mention that is I hear over and over again that access to justice, particularly in rural counties, is at a crisis level.

48. 0:33:25

    We hear that all the time from the bar. We hear that all the time from our judges. One of the reasons, and I can tell you from personal experience, one of the reasons it's at a crisis level is lawyers don't wanna take cases in just jur- jurisdictions that are difficult. They just don't. And I, I ... Forsyth County, for example, they've had this open file policy for years, and I know a ton of lawyers that will not take cases in Forsyth County. It is ridiculous. I had a case in Forsyth County where I had to go every single time they got a new piece of paper in that file and had to go copy it.

49. 0:33:55

    I live in Marietta. That was ridiculous. Um, I did not know when they would have new information. So under the open file policy, one thing that I think a lot of people don't understand is that there's no, like, notice. You know? They're not s- it's not like your doctor when you, you know, you take a test, a lab test, and you get a notice that you ha- you need to go on your portal and go see if your lab test is back in. You don't. You just have to go check. So I was told, "Every Friday, you should just, you know, lawyers just come and check to see if there's new information in the open file policy." That's not efficient.

50. 0:34:26

    That is not efficient. We are at a crisis level with lawyers, particularly in the criminal arena, DAs, public defenders. They don't wanna practice in this area. Why? Because you can't get discovery. It is so frustrating to not be able to get the basic information when your client is charged with a crime just to do your job. I wanna be fighting in the courtroom. I don't wanna be fighting over access to discovery. Like, that is really not where I wanna spend my time. I want truth. I want justice, and if I have information I can actually do that.

51. 0:34:56

    I can do my job, and we can actually fight over what the evidence really is and not spend all of our time doing things like that. So I just, y- I wanna answer any questions, um, about my experience or, or anything else.

52. 0:35:08

    So I'm glad you mentioned that about discovery before felony, um, pleas.

53. 0:35:13

    Yes.

54. 0:35:14

    I, I would share that. I'd also go further on, uh, misdemeanor cases.

55. 0:35:20

    100%. And the thing with misdemeanors that gets lost a lot of times is I, I don't think people understand how severe the consequences are for misdemeanors. Just because you're not facing a significant time period in jail, you're still f- facing 12 months, and a lot of people lose their license over that. A lot of people lose ... I mean, I, I have a lot of kids who lose scholarships over being accused of a misdemeanor. Um, I mean, it's significant. And we still want our state courts to run efficiently. We don't want a backlog. The backlog in state court is ridiculous. It's absolutely ridiculous.

56. 0:35:50

    The last misdemeanor I had, I think, in Paulding County, it was like five years for a misdemeanor traffic offense. It was absolutely nuts, and I know they've gotten a lot better. That's been a couple years. But that's, I mean, that's ... That doesn't ... That's not a good system. If you, if you, if you're putting a kid in timeout, you put them in timeout right away. You don't put them in timeout five years later. Um, and so if we're doing that with these, with these traffic offenses years later, it just doesn't make sense. And part of the reason that it's so backlogged is because we can't get this information.

57. 0:36:20

    Got a question from Chairman Gunter.

58. 0:36:21

    Yeah. Sorry. I'm just ... Oh. Uh, I agree with everything you just said.

59. 0:36:27

    Thank you, sir.

60. 0:36:29

    Um, when I was DA, uh, we did, uh ... I had an open-file policy. I required my staff to serve the defense at arraignment at the latest.

61. 0:36:39

    Ooh.

62. 0:36:40

    And, uh, anyway, it, it worked really good.

63. 0:36:43

    Good.

64. 0:36:43

    The idea that I expressed to my staff was, was this ... We're here to move cases. We don't necessarily have to try them all.

65. 0:36:50

    Right.

66. 0:36:51

    Uh, I appreciate what you said. The biggest problem we had, though, was keeping up with what was served.

67. 0:36:58

    Yes.

68. 0:36:59

    And I had some attorneys that took advantage of us and k- it, you know, kept the case going because they claimed they didn't get s- this or that.

69. 0:37:08

    Right.

70. 0:37:08

    So that's, that's the big problem that I see with discovery in its current state. And anyway, that's my comment about that.

71. 0:37:16

    I, I, I agree with you. I think that ... And I love that you, you did that. I think doing it at arraignment helps because, uh, we can resolve cases. We can work pleas out. We can point things out, and I know a lot of, um, good DAs have recognized when I've pointed out maybe an alternative or been able to explain something. We can meet in the middle, and we can find out what really happened, and we can resolve it. Um, but I can only do that, you know, when I get the discovery. As far as the defense lawyers, and I, I understand that problem, and I see that as well. Um, I think doing it electronically, I think there's some, some solutions we can have because electronically at least there's a paper trail.

