In a 5-2 decision, with Justices Carol Hunstein and Robert Benham dissenting, the state Supreme Court ruled Monday against Dwight Brown, former president and CEO of Cobb County Electric Membership Corporation, in his attempt to get the theft and racketeering charges against him thrown out. Brown had argued due process was violated by former Cobb District Attorney Pat Head because he used grand jurors who were members of the EMC.
Brown claimed this biased the jury against him, but the court’s majority decision, written by Chief Justice Hugh Thompson, upholds two lower courts’ decisions not to throw out the indictment, finding grand jurors don’t have to be impartial and unbiased.
“The District Attorney’s Office is pleased with the court’s ruling,” said Cobb District Attorney Vic Reynolds. “We look forward to having this case placed on a trial calendar and resolved as soon as possible.”
The case will now move to trial before Cobb Superior Court Judge Robert Flournoy, according to Geary. However, no trial or hearing dates have been set yet.
Brown was indicted in 2011 for allegedly running the nonprofit, which provides electricity in Cobb County, as a for-profit company benefiting its executives.
Brown’s attorneys, including former Gov. Roy Barnes, threatened to appeal the case to the U.S. Supreme Court.
“We are greatly disappointed in the Supreme Court of Georgia’s decision in the Dwight Brown case,” Barnes said in a statement. “The Supreme Court basically says an alleged victim of a crime can sit on a grand jury which investigates the matter of which he has financial interest. This offends any basic notion of fairness and fair play and is a violation of due process. We are considering our options, including seeking review of the Supreme Court of the United States for this egregious wrong.”
Barnes also said the ruling sends a signal to businesses in Georgia they can’t rely on “settled corporate law that allows an executive to act according to board approval.”
History of the case
This is the second time the case against Brown has made the state Supreme Court.
Brown was first indicted Jan. 6, 2011, on accusations of violating the Georgia Racketeering Influenced and Corrupt Organizations Act, theft by taking, false statements and conspiracy to defraud political subdivisions of the state.
He was charged with stealing millions of dollars from Cobb EMC and its members, including Cobb County and the Cobb School District, and with making false statements to conceal the thefts. Brown later filed a motion to throw out the indictment, saying it wasn’t given in an open court.
The trial court agreed and dismissed the indictment.
Head, who has since retired and was replaced by Vic Reynolds as district attorney, appealed to the Georgia Court of Appeals, who upheld the trial court’s ruling. On Sept. 9, 2013, the Georgia Supreme Court also upheld the trial court’s ruling and agreed the indictment hadn’t been issued in a place that was open to the public because, when the indictment was read, the front entrance of the courthouse was locked and Cobb Sheriff’s Office deputies wouldn’t allow anyone into the courthouse.
In July 2011, while the first indictment was still pending, the Cobb district attorney’s office received a second indictment against Brown with what were essentially the same charges as the first. But before the second indictment was issued, Brown and his attorneys from Barnes Law Group in Marietta filed a motion to disqualify four of the 20 grand jurors — who were also members of Cobb EMC — because they were victims of the alleged crimes.
The trial court denied the motion. Brown again appealed to the Court of Appeals, which agreed with the trial court’s decision because state law holds a person’s membership in an EMC alone doesn’t make them ineligible to serve as a grand juror in a case involving the EMC.
Brown then appealed to the state Supreme Court a second time.
Justices write opinions
In the opinion released Monday, the high court agreed with the lower courts, and the case is now expected to go to trial, more than three years after the initial indictment.
“In determining whether or not grand jury proceedings are biased against an accused, it is an unquestioned rule of law that members of a grand jury may not be selected in a manner that discriminates against persons of a particular race or religion,” Thompson wrote in his majority opinion. “Basic theory of the functions of the grand jury does not require that grand jurors should be impartial and unbiased.”
The opinion also says a grand jury is different from a trial jury because the Sixth Amendment to the U.S. Constitution states only a jury trial must be impartial. A grand jury doesn’t determine someone’s guilt or innocence, it only determines whether someone should face a trial.
Justice Hunstein disagreed with the majority.
“I firmly believe that the grand jury’s duty to protect individuals against unfounded criminal prosecutions requires grand jurors to be unbiased and impartial, particularly whereas in this case, grand jurors are victims of the alleged crimes of which the accused has been charged,” Hunstein wrote. “I believe that the accused may assert his right and challenge grand juror bias by filing a pretrial motion. Because Brown filed timely pretrial motions and demonstrated grand juror bias in this case, I must respectfully dissent.”
Brown maintains his innocence.