Attorneys for the homeless man accused of setting the fire that brought down Interstate 85 want the arson charges against him dismissed, arguing that his arrest was based on the word of two other homeless people who could have been been the ones actually responsible.
The motion to dismiss, filed in Fulton Superior Court on Friday, accuses the district attorney of "selective prosecution" influenced by race. It contends prosecutors brought felony charges against Basil Eleby, a black man, while not considering whether two non-black people — who lived under the highway and were there when the fire started — were involved.
PHOTOS: Atlanta I-85 Bridge Collapse Progress
"There is no independent evidence to corroborate the statements of Sophia Brauer and Barry Thomas," the motion said. "They both had an obvious interest to redirect the fire investigation away from them towards the defendant."
Eleby was arrested the day after an elevated chunk of I-85 near Piedmont Road collapsed. The 39-year-old is accused of setting fire to a piece of furniture sitting on top of a grocery cart. It went on to ignite construction material stored under the interstate.
Eleby, who has pleaded not guilty to arson and criminal damage to property, is free on bond and is residing at a treatment program. The stretch of interstate that has been closed since the March 30 fire is expected to reopen to traffic this weekend, more than a month ahead of schedule.
Eleby's lawyers and advocates for the homeless have repeatedly said the state is responsible because what actually caused the bridge to the collapse was plastic construction equipment the Georgia Department of Transportation had stored under the interstate — and forgotten — for years.
"There was no sufficient reason for the district attorney's decision to prosecute him other than to relieve the state of the scrutiny of the federal government for the state's reckless and wanton disregard for public safety with the unsecured storage of combustible materials," the motion said.
Brauer and Thomas were initially described as suspects but quickly they became witnesses. The only charges they faced were misdemeanor criminal trespass.
The treatment of Brauer and Thomas has raised some eyebrows. They are key witnesses against the man who is accused of throwing metro Atlanta into a six-week traffic nightmare and have no fixed address. Yet, they have been released and are facing a circuitous path through the criminal justice system.
Those circumstances are unusual but not unheard of, according to a former DeKalb County prosecutor who is now a defense attorney, John Petry.
Brauer and Thomas were given tickets accusing them of criminal trespass, and that document required them to report to Atlanta Municipal Court on April 24. But the charge the officer brought is one that must be handled by Fulton County State Court, officials said.
Still, the ticket did not go to the solicitor general, the prosecutor in State Court. Instead, an Atlanta police officer delivered the tickets to District Attorney Paul Howard’s office, which prosecutes felonies.
“It looks a little convoluted, that path,” Petry said. “But it’s really not in a case like this, which is certainly going to be given an incredible amount of scrutiny.”
Al Dixon, who prosecuted in Fulton County for 27 years and was over the major felony unit when he left in 2005, said even though Thomas and Brauer are homeless, that doesn’t mean finding them for court is hopeless.
“If they stayed in the area, you could usually track them through the shelters and the food banks or go to the area where they would be,” Dixon said. “It can be done but it was difficult because of the lack of address.
A spokesman Howard said Friday there had been no change in the status of the cases against Brauer and Thomas because they were “still under investigation.”
But Eleby’s lawyers questioned why Howard is not prosecuting Brauer and Thomas for “the same misconduct” that they have accused Eleby of, and said “the decision to prosecute him was based upon impermissible grounds such as race.”
They note that while Brauer is of Asian descent, she “appears white.” Brauer is white.
“The district attorney has conducted little or no investigation with regards to Barry Thomas’ or Sophia Brauer’s involvement, nor has there been any attempt to prosecute either of them,” the motion said. “Defendant alleges that the decision to prosecute him and not Mr. Thomas or Ms. Brauer was based on the impermissible ground of race.”
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