Judge rules on whether suspended DA Mark Jones can keep his lawyer. Here’s what she decided
The judge in suspended Columbus District Attorney Mark Jones’ upcoming trial for alleged misconduct has ruled that Jones’ attorney Christopher Breault cannot continue to represent him.
Visiting Judge Katherine Lumsden decided that Breault no longer may serve as Jones’ lawyer because he is a material witness in the case, having been cited in evidence Deputy Attorney General John Fowler will introduce at Jones’ trial.
Lumsden issued that ruling Monday, just days after Breault and Fowler argued pretrial motions in an often contentious two-hour hearing.
Fowler moved to disqualify Breault after citing Breault’s Facebook messages with a witness in a murder case as indicative of Jones’ questionable conduct, alleging Breault was acting on Jones’ behalf, but did not tell the witness that.
The prosecutor first cited Breault’s contacting the witness in a motion filed Oct. 6, when Jones still was acting as his own attorney. Breault began representing Jones at Jones’ arraignment on Oct. 12.
Breault said Monday that he will ask Lumsden to let him appeal his disqualification to the Georgia Court of Appeals.
‘Mr. Breault must be disqualified’
The witness that Fowler said Breault contacted is Andrew Loyd, who may testify at Jones’ trial. Breault, in Facebook messages exchanged April 19, offered to represent Loyd to persuade him to be a witness in the murder trial of Drevon Johnson, charged in the 2016 fatal shooting of Richard Collier.
In her order filed at 11:13 a.m. Monday, Lumsden wrote: “Here Mr. Breault is a material witness, he alone possesses information about the circumstances under which he became involved in securing the cooperation of Mr. Loyd on behalf of the defendant. He alone has information to contradict any testimony provided by Mr. Loyd either in support of the defendant or the state. He agreed, at least in theory, to represent Mr. Loyd against the state, i.e. the defendant district attorney. Mr. Breault must be disqualified.”
Breault contacted Loyd after Jones messaged the witness and got no response. Lumsden wrote this is relevant to evidence that Jones tried to persuade an investigator with the DA’s office, Jeff Carter, to get a warrant charging Loyd with murder in Collier’s fatal shooting, so that Loyd could be held in the county jail.
Of Breault’s exchange with Loyd, Lumsden wrote: “The use of the defendant’s private lawyer/friend (not law enforcement or the DA’s investigator) to find and persuade a witness is unheard of and fraught with ethical problems.... However, trying to explain the ethical issues this conduct creates for a member of the bar and how Mr. Breault’s conduct is properly attributable to the defendant potentially takes us far beyond the defendant’s case being considered by this jury.”
The latter concern is outweighed by the evidence involving Carter, she wrote: “The state alleges the defendant solicited Investigator Carter to seek a murder indictment, without evidence, against this recalcitrant witness.... The court finds the first bad act (Mr. Breault’s attempt to bring in Mr. Loyd) is not in and of itself admissible but is relevant and admissible as demonstrating the motive and intent behind the defendant’s wish to indict Mr. Loyd for murder.”
Breault represented Jones in a September trial on felony charges Jones damaged the Columbus Civic Center parking lot while filming a 2020 campaign video. That ended in a mistrial, and the charges finally were dismissed in an order Superior Court Judge Jeffery Monroe signed Oct. 22. Records show that dismissal also was filed Monday morning, around the same time as Lumsden’s order, which was dated Oct. 23.
Jones was indicted Sept. 7 on nine felony charges alleging he tried to influence witnesses, to persuade a detective to commit perjury, and to bribe staff prosecutors by offering them $1,000 to win convictions in murder cases.
During Thursday’s hearing, Breault asked Lumsden what was wrong with Jones’ offering bonuses for murder convictions. Lumsden said it’s illegal.
“You cannot pay your employees by conviction,” she said. “The law is very clear.... It’s prohibited by state statute, Mr. Breault.”
It was one of several spirited exchanges between Breault and the judge, who at one point warned Breault he was “perilously close” to being disrespectful to her.
Breault said Monday that Lumsden still has not cited the state law to which she referred, despite his request for a specific code section.
Other issues
Lumsden decided police body-camera footage will be allowed at Jones’ Nov. 8 trial. The recording shows Jones talking to officers outside a Broadway bar called The Hooch, where he’s accused of trying to influence a detective’s testimony in a homicide case. The detective is Cpl. Sherman Hayes, whose testimony Jones allegedly tried to influence in a fatal shooting police found to be accidental.
Lumsden granted nearly all of Fowler’s motions related to evidence allowed at the trial, with one exception: She rejected telling the jury about Jones’ seeking the death penalty in the cold-case homicide of Columbus auto shop owner Kirby Smith.
When attorneys for the suspects in that case sought to have the charges dismissed, after prosecutors defied court orders to turn over their evidence, Jones countered by saying he’d seek the death penalty, and argued the defense attorneys were not qualified to handle a capital case.
Judge Gil McBride found this maneuver to be vindictive, and Fowler claimed it was evidence of Jones’ trying to win murder cases at any cost. But Lumsden ruled the risk of “unfair prejudice” and confusion likely resulting from raising this issue outweighed its value.
Among the prosecution’s other motions she granted were:
- Jones may not tell jurors he was suspended from office, or that he will be removed from office if convicted.
- Jones may not tell jurors about being accused of damaging the civic center parking lot, nor claim he was subjected to “selective prosecution.”
- Jones may introduce no hearsay evidence, and elicit no character evidence maligning state witnesses.
- Fowler may present evidence that Jones’ offered a prosecutor $1,000 to secure a conviction in a murder case.
Though Jones continues to collect his salary, Gov. Brian Kemp suspended him from office on Oct. 4, acting on the recommendation of a review commission that said Jones’ indictment adversely affected the district attorney’s office and the public interest.
This story was originally published October 25, 2021 at 11:56 AM.