WATKINSVILLE, Ga. — Senior Judge of Superior Courts David Emerson ruled the case against Athens Clarke County District Attorney Deborah Gonzalez could proceed on Tuesday.
Immediately after, Gonzalez's legal team filed a motion, requesting a certificate of immediate review to allow the Georgia Court of Appeals to weigh in on that decision.
On Friday, Judge Emerson denied that request.
The legal wrangling comes after Athens business owner Jarrod Miller filed an application for a writ of mandamus, which is basically a civil lawsuit designed to compel an elected official to do their job.
While the lawsuit makes a broad range of accusations, the hearing Monday hinged on a memo Gonzalez sent shortly after taking office, announcing changes in office policy. It said in part, “(This office) will not charge simple possession of marijuana offenses, regardless of amount” and “will not charge possession of drug-related object offense.”
In the ruling, Judge Emerson stated, “It is the legislature’s role to decide what conduct is criminal. Judges interpret their laws. Prosecutors enforce them.”
About two dozen supporters came to the hearing and expressed their concerns about the lawsuit. Linda Lloyd said she elected Gonzalez because of her fresh approach to these types of crimes.
“We want to rehabilitate, to do restorative justice. Not just put someone in jail for 10, 15, 20 years,” said Lloyd.
Gonzalez’s attorney Derek Bauer argued in court that the memo was not a blanket policy, but a guideline for how Gonzalez wanted to proceed and that prosecutors still looked and every case to determine whether it would be in the interest of justice to charge the offense.
Bauer argued that if Miller was truly concerned with the DA’s actions, he should start a recall petition or request an impeachment from lawmakers. But Miller’s attorneys rebutted the argument, saying he is not trying to remove her from office, but instead, change the way she is performing her duties as the circuit’s top prosecutor.
If that’s the case, Judge Emerson ruled the lawsuit was a proper way for Miller to address any alleged “abuse of discretion.”
In response to the ruling, Miller's attorney Kevin Epps said, "We are pleased with the court’s decision. We are ready to advance the case forward so that the very serious issues raised in the petition can properly be presented at a trial."
On Wednesday, Gonzalez also responded to the ruling with this written statement:
I am deeply disappointed in Judge Emerson’s order denying the dismissal of the writ of mandamus. It is apparent that the arguments of the dismissal request were not properly considered, nor was the existing law properly applied. The decision effectively endorses the misuse of the writ of mandamus to deprive me and my office of our prosecutorial discretion and our obligations to make decisions in the public’s best interest instead of one discontented citizen’s personal beliefs.
How or which alleged crimes to indict or try, how to prioritize felonies over misdemeanors, how to offer or determine pleas, and/or how to advise or use a grand jury are all choices that fall squarely within the broad prosecutorial discretion afforded to all District Attorneys in this State and here in Athens-Clarke County.
If Mr. Miller is successful, permitting this action to proceed effectively means a superior court judge, whom the citizens of this District did not elect, will be “looking over my shoulder” going forward every day to decide if I am doing my job in a manner that the judge agrees with. The consequence is the disenfranchisement of you, the voters' choice, and the policies you, the voters, endorsed through the electoral process. It does not bode well for any elected official and, if permitted to continue, shows how easily the mandamus writ could be weaponized for political gain.