Cobb solicitor refiles charges against teen cited for drinking at magistrate's house

Cobb County solicitor Barry Morgan has refiled charges against a 19-year-old accused of drinking at the home of a magistrate who also served as the teen's lawyer.

And the assistant solicitor who agreed to let William Maxwell count baseball practice as his community service has resigned, Morgan said.

Morgan told The Atlanta Journal-Constitution on Thursday that he refiled the minor in possession of alcohol charges Wednesday, two weeks after the charge was withdrawn as part of a plea agreement.

Morgan said Maxwell did not meet the criteria to enter a diversion program, especially one that allowed him to satisfy 40 hours of community service by practicing with his Rice University baseball team for 150 hours. Also, Maxwell’s blood-alcohol content was .171, more than twice the .08 BAC that is the maximum allowed to participate in a diversion program, Morgan said.

“He doesn’t meet the eligibility of our diversion program, so there will be another resolution [to the case]," Morgan said.

Susan Miller, Maxwell’s current attorney, could not be reached for comment Thursday afternoon. Miller did not negotiate the deal, though she represented him in court the day the charge was officially dismissed, Feb. 11.

“The way this case was handled was not the way I believe these cases should be handled,” Morgan said. “I accept responsibility, as head of this agency, for what occurred. We are already making policy changes.”

While the resolution to this case of possession of alcohol by a minor was unusual, questions also were raised because Maxwell’s first attorney owned the house where 10 teenagers were cited for drinking. A special prosecutor has been named to look into whether Diane Busch, also a city magistrate in Marietta and Woodstock, violated any laws.

Cobb County police were called to Busch’s house around 3 a.m. on Dec. 22 after a neighbor reported hearing gunshots, which turned out to be the sound of balloons bursting. It was then that the officers saw teens drinking and cited 10 of them -- four of them “adult minors” because they were older than 17.

Busch was reportedly asleep when the police arrived at her house, several hours after an adult Christmas party had ended.

In early January, Busch e-mailed the young prosecutor assigned to the case with a suggestion that Maxwell be allowed to count his baseball practice at Rice, a private school in Houston, in lieu of the usual time volunteering with a charity. The assistant solicitor, two years out of law school and with a year of experience as a prosecutor in Cobb State Court, initially told Busch he didn’t think the judge would approve such an agreement.

Busch and the assistant solicitor were in court the next day on an unrelated case, and that is when Busch brought up the proposal with the judge. Morgan said the police report had been delivered to his office late the day before and his prosecutor had not read it when he agreed to Busch's proposal.

Morgan said his office learned Busch was the homeowner where the teens were cited only when they read the police report after the agreement was reached. Morgan said he was obligated to honor the agreement, but he “would object if she continued to be his lawyer.”

Maxwell's case was dismissed on Feb. 11 after his new attorney, Miller, provided proof that he had practiced baseball for 150 hours and had passed three random drug tests. Miller brought to court Maxwell's  $150 check for a court fee.

On that same day, the case against another of the “minor adults” cited also was dismissed. Morgan said Jacob Walker had met the requirements of the court's diversion program – 40 hours of community service at an animal shelter, participation in a substance abuse program and three clean drug-alcohol screens. Also, Walker’s BAC was .013, far below what is allowed, Moran said.

The other two “adult minors” are to be in court next month.

Morgan said he was able to refile the case only because Busch had not filed the required diversion petition.