# Other Issues > Georgia Prisoners' Speak Other issues  |  Prepared for the House Blue-Ribbon Study Committee on Criminal Post-Conviction Litigation  |  September 2026 ← All committee materials  •  Download the pac… **Published**: 2026-09-08 **Source**: https://gps.press/brc/other-issues/ **Author**: Georgia Prisoners' Speak --- Georgia Prisoners' Speak Other issues | Prepared for the House Blue-Ribbon Study Committee on Criminal Post-Conviction Litigation | September 2026 --- [← All committee materials](https://gps.press/brc/) • [Download the package (PDF)](https://gps.press/wp-content/uploads/2026/09/GPS-September-Package-2026-09.pdf) # Other issues worth the Committee's attention ## Things we found while working on the habeas deadline. None of them is our ask. **Georgia Prisoners' Speak · The GDC Accountability Project, Inc. · September 2026** *Prepared for the House Blue-Ribbon Study Committee on Criminal Post-Conviction Litigation.* --- Our ask is one thing: repeal the four-year deadline on habeas petitions and let merit decide whether a claim is heard. The paper that makes that case is separate from this one. While doing that work we kept running into other rules that produce the same result by a different route. A claim that was never weighed. A claim charged to the client because the lawyer missed it. A claim nobody can review because nobody wrote it down. We set them out here because the Committee may want them, and because each is small. We've kept the reasons short. We can supply more on any of them. ### 1. Let someone weigh the verdict, and say so Georgia already empowers the trial judge to sit as a thirteenth juror: > § 5-5-20: "In any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, the judge presiding may grant a new trial before another jury." > > > > > § 5-5-21: "The presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding."[1](#fn:1) The power exists. It's discretionary, and a refusal to exercise it is, in practice, unreviewable. On appeal the evidence is read in the light most favorable to the verdict, so every credibility question is presumed to have been resolved for the State, and the court asks whether a jury could have convicted, never whether it should have. **Recommend:** that a trial court ruling on a motion for new trial in a criminal case be required, in every case and whether or not the defendant asks, to state on the record that it has considered the verdict against the weight of the evidence under §§ 5-5-20 and 5-5-21, and its reasons; and that an order silent on the point not be presumed to have done so. Nothing more. No new right of appeal, no new standard of review. Only that the one place in the system where a human being is empowered to weigh the evidence must show, every time, that it did. ### 2. When the lawyer who was supposed to raise the claim didn't, that is cause. Say so in both places the statute bars it. Georgia bars a defaulted claim in habeas "absent a showing of cause for noncompliance with such requirement, and of actual prejudice."[2](#fn:2) Nothing in the statute says a lawyer's failure is cause, and the rule that does most of the barring isn't in the statute at all. In 1987 the Supreme Court of Georgia announced, in a single sentence, that "any ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court."[3](#fn:3) The Court has since held that a defendant "cannot resuscitate a specific claim of ineffective assistance of trial counsel that was not raised at the motion for new trial stage" by pointing on appeal to the new lawyer's failure to raise it.[4](#fn:4) So the claim dies once at the motion for new trial because the new lawyer missed it, and again in habeas because it was never raised, and the person serving the sentence carries both. This is a recursion, not a rule. To fix a lawyer's error you need a claim that the lawyer was ineffective. To raise that in time you need a second lawyer to spot it. If the second lawyer fails, the claim is gone, and there's no third. **Recommend:** amend § 9-14-48(d) so that ineffective assistance of the counsel who was required to raise a claim constitutes cause for the noncompliance, under both parts of the subsection: the general requirement to comply with procedural rules at trial and on appeal, and the specific requirement that new counsel raise trial counsel's ineffectiveness. A fix to the second part alone would change nothing for the many claims that die under the first. And abrogate the 1987 waiver rule by statute, so that leaving a ground out of an amended motion for new trial does not, by itself, waive it. One condition comes with this. The Court has held that a defendant at that stage is entitled to "counsel free from conflicts of interest,"[5](#fn:5) a guarantee it tied to the waiver rule, so the rule shouldn't be removed without providing counsel in its place. Federal law already treats a lawyer's failure this way. The Supreme Court of the United States has said that "if the attorney appointed by the State to pursue the direct appeal is ineffective, the prisoner has been denied fair process and the opportunity to comply with the State's procedures."