DA’s, ex-top aide’s testimony begs question: Who’s telling the truth?

Side by side, they worked together to prosecute two of the most high-profile cases in DeKalb County history.

Robert James, the ambitious district attorney who seems to pursue one sensational case after another, and Don Geary, the former Marine fighter pilot and go-to guy for the toughest cases, made a formidable duo.

Just don’t expect it to ever happen again.

During a recent court hearing, the two men provided such diametrically divergent testimony about the corruption investigation involving suspended CEO Burrell Ellis, it bewildered lawyers and prosecutors across the region.

It’s not unusual — in fact, it’s almost commonplace — for witnesses to give conflicting testimony at a trial or a hearing. But this hearing proved remarkable because it required two of the metro area’s top prosecutors to testify from the witness stand. And it left many pondering the same question: Who was telling the truth?

“It’s an unprecedented situation,” Gwinnett County District Attorney Danny Porter said.

“I’ve never seen anything like it in my 30 years of practicing law,” Atlanta criminal defense attorney Bill Morrison said. “I just can’t understand how they’d gotten this sideways with each other.”

This didn’t seem possible when James, 41, and Geary, 57, shared the same prosecution table in two noteworthy cases.

In early 2012, they obtained a murder conviction against Hemy Neuman in a shooting at a Dunwoody day care — which James called “one of the biggest trials of my career.” Later that year, they convinced a jury that William Woodard was guilty of killing two DeKalb police officers — during what James called “the biggest death-penalty case probably the county has ever seen.” Woodard was sentenced to life without parole.

But there were problems brewing beneath the surface, the two men’s testimony disclosed. By the end of 2012, Geary resigned as James’ chief assistant to take a similar position in the Cobb County District Attorney’s Office.

The pretrial hearing in the Ellis case, held Jan. 23, laid bare deep feelings of mistrust and suspicion that Geary and James held against each other. James testified he believed Geary had been improperly leaking information to the news media. Geary testified he told James he thought their office may have broken the law during key facets of the Ellis investigation.

At the end of the hearing, Ellis’ lawyer, Dwight Thomas, dropped a bombshell request. He asked Superior Court Judge Courtney Johnson to have the GBI conduct a forensic examination of James’ office computer to get to the bottom of the discrepancies. Johnson did not issue an immediate ruling and has scheduled more hearings next month.

Ellis stands indicted on allegations of shaking down vendors for campaign cash, lying under oath to a special purpose grand jury, theft, bribery and coercion. He strongly denies all charges.

At the Jan. 23 hearing, Geary provided a stunning explanation as to why he bolted DeKalb for Cobb. “Because I didn’t want to get arrested,” he testified, referring to what he thought had been an illegal investigation.

But DeKalb’s chief deputy assistant district attorney, Anna Green Cross, didn’t buy it.

“You didn’t want to get arrested, Mr. Geary?” Cross, her tone full of disdain, asked during an aggressive cross-examination. “… That was your testimony?”

“Yes, ma’am,” he said.

Hostilities soon erupted when Cross challenged Geary’s assertion that James had become so fixated on finding evidence against Ellis, the office was not pursuing $300 million worth of contract fraud in DeKalb’s Department of Watershed Management.

“You prosecute crimes — that’s what you do,” Cross said to Geary. “… If you had evidence that someone was shaking down hardworking people for campaign contributions, you would do something with that information, wouldn’t you?”

“If the information was admissible, possibly,” Geary said.

“You know that lying under oath is a crime, correct?” Cross asked.

“And it is prevalent in this case, yes ma’am,” Geary responded pointedly.

“Oh, yes it is,” Cross shot back.

The hearing involved a pending motion that seeks to get Ellis’ indictment dismissed or get the DeKalb DA’s Office disqualified from prosecuting the case. A sticking point is a video of Ellis taken surreptitiously by Kelvin Walton, the county’s purchasing director who was working undercover as a cooperating witness for the prosecution.

James’ and Geary’s testimony about the video was completely contradictory.

According to Geary, James called him into his office in the summer of 2012 for an update on the corruption probe. James sat down at his desk and played the video on his computer, allowing Geary to watch it over his shoulder, Geary testified.

Geary said he could see and hear Ellis talking on the phone in his office “about contracts and campaign contributions.”

