Retrial of DeKalb CEO Ellis begins

Beginning Monday, they will have another chance. A new jury will weigh the case against the official whom prosecutors consider at the top of a long list of corrupt public servants. Some residents, however, say continuing to pursue charges is a waste of time and money.

Ellis, who became his own star witness when he took the stand during the first trial, has said he never punished contractors who refused to donate to his 2012 re-election campaign.

At stake is the reputation of a county overshadowed by the charges, leading to public perceptions of a crooked and ineffective government. DeKalb’s troubles have motivated several communities to form cities to create separation from the county.

If a jury convicts Ellis, he faces up to 20 years in prison. If he’s acquitted, he could resume his position as the leader of the county of 722,000.

“The county has shown a history of questionable behavior,” said J.D. Clockadale, a business consultant who supported forming the city of Brookhaven so residents have more control over government. “If the trial shows there’s corruption, then it’s worthwhile.”

Because Ellis hasn’t been convicted of a crime, he has continued to collect a $13,092 monthly paycheck — about $157,100 per year — since Gov. Nathan Deal suspended him from office in July 2013, according to pay records obtained by The Atlanta Journal-Constitution through the Georgia Open Records Act.

“What I saw was aggressive fundraising. I didn’t see criminal activity,” said Jeff Dickerson, a public relations specialist who previously worked with Ellis’ legal team. “It has set the county back because a lot of people just don’t think it’s a crime to raise funds. We’d have a slew of politicians in jail if it was.”

While a gag order by Superior Court Judge Courtney Johnson prevents prosecutors and defense attorneys from talking about the case and their strategies for a retrial, experts say there were lessons to be learned from the first trial.

Last time, an jury of 12 women deliberated for 11 days without reaching a consensus. This time, both the prosecution and defense will have to work harder to find jurors whose opinions haven’t been tainted by allegations of widespread corruption in the county. It is expected to take several days to pick a jury.

Retrials provide attorneys on both sides a chance to refine and shift strategy.

Prosecutors streamlined their case last week when they dropped four counts alleging Ellis ordered county employees to create lists of vendors that he could then use to solicit campaign contributions.

John Marshall Law School professor Michael Mears said prosecutors can fine-tune their case; they can weed out weak witnesses and add some stronger ones. They’ve interviewed jurors from the first trial and know what worked and what should be left out of the second trial.

“Both sides have now seen everything the other side has to offer,” said Stephen Bright, who teaches law at Yale University. “Of course, they can add witnesses or decide not to call witnesses. It’s very different from the first (trial) because, to a degree, you know how people will testify.”

And, if a witness called in the first trial gives different testimony in the second, they can be impeached, Bright said.

A key prosecution witness in the first trial, the former head of purchasing for the county, Kelvin Walton, didn’t help, according to jurors.

They didn't like him. Some were put off that he had secretly recorded conversations with Ellis during which the now-suspended CEO discussed punishing vendors. Walton admitted he was a liar, and said he helped with the case against his former boss so he could avoid going to prison. Walton described himself as little more than Ellis' "yes man."

According to affidavits from two jurors who heard the first trial, there was not enough evidence to convict Ellis. Yet the forewoman in that trial, Susan Worthy, told the media Ellis should have been convicted of all 13 original counts, nine of which remain for the retrial.

Ellis was engaging when he testified, giving clear and direct responses over three days, telling jurors he didn't do what prosecutors said he did.

When defendants testify, “jurors love that,” said Phil Anthony, CEO of the trial consulting firm DecisionQuest. “In criminal cases, one of the most frequent comments we hear from jurors is, ‘I don’t understand why the defendant didn’t testify. He should have taken the stand and cleared up the mystery.’ It comes as a surprise to most jurors that most defendants don’t take the stand.”

The prosecution team, led by DeKalb District Attorney Robert James, has said Ellis told aides to withhold county work if vendors didn’t return his campaign solicitation calls.

Ellis testified he was angry about unreturned calls rather than their decisions not to contribute. He said the vendors named in the indictment weren't responsive to the government entity that paid them significant amounts of money, with contracts valued from $250,000 to $1 million.

