Defense lawyers raise COVID-19 fears in Georgia death penalty case

Capital defendants Donnie Rowe (left) and Ricky Dubose appear in court in Putnam County. They are charged with the murder of two correctional officers during an escape from a prison bus in 2017. (Bob Andres/bandres@ajc.com)
Capital defendants Donnie Rowe (left) and Ricky Dubose appear in court in Putnam County. They are charged with the murder of two correctional officers during an escape from a prison bus in 2017. (Bob Andres/bandres@ajc.com)

Credit: None

Credit: None

Attorneys representing a Putnam County death penalty defendant have found themselves faced with a conundrum: In their efforts to keep their client off death row, should they be required to attend in-person court hearings during a deadly pandemic?

They recently declined to show up in person, even though Superior Court Chief Judge Brenda Trammell has refused their requests to conduct hearings like most courts are now doing ― via videoconferencing.

The three attorneys — Frank Hogue of Macon, and Adam Levin and Erin Wallace from the state’s capital defender office in Athens — represent Donnie Rowe, one of two men charged with killing two correctional officers during an escape from a prison bus in 2017.

Frank Hogue has practiced with his wife and law partner, Laura, since 1997, and their Macon law firm is Hogue Hogue Fitzgerald & Griffin. Frank Hogue has tried all kinds of criminal cases in state and federal courts. He has represented defendants in numerous death-penalty cases. In 2012, Hogue served as the president of the Georgia Association of Criminal Defense Lawyers.   (BRANT SANDERLIN / BSANDERLIN@AJC.COM)
Frank Hogue has practiced with his wife and law partner, Laura, since 1997, and their Macon law firm is Hogue Hogue Fitzgerald & Griffin. Frank Hogue has tried all kinds of criminal cases in state and federal courts. He has represented defendants in numerous death-penalty cases. In 2012, Hogue served as the president of the Georgia Association of Criminal Defense Lawyers. (BRANT SANDERLIN / BSANDERLIN@AJC.COM)

Credit: BRANT SANDERLIN / BSANDERLIN@AJ

Credit: BRANT SANDERLIN / BSANDERLIN@AJ

The attorneys’ concerns arose when Trammell began considering trial dates, eventually settling on April 5. Because of pretrial publicity, the plan is to go to Grady County in South Georgia, pick a jury there, then have those jurors taken to Eatonton for the trial at the Putnam County courthouse.

But the defense team said the trial date was set too early because the pandemic could still be raging across Georgia at that time. In a court motion, the lawyers asked Trammell to postpone the trial to let them investigate the case in a way that minimized the risk of COVID-19 transmission to themselves, witnesses and their families. The same goes for the actual jury trial, they said.

“It is incumbent upon judges and lawyers to apply reason when determining whether forcing a particular case to trial before the temporary pandemic is under control best serves the interests of justice,” the motion said.

After Trammell scheduled a Dec. 11 hearing, the defense lawyers notified the court and the district attorney’s office that they would have three medical experts testify remotely. They also said they wanted to conduct the hearing via videoconference, noting that the 66-year-old Hogue was at a greater risk because of his age, Levin’s wife was pregnant, and Rowe had waived his right to be present in court.

Then-Assistant District Attorney Wright Barksdale objected to the hearing being conducted remotely. The next day, Trammell’s judicial assistant told the parties the hearing would be in person. The court, following safety protocols and health guidelines, would make every effort to ensure the safety of everyone involved, the aide wrote.

In a motion filed Dec. 9, Rowe’s lawyers noted “the pandemic in Georgia is at its fastest and far-reaching spread than at any point since the pandemic began.” They also notified Trammell they would not be coming to court. Their motion cited a standing order signed last year by the Ocmulgee Judicial Circuit’s then-chief judge, William Prior, which said “remote proceedings shall be the rule and in-person proceedings shall be the exception.”

In an order issued the next day, Trammell said judicial emergency orders signed by Georgia Supreme Court Chief Justice Harold Melton allow judges to hold in-person hearings. Then, without hearing testimony from the medical experts, she denied the defense motion to postpone the April 5 trial date.

Last month, Melton suspended the resumption of jury trials statewide until the pandemic subsides. Even so, Trammell has not postponed Rowe’s trial date.

Melton’s latest emergency order did allow for in-person hearings. But it also said: “All courts are again urged to use technology when practicable and lawful to conduct remote judicial proceedings as a safer alternative to in-person proceedings.”

Trammell succeeded Prior to become the Ocmulgee Judicial Circuit’s chief judge on Jan. 1. That same day, she signed a new standing order allowing the circuit’s judges to decide whether a hearing would be held in person or remotely.

Trammell did not return a phone call and email seeking comment. She has set the next hearing in Rowe’s case for Feb. 22 and it is to be in person. Hogue, Levin and Wallace declined to comment.

Barksdale, the circuit’s new DA, said in-person hearings during a pandemic are not ideal. “The numbers don’t lie,” he said. “It’s been a trying time for everybody.”

When asked why he objected to Rowe’s hearing being held remotely, Barksdale said, “We want to make sure that the defendant’s rights are protected. We want to do everything by the book.”

Wright Barksdale, district attorney for the Ocmulgee Judicial Circuit. (Ocmulgee Judicial Circuit District Attorney's Office.)
Wright Barksdale, district attorney for the Ocmulgee Judicial Circuit. (Ocmulgee Judicial Circuit District Attorney's Office.)

But defendants are not required to appear in court if they waive that right, even in a death penalty case. After being convicted in 2002 of killing four men at an Atlanta hotel, Timothy Dawson refused to come to court during the first day of the capital trial’s penalty phase, saying he wasn’t feeling well.

In a 2008 opinion, the Georgia Supreme Court upheld the life-without-parole sentences given to Dawson. The court said his constitutional rights were not violated by his absence from critical court proceedings because he had waived his right to be there.

Lawrence Zimmerman, president of the Georgia Association of Criminal Defense Lawyers, said judges should allow remote court hearings whenever possible.

“We’re in the middle of a pandemic and it’s worse than it’s ever been in Georgia,” Zimmerman said. “Lawyers are rightfully concerned about their safety. Our chief justice has implored judges to use technology as much as possible. I don’t see what the problem is.”

Superior Court Judge Alison Burleson has yet to set a trial date for Rowe’s co-defendant, Ricky Dubose, who is said to have fired the shots that killed Sgts. Christopher Monica and Curtis Billue on June 13, 2017.

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