New documents have been filed in the case of two men accused of killing a Bibb County deputy in 2006 as he helped serve a no-knock search warrant at a house off Montpelier Avenue.
At issue is whether it’s a conflict of interest for both Damon Jolly, 23, and Antron Fair, 24, to be represented by lawyers from the Georgia Capital Defender’s Office.
Jolly and Fair are accused of murder in the death of Bibb County Deputy Joseph Whitehead. Both men could face the death penalty if convicted.
Prosecutors and Fair’s attorneys have filed documents asking that Jolly’s defense team be removed from the case because members of the team allegedly have been exposed to privileged information about Fair’s case, according to Bibb County Superior Court records.
Fair’s defense team also is asking that either the charges be dropped against Fair or that the state be banned from seeking the death penalty because his “attorney-client privilege” and right to “independent counsel” have been violated.
Prosecutors say the charges shouldn’t be dropped and the court lacks the authority to bar them from seeking the death penalty, according to court records.
Jeffrey Grube, the private-practice attorney appointed to represent Jolly, has said he’s offended by the accusation that Jolly’s team could be tainted, according to court records.
“If we have to go get outside counsel to help protect Mr. Jolly’s rights to protect his ability to have us representing him, then maybe we need to do that too,” Grube is reported to have said at an April hearing about the issue.
Numerous employees of the Georgia Capital Defender’s Office, the state entity that provides indigent defense in capital cases, testified at the April hearing.
Testimony at the hearing showed Fair was appointed a lawyer from the Capital Defender’s Office in 2006 while Jolly was first represented by two private-practice lawyers, Jeffrey Grube and Richard Hagler. But when Hagler left the case because of he hadn’t been paid by the state, another lawyer from the Georgia Capital Defender’s Office was assigned to work on his case in August 2008.
Because Jolly initially was represented by lawyers outside the Capital Defender’s Office, employees were not barred from talking about Fair’s case within the office.
But a mitigation specialist who allegedly had been privy to confidential information about Fair’s case was assigned to Jolly’s case over the objection of Capital Defender’s Office employees aware of her alleged knowledge, according to court records.
One of the concerned employees, Amy Vosburg-Casey, then-deputy director of mitigation at the office, testified in April that she expressed concerns to Jerry Word, the office’s interim director, and refused to assign the specialist to the case. Her decision was overruled, according to court records.
Word said the Georgia Capital Defender’s Office has satellite offices, opened in October 2007, which allow attorneys from different offices to represent two defendents in the same case without a conflict of interest.
He testified that he was “not happy” about the mitigation specialist’s assignment to the case because her assignment violated the protocol in place to address “conflict cases,’ according to court records.
Jolly’s lawyers question why the mitigation expert who allegedly was privy to information about Fair’s case wasn’t called to testify at the hearing, according to documents they filed in response to the hearing.
If she was called to testify, Jolly’s defense team alleges the woman would have “no memory of matters regarding Mr. Fair’s case being discussed in her presence,” according to court records.
Because Jolly’s team alleges they weren’t given proper notice of the April hearing, they argue it would be premature for the court to make a decision about the conflict issue without Jolly’s team having the opportunity to question witnesses and present evidence, according to the records.
Lawyers in another Bibb County death penalty case also have raised a similar conflict of interest issue. Anthony Braswell, 37, and Shauntrice Murry, 34, are charged with murder in the death of 2-year-old Hezekiah Harris and 4-year-old Tydarious Harris, killed July 14 in a house fire.
Braswell is accused of pouring gasoline from a plastic sports drink bottle onto the porch of 417 Moseley Ave. to start the fire, according to his arrest warrant. The warrant said Murry and Latoshia Yvette Wyche accompanied Braswell.
Attorneys from two satellite offices of the Georgia Capital Defender’s Office represent both Braswell and Murry.
A hearing has been scheduled in July to hear testimony about a conflict issue in that case.