A behind-the-scenes legal battle has erupted between DeKalb County prosecutors and lawyers for DeKalb CEO Burrell Ellis and Ellis’ former campaign manager, who are seeking access to a sealed report by a special grand jury.
The special grand jury's final report and presentment of its yearlong investigation into possible corruption in county water and sewer department contracts is complete, court records show.
But lawyers for Ellis and attorney Kevin Ross contend they should be able to read the report before it becomes public to determine if the special grand jury exceeded its authority, according to court filings. DeKalb Superior Court Judge Mark Anthony Scott, who is overseeing the grand jury probe, signed an order Thursday giving the lawyers 10 days to review the grand jury report, while at the same time keeping it sealed from public view.
In January, investigators searched the homes and offices of Ellis and Ross. According to search warrants, authorities said they were looking for evidence of fraud, bribery and other political corruption. Both Ellis and Ross have denied any wrongdoing.
Last week’s legal skirmish is disclosed in court records obtained by Channel 2 Action News. These filings include motions by the district attorney’s office to block Scott from granting defense attorneys access to the grand jury report and responses filed by lawyers for Ellis and Ross before the Georgia Court of Appeals.
On Friday, the appeals court denied the DA’s office’s motions. The court also denied a motion filed by Ellis to keep the appeals court filings under seal.
It is unclear if Ellis, Ross and their lawyers have read the final report and presentment. Attorneys Craig Gillen, who represents Ellis, and Seth Kirschenbaum, who represents Ross, declined to comment. District Attorney Robert James also declined to comment, his spokesman said. Scott’s staff attorney said the judge does not comment on cases before him.
Last Wednesday, lawyers for Ellis and Ross asked Scott to convene an evidentiary hearing to determine whether the DA’s office had abused the grand jury process. Even though prosecutors have said they scrupulously separated the criminal investigation from the special grand jury’s probe, “that representation cannot possibly be true,” the defense lawyers wrote in a letter to the judge.
In an order signed the next day, Scott noted the special grand jury was empaneled Jan. 11, 2012, to investigate the awarding and management of contracts by DeKalb’s Department of Watershed Management from 2002 through 2010.
Scott said he had not known the DA’s office had initiated a concurrent criminal investigation involving Ellis and Ross that included searching for records pertaining to the county’s watershed management and capital improvement plan.
Scott expressed concern that prosecutors were abusing the grand jury process by getting Ellis, unaccompanied by a lawyer, to testify twice before the special grand jury about watershed contracts at the same time a separate criminal investigation was ongoing. The same goes for calling Ross to come testify before the special grand jury — although Ross’ lawyers successfully stopped that from happening, Scott said.
In his order, Scott gave Ellis, Ross and their lawyers 10 days to review the final report and presentment in the judge's chambers, with instructions not to photocopy the document or disclose any information they learned from it to anyone.
DeKalb prosecutors told the appeals court that Scott exceeded his own authority by granting such a request by Ellis and Ross to review the report.
Once the special grand jury completed its report, it was Scott's job to recommend to the county's chief judge that the special grand jury be dissolved, the DA's office said. It would then be the duty of the county's Superior Court judges to vote to dissolve the grand jury and release its report to the public.
If this had happened, “the report Ellis and Ross so badly wanted would have become a public record to which they would be entitled a copy,” the DA’s office told the appeals court.
The motion by the DA’s office, filed Thursday with the Court of Appeals, indicated Scott had already granted Ellis’ and Ross’ lawyers access to the special grand jury report.
In a response filed the same day, Kirschenbaum, Ross’ lawyer, wrote that he had been provided the special grand jury report that morning. But after learning the DA’s office had gone to court to prevent the report’s release, Kirschenbaum said he “returned the report to Judge Scott’s law clerk unread.”
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