The Georgia Supreme Court on Monday was asked to dismiss the case against former Cobb EMC CEO Dwight Brown because grand jurors who voted to indict him were members of the EMC that Brown is charged with victimizing.
The Cobb grand jury that indicted Brown in January 2011 for various felony offenses included four members of Cobb EMC. One of the four was the grand jury’s foreperson, attorney Roy Barnes told the court.
Barnes, the former state governor who now represents Brown, said Brown’s lawyers notified the District Attorney’s Office of the conflict before the grand jury handed up its indictment. But nothing was done about it, Barnes said.
Brown is charged with racketeering, making false statements, conspiracy and the theft of millions of dollars from Cobb EMC and its members. He has pleaded not guilty.
The four grand jurors who were members of Cobb EMC had a direct financial interest in the case, Barnes said. They were not only victims of the alleged theft, they also among other Cobb EMC members in a class-action lawsuit and received money in a settlement with the cooperative, Barnes said.
“If this is not a breach of fundamental fairness, I don’t know what is,” Barnes said.
But Justice David Nahmias noted that over the past century Georgia’s appellate courts have ruled that grand jurors are treated very differently than jurors who preside over trials. Grand jurors are allowed to consider unconstitutionally obtained evidence and hear testimony from a witness who previously committed perjury, he noted.
The remedy to that is not re-indicting the case — it’s sorting it all out at trial before a fair and impartial jury, Nahmias said.
During Special Assistant Cobb District Attorney John Floyd’s argument, however, Nahmias expressed concern over the appearance of what happened. “It looks awful, though, doesn’t it?” Nahmias asked.
Justice Carol Hunstein also weighed in. “Why would the District Attorney’s Office take this chance” when the indictment could be dismissed because an unfair and partial grand jury? she asked.
Floyd said the District Attorney’s Office the legal precedents set by Georgia courts over the past century supported the grand jury proceeding ahead and handing up the indictment. “The case law is overwhelming,” he said.
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