The
Petitioner was denied a speedy trial, guaranteed him by the Sixth and
Fourteenth Amendments to the United States Constitution and similar guarantees contained
in the Constitution of the State of Georgia.
On
the night of April 23-24, 1993, in the early morning hours, the Petitioner, a
police officer for the County, was arrested by officers of the Gwinnett County
Police Department for the murder of Emogene Thompson. He was not brought to
trial until August 4, 1995, with trial before a jury beginning August 22, 1995.
During this period, Petitioner was continuously incarcerated, a period of
almost two and one-half years. Chapel holds that this inordinate delay was
caused by actions taken in bad faith by introducing a tangential issue by the
District Attorney of Gwinnett County for the sole purpose of disrupting his
defense and creating more time for the Prosecution to comb the jails and prisons
of Georgia and to otherwise attempt to discover more evidence that would
strengthen an ever-faltering case against him.
On
the day of arrest, Chapel’s family retained the services of Walt Britt, a
well-known Gwinnett County attorney. For the next five and one-half months,
Britt represented Chapel at issues at court and continued to build Chapel’s
defense. At that point, the Prosecution began to challenge Britt’s right to
represent Chapel based on an issue that he, Britt, sometimes and on a part time
basis represented Gwinnett County in routine civil matters. The issue was taken
before Judge Fred A. Bishop, Jr., the eventual trial judge, and Judge Bishop
ruled that the conflict of interest did exist. The State then filed a motion to
disqualify Britt as Chapel’s defense counsel. The motion was granted, and Britt
then filed an application in the Supreme Court of Georgia for interlocutory
review. In September 1994, the Supreme Court of Georgia ruled against Britt,
and he was removed as Chapel’s counsel. New counsel was appointed for Chapel,
and they began to build his defense, going to trial nine months later.
The
Petitioner contends that his rights to a speedy trial under the Sixth and
Fourteenth Amendments and applicable provisions of the Constitution of the
State of Georgia were violated by these actions, and that he should immediately
be freed from imprisonment and the Respondent be barred from bringing any
further action against him in this matter.
The
Supreme Court of Georgia, in confirming the trial court, cites Davis v. State, 261
Ga. 221 (403) S.E.2d 800) (1991) and points out that an indigent defendant
has no right to compel the trial court to appoint an attorney of his own
choosing. With due respect to the Court, this was not an issue in this case.
Judge Michael C. Clark had already appointed Walt Britt, an Gwinnett County
attorney. Chapel’s right to counsel of his choice was no longer an issue. The
issue was conflict of interest.
The
issue in this case was that Britt, in his prior and ongoing representation of
Gwinnett County, possessed knowledge of County personnel and potential State
witnesses that would unduly advantage Chapel. To wit: “Britt’s use of the
knowledge and information in his possession regarding potential State witnesses
in Chapel’s criminal prosecution to discredit those witnesses would be contrary
to the interests of the State and, therefore, the County, thus creating a
conflict between the interest of Chapel and the interests of the County.”
There
are a number of problems with this argument:
First, no such bar or set of obstacles exist in the State’s use of
information about Chapel or his potential defense witnesses, thus the balance
of adversarial advantage would be all to the State, and the principle of equity
corrupted; and, second, none of the information in Britt’s possession would
have been unavailable to a competent attorney through discovery.
The
Court goes on to counter this last argument pointing out that “Indeed, even if
some files or other documentary information were available [through discovery],
that availability would not bring an attorney with no previous connection with
the County up to par with Britt, who, by virtue of his representation of the
County would have gained a special insight and understanding of the County and
County personnel not necessarily found in documents and not susceptible to
discovery.”
What
information would Walt Britt be in possession of that would not be available
through documentary and depositional discovery? Unless Britt were in possession
of photos or other such compromising documents showing Gwinnett County
personnel in flagrante
delicto, what information would not have been available to competent
counsel in the course of discovery. Certainly the learning curve would be
steeper, but we live in an open society, and all such information would have
been available to competent counsel.
We live in an open society. Gwinnett County, or
for that matter any government, at least in the United States, is not a “tong”
or other form of secret society. It should not require secrecy in order to
fulfill its functions. This is the hallmark of a totalitarian regime.
There
is also a Fifth Amendment constitutional issue regarding the rights of
attorneys involved in this case. Is Britt, or any other attorney for that
matter who represents or has represented any government entity, barred from
trying cases, criminal or civil, which involve, even tangentially as does this
case, issues in which that entity has any interest? If such would be the case,
it would be a true disaster for the legal profession. No federal official,
including congressmen and presidents, would be able to represent clients in Federal
courts, and since, as the Supreme Court States in this case, States, Counties
and other localities are subdivisions of the Federal government, attorneys
having or having had any connection at any level of government would be subject
to conflict of interest questions and may be barred from practicing their
profession.