72. 0:37:48

    Um, you know, and a lot of times that link can just be re-forwarded and things like that.

73. 0:37:51

    Well, you, you said a paper trail.

74. 0:37:53

    I know. I know.

75. 0:37:54

    I'm old school.

76. 0:37:55

    Which is ironic because there is no paper trail with electronic, but you can track it.

77. 0:38:00

    Right. Okay. All right.

78. 0:38:01

    You can track it, um, which is funny because when we actually have the paper trail, th- there's no way to track it.

79. 0:38:06

    Yeah.

80. 0:38:06

    You know, unless you are actually checking, you know, your online mail server that it was delivered and things like that. Um, I know I personally, I mean, just ... I know this is not part of the bill, but my ... What I do personally is I bait stamp all my discovery. Um, and so that way if someone needs it again, because prosecutors will reach out and ask me for it again because just like defense lawyers are not so good at hanging onto that stuff, prosecutors aren't either. Um, and so certain counties particularly that have a lot of turnover, some of the metro counties have a significant amount of turnover, and I've learned that when I serve discovery by email, they don't upload it to their file.

81. 0:38:41

    And so I'll get another one, um, you know, I just had one in Cobb County and I had served 3,000 pages of medical records, and it didn't end up in the file, and they have a new prosecutor, and they reached out and said, "Pretty please send it again." I had it electronically, so I could easily send it again. If I had done it a different way, you know, an open-file policy, there's no way for that prosecutor to get it. And I was happy to forward that link because I want them to see what's in my ... you know, what's in the medical records because they support my position. Um, so I think with the electronic, if we did encourage everyone to use electronic means, it's easier because you can re-forward that link.

82. 0:39:15

    And it goes both ways.

83. 0:39:17

    Right.

84. 0:39:17

    Um, you get to see what I've got.

85. 0:39:19

    Right.

86. 0:39:19

    I get to see what you have, and that helps me evaluate whether I even wanna go to trial on a case. It also helps you as well-

87. 0:39:26

    It does

88. 0:39:27

    ... to, to determine how you wanna solve the case.

89. 0:39:29

    Right. Because the facts are the facts. I mean-

90. 0:39:31

    The f-

91. 0:39:31

    ... what's in the discovery, it's not gonna change.

92. 0:39:32

    Right.

93. 0:39:32

    And the sooner we all get it, the sooner we can all know what happened.

94. 0:39:36

    Right.

95. 0:39:36

    Thank you.

96. 0:39:38

    Okay. Just for the sake of time, I'm gonna move on to the next witness. Uh, Ms. Marshall-

97. 0:39:45

    Thank you.

98. 0:39:45

    Thank you. Um, members, it's a little different on this side of the bar when you have practitioners that show up here today. Uh, you are the MVP for your client, and you're the one having to go to court, so, uh, take, take note of that fact. Uh, not all of us have associates to, uh, go and handle cases, and sometimes we are the be all, end all that's gotta get it done. So I'm gonna call up, uh, Mr.

99. 0:40:16

    Ben Sessions.

100. 0:40:19

     Good afternoon, Mr. Chairman. Good afternoon, y'all. I, I sit before you today as a hypocrite. Um, about 10 years ago I sat in a different room across the street, and I talked about why it is that you should, uh, you should vote against a reciprocal discovery bill Um, today I sit before you and tell you that you should vote in favor of reciprocal discovery bill. That's because this bill is a lot different, a lot more thoughtful, and it really updates the processes and procedures that we have here in Georgia.

101. 0:40:51

     Um, this bill... And a lot now we have sort of a hodgepodge system. It is, it's an older system. It certainly worked in a day and age. I don't mean to look at you, Judge Gunter, as I say this. Um,

102. 0:41:07

     Uh, it, it certainly was, uh, was a system that has had its functionality. Um, but it doesn't recognize the scale and the volume of cases that we have now, and the problems that it has created as well. We have a system right now that anchors the filings of motions to arraignment dates, and that has truly created a mess in our case law in the State of Georgia. Right now, whenever I go in on an arraignment date, I file a motion to suppress, and if I don't file it within 10 days, it is untimely, and I arguably have waited.

103. 0:41:38

     I have judges who are like, "Hey, wink and a nod, Ben, it's okay. You filed it 20 or 30 days or 45 days or 60 days or 90." Whatever it is. They sort of give me grace in that way, but there are some judges who don't. And so I file a motion to suppress that is... A lot, a lot of my friends on the other side of the aisle will say, "Ben, that is not a particularized motion." So I have more fights over this, and we have more bad wasted time in our appellate process as a result of that issue than almost any other that you can imagine.

