In an appeal to the Georgia Supreme Court, Public Defender Robert Wadkins accused Muscogee Superior Court Judge Bobby Peters of threatening a witness in the trial of Andrew Solomon, convicted of murder in one of Columbus' four killings over Labor Day weekend 2010.
The way Peters questioned witness Jarvis Bell would have constituted a felony under Georgia law if it had taken place outside a court proceeding, Wadkins asserts, saying Peters told Bell he was lying to prosecutor LaRae Dixon Moore and faced jail time for perjury if he didn't tell the truth.
In a phone interview Friday, Wadkins said he's not claiming the judge should be arrested.
"That's not going to happen," he said. But the error was so egregious, he said, that someone making such a threat outside court could be charged under Georgia law, he said.
While declining an interview, Peters provided a written statement that in part read: "Mr. Wadkins did not represent this defendant during the trial and was not in the courtroom during the proceedings. He has distorted the transcript and facts about the witness' testimony."
Peters in court filings has said he only told Bell what perjury means and asked Bell to answer Moore's questions and tell the truth.
Bell was evasive and sometimes contemptuous to Moore's questions about Sept. 3, 2010, the night 17-year-old Levy Lamont Daniel was fatally wounded at Booker T. Washington Apartments on Veterans Parkway.
Daniel's homicide was among four that occurred over five days around Labor Day 2010. Solomon's case was the first to go to trial.
Bell was among Daniel's companions roaming the apartments after a concert at the Columbus Civic Center.
Police said Daniel and Solomon had a history, and that night Daniel confronted Solomon first, pulling a gun on him. But Daniel's friends persuaded him to put it away.
Later Solomon, with a handgun, confronted Daniel and shot Daniel in the back as he fled, police said. Daniel ran to Veterans Parkway and collapsed; he died later at the hospital.
Bell and another comrade were subpoenaed as witnesses for the prosecution in the case against Solomon, which went to trial in May 2011.
Despite Bell's reluctant testimony, a jury on May 26, 2011, found then-20-year-old Solomon guilty of murder, aggravated assault and using a firearm to commit a crime. Peters sentenced Solomon to life in prison, with possible parole in 30 years.
The verdict brought Solomon's trial to an emotional climax, as Solomon's supporters shouted in protest, one hollering, "He didn't do it!" Solomon repeatedly yelled, "I didn't even do it!"
Afterward defense attorney Susan Henderson said: "I'm absolutely stunned. There was absolutely no evidence. I've never seen anything so egregious as this in my career."
Now serving time in Georgia's Ware State Prison, Solomon qualifies as an indigent defendant whose appeal falls to Wadkins, chief public defender for the Chattahoochee Judicial Circuit.
Reviewing the trial transcript, Wadkins last year moved for a new trial, claiming Peters committed an error in questioning Bell from the bench.
Here is the context in which Peters questioned Bell:
The night Daniel was shot, Bell gave police a statement saying Solomon and Bell had a confrontation before the shooting. But during the trial, Bell under oath denied that, refusing to confirm what he told police. Some questions he would not answer: He just sat silently.
Finally Moore asked: "Is there a reason that you do not want to answer questions here today?"
"I've done answered," Bell replied.
He was so reluctant a witness he had not come to court the day before, so deputies had picked him up. While in custody, he had talked to Solomon.
When Bell told Moore "I've done answered," Peters had the jury leave and let Moore ask Bell whether he had talked to Solomon the day before.
Under repeated questioning, Bell finally acknowledged he had, but only because Solomon had asked why Bell was in custody.
Bell said he told Solomon he was in jail for "not going to court."
That's when Peters interrupted Moore and told Bell: "Well, if you don't start telling the truth, you're going to court for perjury. Do you know what that means?"
Bell didn't answer, so again Peters asked: "Do you know what that means?"
"What?" Bell replied.
"You get up here and you lie under oath after being sworn in," Peters said. "You won't tell the truth. That's perjury. All you've got to do is tell the truth, whatever happened, whatever the truth is."
Still Bell gave conflicting testimony and refused to confirm his statement to police, though Moore noted Bell not only signed his statement, he initialed each paragraph.
Bell instead testified he did not see Solomon confront Daniel; he only heard shots and ran. He repeated that to Henderson on cross-examination.
Reviewing the transcript, Wadkins saw what Peters told Bell about perjury. He cited it in a June 8, 2012, motion for a new trial, which Peters denied last December, and again in a Feb. 21 appeal to the Georgia Supreme Court.
