Barry Davis pleaded guilty in Chatham County Superior Court in August 1995 to a charge of aggravated sodomy on a 4-year-old girl. Under the open-ended plea, he was sentenced to 10 years in prison with two to serve and the remainder on probation. He was required to register on the state’s sex offender registry.
Eighteen years later, the state Board of Pardons and Paroles granted Davis a pardon, and he stopped registering as a sex offender. His attorneys contend that is not a crime because of his pardon.
Chatham County’s prosecutors disagree.
On Feb. 26, 2014, a Chatham County grand jury indicted Davis for violating the sex offender registration statute for failing to update his new address with the Chatham County sheriff’s office.
For District Attorney Meg Heap and her chief assistant, Greg McConnell, the case has been an eye-opener. It began with the pardon. They received no notice it was even being considered and have been given no justification for it.
“We discovered a flaw,” Heap said, one she calls “the big black hole of no accountability, no transparency and no information.”
The five members of the pardons and paroles board, appointed by the governor, “hide behind state secrecy” in a world she found was dismissive bordering on arrogant.
Heap and McConnell spearheaded action with the Prosecuting Attorneys’ Council of Georgia in the recently completed session of the Georgia General Assembly to change the rules to craft a fix. House Bill 71 is awaiting Gov. Nathan Deal’s signature to become law.
That law would require the board to give victims and prosecutors the right to be heard on pending pardons and would bring openness to the process that has been lacking.
While prosecutors did not get all they wanted — the “state secrecy” remains — Heap said, “We’re pleased with what we have.”
How we got there
Davis, 57, who now lives in Charlotte, N.C., remains on a $4,500 bond under the Chatham County indictment as prosecutors and defense attorneys renew their sparring over the legal arguments involved.
Those issues before Chatham County Superior Court Judge Penny Haas Freeseman are not expected to reach a ruling before late summer. Even then, they face almost certain appeals by the losing party.
Davis was released from prison on July 15, 1997.
On Feb. 13, 2013 — 18 years after his conviction — he was pardoned by the Georgia Board of Pardons and Paroles. Davis then refused to comply with the state’s sex offender registry requirements, according to court documents.
In her statement of facts in the Davis case, which were filed with the court, Assistant District Attorney Lyndsey Rudder said Davis was pardoned on Feb. 13, 2013, “on the grounds that he was a law abiding citizens and had been rehabilitated; he was not pardoned on grounds of actual innocence.”
That same date, Davis “also received a restoration of his civil rights,” but “did not receive a full restoration of his civil rights” because the board did not restore his rights to possess a firearm.
In a footnote to that same document, Rudder said, “The board never states that a sex offender who has received a restoration of rights is relieved of the requirements of the sex offense statute.”
The prosecutor also said that on the day after his pardon, Davis renewed his sex offender registration at the Chatham County Sheriff’s Department.
He “was warned that regardless of his pardon he was required to continue (to) register as a sex offender,” the prosecution document said.
Then Davis moved to Charlotte, N.C., without notice to the local sheriff’s office.
On Jan. 22, 2014, Davis registered as a sex offender in Mecklenburg County, N.C., claiming he had just moved there, the state contends. He had been living there since March 15, 2013, the state contends.
The defense side
Meanwhile, Davis’ attorney, Assistant Public Defender Amy Ihrig, contends the parole board’s actions are not subject to review, even by a court, and that Davis’ prosecution should be dismissed as a matter of law.
Because he was pardoned, he is constitutionally protected from prosecution for the alleged crime, she argued.
In court documents responding to the prosecutor’s motion to unseal Davis’ file, now barred by “state secrecy,” Ihrig contended the pardon records were not relevant to the pending prosecution because the validity of the pardon was not something that can be determined by the district attorney or the courts.
In Georgia, “there exists a bar to review, either judicial or otherwise, of the validity of a pardon,” she wrote. “This is because the Georgia Constitution and the doctrine of separation of powers vests in the state Board of Pardons and Paroles the sole authority and power to issue a pardon.”
And she said, “Appellate courts of this state affirm that no other branch of government, including the judicial branch, has legal authority to address actions by the state Board of Pardons and Paroles.”
Her position is supported by Assistant Attorney General Rebecca Dobras who told Freesemann during an April 7 hearing that “they’re still our records. … (the board) still has an interest in keeping these records classified.”
She called them “confidential state records,” adding the district attorneys “have just been speculating on what may be in this file,” adding what the prosecutor wanted was not relevant.
