The DA’s office’s handling of the case since learning of the DNA news has mystified legal experts – including former judges and district attorneys – around the state who have said that new evidence shows Perry should be released from prison.
In opposing Perry, the DA’s office has sought to bar him from challenging his conviction and berated a woman in court who could be an important witness if Sparre ends up charged with the murders in the GBI’s renewed investigation of the crimes.
“It seems to me these prosecutors have abandoned all pursuit of the truth,” said Lester Tate, former head of the Georgia Judicial Qualifications Commission.
Perry’s fate rests in the hands of Judge Stephen Scarlett, who presided over Monday’s hearing on his motion for new trial. Scarlett is expected to issue a ruling Friday.
Monday’s hearing happened after the DA’s office repeatedly attempted to have it postponed or canceled.
Chief Assistant District Attorney John B. Johnson III, who prosecuted Perry at trial, fought against the motion for new trial in court this week. In an interview Tuesday, he said the DA did the right thing in May by asking the GBI to reopen the investigation. The 58-year-old defendant simply must wait until the conclusion of the investigation – which has no clear timeline – to learn his fate, he said.
The principle reason, the prosecutor said, is that Perry agreed to waive his right to appeal to avoid the death penalty. Immediately after Perry’s conviction, Johnson offered to take the death penalty off the table in exchange for surrendering his appeal rights.
“I don’t care what anybody else says,” said the prosecutor. “A defendant agreed to not appeal, and we’re supposed to just roll over? No, our obligation is to investigate and to oppose the motion because we had an agreement.”
Perry’s attorneys called the state’s position “disingenuous” and “egregious.”
State Rep. Bert Reeves, R-Marietta, who is one of Gov. Brian Kemp’s floor leaders and the vice chair of the committee over criminal law bills, said the facts he’s reviewed show the motion for new trial isn’t prohibited and will likely be granted.
Reeves, a former prosecutor who is not involved in the case, said if the DNA evidence had been available before Perry’s trial, Sparre likely would’ve been charged and convicted. “Therefore, the outcome for Perry would be entirely different because in all likelihood he would have never even been charged.”
Inaction, delay requests
Jurors said after Perry’s trial they were swayed largely by the testimony of the state’s star witness: the mother of Perry’s ex-girlfriend, who claimed Perry had told her he planned to kill Harold Swain. The state did not disclose to the defense or the jury that the woman would receive $12,000 in reward money for her testimony.
Sparre never came up at trial because of his alibi.
Perry’s attorneys with the Georgia Innocence Project and the King & Spalding law firm decided to do a DNA test after learning that reporting by The Atlanta Journal-Constitution showed that Sparre’s alibi couldn’t be true. The test showed the hairs belonged to someone from Sparre’s maternal line. Sparre is the only person in that line known to have allegedly bragged about killing the Swains.
After learning the the DNA results in March, it took the Brunswick DA took six weeks to ask the GBI to reopen the investigation. Attorney General Chris Carr’s office has said the motion for new trial should proceed before the other filing and that position hasn’t changed.
As Monday’s hearing approached, the DA’s office sought to delay by saying it couldn’t take a position on the motion for new trial until the GBI’s investigation concluded.
The state then tried to have the hearing canceled last week by sending an email to the judge mentioning that Perry had waived his appeals, according to Perry’s attorneys.
Attacking witness, evidence
In court, Assistant District Attorney Andrew Ekonomou, who assisted Johnson in arguing against Perry, reiterated the state’s position that Perry is barred from all post-conviction relief.
Perry’s attorneys say the trial transcript shows Perry agreed to waive his appeal rights only. But after trial, Johnson had the judge approve sentencing documents that said Perry waived all post-conviction relief.
Neither Perry nor his attorneys signed the documents.
When the judge let Monday’s hearing proceed, Perry’s attorneys presented three witnesses who said they’d heard Sparre brag about the murders with various levels of specificity. One witness said Sparre said during a party 20 years ago that he’d killed two Black people and wouldn’t be afraid to do it again, though he didn’t say when or where the murders happened.
Chad Head, the brother of Sparre’s late first wife, said he remembered when Sparre called the family home in 1986 and said explicitly that he’d killed the couple in the church, calling them the n-word. Head testified he recorded the call and turned it over to the Camden County Sheriff’s Office. Like so much of the evidence in the case, the tape has vanished.
Sparre’s second ex-wife, Rhonda Tyson, testified that Sparre told her one day in the late 1980s that he killed the Swains.
Ekonomou loudly challenged her credibility, partly because she hadn’t always called the police when Sparre allegedly beat her. “Why didn’t you go to the police (when) he assaulted you and he beat you up?” Ekonomou said.
Tyson said she had called the police before and they did nothing.
In an interview with the AJC on Tuesday, Johnson acknowledged he’s concerned by the evidence against Sparre, but he also attacked that evidence.
Johnson characterized the DNA evidence against Sparre as flimsy because it only shows that someone in his maternal line – which is estimated to include .4% of the North American population – is tied to the scene. As Perry’s team has pointed out, 99.6% would not match.
And in a Wednesday court filing, Perry’s attorneys argued that the DNA is extremely significant when you take into account that Perry’s DNA doesn’t match the hairs from the scene; that Sparre told people he killed the Swains; that Sparre had a fraudulent alibi; and that Sparre’s first ex-wife picked the glasses from the scene out of a line up, identifying them as just like a pair Sparre had.
Johnson knows all of that.
He said still thinks Perry is guilty.
“Based on the evidence at trial,” Johnson said, “I do.”