Ken Shigley Ken Shigley (Courtesy photo)

When Georgia Court of Appeals candidate Ken Shigley was a young assistant district attorney, he successfully prosecuted a college student for what he now says was a bogus charge.

Shigley told the story of that 40-year-old felony prosecution and the young man’s appeal—which Shigley said he also won—at a candidate forum sponsored by Advocacy for Action in mid-April at Liberty International Church Door of Hope Ministries in Atlanta.

Shigley is running against Albany attorney and former Dougherty County DA Ken Hodges in the state appellate court’s only competitive race. Shigley has been called out by the state Judicial Qualifications Commission. On May 4, the judicial watchdog agency issued a directive chiding him about making politically-charged comments about his opponent in the nonpartisan race, saying they could conflict with the nonpartisan duties required of a judge by the state Code of Judicial Ethics.

He told the story after he was asked by Charles Johnson—a Holland & Knight partner who co-founded Advocacy for Action in 2013—how an appellate judge could make a difference.

“Being aware of the environmental factors that go into cases coming up there and having the experience on both sides of the criminal justice process to kind of see what’s happened sometimes,” Shigley replied.

“When you see things that don’t smell right, get your antenna up and look a little harder. Because sometimes you get a case that really shouldn’t have been prosecuted.”

Shigley then told the gathering how he prosecuted one of those cases 40 years ago—that of a college student whose name he no longer remembers. Shigley didn’t say at the forum what crime the young man was charged with. But he told the Daily Report last week that the student was convicted of felony drug possession with intent to distribute.

“I recognized in midstream that this was a political prosecution,” Shigley told the forum. “This defendant was a young black guy who was going to college part-time and working on voter registration in Douglas County in an African-American community.”

Douglas County is now a bedroom community of Atlanta. But 40 years ago, it was still largely rural with a majority white population that Shigley described as still largely “Ol’ South.”

At the time, “old racist politicians” were signing his paychecks, Shigley added.

Shigley said he took over the case after a jury was already selected. Midway through the trial, he said, the case “just began to smell bad.”

“I did everything I could to lose it,” he explained. “But I couldn’t. I couldn’t backstroke far enough, fast enough.”

Asked by a member of the audience what happened afterward, Shigley explained: “The jury convicted the guy. He appealed. I tried to lose the appeal. I couldn’t. I tried to make the weakest case for the state I could, recognizing what had happened.”

When the state Court of Appeals affirmed the conviction and returned the remittitur for an entry of judgment, Shigley said, “I just filed it away.”

“I hope he went on and had a good life,” Shigley said of the student he prosecuted. “It was one of those … moral dilemmas. If I had been a little more mature than I was at 27, I might have dismissed the case in midstream and lost my job and gone on. But at that point, I didn’t feel like getting fired that week.”

A video of Shigley’s remarks at the forum was posted April 21 on Advocacy for Action’s Facebook page. Since then, it has garnered more than 1,800 views, and Johnson said he has fielded “a lot of calls” about it, including one from Shigley’s opponent, Ken Hodges, who was invited to the same forum but had a scheduling conflict.

“It was almost like a confession,” Johnson said. Shigley, he said, appeared to be “trying to make a point about things he learned over time.”

Shigley told the Daily Report in an interview after the forum that his recollection of the case prompted him to begin reviewing appellate cases in hopes of finding the student’s name. “I haven’t found it yet,” he said.

Shigley said in that interview that he grew uneasy with the case while reviewing records of the young man’s arrest by the Douglas County Sheriff’s Office, headed at the time by the notorious Earl Lee. Shigley said the search warrant smacked of impropriety “when one officer knocks on the front door… and another police officer at the back door says, ‘Come in.’”

“I don’t remember the probable cause,” Shigley said. “I began to get the strong implication from other officers it was not a good search. … In the entire context, I began to get the feeling this was not a case that should have been made.”

Shigley said there were other factors that made him feel bad about the case.

“Everything about him they made a joke about,” Shigley explained while declining to say who “they” were. “Doing black voter registration in the neighborhood there. Going to college in Atlanta. There was terminology folks back in the day would use regarding African-Americans who made such steps. I did not use that terminology.”

Still, he tried the case. Asked why he didn’t voice his reservations with then-District Attorney John Perrin or just dismiss it, Shigley said “I felt very strongly if I dismissed it in midstream, as first assistant district attorney, I would have been fired.”

But he also acknowledged, “There were cases when I was an ADA where I was able to look at a case and study it and interview witnesses in advance and make a reasoned decision and decided not to prosecute them. … I did that plenty of times.”

Shigley said he doesn’t remember precisely what he did to try to lose this particular case.

“I stopped trying real hard to win,” he explained. And once the jury convicted, “I remember hoping I would lose the appeal, because I didn’t think it was fair.”

“I made the weakest argument I could.”

Shigley said he doesn’t even think he offered the defendant first offender status, which would have sealed the conviction once the student successfully served a probated sentence. “A lot of times, the judge would pass sentence without asking me for any input,” Shigley said.

After the state Court of Appeals affirmed the conviction, Shigley said he could have forwarded the notice to the sheriff to pick up the young man, who the lawyer said remained free on bond, and transport him to prison. Instead, Shigley said, “I just stuck it back in the file and hoped it would get lost in the system.”

Shigley said the case has “weighed on my mind” since he prosecuted it in 1978. But he acknowledged that, until he recounted the young man’s plight at the political forum last month, he never tried to learn his fate and never offered to try to help him secure a pardon—even after he opened his own law practice and became president of the State Bar of Georgia.

“It was not a profile in courage to continue through it and make a weak argument,” Shigley concluded. “But with tuition loans to pay, no job offer on the horizon. … I was still single. But I had a mortgage. I had student loans. I didn’t want to be run out of my home town on a rail.”

“If I had the maturity I have now, I would have handled it differently,” he said. “I think it’s important to recognize that 40 years of additional maturity makes a difference.”