"There was no diversion application filed. So in my opinion, he has not successfully completed the diversion," Morgan said Wednesday afternoon. "This case begins again. I have the right to bring a case back if it was dismissed by my office."
The reason no application was filed is because Maxwell's blood alcohol reading was over twice the legal limit and he was therefore ineligible for the program.
To qualify for the more lenient first-offender diversion program, a defendant's blood-alcohol content must be .08 or less at the time of the citation. Maxwell's was more than twice that - .171, according to his citation and the police report.
Maxwell may now face a minor in possession of alcohol charge and may have to appear in State Court on the charge that could carry a six-month probation period, along with completion of drug programs and drug testing.
Maxwell's case was dismissed Tuesday by Morgan's assistant prosecutor John Summers, who created a firestorm of controversy when he said Monday that Maxwell's attorney and a Cobb State Court judge had struck a deal to allow baseball practice to serve as community service for the teen, and then recanted the story Tuesday and dismissed the case.
Maxwell - an All-County outfield/pitcher at the Walker School in 2006 and now a member of the perennial powerhouse Rice University team - was among 10 teenagers cited for underage drinking in the wee hours of Dec. 22, when Cobb Police busted a party at the upscale west Cobb home of Marietta lawyer and part-time judge Diane Busch.
In what has turned into a soap opera-ish case, Busch - who is under investigation by a special prosecutor trying to determine if she supplied alcohol to the teens at her house - initially represented Maxwell, and tried to get him a deal under the diversion program in which 150 hours of baseball practice would be accepted in place of the standard 40 hours of community service. She continued to represent him until Feb. 11, the day documents were to be filed stating the teen had completed his diversion program requirements.
But Busch apparently chose not to tell State Court Judge Nancy Campbell during their Jan. 13 discussion about baseball practice that Maxwell had been cited in her own home. Summers also was unaware of this information because he had not yet read the police report, Morgan said. But Summers told two Marietta Daily Journal reporters Monday afternoon that Busch, who appeared before Campbell on another case, met with the judge afterward in open court and convinced her to approve the baseball practice time as community service for Maxwell. The Journal is the sister paper to the Cherokee Tribune.
The fact is that Campbell rejected the request. But on Tuesday, after his statements about Busch and Campbell striking a deal touched off a controversy, Summers asked that the case be dismissed, and Campbell agreed - even though one of the others teens given a citation at the party had served 40 hours of community service, not on the baseball diamond, but rather at an animal shelter.
The Journal's - Web site was overrun with readers' comments in response to Monday's story reporting that the teen would practice baseball as punishment and then the next day after Summers recanted the story and dismissed the case. The comments were largely critical of the light punishment for the teen, and then no penalty at all.
Tuesday night, in a phone interview with the Journal, Morgan admitted that he was embarrassed by the mishap by his young associate.
In a statement e-mailed to the Journal early Wednesday morning, Morgan said, "I regret that the misinformation from staff led to suggest that Judge Nancy Campbell would accept baseball practice in lieu of community service. Judge Campbell is an experienced jurist who has served and continues to serve with honor and distinction."
"While I acknowledge that this case was not handled to the standard I set for the Cobb County Solicitor General's Office, as head of this agency I accept responsibility for it. I have already begun to revise and distribute policies, train employees in better negotiation technique and am working to partner younger lawyers with more experienced lawyers to ensure we don't repeat the experience and results of this case," Morgan said in the statement.
"Baseball practice should never be a substitute for community service, as band practice would not be sufficient community service," Morgan said in his statement.
Judge Campbell, through the State Court administrator, declined the Journal's requests for an interview or to answer questions submitted via e-mail.
But the court administrator, Frank Baker, sent this statement from Campbell: "As the judge in this case I am limited as to the nature and extent of my comments. It is important to recognize that the prosecutor's office presented a recommendation in this case. My actions took into consideration all the presented facts."
Jimmy Berry, Busch's defense lawyer, said he was not sure what Busch told the judge in January regarding the Maxwell case. "It really wouldn't have made any difference where the citation happened. It didn't matter at that point, because the boy was accepting responsibility," Berry said. He contends that Busch did not know at the time that she was being investigated by the police.
"I don't see that there's any malice or intent to fix something," Berry said. "That's just not what it is."
Berry also said of his client, "Frankly, legally, I don't think she should be charged. It doesn't fit under the code section. People may not like to hear that, but it's the truth."
As for the teenagers, first-time offenders cited for minor in possession of alcohol, shoplifting, or possession of less than one ounce of marijuuana but who are not eligible for the diversion program are generally sentenced to six months of probation and fined between $100 and $200, said Jason Fincher, Morgan's deputy.
They are usually required to get a drug evaluation by a licensed professional counselor; test clean on three separate drug tests; do 40 hours of community service; and write an essay, all of which is also required of participants in the diversion program. The defendants pay out of pocket for the evaluations and the drug tests, Morgan said.
Still, why didn't prosecutors or the judge ask Maxwell where the alcohol had come from?
"I don't recall that question ever being asked" by any judge, in any case, Fincher said.
Busch, a lawyer in the Marietta firm Wiles and Wiles, is a part-time municipal court judge in Woodstock and Marietta, and has previously filled in for absent State Court judges.
As the chief judge in Woodstock, she usually sits on the bench twice weekly, though she asked about two weeks ago to take leave until the police case involving her is resolved, according to her lawyers.
She sat on the bench at least 12 times in Woodstock and Marietta in the weeks after Cobb Police busted 10 teenagers for drinking alcohol at her home back on Dec. 22 - even after she learned that police were still trying to figure out how the teenagers got the alcohol, and after she had retained a defense lawyer.