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Just days before trial was to begin in the murder case against Timothy Curtis Cole, Morgan County, Ga., Superior Court Judge John Lee Parrott made an unusual ruling. The judge granted Cole’s motion to quash the indictment, concluding that the jury commission that compiled the list of potential grand jurors had wrongly excluded certain groups. Parrott explained in the Jan. 12 decision that “jury commissioners with very good intentions” had improperly barred from the grand jury box lawyers, law enforcement officials and people with tax liens against them. The commissioners, Parrott said, had become “confused about their role.” While commissioners have discretion in compiling lists of potential jurors, under Georgia law they are not to make blanket exclusions of “significantly identifiable” groups within the community. Cole and alleged conspirators Daniel Hubbard of Athens, Ga., and Chris Teal of Covington, Ga., had been named in a six-count indictment charging them with felony murder in connection with the 1999 torture and stabbing death of 16-year-old Krystal Gail Archer of Elberton, Ga. Now the state must re-indict all three men, using a new grand jury, so Cole’s trial likely won’t begin until fall, says Ocmulgee Judicial Circuit District Attorney Fredric Bright, who is handling the case. In court on Jan. 12 Parrott spoke to the difficult task that jury commissioners face. “[W]e are having lay people serve as jury commissioners, and we are having them make distinctions that I’m having a difficult time doing after having been a lawyer since 1974,” Parrott said. “[I]n these cases we basically, probably, without a whole lot of guidance, put them in a very tough position,” he said. In a more detailed formal order issued on Jan. 26, Parrott wrote, “Jury Commissioners are lay persons who volunteer for a job that is difficult.” Bright agrees that there isn’t enough guidance for jury commissioners, whom he calls “poor souls, trying to get it right.” “I wish there was some lawyer or legal entity that could properly advise lay citizens who are called upon as jury commissioners to make up the grand and traverse jury boxes, to make sure they correctly follow the technical rules of law,” Bright says. “As a DA we have nothing to do with the makeup of the grand jury or traverse jury box … yet, if they make a mistake, we’re the ones that have to suffer for it,” he adds. Jury commissioners are appointed by the chief judge of the superior courts in the county in which they serve. Most commissions — one for each Georgia county — have six commissioners, but the chief judge can appoint three, four or five. So, at any given time there are 480 to 960 active commissioners whose role is to establish the grand and trial jury boxes in their counties. The U.S. and state constitutions mandate that juries adequately represent each identifiable group in the county’s population. Since women and blacks are recognized as identifiable groups in Georgia, they must be adequately represented in the box. Commissioners meet privately and take an oath to “forever keep secret and inviolate” their deliberations. No transcripts are made. They must speak about their deliberations, however, when called to testify in court if an attorney challenges the composition of the jury box, or “the array.” These challenges may be made after indictment, but before arraignment. Practically speaking, lawyers usually challenge the array only in death penalty cases, Bright says. Most challenges allege racial or gender-based discrimination. That’s how the improper exclusions were detected in the Cole case. Cole’s lawyer, Brenda H. Trammell of Madison, challenged the array of the grand and traverse jury pools, hoping to quash the indictment against Cole. She went into a hearing with evidence that there were more blacks and young people in Morgan County than the pool of prospective jurors reflected. But lawyers for both sides were likely caught off guard during the hearing when Jack Blackwell, a grand jury commission member, testified that lawyers, law enforcement officers, and people with tax liens against them had been excluded from the grand jury box. The judge didn’t find merit to Cole’s claims of race or age disparity, but Blackwell’s testimony about the exclusions proved to be a watershed. “While these exclusions were undoubtedly well-intentioned, they exceed the authority and province of the Jury Commission,” Parrott ruled. The judge was most concerned that lawyers had been left off the list. “A blanket, indiscriminate excusal of such attorneys is truly incompatible with “the need to draw juries from a fair cross-section of the community,” the judge wrote in his order. “One can question whether a defendant in reality wants law enforcement officers serving on the grand jury in his or her criminal case, but (if he insists as Defendant does here) he or she is currently legally entitled to have them in the grand jury box,” Parrott wrote. The judge also wrote, “The exclusion of those persons [with tax liens against them] … might arguably be construed as the Jury Commission exercising its discretion in fulfilling its mandate to select those who are ‘the most experienced, intelligent, and upright citizens of the county.’ “ Bright says the effect of Parrott’s ruling on those indicted by grand juries composed of the now-defunct box is uncertain. “There are numerous other cases that are out there that were indicted by this same grand jury,” he says. But he adds, “I’m told a cutoff [for bringing a challenge to the array] would be arraignment.” If defense lawyers bring challenges he’ll argue it’s still a good box, Bright says. “There are five judges in our circuit.”

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