Consider this: The Georgia Supreme Court, which hears all murder appeals, reversed 25 percent of its murder cases from 2014 to 2016 compared to 11 percent in 1996.  Some reversed cases, like those involving exonerated AJC Breakdown murderer Justin Chapman and twice-convicted Dunwoody daycare murderer Hemy Neuman, have garnered media attention and community interest.  Other cases in the news today, like the Ross Harris hot baby trial, will face scrutiny on appeal in the months and years to come.

A review of recent murder cases shows how much needs to improve in criminal courtrooms across Georgia.  No common thread connects the mistakes except the opportunity to learn from them and not repeat them.  Only when the judge, prosecutor, and defense attorney do their jobs well does the criminal justice system work.  Only when the criminal justice system works well are its results trusted and accepted by the public.

Why is it so important that we get the trial right the first time?  Murder reversals profoundly impact the lives of defendants and victims’ families, as well as the community’s confidence in the criminal justice system and the Rule of Law.  If a case has to be retried, the families of the victim and the defendant must live through the agony and uncertainty of a second trial despite the first trial’s promise of finality and closure.

Let’s review cases for common themes and lessons from mistakes attributed to prosecutors, judges, and defense attorneys alike.

Sometimes, prosecutors make mistakes.  Respected AJC legal affairs writer Bill Rankin chronicled the Justin Chapman case through his serial podcast Breakdown.  In 2006, a fire started in Chapman’s apartment before spreading to the other apartment in the duplex where elderly victim Alice Jackson died from smoke inhalation.  The prosecutor argued that the defendant, upset with his landlord, had set the fire.  Chapman was charged and convicted of murder and arson, but the Georgia Supreme Court reversed the conviction in part because the prosecutor withheld evidence.  In 2016, state prosecutors decided not to retry Chapman.

What evidence was withheld?  A witness testified at trial that Chapman confessed the crime to him in jail.  He also testified that no deal was ever discussed regarding an exchange of his testimony for better treatment regarding his own pending child molestation case.  However, post-trial attorneys for Chapman found a video conversation between the prosecutor and the jail house snitch, who was seeking just such a deal.  The prosecutor did not turn over this video before the trial.  It took ten years for Chapman to be set free.  He had lost a decade of his life to pay for a crime he did not commit.  Just as tragically, Ms. Jackson’s true killer has never been brought to justice.

What should we learn from Chapman?  A prosecutor should always seek justice rather than an expedient conviction.

Sometimes, prosecutors and judges make mistakes together.  In 2010, Hemy Neuman, the Dunwoody daycare murderer, shot and killed his lover’s husband.  Neuman admitted to the killing, but pled not guilty by reason of insanity.   At his first trial, he was found guilty, but mentally ill.    That jury heard from the forensic psychiatrist who had evaluated Neuman.  However, the defense also reluctantly presented a licensed psychologist, as well as a forensic psychiatrist, who had both previously met with Neuman.    The defense felt compelled to call them as witnesses rather than have the State call them as witnesses after their notes were given to the prosecutor over objection.

The Georgia Supreme Court found that the trial court should have not have allowed the prosecutor to see these records.  Neuman had not waived the doctor patient privilege.  He had not chosen to call the witnesses at trial and the testifying expert who did the forensic evaluation had not relied on their opinions and notes.  The case was sent back to the trial court for a new trial, which recently resulted in a conviction.

What should we learn from Neuman?  Be careful what you ask for because you might just get it.  Prosecutors should not overzealously try to use every piece of evidence available just because the judge may agree, especially if it infringes upon a privileged communication.

Another case shows that the buck stops with the judge, even if the prosecutor, as an advocate, pushes to let the jury hear its side of the case, but not the other side.  A jury convicted Christopher Gilreath of killing his girlfriend’s toddler son while she was at work.  The prosecutor argued that she was a kind, good mother who had left her child under Gilreath’s care.   At the same time, the prosecutor convinced the judge to keep the defendant from presenting evidence that she had previously threatened the children.  The Supreme Court reversed the conviction because the defense was not allowed to present a complete defense at trial and the jury only got to hear one version of the facts.

What should we learn from Gilreath?  A judge takes an oath to administer justice, which means a fair trial for both sides.   As such, they must be allowed to present a complete case to the jury.

Sometimes, defense attorneys make mistakes.  A jury convicted Ronald Fisher of murder for shooting and killing the victim based on the eyewitness testimony of a prosecution witness.  The defense failed to subpoena its own witness who might establish that the prosecution witness was an accomplice to Fisher.  If the prosecution witness was an accomplice,, the judge would instruct the jury to treat him differently from all other witnesses.  The jury would have to find other evidence that supported his testimony.  The defense attorney claimed that his mistake was an “oversight,” but the Georgia Supreme Court found that the jury might have reached a different verdict had the defense witness testified.

What should we learn from Fisher?  Even though the defendant has no burden to prove anything, his attorney’s mistake created such a prejudice that the defendant needed a new trial.

While most reversed cases can be retried, some cannot.  For example, Geary Otis was charged with killing one person and assaulting another.  When the defense argued insanity at the eleventh hour, the prosecutor asked for a reset to prepare.  The judge granted a mistrial on his own.  The Georgia Supreme Court agreed and said that the prosecution was not allowed to retry the case.

What should we learn from Otis?  Judge should let the parties try cases under the rules of evidence and procedure and generally not insert themselves unless authorized.  The consequence can be extreme.

Another case on the horizon addresses a similar issue.  Demario Carman was indicted for murder.  The prosecutor sought the death penalty.  A few days into the trial, the defense attorney got bad family news, but did not ask the judge for help.  Both sides agreed to a continuance, but the Court insisted on a mistrial.  The defense did not request a mistrial because the defense was confident that the trial was going well.  Absent manifest necessity, the defense argued that the trial court should not grant a mistrial over their objection.

No opinion has been published as of this writing.  Should the State be barred from retrying an alleged murderer after the trial court declared a mistrial on its own?  Stay tuned.

In conclusion, trial court judges, prosecutors, and defense attorneys share and must accept responsibility for an increase in murder reversals and can learn much from a review of recent decisions.  To be fair, the focus of this article has been when they get it wrong, not when they get it right.  All three groups get it right most of the time and we should be encouraged by the work they do.  Most importantly, they should learn from their mistakes if they hope not to repeat them.

Bobby Wolf is a Gwinnett County assistant district attorney and formerly a Fulton and Cobb County prosecutor.


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