The DeKalb County District Attorney's Office said Friday that it had no choice but to dismiss charges -- at least for now -- against a shooting suspect rather than disclose the names of its key witnesses and potentially expose them to retaliation.
The decision came after a standoff during a hearing for Undrea Burley, 29, who is accused of shooting a man during a dispute outside Club Nite Lite in Decatur on July 24. A bullet grazed the head of the victim, police said.
At Thursday's court hearing, when a DeKalb detective testified there were two eyewitnesses, Burley's public defender asked for their names. A DeKalb prosecutor objected, but Magistrate Phyllis Williams ordered the names disclosed. Instead of allowing the detective to divulge the names, the DA's office abruptly dismissed the charges, ending the hearing.
In a statement, the office said it will seek a criminal indictment against Burley in the shooting when the grand jury meets Tuesday. "At all times, we are concerned about the safety and well-being of our victims and witnesses," the office said. The dismissal "was our only means of protecting key eyewitnesses at this time."
Over the past year, a number of key witnesses have been attacked before trial. In February, a critical witness in the Fulton County prosecution of 30 Deep gang member Jonathan Redding was shot, requiring his leg to be amputated. A witness in another Fulton prosecution survived being shot four times, but when asked to testify, he refused. Prosecutors then arrested and jailed the man, who then changed his mind and testified, helping secure the conviction.
Burley remains in custody because he was on probation for a prior felony at the time authorities allege he fired shots outside Club Nite Lite in July. DeKalb prosecutors have moved to revoke that probation. In June, the DeKalb grand jury also indicted Burley and two other men in a robbery and other shootings in December 2009.
If Burley had not been on probation, he would have been booked out of jail, Gwinnett District Attorney Danny Porter said.
"Luckily, they had options to keep him in custody," Porter said.
The DeKalb DA's office chose to dismiss the arrest warrant against Burley during a "probable cause" hearing in which Williams had to determine whether there was sufficient evidence to keep Burley in custody until prosecutors presented their case to the grand jury for indictment.
Williams, who did not return calls or emails seeking comment, directed prosecutors to disclose the names of the witnesses after she researched the law and heard arguments from both sides, Burley's public defender, Shayla Galloway, said Friday.
Galloway said she wanted the detective to disclose the names to see whether the witnesses' statements were credible. "Were they associated with or friends of the victim?" she asked. "Were they just bystanders?"
Galloway noted she did not ask for the witnesses' addresses or telephone numbers. "I was certainly not going to be reckless with the information," she said.
DeKalb's magistrate judges have feuded with the district attorney's office over what type of evidence can be introduced in probable cause hearings. In particular, the judges have resisted allowing hearsay testimony -- such as allowing a police officer to testify about what witnesses told an officer they saw or heard, rather than requiring the witnesses themselves to testify. The dispute led the DA's office to file suit against the court's judges, and in July, the Georgia Court of Appeals ruled hearsay testimony is admissible.
Atlanta lawyer Don Samuel, who has written a number of books on criminal case law, said Williams may have wanted to hear more information about the witnesses in Burley's case to ensure the evidence was reliable enough to keep him in jail until he is indicted. "The veracity of that information is very important," Samuel said.
Porter, the Gwinnett district attorney, said it was in Williams' discretion to require the detective to divulge the names. "If I were the prosecutor, I'd have resisted it," he said. "And there could be very good reasons for that."
Staff writer Christian Boone contributed to this article.
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