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A DeKalb County, Ga., prosecutor has asked Superior Court Judge Hilton M. Fuller Jr. to recuse himself in the retrial of a rape case he overturned, claiming his bias on behalf of the defense precludes a fair trial. DeKalb District Attorney J. Tom Morgan says it is the first time his office has sought to remove a county judge from a criminal case. The public defender in the case, however, defends the judge and accuses the DA’s office of “character assassination.” “We feel the court has demonstrated a bias and a prejudice,” Morgan says. “For there to be an impartial tribunal in which to try the case, we need a different court.” In a motion filed on Jan. 30, DeKalb Assistant District Attorney Jennifer M. Daniels accused Fuller of showing so much bias on behalf of defendant Tony Jamerson two weeks earlier that he could not fairly preside over the retrial. She also suggested that Fuller had engaged in questionable behavior. That included expressing “apparent favoritism” toward Jamerson and his defense attorney, according to the motion, and engaging in private communications with Jamerson’s lawyer, Corinne Mull, during the course of the trial, Daniels claimed. “During the trial of the case, Judge Fuller exercised great deference toward the defense, so much so that after the verdict even the jurors commented on the apparent favoritism,” Daniels said in an affidavit attached to her motion. State v. Jamerson, No. 99CR2979 (DeKalb Super. Jan. 30, 2001). DEFENDER BACKS JUDGE Mull, a DeKalb County public defender, says Daniels’ affidavit is “filled with innuendo and false accusations.” “There are lies. There are mischaracterizations. There is character assassination,” Mull says of the affidavit. “It’s pretty sad that the DeKalb County district attorney has to resort to this. … I was surprised how deep in the gutter they were willing to go. “ Mull denies she engaged in any ex parte conversations with Fuller during Jamerson’s trial. “I didn’t have a word with the judge. Not a word with the judge,” she says. “They’ve done everything but slander me. I’m glad I’m such a thorn in their side they feel they have to do that.” Fuller was traveling and not available for comment. DECISION THROWN OUT Daniels’ attempt to recuse Fuller from the case stems from the judge’s decision to throw out Jamerson’s Jan. 12 rape conviction and grant the 27-year-old Lithonia, Ga., resident a new trial. “From jury selection to deliberation things occurred, the cumulative effect of which makes me unable to put my stamp of approval on this verdict,” Fuller said from the bench the day he discarded the verdict. The judge did not elaborate on what those circumstances were, and Morgan says Fuller never has given prosecutors any reasons for his decision. After a five-day trial last month, Jamerson was convicted of raping his former girlfriend, who is also the mother of his 5-year-old son. The rape allegedly occurred a year after the couple ended their relationship. Mull acknowledged that Jamerson did have sex with his former girlfriend on the day in question but claimed it was consensual. The victim said she had committed herself to celibacy until she married. Prior to the trial, Daniels had offered to reduce the rape charge to criminal trespassing, a misdemeanor, and to release Jamerson on probation. She cited the difficulties associated with the case, including the victim’s prior relationship with Jamerson and a lack of witnesses or physical evidence. But the victim objected to the misdemeanor deal and Jamerson refused to enter a felony plea. Following Jamerson’s conviction, Fuller called Daniels and Mull to his office to discuss the verdict. In her affidavit Daniels reiterated what she told Fuller in court the day he set aside the jury verdict. During her meeting with Fuller and Mull, the judge had “expressed to me his feeling that justice had not been done in the Jamerson case and asked me whether I felt that justice had been done.” Daniels said Fuller then told them he was “inclined to grant a motion for a new trial.” At the time, Mull had not filed a motion for a new trial, though she did the following day. “By saying that he did not feel that justice was done, Judge Fuller clearly expressed that he does not agree with the verdict returned by this jury,” Daniels wrote in her three-page affidavit. “If Judge Fuller did not believe the victim in this trial, there is no reason to believe that he would believe her in the second trial. Thus, if the State were to prevail again during the re-trial, there is no reason to believe that Judge Fuller would allow the second verdict of guilty to stand against this defendant. “There simply was no basis for granting a motion for a new trial absent some bias or prejudice on the part of Judge Fuller for the defense.” Fuller insisted later from the bench that during his meeting with Daniels and Mull he “reminded them privately, or so I thought, that upon the filing of a motion for new trial my job would require my approval of the process before I could pass this case on to the appellate courts.” His belief in the defendant’s innocence or guilt was “not relevant,” he said. Rather, “There were defects in the trial process so that a miscarriage of justice may, and I emphasize may, have occurred.” Morgan says Fuller relied on his own assessment of each witness’s testimony to override the jury verdict. “In this type of case, that is not for the judge to determine. It is solely the provenance of the jury.” As a result, the district attorney says, “We could not get another fair trial.” But Mull insists Fuller could preside fairly over a second Jamerson trial. “I don’t know how he does it, but he manages to set things aside and do the right thing. I think he could do it. Whether he wants to or not is up to him. I don’t think he’s treated well enough or paid well enough to put up with this.”

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