104. 0:42:10

     I mean, just this year we had roughly two or three cases that came out that just dealt with pa- the particularization of motions. That's a problem that is just created because of the anchoring of time and the lack of discovery that defendants have whenever they have to file a motion to suppress. If you had the discovery, then you can particularize the problem and say, "Hey, here's what it is. Here's what we're, we're actually dealing with." So that, it would eliminate that problem. Also, we... I know that there's been sort of, uh, a lot of debate with regard to notice, uh, giving notice of the filing of an accusation.

105. 0:42:46

     I think a lot of times we lose sight of what happens just down the street, for example, in the busiest court in the State of Georgia, which is Fulton County State Court. In Fulton County State Court, you routinely have cases that will be accused in 18 months to 24 months after the date of arrest. Roughly two years. A defendant's case is accused, and then it can languish for six to eight months before you have an arraignment date, uh, scheduled. People lose sight of the singular right that a defendant has during that period of time, is the demand f- a statutory demand for speedy trial.

106. 0:43:23

     The defendant has no notice of that. Under our current law, a defendant has no ability to know that that right has been triggered, and that right is going to be waived before it ever comes up, 'cause in Fulton County State Court you got two-month terms. Then whenever... So that four months, once that passes, that right is forever gone, and that's forever waived. That's the only protection that you have in Fulton County from having a case that goes from two years to five years. And I know it sounds crazy, but I have cases in Fulton County State Court right now that are four, five, and six years old.

107. 0:43:57

     Um, it is a staggering number, and it's not one that should ever exist in a misdemeanor DUI case, for example. Um, so I, I wanna just, uh, to make sure that you all were aware of that. I really appreciate the consideration. I hope that you'll vote in favor of this bill. It's one that I think you should change your mind on as well. So any questions?

108. 0:44:16

     So, Mr. Sessions, as you know, we're not usually referred to as, uh, stewards of public safety, but, uh, this side of the bar actually serves that purpose as well. A great, uh, ADA in, uh, my, one of my local DA's office, uh, with Mr. Poor, Grady Moore, told me that criminal defense lawyers ought to be just as big on public service as what the prosecutor is. A- and so what I would ask you, Mr. Sessions, is this proposed system, it would prevent the backlog that you see, which not only unfair to that, that of the accused, but any alleged victim in the case as well.

109. 0:45:00

     It, it, it, it would really make sure that the process was not a long and drawn-out...

110. 0:45:07

     It doesn't speed up the timeline necessarily, but it helps clo- unclog some of the problems that exist under the current system. I mean, I do think that at some point in time we can make some changes in terms of procedure that will help with that. This doesn't fix that problem, but it goes some way toward fixing that problem. And I mean, I hope that this isn't lost on everyone. I don't want anyone to be... If it were up to me, we would all have kill switches on our car that would disable it to, from operating if you had any alcohol consumed.

111. 0:45:38

     I'm not... If I had to find another job tomorrow, I will gladly do that thing. I'm not here in favor of anyone driving under the influence, but I know that the current system at e- as exists is broken. I know that there are some changes that need to be made, and I know that this bill does a really great job of addressing some of those shortcomings that exist in the current system. So...

112. 0:46:00

     Okay. Number 6. Representative Panitch.

113. 0:46:03

     Thank you.

114. 0:46:03

     Hi. Good afternoon.

115. 0:46:03

     Thank you for being here, Ben. So you brought up a good point about, uh, the motions deadlines, and if you have a case that ends up brought because of a stop, you can't trust your client to know if they actually waived, you know, if they waived, if they consented, if, if they were weaving, which gave the officer, uh, you know, probable cause to stop. So you have to file these motions to preserve them just in case, right?

116. 0:46:31

     You file them as negative allegations, basically, and that's what the law says, is you say, "This thing did not occur." And our law allows us to do that. And you should, as a- reasonable attorney allege every single one of those potential problems. That way you don't waive that thing later on.

117. 0:46:48

     Right. But if you had the discovery-

118. 0:46:51

     You know

119. 0:46:51

     ... you would know immediately-

120. 0:46:52

     You know

121. 0:46:52

     ... if you had good faith to file any motion-

122. 0:46:55

     You know

123. 0:46:55

     ... in that case.

124. 0:46:56

     That's right.

125. 0:46:56

     So this would save a lot of unnecessary motions by the defense, which then would not take up time for the prosecutors to have to deal with or the judges to have to schedule and, and hear.

