The Georgia Court of Appeals has overturned a 2007 armed robbery conviction and ordered a new trial because Muscogee County Superior County Judge Doug Pullen overstepped his authority.
The appellate court did not dispute the facts in the July 18, 2007 conviction of Marquez Gardner in the armed robbery of a Brown Avenue beauty salon.
But the court did question Pullen’s conduct in the presence of the jury.
At issue was the following exchange:
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State: “That’s all we have judge.”
Court: “Prove venue. Did you prove venue?”
State: “I have not as of yet.”
Court: “Why don’t we go ahead and do that before we forget.”
“By aligning himself with the prosecution through the reference to ‘we,’ the judge could have been perceived by the jury as an advocate for the state,” Court of Criminal Appeals Judge Anne Elizabeth Barnes wrote in the March 20 reversal.
“I have made some mistakes in my life,” Pullen said Monday morning before taking the bench,. “But if that one had any impact on the verdict, I’m still trying to understand it.”
Gardner is currently in Lee State Prison serving a 12-year sentence. Robert Watkins, the Chattahoochee Circuit public defender, represented Gardner.
“It doesn’t matter how overwhelming the evidence is in a case,” Watkins said. “If the judge comments in the presence of the jury as to whether an element of the crime has or has not been proven, then he aligns himself with the prosecution when he uses the word ‘we.’ That is basically wrong.”
The facts in Gardner’s case were not disputed, the Court of Appeals stated.
On Oct. 26, 2006, three women, while inside a beauty salon, were robbed of cash and their purses.
“They initially thought that it was a joke, but the man pulled a black T-shirt over the lower part of his face and pointed a small pistol at the women,” according to the court.
Gardner was identified in court as the man who committed the robbery.
Watkins said it is wrong for one main reason.
“No one ever knows whether that comment contributed to the verdict or not,” Watkins said.
Pullen a 1970 graduate of the Walter F. George School of Law at Mercer University has been a prosecutor or on the bench most of his legal career.He worked as an assistant district attorney from 1972-1978; he was chief assistant district attorney for the Chattahoochee Circuit from 1978-1988, when he was elected district attorney.
He became a Superior Court judge in 1995.
Because of Pullen’s history as a district attorney, Watkins said defense attorneys have had concerns about prosecuting from the bench.
“Let me put it this way,” Watkins said. “Using the old country boy analogy, you can take the boy out of the prosecutor’s office, but you can’t take the prosecutor out of the boy. That said, except in rare occasions, I have always found him to be fair.”