Originally created 04/27/97

Augusta attorneys bypass prosecutors to get bond set directly by judges



Reginald Cummings, 25, was in jail on drug-dealing charges when he got out on bond and, police say, killed two men.

No one opposed his release because no prosecutor knew he was even being considered for bond.

In Mr. Cummings' case, and numerous other criminal cases in the Augusta Judicial Circuit, the prosecutor never got the chance to voice an opinion about bond. That's because two of Mr. Cummings' bonds were set at a private meeting between a judge and attorney - in legal terms, an ex-parte bond hearing.

An investigation by The Augusta Chronicle of 94 cases involving people arrested on violent-crime and serious drug charges during the past four years shows that 27 people represented by the law firm of Fleming, Blanchard, Jackson & Durham benefited from such ex-parte bond hearings. In the remaining cases, attorneys, including the Fleming firm attorneys, went through the normal channels to get bond. No attorney from any other legal firm was granted an ex-parte bond hearing in the study cases.

Defense and prosecuting attorneys in Augusta say they have known for years that certain attorneys can bypass prosecutors and obtain bonds directly from Superior Court judges. The 27 ex-parte cases cited in The Chronicle study is the tip of the iceberg, many area attorneys said.

But no one has challenged the judges or reported the practice to state disciplinary committees because, simply put, they are afraid of the judges, attorneys admitted.

Although John Fleming is the brother of Chief Judge William M. Fleming Jr., who presides over criminal court cases, Judge Fleming did not sign any of the ex-parte bonds included in this investigation.

However, all of the other judges who routinely handle criminal court matters - Franklin Pierce, Bernard Mulherin Sr., Albert M. Pickett and J. Carlisle Overstreet - have signed such bonds. Two of them defended their actions, saying Georgia law allows them to use their discretion in setting bonds.

Requesting bond is part of a defense attorney's job and it's perfectly legal. But private meetings between a judge and an attorney about an issue as crucial as bond is wrong. It's unethical and violates legal requirements, said numerous lawyers, judges and legal ethics professors from other parts of Georgia.

Fleming firm attorneys denied any improper conduct, but a written statement from Mr. Fleming - the firm's senior partner - confirmed that private hearings have occurred.

"I always inform the district attorney's office on each and every bond, sometimes before it is signed and sometimes immediately after it is signed," Mr. Fleming wrote. "If the district attorney's office had any objection to the bond they simply would only have to request a hearing that the bond be rescinded."

Augusta Judicial Circuit District Attorney Danny Craig declined to respond to Mr. Fleming's contention.

However, district attorneys working in other parts of Georgia expressed surprise that an attorney would meet privately with a judge to discuss bond, let alone that a judge would grant bond in private meetings.

After several seconds of stunned silence, Gwinnett Judicial Circuit District Attorney Danny Porter said, "I've never heard of anything like that. It's a violation of the Code of Judicial Conduct ... It's unethical for an attorney to seek ex-parte communication with a judge."

Dougherty Circuit Chief Judge Loring A. Gray Jr. said bond would never be set in his circuit without a prosecutor's consent or presence at a hearing.

"We don't just allow a defense counsel to walk in ... That just wouldn't happen," Judge Gray said.

Toombs Judicial Circuit District Attorney Dennis Sanders said that in his rural area, "The judges want us there because we have information that they need. The judges represent everybody, they have to be objective. If you only have one side, you don't hear all the facts and circumstances. The state has a side, too."

But Fleming firm attorney Richard Ingram said going directly to a judge is how things work in the real world.

"It's up to the judge whether to sign an ex-parte bond. Sometimes the DA doesn't like it," but Mr. Ingram said he always tells the judge everything he knows about the person who wants out of jail. "We don't just go in there and throw it on their desk and they sign it."

Judge Pickett said the bail bond law does not prohibit a judge from setting bond on his own terms before a formal bond hearing is held. However, "It is my policy to communicate with the district attorney's office prior to setting bail bonds. I recall no incidents in which I have not."

