But a second indictment against Brown, which repeats the original charges and adds four more, is still pending.
Brown, who has pleaded not guilty on all charges, is accused of using Cobb EMC as a piggybank to fund various operations and activities of Cobb Energy without approval by the cooperative’s members, as required in EMC’s bylaws.
According to Monday’s decision, written by Justice Robert Benham, the high court agrees with the Court of Appeals and Cobb County Superior Court Judge Robert Flournoy that the initial indictment against Brown filed in January 2011 was not returned “in a place that was open to the public” and should have been dismissed.
On Jan. 6, 2011, a Cobb County grand jury returned the first indictment against Brown in Superior Court Judge George Kreeger’s courtroom in the under-construction Cobb County Superior Courthouse.
Brown’s attorneys with Barnes Law Group in Marietta filed an appeal arguing that the indictment was not filed in open court because the front entrance of the courthouse was locked and Cobb Sheriff’s Office deputies wouldn’t allow anyone into the courthouse that day. It was not scheduled to officially open until Jan. 10, 2011.
Even Brown’s attorney, John Salter, was not allowed to go into the courthouse that day, although someone from the district attorney’s office was present in court.
Because of the access problem, Flournoy dismissed the first indictment but then Cobb District Attorney Pat Head filed an appeal two months later.
The Georgia Court of Appeals upheld Flournoy’s decision in April 2012, but the district attorney’s office filed yet another appeal against this decision.
“The Cobb DA’s Office was on the wrong side of history with its appeal and, more importantly, on the wrong side of history in this case,” said Salter in an emailed statement Monday. “As a matter of history, the prior administration of the Cobb DA’s Office subcontracted inexperienced civil attorneys to launch RICO indictments at the behest of private partisans to pick winners and losers in internal corporate disputes.”
Salter went on to say that Brown’s indictment was an improper use of a prosecutor’s office to oust a CEO and win control of Cobb EMC.
The call for Brown’s removal from the company was part of a civil case involving six plaintiffs who brought suit against the electric cooperative and some directors in 2007 accusing them of breach of fiduciary duty, among other things.
“The only agenda of the DA’s Office should be public justice, not private intrigue,” Salter said. “Because this must stop, we call upon the new District Attorney to reconsider policies of the prior administration that, through misuse of RICO indictments, have inflicted much pain and wasted expense.”
Vic Reynolds, who took the helm at the local district attorney’s office in January, said the Supreme Court’s ruling wasn’t unexpected.
In response to Salter’s statements about his office, he said, “Since Jan. 1, I’ve had several experienced prosecutors reviewing this case from top to bottom.
“If we determine this case can be prosecuted, that is what we will do,” Reynolds continued. “If it cannot be prosecuted, then we will not. I anticipate the review being complete in the near future. Our ultimate objective is to do what is right.”
Second indictment still pending
A second indictment against Brown, which included four additional charges accusing Brown of threatening to file a lawsuit against customers who cooperated with the prosecution, was filed in July 2011.
Shortly thereafter, Brown’s attorneys appealed Flournoy’s decision to uphold those charges.
In July 2013, the Georgia Court of Appeals upheld Flournoy’s ruling on the original indictment, with the exemption of the four new charges. Court of Appeals judges dismissed the threat charges originally because it does not constitute a threat of injury or damage under state law.
Salter on Monday said his office has filed a petition asking the Supreme Court to review and reverse the Court of Appeals decision on the second indictment.