Pubdate: Sun, 12 Dec 2004
Source: Ledger-Enquirer (GA)
Copyright: 2004 Ledger-Enquirer
Contact:  http://www.ledger-enquirer.com/mld/enquirer/
Details: http://www.mapinc.org/media/237
Author: Jim Houston, Staff Writer

HODGES' LACK OF RECOMMENDATION NOT UNCOMMON

'Jump-Ball' Cases May Be Handed To Grand Jury Without
Prosecutor's View

The power of a prosecutor standing before a grand jury to present a
criminal case can be awesome, leading some critics to suggest a
district attorney can bend the jury to his will.

Former New York State Chief Judge Sol Wachtler in 1985 suggested a
grand jury could be persuaded to "indict a ham sandwich," if the
prosecutor sets his mind to it.

That explains why so many eyebrows were raised last week when
Dougherty County District Attorney Kenneth Hodges revealed he made no
recommendation favoring indictment to the Muscogee County grand jury
that returned a no bill in the Kenneth Walker case on Nov. 30.

Hodges presented seven witnesses: Five deputies who had firsthand
knowledge of what happened on the Interstate 185 roadside where
then-Deputy David Glisson shot the 39-year-old Walker during a traffic
stop that was part of a drug investigation; Georgia Bureau of
Investigation Agent Chris Hosey, who prepared the state's probe of the
shooting; and a state firearms expert who explained firearms
procedures and the workings of the MP-5 automatic weapon Glisson used
that night.

The special prosecutor -- appointed by Attorney General Thurbert Baker
after Muscogee District Attorney Gray Conger recused himself from the
case -- did not present testimony from other deputies who were on the
scene that night, or from the three other occupants of the SUV in
which Walker was a passenger.

Jurors also watched a videotape of that fateful traffic stop, but they
didn't hear the shouts of the men charging the vehicle with guns
drawn, the exclamations of the men ordered to get out of their car
with hands up and to lay on the cold asphalt, the unexpected gunshots
or what was said afterward. There was no audio on the tape, due to a
continuing problem with the car-mounted video equipment, sheriff's
officers said.

Jurors also heard an impassioned statement from Glisson, who tearfully
apologized and said he accidentally discharged his weapon when he tripped.

They heard Hodges' explanation of the possible charges he felt could
be taken to a trial jury -- felony murder and felony or misdemeanor
involuntary manslaughter -- as well as two that didn't match the
offense because proof of intent would be required for malice murder or
voluntary manslaughter.

But there was no recommendation. No preference for a particular
indictment. No urging of an outcome.

"I felt it was important that they make the decision in this case,"
Hodges said afterward.

Hodges' decision to make no recommendation to the jury was somewhat
unusual, but not exceptional, according to University of Georgia law
Professor Ron Carlson and a group of former Muscogee County
prosecutors.

Carlson said most prosecutors do make recommendations or state a
preference for a particular indictment, but do sometimes leave it to
the jury.

He said only the grand jurors, whose deliberations are conducted in
secret, know whether the lack of a recommendation by Hodges was a
stumbling block to a possible indictment, or had no effect on the outcome.

"The question here is what happened in the grand jury room," he
said.

Former assistant district attorneys interviewed this week gave a
variety of answers when asked if they left grand jurors without making
a recommendation. Some said never, some said rarely and still others
said they did when the case was a "who-do-you-believe" or "jump-ball"
question.

Wanting direction

"No. Not in four years," former prosecutor Frank Martin said when
asked if he ever left a jury without making a recommendation. "There
was always a recommendation of a no bill or a true bill... . The grand
jury did not always go with a recommendation, but they did almost always."

Martin, who was an assistant district attorney in the late 1960s and
mayor from 1991-95, said when he found the charge was improper or a
case should never have been bound to Superior Court, he recommended a
no bill. Otherwise, he presented the evidence and asked for an
indictment on the charge he felt it warranted, he said.

Attorney Mike Reynolds, a prosecutor for nine years who lost a bid to
become district attorney in 1988, said in "run-of-the-mill,
caught-cold cases" a prosecutor's case is very much like indicting a
ham sandwich, because the evidence is overwhelming.

When it came to making a recommendation, Reynolds said it was his
practice to do so -- and jurors wanted it.

Reynolds also said in close cases, or cases that might polarize the
community, he would bring in all the witnesses. In the Walker case,
that would have included the men in the SUV with Walker, he said.

The rare times he made no recommendation, Reynolds said, occurred when
he had a "jump-ball question" and used the grand jury as a "test balloon."

'Let me know'

For Mark Shelnutt, his six years as an assistant district attorney
involved thousands of cases, most presented with a
recommendation.

"It could be as simple as saying, 'I recommend a true bill,' or 'I
recommend a no bill,' " Shelnutt said. "In a couple of cases, I really
just didn't know which way folks might look at it and it was a close
call. I simply presented those and said, 'Y'all just let me know by
your vote.' "

During Mark Casto's six years as assistant district attorney, there
were times he left a jury without stating a preferred outcome.

"If there were questions as to fact or law, I would bring the
witnesses in, provide all the testimony, give explanations as to the
law and answer all their questions then leave it to their decision,"
Casto said.

Leaving it to the jury

Neal Callahan said when he was an assistant district attorney most of
the cases presented were "no brainers" that were accompanied by a
recommendation for a particular indictment. Others were cases that
should never be indicted, and in such instances he asked for a no
bill, he said.

"But there were cases I would want to know how the grand jury felt
about it, and I would present without a recommendation," Callahan said.

Patrick Moore, who gave up his assistant district attorney position to
join an Atlanta law firm, said he sometimes left cases to the jury
with no recommendation, especially when "the evidence was close."

"Sometimes it's simpler to leave it up to the jury," Moore said.
"Sometimes you want the decision made by the people... because it's
too close for one person to make that call."
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