A lawyer for a man facing death-penalty prosecution on Wednesday sought to remove a Cobb County judge from the case because of the judge's close ties with District Attorney Pat Head.
The motion asked that Superior Court Judge Reuben Green not oversee the trial for Patrick Graham, who is charged with killing Matthew Cherry, the manager of a Marietta video game store.
Green, who became a judge last October, was a member of the DA's office when Graham was charged and was the office's second highest paid prosecutor, earning $120,000 per year, Graham's lawyer, Jimmy Berry, said. Also, Head served as Green's campaign treasurer during his now-defunct campaign for a seat on the Cobb State Court bench.
"The close ties between Mr. Head and Mr. Green are obvious," Berry said during a court hearing. "It's unusual for a district attorney to become involved in a campaign to that extent."
Berry said he did not have any proof to show that Green would be impartial. "But that's not the standard," he said. "The standard is the appearance of impropriety."
Jesse Evans, deputy chief assistant DA, said Georgia Supreme Court precedents allow for Green to stay on the case. Evans also accused the defense of not filing its recusal motion in a timely fashion and for failing to present enough evidence to support it.
"There's simply no basis for the mandatory recusal of Judge Green," Evans said.
Green has denied similar motions in other cases, saying he did not believe his impartiality could be questioned. But he asked another judge to hear the challenge in the death-penalty case involving Graham. Wednesday's motion was heard by Superior Court Judge Lark Ingram, who did not issue an immediate ruling.
If Graham is convicted at trial and sentenced to death, and an appellate court later rules Green should have recused himself, Graham's conviction would be thrown out and he would have to be tried again.
Toward the end of the hearing, Evans presented Ingram with a proposed six-page order for her to sign that would deny the motion to remove Green.
When asked after the hearing whether he thought it was appropriate for the DA's office to prepare such an order when his office's ties to Green are in question, Evans replied, "Absolutely." Such proposed orders are routine, he said.
Berry questioned why the DA's office is fighting to keep Green on the case. "It's simply whether someone might look at what goes and wonder about the impropriety and impartiality," he said. "It's the look of it. Certainly we think there's enough here."
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