Defense lawyers Ashleigh Merchant (left) and Kim Frye after a hearing in which prosecutors wanted them to stop talking on Facebook about a certain murder case. Photo by Bill Torpy
Photo: The Atlanta Journal-Constitution
Photo: The Atlanta Journal-Constitution

Torpy at Large: Murder trials and Facebook don’t mix in Cobb County

These days, the public is souring on Facebook because of the company’s oily manner when it comes to processing our information.

Now, Cobb County prosecutors are jumping on the anti-Facebook wave to blame the online giant — and a couple of defense lawyers — for short-circuiting an old double-murder case that recently came up for trial.

Bill Torpy
Photo: AJC

What probably got the district attorney’s office riled was a photo posted on Facebook a couple weeks ago that showed defense lawyers posing thumbs up after a judge declared a mistrial in the case. It was a mistrial that came about partially because of Facebook.

Now prosecutors have asked a judge to order the defense lawyers to turn off Facebook and zip their lips when it comes to this case, one that will seemingly come to trial one day.

Facebook doesn’t really seem to be the cause of this nasty legal brawl. The bad blood goes deeper than that. In every judicial circuit there are always a couple defense lawyers who prosecutors hate because they litigate with sharp elbows or don’t seem like they want to play well with others.

And in Cobb County, those two are Kim Frye and Ashleigh Merchant. 

Fierce, blond and in your face, the two defense lawyers have bumped heads with judges and prosecutors in recent years and have acquired a certain enmity that they wear as a badge of honor.

“They’re saying the mistrial is our fault,” said Merchant. “It’s because Kim and I are fighters and it’s payback.”

The two say the Cobb DA’s office has a history of making life hard for mouthy defense attorneys.

And, they claim, in this case it’s because they have X chromosomes.

“It is not lost on counsel.” Frye said in her motion to the court, “that all of these attacks have occurred against accomplished female criminal defense lawyers with a reputation for aggressive defense of their clients.”

The defense lawyers say prosecutors want to curb their First Amendment rights and “stifle our advocacy.”

Lawyers Kim Frye, (from left) Bert Cohen and Ashleigh Merchant are happy after a mistrial was declared in a murder trial. Prosecutors weren’t happy with the online posting.
Photo: The Atlanta Journal-Constitution

The latest skirmish took place this week during the ever-ongoing (eight years and counting) proceedings in a double-murder case from 2009. Back then, two men were murdered after a couple women lured them from a bar to an empty apartment, where they would robbed.

Two women and three men were arrested. One defendant pleaded guilty and was sentenced, one turned state’s evidence and three were convicted in 2012 and sentenced to life. All remain in prison.

But there was a problem: The judge in that case, Reuben Green, was a prosecutor in Cobb in 2009 and the DA at the time, Pat Head, served as Green’s campaign treasurer when he ran for judge. The defense asked Green to recuse himself. He did not. In 2015, the state Supreme Court ruled that Green should have stepped down from the murder case to prevent the appearance of things being too cozy in Cobb.

So, the fact that this case is hanging around — and around — has Cobb prosecutors a bit on edge.

In his filing to get the defense lawyers to pipe down, Jesse Evans, a top assistant in the DA’s office who handles homicides, said that one of the prospective jurors (#44) was one of Frye’s Facebook friends. She has 2,087.

Later, another juror told court officials that Juror 44 told a roomful of prospective jurors that the case was 9 years old, was a retrial and had problems with recusal. A mistrial was declared four days into the proceedings.

Cobb County Deputy Chief Assistant District Attorney Jesse Evans in court in 2011.
Photo: The Atlanta Journal-Constitution

Cobb prosecutors put into evidence a couple of Frye’s recent Facebook posts where she said she was picking a jury. Another post from three months ago noted that it was a retrial of an 8-year-old case. Prosecutors found a 2015 posting from Frye when the Supreme Court threw out the case.

One could, however, find much better information by just Googling the case. The state Supreme Court’s website spills it all out in gory detail. So do old online news reports.

In fact, Frye told me another juror Googled the case and read the state Supreme Court’s record. The lawyers told me that jurors Google info all the time — in violation of judges’ orders — but just don’t ‘fess up.

While killing time in jury selection, the defense attorneys looked at prospective jurors’ Facebook pages. One had posted a video entitled “How to get off jury duty.” Another had a Confederate flag prominently posted, something the attorneys would have kept in mind when striking jurors (the defendants were black.)

Prosecutor Evans, who didn’t want to talk after the hearing, told Judge Gregory Poole he hated to bring up these allegations against the defense attorneys, “But it simply had to be done.”

Frye and Merchant contend the DA’s office has put out press releases about ongoing cases for years and also give a championship wrestling belt to prosecutors who win big cases. (An obvious response to their “thumbs up” Facebook post to show that prosecutors celebrate, too.)

Poole, who said he has a Facebook page, called the matter “silly” and “one of the most distasteful things I’ve had to deal with.”

The judge then asked prosecutors, “Do you want to go down this road?”

In 2015, defense lawyer Kim Frye posted on Facebook some info about Supreme Court ruling her way in a murder case. Prosecutors tried to use this post to say she was influencing jurors a couple years later.
Photo: The Atlanta Journal-Constitution

It was clear by his tone that the judge didn’t.

Poole said he didn’t think the lawyers’ Facebook posts were a violation of legal rules and said the online site “is kind of a marketing tool for attorneys.”

The judge said the real cause of the mistrial was Juror 44, who went out of her way to dig up information about the case and then blab it to everyone else in the jury room.

Poole knows how Facebook can intrude on court proceedings. In 2016, a man in divorce proceedings named Brian McCorvey went to the media to complain that Poole and his wife were friends with the lawyer for McCorvey’s wife. McCorvey discovered that relationship while snooping on Facebook and said he got hammered in the rulings. He wanted a recusal and for the case to be heard again.

Judge Green (who didn’t recuse himself in the murder case) was brought in to make a ruling on the case. I called McCorvey. He said he’s still before Judge Poole. And still not liking it.

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