Kenya Kemp was stunned when she learned the Georgia Supreme Court had dismissed the case against her brother’s alleged killers. When she found out a reason why — that Fulton County prosecutors did not investigate the case for nearly four years — she was livid.
“I feel it’s a big injustice, that they really dropped the ball,” Kemp, 29, said last week. “Those two guys, all they can do is walk away scot-free. My brother, he had three beautiful kids. All they can do is stand over his tombstone.”
In its ruling last Monday, a divided state Supreme Court upheld a trial judge’s ruling dismissing murder charges against the two men accused of gunning down Kenneth Kemp by firing at least five shots in his back on Aug. 7, 2005. From late that year until July 2009, prosecutors abandoned the case, the court noted. By the time the district attorney’s office obtained an indictment in August 2009, the apartments where the killing occurred had been condemned.
The ruling is one of a number handed down over the past year in which appellate courts have dismissed Fulton cases on grounds the state waited too long to either indict the case or bring it to trial. Other challenges seeking to dismiss Fulton prosecutions on speedy-trial grounds are pending.
These cases include defendants accused of murder, child molestation, elderly abuse and armed robbery, according to court records.
“Fulton is particularly prone to this problem because of the overcrowded docket and lack of resources,” said Ashleigh Merchant, a lawyer representing a defendant who prevailed on a speedy-trial motion. “When there is an overcrowded docket, someone needs to come in and re-evaluate cases to determine which cases have a higher priority.”
Fulton County District Attorney Paul Howard said last week his office was stymied in the Kemp prosecution because a police investigator assigned to the case left the force shortly after the killing, taking some of the case files with him. Howard’s office is asking the state Supreme Court to reconsider its decision.
Last year, the Fulton DA’s office indicted more than 10,000 cases. Earlier this year, in an unsuccessful attempt to overturn another speedy-trial ruling, the office told the Georgia Supreme Court that more than 5,100 defendants in the county have had cases pending for more than two years. For this reason, a “constitutional crisis” threatens the prosecutions of many of them because of precedents set by the state’s appellate courts, the court filing said.
Courts deciding speedy-trial challenges must conduct a balancing test ordered by the U.S. Supreme Court in a 1972 decision. Courts must weigh four factors: the length of the delay getting the case to trial, the reason for the delay, whether a defendant asserted his or her right to a speedy trial and whether the delay prejudiced the defense.
During recent arguments, Georgia Supreme Court Justice Harris Hines noted that the court has been hearing a number of speedy-trial challenges “and the vast majority are out of Fulton County.”
Hines wrote the majority opinion in the court’s 4-3 ruling dismissing murder charges against Kemp’s alleged killers — Maurice Gleaton, a member of the chart-topping Atlanta rap group Dem Franchize Boyz, and co-defendant Antonio Clark.
Kemp, killed outside an apartment complex in northwest Atlanta, was a suspect in a murder that occurred the day before, according to police reports. Shortly before he was killed, Kemp, 26, had been in an argument with Gleaton and Clark, and he pulled out a handgun when he was fired upon, witnesses said.
Police quickly secured confirmation from three eyewitnesses who identified Gleaton and Clark as the shooters. This included a teenage girl at the scene and a relative of Clark’s, police said. But both of them soon recanted, saying they could not identify the shooters. A third witness who had identified Gleaton and Clark fled to Florida and told prosecutors he was unwilling to help any further because he feared for his safety.
For the next three years, there was no further investigation of the case. In July 2009, however, a senior prosecutor in the Fulton DA’s office responsible for checking backlog cases found the one against Gleaton and Clark. She located the police officer who’d left after the killing and retrieved from him some of the statements he’d taken of witnesses, Howard said. Prosecutors then presented the case to the grand jury and obtained the indictment. Four months later, lawyers for the two men asked that the case be dismissed on speedy-trial grounds.
At a hearing last December, Fulton prosecutor Marc Mallon acknowledged the case had not been on anyone’s radar.
“I don’t justify it, but that’s the case,” he said. “It wasn’t designed to gain an advantage. It’s sort of — what do you do with this case?” Still, Mallon argued that the case should be allowed to go to trial.
Superior Court Judge Jackson Bedford disagreed. “This went into a file cabinet and nobody did a dadgum thing on it for four years, which is weighted very heavily against the state,” he said.
Kemp’s sister, Kenya, said, “We don’t know how it escalated to where they once rapped together and then this happened. But this was a cold-blooded murder, and they should have been tried for it.”
