“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.