ATLANTA — An attorney for a former Atlanta police officer charged with murder is asking the Supreme Court of Georgia to throw out the indictment.
On Tuesday, a defense attorney for ex-Atlanta officer James Burns argued he was stripped of specific rights during a 2018 grand jury hearing where he was indicted and charged with murder.
"The right to be present with counsel and the right to be present and give a statement if they so choose without being subject to cross-examination or rebuttal by the state," said defense attorney Marissa Goldberg during her comments before the court.
The case before the State Supreme Court appears to hang on whether a state law as written at the time of the alleged crime, or if an amended version of the law on the books at the time of grand jury proceedings should be applied in court.
In June of 2016, Burns was responding as backup to a call about an alleged suspicious person, possibly breaking into cars, at an apartment complex off of Monroe Drive, when 22-year-old Caine Rogers was driving down the street.
Burns put his lights and siren on and pulled in front of Rogers' car, but Rogers tried to drive around him. Burns fired a single shot into the passenger side of the car, hitting and killing Rogers.
Initially, Burns allegedly told investigators Rogers tried to run him over with a car, but an internal affairs investigation found Rogers posed no threat to Burns. Dashcam video released in 2020 showed there was no attempt to ram the officer's car head-on or otherwise run him over.
In August of 2016, the Fulton County District Attorney's Office presented its case against Burns to a grand jury.
At the time of the shooting, state law allowed officers who were the subject of grand jury proceedings to be present along with their defense counsel. They could also make a statement to the grand jury and couldn't be questioned by prosecutors.
But after the shooting and before the grand jury proceedings in Burns' case, the state law was amended and officers could no longer have their attorney present; if the officer made a statement they could be questioned by prosecutors.
"There was uncertainty in the DA's office as far as which version of the statutes would apply," Ruth Pawlak, assistant district attorney with Fulton DA's office, told the supreme court justices.
Pawlak described how prosecutors were unsure if they should apply the original or amended law to the case. Out of caution until the law was further reviewed, Pawlak said prosecutors proceeded forward under the old version of the law, giving Burns more rights.
Burns was indicted, but for unrelated reasons, the indictment was dropped in early 2018. In September of 2018, prosecutors presented the case again to a grand jury and this time applied the amended law. Burns was re-indicted and charged with murder.
"You said the former statute would apply and then once the re-indictment came you all went with the amended statute. What was that reasoning," Justice Verda Colvin asked Pawlak.
In response, Pawlak said a similar case had set precedent in Georgia between the two grand jury proceedings in the Burns case, leading to prosecutors to believe the amended law should be applied.
However, Burns' attorney continued to disagree with Pawlak as arguments before the state supreme court ended, urging the court to toss out the indictment.
"The general presumption is that the laws apply at the time of the incident. So, that is our argument," Goldberg said.
Chief Justice David Nahmias told attorneys the court would issue a ruling as soon as possible.