MARIETTA — Former Cobb EMC chief Dwight Brown is seeking to have his July 7 criminal indictment thrown out on grounds that prosecutors improperly allowed five Cobb EMC members — “victims” of his alleged crimes — to serve on the grand jury that returned the indictment, and thus the proceedings are “irreparably tainted.”

Brown is scheduled to be arraigned before Superior Court Judge Robert Flournoy III on Oct. 10, and Flournoy has scheduled a hearing on the motion to dismiss, and other issues, for Oct. 13.

In the motion to dismiss, Brown’s lawyer, former Gov. Roy Barnes, argues that on May 27, Brown’s legal team notified prosecutors that five of the current grand jurors were Cobb EMC members and included an affidavit from Linda Dobbs, director of member services for Cobb EMC attesting to that fact. Brown’s lawyers insist that because the state did not bar those grand jurors, the indictment is fundamentally unfair.

“As members of Cobb EMC, these Grand Jurors are, according to the State’s (legally erroneous) theory of the case, ‘victims’ of an alleged ‘theft’ by Mr. Brown,” Barnes wrote in his motion. The presence of such people on the grand jury “determining whether to indict Mr. Brown who are themselves alleged victims of the alleged offenses under consideration constitutes a flagrant violation of Mr. Brown’s due process rights which requires dismissal of the current Indictment against him.”

Brown’s lawyers named the EMC members on the May/June 2011 grand jury as Donald L. Cole, the foreperson; Lionel David Garrett; David A. Littlefield; Thomas Michael Menosky; and David Keith O’Connell.

John Butters, the lead prosecutor in the Brown case, declined to say much about the motion to dismiss, although he does anticipate filing a response to the motion before the hearing.

“We’ve got the motions, the judge has set them down for an Oct. 13 hearing, and I plan to be there,” he said.

Barnes also wrote in his motion that, “The State’s flagrant disregard for Mr. Brown’s pre-indictment Motion and the statutory law requiring impartial grand juries presents an exceptional case of a lawless prosecutor flouting even the clearest statutory commandments. … The State knew of the rule. The prosecutors knew their actions would break the rule. The prosecutors broke it anyway.”

On July 7, a unanimous county grand jury indicted Brown on 35 felony criminal counts alleging a pattern of racketeering activity dating to 1997, when he, “together with directors of Cobb EMC ... devised and intended to devise a scheme to acquire and maintain interests in Cobb Energy, consisting of preferred and common stock, control of Cobb EMC and Cobb Energy, and personal property, including United States currency.”

That indictment is identical to one returned in early January, except for the addition of four charges accusing him of threatening and intimidating witnesses by participating in filing a civil suit in February against people “who allegedly cooperated with the prosecution with regard to the prosecution of Dwight T. Brown and the investigation of Cobb EMC directors.” Brown and the other plaintiffs quickly dropped that lawsuit.

In March, Judge Flournoy threw out the first indictment against Brown on the grounds that it was not delivered in open court, as is required.

Brown was arrested July 7 shortly after the latest indictment was returned, and is free on a signature bond.