Ellis was never accused of demanding payments for his own personal benefit — all of his solicitations were seeking funds for his campaign account, which pays for political mailings, consultants and yard signs.

But prosecutors, making the point that Ellis had a financial motivation, told the jury in the first trial that he was responsible for his campaign debt.

Between 2011 and 2013, Ellis’ campaign raised $723,388 and spent $723,190, according to an AJC analysis of his finance reports.

“It’s not bribery or kickbacks,” said Charles Peagler, a retired business owner who lives in South DeKalb. “My opinion is that this trial is a waste of taxpayer dollars with all the other corruption going on.”

Jurors heard the owners and employees of four vendors named in the indictment. County employees also testified to occasions when Ellis would allegedly have them do campaign-related work during county business hours.

“People want transparency, and if it requires a trial to do that, it’s appropriate,” said Pat Killingsworth, a mediator and former member of the DeKalb Board of Ethics. “The value is in opening the door to the process of what’s going on in government.”

DeKalb residents have grown weary of corruption scandals. In the past two years, there have been guilty pleas from a county commissioner, a zoning board member and the public school system’s superintendent, among others.

A conviction against Ellis would cost him not just his county-paid position, but also his license to practice law in his previous profession as a real estate attorney.

Also, said Mears, Ellis will be “a political pariah.”

Opinions differ as to who has the advantage in a retrial — the prosecution or the defense.

Most criminal cases are resolved without trials; plea deals are often struck before a jury is seated. Retrials are even less common.

“It’s got to be less than one out of every 1,000 (cases) that go to trial have to have a retrial,” said Anthony. “It’s relatively rare.”

With a second trial, the defense knows what to expect, said Anthony.

“In most cases, the fundamental facts have already been laid out,” he said. “It’s more of a fine-tuning exercise, whereas the defense can come up with a new strategy.”

Ten days before jury selection was to begin, prosecutors notified Ellis’ lawyers that they planned to present evidence of “other crimes, wrongs or acts” involving three other vendors.

The notice said prosecutors had evidence and recordings of Ellis asking other vendors — vendors not named in the indictment — for money to settle his campaign debt. The requests for campaign contributions were made at the same time he told them how much damage they would do to themselves and their county contracts if they didn’t help, according to court records.

“Retrials don’t usually turn out well for the defendant,” Mears said. “A retrial gives prosecutors a chance to clear up mistakes. … I think it’s going to be harder for Ellis and his attorneys the second time around, harder than for James. That’s not to say he won’t get acquitted the second time. He’s got a tough road ahead of him with this retrial.”

Allegation of corruption in DeKalb County

• A former division manager with a janitoral service pleaded guilty Tuesday to federal conspiracy to commit bribery of a public official. Cecil Clark admitted he provided an apartment to the man who oversaw janitorial services for both DeKalb County and at the Georgia World Congress Center in hopes of getting contracts with both the county and the state for Alabama-based Rite Way Service. He will be sentenced July 31.

• Patrick Jackson, a former DeKalb County custodial services manager, pleaded guilty to federal charges he steered janitorial work to Alabama-based Rite Way Service in exchange for a luxury apartment, furniture and utilities. He will be sentenced June 16.

• Federal prosecutors have issued a subpoena to DeKalb County seeking records on Zoning Board of Appeals Chairman Darryl Jennings Sr. and a pool hall at the center of a bribery scandal.

• Bob Lundsten, who was ex-DeKalb Commissioner Elaine Boyer’s top aide before she resigned in disgrace, has pleaded not guilty to six counts of theft by taking and three counts of making false statements for allegedly making personal purchases with taxpayer dollars for personal.

• Former DeKalb Commissioner Elaine Boyer is serving a 14-month sentence in federal prison after pleading guilty to defrauding taxpayers of more than $100,000. Her husband, John, pleaded guilty for his role in the same scheme and will be sentenced in August.

