Fulton County murder charges against two men must be dismissed because prosecutors waited too long to indict the suspects and bring the case to trial, a divided Georgia Supreme Court ruled Monday.
In a 4-3 opinion, the state high court said a nearly four-year delay from the time of arrest to the indictments of Maurice Gleaton and Antonio Clark prejudiced and impaired their defenses. The two men were charged with the Aug. 7, 2005, killing of Kenneth Kemp at the Rachel's Walk Apartments in Atlanta. Kemp, 26, died from numerous gunshot wounds.
Kemp was the primary suspect in a murder committed the day before his death, and he was armed with a gun when he was killed, according to court records.
The court's ruling is one of a number this year in which Fulton murder charges were dismissed after findings the state denied the accused their right to a speedy trial.
In Monday's decision, the state Supreme Court noted that by October 2005, both Gleaton and Clark had been arrested and charged with Kemp's murder. Shortly after their arrest, two of the state's key three witnesses recanted and the third moved to Florida and was unwilling to testify. In November 2005, Gleaton and Clark were released on bond.
Over the next nearly four years, Fulton prosecutors conducted no further investigation of the case, the ruling said. Prosecutors ultimately obtained indictments against Gleaton and Clark in August 2009. Four months later, attorneys for both men filed motions to dismiss the case on speedy trial grounds.
The attorneys noted that by the time the case was indicted, the murder scene -- the apartment complex -- had been condemned, stymieing any investigation. Fulton Superior Court Judge T. Jackson Bedford dismissed the charges, finding the delay was caused by the state's lack of desire to prosecute a case that was lacking in evidence.
Writing for the majority, Justice Harris Hines agreed. The defendants cannot be penalized for failing to find witnesses or evidence in a case that took prosecutors almost four years to indict, Hines wrote.
"Simply, the stipulated facts show that the state effectively abandoned the case after the witnesses recanted," the statement said.
Justice Harold Melton, joined by Justices Robert Benham and David Nahmias, dissented. The defense could have launched an investigation at any time before the apartment complex was condemned, Melton wrote, adding there was no evidence to show when the complex was closed down.
Attempts to find Kemp's family for comment were unsuccessful.
Fulton District Attorney Paul Howard said he would ask the court to reconsider its decision.
"It is hard to believe that whether two alleged murderers stand trial for their crimes is in part or whole based upon natural deteriorating conditions (not caused by the state) of an apartment complex where the murder took place," he said.
Clark's attorney, Tony Axam, said the state Supreme Court's majority got the decision right.
"The evidence in this case was less than weak," he said. "There were no witnesses, no forensic evidence, no confessions, no eyewitnesses who placed Gleaton or Clark at the shooting."
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