Georgia Man Brandishes Gun at Black Neighbor

After tempers flared during a tete-a-tete between neighbors, a 73-year-old Bibb County man faces major federal criminal charges.

According to the Justice Department, the man fired a .22 caliber revolver toward the victim at his home in Loganville in Gwinnett County. Authorities say Wheeler’s actions were racially motivated.

An indictment alleges he violated the Fair Housing Act’s criminal provision banning force or threat of force to intimidate or interfere with housing rights based on race. He was also charged with unlawful firearm use while committing that civil rights violation. He now faces up to 10 years in prison and a $250,000 fine on each of the two charges if convicted. A judge will determine any sentence after reviewing sentencing guidelines and other factors.

Proof Issues in Criminal Cases

Whether the case is in federal court or state court, the burden of proof, which is beyond all reasonable doubt, is the same.

Different jurisdictions define this phrase differently. Some jurisdictions, including Georgia, don’t provide a definition to jurors, so they can figure it out for themselves. That’s not much of a loss. Georgia’s official definition of “reasonable doubt” is “such doubt as a reasonable man would have after hearing all testimony in the case.” That’s like saying a black hat is a hat that is black.

Georgia defendants have additional protection. The Peach State is one of the few jurisdictions with a presumption of innocence built into the law. So, in the race to convict a defendant, a Marietta criminal defense lawyer gets a head start. The prosecutor’s evidence must be strong enough to transform a lawyer into the Flash.

This task is much easier in some cases than others. The difference between DUI proof and assault proof, two of the most common Cobb County misdemeanors, is a good example.

Generally, DUIs are single witness cases. A single officer detains the defendant, usually at a traffic stop, conducts the DUI investigation, usually by administering the field sobriety tests, and makes the arrest. Police officers are basically expert witnesses. They normally get paid overtime to testify in court. Additionally, police officers have training and experience in this area. Police academies include courtroom decorum lessons, and many officers testify in court dozens of times a month.

Sometimes, an additional officer, like a Breathalyzer tech in an alcohol-related DUI or a DRE (drug recognition expert) in a drug-related DUI, also testify in court. These individuals are basically expert witnesses as well.

In contrast, an unpaid civilian witness must normally testify in an assault or an assault-related case, like the one in the above story.

Witness recollection is often an issue in these cases. Typically, alleged victims were drinking at the time. Alcohol clouds memory, casting doubt on the witness’ credibility. Furthermore, almost 10 percent of Americans suffer from selective amnesia, a memory condition sometimes called dissociative amnesia. When these individuals go through traumatic experiences, like an assault, they simply don’t remember what happened.

Furthermore, alleged assault victims have usually never testified in court before. A good Marietta criminal defense lawyer knows how to discredit these witnesses without humiliating them and angering jurors.

Largely for these proof reasons, better plea deals are usually available in assault cases. Prosecutors often agree to reduce the charges if the evidence is weak.

Terroristic Threats

A bomb threat is the classic example of a terroristic threat. Usually, the caller doesn’t intend to blow up the school. At most, the caller intends to frighten people inside the building.

O.C.G.A. § 16-11-37 applies to much more than bomb threats. It applies to any threat to:

• Commit a violent crime against an individual,
• Harm a number of people at the same time (e.g. the bomb threat example), or
• Damage or destroy property.

Increasingly, Cobb County prosecutors charge teens with terroristic threat. Teens have underdeveloped brains. They don’t understand the consequences of empty threats like “I’m going to burn down the school.” These defendants are usually, and sincerely, very remorseful after authorities file charges. But remorse isn’t a legal defense.

The intent bar is very low in these cases. The state need not prove the defendant intended to scare anyone. Instead, prosecutors must only prove the defendant recklessly disregarded the consequences of his/her actions.

An obscure legal rule, the corroboration rule, often comes up in terroristic threat cases, especially online terroristic threat cases. Usually, an independent witness must see the defendant make the threat. Other times, the defendant’s pre-threat conduct, like acting unusually angry or aggressively, is sufficient.

Terroristic threat is normally a misdemeanor. It’s a felony if the terroristic threat includes a death threat. A similar offense, committing a terroristic act, is always a felony. Terroristic acts include:

• Releasing a hazardous substance into the environment (e.g. pouring gasoline on an object),
• Using a burning symbol, like a burning cross, and
• Throwing or shooting an object at an occupied vehicle.

The same intent requirement applies. Prosecutors must establish intent to frighten or reckless disregard.

Hate Crimes Enhancements

Burning cross terroristic threat cases almost always involve hate crimes enhancements. Georgia was one of the last states to pass one of these controversial laws.

We should clarify that last statement. Harshly punishing hate crimes isn’t controversial. These crimes harm victims in ways many of us cannot imagine. Rather, the wording of these laws is controversial.

As is the case in most states, “hate” isn’t an element of the hate crimes enhancement in Georgia. Instead, this enhancement applies if the defendant singled out a victim for a prohibited reason, usually ethnicity, religion, gender, or sexual orientation.

If Mike attacks and robs Laura because he believes she cannot effectively fight back, Mike could be charged with a hate crime, even though he showed no animus toward women.

Georgia’s hate crimes enhancement adds a maximum twelve months to misdemeanor convictions and a maximum two years to felony convictions.

These offenses have indirect consequences as well. Officials must record the defendant’s name in a hate crime database. No one is exactly sure what happens next. However, it’s safe to assume that these people walk around with an extra-large target on their backs. Additionally, investigators most likely scrutinize any organizations the defendant belongs to, as well as the friends s/he has.

Under the law, threatening to hurt someone is almost as bad as hurting someone. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Convenient payment plans are available.