Johnson's office tried and failed to have Monday's hearing postponed. "The state cannot, in good faith, take a position on Perry's extraordinary motion for new trial or respond to it until the GBI has completed its investigation," Assistant District Attorney Andrew Ekonomou wrote in a court filing. Ekonomou has prosecuted high profile cases for the DA's office through the years, but he rose to more prominence in 2018 when he was added to President Donald Trump's legal team in the Russia investigation.
The GBI has still not completed its investigation.
It is, thus, not clear what argument the DA’s office will offer against Perry’s motion for new trial Monday. Since losing the request to postpone, the DA’s office released a statement to WJXT-TV doubling down, saying it would be “irresponsible to both Mr. Perry and the Swain family to make conclusions about this case prior to having all of the information.”
» FULL COVERAGE: The Rising Daughter investigation
The question before Superior Court Judge Stephen Scarlett is not who killed the Swains. It’s whether the new DNA evidence, had it been available at Perry’s 2003 trial, would have led to a different verdict. Perry’s attorneys have said the DNA evidence is so material to the case that Perry would’ve never been tried if the DNA was available, let alone convicted.
The DNA test links previous suspect Sparre to hairs found in the hinge of a pair of glasses inches from the bodies, according to Perry’s attorneys. Sparre, who police records show suggested to multiple people that he committed the murders, was dropped as a suspect in 1986 based on his alibi that he was on the clock at a Brunswick Winn-Dixie when the Swains died. DNA testing wasn’t common in the mid-80s or police might have checked his DNA against hairs found in the hinge of a pair of glasses found near the bodies.
The AJC determined that Sparre’s alibi, as detailed in a GBI document, couldn’t be true.
Perry was convicted largely on the testimony of his ex-girlfriend’s mother, who claimed Perry told her he planned to kill Harold Swain. The state didn’t tell the defense or the jury that she would receive $12,000 in reward money for her statements.
Perry’s wife, Brenda, said Friday she and her husband are excited for the hearing.
“This is what we’ve wanted and what we’ve been trying to get for years – somebody to listen,” she told The AJC. “I believe God has got his hand on it.”
The judge is expected to rule within a few weeks of the hearing.
Time may be of the essence, as the prison where Perry is held, Coffee Correctional Facility, struggles with the largest COVID-19 outbreak of any prison in Georgia.