Chief Magistrate Judge Frank Cox had agreed on July 31 to dismiss the charge, but that action was voided because prosecutors had already filed an “accusation” in state court hours earlier.
If convicted, Donovan faces a maximum sentence of 12 months in jail and a $1,000 fine. Her trial date will not be set until after the arraignment.
“We’ll file a motion probably to dismiss, and hopefully the state will make the determination that she didn’t do anything wrong,” Berry said Friday.
He said Donovan would not be present Friday during her arraignment.
Berry also said that it is very uncommon for the state and magistrate court’s decisions to be made on the same day like they were with his client’s case.
“I’ve never had (a probable cause hearing in magistrate court) where we’ve actually had it then found out later that it was already accused. It’s pretty rare to do that,” he said. “We had no clue, nor did the judge. The good thing is that we did have (the probable cause hearing) and the judge saw that there was no case.”
Cox, who agreed with Berry on the rarity of the decisions being made so closely together, said he found no probable cause in Donovan’s case because he thinks that she “made an effort to comply” and report suspected child abuse within the right time frame.
“The code section requires that she did knowingly and willfully fail to make a report and the evidence was that she contacted a supervisor to consult with them (within 24 hours) and was told that that person was not available so she left a message for them to call her back and they did not call her back immediately but as soon as she spoke to that individual, she filed the report,” Cox said.
According to documents the Journal received under the Open Records Request, Donovan learned on Friday, May 17, about the incident involving former Kell teacher James Chadwick Brigham and two students, which would eventually led to her charge and arrest.
That same day, she reportedly tried calling the district’s investigation manager, Jay Morrissey, and spoke to him about Brigham on Wednesday, May 22.
Donovan said Morrissey advised her at that time that she should have filed a report with the Department of Family and Children Services on May 17. Kell Counselor Peggy Jerden filed it May 22 around 1 p.m.
The former principal met with Area Assistant Superintendent Ed Thayer and members of the human resources staff on May 29 and Donovan retired on June 1.
The 61-year-old educator turned herself into the Cobb County Jail on June 21 on a misdemeanor charge of failure to report child abuse. She is accused of waiting longer than 24 hours to report the incidents involving Brigham.
Brigham was arrested on June 21 and charged with one count of felony sexual battery and two counts of misdemeanor simple battery.
Jerden resigned to retire in mid-June after about 38 years with the district.
Berry said he thinks his client is upset over the way things were handled by the school district.
“When she came in and told me about it, I was upset about the way it was handled, so certainly, I know that she has those feelings,” he said.
Berry couldn’t recall when Donovan originally met with him on the charges.
Donovan was named Kell’s principal in 2006 after serving as an associate principal at Harrison High for four years. She started in the Cobb County School District in 1978 as a teacher at Walton High, where she stayed until 2000. She also served as an administrative assistant and assistant principal at South Cobb High.
The district appointed Sprayberry High Principal Ed Wagner to replace her in mid-July.
Donovan was the second Cobb principal charged last school year with failure to report suspected abuse. In March, former Tapp Middle School Principal Dr. Jerry Dority and a counselor at that school were charged with failure to report suspected sexual abuse of a student. The district fired both in April.