There
is only one rational method for dealing with such conflict of interest problem,
and that is discussed by the Court in citing Crawford W. Long Mem. Hosp. V.
Yerby, 258 Ga. 720 (373 S.E.2d 749) (1988) where the Court held
“that this court held that representation of a client against a former client
in an action involving the same subject matter[1]
as did the representation of the former client “creates an impermissible
appearance of impropriety . . . [and is] prohibited by the Canons of Ethics.”
That the Court held that this applied to Britt seems to be reaching.
One
more issue of conflict of interest with this case is the possibility of the
Defendant raising a conflict of interest issue as ineffective assistance of
counsel after trial; however ample precedent exists to preclude the defendant
from raising this issue where that defendant does not raise the issue before or
during trial[2].
Finally, as is discussed below, if
Britt had a valid and overriding conflict of interest on September 23, 1993
when he was appointed counsel for indigent defendant for Chapel, that same
conflict of interest existed on April 16, 1993, at the time he first was
retained by the Chapel family.
The
four factors set forth in Barker v. Wingo, 407
U.S. 514 (1972), in determining whether there has been a violation of Sixth
Amendment requirements for a speedy trial are: (1) length of delay, (2) the
reason for the delay, (3) the defendant’s assertion of his right, and (4)
prejudice to the defendant. These factors as they relate to the Petitioner’s
claim are as follows:
In
this case, the delay caused by the State’s tactics was about Twenty-eight and
one-half months or almost two and one-half years from arrest to trial. This
delay has to be considered inordinate, especially since Petitioner’s defense
was destroyed by the actions of the State, lay dormant while the issue was
appealed and then had to be completely rebuilt by the new defense team.
Attorney
Walt Britt was allowed to represent Chapel by the District Attorney of Gwinnett
County in the full knowledge that this conflict of interest existed, reserving
his attack upon the issue until such time as an overt act by Britt would
strengthen his hand. Walt Britt is a well known attorney in Gwinnett County and
not only did part time work for Gwinnett County but was City Attorney for
several smaller municipalities, the city of Buford among them. Indeed, it was
his reputation within the County that prompted Chapel and his family to seek
his assistance. When the Gwinnett County Police Department dismissed Chapel
from that force and discontinued all his pay and allowances, Britt filed an
appeal of this action with the County. It was then when the District Attorney
struck and filed his action.
If
this conflict of interest existed on September 23, 1993, it existed as well on
the day of Chapel’s arrest and Britt’s retention as counsel by Chapel and his
family. The State will undoubtedly respond that it was not until Britt acted in
his appeal to the County that the conflict of interest came into existence, but
all of the elements of conflict of interest existed during this entire period.
The State and the County knew that Chapel’s resources and those of his family
were limited, and that these interests would eventually have to come into
conflict. If in fact there was a potential or actual conflict of interest, the
State and the County were well aware of it, and it became incumbent upon them
to immediately challenge Britt. That they did not constituted acceptance.
The State will also undoubtedly
claim that Chapel acquiesced to the delay by not firing his attorney at this
point and finding a new defense team, and that this would constitute waiver of
his right to a speedy trial. That this is not reasonable is apparent on its
face. Chapel had been working with Walt Britt for almost six months and was
well aware of the difficulties of starting over with a new team. Besides both
he and Britt felt that the objection was dilatory, spurious, even trivial in
the face of the charges against him, and both had every expectation that the
matter would be cleared up in short order, certainly in a shorter time than it
would take to start over with new attorneys. In any event, the delay caused by
the Supreme Court appeal process stemmed from the actions of the Gwinnett
County District Attorney and the County, and thus was not of defendant’s
making.
In
Schlei, United v.
Schlei, 122 F.3d 944 (11th Cir. 1997), citing United States v. Loud
Hawk, 474 U.S. 302 (1986), it was held “Government actions which are
tangential, frivolous, dilatory, or taken in bad faith weigh heavily in favor
of a finding that a speedy trial violation occurred.” The State, in this case, acted disingenuously in challenging
Attorney Britt’s right to defend Chapel for its own selfish reasons. The State
knew that its case against Chapel was weak and that any delays it could cause
would give them time to comb Georgia’s jails and prisons for inmates willing to
trade for their freedom and to otherwise seek new witnesses that could strength
its case. This proved true when the State found a witness in early 1995 who was
willing to testify that he saw Chapel’s wife, Eren, in possession of a large
amount of money, and when a GBI analyst was persuaded to testify that
additional spots on Chapel’s raincoat after a serologist’s examination and
testing were blood spatter a few days before trial. Another consequence of the
delay was that the real killer or killers were given time to cover their tracks
and alter evidence. For example, another police officer on duty that night at
the time denied that he owned the type of gun used to kill the victim. Just
before trial, when he learned that the District Attorney was checking gun stores,
he admitted that he did own such a weapon at the time of the murder and brought
it in for testing.