[6](#fn:6) Georgia's statute simply doesn't say so. We'd expect, and would accept, a condition that the underlying claim be substantial. ### 3. Take down the whole trial In a felony trial the judge "shall have the testimony taken down."[7](#fn:7) What the statute doesn't reach is everything around the testimony: jury selection, the opening statements, the conversations at the bench. In a non-capital felony trial those routinely go unrecorded unless someone asks in advance, and a defendant who later learns that something went wrong in one of them has a claim no court can review, because no record of it exists. Thirty-one states record jury selection in a non-capital felony trial as a matter of course. Nine of them record it in every case and transcribe it only if a party asks on appeal, which is where the cost sits: the reporter is already in the room, and the transcript is made only when someone needs it.[24](#fn:25) Georgia already requires all of it taken down when the death penalty is sought, which settles whether it can be done. **Recommend:** require voir dire, opening statements and bench colloquies to be taken down in every felony jury trial. This may need no statute at all, only a change to the court-reporting rules. It is prospective, and it protects the State as much as the defendant: in a case we studied, the Supreme Court of Georgia could not review the strongest claim from the trial because no record of it existed, and an unreviewable claim is also one the State can never conclusively defeat. ### 4. Put a clock on the motion for new trial The motion for new trial is the gate to the direct appeal, and the statute says it "may be heard at any time."[8](#fn:8) The judge's duty to decide within 90 days runs from the day the motion is argued, not the day it is filed.[9](#fn:9) So nothing in Georgia law requires the motion to be heard at all, and a case can sit for years without any rule being broken. While it sits, the appeal can't start, and the person is serving the sentence. **Recommend:** a deadline to hear and decide the motion for new trial, with a backstop: a motion not decided within the period is deemed denied, so that the appeal can begin. ### 5. Restore the hearing on other-acts evidence Until 2015, a prosecutor who wanted to put a defendant's other acts before a Georgia jury had to give written notice naming each act, and "the judge shall hold a hearing," with "the burden of proving that the evidence of similar transactions or occurrences should be admitted" on the prosecution, and the State could present "only those similar transactions or occurrences specifically approved by the judge."[23](#fn:23) That rule was deleted effective June 4, 2015, on the view that the new Evidence Code covered the ground. What the Code requires is "reasonable notice" of "the general nature" of the evidence, and no notice at all when the State offers the act to prove "the circumstances immediately surrounding the charged crime, motive, or prior difficulties between the accused and the alleged victim."[25](#fn:24) A defendant tried in 2002 got a hearing and a finding on the record. A defendant tried today may get a sentence of notice, and if the State calls the evidence motive, nothing. This is the one place we found where Georgia moved backwards. **Recommend:** restore, by rule or statute, the pre-trial hearing and the on-record findings requirement for other-acts evidence in criminal cases, and require notice that states the purpose for which each act is offered and the reasoning, as Georgia already requires under §§ 24-4-413 and 24-4-414. ### 6. A duty to flag known exculpatory material A prosecutor who hands over a large file has complied with the discovery statute even if the one page that matters is buried inside it and nobody says so. Disclosure by volume is not disclosure. **Recommend:** a duty, where the State knows that material in a production is exculpatory, to identify it as such. The duty should be built on the existing exception to open-file practice, not as a new discovery statute. ### 7. Count the outcomes Nobody in Georgia knows how often post-conviction review works. The Administrative Office of the Courts counts filings: by its own reading, superior courts took in 4,425 habeas petitions from 2021 through 2025 and disposed of 3,955. Asked what happened in them, the office answered in writing that it does "not collect any data regarding case outcomes," and that it collects nothing from the Supreme Court or the Court of Appeals.[10](#fn:10) So the State can't say how many petitions were heard, how many were dismissed as untimely or successive, how many were denied on a procedural bar, or how many succeeded. Whatever the Committee recommends will be judged against a baseline that doesn't exist. **Recommend:** require the Administrative Office of the Courts, and the Clerk of the Supreme Court for the certificate-of-probable-cause docket, to collect and publish each year the disposition of every habeas petition and post-conviction motion: dismissed as untimely, dismissed as successive, denied on procedural default, denied on the merits, granted. It's a column on a form the courts already file. ### 8. Discovery in habeas on a showing of good cause A habeas court "may receive proof by depositions, oral testimony, sworn affidavits, or other evidence," and the statute adds: "No other forms of discovery shall be allowed except upon leave of court and a showing of exceptional circumstances."