126. 0:47:09

     That is correct.

127. 0:47:10

     Okay. Thank you.

128. 0:47:11

     Appreciate it.

129. 0:47:14

     Uh, Representative Fincher.

130. 0:47:15

     I just-

131. 0:47:16

     Yes, sir

132. 0:47:16

     ... so for the record, you are representing the defense bar now, right?

133. 0:47:21

     Uh, I guess so. I'm, I'm here as Ben Sessions though, for sure.

134. 0:47:27

     Okay. W- how, how do you view the... Do you feel like there's an imbalance in the number of cases assigned? I mean, what I'm saying, it depends on that so- that solicitor, that prosecutor, how many cases is he assigned as compared to what a defense attorney would be assigned? I mean, you're talking about providing you a discovery. Who's gonna do that? Who, who's gonna do that? The, the... Who's responsible for that is the prosecutor or the solicitor.

135. 0:47:55

     Yes, sir.

136. 0:47:55

     And how do you see the, um, imbalance in the number of cases that are assigned to each group? I mean, are you familiar with how many are assigned to?

137. 0:48:05

     Oh, this is, this is our system of justice. They bear the burden of proof-

138. 0:48:08

     Ben, can you come closer to the mic?

139. 0:48:10

     This is our system of justice. This is the way the system works, is that a prosecutor is charged with the obligation of disclosing certain pieces of evidence to me. Um, if they don't wanna do that, well, then get another job. It's simple.

140. 0:48:24

     That happens a lot, doesn't it?

141. 0:48:25

     Yeah. Just-

142. 0:48:25

     'Cause you were just talking about turnover.

143. 0:48:27

     This is, uh, this is not a... You're not... You will never take away the obligation and the duty of a prosecutor to disclose evidence.

144. 0:48:33

     But compared to the numbers, how many cases would you be carrying at any one l- uh, time?

145. 0:48:39

     I don't, I don't mean to be dismissive of your question at all. I'm not doing that.

146. 0:48:43

     But you're avoiding answering it.

147. 0:48:46

     I, I have no idea how it's relevant to the consideration of whether or not there is a scheduling guideline for the production of evidence versus not.

148. 0:48:56

     Mr. Clerk, I'm putting you in a position of arguing with you, and I don't want to argue with you.

149. 0:49:00

     Okay.

150. 0:49:00

     I will say that, that it's gonna be-

151. 0:49:02

     You mean how many cases that-

152. 0:49:02

     ... it's gonna be a burden on the, um, system, as you call it, to produce this material a- a- as quickly as it needs to be produ- as it needs to be produced. It's just gonna be s- well, it's unfunded that I can tell. There's no discovery individual that in each office that I know of, and we've got to find a way to make sure this gets, gets accomplished.

153. 0:49:23

     Mr. Fincher, I, I practice likeness merchant all over the state. Um, I go to some really rural jurisdictions. I go to some really metropolitan jurisdictions. I went to a jurisdiction last week where a prosecutor says, "I have a video. You can come view it in my office. The only way that you will ever view this video is in my office, um, and you cannot record it on your device as you're watching this video." We're in 2026. You think about that. In order for me to prepare for trial, I must go back to, I'm not gonna say the name of the jurisdiction, I must go back there to review that video in order to prepare for a trial.

154. 0:50:02

     Normally, I watch a video between five and 10 times at least before I go to a trial. I'm stuck now with my recollection of a video that I get to review in her office at her convenience. This is... We, we let this system go on too long. We let these sort of arbitrary systems develop. I saw a prosecutor this morning from a jurisdiction out in the hall, well guess what they do? Whenever I wanna view a video, I have to... They extort out of me an agreement to engage in reciprocal discovery.

155. 0:50:34

     That's what the system is right now. Um, we should not have this sort of hodgepodge of system. That's not what justice looks like for anyone. They're going to have to produce the evidence. The question is, are we going to mandate a timeline for it? And are we gonna mandate a logical timeline that anticipates motions being filed after that? So we're not gonna do away in any way, shape, or form with the obligation of a prosecutor to produce evidence. You can't do that, quite honestly. You just can't. I mean, there's exculpatory evidence that must be produced to us.

156. 0:51:06

     But the question is, are we going to organize and have some sort of structured, systematic way of going about the production of evidence, or are we just gonna keep doing what we're doing right now, which is kicking this can down the road and it not be in a logical system? That's the reason why I decided to change my mind. I hope that you'll support it as well.

157. 0:51:28

     I waive the question on that. All right. Miss-

158. 0:51:32

     Mr. Chairman.

