Memo to NY AG Cuomo: Have Georgia on Your Mind

Special Prosecutor to Handle Charges That Judge Bullied Lawyers and Clerks, Kept Porn on Laptop
The Daily Report by R. Robin McDonald - November 13, 2009

ATLANTA, GA - The Georgia attorney general will appoint a special prosecutor to investigate allegations of criminal conduct by Appalachian Circuit Superior Court Judge Oliver Harris “Harry” Doss Jr. Appalachian Circuit District Attorney Joe W. Hendricks Jr. sent a letter to Attorney General Thurbert E. Baker on Wednesday asking him to appoint a district attorney pro tem to review criminal allegations contained in a list of formal charges the Judicial Qualifications Commission filed against Doss on Monday. Hendricks recused as prosecutor, citing “the appearance of a substantial conflict of interest.” Daryl A. Robinson, counsel to the AG's office, said Thursday that a special prosecutor will be appointed “pretty quickly,” most likely within the week. Doss' attorney, Troutman Sanders senior counsel Norman L. Underwood, declined to comment on the attorney general's decision to appoint a special prosecutor. He said he intended to recommend that Doss retain criminal defense counsel. Underwood said that he and his client are preparing a formal response to the JQC charges, although he said Doss had addressed some of them earlier in private with JQC members. Since the charges were filed Monday, he said, “There have not been any negotiations” with the JQC over the conditions attached to Doss' resignation. The JQC charges against Doss accuse him of violating the state's judicial canons by engaging in lengthy delays, often a year or more, before issuing court orders on motions; abusive behavior toward lawyers and others; and misappropriating state property and funds by giving county laptops to his wife, his son and a former law clerk and unauthorized raises to his personal staff. The JQC charges followed a 10-month investigation of Doss and came three days after Doss submitted his resignation to Gov. Sonny Perdue. In his resignation letter, effective Dec. 5, the judge blasted the JQC for alleged bias and for its lack of confidentiality in handling the inquiry. The JQC earlier had given Doss until Nov. 6 to resign. In a letter to Doss dated Tuesday, Perdue accepted the judge's resignation. Last Saturday, the circuit's other two judges issued an order stripping Doss of his criminal docket, citing tension between the judge and the DA and identifying an incident found in the JQC charges in which Doss had threatened an assistant prosecutor who refused to change a negotiated plea agreement and, according to Hendricks, “acted like a bully.” The judges' order was issued after Doss refused to voluntarily step aside in favor of a senior judge. Since then, Hendricks said, Doss has informed the circuit's Superior Court Chief Judge Brenda W. Weaver that he will voluntarily cancel his pending civil docket and take action only on those civil cases where he has held hearings and motions are still pending. Hendricks said he has asked that an independent prosecutor review the JQC charges alleging criminal behavior because, “A state constitutional commission has found probable cause that he [Doss] has committed acts of theft, physical assault and falsification and theft of documents. I believe that someone needs to make an independent judgment about whether those acts should be prosecuted. I haven't asked that he be prosecuted. I'm just asking that someone independent make that decision who hasn't been so deeply involved.” “In these kind of circumstances,” Hendricks continued, “if I have a finding of probable cause and there is sufficient evidence that someone has misappropriated government property, that requires a prosecutor to make a decision about whether or not that case is prosecuted and, if so, how it is prosecuted.” Hendricks also noted, “I have prosecuted public officials or initiated the prosecutions of public officials when the value of the amount of property taken was less than what was alleged to have been taken in this case.” The commission's findings constitute probable cause to believe Doss committed the alleged criminal acts, Hendricks added.

The JQC charges include the following criminal allegations, according to Hendricks' letter to the state attorney general:

• Doss misappropriated government property, specifically four laptop computers, and he used more than $3,000 in county funds for unauthorized expenditures, including bonuses for his staff and a baby car seat for a county deputy clerk—an alleged violation of Georgia statutes barring theft by taking and theft by conversion by a government officer. Doss admitted to the JQC investigator that he gave his wife, the Fannin County attorney, one laptop for her law practice as compensation for “hours of work done by my spouse and her staff and the use of my spouse's professional equipment.” The JQC charged Doss with providing two other laptops to his son and a former law clerk. Three of the laptops have been located and are in the JQC's custody. The fourth remains missing, but Hendricks' letter states it was reportedly disposed of when it failed to operate properly, although it “was likely still under warranty when it disappeared.” Hendricks told Baker that the GBI had examined the hard drives of the recovered laptops, finding that one contained “a significant amount [of] work for Ms. Doss' private law practice; a second contained “a significant amount of files in the nature of school work;” and a third held “some disturbing pornographic images” on the hard drive.
“Since I don't have access to the commission's investigative files ... I do not know if there has been a determination as to how or who put the pornographic materials on the computer,” Hendricks told the Daily Report.

• Doss engaged in physical altercations of “an insulting and provoking nature” with staff, including pushing or shoving them and, in one instance, throwing documents at the Gilmer County clerk during a court proceeding in alleged violations of the state's simple battery or simple assault statutes.

• Doss solicited a county probation officer to falsify a disposition in a criminal case by asking him to change the written sentence of a defendant to reflect, instead, a conditional dismissal of the case known as pretrial diversion—a violation of the state's criminal statute barring the falsification of a public document.

• Doss took original court files on pending cases from courthouses—a violation of the theft of public documents statute. The chairman of the JQC on Wednesday distanced the commission from Hendricks' request. The JQC has authority to remove a judge from office, but any criminal prosecution is “outside the scope of our regulatory authority,” JQC chairman Benjamin F. Easterlin IV said. “This is something that the local district attorney is undertaking on his own. The JQC has nothing to do with it. We don't have any opinion as to its propriety.” The DA's letter to Baker also set the stage for a possible conflict between a special prosecutor and the JQC by suggesting that “the state will need to obtain access to the commission's files and debrief the commission's investigator.”

Although JQC charges and trials—the latter are rare—are open to the public, the agency's investigative files normally remain confidential. But the JQC's governing rules state that confidentiality “shall not apply to any information which the commission considers to be relevant to any current or future civil or criminal action against a judge.” The rules also state that “upon receipt of a duly issued subpoena or court order by any state or federal court of record, the Commission is authorized to comply ... .” Asked if the commission would turn over its confidential files to a special prosecutor, Easterlin said, “Not voluntarily.” He added, “We would certainly respond appropriately to any subpoena.” “The JQC would follow its rules regarding confidentiality,” Easterlin explained. “To the extent that those rules do not provide for us to disseminate information, we're not going to do it. To the extent they don't prohibit that, we are going to cooperate with any authority.”