After watching the 40- to 50-second clip, Geary said, he asked James whether there were additional videos. “More than a few,” James replied, Geary testified.

When James acknowledged the video was obtained without a search warrant or court order, Geary became alarmed, he testified. Geary said he pulled a Georgia code book off a shelf and opened it to the wiretap statute and showed it to James. Because the video was taken in a private place and the conversation was recorded without either party’s permission, Geary said the office may have captured the recordings illegally.

“It could be the commission of two separate felonies,” Geary said he told James.

Later that day, Geary testified, he went to see his close friend John Melvin, the prosecutor who headed DeKalb’s public integrity unit, to express those same concerns.

Melvin, who followed Geary to the Cobb DA’s Office, was also called to testify at the January hearing. Geary did indeed show up at his office, reported he’d just seen a video and expressed concerned that “Robert had committed a felony,” Melvin testified.

During his two hours of testimony, James repeatedly denied playing the video for Geary.

“That just didn’t happen,” James said. “And maybe if Don said that, maybe he is confused. I don’t know. But it didn’t happen.”

There is only one video, not more than a few, James added. This was verified by two lead investigators who later testified during the hearing.

The sole video shows Ellis directing Walton to put certain people on a selection committee that would recommend contracts for the county’s capital improvement program, James testified.

Ellis had previously testified before the special grand jury that he had never done such a thing before, James said. “So that was kind of the point where I realized that maybe Mr. Ellis isn’t being honest with us.”

James strongly disputed any notion that Geary told him the DA’s Office may have been conducting an illegal investigation.

“Absolutely not,” James testified. “If Don had told me that I would have said, ‘Oh, my God … let’s have a meeting,’ because, you know, people have me doing things I should not be doing or that are against the law. … I would absolutely remember it. And I would have stopped the presses and we would have had a conversation.”

James also testified that he has a different interpretation than Geary of Georgia’s wiretap statute and believes it allowed the lone video to be obtained the way it was.

James said he remembered talking to Geary about an audiotape — not the video — in which James said Ellis can be heard shaking down a county vendor. “I may have let Don hear that tape, or I may have told Don about that tape,” James testified. “As a matter of fact, I don’t remember playing anything for Don.”

James and Geary also provided conflicting testimony about the special purpose grand jury, which was investigating corruption in DeKalb.

Geary testified he told James in early 2012 that he was worried the special grand jury, which was assembled to conduct a civil investigation, was being used inappropriately to gather evidence for the criminal investigation. This challenge has also been raised by Ellis’ legal team.

“I expressed my concerns,” Geary testified. “And after that, I don’t know, because Robert James took me off the investigation.”

That never happened, James testified. “He never told me that.”

Atlanta lawyer Steve Sadow, who has closely followed the Ellis prosecution, said he was left with an inescapable conclusion after reviewing a transcript of the Jan. 23 hearing.

“They have irreconcilable, inconsistent positions,” Sadow said. “I don’t think this is an absence of recollection on either one’s part. So unless both of them traveled to Colorado and were testing a product that’s now legal there, somebody ain’t telling the truth.”

Atlanta attorney Jill Polster, who once worked as a prosecutor with both James and Geary, said some in the DeKalb DA’s Office were surprised when Geary stayed on after James’ election in 2010.

After all, it’s not uncommon for longtime prosecutors to leave under new leadership or for a new DA to intentionally shake up the office. And James and Geary appeared to have differing priorities, Polster said.

Geary is an old-school prosecutor who measures justice in convictions, she said. James has made a name for himself promoting diversion programs aimed at keeping young adults who face nonviolent charges out of jail.

“They are both all about doing the right thing and, in my experience, their ethics are above reproach,” Polster said. “It’s hard to believe either of them are lying. But a reasonable conclusion is, one of them is. And that is what’s so unsettling.”

During his testimony, James revealed there was tension between him and Geary from the outset of his taking office, and that tension grew the longer they worked together.

James testified he had suspected that both Geary and Melvin were leaking information to the news media — allegations both men vehemently denied when questioned about it. Still, James said, he curtailed Geary’s authority because he began to question his then-chief aide’s integrity and veracity.

By the end of Geary’s tenure, James testified, “Don and I didn’t have much of a relationship at all.”

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