DA Ballard will appeal to Ga. Supreme Court, perhaps U.S. Supreme Court
Five defendants convicted of serious crimes in Fayette County deserve new trials because the presiding judge should have recused himself due to an extramarital affair he had with their defense attorney, the Georgia Court of Appeals has determined.
Fayette County’s district attorney strongly disagreed with the appeal court’s finding and vowed to appeal the ruling.
The affair, and its potential to adversely affect the outcome of the cases, meant that former Fayette County Superior Court Judge Paschal A. English Jr. violated the Georgia Code of Judicial Conduct by presiding over the four trials, the appeals court ruled in an 18-page opinion published Nov. 8.
The court determined that English’s failure to recuse himself in essence denied the defendants’ Constitutional right to a fair trial.
In an 18-page opinion, the court upheld a ruling that Judge English had a responsibility to recuse himself from the cases based on his relationship with then-public defender attorney Kimberly Cornwell.
The relationship became a matter of public record in mid-2010 when it was revealed that English and Cornwell were discovered participating in a sexual encounter by a Fayette County sheriff’s deputy on Oct. 13, 2008. English resigned in April 2010 and the affair came to light shortly thereafter in part thanks to a probe ordered by his replacement: current Chief Superior Court Judge Christopher Edwards.
The Court of Appeals pointed not just to the sexual encounter witnessed by the sheriff’s deputy, but also stipulated facts that Judge English transferred some of Cornwell’s cases to his courtroom in September 2009 and the judge attended a drug court conference in Reno, Nev., with Cornwell in August 2009.
The Court of Appeals opinion rebuked English for failing to disqualify himself from presiding over the cases, citing that a recusal must occur “in any proceeding in which their impartiality might reasonably be questioned including but not limited to instances where … the judge has a personal bias or prejudice concerning a party or a party’s lawyer.”
The court noted that the general standard set by the Judicial Code is “that the appearance of partiality requires recusal.”
“The record before us supports the trial court’s factual conclusion that Judge English was involved in a close personal relationship with Cornwell during each of the trials at issue, and it is undisputed that Judge English failed to disclose this relationship to the parties before us during the criminal trials at issue,” The Court of Appeals wrote in the opinion.
“… Although we are mindful of the suffering which new trials may cause the victims in some or all of these cases, we are nonetheless compelled to draw the legal conclusion that Judge English’s violations of Canon 3 require new trials for each of these five defendants.”
Fayette County District Attorney Scott Ballard said his office would appeal the case to the Georgia Supreme Court and if such an appeal is not granted or is unsuccessful, he would consider filing an appeal with the U.S. Supreme Court.
If the new trials are upheld by the Supreme Court, it would mean a second shot at a verdict for these five defendants:
• Christopher Deangelo Wakefield and Travion Marquez Willis, co-defendants found guilty of five felony counts including armed robbery and kidnapping stemming from a carjacking incident in Fayetteville. English had sentenced them both to life in prison plus an additional 20 years;
• Calvin Obie Boynton, found guilty of armed robbery, aggravated assault and other charges from a May 2009 bank robbery in Peachtree City. English had sentenced him to life plus 30 years in prison;
• William Jacob Nutt, found guilty of aggravated child molestation and aggravated sexual battery for raping a relative days after he got out of prison. English had sentenced him to life in prison; and
• Rashad Terrez Arnold, found guilty of burglary. English had sentenced him to 10 years in prison.
Prosecutor Ballard said his problem with the new trial ruling is that it favors the defendants without them specifically pointing to how they were treated unfairly during the trial.
“We are thinking about our victims,” Ballard said. “We really don’t believe any of these defendants were harmed by anything that happened to them, and it’s wrong to reward them with a new trial because of what their lawyer did.”
The court’s ruling contradicts Ballard’s previous assertion that a thorough review conducted by his office found no misconduct on the part of Cornwell or then-Judge English.
Ballard’s review, however, did not focus on the standards applied by the Code of Judicial Conduct; rather it analyzed the sentences handed down in all cases in which Cornwell represented a client before Judge English and compared them to other sentences handed down by the judge in previous years.
Ballard noted that all of the defendants were convicted during jury trials, not by mere order of Judge English as would happen in a bench trial.
“We looked really hard to see if there was any indication that her cases got treated differently than anybody else, and we couldn’t find anything, and neither could the person hired by the Public Defender council,” Ballard said. “He didn’t find anything.”
The Court of Appeals ruling upheld a decision by Senior Superior Court Judge Harold G. Benefield, who noted that while English was to blame, so was Cornwell, who likewise failed to notify her clients of the relationship.
“The client is entitled to know, without doubt, that it is his interests which the lawyer is seeking to protect and not those of herself and her lover-judge,” Benefield wrote.
Fayette County Superior Court Judge Fletcher Sams, who later recused himself from hearing the new trial appeals, noted during a court hearing that one of the defendants in question may have received a lighter sentence than would have been expected, pointing to a 10-year prison term given to Rashad Terrez Arnold in a burglary case — despite a a previous conviction for a violent felony: aggravated assault.
“With an aggravated assault and other felonies, I am just kind of surprised that he didn’t get 20 years to serve,” Sams said during the hearing.
Benefield’s order granting the new trials indicated that he was tortured in doing so because the trial transcripts made it clear that “the evidence which was given to the juries was more, far more than sufficient to support verdicts of guilty.”
Benefield also was sensitive to the effect that new trials would have on victims in each of the four cases. “The evidence which was given to the juries was more, farm more than sufficient to support verdicts of guilty,” he said.
