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.
When asked why the five were not barred from the process, Cobb District Attorney Pat Head said it would be “almost impossible” to assemble a grand jury in Cobb County that included 16 jurors who were not Cobb EMC members. The law requires 16 out of a total of 23 grand jurors in order to conduct business.
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.”
In response to the “lawless prosecutor” phrase, Head said “I am surprised that the Honorable Barnes, former Governor of the great State of Georgia, would stoop to name calling.”
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.
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You ID describes you perfectly. By your logic, Coca-Cola, McDonalds, or Procter and Gamble could never face a grand jury or a jury trial!
You are kidding, right?
Pat H - There are around 200,000 Cobb EMC meters/customers (families and businesses). There are many other family members who reside at the meter location (a home for instance).
Again Pat, you have made it easy for R. Flournoy III to throw case out...
This was not an honest "mistake". The indictment has been orchestrated deliberately to be ineffective. First, no Board members were indicted, which indicates conspiratorial work behind the scenes.
Second, the "attorney" from Barnes' law firm who could not get into the new courthouse was also a deliberate act to use trickery since there is obvious no other defense to the charges.
Now, 5 jurors have Cobb EMC electricity. Well, there are 700,000 people living in Cobb, yet Cobb EMC only provides electricity to 200,000 and some of those are in Cherokee, Bartow and Douglas counties. Pat Head has some explaining to do. It seems all involved are amoral and corrupt.
I think what we are seeing is a defendant who has the financial wherewithal to put forth a vigorous defense and how such a defense reveals just how incompetently (or conspiratorially?) our elected DA carries out his duties. Head is either inept or he is going thru the motions just far enough to give the less attentive members of the voting public the impression that he has actually trying to stop some wrong doing (of his buddies?).
Between Pat Head's and Judge Schusters handling of this matter, I am beginning to wonder if some friendships are not getting in the way of putting a stop to the real BS that EMC management and board have been inflicting on the EMC membership.