What's next: Hearings resume at 9 a.m. Tuesday. Johnson will hear arguments about suppressing evidence seized in the search of Ellis' home and office, as well as recordings from a wiretap and telephone texts. Audio recordings of Ellis are expected to be played during the session.
A hearing on pre-trial motions in the case against suspended DeKalb County CEO Burrell Ellis broke down Monday into more accusations of lying and misconduct.
Ellis’ legal team continued its bid to get the corruption case thrown out entirely, or to get the District Attorney’s Office disqualified prosecuting the case. But DeKalb prosecutors fought back hard during Monday’s hearing, accusing Ellis’ legal team of misleading the court and using false testimony to try and bolster its case.
Superior Court Judge Courtney Johnson said she could issue rulings on the matter as early as today.
The most angry exchanges revolved around statements made by former chief assistant DeKalb district attorney Don Geary, a witness in a January hearing. Geary said he was concerned his former office conducted an illegal investigation of Ellis.
“We don’t know why Mr. Geary is doing what he’s doing,” prosecutor Lee Grant said during the hearing. She accused Geary of giving false statements and violating legal ethics rules by disclosing what should be privileged conversations about the office’s tactics and thoughts about an ongoing corruption investigation.
Ellis’ lead attorney, Craig Gillen, said the privilege exception can be broken when a crime is involved.
But he was cut off by Grant, who jumped to her feet and objected. “He told nothing but lies about this office,” she said, referring to Geary.
Gillen countered that Geary came forward because of his “conscience and honor.” The former chief aide was concerned about a possible cover-up of wrongdoing, Gillen said.
“It is bizarre in the extreme for a prosecutor’s office to say if, someone has evidence of conversations about crimes being committed, it’s covered by privilege,” Gillen said. “You don’t hear that from the district attorney’s office. You hear that from organized crime.”
In January hearings, Geary testified that James called him into his office in mid-2012 and showed him a snippet of a video of Ellis that was taken surreptitiously during the corruption investigation. It was taken with a hidden camera inside a pin worn by county purchasing director Kelvin Walton, who was working undercover for the prosecution.
Geary, now Cobb’s chief assistant district attorney, testified that he told James he was concerned the video was illegal because it was obtained without a warrant or court order. DeKalb prosecutors have argued that the video was legally recorded because it was taken inside Ellis’ county office, where he should have had no expectation of privacy.
Geary said that, when he asked James how many of these videos the office had, James told him “more than a few.” But James testified that he never said that to Geary, and DeKalb prosecutors have presented witnesses who testified there was only one secret video of Ellis because the pin camera broke and could not be repaired.
On Monday, Ellis’ legal team revealed that Geary recently signed a sworn statement in which he disclosed that he has now watched the video DeKalb prosecutors turned over to the defense. This is not the same video James showed him in his office, Geary said. The video James showed him had Ellis wearing a golf shirt; the video that Ellis’ lawyers recently showed him had Ellis wearing a suit and tie, Geary said.
Because of this discrepancy, Ellis’ lawyers have asked Johnson to order the DA’s office to turn over James’ computer so the GBI can conduct a forensic examination to determine if more than one video exists.
“If there are no images, then there is no discovery issue,” defense attorney Dwight Thomas said. “If there are, then we have some serious ramifications in this courtroom.”
There could be a simple explanation for the possible discrepancy, assistant district attorney Cynthia Hill said. Ellis was videotaped when he testified before a special grand and, on that occasion, he was wearing a suit and tie, she said.
“There is only one video, and it was turned over six months ago,” Hill said. “Just repeating that claim (of more videos) over and over and over again doesn’t make it true.”
J. Tom Morgan, a former DeKalb DA who is serving on Ellis’ defense team, argued that James invented crimes. Morgan conceded that Ellis ordered the purchasing director and other department staffers to compile lists of firms that had county contracts. But Morgan said the county should have had such a list prepared anyway and ordering its creation isn’t a crime — it easily falls into his job title as the county’s top elected official.
Morgan also agreed that Ellis then used those lists to solicit campaign contributions
“So what?” Morgan asked. “If such a list is generated, and we don’t dispute that it was, that document is a public document. We don’t have a crime.”
Assistant DA Chris Timmons countered that the allegations go beyond creating public documents.
An investigator in the DA’s office testified Ellis had “multiple” lists created – more than five – by employees who should have been doing public, not personal work.
“You’ve got the CEO of the county using county resources, people and their time, to put together lists for his personal use,” Timmons said. “That is a crime.”
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