Georgia law states: "... The court shall notify the district attorney and set a date for a hearing" when a petition for bond has been made.

Judge Pickett, who granted only one ex-parte hearing in The Chronicle's study, said he is positive that judges have contacted the prosecutor's office but that the calls weren't recorded in the district attorney's records.

Mr. Craig said his office policy requires all prosecutors to note in files when they consent to a bond after speaking with a defense attorney or judge. Mr. Craig expressed confidence in his office's record-keeping, but after speaking to Judge Pickett about the issue, Mr. Craig acknowledged it's possible the policy isn't always followed: "My office isn't infallible."

Everyone is entitled to ask for bond, even people accused of murder. But the prosecutor is supposed to have a chance to speak before the decision is made. When Judge Overstreet reduced murder suspect Danny Williams' $100,000 bond to $50,000 at Fleming firm attorney Danny Durham's request, the assistant district attorney on the case said he didn't even know until after the fact.

Most of the ex-parte hearings involve drug cases, such as Ronnie Lee Boozer II, now serving a lengthy federal prison sentence on drug charges. He was granted an ex-parte bond in July 1994 and again the following month when arrested on additional drug charges, according to prosecutor's records.

At least one who benefited from an ex-parte bond skipped out on it, not returning for trial. Willie Walter Elam, 42, represented by Mr. Fleming, was charged with cocaine trafficking when police say he had more than an ounce of cocaine. Judge Mulherin set a $35,000 ex-parte bond on Oct. 19, 1993, according to prosecutor's records. When Mr. Elam didn't show up for court May 1, 1995, a bench warrant was issued and he was arrested and jailed.

Judge Pickett reinstated Mr. Elam's bond the next month. But on March 17, another bench warrant was issued when Mr. Elam failed to appear for court again. Mr. Elam already had a drug conviction in DeKalb County, and an arrest warrant for him has been pending there since last June, when he was charged with being a convicted felon with a firearm, according to the Department of Corrections.

In ex-parte bond cases, Mr. Craig said, his office receives notice after the judges already have signed the orders.

"Whenever the DA's office is notified of bond hearings, we attend." But they can't attend hearings they don't know about, he said.

Mr. Craig admits he has never said anything to any of the judges who have signed ex-parte bonds or talked to the chief judge, Judge Fleming, about the matter.

"I'm sure the judges are well aware of the law," was all Mr. Craig would say.

Michael Eubanks, who preceded Mr. Craig as district attorney, said that he personally didn't prosecute a case in which an ex-parte bond was granted, but said assistants complained to him about such bonds.

"I think that's always been an issue, a problem," Mr. Eubanks said. But he never said anything to the judges about the practice, either.

Barbara Smith, selected as the 1996 Georgia Assistant District Attorney of the Year before leaving the Augusta Judicial Circuit District Attorney's office, said she isn't surprised no one has complained to any judge about ex-parte bonds. Ms. Smith was the only attorney contacted who was willing to speak publicly on the issue.

"I can guarantee anyone with any brains isn't going to challenge the judges," Ms. Smith said. Superior Court judges hold all the power in an attorney's professional life, and an attorney isn't going to risk an angry judge's retaliation against his clients, she said.

"I know for a fact it happened - I noticed it quite a bit in drug cases ... Everyone who's worked for the DA knows certain firms can get ex-parte bonds. The judges are very aware of what they're doing," Ms. Smith said.

"That's not fair to the public - the state has been cheated," Ms. Smith said. Without a prosecutor's being present, the judge probably won't hear of a person's prior record or incriminating details of the crime because the defense lawyer isn't going to bring it up, she said.

"The judge is left in the position he just has to trust the defense attorney," Ms. Smith said.

Law professors say that's not how the U.S. judicial system is supposed to work. It's a historic principle in an adversary system that both sides must be heard to maintain basic fairness.