159. 0:51:32

     Okay, go ahead.

160. 0:51:34

     I don't want this to get lost. This is the state charging somebody-

161. 0:51:38

     Yes

162. 0:51:38

     ... and desiring to take away their liberty, right?

163. 0:51:41

     Absolutely.

164. 0:51:41

     Okay. So the obligation rests on the state to produce the documentation that they're going to use in evidence. That's just a basic rule of fairness, right?

165. 0:51:52

     Absolutely.

166. 0:51:53

     Okay. I-

167. 0:51:53

     I cannot imagine why, if I decided to take one singular DUI case, and they had a million cases in their office, why that would excuse them of their obligation of, number one, producing the evidence that's exculpatory to my clients, and number two, complying with any statutory discovery rules that exist.

168. 0:52:10

     Thank you.

169. 0:52:12

     Okay. Mr. Sessions, I see no further questions. Thank you for taking time-

170. 0:52:16

     Thank you, sir

171. 0:52:16

     ... to come and be with us today.

172. 0:52:17

     I appreciate y'all.

173. 0:52:18

     Yes, sir. All right. Next up, uh, Mr. Randy McGinley, who is long-suffering. Come on down.

174. 0:52:31

     Well, I, I'm not gonna repeat some of the things I said. That was a Monday. Feels like a week ago. But, um, couple things just in response. I- I- in Representative Panitch, I, I 100% agreed it's all our responsibility. There's no doubt about that. We don't get a single cent from the state of Georgia to provide any discovery to any defense attorney. All that comes from the county. So I, I, I... What I'm saying is that is, that's where my concern is, is I think as I told you guys, we have Axon and it's a system that works great. It costs $120,000, $130,000 a year for my circuit. There are a lot of circuits that don't get that from, combined from their counties in total.

175. 0:53:05

     Um, I'm lucky in that regard. And, I mean, my office policy is someone enters into reciprocal discovery, we send them an Axon link. And, you know, for every horror story that defense attorneys come up in here, I can, as I said before, how many times we've had to resend the link or re- put something on a hard drive or a flash drive over and over and over and over again. And so my concern is just that, and to what Representative Fincher is saying is the amount of work is relevant in this, 'cause that, that's the issue. Um, I mean, it's not an issue. I, I... The, the policy behind what both the defense attorneys came up here and said is absolutely correct.

176. 0:53:38

     Um, I mean, I tell my young ADAs, "If you're wanting to send someone to prison, it should take work. It should be hard." That's, that's what we do. Um, but we have to have the resources to do it. Um, and that's where I've been on this entire bill i- i- is that I agree that the discovery statute, I'm totally fine with reworking that and doing... And the GACDL has worked a ton with us on this, and so I appreciate that. But there's also agencies and things in some of these small jurisdictions that are n- that are not all digital. I mean, I, I understand that it is, but there are still law enforcement agencies that bring a hard copy of their investigative file to the DA's offices.

177. 0:54:15

     And if they want to scan that in, they can, but that's an additional step. Um, and so, i- yes, there are some places where this works out very well. There are some places where it doesn't because they just don't have the resources to do that. Um, and, and that is one of my big concerns about changing this to where it is mandated that it is provided. Um, I mean, the reality is, uh, it is, it go, does go both, both ways. But in the, in the grand scheme of things, the amount of discovery we get from de- the defense compared to what we provide them is, is not even comparable. It's just not.

178. 0:54:45

     Um, I will say is the, couple of things with the changes to the bill. Um,

179. 0:54:53

     I, I will say is I know there was... It, it changed and added forensic interview, this is line 66, forensic interview of a witness to the definition of statement of a witness. I, I will go and tell you is, and I may have said this last time, I, I don't know, I've been told by some defense attorneys that apparently some places are not providing copies of forensic interviews. I don't understand that. I, I, frankly, I, I don't understand that 'cause that is evidence in the case. Now, if this bill is somehow making it so that I have to s- turn over a forensic interview with- without having a protective order, I'm probably just not gonna do...

180. 0:55:26

     I mean, I don't, I... So it's... I wanna make sure that this bill is clear that forensic interviews are something that should have some sort of protective order where defense attorneys can... Or it's not even the def- attorneys, if we're being honest. It's their clients sometimes start going sharing those things around to everybody and can cause some big issues. Um, and so that, that's one of the concerns I still have in there. Um, uh, the issue Mr. Sessions brought up about the timing of motions, I, I have no con- I have no issue with that. I, I mean, frankly, our jurisdiction, we have a scheduling order from the judge whenever someone enters a not guilty plea or waives arraignment.

