A convicted killer could go free 27 years after admitting to murder, due to a new Georgia Supreme Court ruling.
Fulton County district attorney Paul Howard Jr. said he plans to challenge the decision or to at least to assure that Curtis Tyner remains in a state prison for killing Martha Anne Mickel in April 1984.
“There is no debate with respect to who suffers most from this decision – the family members of Martha Anne Mickel who thought that this matter was concluded 27 years ago with a guilty plea,” Howard said.
Mickel’s brother, Joe Mickel, also an attorney, struggled Monday to pay respect to the prosecution and the judge who first heard Tyner’s plea years ago, as well as to the state Supreme Court. Still, Mickel’s response was curt: “It’s appalling.”
The opinion, written by Justice David Nahmias, determined that no one fully informed Tyner, then 36, of all the rights he waived when he originally made his guilty plea.
"The record does not show that Tyner was advised of his right against self-incrimination," Nahmias wrote in the opinion filed Monday morning. "His guilty plea was invalid and we must reverse his conviction."
But Harvey Moskowitz, the Fulton County assistant DA who prosecuted the case at the time, argued that he, Judge Isaac Jenrette and public defender Carl Greenberg did everything according to the letter of the law.
“Greenberg, myself and the judge advised him of his rights as we knew them at the time,” Moskowitz told The Atlanta Journal-Constitution. “I don’t see why this was overturned.”
Martha Mickel, then a 30-year-old executive for IBM,, the Smyrna woman failed didn’t show for a wedding on the weekend of April 15, 1984. And the Smyrna woman wasn’t at church the next day.
Her body was found later that Sunday, floating in Bear Creek in south Fulton County.
Fulton County police followed a lead that she had hired Tyner to paint her townhouse. After he was arrested and charged with Mickel’s death, he confessed to investigators that he had bound Mickel with duct tape and put her in her car.
A medical examiner pointed to ligature markings indicating that she had been tied around the neck to her automobile’s headrest. She has been sexually assaulted. Tyner told police that when she slumped over, he thought she had died. He said he threw her in the river, not knowing she was still breathing.
The medical examiner ruled Mickel’s cause of death as drowning.
“I found it to be unconscionable that he would do that,” said Moskowitz, now retired and serving on the board of the Atlanta Law School Foundation.
But Charles Frier, who appealed the case on Tyner’s behalf, said he was pleased with the outcome.
“I’m delighted that he finally got it overturned and the obvious error was seen,” Frier said.
The state Supreme Court indicated that prosecutors failed to tell Tyner all he needed to know before agreeing to a guilty plea based upon precedence set by the 1969 ruling of Boykin v. Alabama.
The so-called "Boykin" rights require a three-pronged notification to suspects admitting guilt to a crime. The court must advise the suspect that he or she is waiving the right to a jury trial, the right to confront his accusers and the right to choose not to testify in a trial.
Frier argued that Tyner's guilty plea didn't pass "constitutional scrutiny" because he wasn't advised that he didn’t have to take the stand.
In the transcript of the hearing, neither the judge, the prosecutor nor the public defender explicitly explained to Tyner his right not to self-incriminate, which Frier’s filing highlights.
"Now, Mr. Tyner. You have a right to a trial by jury,” Moskowitz told Tyner, according to the transcript from the Sept. 25, 1984 plea hearing. “You understand that right?
“Do you understand at trial by jury, if you're convicted, you have a right to appeal this case to the appellate courts of this state? Do you understand at trial by jury, you or your attorney have a right to cross-examine the witnesses called by the State or call witnesses in your own defense?"
“Yes, sir,” Tyner affirmed after each of these questions.
But Tyner agreed to one question from Moskowitz suggesting Tyner had the right to testify: "Do you understand you also have a right to a jury trial, cross-examination, take the stand and call your own witnesses?"
Frier said the administrative process to release Tyner, now 63, from the Wilcox State Prison in downstate Abbeville could take weeks. Even then, Tyner might only land back in Fulton County jail, since he never posted bail. And he may find the same indictment waiting for him that his defense waived at the reading in 1984.
The next move belongs to Howard. Frier will ask whether the district attorney wants to negotiate a new plea deal, or go to trial.
Howard, however, plans to send the case back to the state Supreme Court.
"We feel very strongly that this case must be reconsidered," he said.
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