Judge Robert McBurney, Fulton County Superior Court, Atlanta (Photo: John Disney/ ALM) Chief Judge Robert McBurney, Fulton County Superior Court, Atlanta (Photo: John Disney/ ALM)

Lawyers for former Atlanta police officer James Burns, who was re-indicted Wednesday on murder charges related his shooting of an unarmed man, lost a bid for their client to be bound by the same grand jury rules under which he was charged the first time.   

When Burns was first charged in 2016, officers facing grand juries over accusations related to their service were entitled to make an unchallenged statement to the panelists.

The ex-officer now faces charges of felony murder, aggravated assault with a deadly weapon and violation of oath of office related to the fatal shooting of an unarmed 22-year-old man driving out of an apartment complex.

An order issued Tuesday by a superior court judge meant that, unlike the first time he was indicted, Burns and his lawyer had no right to be present for the entire grand jury proceeding. And, if Burns decided to make a sworn statement, prosecutors and jurors could cross-examine him this time.

A spokesman for Fulton County District Attorney Paul Howard said he did not know whether Burns spoke to the grand jurors Wednesday. A statement announcing the indictment said the old charges had been dismissed and re-filed “due to a procedural matter related to the statements Burns made during the previous grand jury proceeding.”

Burns’ is represented by Drew Findling and Marissa Goldberg of the Findling Law Firm.

Goldberg said that the order entered by Superior Court Chief Judge Robert McBurney made clear that conflicting case law regarding the grand jury statute meant that he couldn’t grant Burns’ petition for mandamus because the law was unsettled.

“We believe that the Fulton County district attorney’s office once again violated Mr. Burns’ constitutional and statutory rights in their presentation to the grand jury,” Goldberg said via email.

“This issue was not decided nor settled by Judge McBurney’s order. We anticipate that this issue will be litigated as part of the criminal case,” said Goldberg.

Burns is charged in the June 2016 shooting of Deravis “Caine” Rogers at the Monroe Place Apartments. Burns was there responding to reports of someone looking into cars; he would later claim he thought Rogers was attempting to run him down when he fired through the passenger window as the car passed.  

Burns was indicted for murder and other charges on Aug. 31, 2016—two months after the law was changed to require that a peace officer facing indictment for crimes committed in the performance of his or her public duties may make a voluntary statement to the grand jury that could be challenged or questioned afterward.

The change also did away with an officer’s right to remain in the grand jury chamber and listen to all the evidence throughout the proceedings.

During the first grand jury presentment of the case against Burns in 2016, Howard permitted Burns to be present and make an unchallenged statement.

On July 25 of this year, after “substantial litigation on separate issues,” Howard’s office dismissed the charges against Burns, according to an emergency petition his lawyers filed Friday.

On Aug. 15, the DA’s office notified Burns’ lawyers that prosecutors would re-present the case to the grand jury on Wednesday.

An email attached to the petition from Senior Assistant DA Adam Abbate said that the “amended or post July 1, 2016 version” of the relevant statutes would be applied during the presentment.

In the petition for mandamus Findling and Goldberg filed last week, they argued that applying the amended law to alleged offenses committed prior to the law’s enactment “would clearly violate Georgia statutory and constitutional law.”

“Even where there is an explicit provision in the statute that law should be retroactive (and in this case, there is not), the courts often find a constitutional violation when they are applied,” the lawyers asserted, pointing to the Georgia Constitution’s prohibition of ex post facto statutory applications.

They cited a 2002 Georgia Court of Appeals opinion in State v. Lindsay, 255 Ga. App. 464, in which the court ruled that an ex-officer accused of a 1999 crime had been improperly deprived of his rights when the state cross-examined him under a 2001 rewrite of the law.

The subsequent 2001 amendment … cannot be applied retroactively so as to strip Lindsay of substantive rights previously secured under the pre-amendment statute,” the appeals court said.

Howard’s office pointed to last year’s Court of Appeals opinion in State v. Peabody, 343 Ga. App. 362. In that case, the judges agreed with a trial court that an officer charged with animal cruelty prior to the new law’s enactment should have been afforded the protections of the pre-2016 version.

But, the court said, “[s]hould the State elect to re-indict Peabody, the provisions of the 2016 version of [the law] would clearly apply.”

In turning aside Burns’ petition, McBurney wrote that the “tension between Peabody and Lindsay provides the answer for the court. Two panels of the Court of Appeals have reached (ostensibly) differing conclusions as to which version of [the law] should be applied: The version in force at the time of the incident, or the version in force at the time of the indictment.”

Writing that a mandamus action can only be granted when an applicant has a “clear legal right” to relief, McBurney said Burns can show no such right.

“While Peabody seems clear enough to the undersigned (and would require the court to deny relief to Burns), if the court takes Lindsay to stand for the proposition Burns urges, then it is quite unclear whether Burns has a legal right to the relief requested,” McBurney wrote. “The emergency motion for mandamus is accordingly denied.”