Prosecutors get two chances to indict someone on a particular charge, and if neither indictment sticks, further prosecution on that charge is prohibited. Flournoy earlier dismissed the first indictment against Brown, which came in January, because it wasn’t presented in open court. If he also dismisses this one, then the state’s only chance at putting Brown on trial for his alleged crimes would hinge on the outcome of prosecutors’ appeal to the state Court of Appeals regarding the first indictment.
Flournoy indicated he would rule on the latest motions after Dec. 16.
In the nearly three-hour-long hearing Wednesday morning, former Gov. Roy Barnes and Craig Gillen argued that the indictment, returned by a grand jury in July, should be dismissed for two main reasons: One, that there were Cobb EMC members sitting on the grand jury that returned the indictment, but also because the state’s appeal on the first indictment supersedes any new action.
The defense also sought to dismiss the four new charges that were added in the July indictment, which accuse Brown of conspiring to threaten witnesses by suing the civil-suit plaintiffs for breach of the settlement agreement.
Barnes and Gillen were accompanied by two other Barnes Law Group attorneys, as well as Brown, who was jailed briefly on the charges in July and remains free on a signature bond. Attorney Bonnie Wilson, who helped create the for-profit Cobb Energy company in the late 1990s and identified herself as “an interested supporter of Dwight Brown,” sat next to him in the gallery for much of Wednesday’s hearing. Wilson was among those who held preferred stock in Cobb Energy.
Also in the courtroom was Zach McEntyre, a senior associate at King & Spalding in Atlanta, the law firm that has represented the electric cooperative in the civil lawsuit. McEntyre also once worked as an aide to Gov. Barnes, according to his bio on his firm’s website.
Lead prosecutor John Butters and special assistant district attorney John Floyd represent the state in the criminal case. They tried again to get the case transferred to Judge Stephen Schuster — the state believes the guidelines for assigning cases were not followed, whereas the defense insists prosecutors are simply trying to judge-shop — but Flournoy denied the state’s request. Butters did not know whether he would appeal on that point.
Last summer, the issue of which judge should get the case was decided by Chief Magistrate Frank Cox, who ordered it sent to Flournoy because he heard the first indictment.
In arguing to quash, or toss, the indictment because EMC members were on the grand jury, Barnes told Flournoy, “It is very simple. They were victims — alleged victims. Victims of a crime are disqualified as a matter of law from serving on the grand jury.”
Grand-jury terms last for two months, and in three separate terms, Brown’s lawyers got the list of grand jurors and ran all their names through EMC membership rolls. An EMC company executive affirmed those people were members, and Brown’s lawyers sent notice to the District Attorney’s Office that they believed the jurors were disqualified.
“We raised it three times, repeatedly, and they ignored it,” Barnes told Flournoy. “I don’t understand why (the DA) didn’t just say ‘step outside.’ The DA is the adviser to the grand jury.”
Prosecutor Floyd, though, says the District Attorney does not have that authority.
“We would have been acting improperly if we had done that,” Floyd said. “Adviser status does not give the DA the authority to remove a grand juror.”
He also insisted that because the defense did not seek a judge’s ruling on any of the three juror challenges it sent to the district attorney, they have waived their right to argue it.
“There’s no evidence they asked you for a ruling. They did what they’ve done all along, which is they tossed this out in hopes that if there is an indictment, they’d be able to use it later,” Floyd said. Also, “the state doesn’t argue the defendant’s motion. It’s their burden. If they don’t follow through, they can’t complain.”
Twenty grand jurors voted unanimously to return the July indictment against Brown, and four of those were EMC members, including the grand jury foreman.
“That means we had 16 non-EMC members sitting,” Floyd said. “That’s enough for an entire grand jury by itself.”
The four new counts in the second indictment charge Brown with conspiracy and are related to the mid-February filing by Cobb EMC of a suit against the plaintiffs, accusing them of instigating the criminal prosecution against Brown. That suit was dropped about two weeks after it was filed.
Another defense lawyer, Gillen, said that in his “33 years of practicing in criminal cases in state and federal jurisdictions, I have never seen a more bizarre and frightening charge than these four. … The only person charged is Dwight Brown, and he is the one who isn’t named as a party in the lawsuit. The state, in a blind rush to get their arms around Mr. Brown, they’ve decided to use a creative legal position. They said, ‘We’re only charging him. He’s the one we want. We’re not going to charge anyone involved in filing that suit. There must have been a conspiracy.’ … The EMC had every legal right to file that suit, and therefore there can be no conspiracy by Dwight Brown.”
Prosecutor Floyd insisted to Flournoy that the February suit was pure and simple witness intimidation.
“Only after Mr. Brown was indicted did the lawsuit come forward, and only against the plaintiffs. The message is clear. The EMC has massive resources, and that is extraordinarily intimidating. … If you’re a private individual and don’t have insurance and one of the largest law firms in the country sue you and want you to pay their fees, that’s massively intimidating. This lawsuit sent a specific and forceful message to these individuals.”
As for the fact that Brown specifically was not a party to the suit, Floyd said, “So what?”
“He acted as a person concerned in the commission of a crime. He was the CEO,” Floyd said. “Also, the statute of limitations hasn’t run.”
Gillen replied that Cobb EMC “wasn’t intimidating to the plaintiffs when they filed the derivative suit. They went on for a couple of years. They weren’t afraid of big bad Cobb EMC and their multitude of lawyers. They brought that derivative suit and they somehow financed it, and they settled it. As a result of that, they signed on to this agreement, which this (February) complaint says they violated.”
Judge Flournoy was appointed to the bench in 2000 by Gov. Barnes.