"There was no diversion application filed," Morgan admitted when asked by the Journal on Wednesday if the newspaper could view the document. "So in my opinion, he has not successfully completed the diversion program. This case begins again. I have the right to bring a case back, if it was dismissed by my office."
Maxwell's blood alcohol reading, according to a Cobb Police report, was more than twice the legal limit and he did not meet the guidelines for the diversion program, which states a first-offender's blood-alcohol content must be .08 or less at the time of the citation to qualify. Maxwell's was more than twice that - .171, according to his citation.
So instead of the more lenient diversion program, Maxwell may now face a minor in possession of alcohol charge and may have to appear in State Court on the charge that could carry a six-month probation period along with completion of drug programs and drug testing. If an offender completes either program, the charge is dropped from his record.
Morgan's assistant prosecutor John Summers created a firestorm of controversy when he said Monday that Maxwell's attorney and a Cobb State Court judge had struck a deal in January to allow baseball practice to serve as community service for the teen, and then recanted the story Tuesday and said the case already had been dismissed Feb. 11 when a judge agreed to his request.
Maxwell - a Journal All-County outfield/pitcher at the Walker School in 2006 and now a member of the perennial powerhouse Rice University team - was among 10 teenagers cited for underage drinking in the wee hours of Dec. 22, when Cobb Police busted a Christmas party at the upscale west Cobb home next to Marietta Country Club belonging to Marietta lawyer and part-time judge Diane Busch. Four teens over age 17 and six juveniles were cited at the party.
In what has turned into a soap opera-ish case, Busch - who is under investigation by a special prosecutor trying to determine if she supplied alcohol to the teens at her house - initially represented Maxwell, and tried to get him a deal under the diversion program, in which 150 hours of baseball practice would be accepted in place of the standard 40 hours of community service. She continued to represent him until Feb. 11, the day documents were to be filed stating the teen had completed his diversion program requirements, and then turned the case over to Susan M. Miller, a friend and prosecutor in the Woodstock Municipal Court where Busch presides and the Marietta Municipal Court where Busch sometimes presides as a part-time judge.
But Busch apparently chose not to tell State Court Judge Nancy Campbell Jan. 13 that Maxwell had been cited in her own home. Summers also was unaware of this information because he had not yet read the 18-page police report, Morgan said, but did have a copy of the single-page citation issued to Maxwell by police at the party. But Summers told two Journal reporters Monday afternoon that Busch, who appeared before Campbell on another case, met with the judge afterward in open court and convinced her to approve the baseball practice time as community service for Maxwell.
The fact is that Campbell rejected the request. But on Tuesday, after his statements about Busch and Campbell striking a deal touched off a controversy, Summers had already asked that the case be dismissed, and Campbell agreed - even though one of the other teens at the party with a lesser alcohol reading had served 40 hours of community service, not on the baseball diamond, but rather at an animal shelter.
The Journal's Web site was overrun with readers' comments in response to Monday's story reporting that the teen was made to practice baseball as punishment and then the next day after Summers recanted the story and revealed he had dismissed the case. The comments were largely critical of what many viewed as light punishment for the teen.
Tuesday night, in a phone interview with the Journal, Morgan admitted that he was embarrassed by the snafu by his young associate.
A source told the Journal that Morgan has suspended Summers until Friday and that Morgan is livid with Busch for not informing him that she was representing Maxwell while being under investigation by a special prosecutor.
Morgan had recused his office from the investigation because an associate in his office was at Busch's Christmas party.
In a statement e-mailed to the Journal early Wednesday morning, Morgan said, "I regret that the misinformation from staff led to suggest that Judge Nancy Campbell would accept baseball practice in lieu of community service. Judge Campbell is an experienced jurist who has served and continues to serve with honor and distinction."
"While I acknowledge that this case was not handled to the standard I set for the Cobb County Solicitor General's Office, as head of this agency I accept responsibility for it. I have already begun to revise and distribute policies, train employees in better negotiation technique and am working to partner younger lawyers with more experienced lawyers to ensure we don't repeat the experience and results of this case," Morgan said in the statement.
"Baseball practice should never be a substitute for community service, as band practice would not be sufficient community service," Morgan said in his statement.
Judge Campbell, through the State Court administrator, declined the Journal's requests for an interview or to answer questions submitted via e-mail.
But the court administrator, Frank Baker, sent this statement from Campbell: "As the judge in this case I am limited as to the nature and extent of my comments. It is important to recognize that the prosecutor's office presented a recommendation in this case. My actions took into consideration all the presented facts."
Jimmy Berry of Marietta is Busch's newly engaged defense lawyer, taking over from his partner Vic Reynolds, who stepped down for the case because of "scheduling reasons."
Berry said he was not sure what Busch told the judge in January regarding the Maxwell case.
