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November 14, 2010

Cases being dismissed in Georgia due to overcrowded dockets and lack of resources

A helpful reader altered me to this notable article from the Atlanta Journal-Constitution, which is headlined "Fulton cases thrown out because trials long delayed: More Fulton prosecutions may be thrown out on speedy-trial grounds."  Here is how it starts:

Kenya Kemp was stunned when she learned the Georgia Supreme Court had dismissed the case against her brother’s alleged killers.  When she found out a reason why — that Fulton County prosecutors did not investigate the case for nearly four years — she was livid.

“I feel it’s a big injustice, that they really dropped the ball,” Kemp, 29, said last week. “Those two guys, all they can do is walk away scot-free. My brother, he had three beautiful kids.  All they can do is stand over his tombstone.”

In its ruling last Monday, a divided state Supreme Court upheld a trial judge’s ruling dismissing murder charges against the two men accused of gunning down Kenneth Kemp by firing at least five shots in his back on Aug. 7, 2005.  From late that year until July 2009, prosecutors abandoned the case, the court noted.  By the time the district attorney’s office obtained an indictment in August 2009, the apartments where the killing occurred had been condemned.

The ruling is one of a number handed down over the past year in which appellate courts have dismissed Fulton cases on grounds the state waited too long to either indict the case or bring it to trial.  Other challenges seeking to dismiss Fulton prosecutions on speedy-trial grounds are pending.  These cases include defendants accused of murder, child molestation, elderly abuse and armed robbery, according to court records.

“Fulton is particularly prone to this problem because of the overcrowded docket and lack of resources,” said Ashleigh Merchant, a lawyer representing a defendant who prevailed on a speedy-trial motion.  “When there is an overcrowded docket, someone needs to come in and re-evaluate cases to determine which cases have a higher priority.”

November 14, 2010 at 02:15 PM | Permalink

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Comments

Ummm, I can understand the California cases discussed a few days back where people were indicted and then held pending trial (not that pretrial incarceration should really matter to this), but I fail to see how anyone can bring a speedy trial claim based on delay between crime and indictment, no matter what the prosecutor was doing in the meantime. So long as the prosecution is ready to bring a case once charges are brought I fail to see the problem, constituitional or otherwise. Am I missing something here?

Posted by: Soronel Haetir | Nov 14, 2010 4:42:40 PM

The stories told are even a dismay. There are cases who are dismissed due to lack of resources or even the evidences. All I can say is that maybe there are still issues that have to resolved, either the judicial system of the people within the system. Well, there is always two sides of a coin. Thanks a lot for clearing up things to me. This is a good and informative post. More power to you.

Posted by: coffee table furniture | Nov 15, 2010 3:12:07 AM

I did think that pre-indictment delay presented a higher bar than post-indictment. It may be that trial judges are seeing a total breakdown in the system and are sending a message through rulings that they might not have made if the same thing occurred in a single, isolated case within a system that was otherwise functioning fairly.

On another note, the attorney quoted asked "which cases have a higher priority," and I couldn't help but wonder if the identity of the victims might, improperly, be affecting that calculation. The victim's sister is named Kenya, suggesting to me that she and her brother are likely African American or otherwise of African descent. Given the historical under-enforcement of crimes with African-American victims, I'd like to know more here about whether the delays and failures in the system are ubiquitous and evenly distributed (or unevenly distributed, but based on some legitimate, non-invidious grounds), or whether those delays and failures are skewed towards cases with undervalued victims. (Which of course also has an opposite effect, of turning crimes against high-value victims into de facto aggravated offenses.) This is, after all, the state of McClesky v. Kemp.

Posted by: Anon | Nov 15, 2010 11:02:19 AM

The case mentioned in this article refers to a building involved in the case being condemned before the indictment. It sounds like the state is waiting so long to prosecute that evidence is being lost or destroyed before the defense has an opportunity to investigate. That would meet the high bar for speedy trial dismissals.

Posted by: Ala JD | Nov 15, 2010 12:41:46 PM

Ala JD,

Isn't that what statutes of limitation are for and why courts have long accepted that a longer period is warranted for more serious crimes? Pre-indictment dismissal on speedy trial grounds raises a huge number of issues. Should a case actually be dismissed on speedy trial grounds due to nobody spotting a correlation in evidence, even if that evidence were known from the day of the crime?

The more I think about this the more troubled I am by such dismissal based on pre-indictment conduct of the prosecutor. The burden is the prosecutor's to prove that a given defendant committed a particular act. So long as they can bring forward good evidence to do so I don't see grounds for complaint. The speedy trial right is intended to keep people from languishing in custody while the executive decides what to do with them (or deciding to do nothing at all), it is not supposed to prevent the executive from promptly trying a defendant once apprehended.

According to the AJC article this is based on federal constitutional law rather than state. I would think one of these cases would present a good chance of getting a cert grant and if that happened I would be shocked if it were not reversed.

Posted by: Soronel Haetir | Nov 15, 2010 3:02:21 PM

sorry sorel but this was a non-starter. YOU can't accuse someone of murder and then WAIT 4 YEARS to bring an indictment that's just IDIOTIC and maybe crimnal in it's own right.

The state lost the minute this came to light!

"Aug. 7, 2005. From late that year until July 2009, prosecutors abandoned the case, the court noted. By the time the district attorney’s office obtained an indictment in August 2009"

MY GOD even the CRIME SCENE is GONE! plus witnesses are now saying "WE DIDNT' SAY THAT"

Posted by: rodsmith | Nov 16, 2010 1:32:18 AM

the one question this article DOESN'T say is "were they in jail during the last 4 year" If so i think they have grounds to SUE!

Posted by: rodsmith | Nov 16, 2010 1:32:57 AM

sad this is all these other cases they have totaly screwed up!

"During the past year, a number of Fulton County indictments have been dismissed by trial judges and appellate courts on speedy-trial grounds. Among them:

Shawn Lattimore

Lattimore was arrested in August 2004 and charged with the murder of his friend, Bryan Thompson. A Fulton judge found the state negligent for waiting 22 months to obtain the initial indictment against Lattimore. The judge also held prosecutors responsible for waiting another 19 months to obtain another indictment. In June, the Georgia Supreme Court upheld the judge’s speedy-trial ruling, dismissing the case.

Dante Moses

Moses was arrested and indicted in an armed robbery case in December 2004. His case was called for trial in June 2006 but dismissed when prosecutors said they were not ready to proceed. He was re-indicted later that month. In November 2008, his lawyer filed a speedy-trial motion and it was granted. In November 2009, the Georgia Court of Appeals upheld that decision.

Mai Nagbe

Nagbe, a caregiver, was arrested and indicted in May 2007 on charges she bound and gagged an Alzheimer’s patient. Over the next two years, Nagbe’s case was assigned to four Fulton Superior Court judges. During this time, both the Alzheimer patient and her daughter, who had hired Nagbe, died. In March 2009, a trial judge granted Nagbe’s motion to dismiss. Earlier this year, the Georgia Court of Appeals upheld the decision, saying Nagbe could not be held responsible for her case being assigned to four different judges.

Phillip Pickett

In June 2003, Pickett was arrested on charges he tried to molest a 10-year-old girl. He was released on bond two weeks later. Almost three years after that, Fulton prosecutors obtained an indictment against him. In December 2008, his case yet to go to trial, Pickett filed a speedy-trial motion and a judge granted it, dismissing the charges. The DA’s office appeal is now pending before the Georgia Supreme Court."

Posted by: rodsmith | Nov 16, 2010 1:35:05 AM

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