“Why do you need the file?” she asked. “What do you hope to see?”
During the hearing, Rudder told Freesemann she needed to see the records “because I think there are absolutely could be an indication there was fraud inside the pardon” stemming from false information, etc.
Dobras responded that a pardon isn’t subject to judicial review, so it doesn’t matter what was said.
“It doesn’t matter what they reviewed. It doesn’t matter if there’s fraud. ... It doesn’t matter that they have allegations of fraud or allegations of incompetence, none of that matters,” Dobras said.
“The fact is he was pardoned. ... And even if you find they’re not confidential state secrets, they’re still irrelevant to the criminal proceeding at hand.”
The McConnell factor
McConnell, Heap’s chief assistant, is a 31-year veteran prosecutor who served four years with the Smyrna Police Department in Cobb County and is known for his dogged approach to cases.
He was incensed over the parole board’s failure to notify either local prosecutors or the victim’s family about Davis’ pardon and about the board’s repeated refusals to unseal Davis’ file to shed light on why they granted him a pardon.
McConnell testified before Freesemann this month that he has “at least five times” requested that the board unseal the record, most recently on Feb. 15.
For the prosecutors, the problem is twofold.
First, Heap said board members hide behind a “state secrets” veil that she said poses “a lack of transparency that just opens itself to fraud occurring.”
In the Davis case, she said, he went to the victim “under the guise of reconciliation and then tried to get her to recant what happened, but she refused.
“This is what the law needs to protect.”
Secondly, Heap said the board’s policies run counter to the state’s Victims’ Bill of Rights that make sure victims of crime have a voice throughout the criminal justice system.
“From arrest, bond, hearings, whatever happens, the victim has a right to be notified,” Heap said. “We were never told.”
For McConnell, it runs deeper.
He recalled sitting in his office one day when “out of the blue” he received a call from the Chatham County Sheriff’s office reporting that they had a registered sex offender (Davis) who said he did not have to register because he had a pardon.
“That was the first time I learned about it,” he said.
When he inquired, McConnell said, he was told the pardon was in the defendant’s file in the Chatham County Superior Court Clerk’s office.
When he asked further if the board would share the reason for the parole, he was given the “state secret” response.
On at least five occasions, all in writing and by certified mail to the board, McConnell’s requests were denied or ignored.
“They never informed the victims or prosecutors of an impending pardon,” McConnell said.
A pardon may be granted because an offender has been rehabilitated and determined to no longer be a threat or actual innocence has been established.
“We’d like to know what they looked at to determine that he’s been rehabilitated,” Heap said. “But we were told it is a state’s secret.”
“They can pardon whomever they choose, but we want to know who and when they have been pardoned.”
Recurring issue
The issue is not a new one.
After a hearing in February 2014, Chatham County Superior Court Judge Timothy R. Walmsley granted a defense motion to quash a prosecution subpoena for Albert Murray, the parole board’s chairman.
“The court finds that the requested documents are classified as a state secret pursuant (to law) and are thus exempted from disclosure,” Walmsley ruled.
He also determined the records were “not relevant” to the grand jury’s inquiry.
But Walmsley added, “The court has expressed reservations and concern with the current pardoning process and the apparent lack of notification to victims and the prosecuting attorneys.”
He urged the board to work with prosecutors “in possible pardon situations and to consider the likely effects on the victims and criminal process for failure to do so.”
He also “encourages” the board to reconsider its refusal to declassify the documents McConnell requested and ordered a copy of the board’s file be submitted to the court under seal.
Walmsley ruled the board’s records were not relevant to the grand jury proceedings, and the Court of Appeals in December dismissed the matter as moot because the grand jury had returned an indictment in the case.
BREAKOUT
WHAT OTHER STATES DO
A review of pardon and parole programs nationwide found that 40 states allow for gubernatorial pardons, either with a board making recommendations to the governor or those in which the governor acts alone.
In 10 states, systems similar to Georgia’s — a board of pardons and paroles with no oversight — are used. Those include Alabama, Connecticut, Minnesota, Idaho, Nevada, South Carolina, Texas and Utah.
In South Carolina, an offender required to register as a sex offender may only be removed from the registry if the pardon is based on a “finding of not guilty specifically stated in the pardon.”
In Texas, the duty to register as a sex offender is not affected by a pardon unless it is based on a “subsequent proof of innocence.” ..Source.. by Assistant District Attorney Lyndsey Rudder
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