Not claiming Peters faced criminal sanction, Wadkins wrote what Peters said "was prohibited conduct constituting a felony and therefore error," adding, "The judge's statement to witness Bell was a conditional threat."
He cited Georgia Code 16-10-32, which prohibits threatening a witness, an offense with a penalty of two to 10 years in prison or a fine ranging from $10,000 to $12,000, or both.
He wrote: "The threat expressly demonstrates the judge's intent not only to hinder but also to dissuade the testimony of witness Bell by having Bell alter his testimony to conform to the judge's opinion of the 'truth.' In the first part of the judge's statement, 'Well, if you don't start telling the truth,' the judge indicates that, even though witness Bell had answered many questions up to that point, the judge did not believe that witness Bell had been truthful in his testimony. In the very last portion of the comment the judge outright tells the witness he has been lying. It follows that the judge desired that the witness change his testimony to fit the judge's idea of what the truth was."
By telling Bell he would be "going to court for perjury," the judge threatened Bell's liberty and finances. "This is a threat of economic harm by the judge to witness Bell," Wadkins wrote.
Last week Peters said judges are not at liberty to be interviewed on pending appeals. But in his Dec. 20 ruling denying Wadkins' motion for a new trial, Peters wrote that Bell gave conflicting answers about talking to Solomon while in custody, so the court needed to know whether Bell had been threatened.
Jurors were removed to avoid coloring their view of the case, Peters wrote.
His reference to "you" in his explanation of perjury meant anyone under oath, not Bell in particular, he said: "The court's use of the term 'you' was read out of the definition and made reference to members of the public, not declaring that Bell was guilty of perjury."
Wadkins in his state Supreme Court appeal argued Peters was addressing a teenager unlikely to interpret his comments that way: "The judge made the statement to an 18-year-old boy while sitting in an elevated position, separated from the others in the courtroom, wearing a black robe and having others do his bidding. There was no evidence that the boy was trained in legal procedure. The boy may very well have thought that this black-robed person of authority might very well try him for some crime as he sat there in the witness chair and that he may go from the witness chair to the penitentiary. This is a real and extremely reasonable interpretation of the judge's words."
While denying Wadkins' new trial motion, Peters noted he specifically asked whether Bell felt comfortable testifying: "The court asked Mr. Bell if anyone had threatened or coerced him to not testify and if he felt intimidated in any way and if he felt comfortable with continuing to testify. Bell responded that he was not threatened or coerced by any person and that he did feel comfortable in continuing to testify and was not intimidated."
Wadkins' Feb. 21 appeal raised three issues not addressed in Peters' December ruling denying Solomon a new trial:
Wadkins claimed Peters violated a section of the Georgia Code of Judicial Conduct by making a public comment that with a pending proceeding "might reasonably be expected to affect its outcome or impair its fairness."
He said Peters questioned Bell's credibility. By law the jury alone weighs a witness' credibility.
Also the judge does not question a witness to decide whether that witness is hostile to the state, Wadkins wrote.
In denying Wadkins' new trial motion, Peters wrote that he let Moore question Bell without the jury present "to see if Mr. Bell was going to be a hostile witness toward the state and if the state would need to ask the court to declare him such."
Were Bell declared hostile to the state, Moore would have been allowed to ask him leading questions without the defense objecting to her leading a witness.
It was Moore's job to request Peters declare the witness hostile, Wadkins said: "Hostile witness declarations are preceded by a request from a party. In the instant case, no request was ever made. No reference to 'hostile witness' was made by anyone in any part of the trial."
Now that Wadkins has filed his appeal to the Georgia Supreme Court, Moore has 20 days to respond. She intends to, she said last week, but she did not think it appropriate to comment on the case until she files her reply.
Wadkins did have a comment, stating in a telephone interview:
"Our office is mandated by the Georgia Legislature to provide oversight to make sure that judges provide a fair trial for a defendant, and it's part of our job, when we see where we think a defendant did not receive a fair trial under the Constitution, that we point out the deficiencies in an appeal to the appellate courts."
He acknowledged that in 30 years of practice, this is the first time he has filed or seen an appeal that accused a judge of a felony.
Peters in his brief statement to the Ledger-Enquirer wrote that all he asked Bell to do was "tell the truth, whatever the truth is."