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Judge Keeps Ex-GC Of Glock In Jail, But Recuses
The Cobb County judge who presided over the theft and racketeering trial of Glock Inc.'s former general counsel has blocked his release from prison even though his conviction was reversed and the district attorney has dismissed the charges.
Cobb Superior Court Judge C. LaTain Kell Sr. sent word to counsel for former Glock executive Paul Jannuzzo last week that a contempt order linked to Jannuzzo's 2002 divorce, which Kell issued while a jury deliberated Jannuzzo's fate last year, remains in effect.
That order, finding Jannuzzo in criminal and civil contempt in a 2009 child support spat, directed that Jannuzzo remain in custody until he repays tens of thousands of dollars in back child support, his ex-wife's legal fees and accumulating interest on the outstanding debt.
Kell's contempt order has stymied efforts by Jannuzzo's lawyer, John Da Grosa Smith of Atlanta's Smith Horvath to expedite Jannuzzo's release from state prison after the Georgia Court of Appeals last week reversed Jannuzzo's 2012 conviction on theft and racketeering charges associated with his tenure at Glock. Kell had sentenced Jannuzzo to a seven-year prison term, which he had been serving while his case was on appeal.
Kell has presided over child support and child custody issues stemming from Jannuzzo's divorce since late 2007. He has been the presiding judge in Jannuzzo's criminal case since the lawyer was indicted in 2009.
In an emergency motion filed Monday, Smith said the judge's insistence that Jannuzzo remain incarcerated until he comes up with the necessary cash is a violation of state law, violates precedent established by the state's appellate courts and runs afoul of the state's canon of judicial ethics.
Kell, who received papers dismissing the theft and racketeering case against Jannuzzo from Cobb County District Attorney Vic Reynolds on July 11, signed those papers Monday after Smith notified him that he was filing the emergency motion to secure Jannuzzo's immediate release. Kell then recused from the child support case, citing the state's judicial canons and saying that he was "mindful of the admonition for all jurists to avoid not only any actual impropriety but even the appearance of impropriety in the conduct of judicial proceedings."
The case has been reassigned to Cobb County Superior Court Judge Robert Flournoy, who has scheduled an emergency hearing today. Meanwhile, the attorney representing Jannuzzo's ex-wife has been fighting to keep Jannuzzo—who has been in custody since December 2009—under lock and key until the back child support and his legal fees are paid in full. Robert Wellon said he has done so with the support of a Washington lawyer hired by Glock founder Gaston Glock who provided extensive assistance to the Cobb County district attorney's office in building the criminal case against Jannuzzo before Reynolds was elected.
On Tuesday, Smith told the Daily Report in a written statement: "Mr. Jannuzzo has been incarcerated since December 2009 for a crime that did not happen. While Mr. Jannuzzo was incarcerated, the trial court found him in criminal and civil contempt for failing to pay child support and the petitioner's attorney's fees. Because Mr. Jannuzzo had been incarcerated for nearly two years when he was found in contempt, there was no express finding by the trial court that he had the ability to pay."
Smith suggested that finding Jannuzzo in contempt without determining whether he had the ability to pay violated Jannuzzo's constitutional right to due process.
"Based on the governing legal standards, Mr. Jannuzzo should be immediately released from incarceration and given the opportunity to provide for his family and once again become a productive member of society," Smith said.
Wellon, the lawyer for Jannuzzo's ex-wife, said he believes that if Jannuzzo is released from prison, he will relocate outside the court's jurisdiction and will never repay the money he owes. Wellon said he intended to be at today's hearing to argue the point. "We would like to get paid what's owed," he said. Jannuzzo's ex-wife, he continued, "deserves every dime and more. … This is her one and only opportunity. It's that simple."
Kell said he voluntarily recused Monday because when a criminal conviction is reversed on appeal, "The litigants frequently are concerned that the judge whose decision is reversed ... may have some animosity because of that reversal.
"The reality from my perspective is that is clearly not the case," he continued. "In order to give the individual a sense of fairness, particularly with something as sensitive as issues brought up in this case, my feeling was it was something that would hopefully put the parties' minds at rest, that a new judge could easily hear those facts and make a determination as to what was the appropriate course of action. … Frequently attorneys and clients are reluctant to ask a court to recuse. I just thought it would be the right thing to do."
The flap over Jannuzzo's release is the newest twist in a long-running legal saga that began with Jannuzzo's angry departure from Glock in 2003 after he had threatened the inventor of the Glock pistol with revealing company documents and demanded $4 million. Jannuzzo's current wife, Monika Bereczky, then Glock's human resources director, left the same day. The two were dating but had not yet married.
Another former Glock executive—disbarred Dunwoody lawyer Peter Manown—later would tell Cobb prosecutors that Gaston Glock had apparently been "overly familiar" with Bereczky and that he surmised Jannuzzo "just thought he had enough of this dirty old man."