This third factor in determining
whether there has been a deprivation of this right is the length to which Chapel
demanded a speedy trial or waived that right. There is no question that some
defendants seek to delay proceedings against them in hopes witnesses against
them will die or disappear or some other advantage. This is clearly not the
case with Chapel. During his interrogation, Chapel knew and spoke often to his
interrogators that there were alibi witnesses that could account for virtually
all of his time during the period the State would contend he murdered the
victim. During the interrogation, Chapel virtually begged his interrogators to
interview these witnesses so that the matter would be cleared up and he could
be released.
[Chapel, Interrogation, Page 96]
Off. Chapel: I can’t believe
Reddy’s Statement [intelligible] [Reddy’s Statement that Chapel was not with
him (Reddy) at the firehouse was later that night found to be a lie]. Please
check with the firemen tomorrow, Jack.
Inv. Burnette: Mike, you can
take that to the bank.
And later:
[Chapel, Interrogation,
Page 133]
Off. Chapel: I guess I don’t
work here no more, so –
Off. Chapel: If your
investigation continues, and I hope it does –
Lt. Latty: Well it certainly
will. We’ll talk to all those people. We’ll get those firemen. I think they’re
due in today. We’ll talk to – we’ll locate as many of those people as we can,
you know, at the gym, and Wright – is it Blan?
Off. Chapel: Wright Blan,
Blan Wright. I can’t remember which one it is. Either way.
Lt. Latty: well, we’ll check
– we’ll talk with him. We’ll be talking with everybody in the world we can.
In the end, the police never
interviewed any of Chapel’s witnesses. The firemen involved all gave voluntary
Statements to their Captain confirming that Chapel was at the firehouse during
the entire period that the police and prosecution claim that the victim was
murdered. The witnesses at Chapel’s gym where Chapel stopped to pick up the
day’s receipts, also were not interviewed at the time, and only one of those
witnesses, Van Parker, was ever interviewed by the police and then only a week
before he, Parker, testified at trial.
The
question then is did Chapel make a demand for a speedy trial and when did he do
it? The answer is that Chapel did make a demand for a speedy trial and at the
earliest possible opportunity, just after it was made clear to him that he was
under arrest. The demand was made to his interrogators, captured on videotape,
and that demand was made to the prosecutors who reviewed that tape the next
day.
[Chapel, Interrogation, Page 73]
Lt. Latty: -- There’s only
one conclusion. You yourself –
Off Chapel: Uh-huh.
Lt. Latty: You know what the
conclusion is. What’s going to happen to you now? [Chapel was under arrest.]
Off. Chapel: They’re going
to charge me with murder and armed robbery, and I’m going to sit over there on
the big hill with the rest of the dirtbags I’ve spent a lifetime putting in
there.
Off. Chapel: Till we
go to court and I can get this cleared up, and my life will be ruined forever.
This clear expression of his wishes
after he knew for sure he has under arrest constituted Chapel’s demand for a
speedy trial. Not only did Chapel demand a speedy trial with this Statement, he
cited grounds for that demand in excess of those listed in Barker in stating,
implicitly, that his well being, even his life would be in danger because of
his career as a police officer if he were sent to jail. Admittedly, Chapel did
not stand in open court, with hands outstretched awaiting the nails, and make a
dramatic demand that would play well in the movies. That would be good theater
but not necessarily good law. Without the reasons for the demand, the demand
lacks a context in which to judge it. The demand could in fact be a confession
of guilt and a reliance on technical factors. With Chapel, the demand is framed
within the context of his reasons and, therefore, should be given more credence
than an empty, more formal demand.
In State v. Hight,156 Ga. App. 246
(1980), 274 S.E. 2d 638, citing Dillingham, (Dillingham v. United
States, 423 U.S. 64, 65 (96 SC 303, 46 L.Ed. 2d 205)), and Marion, (United States v. Marion,
404 U.S. 307, 321 (93 SC 455, 30 L.Ed.2d 468)), it was held that a suspect
becomes an “accused” and the right to a speedy trial under the Sixth Amendment
begins running at the time of arrest. Thus the speedy trial clock for Chapel
should have been started at this point in his interrogation.
The last factor in the Barker analysis is prejudice to the
defense caused by the delay. There is no question in this case that the delays
caused fatal damage to the cause of the defense. At trial, witness after
witness complained that their memories were badly inhibited by the two and
one-half year delay before Chapel could get his case in front of a jury. These
inordinately long delays and their effect upon the memories of the witnesses
allowed the District Attorney to manipulate their testimony as is shown in
other grounds of this petition below[3].