Among the Augusta judges, only Judge Pierce and Judge Pickett agreed to speak on the issue. Telephone and face-to-face appeals to the other judges were rejected throughout the week of April 7. Written requests for interviews were sent by registered mail last week.

Judge Pierce said everyone being held in jail is entitled to ask for bond.

"I've had bond hearings and not had bond hearings," he said. "The Superior Court judges can fix the bonds the way they want to. That's part of the job."

A defense lawyer who goes to the judge seeking bond is going to tell the judge of any prior record, and that is taken into account, Judge Pierce said.

It is a long-established principle in the U.S. legal system that judges should not conduct one-sided hearings, said Walter Ray Phillips, who teaches ethics at the University of Georgia School of Law.

Ethics Professor Ray Patterson, a former dean of Emory Law School who now teaches at University of Georgia School of Law, agrees. Rules prohibiting ex-parte communication and actions prevent judges and lawyers from abusing their power, Professor Patterson said.

It's not a minor technicality; it's unethical, he said.

"It's very important to maintain the appearance of justice - it's the key to public confidence in the system," Professor Patterson said. "The procedures need to be followed to protect the integrity of the system."

The following are some examples in which ex-parte bonds wereset.Some ex-parte cases have involved violent crimes:

  • Danny Williams, 30, sentenced April 16 to life plus five years for murder, was represented by Danny Durham, who followed the proper procedure and requested a bond hearing. Last May 14, Judge Carlisle Overstreet set a $100,000 bond after the hearing, but 12 days later, Judge Overstreet reduced that bond to $50,000 without further input from the prosecutor, who said he learned of the reduction after the fact.
  • Twice while on bond pending trial, Mr. Williams tested positive for drug use but Mr. Durham was able to convince Judge Overstreet that Mr. Williams should remain free on bond.

  • Ronald Steven Lee of Augusta was charged with murder Sept. 12, 1993, while under indictment for an aggravated assault charge. At a bond hearing, Judge Albert Pickett initially denied bond but after hearing from attorneys again Nov. 5, he set a $100,000 bond. On Nov. 23, 1993, he dropped that to $75,000. According to the documents and district attorney's files, no prosecutor participated in the Nov. 23 decision, but Judge Pickett said he remembers talking with an assistant prosecutor who didn't object, saying that since the judge had already set a $100,000 bond, changing the amount was up to the judge. At the time, Mr. Lee was represented by Maureen Floyd of the Fleming firm. Mr. Lee, later represented by attorney David Watkins, was acquitted of murder charges, and the prosecutor dropped the aggravated assault charge.

  • Marquette L. Luke was denied bond at a May 19, 1995, hearing conducted by Judge Franklin Pierce. Mr. Luke was charged with aggravated assault in the shooting of a student at a Richmond County school. At the time, he was out of jail on a $25,000 bond in connection with a cocaine trafficking charge. Although bond already had been denied, on June 16, 1995, an ex-parte bond of $7,500 was set after Mr. Luke had changed lawyers and hired Richard Ingram of the Fleming firm. The only record of the bond is in the Richmond County Jail computer. Mr. Luke, who is now serving a 30-year prison sentence, said last week that he didn't know what Mr. Ingram did to get him bond, only that within two or three days of hiring him, Mr. Luke was out of jail.
  • Most ex-parte bonds involve people charged with drug offenses:

  • Reginald Cummings, 24, was represented by two attorneys when arrested on drug charges in 1991 and 1993. Both attorneys went through the proper procedures to obtain bond. But twice in 1995, when he was again arrested on drug charges, Judge Bernard Mulherin signed ex-parte bonds of $15,000 and $12,500. Mr. Cummings is now under indictment in connection with two 1996 homicides. He is represented by Mr. Ingram.

  • Marquette D. DeShiells of Augusta was already on a $5,000 bond set May 11, 1995, when he was arrested on additional drug charges. On the same day that Judge Pickett set a $5,000 bond at a proper bond hearing, Judge Pierce signed an $7,500 ex-parte bond for attorney Mr. Ingram.

