Diversion is generally not available for first offenders who are prosecuted in Cobb on misdemeanor charges of obstruction of justice, which Busch is charged with, or for furnishing alcohol to minors; contributing to the delinquency of a minor; allowing possession of alcohol by a person under 21, misdemeanor charges both women face.
But Solicitor General Barry Morgan recused his office from prosecuting Busch and Middleton because at least one member of his staff had attended the December party at Busch's home.
So the diversions in these two cases came at the discretion of special prosecutor Malone, who is also the executive director of the Prosecuting Attorneys Council of Georgia.
Busch's Petition for Diversion - which is signed by Busch; her attorney, Jimmy Berry; and special prosecutor Malone - was filed in Cobb State Court on Aug. 3. Kathryn Middleton's signed diversion petition was filed with the court clerk on July 30.
The women have 10 weeks in which to complete all the requirements of their diversion. In addition to the community service, each woman must undergo a drug/alcohol evaluation; take a parenting class; and sit through a Mothers Against Drunk Driving victim impact panel. Busch and Middleton have also each paid a $150 diversion program fee.
Busch and Middleton are scheduled to appear in Cobb State Court on Oct. 26 at 9 a.m. before Senior Judge Jack McLaughlin of DeKalb County. If they've completed the requirements by then, the cases will be dismissed and the women can file paperwork to have the charges wiped off their records.
Malone denied Busch and Middleton had received special treatment with the diversions.
"Every case is given individual treatment, if we're doing our job right," he said. "That was the hardest challenge - to not treat them any different. This case has become a celebrated case in the media. If Diane Busch was not a judge, and the people at the party were not related to politicians and people who are occasionally controversial in the community, this would have gone under the radar."
"All I can do is be as fair and consistent as I can be. There is nothing I'm aware of that indicates there was anything unusual in how this was handled," he said.
Malone took over for the original special prosecutor, Lalaine Briones, when she took a job in Clayton County on July 15. The diversion proposal came up just over a week later, on July 23, during negotiations between the lawyers at State Court, Malone said, though he said Joel Pugh, Middleton's lawyer, had spoken to Briones earlier about the case.
"The result was no result," Malone said. "Lalaine's view was, 'We're not giving them anything; we're going to trial.' And that's fine."
When the lawyers met on July 23, the defense attorneys got to see some of the evidence prosecutors had, Malone said.
"We had tape-recorded statements from a lot of the young people, and I shared some notes from those [recorded statements] with both attorneys to show their clients," Malone said. "Also, there was a change in attitude on behalf of the defendants that we believe was important to the system. We were not going to try the police. These officers did an excellent job. When it became clear that tactic was not going to be used because it wasn't right or fair, then we started discussions," Malone said.
Defense attorney Berry had filed several motions in the case, including a request for the judge to review the personnel files of the police officers who had been at Busch's house in the early morning hours of Dec. 22.
When asked about that particular motion on Friday, Berry said: "We filed a lot of motions. The thing I was concerned about was the number of similar cases where parents had not been arrested. This is not a unique thing. It happens almost every weekend - kids take advantage of their parents and drink. I wanted to see how many cases the state had not pursued. If they were treating her differently because she's an attorney, that's not fair. You don't want government officials or attorneys being treated differently, but you don't want them treated worse. That wouldn't be fair either."
Berry also said his client, Busch, is "being punished more harshly than the average person."
"She's having to do more community service than the average person would under a diversion," Berry said, though he did not know where she is performing her service. He also discounted the fact that people facing such charges are not eligible for the Solicitor General's diversion program.
"The diversion program a year ago was a lot more loose than it is now. You really can't say it doesn't fit the program because a lot of cases were put in it that didn't fit a profile," Berry said.
Solicitor General Barry Morgan, who has not been involved in the case since recusing his office from it early in the year, said: "In cases like these, we do not offer a diversion. I'm a member of the Cobb Alcohol Task Force and have made a commitment not to divert furnishing cases, and so we do not. Typically, in a first offender case, we ask for probation, a fine, and community service. We've asked for jail time when a kid has been hurt, such as the Kecia Whitfield case. A lot of it is fact-specific."
Whitfield, 44, was convicted in State Court in August 2009 on five counts of furnishing alcohol to minors several months earlier. One of those minors, Garrett Reed, 16, died in a car crash the night after drinking the alcohol. Whitfield, of Powder Springs, was sentenced to 18 months in jail; 100 hours of community service; and fined $1,300. She must also spend 30 months on probation.
Cathy Finck, coordinator of the Cobb Alcohol Task Force, had several concerns about the resolution of these cases. Her group, she said, works hard to change the perception that underage drinking is an acceptable norm.
"This may be a setback to our work. Underage drinking is a big deal. There are multiple surveys that show underage drinking causes more harm to kids and communities than all illegal drug use combined," Finck said. "It's hard for me to understand how a prosecutor can justify diversion for two defendants who have 20 counts related to providing alcohol to minors."
Special prosecutor Malone, though, insists justice was served.
"If the authorities walked away and made no changes, that would be a complete failure of the system. That hasn't happened. It was not ignored. It was treated, as much as we could, like any other case, in my opinion," he said.
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