• The former head of construction for DeKalb schools, Pat Reid, and her architect ex-husband Tony Pope were convicted of racketeering and sentenced to prison in October 2013. They have both appealed.

• One-time school Superintendent Crawford Lewis pleaded guilty to misdemeanor obstructing an investigation to avoid the possibility he could also be convicted of racketeering along with Reid and Pope. He was sentenced to 12 months in jail but is appealing that on the basis that his plea agreement was for probation.

• DeKalb grease inspector Dameco Moss pleaded guilty in May 2011 to bribery and theft for strong-arming restaurant owners for money. He was sentenced to six months in jail and ordered to pay restitution.

• Three DeKalb educators were charged in April 2013 with manipulating school records to show higher scores on standardized tests. Former Rock Chapel Elementary School Principal Angela Jennings pleaded guilty and was fined $1,000 fine and sentenced to five years probation. Former Cedar Grove Middle School Principal Agnes Flanagan pleaded guilty to six counts of forgery, making a false statement and public-records fraud and was sentenced to five years on probation. Charges against Stoneview Elementary School Assistant Principal Derrick Wooten are pending.

• Former Miller Grove High paraprofessional Daphne Murphy pleaded guilty to siphoning more than $13,000 from funds supporting cheerleaders and the senior class. She was sentenced to 10 years of probation.

• Former Stephenson High bookkeeper Shirlene Benton pleaded guilty in November 2011 to theft of more than $12,000. She served six months in jail.

• Jerry Clark, a former member of the DeKalb Zoning Board of Appeals, pleaded guilty in February to taking a bribe for his vote. His sentencing will be rescheduled.

• Ismail Sirdah, a pool hall owner, has pleaded guilty to bribing Clark for his vote on a nightclub permit. His sentencing will be rescheduled.

DeKalb CEO Burrell Ellis

Age: 57

Hometown: Washington, D.C.

Residence: Stone Mountain

Family: Married, two children

Education: Bachelor’s degree in economics and finance, University of Pennsylvania; law degree, University of Texas at Austin

Occupation: Attorney, practicing real estate law; negotiation and collaborative problem solving instructor, Georgia State University School of Law

Political experience: Served on the DeKalb County Board of Commissioners from Jan. 2001-Dec. 2008; elected DeKalb County chief executive officer Nov. 2008; re-elected Nov. 2012; suspended from office July 2013.

Salary as CEO: $157,098

Criminal case: Appeared before special grand jury twice; testimony was basis for perjury charges; indicted June 18, 2013, 12 felonies and two misdemeanors (one felony count dropped); jury selection began Sept. 8; opening statements made Sept. 16; mistrial declared on Oct. 21; Judge Courtney Johnson specially sets a retrial for June on Dec. 9.

The charges and how the jury voted in the first trial, according to the forewoman.

• Count 1 — Theft by extortion for threatening to withhold county work if Joanne Wise at technology consulting firm Ciber Inc. did not make a campaign contribution.

Vote: 8-4 for acquittal

• Count 2 — Theft by extortion for threatening to tell Joanne Wise’s boss that she had cost technology consulting firm Ciber Inc. DeKalb County business.

Vote: 8-4 for acquittal

•Count 3 — Theft by extortion for telling the county purchasing director to stop sending Watershed Management Department work to Austell-based Power and Energy Services when the owners did not respond to the CEO’s campaign solicitations and a receptionist told the CEO the company was not interested in his services.

Vote: 10-2 for conviction

• Count 4 — Theft by extortion for withholding county work because a Power and Energy Services co-owner did not contribute to his re-election campaign.

Vote: 10-2 for conviction

• Count 5* — Theft by taking for ordering DeKalb’s purchasing director to assemble —- while on county time —- a list of vendors to be used to solicit campaign contributions.

Vote: 7-5 for acquittal

• Count 6* — Theft by taking for having DeKalb’s purchasing director deliver a vendor list to the CEO during regular work hours and for using him to solicit and collect campaign

contributions during business hours.

