Wednesday, March 10, 2004
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Wednesday, March 10, 2004 |
| Prosecutor tagged for 'misconduct': DUI case kicked by judge after prosecutor's 'inappropriate' contact with crying defendant By JOHN MUNFORD Labeling the official’s action “horrible,” a Fayette judge last month found “prosecutorial misconduct” on the part of State Court Solicitor-General Steve Harris and overturned a drunk driving conviction as a result, ordering a new trial. Harris announced last year he is a candidate for a judgeship slot on the next higher court, Fayette Superior Court. In the state court hearing last month, prosecutor Harris and a Peachtree City woman gave vastly different accounts of a conversation they had at the Fayette County Justice Center several weeks before she was convicted of DUI. State Court Judge Fletcher Sams later granted Marjorie Swart a new trial based on her allegations of prosecutorial misconduct, concluding that Harris acted “inappropriately” by speaking to her without her attorney present. Sams also said after the hearing that he was appalled “that we have someone in this courtroom that is not telling the truth and someone that is lying under oath this morning. I can’t tell all of you how disturbed I am by all of this.” Sams did not indicate specifically who he thought gave perjured testimony, but he upheld the defendant’s motion against Harris, overturned the guilty verdict and ordered a new trial. In the February hearing, Swart testified that when she talked with Harris at the county’s law library in July, the prosecutor offered her a sentence of 48-hour home confinement in lieu of jail time if she pled guilty. Swart’s lawyer was not present at the time, court records show. Harris testified in the same hearing, saying he did not offer any negotiated plea to Swart. He also said he stopped her once she started talking about the case because her attorney wasn’t present. “The only offers of sentencing went strictly to her attorney,” Harris told The Citizen. But Judge Sams pointed out that Harris shouldn’t have talked to Swart at all without her attorney present. “At the very least, if you take Mr. Harris’ testimony as being the truth, it was inappropriate and creates a horrible, in my opinion, creates a presumption of harm,” Sams said at the end of last month’s hearing. Sams said he granted the motion for a new trial “to avoid any appearance of impropriety.” Harris also notified Swart’s attorney, Scott Ballard, who represented Swart during the initial DUI case, about the conversation. Harris and Swart agreed that during the conversation he offered to have his office make any copies she needed and soon after she began to cry. Harris testified that she was not going to leave her alone in the law library in that condition and it was after that when Swart alleges Harris offered the no-jail plea bargain deal to her. Judge Sams said he should have sought an employee of the clerk’s office or a member of the sheriff’s department’s court services staff to assist Swart. “Mr. Harris said he would never leave an upset woman crying in such a situation,” Sams said. “Well, I have a different opinion. I think an upset defendant is the first person any prosecutor should avoid like the plague. Emotionally distraught means more vulnerable.” Ballard also testified during the February hearing. He said he remembered Harris telling him about the law library conversation with Swart that she was afraid of jail time. Harris likely wouldn’t have known that if not for the ill-fated courthouse confab with Swart. Harris said Swart may have mentioned her fear of jail time to him during their conversation in the law library, but he did not attempt to get any information out of her for the case. In her testimony at the February hearing, Swart said the conversation with Harris factored “greatly” in her decision to seek a bench trial before just the judge instead of a jury trial. She recalled Harris telling her of a PowerPoint presentation he uses in DUI cases that he said was effective with juries. Harris also insists he was not trying to sway Swart to avoid a trial by pleading guilty or to refrain from testifying. “I was not trying to force her to plead guilty or avoid testifying,” Harris said. “I regret that she has to be retried but I don’t regret doing what I consider to be the morally correct and Christian thing to do.” Swart did not mention her encounter with Harris at her September trial, when she was convicted of DUI by Sams and sentenced to 48 hours in jail, 12 months probation, a $1,000 fine and 40 hours community service. She was found not guilty of failure to maintain lane. At trial Swart suggested she chose a bench trial “out of respect” for her attorney’s time, the court’s time and the police officer’s time. Ballard also testified that he recommended a bench trial because it would likely lead to a lesser penalty than a jury trial if she was convicted. Swart and Ballard wanted to appeal the case based on pre-trial motions Sams previously denied. If faced with a similar situation in the future, Harris said he would “look at other options, but I’m not going to turn my back on somebody who’s in trouble.” Swart is now represented by Atlanta attorney William C. Head. Originally, she represented herself in the case in Peachtree City Municipal Court, and she was convicted by Judge A. Mitchell Powell. The conviction was later overturned by Fayette Superior Court Judge Paschal A. English, who ruled Powell didn’t scrutinize whether Swart knew the dangers of proceeding without legal representation. After the appeal was successful, the case was bound over to Fayette County State Court. Harris has turned over prosecution of the case to Clayton County Solicitor Keith Martin, who may elect to send one of his assistants to handle the new trial, Harris said. Harris said he has never been sanctioned for prosecutorial conduct before.
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