Attorneys for a woman and her alleged ex-lover accused of killing her estranged husband in 2004 are claiming the suspects’ indictment was illegal and should be quashed.
The lawyers representing Rebecca McInnis Haynie and Donald Keith Phillips, each charged with murder in the fatal March 4, 2004, shooting of Columbus auto shop owner Kirby Smith, argue Muscogee County illegally altered a state-supplied list of potential jurors before the grand jury that indicted the pair was impaneled.
Haynie, now 48, and Phillips, 40, so far are set for trial Sept. 23, but the trial date has been postponed before as attorneys work through a series of pretrial motions. The suspects were arrested in the cold case on June 5, 2014.
On Monday they were back in Muscogee Superior Court as their attorneys asked Judge Gil McBride to dismiss their Aug. 30, 2016, indictment, claiming the county tainted the pool of jurors from which the grand jury was selected.
The dispute involves complicated legal and procedural matters related to Georgia’s efforts since 2011 to ensure jury pools are representative of a county’s overall population and demographics.
Previously counties would collect a database of eligible jurors and “force-balance” it to match the race and gender ratios reflected in census figures. The state changed the process on the rationale that if the database were sufficiently broadened, the jury pool automatically would reflect the county population, and no balancing would be required.
Under the 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, the county should not have altered that list. 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 court clerks council.
Fulton County, Ga., was using the same vendor when the Georgia Supreme Court ruled in the 2017 case Ricks v. State that the county’s jury list illegally had been altered, and sent the case back to the Fulton court with instructions to correct the error.
Now attorneys for Haynie and Phillips are raising the same issues in Muscogee County.
“What Courthouse Technologies has done in this case is illegal,” Haynie’s attorney Erin King told McBride. “Anything they use other than the council list is illegal…. It’s a big deal. It’s a structural issue.”
Jury composition in other cases could be challenged on the same principle, she said.
The Jury Composition Reform Act requires that a county stick to the juror list it gets from the court clerks’ council, and Courthouse Technologies did not, King argued: “Every jury summons they have issued is invalid…. Why are you continuing to give money to a contractor that’s not doing what you paid for?”
To continue the practice “opens the floodgates” to other challenges, she said.
She called to the stand expert witness Jeffrey Martin, a mathematician who testified in the Ricks case and served as a consultant in the jury composition reform effort.
Martin testified 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 “records” of potential jurors from the court clerks council, but Courthouse Technologies somehow converted that into a list of 247,905, which McBride noted exceeds the county population, according to the census.
King said 2017 census figures show Muscogee had a population of 194,058.
Martin said many of the names among the 247,905 were not deleted but “deactivated” for reasons such as duplications, felony convictions or undeliverable addresses, but that still left 189,904, showing candidates were added to the court clerk’s list of 168,783.
Counties now are allowed to check “National Change Of Address” records and deactivate jurors from the clerk council list if they have moved away, but Courthouse Technologies was not authorized to do that at the time, and yet it did, Martin said.
Assistant District Attorney Veronica Hansis acknowledged the county made some “technical violations” in altering the jury list, but those did not raise any constitutional issues that would justify quashing the indictment, she said.
The rules of jury composition reform are only rules; they are not laws, Hansis said, and nothing Muscogee County did constituted the “systemic exclusion” of particular demographic groups. Its procedures were inclusive and in substantial compliance with the rules, she added.
She argued also that Martin did not have accurate numbers because the old jury list was deleted, and he did not have the proprietary software Courthouse Technologies uses for jury summons to recreate it. Martin tried to reconstitute the list on his own, so his numbers were unreliable, she said.
“There is just no legal basis for that request,” she said of quashing the indictment.
Monday’s hearing was expected to continue at a later date, as both sides delve further into the issues involved.
The defense said that were McBride to throw out the 2016 indictment, prosecutors could reconstitute a proper grand jury to re-indict the defendants.
Besides King, Haynie is represented by attorneys Foss Hodges and Jason Sheffield. John Martin represents Phillips. Chief Assistant District Attorney Al Whitaker is the lead prosecutor, aided by Hansis.
Smith’s body was discovered around 8 a.m. in his business, Kirby’s Speed Shop at 1438 Jacqueline Drive, where police believe he was shot about 9 p.m. the night before.
Haynie and Smith were going through a contentious divorce, and police allege Phillips at the time was her lover who conspired with her to kill Smith.
They came under suspicion because detectives believe Smith was killed by someone he knew and allowed into his auto shop. Investigators found no evidence that an intruder had broken in or that the killer wanted money.
All that was missing was a gold necklace Smith wore. He still had cash in his pocket, and more money was in a cash box in the shop.
Smith, 50, was shot once in the torso and again in the head with a Hi-Point 9mm pistol.