[11](#fn:11) The petitioner is asked to prove what went wrong at his trial while the trial lawyer's file, the crime lab's notes and the prosecutor's correspondence stay where they are unless a court finds his circumstances exceptional. Most of what would prove a concealed violation is, by definition, in someone else's hands. **Recommend:** replace "exceptional circumstances" with "good cause," the standard federal habeas courts have applied for decades, so that a petitioner who can point to a specific reason to believe a document exists and matters can obtain it. ### 9. Hear the case where the conviction happened A habeas petition "must be filed in the superior court of the county in which the petitioner is being detained."[12](#fn:12) That county is chosen by the Department of Corrections, and it is usually far from the courthouse that holds the record, the lawyers who tried the case and the witnesses who could testify. A small number of circuits that host prisons carry the State's habeas docket: more than nine of every ten petitions filed in the last five years were filed in a county with an active prison.[13](#fn:13) The Chief Justice named "adjusting habeas venue" among the changes that are "the sort of thing that far exceeds the judicial power" and belong to the General Assembly.[14](#fn:14) **Recommend:** venue in the county of conviction, or transfer there on motion of either party, with the warden remaining the respondent. ### 10. Make the court write its own reasons Last October the Supreme Court of Georgia vacated two orders in a single case, "both of which uncritically adopted drafts prepared by the State," on a motion that had been "pending for nearly five years."[15](#fn:15) Georgia law lets a trial court adopt a party's proposed order, and often that is ordinary docket management. It stops being ordinary when the order decides whether a conviction stands and the reasoning in it was written by the party that won. A family reading such an order can't tell whether a judge weighed anything. **Recommend:** an order denying a motion for new trial, an extraordinary motion, or habeas relief must state the court's own findings and reasons on each ground raised. A party may still submit a proposed order. The court may not adopt one without stating that it has independently reviewed the record and adopts the findings as its own. ### 11. Evidence sitting in a lawyer's file is not the defendant's knowledge An extraordinary motion for new trial requires evidence that "must have been unknown to the movant or his counsel at the time when an ordinary motion for a new trial could have been filed."[16](#fn:16) Read literally, a document the defense lawyer received and never used can never support the motion, because counsel knew of it. The fact that makes the claim good, that the lawyer had the proof and did nothing with it, is the fact that bars the remedy. The defendant, who never saw the document, is charged with his lawyer's knowledge. **Recommend:** amend § 5-5-41 so that evidence in the possession of former counsel, not disclosed to the defendant and not used at trial or on the ordinary motion, is treated as unknown to the movant. ### 12. A second extraordinary motion, in two situations Georgia allows one extraordinary motion for new trial, ever: "only one such extraordinary motion shall be made or allowed."[17](#fn:17) A person who files one without a lawyer, on the wrong ground, has spent it. A person whose first motion was denied in 2010 has no vehicle if the science behind his conviction is repudiated in 2020. The Supreme Court has recognized that "expert opinion testimony that offers a new analysis of existing physical evidence premised on post-trial scientific developments" can qualify as newly discovered evidence,[18](#fn:18) but the door opens once. **Recommend:** permit a second extraordinary motion where the first was filed without counsel, or where the motion rests on scientific evidence that has changed since the first. ### 13. The reliability hearing the 2022 act gave to civil parties In 2022 the General Assembly extended the reliability standard for expert testimony to criminal cases. It left the machinery civil-only. On a party's motion the court "may hold a pretrial hearing," but only "in all civil proceedings" must "a hearing and any ruling" be completed before trial.[19](#fn:19) A criminal defendant can ask; the court can decline, and nothing requires findings. The cases where an expert's reasoning decides guilt, fire causation, shaken-baby diagnoses, bite marks, are criminal cases. **Recommend:** on a criminal defendant's motion, a reliability hearing and written findings before trial, as civil parties already have. ### 14. Symmetry on appeal When a trial court grants a new trial, the State may appeal as of right.