Howard said he understands the family’s frustration. “But we stayed on the ball,” he said. “We didn’t drop the ball.”
Cinque Axam, one of Clark’s lawyers, said it did not matter whether prosecutors had located the investigator and his files. “There still was no investigation for almost four years, and it doesn’t change the underlying facts,” Axam said, referring to the witness recantations.
Atlanta criminal defense lawyer Noah Pines, who prevailed on a speedy-trial motion this year on behalf of a woman charged with elder abuse, said much of the blame for the delays should be placed on the Fulton DA’s office.
Prosecutors often obtain indictments without the office’s own investigators independently scrutinizing a case after an arrest is made by the police, Pines said. “You have this indict everything and then figure it out later mentality. It’s easy to go and indict somebody, but it’s also a very serious thing when you formally charge someone with a crime. There needs to be more independent review.”
Howard said his prosecutors are seeking fewer indictments than in past years, giving his office more time to review cases. Over the past five years in Fulton Superior Court, there have been 65 motions filed to dismiss indictments on speedy trial grounds, and 20 of those motions — including eight involving murder cases — were granted, according to court filings by the DA’s office.
Howard expressed frustration that Fulton’s judges do have a uniform standard to docket and prioritize their criminal cases. He urged the court to adopt a standard that ensures each case will be tried within one year after indictment. “That will promote a reasonable, speedy disposition of cases,” he said.
Chief Superior Court Judge Cynthia Wright said the court is trying to create a system in which serious felony cases are put on a fast track. At the same time, she said, Fulton should have 10 to 15 more Superior Court judges than the 20 it has now to handle the massive caseloads. Even so, the court’s judges understand that in lean budget times such as now there is no money to pay for such an increase, she said.
“We know we have to process cases as quickly as we can, but cases do get delayed,” Wright said. “From a philosophical standpoint, it’s unacceptable. From a practical standpoint, that’s the way it is.”
Fulton’s judges have been working to reduce the court’s backlog problem. Using a U.S. Justice Department grant, senior judges have resolved more than 300 backlog cases since September 2009, according to court records. All of these cases involved defendants who had been sitting in jail an average of 566 days and who were charged with major felonies, court records show.
According to the court’s most recent monthly report, more than 62 percent of the cases were backlogged because of “court congestion.”
DISMISSED INDICTMENTS
During the past year, a number of Fulton County indictments have been dismissed by trial judges and appellate courts on speedy-trial grounds. Among them:
Shawn Lattimore
Lattimore was arrested in August 2004 and charged with the murder of his friend, Bryan Thompson. A Fulton judge found the state negligent for waiting 22 months to obtain the initial indictment against Lattimore. The judge also held prosecutors responsible for waiting another 19 months to obtain another indictment. In June, the Georgia Supreme Court upheld the judge’s speedy-trial ruling, dismissing the case.
Dante Moses
Moses was arrested and indicted in an armed robbery case in December 2004. His case was called for trial in June 2006 but dismissed when prosecutors said they were not ready to proceed. He was re-indicted later that month. In November 2008, his lawyer filed a speedy-trial motion and it was granted. In November 2009, the Georgia Court of Appeals upheld that decision.
Mai Nagbe
Nagbe, a caregiver, was arrested and indicted in May 2007 on charges she bound and gagged an Alzheimer’s patient. Over the next two years, Nagbe’s case was assigned to four Fulton Superior Court judges. During this time, both the Alzheimer patient and her daughter, who had hired Nagbe, died. In March 2009, a trial judge granted Nagbe’s motion to dismiss. Earlier this year, the Georgia Court of Appeals upheld the decision, saying Nagbe could not be held responsible for her case being assigned to four different judges.
Phillip Pickett
In June 2003, Pickett was arrested on charges he tried to molest a 10-year-old girl. He was released on bond two weeks later. Almost three years after that, Fulton prosecutors obtained an indictment against him. In December 2008, his case yet to go to trial, Pickett filed a speedy-trial motion and a judge granted it, dismissing the charges. The DA’s office appeal is now pending before the Georgia Supreme Court.
How we got the story
The Atlanta Journal-Constitution attended court hearings and read case files, hearing transcripts and court rulings in speedy-trial challenges to Fulton County prosecutions. The newspaper also interviewed prosecutors, defense attorneys, judges and victims’ family members.
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