Due to a mistake that violated the defendant’s due process rights, the criminal indictments against the former CEO of the Cobb Electric Membership Corporation have been dismissed. The man had been facing 31 separate charges under Georgia’s Racketeer Influenced Corrupt Organizations Act (RICO) for alleged embezzlement, fraud and misappropriation of funds.
This is the second piece of good news for the former CEO this month. As we reported on March 16, the board of the Cobb EMC has unanimously decided to rehire the man after an exhaustive search for a new CEO identified him as the most qualified candidate.
The embezzlement and racketeering charges were brought as the result of an investigation initiated by Cobb County DA Pat Head. In a lawsuit brought by the EMC’s board to clear the way to re-hire the man, board members accuse dissenting members of the cooperative of instigating the criminal investigation in violation of a 2008 settlement agreement, which was to “forever bar the prosecution, by Cobb EMC, or derivatively on behalf of Cobb EMC, of any duplicative included or related claims.”
Handing down indictment in a courtroom not open to the public violated the defendant’s constitutional rights, public’s right to access, judge says
The white collar crime indictment was read on January 6 in a courtroom in Cobb County’s new court building — a building that had not yet been formally opened to the public. The doors were locked and armed guards were stationed at the doors, which prevented one of the defendant’s lawyers from reaching the courtroom in time to hear the grand jury return the indictment.
That violated the defendant’s constitutional rights, according to Cobb County Superior Court Judge Robert Flournoy. A public reading of the indictment is required by law, explained former Governor Roy Barnes, who leads the defense team, “so that a man with mud on his feet, dirty, smelling, can walk right in.”
The ruling stunned Mark Hackett, a member of the co-op who has been working to oust the EMC’s board.
“We’ve got a situation where the DA thinks we have a case of racketeering and theft against someone running one of the largest electric co-ops in the state,” Hackett told reporters. “And we’ve got this indictment saying he stole from us. And they throw it out on this technicality? It’s outrageous.”
A violation of a defendant’s due process rights is hardly a “technicality,” according to criminal defense attorneys. “It is imminently correct,” Barnes said of the ruling. “We hope the district attorney will take this as an opportunity to step back and consider [the indictment].”
District Attorney Head will apparently not be taking that opportunity. He has already announced that he will appeal the decision.
If the ruling is allowed to stand, argues Head, thousands of other criminal indictments could be dismissed because they were handed down in courtrooms at the county jail, which could likewise be seen as restricting public access.
“This decision has far-reaching ramifications,” Head said. “It needs to be reviewed by the appellate courts.”
According to the Atlanta Journal Constitution, the Cobb County court building is still not officially open to the public. Reporters interested in the proceedings had to be guided via an overhead walkway to the new courtroom.
- Atlanta Journal Constitution, “Cobb DA said EMC ruling could affect thousands of cases,” Margaret Newkirk, March 23, 2011
- Atlanta Journal Constitution, “Judge throws out Cobb EMC indictment, citing courtroom accessibility,” Margaret Newkirk, March 22, 2011