Per Georgia law, all indictments must be presented in an open courtroom.
Former Gov. Roy Barnes, who is representing Brown, called the decision "imminently correct."
District Attorney Pat Head said he will appeal Flournoy's ruling to the State Court of Appeals. Head also has the option of trying to get another grand jury to re-indict Brown, he said.
The indictment was handed down Jan. 6 in Cobb Superior Court Judge George Kreeger's courtroom in the county's new courthouse on Haynes Street, which technically did not open until Jan. 10. Doors were locked and armed sheriff's deputies guarded the catwalk from the old courthouse to the newly constructed building. Media and others, however, were allowed access to the catwalk if they requested an escort.
But Flournoy cites throughout his ruling how J. Cameron Tribble, an attorney at the Barnes Law Group in Marietta, had difficulty entering the new courthouse and ultimately missed the indictment being handed down. Barnes had instructed his associate to go to the courtroom that day and hear the presentments.
Flournoy wrote that Tribble went to the main entrance to the new courthouse and it was locked. He then went to the old building and approached the catwalk, but deputies wouldn't let him cross, Flournoy wrote. He was ultimately allowed access after calling the court administrator, Tom Charron, to escort him. When Tribble finally got to the courtroom, the indictment had been returned moments prior.
"If Mr. Tribble was required to have been escorted to the courtroom for reasons of safety or security, then the escort should have been provided without any delay whatsoever," Flournoy wrote. "Mr. Tribble was effectively excluded from the courtroom when the Grand Jury returned the indictment against Defendant. Because Mr. Tribble was so excluded, the courtroom was not 'open to the public' at that time."
During a hearing in the matter on March 3, Kreeger said the reason he had wanted to hold the grand jury proceedings in the new courthouse that day was so that the members of the grand jury could see the new building.
"The doors were open, anybody could come in, some of the TV folks were there. It seemed pretty open to me," Kreeger said.
The district attorney said he would rather have the Court of Appeals review the case instead of just trying to get another indictment handed down, not only because he wants to make sure this particular case is handled correctly, but because such a ruling could have a much broader impact.
"This could effect thousands and thousands of cases, which is why we need to appeal," Head said.
Not only were there 199 other indictments handed down that day, Head said there are many other hearings that are handled similarly - with escorts.
For example, probation revocation hearings are held at the jail, Head said.
"And in order to do that, you have to be escorted," which also causes a delay, he said.
Brown was charged with 16 counts of theft by taking, three counts of racketeering, ten counts of making false statements, and one count each of conspiracy to defraud Cobb Government and conspiracy to defraud the Cobb County School District, both of which are EMC members. The grand jury indictment alleged that Brown used Cobb Electric Membership Corporation as a piggybank to fund various operations and activities of Cobb Energy without approval by the cooperative's members, as required in EMC's bylaws. Without revenues from these various business dealings by Cobb Energy, funded by the co-op's members, Cobb Energy could not have paid Brown millions of dollars in salary and compensations, dividends in preferred stock, and forgiven a $3 million loan Brown used to purchase the stock, according to the indictment.
Barnes, however, says "all actions taken at Cobb EMC were approved by the best lawyers and consultants in the country," and hopes Head will take Flournoy's Tuesday ruling "as an opportunity to step back and consider that"
"There simply is no crime here," Barnes said. "All business owners and leaders should be concerned when action is properly taken by a corporation under proper advice and counsel, and that same conduct becomes the basis for an indictment. Such action chills our reputation as a county in which business wants to locate."
Barnes appointed Flournoy to the bench when he was governor. Asked if that could present an issue, Head earlier said, "I don't know if it's a problem...most of the judges are fair irrespective of who appoints them."
Meantime, the Georgia Supreme Court has until mid-July to rule on an issue in a civil suit filed against Brown and the Marietta-based Cobb EMC in October 2007. That case was settled in December 2008, but soon after the electric cooperative's board of directors made bylaw changes regarding voting procedures that plaintiffs said went against the agreement. Superior Court Judge J. Stephen Schuster allowed the bylaw amendment and the plaintiffs appealed. The appeals court reversed the decision and EMC asked the Supreme Court to review the case, which it did last month.
Brown retired on Feb. 28, per a court order. However, the board decided to keep Brown on as an independent consultant. The board has also filed a declaratory judgment action seeking approval from a Superior Court judge to bring back the embattled former president and CEO.