“What’s going on in Georgia is nuts, absolutely nuts,’’ said Tony McDonald, an Austin attorney who handles cases involving legislative issues. “It’s just a raw abuse. It’s the most flagrant abuse of legislative continuances that I’ve ever seen.”
Since 2006, Georgia has allowed state lawmakers with private law practices to delay court appearances any time they assert that they have legislative business. State law doesn’t require legislators to provide proof of their legislative duties, submit the continuances in writing or offer alternate dates, and judges are required to grant the requests.
But elsewhere, states that allow for the privilege commonly limit the automatic stays to periods around legislative sessions and legislative committee meetings. Some block lawyer-legislators from filing last-minute continuances, allow the judge to reject some requests, require legislators to file for the stays in writing or require proof of legislative responsibilities outside of session. Maryland acknowledges the potential harm of the delays, calling for lawyer-legislators to consider the impact of excessive continuances or postponements on the judicial system, the bar and the public.
In Texas, after a public outcry over attorney-lawmakers routinely abusing the privilege to delay cases, the legislature came up with what may be a unique approach to prevent abuse. There, legislators have to file documents publicly listing all the continuances they get.
Ralston’s letters requesting delays are tucked into criminal files in county courthouses across north Georgia. Reporters for the Atlanta Journal-Constitution and Channel 2 Action News spent weeks thumbing through thousands of pages of court records in their review of Ralston’s cases to locate the requests. It’s unlikely the investigation located all of them.
Facing calls for his resignation from within his own party,Ralston admits no wrongdoing in the way he applies the legislative exemption. But in an emotional speech Monday in front of his House colleagues, he said he would support a change in the law.
Ralston’s office did not respond to an AJC request for an interview, but he released a statement and penned a separate op-ed for the newspaper.
Texas enacted reforms in 2003 after controversies about lawyer-lawmaker involvement in high-profile cases, such as one in McAllen, on the southern tip of Texas.
In that case, State Sen. Juan “Chuy” Hinojosa, a former farm worker who had worked his way through law school, was hired onto the defense team for Bridgestone-Firestone, which was facing accusations that defective tires on a Ford Explorer caused an accident that left a 39-year-old mother of three crippled.
Hinojosa had been hired a week before the trial was to open, then filed for a motion to delay the proceedings. Because he was a lawmaker, he could tap a state perk that allowed him to push the case back until his duties as a legislator were over. That could delay the case for up to a year or more and would mean that the victim would have to wait months for medical care and treatments, said Tab Turner, the attorney for the woman’s family.
“The judge saw right through what was going on,’’ Turner said. “He asked him some very tough questions, like ‘Mr. Hinojosa is being brought in here last minute to try to get a continuance. What role is he to play here? Is he going to question all the witnesses?’ ”
Hinojosa also saw the light. He joined forces with another state representative to introduce legislation requiring the disclosures, saying he realized that it was wrong to use the privilege as a delaying tactic.
“It’s ethically challenging to use your authority, quite frankly abuse to just hold the case and get paid for it,” he told the AJC.
Texas attorney-lawmakers now must file a document with the state’s ethics commission within three days after applying for a continuance. Continuances also must be pinned to each legislator’s financial disclosures.
Legislators also must demonstrate to the court that they intend to participate actively in any case for which they file a continuance, and if they are hired within 30 days before a trial, it’s up to the court to decide whether to grant one. It’s not automatic.
Still, the disclosures have not put a stop to the conflicts and abuses, said McDonald, the Austin attorney.
Records kept by the state’s ethics commission show one Texas lawmaker claimed 360 continuances since 2013; another claimed 338 before being defeated in his primary last year.
Now, Hinojosa said Texas may need to tighten the law more. One potential change he suggests: requiring legislators to give more notice that they will seek a continuance in a case “because it’s still a problem.”
It’s only because Rep. Turner released a statement condemning Ralston’s delays that the AJC discovered the serial delays in the Key case in Cherokee.
Turner applauded the speaker for moving to reform the legislative leave law, but criticized him for not accepting that “his actions have caused people harm.
“I learned of a case just this morning of a child molester in Cherokee County from 2009 that was (dismissed) in 2015 because the victim could not be found after six years of legislative delays,” Turner said in the statement.
Following the release of the statement, the AJC examined the court records in Cherokee County, which shed more light on the case.
Court records show Key was indicted in July 2009 for allegedly bringing a 14-year-old boy to his Canton townhouse for oral sex in 2006. Key was 29 at the time of the alleged crime.
At the time, Ralston, who was not yet speaker of the Georgia House, sought trial delays in September, November and December 2009, citing not the legislative exemption but conflicts with other criminal and civil cases he was handling in other counties. The delays pushed the case into January 2010, at which time Ralston was elected speaker by the Republican-dominated House. From that point on, he filed regular requests for delays, citing the demands of his legislative responsibilities.
Key faces related charges in a separate indictment in Gilmer County. Court records show Ralston has delayed that case 14 times over the past decade citing the legislative exemption.
While his attorney was delaying his day in court, Key was rearrested in September 2010 for violating the terms of his bond when an acquaintance noticed him hanging out at a football game at a local middle school. A few weeks later, Key was granted a new bond with the understanding that he would avoid any “area where minors congregate.”