Seven months after Jannuzzo's resignation from Glock, Manown confessed to Gaston Glock that he had stolen hundreds of thousands of dollars from Glock's U.S. subsidiaries. Manown also implicated Jannuzzo in the scheme. Glock would wait four years, until 2007, before company lawyers contacted Smyrna police to file a criminal complaint.
In 2008, Manown pleaded guilty to one count of theft in return for a probated sentence for his role in siphoning funds for his personal use from Glock's corporate coffers and his agreement to cooperate with Cobb prosecutors against Jannuzzo.
That December, Jannuzzo and Bereczky filed for bankruptcy protection. Jannuzzo then sought to reduce child support payments to his ex-wife that had taken nearly half his gross monthly take-home pay, according to court records.
Attorney Dawn de Klerk, who represented Jannuzzo in the 2009 child support matter, said that Jannuzzo was in bankruptcy, in arrears on his child support, had been found in contempt for his failure to pay, and was then unemployed. De Klerk said that Jannuzzo's ex-wife and her attorney agreed to cut child support in half and fold the arrearage into the ongoing bankruptcy.
Six months later, in June 2009, a Cobb County grand jury indicted Jannuzzo for engaging with Manown in a racketeering scheme to line their pockets with company funds and for the theft of a pistol that the company had loaned to Jannuzzo for four years before he resigned.
Within months, Jannuzzo had jumped bail and fled abroad. In December 2009, he was arrested on a fugitive warrant in the Netherlands, where Bareczky was then living. He remained there in custody until he was extradited to the U.S. in 2011.
Wellon said that before Jannuzzo fled the country, he had already breached the new child support agreement.
"We have had trouble collecting from him since Day One," Wellon said, adding that Jannuzzo's ex-wife "tried to work with" her ex-husband.
"But it didn't work," he continued. Jannuzzo "has been behind the entire time this agreement has been in force."
Wellon said that when Jannuzzo was returned to the U.S. for trial, Wellon sought an order from Kell holding Jannuzzo in contempt for breaching the 2009 agreement, despite at least two lump sum payments of $10,000 to $12,000 each that he had received from Bareczky or Jannuzzo while he was in custody. He said Jannuzzo owes his ex-wife more than $100,000 in back child support. Wellon said Jannuzzo also must pay Wellon's legal fees, which the lawyer said have topped $40,000.
Kell held a hearing on the matter in October 2011 where Jannuzzo defended himself. But the judge didn't immediately issue a finding. After waiting several months, Wellon said he submitted a proposed order to Kell near the end of 2011. Kell signed it in January 2012, more than a month before Jannuzzo went to trial. But he didn't file it until March 2012, while the jury that ultimately convicted Jannuzzo of theft and racketeering was deliberating his fate.
In the order, Kell said that if Jannuzzo were released or freed on bond, he was to be re-arrested and jailed under the order's terms "thereby preventing his release" until he had paid his ex-wife and her attorney in full or further order of the court.
After the trial, Kell sentenced Jannuzzo to a seven-year prison term, but last week the Georgia Court of Appeals reversed. It found that the statute of limitations on both the racketeering and theft charges had expired long before the indictment was handed down. That same day, Vic Reynolds, Cobb's new DA, said the appellate ruling had left the case against Jannuzzo "beyond repair" and that he had decided to dismiss it.
Smith received Reynolds' cooperation in attempting to expedite the paperwork to secure Jannuzzo's release. But when a Cobb prosecutor delivered the dismissal order to Kell on Thursday, the process stalled. Kell waited until Monday to sign it, but only after notifying Smith that the contempt order barred Jannuzzo's release.
In his emergency motion, Smith wrote that Kell's order "did not make any assessment as to Jannuzzo's ability to pay the amounts mandated."
Despite "his utter lack of assets and income," Smith said Jannuzzo has made "two meaningful payments … using funds borrowed from family members during his incarceration."
Smith said that the contempt order, even if it were valid when Kell issued it, "cannot at this point authorize Jannuzzo's continued incarceration. Any penalty for criminal contempt has long since expired. Confining him indefinitely until he pays purge amounts mandated by the court's civil contempt judgment is a violation of his right to due process. The Court cannot hold Jannuzzo until he pays amounts he has absolutely no ability to pay."
Smith said that state law limits the punishment for a person found in contempt for failure to pay child support to a $500 fine and imprisonment not to exceed 20 days. "Imposing penalties in excess of these statutory limits," he said, "is error."
"Moreover, Jannuzzo has long since completed any possible sentence that could be imposed for criminal contempt," Smith's motion said. "The confinement required by the contempt order was self-executing, with the sanction running concurrently with Jannuzzo's criminal sentence (now vacated by the Court of Appeals)."
Smith's motion also said that a court's abuse of its contempt powers violated the state's code of judicial conduct and subjects a judge to potential disciplinary action.
This article originally appeared in the Daily Report.