Dwight Brown was indicted on more than 30 counts in July 2011 that accused him of stealing millions of dollars from the EMC’s member customers. Charges include theft by taking, conspiracy and violating the Racketeer Influenced and Corrupt Organizations or RICO Act, among other criminal charges.
Brown has not yet gone to trial and did not appear in court on Monday when his attorney, Barnes, told the state’s highest court the indictment should be overturned for a second time.
The first round of indictments against Brown was dropped by Cobb Superior Court Judge Robert Flournoy in March 2011 because he said the charges weren’t delivered in open court.
Barnes argued that alleged victims with interest in the outcome of Brown’s case were improperly allowed to sit on the grand jury that decided Brown should be charged.
“In fact, in this case, the presiding member of the grand jury, the foreperson, was such a person who was disqualified,” Barnes said.
Separate from the criminal case brought against Brown is a civil class-action lawsuit alleging $286 million that should have been returned to members was kept by the utility. The EMC has offered to settle the civil case by paying $98 million, about one-third of the amount of money originally involved in the lawsuit.
Barnes said some grand jurors stood to gain from Brown’s downfall.
“These same people who sat on this grand jury and indicted this defendant had also … filed a class action and subsequent to this case, as a matter of public knowledge, they have received money,” Barnes said.
Cobb Superior Court Judge Stephen Schuster signed a preliminary order in October but is scheduled to hold a final approval hearing at 9 a.m. Tuesday, Feb. 25.
Defense shifts responsibility to prosecution
Barnes argues the potential conflict of interest was brought to the attention of prosecutors but ignored.
“Out of an abundance of caution, it was brought to the district attorney’s attention not once, not twice, but three times that you were seeking to indict a defendant with persons that had direct, inherent interest in the outcome of the case,” Barnes said.
Though attorneys for Brown filed an official motion in court and never had a hearing about their concerns, Barnes says prosecutors had a responsibility to ensure Brown’s rights were honored after a potential problem was presented.
“We hold, rightly so, prosecutors to an exalted position in our society, but they are not mere advocates as your honor knows,” Brown told the court. “They have an extra duty, a duty to see that justice is done and in fairness.”
Prosecutor John Floyd said of the 20-member grand jury that delivered a unanimous indictment, 16 jurors were unchallenged.
“Sixteen is an entire grand jury. No challenge to any of them. They voted unanimously. Only 12 were necessary. That’s where we sit,” said Floyd, special assistant district attorney.
Floyd also argued defendants are not afforded a right to an impartial grand jury. Objectivity is left to the trial jury, Floyd said.
Georgia Supreme Court justices have two court terms, fewer than six months, to issue an opinion.
Justice draws distinction between juries
Associate Justice David Nahmias told Barnes other courts have found there is no right to have an indictment returned by an unbiased grand jury.
“The problem I have is grand juries are treated very differently than juries,” Nahmias said in court on Monday. “Prosecutors can, although they probably shouldn’t, prosecutors can bring evidence they know to be unconstitutionally obtained. They can bring witnesses they know to have committed perjury to the grand jury, and the remedy for that, you cannot correct that by re-indictment. That is not the remedy.”
Nahmias said trial juries, unlike grand juries, must be impartial.
Floyd also pointed to Brown’s first indictment, which was eventually tossed out, that alleged the same charges and was handed down by a grand jury Brown’s attorneys did not challenge.
“It’s not like we made it up all of a sudden,” Floyd said.
Still, Barnes maintained grand juries are meant to be part of a system of checks and balances on prosecutors.
“What district attorney would put a victim on the grand jury or not have a hearing on it?” Barnes asked the court. “That would be like somebody stealing my truck and I see them steal it, and I serve on the grand jury and say, ‘You know he stole my truck.’”