ATLANTA - Chatham County prosecutors faced a barrage of questions Monday from members of the Georgia Supreme Court as they tried to convince the state’s top court to stop a suspected child killer from avoiding a trial because the district attorney’s staff dragged things out so long that it violated his right to a speedy trial.
The court won’t hand down its decision for several months, but voters will give their verdict Tuesday because the case is one of the arguments Republican challenger Meg Daly Heap is making to oust Democratic District Attorney Larry Chisolm.
The D.A. wasn’t present during Monday’s 40-minute oral argument. Instead, three from his staff were there to appeal the decision by Chatham County Superior Court Judge Penny Haas Freesemann to dismiss charges against Bobby Lavon Buckner, the man accused of kidnapping and murdering 12-year-old Ashleigh Moore in 2003.
Either way, Buckner won’t walk away free. He’s serving a 20-year sentence for violating his probation on an earlier child molestation charge.
Freesemann cited repeated delays, staff changes, lack of cooperation and lost evidence as part of her consideration, but she also noted the fading memory or death of some witnesses. Under guidelines from the U.S. Supreme Court, a judge must not only consider whether a delay was uncommonly long but also whether it hurts the defendant’s ability to defend himself.
Monday, Assistant District Attorney Diane McLeod, making her first appearance in the case, tried to put things into perspective.
“It’s important to note that a lot of the problems happened prior to the indictment (in 2007),” she said.
It took three tries before prosecutors drafted an indictment they wanted to proceed with. She argues that the judge should only start counting the delay from the last version of the indictment.
Justice David Nahmias said while that might be true of the missing witness tapes, it’s not true of the actual witnesses.
“The other issue is witnesses can’t remember what happened,” he said.
McLeod said courts have long understood that memories fade in every case. To prove that a delay harmed a case, a defendant would have to convince a judge that memories faded after the indictment.
Justice Keith Blackwell asked how a defendant could do that.
“Would the witness have to come in and say ‘On the day he was indicted I very clearly remember that I knew something important (that would help the defense), but now for the life of me I can’t remember what it is’?” he asked.
Judges commonly compare testimony at trial to what witnesses tell police and depositions, McLeod said.
Then Justice Harold Melton asked about prosecutors’ lack of cooperation when the Buckner’s attorneys were trying to discover what evidence the police had.
“It does sound like there was some difficulty getting discovery,” he said.
McLeod blamed it on the police.
The justices had fewer questions for Buckner’s attorney, Newell Hamilton Jr., mostly challenging him about his complaint that the government had lost fingerprints of the body and a hair found from a white person on the victim. Both Buckner and Ashleigh were black.
The justices said the trial’s delay would not prevent Hamilton from telling a jury not to convict Buckner on the basis of missing evidence.
Hamilton addressed the weakest part of his appeal, that he had waited too late to demand a speedy trial.
“We gave the state every opportunity to present us its evidence (before filing the speedy-trial motion),” he said. “It was just never done.”