The Georgia Supreme Court on Monday heard an appeal to a trial court decision to throw out the 2011 indictment of the former chief executive officer of Cobb EMC.
Dwight Brown, who formerly headed the Marietta-based electric membership cooperative, was reindicted in Cobb County in July 2012 on the same 31 counts: violating the Georgia Racketeering Influenced and Corrupt Organizations (RICO) Act, theft by taking, making false statements and conspiracy to defraud the state. In addition, four new charges of witness intimidation were added.
The reindictment prompted Justice Harold Melton to ask Cobb County special prosecutor John Floyd whether the appeal of the first indictment should be considered moot.
Floyd said the appeal should go forward because Brown’s attorneys have also filed a challenge to the second indictment. If the Georgia Court of Appeals overturns the second indictment, it would result in a dismissal of the case, Floyd said.
At issue Monday was whether a Cobb County courtroom was improperly closed to the public when the first indictment of Brown was returned in open court.
Case law in Georgia requires an indictment to be returned in open court in order to be considered valid.
Cobb County Superior Court Judge Robert Flournoy granted a defense motion to dismiss the indictment against Brown because one of Brown’s lawyers was “delayed and impaired” from reaching the courtroom on Jan. 6, 2011.
All the exterior doors to the new Superior Courthouse were locked that day while construction workers were putting finishing touches on the building, which was to open officially one week later. The only entrance for the public was a catwalk connecting the old and new courthouses, which was guarded by deputies.
Because of those hindrances, an lawyer associated with lead defensive attorney Roy Barnes was 10 to 15 minutes late and missed the returning of the indictment.
Floyd argued that the courtroom was not closed because other people, including a television news reporter, were there.
But Brown’s lead defense attorney, Barnes, argued that the trial court’s ruling should be upheld. He said the only people in court that day were people the district attorney wanted to be there.
“If you have to have a secret handshake and a high-five to get in, we’re in bad shape,” Barnes said.
The state Supreme Court is expected to rule on the case by the end of June.
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