[20](#fn:20) When it denies one, the defendant's appeal reviews only whether the court exercised its discretion, not how. When a habeas court grants relief, the State appeals without a certificate; when it denies relief, the petitioner needs a certificate of probable cause from the Supreme Court, which grants a few each year.[21](#fn:21) Each rule runs one way, and both run toward the State. **Recommend:** either an appeal of right from the denial of habeas relief, or the same certificate requirement for both sides. ### 15. When a judge doubts the lawyer, put the answer on the record In a case GPS is examining, a trial judge cleared the courtroom four days before trial and, according to the defendant's sworn motion to recuse and the appellate brief that followed, told him that his lawyer was trying his first criminal jury trial, had made several procedural errors, and might have a conflict of interest through their mothers' friendship, then asked whether he wished to proceed with that lawyer.[22](#fn:22) The session was transcribed, but no transcript has been produced to us; the record we hold shows no recorded answer, no waiver, and no ruling on the conflict, and the question was never raised on appeal as a conflict. Nothing in Georgia law required more. **Recommend:** when a court raises on its own motion a question about counsel's competence or a conflict of interest, it must obtain and record the defendant's informed response, and the exchange must be transcribed. --- ### Notes --- --- 1. O.C.G.A. §§ 5-5-20 and 5-5-21, quoted in full. [↩](#fnref:1) 2. O.C.G.A. § 9-14-48(d): "The court shall review the trial record and transcript of proceedings and consider whether the petitioner made timely motion or objection or otherwise complied with Georgia procedural rules at trial and on appeal and whether, in the event the petitioner had new counsel subsequent to trial, the petitioner raised any claim of ineffective assistance of trial counsel on appeal; and absent a showing of cause for noncompliance with such requirement, and of actual prejudice, habeas corpus relief shall not be granted. In all cases habeas corpus relief shall be granted to avoid a miscarriage of justice." [↩](#fnref:2) 3. *Thompson v. State*, 257 Ga. 386, 388 (1987): "from the date this opinion is published in the Official Advance Sheets this court will no longer remand such cases. Any ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, i.e., during the hearing on the amended motion." [↩](#fnref:3) 4. *Robinson v. State*, 306 Ga. 614 (2019): "we have consistently held that a defendant cannot resuscitate a specific claim of ineffective assistance of trial counsel that was not raised at the motion for new trial stage by recasting the claim on appeal as one of ineffective assistance of motion-for-new-trial counsel for failing to raise the specific claim of trial counsel's ineffectiveness." [↩](#fnref:4) 5. *Garland v. State*, 283 Ga. 201, 202 (2008): "Effective counsel is counsel free from conflicts of interest," and "appellant was required to raise any issue of ineffective assistance of trial counsel at the earliest practicable moment to avoid it being deemed waived." The conflict-free-counsel guarantee at the motion-for-new-trial stage is the Court's answer to the waiver rule; remove the rule and the reason for the guarantee goes with it, unless counsel is provided by statute. [↩](#fnref:5) 6. *Martinez v. Ryan*, 566 U.S. 1, 11 (2012), describing the rule of *Coleman v. Thompson*, 501 U.S. 722 (1991). *Martinez* requires that the underlying claim be "substantial." [↩](#fnref:6) 7. O.C.G.A. § 17-8-5(a): "On the trial of all felonies the presiding judge shall have the testimony taken down and, when directed by the judge, the court reporter shall exactly and truly record or take stenographic notes of the testimony and proceedings in the case, except the argument of counsel." [↩](#fnref:7) 8. O.C.G.A. § 5-5-40(e): "The motion may be heard at any time; but, where it is not heard at the time specified in the order, it shall stand for hearing at such time as the court by order at any time may prescribe, unless sooner disposed of." [↩](#fnref:8) 9. O.C.G.A. § 15-6-21(b): in counties of more than 100,000, the judge is "to decide promptly, within 90 days after the same have been argued before him or submitted to him without argument, all motions for new trials"; subsection (a) sets 30 days elsewhere. Both run from argument or submission. [↩](#fnref:9) 10. Judicial Council of Georgia / Administrative Office of the Courts, written reply to GPS, Aug. 7, 2026: "We do collect data regarding Manner of Disposition, but it is not reported by all courts for all years. We do not collect any data regarding case outcomes." Same reply: "Our office does not collect data from the Georgia Supreme Court or the Court of Appeals." Filing and disposition counts (4,425 filed, 3,955 disposed, CY2021 to 2025) are the office's confirmed reading of its own data as of that date; the office noted pending amendments. [↩](#fnref:10) 11. O.C.G.A. § 9-14-48(a). [↩](#fnref:11) 12. O.C.G.A. § 9-14-43. [↩](#fnref:12) 13. GPS analysis of the AOC filing