"It really wouldn't have made any difference where the citation happened. It didn't matter at that point, because the boy was accepting responsibility," Berry said.
He contends that Busch did not know at the time that she was being investigated by the police.
"I don't see that there's any malice or intent to fix something," Berry said. "That's just not what it is."
Berry also said of his client, "Frankly, legally, I don't think she should be charged. It doesn't fit under the code section. People may not like to hear that, but it's the truth."
As for the teenagers, first-time offenders cited for minor in possession of alcohol, shoplifting, or possession of less than one ounce of marijuana, but who are not eligible for the diversion program with an alcohol content level exceeding .08, are generally sentenced to six months of probation and fined between $100 and $200, said Jason Fincher, Morgan's deputy.
They are usually required to get a drug evaluation by a licensed professional counselor; test clean on three separate drug tests; do 40 hours of community service; and write an essay, all of which is also required of participants in the diversion program. The defendants pay out of pocket for the evaluations and the drug tests, Morgan said.
Still, why didn't prosecutors or the judge ask Maxwell where the alcohol had come from?
"I don't recall that question ever being asked" by any judge, in any case, Fincher said.
Busch, a lawyer in the Marietta firm Wiles and Wiles, is a part-time municipal court judge in Woodstock and Marietta, and has previously filled in for absent State Court judges.
John Wiles, a state senator and one of Busch's neighbors, arrived at Busch's home after police busted the teen party to pick up his child. He is mentioned prominently in the police report and quoted as asking an officer not to give one of the teens a citation because it could jeopardized his baseball scholarship. He also is quoted as informing an officer that he is "a Georgia state senator."
Wiles has denied trying to pressure the police on behalf of the teens.
Busch sat on the bench at least 12 times in Woodstock and Marietta in the weeks after Cobb Police busted 10 teenagers for drinking alcohol at her home back on Dec. 22 - even after she learned that police were still trying to figure out how the teenagers got the alcohol, and after she had retained a defense lawyer.
As the chief municipal judge in Woodstock, she usually sits on the bench twice weekly, though she asked about 10 days ago to take leave until the police case involving her is resolved, according to her lawyers. Her request came after the Journal broke the story about the bust on Feb. 13 and she has not since presided in either the Woodstock or Marietta courtroom.
There are drug treatment centers that offer programs designed to help teenagers and adolescents whose lives have been damaged by drug addiction.
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Additionally, Diane Busch as well as any other adults present should of been arrested and charged. This is the regular procedure in any other household where an incident of this type occurs. However, not every household has a Judge a homeowner and guests that are State Officials.
As for the judge and the senator. Say whatever you want. They are big boys and girls and can take it. But don't villify kids for no good reason. (and while I don't believe underage kids should drink, doing so, is not a reason to villify them).
ps --if you ever get pulled over for doing 38 in a 35 mph zone and the officer attempts to give you a warning instead of a $100 ticket for breaking the law, I expect you to take down his badge number and file a formal complaint against him. How dare he give you a break.
By the way, lets not make them accountable for their actions. I mean really, we don't want them to learn to be responsible, law abiding citizens. We want them to learn how to get off, when they break the law.
This would almost be hilarious if it were a soap opera. Except it's actually happening which is SAD, SAD, SAD!!
As hard as it may be to believe, it is possible for your children to have a good time without drinking. I have hosted parties for my children's friends and I explicitly forbid alcohol. His friends are fine with the rules and they seem have to fun without the alcohol and any of the negative consequences.
You can't blame the public for responding to the actions of these habitual law breakers. Would you blame the surgeon for having to do open heart surgery because you ate too much junk food? Didn't think so.
And if I read one more post about someone's kid at a "Christian" school who would never drink I may puke. The posts I have read the last two weeks demonstrate the most un-Christianlike behvior and attitude I have ever seen. That stone throwing is the opposite of everything I have ever read in the New Testament. But if it makes you feel better, just keep bashing. Who cares, its just the spirit of children and teens you are trying to break with you venom spewed comments.
- This has turned into a "soap opera-ish case" only because of the MDJ's breathlessly giddy reporting. Schadenfreude, anyone?
- The judge can't comment on the case, period. She's not "hiding" behind a spokesman.
- To the poster who suggested Sam Olens fire Barry Morgan. He's an elected official. You have the power to fire him at the ballot box.
- Like any other workplace, judges and attorneys (prosecution and defense alike) are friendly at work and sometimes--gasp--socialize outside of work. It's not some vast conspiracy designed to stick it to the little guy.
- Like any other profession, there are bad judges and bad attorneys. As much as people want to make this into an indictment (pun intended) of everyone working on the Square, there are good people there doing good work for Cobb citizens. That may be a biased statement, but that doesn't make it untrue.
AND, NO I have never been placed on probation. I am in the legal field and just sickened with Judges, Solicitors placing people on probation when there are other solutions.