181. 0:55:58

     And so, I mean, this bill allows us to still have sort of jurisdiction by jurisdiction scheduling orders done, which I, I, I think it should be that way, 'cause if something's working well in a jurisdiction, don't change it. Um, and so I, I think in my jurisdiction it's not gonna be those issues. I'll bring another thing as far as everything being digital just not being true. There are still some hospitals when we g- issue, send search warrants or subpoenas or consent forms to them, they send us the medical records like hard copy in boxes of thousands upon thousands upon thousands of pages.

182. 0:56:29

     Would it be easier for the hospital to send us on a PDF? Probably, but they don't. And so that's just... The, the reality is there are still a lot of things that are not digital. It would be great if we were able to go that way, but that takes, again, a lot of money and a lot of time. Us going to Axon wasn't just $120,000 a year. It has been a two, three-year process of training everybody to an entire new system. And if there's some way to have that system, say, statewide, that would be absolutely fantastic and would fix so many of these issues from the prosecution side, from the defense side, from the jail side, everybody.

183. 0:57:02

     If we had that ability to do that statewide, the same system everywhere, I, I... The amount of... Yes, it would cost money, but it would save a ton of time and money as well. And that, that's where my position is in this, is that's where I think we need to go with discovery. But I know I said a lot last time, too, and I'd be open to answer any questions.

184. 0:57:21

     Oh.

185. 0:57:22

     One last thing.

186. 0:57:22

     Yeah.

187. 0:57:23

     I will say is ele- electronic discovery and things like that, let's not forget there's, we still have defense attorneys who have, like, AOL email, email addresses and things like that, too, and Prodigy email addresses. So it's not just... There are some defense attorneys who literally can't and don't have the technical know-how when we send them things. So any questions?

188. 0:57:39

     Uh, thank you. And we still have time to make sure that those hospitals send y'all electronic copies. We, we, we do have time left in session, so...

189. 0:57:54

     Uh, Representative Hong.

190. 0:57:56

     Thank you, Chairman. Um, I think we've had two hearings on this, and then we've heard from both sides. So at the right time, I'd like to move to pass.

191. 0:58:04

     Second.

192. 0:58:07

     I got a move to pass and a second. Uh, would like to present

193. 0:58:15

     a, uh, an amendment. This would be in section one.

194. 0:58:23

     And substitute where it says I believe this is in... Mr. Greg Allen, if you could come up real quick. I'm gonna phone a friend. I know the first place would be strike clerk of the court. But-

195. 0:58:45

     I believe that would read, uh, we could do prosecutor or, or we'd have to encompass the state, I think- Mr. Chairman, I don't have the same LC that you're working off of. Is it ... Okay. We'll get that to you. Thank you.

196. 0:59:07

     But I believe it was in section one there. Yes, sir, line 18. Okay. We would put the ... I, I would submit, strike out clerk of the court and insert state. And lines 27 and 28.

197. 0:59:27

     And then lines 27, 28.

198. 0:59:36

     And that was the only two? Yes, sir. Okay. All right. Thank you, Mr. Chairman. All right. Second. All right, I move second. Discussion on the amendment. Representative Fincher. Um, my whole thing is going back to we're moving fast in the right direction, and I think it's really g- getting close. But there keep being changes all the time. And for us to push this so it gets on and, and can, can get into the, uh, cal- ... On the floor session so we can get it out this year, when we could ...

199. 1:00:10

     There's so many things hanging. The, the state prosecutors', um, imbalance in being able to produce this material, uh, not having Axon throughout the state, and, you know, here we've changed, we've put, we've lightened the burden on the clerks and put the burden back on the state prosecutors. My feeling is we're moving great. I mean, we need ... It needs to move this way. I've been on the, I've been on the defense bar myself, and it's frustrating not to be able to get that DUI video.

200. 1:00:41

     But, um, i- there's also a tremendous burden on the state prosecutors. And we're creating something, and I see no funding for Axons throughout the, throughout, throughout the state, and I see no funding for extra prosecutors who would be assigned the duty of fulfilling, uh, this discovery. So we're moving great, in the right direction, but there's changes and changes and changes every time we look at this thing. I think we're moving a little too fast, uh, trying to get it in for this, this legislative session.

201. 1:01:12

     And I think it should become a study issue. This should just become a, a study. Give us, an, uh, everybody another six months to a year to see what's best. And when it comes out, it won't be just a, a throw- ... Something that's been pulled together and sewn together in little pieces so it fits, and, and it'll go right like it's supposed to be. It'll be something that everybody agrees it's necessary. And no prosecutor wants to keep anybody in jail who's, is, is innocent.

