Judge Nelly Withers
Judge Nelly Withers of DeKalb County Recorders Court says she’s trying to prevent “gamesmanship” by some attorneys hoping to drag out a case until it’s dismissed. (Johnny Crawford/AJC)

Defense attorneys in DeKalb County’s traffic court do not like a judge’s order requiring a notarized affidavit from their clients waiving or asserting a request for a jury trial if their clients aren’t present for proceedings.

“My clients rarely go to court with me because they are out of state,” said Sam McRae. He said the order was meant to hinder defendants from moving their cases from DeKalb Recorders Court, where traffic cases are heard by a judge only, to DeKalb State Court, where juries decide the cases.

Traffic court lawyers acknowledged they are pushing cases to state court to avoid increasingly strict sentences being handed out in recorders court, such as jail time for a speeding ticket.

A few years ago, the DeKalb district attorney replaced the DeKalb solicitor in handling traffic court cases, and the DA’s prosecutors demand harsher sentences, the traffic lawyers said.

“The reason this came about is for the fear that you can get much harsher sentences depending on the luck of the draw of the judge and the prosecutor. My client could go to jail for going 90 in a 55 mph zone,” said Michael Maloof Jr., who has tried about 200 cases in DeKalb County Recorders Court.

DeKalb District Attorney Robert James said in a statement for this story: “Recommendations made by our attorneys are based off established legal parameters. Our ADAs consider a number of issues before making a recommendation, which include the defendant’s prior driving records. Our office doesn’t sentence defendants. That authority remains with the recorders court judges who make final determination regarding sentencing.”

Recorders Court Chief Judge Nelly Withers, who issued the affidavit requirement, said she is trying to bring order to the court once known for a massive backlog of cases and mismanagement of cases.

Her order, issued in April, addresses “gamesmanship” on the part of some attorneys hoping to drag a case out long enough with continuances without saying whether their client wants a jury trial, and “it gets stale and is dismissed,” she said.

“This is just an effort to keep the case moving,” Withers said.

The new rule requires that lawyers representing clients who want to waive or assert their right to a jury trial obtain a notarized affidavit from the client empowering the attorney to enter such a plea. The affidavit must be filed with the lawyer’s entry of appearance if the defendant does not appear with his attorney. If the affidavit is not filed, the defendant will be considered as having failed to appear, the order said, and a failure to appear designation can lead to an arrest warrant.

Withers says the order is to establish quickly whether her court has jurisdiction by requiring defendants to determine at the arraignment whether they want a jury trial, which would move the case to state court.

“Age is death to any criminal case,” she said. Officers don’t remember the details of the offense after a time and sometimes leave the force before a case is resolved in recorders court or bound over to state court. These cases “hinge on an officer’s ability to remember,” she said.

Not all defense lawyers are upset with the order. Lawyer Jackie Patterson, who is in DeKalb’s traffic court about seven times a month, praised the order.

“I think it makes a lot of sense,” Patterson said. “A judge has an absolute right to do this. It is legal as legal can be.”

But DeKalb traffic court attorney Troy Hendrick said the affidavit requirement chills the ability of defense attorneys to negotiate with prosecutors before deciding whether they want to have a jury trial.

“To require additional legally unnecessary documents such as an affidavit is to do the opposite of streamlining the process. In fact it complicates the process illegally,” Hendrick said. “It obstructs a defendant’s right to a jury trial guaranteed under the Georgia and U.S. constitutions.”

Stone Mountain Circuit Public Defender Claudia Saari is researching the order to see whether it needs to be appealed to DeKalb Superior Court.

The affidavit requirement means “more paperwork and more hoops to jump through for a person trying to exercise their right to a jury trial,” she said. “We are researching and investigating whether that is constitutional.”

To be fair, Saari said, Withers “is trying to bring some reform to the court.” But, she added, “I don’t know why this policy was put in place.”

Withers said she did not base her order after a practice in another jurisdiction. “I didn’t consult anyone. It’s based in law,” she said.

Other states have similar provisions in the law for affidavits, but there are causes for concern here, said University of Georgia law Professor Andrea Dennis, who teaches criminal procedure.

“I would be troubled by the failure to file an affidavit constituting failure to appear resulting in a bench warrant,” she said. “There are many reasons why an individual may not appear in court or not file an affidavit, and a bench warrant may be an excessive and unwarranted penalty. I would hope the court would appropriately exercise discretion in such cases.”

DeKalb Chief State Court Judge Wayne Purdom confirmed that state court, the next stop for traffic court cases, is getting busier with traffic cases. He did not have a report with exact figures, according to his assistant, Carol Merck.