Did Burrell Ellis’ legal team help itself?
Ellis’ lawyers worked hard to make their argument that the charges against him are politically motivated. Former chief assistant District Attorney Don Geary took the stand in the unusual position of testifying for the defense and accusing District Attorney Robert James of being out for Ellis from day one. The DA never wavered from comments that he pursued the case based only on the evidence. However, by testifying, James opened himself up to having his comments used at trial, something Ellis’ attorneys requested in a motion filed early Friday.
Did the District Attorney’s Office help itself?
Taking a rare seat in the witness stand provided DA Robert James a chance to use some strong language against Burrell Ellis, repeatedly saying the suspended CEO “shook down” vendors, was “dishonest” and broke the law. James and the assistant DAs also took every opportunity to describe the evidence they contend proves their case, including “1,400 hours” of wiretaps and false statements made by Ellis before the special-purpose grand jury. That allowed James, from the stand, to deflect accusations that purchasing director Kelvin Walton only cooperated with prosecutors because of failed polygraph tests and could not be trusted. “The charges are not based on Kelvin Walton’s words,” James said. “They are based on your client’s words.”
What key issues must Superior Court Judge Courtney Johnson settle?
Ellis’ lawyers contend the case should be dismissed for selective prosecution because James singled Ellis out for charges. They also contend the indictment should be dismissed or the District Attorney’s Office disqualified based on allegations the investigation was illegal and a political vendetta. They also contend Ellis was a “peace officer” and his indictment must be dismissed because he was not allowed to appear before the grand jury as peace officers are permitted to do under Georgia law.
Suspended DeKalb County CEO Burrell Ellis’ defense team asked a judge Friday to have the GBI examine District Attorney Robert James’ computer to determine whether James’ office conducted an illegal investigation and then tried to cover it up.
The bombshell request was dropped by defense attorney Dwight Thomas toward the end of two days of a contentious pretrial hearing. Superior Court Judge Courtney Johnson did not rule on the request and continued the hearing, which is likely to reconvene in March.
“We don’t know if it’s a cover-up or not,” defense attorney Dwight Thomas told Johnson.
Thomas asked that James’ computer be turned over to the GBI, which he called a “neutral party,” so it could conduct a forensic inspection. If there was an attempt to delete a video from the computer, Thomas said, evidence of the video would still be there.
Thomas cited testimony Thursday by Don Geary, the former chief assistant DeKalb district attorney, who said he raised concerns with James about the legality of a secretly captured video recording of Ellis. Geary said he watched the video with James on James’ office computer.
The video, Geary said, showed Ellis sitting at his county office desk and talking on the phone about contracts and campaign contributions. Geary said he became alarmed when James told him there were “more than a few” videos and that they had been recorded without a warrant or a court order.
But James testified Thursday this never occurred. He steadfastly denied ever playing a video of Ellis to Geary and said Geary never expressed concerns about the legality of a video. James also portrayed Geary, now the chief assistant district attorney in Cobb County, as a disgruntled former employee.
Ellis’ legal team has contended that if the investigation was illegal the indictment against Ellis should be dismissed or the District Attorney’s Office should be disqualified from the case. Ellis faces a 14-count public-corruption indictment and is accused of shaking down county vendors for campaign contributions, lying under oath before a special-purpose grand jury, bribery, theft and coercion.
In response to Geary’s contention, DeKalb prosecutors called a number of witnesses closely involved in the corruption investigation, and all of them testified to the existence of only one secretly captured video recording.
Clay Nix, the District Attorney’s Office’s lead investigator in the Ellis probe, was the final prosecution witness to give such testimony Friday.
Nix testified that the video was made by Kelvin Walton, the county’s purchasing director, who was cooperating with prosecutors. Walton secretly took the video on a recording device hidden inside a pen, Nix said, not from a “super spy” wristwatch as Ellis’ lawyers have contended.
There was only a single video recording because the pen produced poor-quality video and the device later broke, Nix testified.
Nix did acknowledge, however, that he had two conversations about the video surveillance with Geary and Geary questioned whether it was conducted legally. Nix, who now works for the Department of Corrections, said he talked to other law enforcement officials about it and said he also challenged Geary on the issue.
“He never directed me to stop,” Nix testified, referring to his conversations with Geary.
Nix said he had doubts about Geary after their second conversation, when Geary raised the idea that more than one videotape of Ellis existed.
“I believe he may believe some of the things he told me,” Nix told Ellis’ lead attorney, Craig Gillen, under cross-examination.
But when Gillen pressed Nix as to whether he believed Geary could lie under oath, Nix was less generous. Before their second conversation about the video surveillance, Nix said he would have believed Geary. “I don’t know now,” Nix said.
Also Friday, Thomas argued that the corruption case against Ellis should be dismissed because he functioned as a “peace officer” who should have been given notice of the planned indictment and allowed to appear before the grand jury about it.
The novel challenge contends Ellis qualified for same protections as those given to police officers and sheriff's deputies.
Under Georgia law, “peace officers” receive special exceptions when they are accused of committing a crime during the course of their duties. They must be served with proposed charges 15 days before they are presented to a grand jury. They also are allowed to appear before the grand jury, with their attorney, and give statements without facing cross-examination.
Thomas noted that one Georgia code section defines a peace officer as a public official vested by law to maintain public order. Ellis qualified because he oversees public safety by appointing the police chief and supervises the department’s daily operations, Thomas said.
DeKalb prosecutor Christopher Timmons called such arguments “ridiculous.”
The county’s CEO is not required to be a certified police officer. The CEO also does not have the power to arrest a criminal suspect, execute search warrants, investigate serious crimes or issue traffic citations, Timmons said.
“It is not worthy of consideration,” Timmons argued to Johnson, who did not issue an immediate ruling. “Common sense says it’s a police officer or sheriff’s deputy.”
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