202. 1:01:42

     They don't, we don't want them in the jail. We want to move toward getting a, a, a conclusion, either in trial or by plea as soon as possible, and that discovery is what causes that. But you're putting the burden on state prosecutors that I ... It's for sure an impossibility today. It may not be a po- impossibility six months from now or a year from now, but they don't have the electronic capability to do this now, and you're asking them to take on a new responsibility, and there'll be an imbalance there, and there'll be some innocent and not so innocent people harmed.

203. 1:02:22

     So I'm, I'm, I'm asking that this be changed to a study committee and not be forced into the session, this session, just because we can. Thank you, sir. All right, we got a move and a second on the Hong amendment. Any other discussions? Seeing none, all those in favor ... Or excuse me, not the Hong amendment, the Smith amendment. All those in favor of the Smith amendment say aye. Aye. All those opposed same sign. All right, it's on.

204. 1:02:53

     Any other amendments? Seeing none, all those in favor of the passage of House Bill 1255 HC 590410S as amended with the Smith amendment, say aye. Aye. Those opposed same sign. The ayes have it. And thank you, Mr. Allen. Thank you, Mr. Chairman. All right, let's see House Bill 1322, Chairman Cheokas.

205. 1:03:33

     Charlcy out.

206. 1:03:50

     Charlcy's going to stand in for Chairman Cheokas real quick. We've heard iterations of this bill before, so what I would say, we've got 10 minutes, so brevity, uh, please present as quickly as possible. Great. Sure. Thanks, Chairman. So like you said, I'm representing, uh, presenting on behalf of Representative, um, Chairman Mike Cheokas. He has a bill, um, I know you guys hear it all the time, a simple bill, um, but it really is. If you look at lines, um, if you have ... Well, uh, he actually handed me ... I'm looking at the wrong LC version than he handed me, but that's okay.

207. 1:04:21

     It's the same, it's the same bill. Um, but he's changing code section 16-11-30 to update it to now changing from a misdemeanor to a felony. So, um, that's pretty much it. I'm happy to take any questions. Um, I did look into the code too. This might answer some questions as well, but this bill also kind of makes the code more uniform, um, with our rioting in penal institution right now. So that is a felony, so this just kind of makes the code more uniform across the board.

208. 1:04:54

     Okay. Questions from members of the committee.

209. 1:05:02

     Representative Neal.

210. 1:05:08

     Oh, oh, I didn't press the button, sorry.

211. 1:05:11

     It wasn't Representative Holly, was it?

212. 1:05:12

     Oh, nope. Uh, no, I'm not touching.

213. 1:05:14

     Okay. All right. Okay. Um, thank you. I see no further questions.

214. 1:05:26

     And I will share, I guess, a little bit before I just-

215. 1:05:29

     Hold on a second.

216. 1:05:30

     Okay.

217. 1:05:30

     I'll try and just make sure that...

218. 1:05:31

     Oh, yep.

219. 1:05:32

     Has anybody signed up on this one? Uh, yes, come on down. If you'll slide over.

220. 1:05:48

     Good afternoon, Mr. Chairman, members of the committee. My name's Brandi Blue, and I'm here representing the ACLU of Georgia. And I would like to talk a little bit about this bill, HB 1322. Basically, I have three points I'd like to make about this bill. We do not support it. Um, the first two are about the current bill, the current bill, the current language of the Riot Act. Right now, it's described as two or more persons performing an unlawful act of violence or any other act in a violent and tumultuous manner.

221. 1:06:21

     This is extremely broad definition. A person doesn't need to actually commit an act of violence to be charged with rioting under this definition. In any protest or demonstration, the actions of a few individuals could be characterized, could be used to characterize the entire gathering as tumultuous, resulting in peaceful legal participants being threatened with two decades in prison under this bill. The words violent and tumultuous behavior is very vague.

222. 1:06:53

     Without clarity on what it consists of, Georgians would face serious jail time for conduct that they might not have even known was considered riotous. For such grave penalties to be imposed, the nature of these violations needs to be clearer. And finally, I'll say that this bill is unnecessary to protect public safety or property, because Georgia's existing criminal code already imposes stringent penalties for acts of violence and destruction. It's all already covered in the code. There are a myriad of charges that could be applicable to these situations, including but not limited to aggravated assault on a police officer, which carries three to 20 years, and property damage, which is already a felony, one to 20 years based on severity.

223. 1:07:35

     And so I suppose redundant could exacerbate the harms of our already vague riot statute, so I ask you to vote no on this bill, and I'm happy to take any questions.

