Last spring, Flournoy dismissed the original indictment charging Brown with 31 criminal counts because the indictment was not delivered in open court, as is required. The state’s appeal of that ruling is pending with the state Court of Appeals.
In a ruling filed Thursday, Flournoy rejected three defense motions aimed at dismissing the 34 charges in the second indictment. Brown’s lawyers, led by former Gov. Roy Barnes, had argued that the charges should be thrown out because four of the grand jurors were Cobb EMC members.
But Flournoy wrote that, “Membership in an EMC is frequently no more voluntary than status as a tax payer within a city or county” and noted that the General Assembly has provided that EMC members may serve as trial jurors in a case involving their EMC. Thus, he concludes they may also serve as grand jurors.
The defense also argued that the new charges could not proceed while the state appealed Flournoy’s dismissal of the first indictment against Brown.
Flournoy called that a “novel jurisdictional argument,” which he also rejected.
Finally, the judge also rejected Brown’s efforts to get four additional charges, accusing him of witness intimidation for filing suit against people who may have been witnesses for the prosecution, dismissed. The four charges were new in the second indictment, which was returned in July.
“This court finds that a clearly frivolous civil lawsuit against witnesses in a criminal investigation may give rise to criminal liability,” Flournoy wrote. “At this stage, this Court cannot say with certainty that the State will be unable to prove beyond a reasonable doubt that Defendant was involved in the filing or prosecution of the subject lawsuit, that the lawsuit was clearly frivolous, or that Defendant committed offenses charged in Counts 32-35 of the indictment.”
Barnes said he was disappointed in Flournoy’s decision, “but we have confidence in the system and fairness of the Court.” He has been arguing an unrelated, civil case before Flournoy for several weeks and has not decided whether to appeal this ruling, he said.
The District Attorney’s Office had no comment on the ruling. The prosecution is being led by Assistant District Attorney John Butters.
Cobb EMC leaders also declined to comment on Flournoy’s ruling.
Cobb EMC is continuing to pay for Brown’s criminal defense, though it’s unclear exactly how much that has cost to date. Brown retired as the electric cooperative’s chief executive officer last Feb. 28, though the company’s board then kept him on as a consultant at nearly $60,000 per month until another Cobb judge put a stop to that over the summer.
King & Spalding, a blue-chip Atlanta law firm, has earned $7.4 million in fees representing the EMC, said EMC spokesman Sam Kelly. Much of that has been for work relating to a derivative lawsuit brought against the company by members in 2007.
The firm’s lawyers also advised the company last February in filing a breach-of-contract suit against those 2007 plaintiffs, and others. The February-filed suit was dropped a short time later, but it is the basis for the four additional criminal charges brought against Brown in the second indictment.
Flournoy was appointed to the bench in 2000 by Barnes when he was governor.