Judge to rule if grand jury list valid in Kirby Smith cold murder case

Attorneys in the 2004 cold-case murder of Columbus auto shop owner Kirby Smith continued sparring Thursday over the makeup of the grand jury that in 2016 indicted suspects Rebecca Haynie and Donald Keith Phillips.

The pretrial hearing was one of a series in which prosecutors and defense attorneys are working through motions in anticipation of a trial so far set for Sept. 23, though the trial date has been postponed before.

Smith, 50, was found dead in Kirby’s Speed Shop, 1438 Jacqueline Drive, around 8 a.m. March 8, 2004, though police believe he was shot in the head and torso there about 9 o’clock the night before.

Haynie and Smith were going through a contentious divorce. Cold-case investigators later alleged Phillips at the time was her lover who conspired with her to kill Smith. The pair were arrested 10 years after the homicide, on June 5, 2014.

Defense attorneys now are arguing Muscogee County illegally altered a state-supplied list of potential jurors before impaneling the grand jury that indicted the defendants on Aug. 30, 2016.

The dispute involves complicated legal issues regarding Georgia’s efforts to ensure jury pools are representative of a county’s overall population and demographics.

Previously counties would collect a database of eligible jurors from voter rolls and “force-balance” it to match the race and gender ratios reflected in census figures. Muscogee County once used a six-member commission appointed by the chief Superior Court judge to handle that.

In 2011, the state changed the process on the rationale that if the database of prospective jurors were sufficiently broadened, the jury pool automatically would reflect the county population, and no additional balancing would be required.

Now, under Georgia’s Jury Composition Reform Act, the State Council of Superior Court Clerks collects potential jurors’ names from a database of residents 18 or older who’ve obtained driver’s licenses or state ID cards issued at license bureaus and of people who registered to vote.

The council compares that to other lists to determine who’s ineligible for jury service because they’ve been convicted of a felony, or have died, or moved away, or been declared mentally incompetent. With those names removed, the corrected list is sent to the county to use for jury summons.

Attorneys for Haynie and Phillips maintain that under Georgia law, that list is certified to be accurate, and once received, the county should not alter it. But Muscogee County uses a vendor to send out its jury summons, a Canadian company called Courthouse Technologies, and it further corrected the list Muscogee County got from the state before the county summoned jurors for the grand jury that indicted the pair.

Fulton County, Ga., was using the same vendor when in 2017 the Georgia Supreme Court ruled in Ricks v. State that Fulton’s jury list illegally had been altered, and the justices sent the case back to the Fulton court with instructions to correct the error.

Fulton afterward instructed Courthouse Technologies to stick to the master jury list it got from the state, and later ended its contract with the vendor.

Much of Thursday’s testimony came via Skype from Nathan Wong, an applications developer for Courthouse Technologies. Wong was to explain differences between the jury list supplied to Muscogee County by the state and the list the county used.

He was responding to testimony given in a Jan. 7 pretrial hearing by defense expert witness Jeffrey Martin, a mathematician who testified in the Ricks case and served as a consultant in the jury composition reform effort.

Martin said his research showed that for the pool from which Muscogee County picked the grand jury indicting Haynie and Phillips, it got a list of 168,783 potential jurors from the court clerks council, but Courthouse Technologies somehow converted that into a list of 247,905, exceeding the county’s overall population.

On Thursday, Wong testified that the figures Martin used were incorrect, and Courthouse Technologies never added any names to the master jury list that came from the state.

The grand jurors indicting Haynie and Phillips in 2016 were summoned from a list compiled in 2015, and that data no longer was available by the time the court subpoenaed it for pretrial hearings for Haynie and Phillips, so Wong had to try to recreate it, he said.

Martin could not accurately have interpreted that data without proprietary software developed by Courthouse Technologies, which he had no access to, Wong said.

Wong said the confusion in numbers results partly from the fact Courthouse Technologies adds to the juror database every year as it gets a new jury list from the state, retaining the historical data it already has, so the database constantly is changing.

Despite such additions, the jurors summoned year to year are drawn only from the master jury list the state provides, Wong said.

Adding to the existing juror database is an “overlay” process that matches jurors’ names on a new list to those already in the system, he said. Typically only about 10 percent of the names are new; 90 percent already are there and don’t have to be added, he said.

After Wong’s testimony, defense attorney Erin King called Martin back to the stand to say he didn’t need Courthouse Technologies’ proprietary software to conduct his analysis.

“My numbers are correct with the data I was supplied,” he said. “They add up and tie back so anyone can check them.”

It’s clear that Courthouse Technologies altered the master jury list that came from the state, adding some names and deleting others, he said.

King argued the issue is simple: Courthouse Technologies altered the master jury list in violation of the precedent set by the Ricks decision.

Assistant District Attorney Veronica Hansis countered that the prosecution has acknowledged Courthouse Technologies committed “technical violations” in changing the master jury list, but no court precedent authorizes the remedy the defense wants: To quash the indictment. Only a constitutional violation would justify that, and the defense has neither established nor argued that any constitutional violation occurred, she said.

Judge Gil McBride did not immediately rule on the issue. He asked each side to submit a proposed written order citing findings of fact to him by March 15.

Were the judge to agree with the defense argument and throw out the indictment, prosecutors still could have Haynie and Phillips re-indicted by a new grand jury, so the criminal case against them could continue.

This story was originally published February 21, 2019 at 6:14 PM.