Suspended CEO Burrell Ellis in court for pretrial motions

With supporters in attendance wearing “I support Burrell Ellis” buttons, suspended DeKalb County CEO Burrell Ellis was in court March 31 and April 1 as his attorneys tried to convince a judge to dismiss the case.

Ellis must answer to charges of bribery, perjury and theft by extortion in a 14-count re-indictment handed down Jan. 16. He was originally indicted by a special grand jury in June 2013. The indictment containing 14 felonies came six months after Ellis’ home and office were searched by investigators from the DA’s Office as part of a special grand jury investigation into possible corruption at the county’s watershed department. After the indictment, he was suspended from office by Gov. Nathan Deal and replaced by interim CEO Lee May.

Attorneys for Ellis, who is asserting his innocence, are trying to convince Superior Court Judge Courtney Johnson to dismiss the case.

One of the motions Ellis’ team argued was one asserting that DeKalb DA Robert James’ office is engaging in selective prosecution.

However Lee Grant, deputy chief of the DeKalb DA’s Office, said that “to claim…selective prosecution…is actually a travesty.”

Ellis “is claiming he is being prosecuted because of who he is—because he is Burrell Ellis,” Grant said.

“This is not a protected classification,” Grant said. Ellis’ defense attorneys are “not showing…that he is being prosecuted because of membership in a select class. They cannot tender evidence. You can’t just put people on the stand, throw mud and claim selective prosecution.”

Dwight Thomas, one of Ellis’ attorneys, said the classification Ellis is in is “public officials.”

Thomas said other public officials are “doing the same thing and not being prosecuted,” referring to alleged misuse of county credit cards by county officials.

Grant countered, saying “’public official’ is not a protected classification. It is a job. It is not a classification.”

Ellis’ attorneys are also seeking to disqualify the district attorney, alleging that the James’ office has not turned over all of the videos recorded of Ellis.

Prosecutors told the defense team that there is only one video and it was not physically recorded by the district attorney.

“There is one video recording of Burrell Ellis,” said Cynthia Hill of the DA’s Office. “There is no other videotape to provide. There are no other audiotapes to provider. There is nothing else to provide.

“There is one video and they have it,” Hill said. “They have had it for almost a half a year.”

Thomas asked the judge to allow a neutral, third party to retrieve James’ “taxpayer funded computer in a taxpayer funded building,” deliver it to the Georgia Bureau of Investigation for a forensic evaluation to see if there are other videos of Ellis on it.

“We’re about trying to get to the bottom of the truth,” said Thomas, adding that previous testimony by Don Geary, a former assistant DA, points to the existence of more videos.

“Mr. James could voluntarily give up that taxpayer provided computer…and say ‘there’s nothing to hide,’” Thomas said. “Why not let neutral body …get the computer…and take a look at the images. If there are other videos we are entitled to them whether [prosecutors] want to use them or not. We have to know for sure.”

Hill said the defense team’s request is just an attempt to delay the trial.

On April 1, Ellis’ defense team argued a motion to suppress items in search warrant. Ellis’ attorneys maintained that discrepancies in former assistant DA Don Geary’s testimony illustrate that there has been an omission of evidence obtained from the search warrant. However, prosecutors countered, saying that there is no proof there was an omission on search affidavit. They argued the validity of the search warrant that allowed them to search Ellis’ Stone Mountain home.

The court also heard the state’s motion to strike the affidavit of Geary. Grant said the affidavit contains attempts by Geary to change his sworn testimony to be more in line with what defense team needs.

Grant said the affidavit contains more than 30 hearsay statements.

“All this hearsay of course is not admissible,” said Grant, asserting that the affidavit was allowed into evidence without an admissibility hearing. “All these are instances of hearsay.”

The witness list for the hearing included interim CEO May; Kelvin Walton, director and chief procurement officer of the department of purchasing and contracting, who is an unindicted co-conspirator and witness for the prosecution; and Nina Hall, a project manager with the watershed department and a former Ellis assistant; and former Ellis chief operating officer Richard Stogner.

During his testimony, Clay Nix, a former DA investigator and witness for the defense, was asked by Ellis attorney Craig Gillen, “Did there come a time when you believed that Kelvin Walton committed perjury before the grand jury?”

“Yes,” Nix said.

Ellis’ trial is scheduled to begin June 2.