Ga. high court to consider plea withdrawal case

ATLANTA — Georgia’s high court will hear arguments today in the case of a DeKalb County man trying to withdraw the guilty plea he entered in his son’s death.


Prosecutors say Gary De­Toma suffocated his 5-year-old son in July 2010 to get back at his wife during a child custody dispute in their bitter divorce proceedings. He was indicted that month, and prosecutors immediately said they would seek the death penalty.

DeToma pleaded guilty in May 2012 to malice murder and was sentenced to life without parole. A month later, he filed a motion to withdraw his plea. The trial court turned him down.

DeToma asserts that he was pressured into pleading guilty by his trial lawyer, who wanted to preserve his record of never having a client sentenced to death, DeToma’s new lawyer, Ger­ard Kleinrock, argued in a court filing. The trial lawyer brought in DeToma’s mother and brother from New York to convince him to plead guilty, the filing says.

Brad Gardner, DeToma’s trial lawyer, disputes Klein­rock’s argument that his record played a role.

“I can only say that the issues raised by Mr. DeToma’s current lawyer are unrelated to my record as a lawyer,” Gardner wrote in an e-mail. “It is factually correct that I have not had a client sentenced to death; however, not all of my clients have had their cases resolved through guilty pleas. Every client and every situation is different.”

Lawyers for the state argued in a court filing that there is no evidence that DeToma’s trial attorneys manipulated him and that he “entered his guilty plea knowingly, voluntarily, intelligently and without coercion.”

The evidence against DeToma was overwhelming and he faced a choice between a potentially painful death penalty trial or entering a plea of guilty and accepting a sentence of life in prison without parole.

“Of course he struggled with the decision,” the State argues. “But ‘changing your mind’ is not a legally valid reason to withdraw an otherwise knowing and voluntarily entered plea.”