Supreme court sides with DeKalb judges over DA
The Atlanta Journal-Constitution
Monday, September 22, 2008
A narrow majority of the Georgia Supreme Court on Monday ruled in favor of DeKalb County Magistrate Court judges who were at odds with District Attorney Gwen Keyes Fleming over how the judges conduct preliminary hearings.
Keyes Fleming’s office said the decision turned on a procedural question and that she still expects to prevail.
The dispute is over whether the judges may demand more than “hearsay” testimony by police officers at preliminary hearings, which are held for defendants who have been unable to bond out of jail while awaiting trial.
The Supreme Court’s 4-3 ruling said Keyes Fleming could not use two specific legal mechanisms in the case. They noted that Keyes Fleming might have instead sought a “declaratory judgment,” apparently leaving open the possibility she could try again using that method.
Keyes Fleming argued the magistrate judges were demanding extra witnesses to corroborate police accounts. The judges countered that Keyes Fleming was demanding they “rubber stamp” whatever they were told by police. Chief Justice Leah Ward Sears and justices George Carley and Howard Melton dissented, saying the court should have told the magistrate judges they did not have the authority to disregard police hearsay testimony.
The majority opinion was written by Presiding Justice Carol Hunstein and joined by justices Robert Benham, Hugh Thompson and Harris Hines.
Chief Magistrate Court Judge Winston Bethel referred questions Monday to the attorney who represented the magistrate judges, Howard Indermark. Indermark said in an e-mailed statement: “I was pleased that the Supreme Court agreed with our position” that Keyes Fleming could not use those legal mechanisms to challenge the magistrate judges’ decisions.
The district attorney’s office issued a statement predicting the magistrate court judges “will follow the law … as that law was clearly articulated by Chief Justice Sears and Justices Carley and Melton.”




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