But four of the state Supreme Court’s seven justices expressed concern.
“Cobb County had information and could have acted on it,” Justice Carol Hunstein said. Later, she wondered, “Why would the District Attorney’s Office take this chance?”
Justice David Nahmias told Barnes his argument made sense. But the law treats grand jurors differently than the jurors who must determine a defendant’s fate at trial, he said.
Grand juries, for example, may consider evidence that has been illegally obtained by law enforcement and which would never be admitted at trial. They can also hear testimony from a witness without having to be told the witness had previously committed perjury, Nahmias said.
The remedy for this is not to go back and dismiss the indictment, Nahmias said, but rather to let the trial judge and jury sort out the case.
“There is no right to have an indictment returned by unbiased grand jurors,” Nahmias said. “… You acknowledge you are asking this court to do something that has not been done in Georgia history?”
Barnes said the court’s opinion on Brown’s indictment will be on “the pages of history for the years.” An opinion allowing an alleged crime victim to serve on the grand jury that returned the defendant’s indictment, he added, “would be shocking.”
“It’s like I see someone stealing my truck,” Barnes said. “Then I serve on the grand jury and say, ‘He stole my truck.’”
The indictment alleges that Brown indirectly enriched himself through his operation of, and stock in, Cobb Energy at the expense of Cobb EMC and its customers. Cobb Energy was a for-profit company set up to run the co-op under a long-term contract.
If the justices agree with Barnes’ arguments and dismiss the indictment, the years-old case against Brown will almost certainly be over.
Prosecutors are only allowed to obtain two indictments in the same case against a criminal defendant. Last September, the state Supreme Court dismissed Cobb’s first indictment against Brown on grounds it was not, as required by Georgia law, returned in an open court.
On Monday, Floyd told the justices they would have to overrule 20 previous rulings to dismiss the second indictment against Brown. “The case law is overwhelming,” he said.
Nahmias did not disagree, but he appeared unsettled by what had happened.
“It looks awful, though, doesn’t it?” Nahmias asked Floyd. When the District Attorney’s Office had the chance, he added, “Why not do something about it?”