Judge throws out Cobb EMC indictment, citing courtroom accessibility

A 31-count racketeering and theft indictment against former Cobb County EMC Chief Dwight Brown was thrown out on Tuesday solely because it was handed down in an inaccessible courtroom.

Cobb County Superior Court Judge Robert Flouoy ruled that Brown wasn’t indicted in public as required by law after a grand jury delivered the charges to Judge George Kreeger in his new courtroom -- which was located across the street from Kreeger’s old one and not formally open.

A law associate of former Gov. Roy Baes, who is representing Brown, was late for the indictment because he couldn’t reach the courtroom in time, Flouoy’s ruling said.

That associate, J. Cameron Tribble, was ”effectively excluded from the courtroom when the Grand Jury retued the indictment against the defendant. Because Mr. Tribble was so excluded, the courtroom was not ‘open to the public,’ according to the ruling.

A grand jury indicted Brown on Jan. 6, saying the man had stolen from the co-op he headed for 18 years and conspired to conceal his actions from EMC members. The charges stemmed from the relationship between the non-profit co-op and Cobb Energy, a for-profit headed by Brown. Cobb Energy operated the co-op for a markup of up to 11 percent.

Cobb Energy also paid regular dividends to Brown, money that should have been paid to customers, according to the indictment.

The Atlanta Joual-Constitution first questioned the relationship between the two companies in 2007, leading to a civil lawsuit nominally settled in December 2008. The terms of that settlement are still in court.

Pat Head, Cobb County district attoey, said he will appeal Flouoy’s ruling. His office had worked on the Brown indictment for more than two years before presenting it to a grand jury in January. Head did not address the possibility of seeking another indictment against Brown. The grand jury that delivered the indictment has been dismissed.

In a statement, Baes said he was pleased by the court decision, adding, ”It is imminently correct. We hope the district attoey will take this as an opportunity to step back and consider [the indictment].

Mark Hackett is a customer who has been working to elect new board members for Cobb EMC, which is the electric provider for about 200,000 customers in Atlanta’s northwest suburbs. He said he was ”flabbergasted by the ruling.

”We’ve got a situation where the DA thinks we have a case of racketeering and theft against someone running one of the largest electric co-ops in the state, Hackett said. ”And we’ve got this indictment saying he stole from us. And they throw it out on this technicality? It’s outrageous.

Hackett also questioned whether Flouoy should have ruled on the issue since the judge was appointed by then-Gov. Baes in 2000.

Sheriff’s deputies had escorted news media and others interested in the Brown indictment to Kreeger’s new courtroom, which was accessible at the time only by an overhead walkway over the street from the older building.

Flouoy heard arguments on the ”wrong courtroom defense on March 3. Baes, creative in his approach, said indictments have to be presented in open court ”so that a man with mud on his feet, dirty, smelling, can walk right in.

Flouoy’s ruling focused on Tribble, the Baes Law Group associate, who arrived in the courtroom after the indictment was presented.

The lawyer might have been responsible for his own tardiness. According to testimony, a court administrator told Baes that the new courtroom’s front entrance would be locked and instructed him to send the associate through the old courthouse entrance.

Tribble, however, went to the locked entrance and tried the door first before heading around the coer and up the block to the suggested entrance.