Ralston filed his final stay in Key's Cherokee County case on September 29, 2014, delaying an Oct. 8 pre-trial appearance and proposed trial dates of Oct. 20 and Oct. 27. On Oct. 8, the Cherokee County District Attorney's Office filed a motion — known as a nolle prosequi — to drop the case, citing multiple problems, including problems bringing the victim to court.
“It was obvious that the now 22-year-old (victim) had no intention of participating in the case,” the motion states. “He never filed a victim impact statement.”
The AJC interviewed the alleged victim in the case, who indicated he was prepared to testify.
“I received a few calls from the District Attorney asking me to testify on certain dates, and then would get another call saying it had been delayed,” he said. “Eventually the calls and all communication stopped from the DA.”
At the time, the experience caused “a lot of stress and anxiety and caused me to act out on feelings I may have waited to explore until adulthood.”
In a statement released Friday, Ralston said the state's motion speaks for itself.
“The case of State of Georgia vs. Derek Jason Key was dismissed four and a half years ago at the request of the District Attorney’s Office,” Ralston said in a statement released Friday. “The motion for Nolle Prosequi describes the prosecutor’s reasoning for the dismissal.”
Also on Friday, Ralston announced the creation of an advisory panel of current and former lawmakers, attorneys and judges to recommend possible changes to Georgia legislative leave law.
Cherokee County District Attorney Shannon Wallace said she was unfamiliar with the specifics of the Key case, but in reviewing the file she said it is possible the case would have been dismissed anyway. However, she said delays complicate the prosecution of crimes.
“Lengthy delays in any criminal case will make it more difficult to move forward, and that is true of victim cases,” she said.
In the filing, the assistant district attorney in charge of the case wrote the alleged victim, whose name is being withheld because of the nature of the charges, was “openly gay” and “told the investigators that the sex was his idea and that it was consensual.”
Georgia law does not view sex between an adult and a child as consensual.
Robert James, a former DeKalb County district attorney, said delays are especially problematic in cases where the purported victim is a child.
“Sometimes there would be large gaps in memory,” he said. “The older (the cases) get, the more difficult they get to prosecute.”
Prosecutors sometimes also have trouble prosecuting long-delayed child abuse cases, he said, because the victim ages and may be less sympathetic to juries.
“You have a child that is molested when he or she is 11 or 12 years old. … By the time we got to trial, the boys were bigger and stronger than the person they alleged molested them,” he said. “Those things should not matter, but you are dealing in the real world and they do matter.”
James said repeated delays put victims on “an emotional roller coaster.”
Speedy trial statutes
The special problems associated with delaying cases with a child victim is one reason why 32 states and territories, the District of Columbia and the federal government have laws favoring speedy trials in those cases. Georgia does not.
Wallace, who took office in 2013, said it is not unusual for criminal trials to be delayed multiple times, but the Key case is an outlier.
“Had I known and had the procedure in my office been followed, it would not have ended this way,” she said. “It may have ended in a dismissal. .. However I would assure you the (motion) would not have been written like this.
“I’ll be honest. This stings,” she said. “A lot goes into ever dismissing a child abuse case in this circuit.”
The Atlanta Journal-Constitution and Channel 2 Action News spent weeks searching court records in several North Georgia courts to understand how House Speaker David Ralston, R-Blue Ridge, delays court cases — sometimes for years — in his private law practice by claiming legislative duties require his attention. Further investigation found Ralston was on a conference committee of six lawmakers in 2006 that expanded a state law allowing lawmakers to claim that exemption even when the Legislature is not in session. Today, the AJC looks at how other states have moved to curtail serial use of the legislative exemption and move cases along, especially when the victim is a child.
Preventing abuse of a legislative privilege
Speaker of the House David Ralston is appointing a committee to suggest how Georgia law on legislative continuances might be changed. Here is a sampling of the kinds of restrictions other states have enacted on attorney-legislators who seek to delay court proceedings because of their legislative duties.
- No last-minute continuances: Some states block delays if the lawmaker doesn't file them enough in advance. In Louisiana, for example, continuances have to be filed five days before a hearing or proceeding in most cases.
- No surprise continuances: Rather than just notify the court of a legislative stay, lawmakers in some states must also notify the opposing attorney and other parties. That's a requirement in Missouri, which also says the stays must be filed in writing.
- No late attorney hires: This rule is designed to prevent defendants from adding an attorney-legislator late in the game in order to get a delay. In Illinois, continuances are for attorney-legislators retained by the party before the case was set for trial.
- No continuances for certain types of actions: In California, while most continuances in civil cases are mandatory during session and committee meetings, it's up to the judge to determine if they are granted in cases involving paternity actions, protective orders or injunctions, perishable goods, and receiverships of a failing business. Some states also have laws that limit any type of continuances in cases involving child sexual abuse.
- Only continuances during session times and committee meetings: This is the most common restriction. Tennessee has such a provision, with this caveat: It must be shown to the satisfaction of the court that the attorney is a member of the General Assembly and that it is either in session or that the attorney must attend a legislative committee meeting when the assembly is not in session.
- No serial continuances: To prevent repeatedly delays, some state laws set a time frame for a proceeding to be re-scheduled after a continuance. An Oklahoma bill would require that the proceeding be rescheduled to a date agreed upon by the parties or a date at least 10 days after a legislative session adjourns.
- No hiding: Texas has what may be a unique requirement. Attorney-lawmakers must disclose continuances to the state ethics commission and on their personal financial disclosures. Those records are open to the public.
House Speaker David Ralston weighs in: