Defense attorneys are calling for Cobb County Superior Court Judge Reuben Green to withdraw from two high-profile murder cases because the county's top prosecutor had been Green's campaign treasurer in a previous election.
One case involves Desmond Post, charged in a double murder and scheduled for trial in June. The other is a death-penalty prosecution against Patrick Graham, charged with killing the manager of a Marietta video game store.
Green, who did not return phone calls seeking comment, has asked another Cobb judge to decide whether he should recuse himself from the Graham case. He has yet to issue a decision in the murder case against Post.
A spokesman for the judge said that Green's past connections with DA Pat Head -- his former boss as well as treasurer for Green's state court judge campaign last year - do not compromise his impartiality. In an interview, Head agreed.
But attorney Jimmy Berry, who represents Graham, questioned whether the judge can be objective given his ties to the DA.
“Here we have a case where he is to be presiding and where his ex-boss and former campaign treasurer is asking jurors to give a death sentence," Berry said. "That’s something to be concerned about.”
A motion by Post's attorney, Bert Cohen, noted that financial decisions for the judge's campaign -- "and therefore his career" -- were at least partly under Head's control. Remaining as a judge in the murder case "at the very least creates an appearance of impropriety," the motion said.
Mitch Hunter, a consultant for Green's campaign to retain his Superior Court judgeship in the 2012 elections, said Green would recuse himself if he thought he had a conflict of interest in a case.
"The district attorney did serve a role in his [State Court] campaign, but that does not in any way suggest that he cannot be an impartial jurist in his current role as a Superior Court judge," Hunter said.
Green, of Marietta, is a former member of Head's staff and also worked for the U.S. Attorney's Office as a special assistant. He ran for State Court judge last year but, before the election, was appointed to Superior Court by then-Gov. Sonny Perdue.
For the State Court race, he filed a campaign registration form listing Head as campaign treasurer and the DA's office as the treasurer's address. Green filed an updated registration form two weeks ago for the State Court judgeship, again listing Head as treasurer. Head said Green recently filed his State Court form because Green still had money in that campaign account.
Meanwhile, Green filed a separate disclosure form last winter for his campaign to keep his Superior Court seat, listing Marietta accountant Bret Tyler as treasurer.
Stacey Kalberman, executive secretary of the Georgia Government Transparency and Campaign Finance Commission, formerly the state ethics commission, questioned why Green listed Head's Cobb County office address on his State Court disclosure form.
"That's clearly wrong," she said. "You can't use county resources for your campaign."
State campaign finance laws do not prohibit public officials, such as a DA, from serving as an officer in a judge's campaign, Kalberman added. Head said this was the first time he had been a campaign official for a candidate while DA.
"He asked me if I would be the treasurer and I told him I would," Head said. "I met him over at his house and signed the first disclosure report. ... I have not had any involvement with that campaign since last year, and very little at that."
Head acknowledged his office address was listed on the disclosure form, but said he did not use the office last year for Green's State Court campaign. Head said he does not believe his relationship with Green affects the judge's ability to be impartial.
Monroe Freedman, a legal ethics expert from Hofstra University School of Law, said the question is whether a reasonable person might disagree.
"The relationship of a candidate to his or her campaign treasurer is a position of great trust, a fiduciary relationship," Freedman said. "I think that requires him to recuse himself."
Freedman said he believes that applies to all criminal cases that are assigned to Green so long as Head is district attorney. In such cases, he said, Green should ask lawyers for a waiver to allow him to handle criminal cases prosecuted by Head's office. Otherwise, Green should step aside.
As for Green recruiting Head as treasurer for the State Court campaign, Freedman said, “It was certainly lacking in foresight and judgment.”
Defense motions seeking recusals are not uncommon, particularly when the judge once worked for the local district attorney's office.
In prior rulings, the Georgia Supreme Court has said judges should recuse themselves from such cases only if they: had been the district attorney when the cases were charged; had been an assistant district attorney who had any actual prior involvement in the case; or had been a supervisor at the DA's office overseeing a lawyer involved in the case.
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