It will be a race against time.
When jury selection begins Friday for Kenneth Chesebro, a lawyer charged with former President Donald Trump in Fulton County’s election interference case, defense lawyers, prosecutors and the judge will be on the clock. Chesebro filed a speedy trial demand and that means if a jury isn’t found within two weeks, the charges against him will likely be dismissed.
Lawyer Sidney Powell had also filed a speedy trial demand and was expected to go to trial with Chesebro. But Powell entered a guilty plea to misdemeanor charges on Thursday after striking a plea deal with prosecutors.
Even though there is one less defendant, legal experts said it will be difficult to sit 12 jurors before the speedy trial deadline. The case involves complex racketeering charges and high-profile-defendants who have been in the national news. Not only that, the trial is expected to take about five months. That could effectively rule out some would-be jurors with commitments that would make them ineligible to serve.
Lawyers in the case will be trying to winnow out those prospective jurors who have a prejudice or bias against one side or the other, Decatur lawyer Jason Sheffield said.
“It’s going to be very challenging to get to the root of the reason why a juror must be excluded,” he said. “The trial lawyers representing the persons accused are very skilled at trying to get to the heart of what would disqualify a juror in their mind. They need time to do that.”
Under Georgia law, a jury has to be seated – and sworn into service – by the end of the speedy trial deadline. In Fulton County, that’s two terms of court, each of which are about two months long. That means the deadline is Nov. 5.
If the jury is not sworn in by then, Chesebro will be deemed to have been denied his right to a speedy trial and the charges against him must be dropped. The Fulton County criminal cases against him will be dismissed, although the state could appeal such a ruling.
New Georgia court precedent
The deadline is important because of a decision earlier this year by the Georgia Supreme Court involving Logan Adam Bowman of Paulding County. Bowman was indicted in 2013 for child molestation and other charges.
After his indictment, Bowman filed a speedy trial demand, meaning he had to be tried before the end of two Paulding County court terms. To satisfy his demand, the state brought him to trial in December 2014. He was convicted of two two felonies and sentenced to 15 years in prison.
But the 12 jurors chosen to decide Bowman’s fate were never administered the oath for service by the judge or the court clerk before the trial began.
More than four years after his conviction, his new lawyer told the judge the jury was never given the oath, and the judge set aside the guilty verdicts and reinstated the case to active status. The district attorney’s office contended the December 2014 court proceeding met Bowman’s demand for a speedy trial. But in March 2020, a Paulding County judge entered an order granting Bowman a new trial and ordered his release after six and a half years in custody.
The state appealed to the Georgia Court of Appeals, which rejected Bowman’s speedy trial claims. But Bowman then appealed to the state’s highest court.
On Feb. 23, the Georgia Supreme Court overturned the appellate court’s ruling. “Without an oath, there is no jury; and without the jury, there is no trial,” Chief Justice Michael Boggs wrote for a unanimous court. " … A proceeding conducted before 12 citizens who have not taken the oath is nothing more than an ‘attempted trial.’”
And an attempted trial did not satisfy Bowman’s demand for a speedy trial, the court ruled.
That opinion now stands front and center in the case against Chesebro, said Sheffield, past president of the Georgia Association of Criminal Defense Lawyers.
“Bowman cuts to the heart of the issue that’s pending now before the court and with the lawyers that are trying to scramble to meet the court’s deadline of selecting a jury in 13 days,” he said. “Because Bowman tells us if you don’t impanel and swear in the 12 jurors who will try the case, that the defendants shall absolutely be discharged and acquitted of the offenses charged in the indictment.”
Fulton County Superior Court Judge Scott McAfee, who is presiding over the Fulton election case, has cited the state Supreme Court’s Bowman decision.
“We’re going to be making the attempt to have this jury sworn by the deadline of Nov. 5,” McAfee said at a recent hearing. “Maybe that means a weekend or two” for jury selection.
Scott Grubman, a lawyer for Chesebro, said, “I think the case law is pretty clear, your honor, of when a trial starts.”
He added, “We’re aware of that issue and we won’t do anything to unnecessarily to delay it. ... It’s clearly going to be a challenge.”
About the Author
