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COLE from 1A
Forsyth County Solicitor’s
Office accused the Magistrate
Court of withholding evidence
in a criminal prosecution. The
Sheriff’s Office was not
amused when Cole’s staff hit
the panic button because a
local attorney attempted to
serve a subpoena on the mag
istrate. A rush of deputies
arrived thinking there was an
emergency.
In addition, several people
have complained of problems
with obtaining records and
receiving court summons in
time.
However, the chief magis
trate’s breaking point came
two weeks ago when an attor
ney accused Cole and her staff
of engaging in a “pattern and
practice” of denying prelimi
nary hearings to men and
women stuck in the county
jail.
Since her election in 2000,
Cole has never granted an
interview to the Forsyth
County News but she said
attorney Billy L. Spruell’s
accusations went too far and
demanded a public response.
A little more than two
weeks ago during a hearing in
the Forsyth County Superior
Court, Spruell said Cole’s staff
refused to accept a hand-writ
ten request for a preliminary
hearing for his client Ray
Kenry Walley, a 40-year-old
man sitting in jail on charges
of aggravated sexual battery,
child molestation and cruelty
to children in the first degree.
In a follow-up interview,
Cole flatly denied the accusa
tion that her staff denied
Spruell’s written request.
“I have asked each one of
them this morning if that had
happened and they said that
did not happen,” Cole said.
“Mr. Spruell had been repeat
edly asked to put whatever he
needed in writing and he
repeatedly refused. He has,
from what my staff has told
me, he has acted pretty
abysmally up front.”
The magistrate went on to
say that she plans to review
the attorney’s courtroom com
ments and possibly file a com
plaint with the State Bar of
Georgia. Her staff will prepare
sworn affidavits to back up the
assertion that the attorney
“lied” about his dealings with
the Magistrate Court, Cole
added.
When asked for his
response, Spruell said he did
not wish to comment any fur
ther on the incident.
Men and women arrested
in Georgia who have not been
indicted and have not left the
jail on a bond are entitled to a
preliminary hearing, also
known as a commitment hear
ing. where prosecutors must
show “probable cause” that
the accused committed the
crime. Defense attorneys may
also attend the hearings and
present evidence that their
client is innocent.
In Forsyth County, those
hearings are typically con
ducted in Magistrate Court.
If the magistrate agrees
with the findings of the prose
cution, the case moves for
ward through the judicial sys
tem. But if there is not enough
evidence to show probable
cause, the person who had
been arrested must be released
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from custody.
Spruell said at the hearing
that he recently went to the
Magistrate Court to inquire
about a preliminary hearing.
He said the Magistrate staff
demanded that he put his
request in writing. So, the
attorney said he simply
scrawled out a request on a
piece of paper. Spruell said the
staff would not accept the
note.
When they refused it,
Spruell said he requested to
speak with Cole.
But, “I was told the judge
would not see me,” Spruell
said.
He then asked for an
appointment but, once again,
he was turned down.
When his efforts failed,
Spruell filed the lawsuit say
ing that his client’s right to a
preliminary hearing had been
violated by the Magistrate
Court.
Within 72 hours of an
arrest, the Magistrate Court
needs to either conduct a pre
liminary hearing or set a date
for one, the attorney said.
Cole said she did not speak
with Walley but a part-time
magistrate, Roger J. Bauer,
met with the accused man dur
ing a first appearance hearing,
also known in legal circles as
a “72-hour hearing” because
of the requirement to bring an
arrested person before a judi
cial figure within three days of
their incarceration.
At the 72-hour hearing,
Cole said all magistrates
apprise defendants of their
rights to a preliminary hear
ing. She said Bauer told
Walley about those rights and
the defendant asked to speak
with his attorney, Spruell.
Since the defendant wished
to speak with his attorney,
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Bauer did not schedule the
preliminary hearing at that
point.
“Mr. Walley was not
scheduled with a [preliminary]
hearing because he wanted to
speak with his attorney,” Cole
said. “When we have an attor
ney involved in it, we try to
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work the [preliminary] hear
ing in so that everybody can
come because we have to have
the [District Attorney’s] Office
come and we try to set this up
on a week when there’s no
trial.”
When Spruell later came to
the Magistrate Court to
FORSYTH COUNTY NEWS Sunday, February 1,2004
inquire about scheduling a
hearing, Cole said the attorney
refused to place the request in
writing and then came to court
and said he did.
“My clerks were very
upset,” Cole said. “This has
been going on for over a
month. I think what he was
after was the fact that if he
couldn’t have anything in
writing and could say his con
stitutional rights had been vio
lated Mr. Walley could be a
free man. It’s a novel
approach but it wasn’t true.”
As for Spruell not being
able to get an appointment,
Cole says she declined
because it would be consid
ered an “ex parte communica
tion” which is not permitted
by court rules.
“He should know better
than that,” she said. “If we’re
going to have a communica
tion about a case, the prosecu
tor needs to be there as well as
him. What happens is you get
everybody together so that one
person doesn’t ask for any
thing that is out of the earshot
of the other, because you’re
supposed to remain neutral.”
The chief magistrate said
her staff told her about
Spruell’s reaction when thef
informed him of her decision
not to speak with him.
“He made gestures and
threats and so forth like
they all do up there,” she sait]
with a wave of her hand
towards the front counter area.
She’s come to believe
attorneys feel like they can
treat her differently. She said
that “because our building is
away from everybody else’s,”
attorneys come to Magistrate,.
Court and behave in ways‘.
they’d dream of at the main
courthouse across the street.
“I have put up with a lot of
crap from defense attorneysi
who have made a lot of pot
shots at me ... because they’re
not getting their way,” she
said. “And, I’m sorry, this is
not what I was elected to do. It
was to be a fair playing field
for everybody and Mr. Walley
will get just as fair a hearing
as anybody has ever had.”
As of Friday, Walley’s pre
liminary hearing had been
scheduled for this Thursday in.
Magistrate Court.
PAGE 9A