Justice Keith R. Blackwell
Justice Keith Blackwell wrote the opinion for a unanimous court. (John Disney/Daily Report)

The Georgia Supreme Court on Monday rejected a drug defendant’s argument for a new trial, concluding that the defendant waited too long to ask the trial judge to recuse because she had heard an ex parte communication that the defendant could be dangerous.

Anthony Hargis, convicted of various methamphetamine-related crimes, has pointed to an off-the-record conversation the judge had with a lawyer who expressed concerns that Hargis could become violent. Monday’s unanimous decision didn’t say whether the trial judge should have recused. Instead, the Supreme Court said the defendant waived the issue because he didn’t request recusal as soon as he found out about the conversation.

The ex parte conversation at issue in the case concerned a tape recording found by police at Hargis’ house. According to a Court of Appeals ruling and briefs filed in the case, the recordings captured conversations between Hargis’ girlfriend and co-defendant, Karen Taylor, and her lawyer, as well as their negotiations with prosecutors.

The Court of Appeals said that sometime before Hargis’ trial began in September 2009, Taylor’s then-former lawyer, Jeanne Davis, talked to the trial judge, then-Enotah Judicial Circuit Superior Court Chief Judge Lynn Akeley-Alderman, in the judge’s chambers. Neither Hargis nor his lawyer, Jeffrey Cox of Dawsonville, were present. According to Monday’s Supreme Court opinion by Justice Keith Blackwell, Davis later said she couldn’t remember whether the prosecutor was present, but the prosecutor stated unequivocally that she did not attend.

Davis testified at a hearing after the trial that her conversation with the judge was about what might happen if one of the tapes were played in court. “I just remember being concerned … if that were to be played in open court or if Mr. Hargis were to hear it or something like that, there were some personal safety issues that I was concerned about,” Davis said, according to the Court of Appeals.

After the jury convicted Hargis and Taylor of meth-related crimes, Hargis was sentenced to 30 years in prison.

According to Monday’s opinion by Blackwell, Hargis did not know of the ex parte communication before the trial, but it’s unclear when he learned of it. Blackwell noted that Hargis certainly knew about the ex parte communication by June 2011, when he raised the issue in an amended motion for a new trial, and he may have known about it several months earlier.

The motion for a new trial filed on Hargis’ behalf by Dawsonville lawyer Nathanael Horsley argued, among other things, that Akeley-Alderman should have recused after receiving the ex parte communication from Taylor’s then-lawyer. Without disputing any part of Davis’ account of their conversation, Akeley-Alderman denied Hargis’ motion for a new trial in February 2012.

The next month, Akeley-Alderman resigned from the bench, ending a Judicial Qualifications Commission investigation of her regarding an ex parte conversation she had with a judge outside her circuit on an unrelated case.

In 2012, a panel of judges M. Yvette Miller, William Ray II and Elizabeth Branch reversed Hargis’ convictions. Writing for the panel, Branch said that Akeley-Alderman should have recused from presiding over the trial even though Hargis didn’t request it. Branch pointed to Canon 3(B)(7) of the Georgia Code of Judicial Conduct, which says that, except in certain circumstances, “Judges shall not initiate or consider ex parte communications, or other communications made to them outside the presence of the parties concerning a pending or impending proceeding.”

The Supreme Court agreed to review the recusal issue at prosecutors’ request, as well as the Court of Appeals’ decision in Hargis’ favor on a suppression of evidence issue. Monday’s decision reversed the appeals court panel on both points.

Writing for the high court, Blackwell emphasized that Hargis didn’t ask Akeley-Alderman to recuse from hearing his motion for a new trial.

Branch had written that Canon 3(F), which says judges can ask parties to consider waiving a judge’s disqualification under Canon 3(E) except in the case of a judge’s “personal bias or prejudice” toward a party or one of the lawyers, didn’t apply to disqualifications under Canon 3(B)(7), which warns against ex parte communications. But Blackwell said whether an ex parte communication requires a judge to recuse must be assessed under Canon 3(E), the general disqualifications canon. Pursuant to Canon 3(F), wrote Blackwell, disqualification under Canon 3(E) can be waived.

“Even after Hargis learned of the grounds for the potential disqualification of the trial judge,” Blackwell wrote, “he apparently decided to take his chances with the same judge on his motion for new trial. That was his choice to make, but he could not do so and still preserve the disqualification issue for review in the appellate courts. To hold otherwise would be to sanction gamesmanship. … Moreover, the requirement that a motion to recuse be filed promptly is intended to promote judicial economy.”

Blackwell said the court wasn’t deciding whether Akeley-Alderman should have recused, merely that the appeals court shouldn’t have reached that question. Quoting a 1994 decision by the court, he noted that trial judges “‘must scrupulously avoid [improper] ex parte communications whether or not they consider them.’”

The decision sends the case back to the appeals court to consider other arguments by Hargis that it didn’t reach before. According to Chief Assistant District Attorney Cathy Cox-Brakefield, most, but not all, of those arguments were decided adversely to Hargis’ co-defendant in a separate appeal.

Cox-Brakefield said the prosecution was more interested in the court’s decision on the suppression issue than the recusal matter. She explained that the court gave officers latitude to search a vehicle, incident to an arrest of a suspect, based on information that develops after the moment an officer first encounters the suspect.

As for the recusal question, she said, “We did argue that if [the defense] felt there was a problem, they shouldn’t have continued to allow the same judge to hear the case.”

Kyle Wallace, Andrew Tuck and Jonathan Parente of Alston & Bird represented Hargis before the Supreme Court pro bono, based on a request made by the court after it granted the prosecutors’ petition for certiorari and Hargis’ previous appellate counsel withdrew.

Coweta County Superior Court Judge Emory Palmer filled in for Justice David Nahmias, who didn’t participate in the court’s decision. Cox-Brakefield surmised that Nahmias had recused because of peripheral involvement Nahmias’ office had in the matter when he was U.S. attorney for the Northern District of Georgia.

The case is State v. Hargis, No. S13G0465.