Wiretap evidence dismissal could hurt prosecution of 2008 east Macon murder case

When Benjamin Finney goes on trial in the 2008 shooting death of Gwendolyn Cole, the jury won't be allowed to hear evidence from a wiretap of his cell phone.

Under federal law, electronic surveillance must be protected from alterations and immediately sealed at the expiration of a court-approved wiretap warrant. In Finney's case, it took 16 days for the evidence to be sealed.

On Monday, the Georgia Supreme Court reversed Bibb County Judge Edgar Ennis Jr.'s decision that had accepted prosecutors' excuse for the delay.

Former Assistant District Attorney Kim Schwartz explained to the court that she was preoccupied with a high-profile death penalty appeal, and the judge was attending a two-week training session that ended three days after the warrant expired.

Current District Attorney David Cooke, who was not in office in 2008, was deeply troubled by the effect that Monday's ruling will have on the case.

"(Schwartz) could provide no satisfactory explanation for the delay," a statement from Cooke read in part. "Given those circumstances, there's no surprise that the Georgia Supreme Court ruled this evidence inadmissible."

In an interview with The Telegraph, Cooke declined to comment on specifics of the wiretap evidence in the pending case, but he noted that wiretaps are only permitted when other investigative avenues are proven fruitless.

"Sometimes evidence in a wiretap is crucial," Cooke said.

In Monday's opinion, Justice Keith Blackwell wrote that the trial court should have granted the defense's motion to suppress the wiretap evidence.

Blackwell wrote that when Congress mandated that "recordings must be presented for sealing 'immediately,' it meant just what it said."

While the judge's absence likely would have been a "satisfactory explanation," the Supreme Court determined that the district attorney's office failed to demonstrate Schwartz's conflict as a satisfactory explanation for the additional 12-day delay.

The Supreme Court's opinion said there were two other prosecuting attorneys involved in the wiretap investigation, and Schwartz's death penalty appeal was held more than a week before the recordings were sealed.

"The state offers no explanation at all for why it took an additional eight days to present the recordings for sealing," the opinion said.

In his statement, Cooke said he's taken measures to prevent future mishandling of wiretap evidence.

"My administration requires every assistant DA and investigator involved in wiretaps to attend mandatory training on wiretap surveillance and compliance," he stated. "And every wiretap deadline is tracked internally so that precious evidence will not be needlessly suppressed."

Prosecutors secured a wiretap warrant on the cell phone of Finney, who authorities suspected was a drug dealer in Jones County and believed to have been involved in the killing of the 55-year-old Cole. The widow who was gunned down as dozens of bullets from an assault weapon pierced her home.

Finney and Marlon S. Jackson were indicted on murder charges in 2013 in the Cole case, and Finney's attorney filed a motion to suppress the wiretap.

To contact writer Liz Fabian, call 744-4303 and follow her on Twitter@liz_lines.

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