Judge declines DeKalb grand jurors’ request to be dismissed

A Fulton County judge on Tuesday ruled against special purpose grand jurors in DeKalb County who had sued their presiding judge in an attempt to secure their release from duty.

Fulton Superior Court Judge Robert McBurney said he could not rule in the grand jurors’ favor because the DeKalb District Attorney’s Office has filed a separate appeal in the same case to the Georgia Supreme Court.

The special grand jury, which took months investigating the awarding and management of contracts by DeKalb’s Department of Watershed Management, had taken the extraordinary step of suing DeKalb Superior Court Judge Mark Anthony Scott when he declined to release them from duty.

Their 81-page report, completed in January, remains under seal because Scott ruled that lawyers for now-suspended CEO Burrell Ellis and consultant Kevin Ross could review the report prior to it becoming public. Lawyers for Ellis and Ross said they should be allowed to seek the expungement of any passages in the report that may be unfairly prejudicial.

The DeKalb DA’s office is appealing Scott’s decision to the Georgia Supreme Court, which has yet to decide if it will hear the issue. While this is going on, the grand jurors do not have to report regularly to the courthouse, but they do not know if their obligation is over yet.

In the meantime, Ellis has been indicted on charges of theft, extortion and conspiracy. He has pleaded not guilty and strongly disputes the charges. Ross has not been charged with misconduct.

In his two-page order, McBurney indicated that he would have ordered the grand jurors’ release if the DA’s appeal was no longer pending.

Under a plain reading of the law, the grand jurors “are long overdue such basic relief and courtesy,” McBurney wrote. But they “are already pursuing this same end — release from service — by way of appeal.”

Separately, McBurney declined to grant Scott’s request that the special grand jurors’ lawsuit against him be dismissed.

A spokesman for the DeKalb DA’s office, which is representing the grand jurors, declined to comment on McBurney’s ruling.

Attorney Gary Freed, who represents Scott, said, “We believe that the petition should be dismissed, but appreciate Judge McBurney’s perspective on the matter.”

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