Vote: 7-5 for acquittal

• Count 7* — Coercion of other employee to give anything of value for political purposes for ordering purchasing director Kelvin Walton to prepare during working hours a detailed vendor list to be used to solicit campaign contributions.

Vote: 6-6

• Count 8* — Coercion of other employee to give anything of value for political purposes for “directly or indirectly” ordering purchasing department employees to research and prepare vendor lists to be used to raise political funds.

Vote: 6-6

• Count 9 — Theft by extortion for threatening to pull county business from National Property Institute if NPI’s co-owners didn’t make a political contribution.

Vote: 11-1 for conviction

• Count 10 — Bribery for offering to smooth out a contracting problem for Terry Merrell and Merrell Bros. Inc. if the business would help raised $25,000 to help retire a 2012 re-election campaign debt.

Vote: Split/unknown

• Count 11 — Perjury for testifying before a special purpose grand jury that he never ordered work withheld from a vendor because the vendor did not return telephone calls.

Vote: 8-4 for conviction

• Count 12 — Perjury for testifying before a special purpose grand jury that he did not tell the county purchasing director to cut off county business with a vendor.

Vote: 8-4 for conviction

• Count 13 — Perjury for testifying before a special purpose grand jury that he didn’t get involved with contracts.

* These counts have been dropped before the retrial.

Corruption case timeline

January 2012: DeKalb County District Attorney Robert James convenes a special grand jury to investigate allegations of corruption in the county’s water department. There had been allegations of bid-rigging and kickbacks.

January-June 2012: DeKalb’s top elected officials and administrators, including CEO Burrell Ellis, appear before the special grand jury.

Jan. 7, 2013: Investigators search the home and offices of Ellis and his former campaign manager, Kevin Ross, seeking information about campaign contributions from vendors. Ellis denies any wrongdoing. The search takes place while Ellis testifies before the grand jury.

Jan. 18, 2013: Special grand jury finishes its report. Attorneys for Ellis and Ross go to court seeking to keep it under seal.

March 21, 2013: The foreman of the special grand jury sues the judge overseeing the grand jury, hoping to force him to make its report public.

June 18, 2013: James announces an indictment of Ellis, accusing him of extorting campaign contributions from vendors.

July 15, 2013: A panel convened by Gov. Nathan Deal holds a hearing and recommends Ellis be suspended from office.

July 16, 2013: Deal formally suspends Ellis and names DeKalb Commissioner Lee May as interim CEO.

Aug. 21, 2013: The special grand jury’s 81-page report is released. The report alleges a culture of corruption spanning two administrations, from the county’s elected leadership to sewer employees and contractors. The report recommends that a dozen people be criminally investigated, including Ellis, Ross and former CEO Vernon Jones.

Jan. 16: A grand jury re-indicts Ellis on many of the same charges in the first indictment along with some additions, including one count of bribery and three counts of perjury. He now faces 14 charges in the case. (One charge is later dropped.)

Jan. 23-24: Ellis’ legal team and James face off in two days of hearings on a flurry of inflammatory motions, including accusations that James illegally videotaped Ellis during the investigation.

April 1: Superior Court Judge Courtney Johnson denies requests from Ellis’ attorneys to dismiss the case. Johnson also rejects their assertion that he’s the victim of selective prosecution.

Sept. 8: Jury selection begins in Ellis’ trial, which is expected to last several weeks. The trial is expected to feature secretly recorded conversations of Ellis and testimony from contractors that he sought campaign contributions from.

Sept. 16: After the jury has been selected, the testimony begins. Prosecutors begin calling vendors who said Ellis pressured them for campaign contributions.

Sept. 23: The prosecution’s star witness, Kelvin Walton, DeKalb purchasing director, begins four days of testimony.

Oct. 1: Ellis takes the stand in his own defense, says he never pressured vendors for campaign cash or got involved in county contracts.

Oct. 6: Closing arguments end. Jury begins deliberation.

Oct. 21: Judge Courtney Johnson declares a mistrial after jurors failed to reach verdicts on any of the counts.

Dec. 9: Johnson specially sets Ellis’ retrial for June 1.