  • After Francisco Antonio Berry, Ronnie Lee Boozer II and John Thomas Barnes Jr. were charged with trafficking cocaine - possession of more than an ounce - on July 1, 1994, Mr. Barnes had to wait for a July 8 bond hearing. But Mr. Berry and Mr. Boozer were granted $50,000 ex-parte bonds that July 6 by Judge Pierce. The next month, Judge Mulherin signed a $15,000 ex-parte bond for Mr. Boozer after he was arrested on more drug charges. Mr. Berry and Mr. Boozer were represented by John Fleming. Mr. Boozer is now serving a lengthy federal prison sentence for drug convictions.

  • Doris Williamson is now serving a 10-year prison sentence for several drug convictions. On May 28, 1993, however, she was granted a $5,000 ex-parte bond by Judge Pierce. Five months later, Judge Mulherin signed a $6,500 ex-parte bond for her. And Jan. 25, 1994, Judge Pierce signed another ex-parte bond of $5,000 for Ms. Williamson, who was represented by Mr. Ingram.

  • Gerard Celestin Jr., 28, was charged with trafficking cocaine. He was denied bond at hearing last May 2. However, with Mr. Fleming as his attorney, Judge Overstreet signed a $100,000 bond May 7 and reduced bond to $60,000 on May 15. The district attorney's records indicate no prosecutor participated in the May 7 and May 15 bond decisions or had notice until after the fact.

  • Willie Walter Elam, 42, represented by Mr. Fleming, was charged with cocaine trafficking when Judge Mulherin set a $35,000 ex-parte bond Oct. 19, 1993. When Mr. Elam didn't show up for court May 1, 1995, a bench warrant was issued. But Judge Pickett reinstated bond the following month. Before his arrest on trafficking charges, Mr. Elam had already pleaded guilty to a drug charge in DeKalb County and received a probated sentence. A warrant for his arrest in DeKalb County has been pending since last June, when he was arrested with a gun - illegal for a convicted felon. In Augusta on March 17, another bench warrant was issue when Mr. Elam again failed to appeal for court.
  • Ex-parte bonds explained

    When people are charged with the most serious crimes in Georgia only a Superior Court judge may set bond. The law says that when the defense petitions the court for bond, the court is to set a hearing date and notify the district attorney.

    In Augusta and in other circuits, defense and prosecuting attorneys often agree to a bond and then simply ask a judge to sign off on it. In Augusta, however, some attorneys bypass the hearing and possible influence of the district attorney by meeting privately with a judge to request bond. A bond granted without the prosecutor's knowledge or consent is an ex-parte bond.

    The most serious crimes are: murder, rape, aggravated sodomy, armed robbery, aircraft and motor vehicle hijacking, aggravated child molestation, aggravated sexual battery, aggravated stalking, trafficking in cocaine or marijuana, and manufacturing, distributing, delivering, dispensing, administering or selling Schedule I and Schedule II drugs, including cocaine. But, possession of cocaine and marijuana for resale was removed from this list last summer.

    How this story was researched

    To obtain the information for this story, The Augusta Chronicle began with a few criminal cases defended by members of the Fleming firm, in which questions were raised as to how the defendants got out of jail pending trial. Then Staff Writer Sandy Hodson researched bond-related documents of other people charged with the same offenses during the same periods, regardless of who the defense attorney was. Also, records of all bonds filed during the past seven months at the Superior Court clerk's office were reviewed.

    After Superior Court clerk records were reviewed, Freedom of Information requests were sent to the district attorney's office seeking bond documents about suspected ex-parte cases. The study of cases grew to include people charged with violent and the most serious drug offenses during 1993, 1994, 1995, 1996 and 1997.

    Interviews, both on and off the record, were conducted with local attorneys, judges, court personnel, criminal defendants and victims, besides judges and prosecutors in the Northern, Middle and Southern judicial circuits of Georgia.