224. 1:07:46

     Uh, Representative Neal.

225. 1:07:48

     Yeah. Uh, just a quick question. Um, how... I feel like this is a duplicate. How is this different from what we... Did we just pass this, a version of this?

226. 1:07:56

     There's two-

227. 1:07:58

     Yeah

228. 1:07:58

     ... currently. Yeah, there's, this is 1322-

229. 1:08:00

     Right

230. 1:08:00

     ... and we also have 994, which are very similar.

231. 1:08:03

     What's the difference that you're seeing with these ones?

232. 1:08:05

     Bills. I think that the only difference is that one has a bail provision, but I could be wrong. I can, I can get the exact difference and get back to you about that.

233. 1:08:14

     Okay. Thank you.

234. 1:08:18

     Okay. Um, see no other... Is anybody else signed up to this? Oh, yes. All right. I got two more. All right. Thank you-

235. 1:08:29

     Thank you

236. 1:08:29

     ... for being with us today, Brandi. All right, come on down, Mr. Hines. And I see a senator in our midst, uh, Senator Burns, congressman emeritus. Are you here to talk about a bill today?

237. 1:08:41

     I'm here for education, dedication, and interface.

238. 1:08:45

     Well- You'll, you'll make a fine chancellor one day. Go ahead, Mr. Hines.

239. 1:08:51

     Two out of three ain't bad.

240. 1:08:54

     Well, thank you, sir. So I'm Brian Hines. I'm an attorney with the Georgia Association of Criminal Defense Lawyers. And again, first time on this side of this table, which I think we all appreciate. It's a, a fun, unique one. I'll be very quick. For context, by the way, Representative Neal, this bill actually passed out as is, I believe, last year, but it didn't change in the Senate. Uh, but it never went anywhere. The Senate just kind of killed it, I believe. So that's, I think, why it's back. And, uh, for context on the constitutional issue at play, 'cause I think we all agree no one wants rioting.

241. 1:09:24

     I think we're all in that context. But as it's written, this one does give me a lot of pause, and it's under- because I'm gonna actually cite to a s- Georgia Supreme Court case, uh, Smallwood v. State, and it's dealing with the vagueness doctrine. 'Cause as written, I would argue this is incredibly vague, and now it's, I mean, I think there's case law on it right now that allowed this to go forward that said it was a misdemeanor. Now we're essentially making it a felony of one to 20. And so I think vagueness becomes more of a concern when a court's looking at it. So again, s- citing the Smallwood v.

242. 1:09:55

     State, it's a 2020 case, Georgia Supreme Court, it notes the 14th Amendment to the United States Constitution provides that no state shall deprive any person's life, liberty, or property without due process of law. I think we all know that. But where it cites case law from, from the US Supreme Court, it notes that it is well established that the v- that the void for vagueness doctrine of the due process clause requires that a challenged statute or ordinance give a person of ordinary intelligence fair warning that specific conduct is forbidden or mandated and provide sufficient specificity so as to not encourage arbitrary and discrimina- discriminatory enforcement.

243. 1:10:31

     And I think as written, there's several ways I think you could probably nitpick this statute, and I think if it were to pass, or if you were to want it to pass, I think you'd want to add a lot more specificity to this so that somebody's essentially on notice as to what their felony's gonna be. So anyway, I appreciate your time, and that's my only point.

244. 1:10:49

     Thank you. I have time for one more to testify, and then I've gotta give time for the staff to clean out our mess from deliberations and allow for the staff to come in and get the others. So this will be the last witness. Everyone else, I'll see you at 8:00 sharp in the morning. Go ahead, sir.

245. 1:11:11

     Thank you, Mr. Chairman. I'm not gonna repeat all the points that have been previously made. My name is David Schaeffer. I'm here on behalf of Common Cause Georgia and our more than 15,000 members across the state who care deeply about protecting democratic participation and constitutional rights. I echo, uh, the concerns of, uh, ACLU and GACDL that came just before us. Uh, one thing I did wanna lift up, uh, on the bail front is it looks like this bill is pulling riot into the bail statute, which places it on the same level as murder, rape, and aggravated assau- sodomy in OCGA 17-6-1A, and I just wanted to call the committee's attention to that.

246. 1:11:51

     Is this the footing upon which we're placing a, a crime that was previously a misdemeanor and elevating it all the way this, this direction? So, uh, other than that, I agree with the comments previously made, and we stand in opposition to this bill.

247. 1:12:04

     Okay. Thank you. Members, we'll take this back up at 8:00 in the morning. We are adjourned.

248. 1:12:16

     Thanks, Tyler.