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Saved from an appearance before a grand jury and a possible indictment, an Augusta, Ga., Judicial Circuit Superior Court judge has gone on the offensive to uncover how and why it nearly happened. “They wanted to send this man to prison,” former Attorney General Michael J. Bowers said of his client, Judge Duncan D. Wheale. “The question is: Who started this in the first place? That’s what we’re going to get to the bottom of,” said Bowers, of Balch & Bingham. In November, Wheale came within 24 hours of possible indictment by a Richmond County, Ga., grand jury on charges of making terrorist threats, altering public records and two counts of malfeasance in office. Wheale said he’s curious to know if Chief Superior Court Judge William M. Fleming Jr. played a role in encouraging the investigation. Wheale has suggested that his public criticism of the hiring of Fleming’s son as a part-time, $30,000-a-year public defender — twice the salary of the previous person who held the position — caused enmity between the judges. Following Wheale’s criticism, officials who hired Fleming’s son said the chief judge did not influence their decision. Asked last month if there was a judicial war on now, Wheale said, “That would be an understatement.” However, Fleming said he’s mystified by Wheale’s suggestion that he might have been involved. “I think you will find the [Georgia Bureau of Investigation] report completely exonerates me of having any part of this,” Fleming said. He added that he has no problem with Wheale, and his only interest in the investigation was to push for it to end with an indictment if warranted or exoneration and closure if not. The GBI report, released to the public after the prosecutor pro tempore closed the case, contains no statement by Fleming and no mention that he was part of the investigation. TOUGH ON DOMESTIC ABUSE According to the GBI file, the investigation of Wheale began in September 2002 when Christopher A. Moore, scheduled for yet another contempt-of-court hearing for not paying thousands of dollars in back child support, went to the Richmond Sheriff’s Department to take out a warrant against Wheale. The judge, who has cultivated a reputation for being tough on domestic abuse offenders, had threatened to shoot Moore during a court hearing three years earlier, Moore claimed. “I had been complaining for three years and couldn’t get a lawyer to touch it,” Moore said recently. Moore said he still has not figured out how to ask for modification of a child support order Wheale issued in 1999. But he said he spent time researching Georgia law to find O.C.G.A � 16-5-12 G, which makes it a felony for an official to use a public office to oppress and show malice. Wheale denied the allegation, which he said he then reported to Chief Judge Fleming. Wheale said he was surprised that Fleming already knew of the accusation. “(Wheale) felt then that he had been set up, but he did not know why,” the judge’s attorneys wrote in a chronology of events they intended to share with the grand jury. Fleming denied having talked with Moore or Wheale in September 2002. Richmond Sheriff Ronnie Strength and District Attorney Daniel J. Craig both recused themselves in September 2002. They handed off Moore’s allegation to the GBI and, later, Alcovy Judicial Circuit District Attorney W. Kendall Wynne Jr. THE WRONG HEARING Then the investigation took an odd turn. When GBI agents first met with a sheriff’s investigator, they were given a transcript they thought concerned Moore’s allegation against Wheale, GBI Special Agent Mike Seigler said. That transcript actually was of a different Wheale hearing. According to court records, the transcript was for a hearing involving Curtis Horne, who was sentenced to 10 years in prison for aggravated assault after beating his girlfriend so severely that investigators found blood on the floors and walls in four rooms of the couple’s Augusta home. In the hearing, Horne sought to withdraw his guilty plea. When Wheale walked into his small hearing room next to his office at the Augusta-Richmond County Municipal Building, he saw Horne hugging his brother Donald. Wheale said he thought some object had passed between them. “I realized immediately that Mr. Horne was in the custody of uniformed deputies, but no one had checked any of the civilians present in the room for weapons,” Wheale wrote in a letter to the GBI. Wheale, who said he had been wearing a gun under his robes since learning of a death threat some months earlier, wrote to the GBI that he was scared and angry at himself for possibly allowing a dangerous situation. “You make a move in here, and I’ll be the one to shoot you first,” Wheale said to Horne that day before anyone sat down. MISSING TRANSCRIPT PAGES But the official transcript of the hearing in Horne’s Richmond County Superior Court clerk’s file didn’t contain Wheale’s statement. It would surface nearly three years later during the GBI investigation. According to the GBI report, the court reporter said two pages were not included in the official Horne transcript because Wheale instructed her not to start the transcript until he called the case. Seigler said the court reporter provided the GBI with the two additional pages. Wheale denies telling the court reporter to exclude any part of the hearing, according to Bowers’ co-counsel T. Joshua R. Archer. That court reporter surfaced again in the GBI investigation because she was the child advocate on Aug. 15, 2002, when Wheale conducted a hearing in a custody dispute between Michelle Durham and her ex-husband, Arlie J. Gipson. Durham’s attorney, Susan M. Reimer, told GBI agents and wrote in her appeal that Wheale refused to let her cross-examine or present witnesses for Durham. The prosecutor pro tempore examined the GBI case and opted to go to a Richmond grand jury seeking to indict Wheale on the following charges: that Wheale made terrorist threats against Horne, caused the court reporter to alter and falsify an official transcript, and committed malfeasance of office by refusing to allow either Durham or Reimer the opportunity to cross-examine or present witnesses. Meanwhile, the allegations by Moore that started the investigation were found to have no merit, according to DA Wynne. COURT REPORTER BACKS JUDGE As required by law, Wynne gave Wheale and his defense team 15 days’ notice of the grand jury proceeding. Bowers said he met with Wynne on Nov. 10, the day before the grand jury was scheduled. “We pointed out some things we thought were significant,” Bowers said. Bowers brought along an affidavit signed by the court reporter. In it, she stated that Horne was threatening at his hearing, suggesting Wheale was justified in warning Horne that he was armed. The court reporter added that Wheale “never instructed, ordered or directed me to falsify, delete, alter or destroy any portion of the transcript.” Bowers also took a transcript of the Durham hearing that shows Durham’s attorney, Reimer, didn’t present witnesses because she agreed to stop the hearing in favor of an alternative resolution. Within hours, Wynne decided not to pursue criminal charges against Wheale and canceled his time before the Richmond County grand jury. “It was the right thing to do,” Wynne said of his decision. Nonetheless, Wynne was summoned to Augusta to appear before the grand jury. He met with jurors for two hours and, at the end, no document — either a true bill or no bill — was issued. Wynne declined to say who summoned him. Grand jurors and the presiding judge, Senior Judge Bernard J. Mulherin Sr., also declined to comment. “This is bizarre,” said Bowers. Meanwhile, Moore, the man whose allegations started the investigation and then were disregarded, is facing a contempt hearing for not paying child support. He said he plans to take his complaint about Wheale to the Judicial Qualifications Commission.

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