data, CY2021 to 2025: 4,059 of 4,425 petitions (91.7 percent) were filed in counties holding an active Department of Corrections facility. [↩](#fnref:13) 14. *Sanders v. State*, No. S26A0222 (Ga. Mar. 3, 2026) (Peterson, C.J., concurring): "creating a limited right to counsel for some habeas proceedings, adjusting habeas venue, and budget adjustments" are "the sort of thing that far exceeds the judicial power. But the good news is that the General Assembly has the power to make at least many of these changes." [↩](#fnref:14) 15. *Smith v. State*, No. S25A0548 (Ga. Oct. 15, 2025): "given that we have now vacated both orders entered by the trial court in this case, both of which uncritically adopted drafts prepared by the State, we encourage the trial court to proceed with care before pursuing the same approach on remand. And given that Smith's motion has now been pending for nearly five years, we encourage the trial court and the parties to proceed with dispatch." [↩](#fnref:15) 16. *Patterson v. State*, 228 Ga. 389, 390 to 391 (1971), as quoted in *Smith v. State*, No. S25A0548 (Ga. Oct. 15, 2025); see *Timberlake v. State*, 246 Ga. 488, 491 (1980). [↩](#fnref:16) 17. O.C.G.A. § 5-5-41(b). [↩](#fnref:17) 18. *Smith v. State*, No. S25A0548 (Ga. Oct. 15, 2025), describing its 2022 decision in the same case (315 Ga. 287). [↩](#fnref:18) 19. O.C.G.A. § 24-7-702(d): "Upon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the expert's testimony satisfies the requirements of subsections (a) and (b) of this Code section. In all civil proceedings, a hearing and any ruling shall be completed no later than the final pretrial conference contemplated under Code Section 9-11-16." [↩](#fnref:19) 20. O.C.G.A. § 5-7-1(a)(8): the State may appeal "from an order, decision, or judgment of a court granting a motion for new trial or an extraordinary motion for new trial." [↩](#fnref:20) 21. O.C.G.A. § 9-14-52(a) and (c): no appeal from an order adverse to the petitioner "unless the Supreme Court of this state issues a certificate of probable cause for the appeal"; "If the trial court finds in favor of the petitioner, no certificate of probable cause need be obtained by the respondent as a condition precedent to appeal." On how often certificates are granted, *Redmon v. Johnson*, 302 Ga. 763 (2018) (the Court has "denied thousands of such applications in the past (while granting a few each year, including two today)"). [↩](#fnref:21) 22. *State v. Batchelor*, Upson County Superior Court No. 2019R-0225: Defendant's Third Motion to Recuse and supporting affidavit (filed Jan. 26, 2020), p. 4 and p. 7 ¶¶ 5 to 6; Brief of Appellant, Ga. Ct. App. No. A23A0635, pp. 9 to 10. The Jan. 24, 2020 session is described in both as transcribed; GPS has requested the transcript from the clerk under Uniform Superior Court Rule 21 (Sept. 2, 2026) and will substitute the transcript's words when it arrives. [↩](#fnref:22) 23. Uniform Superior Court Rule 31.3 (as in force until 2015): "(B) The notice shall be in writing, served upon the defendant's counsel, and shall state the transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced. … The judge shall hold a hearing at such time as may be appropriate, and may receive evidence on any issue of fact necessary to determine the request, out of the presence of the jury. The burden of proving that the evidence of similar transactions or occurrences should be admitted shall be upon the prosecution. The state may present during the trial evidence of only those similar transactions or occurrences specifically approved by the judge." The current official rules (Council of Superior Court Judges, as of Mar. 6, 2025) carry at Rule 31.3 a note that it was deleted in light of O.C.G.A. §§ 24-4-404(b), 24-4-412 to 24-4-414 and 24-4-417: "Deleted effective June 4, 2015." [↩](#fnref:23) 24. GPS fifty-state survey, whether jury selection is part of the trial record in a non-capital felony trial: recorded as a matter of course in 31 states; only on request, or excluded from the required record, in 12 (Georgia among them); judge-directed in 5; unsettled in one; contested in one. The nine states that record in every case and transcribe on request are Alaska, Arkansas, Illinois, Louisiana, Maine, New Jersey, Pennsylvania, Tennessee and West Virginia. Every cell verified against a primary source; full record at gps.press/post-conviction-fifty-states-data/. [↩](#fnref:25) 25. O.C.G.A. § 24-4-404(b): "The prosecution in a criminal proceeding shall provide reasonable notice to the defense in advance of trial, unless pretrial notice is excused by the court upon good cause shown, of the general nature of any such evidence it intends to introduce at trial. Notice shall not be required when the evidence of prior crimes, wrongs, or acts is offered to prove the circumstances immediately surrounding the charged crime, motive, or prior difficulties between the accused and the alleged victim." [↩](#fnref:24) --- Georgia Prisoners' Speak is the public voice of The GDC Accountability Project, Inc., a Georgia 501(c)(3) nonprofit. Corrections: [accountability@gps.press](mailto:accountability@gps.press).