Duke loses Supreme Court appeal

ATLANTA, Ga. (WALB) - The Supreme Court of Georgia has dismissed Ryan Alexander Duke’s application to appeal a pre-trial decision by an Irwin County court that denied his request for state funds to pay for expert witnesses when his case goes to trial.

The high court concluded that it does not have the authority to consider Duke’s appeal under Georgia Code § 5-6-34 (b).

The statute requires that before pursuing an “interlocutory” or pre-trial appeal, a party first must obtain a “certificate of immediate review” from the trial court. With today’s unanimous decision, the court also has overruled its 2000 decision in Waldrip v. Head, which stated the Georgia Supreme Court could bypass that statutory requirement in cases that involve “an issue of great concern, gravity, and importance to the public.”

“In short, Waldrip ‘constitutes blatant judicial usurpation of the legislative function, and cannot be considered to be the legitimate exercise of inherent judicial authority,’” Justice Charles Bethel writes for the court, quoting former Justice George Carley’s dissent in Waldrip.

More WALB coverage here....

In April 2017, Duke was indicted for malice murder, felony murder, aggravated assault, burglary, and concealing a death in connection with the 2005 death of Tara Faye Grinstead. Although initially Duke was represented by the Tifton Judicial Circuit Public Defender, in August 2018, private attorneys took over his case pro bono.

In the lead-up to Duke’s trial, they filed a number of motions, including a motion for state funding to pay for an investigator and defense experts. The trial court denied the motion, ruling that while Duke “has a constitutional right to be represented by private, pro bono counsel if he so chooses, he is not simultaneously constitutionally entitled to experts and investigators funded by the State.”

Duke’s attorneys then attempted to appeal the order to the Georgia Supreme Court under the procedures mandated by statute for an interlocutory appeal. The trial court, however, did not grant Duke’s certificate of immediate review. Without the certificate of immediate review, Duke’s attorneys nevertheless applied to the Supreme Court for an interlocutory appeal.

They asked the high court to exercise discretion under its 2000 decision in Waldrip v. Head to “bypass the statutory requirements for interlocutory review and address the substantive issues on appeal,” which Waldrip permitted in “exceptional cases that involve an issue of great concern, gravity, and importance to the public and no timely opportunity for appellate review.”

On March 28, 2019, in response to their emergency motion, the Georgia Supreme Court granted a stay in Duke’s trial, which was due to begin April 1. On May 7, 2019, the high court heard arguments in the case to consider whether it had jurisdiction to review the substantive appeal being requested and whether Waldrip should be overruled.

In today’s opinion, the court has determined that Waldrip should be overruled. “In handing down Waldrip, this Court enlarged its own power at the expense of the power the General Assembly has vested in trial courts to determine when an interlocutory appeal should be permitted,” the opinion says. For the reasons detailed in the opinion, “we overrule Waldrip to the extent it permits this Court to disregard the requirement set forth in § 5-6-34 (b) that a party must obtain a certificate of immediate review from the trial court before pursuing an interlocutory appeal not otherwise authorized by § 5-6-34 (a).

Because the trial court did not issue a certificate of immediate review in this case, this Court is without jurisdiction to consider Duke’s application for interlocutory appeal. His application is therefore dismissed.”

The attorneys for Duke are Ashleigh Merchant, John Merchant, and John Gibbs, III

Attorneys for the State are C. Paul Bowden, District Attorney, Bradford Rigby, Special Asst. D.A., Jennifer Hart, Chief Asst. D.A.

Prosecutors told WALB that the trial court will not be able to go back to submit a Certificate of Immediate Review because it has to be verified or signed within ten days of the order reviewed. That order was put into place earlier this year and the 10 day period allotted has passed.

Prosecutors said a new order has to be put in place in order for the trial court to consider sending it back up to the Supreme Court regarding the funding issue.

WALB was told by the prosecutors that they don’t know what Judge Bill Reinhardt will do now that the jurisdiction is back in his hands. They said most likely, there will be a pre-trial hearing in the upcoming weeks. We’re told that hearing will be a “where we are now” hearing and they will most likely discuss if they will address the funding issue or if they will set a trial date.

Copyright 2019 WALB. All rights reserved.