The prosecutor and the defense attorney in the long-running case against former DeKalb County School Superintendent Crawford Lewis agreed that the judge in the trial didn't have the authority to go against the sentencing deal they had reached.
But several justices on the Georgia Supreme Court didn’t seem to agree.
“Trial courts get to decide whether a plea agreement is lived up to,” Justice David Nahmias said while questioning Lewis’ attorney, Mike Brown.
“So if the judge in convinced the defendant did not give truthful testimony… she is bound by that (agreement) and cannot confront the court about it?” Justice Carol Hunstein asked. “(Judge Becker) took the position she never accepted a negotiated plea,” Hunstein said.
On Tuesday, the Georgia Supreme Court heard arguments on what could be the last remaining issue of the case that was born in 2008 when the DeKalb County district attorney opened an investigation into whether former Superintendent Lewis, the former head of DeKalb County schools construction, and her ex-husband manipulated contracts.
Over the course of the case, two defendants were convicted, released, sent back to prison and resentenced. Lewis had to ask the Court of Appeals to force the court to issue him a bond when the trial judge, Cynthia Becker, ordered him to prison and then left town. And Becker retired and then briefly faced criminal charges before the pending case against her was dismissed.
While the justices spent 40 minutes hearing argument and aggressively challenging the defense attorney and prosecutor on Tuesday, it will be some time before they issue a decision.
So far, only former Chief Operating Officer Pat Reid and her ex-husband, architect Tony Pope have been to prison. Both were convicted of racketeering two years ago, but earlier this year their convictions were withdrawn and they were allowed to plea to the lesser charge of theft. Both were re-sentenced. Reid's 15-year sentence is now five years and Pope's eight-year sentence is also now five years.
Facing racketeering charges and the possibility of 65 years in prison, Lewis struck a deal with prosecutors in the days before the trial began in the fall of 2013. Prosecutors agreed they would recommend Lewis be sentenced to 12 months probation and no jail time, if he pleaded guilty to misdemeanor obstruction and testified truthfully against Reid and Pope.
Judge Cynthia Becker agreed to the deal reached before testimony began. But when it came time to sentence Lewis she ordered him to spend 12 months in jail because she didn't believe he told the truth when he testified.
Lewis has been free on appeal bond since the Reid-Pope trial ended and has not begun serving his sentence.
The DeKalb District Attorney’s Office and Lewis say Becker did not have the authority. They want the Georgia Supreme Court to order Lewis sentenced according to the plea agreement, 12 months on probation.
“It’s a very unusually postured case,” Anna Cross, deputy chief assistant district attorney in DeKalb, said because her office and Lewis’ attorney agree.
The justices asked a legal scholar at Mercer Law School to file a brief with arguments contrary to those held by Cross and Lewis.
“It would be unusual to find that a trial judge is constrained from entering a sentence that she views as appropriate after determining that the defendant was not credible in his testimony simply because the prosecution does not question the defendant’s credibility,” Mercer’s Sarah Gerwig-Moore wrote.
Gerwig-Moore noted both sides have an interest in protecting the plea agreement. Lewis doesn’t want to go to hail and prosecutors don’t want a key witness in the Reid-Pope prosecution discredited, she wrote.
Cross said prosecutors believed Lewis kept his end of the deal when he testified and so he should not have been sentenced to jail.
Nahmias interrupted her, pointing out that judges everywhere “retain the right to determine sentencing… The trial court always retains the ability to determine if a plea agreement has been breached.
Becker, who retired in March, briefly faced criminal charges last month because of issues around her decision to go against the agreement. She was charged with giving false information when she was questioned by the Judicial Qualifications Commission about the Lewis sentencing. But four days later, the six felony and one misdemeanor charges were dropped as was the JQC investigation. She had agreed to never again sit as a judge.
“I’m trying to digest what I just heard,” Lewis said after listening the the 40-minutes of arguments.
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