CRIMINAL CONTEMPT OF COURT INQUIRY
The Court ORDERS the following persons to appear before the Honorable John Simpson on July 10, 2019 at 9:00 a.m. at the Carroll County Courthouse, Courtroom C: District Attorney Herb Cranford, Assistant District Attorney Lara Myers, Assistant District Attorney Matthew Swope, Sergeant Chad Barrow, and Trooper Brandon Stone. At this hearing the Court will conduct an inquiry into issues concerning the potentially contumacious actions of District Attorney Herb Cranford, Assistant District Attorney Lara Myers, and Assistant District Attorney Matthew Swope, that occurred before, during, and after the trial of A.J. Scott. The Court seeks information regarding the video presented during States closing argument on May 17, 2019, and the details of the circumstances giving rise to the ultimate mistrial. More specifically, the Court requires that this inquiry focus on, at the minimum, the following:
1) The State played a video during closing argument involving the dash cam
video from the Defendants car. This video was different from the video stipulated into evidence in that that the following were embedded into the video: a speed limit sign, an intersection sign, flashing arrows, and a speedometer.
2) On March 15, 2019 State Trooper Stone notified the District Attorneys Office of a new theory he formed based on the accident evidence. As a result of this notice a meeting was held on March 28, 2019. At this meeting expert witnesses Trooper Stone and Trooper Barrow revealed their newly formed theory that Kylie Lindsay was located in the front compartment of the Nissan vehicle. During a hearing held on May 22, 2019 Troopers Stone and Barrow testified to their new findings and what was discussed at the meeting as follows:
Prior to I believe it was March I believe the trial was supposed to go March 18th, or thats when the motions were. I was preparing for trial and had a colleague go over the case with me to make sure I had everything taken care of, and he questioned the ejection of Ms. Lindsey. When I started looking at that, it came to me that there was something different about why she was ejected. She was the only one ejected from the vehicle. Looking at the video, we were able to take the video to Southern Crescent Technical College and have the audio visual department enhance it by lightening it so you could see better to see if we could see right before impact who was sitting where. And right before impact, you do see what appears to be a blonde head, which Ms. Lindsey was the only blonde in the car. Everyone else had dark hair. That blonde object or light-colored object is in the forward sitting position, meaning somewhere in front, the drivers area. Now, you cant tell exactly what were looking at here, but it is a bright object that is lighter colored.
After reviewing Trooper Stones findings, Trooper Barrow similarly started to question his first impressions about the case:
[B]ack when we were discussing pre-trial the trial got continued of course to this date, but when we were preparing pre-trial when Trooper Stone contacted me, he came across some evidence that the right front passenger window was indicative of someone getting ejected out that window which we did not have in our evidence at that time, but he got me to start pulling up pictures and as I did I was like, youre right. At that point is when we decided to take another look at the video Once Trooper Stone discovered this and contacted me, and we started looking at the evidence, then it started coming together that if shes sitting where we saying shes sitting then this could be a factor in the case.
Trooper Stone testified to the direction of the impact as follows:
The impact itself due to the momentum of the car and the momentum of the Nissan and the momentum of the Dodge, when theyre struck theyre going to go like I said toward that right front side of the Nissan, so everybodys going to move that way. Theres no indication that the front seats of this car had been struck or loaded by a body.
Theres no indication that an object, being a person, loaded forward and struck [the two front) seats. Normally in my training and experience, I see that theyre hit and actually bend forward. Its a lot of momentum. Theres nothing to indicate that.
[T]he passenger door has some outward loading or inward loading going out which would indicate that something loaded against that. I realize there is a person sitting in the right front seat, but the loading is to the top window which makes me believe that if something goes out that window its slightly higher than the seated position of the seat meaning that someone is either leaning over sitting on the console area, somewhere in that front area higher than the seated position.
Trooper Barrow explained the probative value of the new finding:
Trooper Stones the one that brought it alive, and then we as the SCRT team started discussing the theory, and then all of a sudden it was pretty obvious that she was not sitting in the back left.
My opinions pretty much have been maintained and stayed the same throughout this whole case from the beginning to end, and that ( is Ms. Lindsays position in the front compartment] just another factor that we would have added to the case and the reason why we did so.
If shes sitting or leaning through the middle console or sitting in the front passenger seat, yes, she would have obstructed the drivers view and possibly distracted his view from making this turn.
Theres nothing to say, like you said earlier, how she was sitting, where she was sitting, where she was leaning except the evidence of the fact that she is somewhere forward of the two front drivers seat or at least more of her body than none.
No, sir. I still had the same theory that I just mentioned to him, and this just added to the fact that there would be another factor in the case. And thats why we had the meeting with (the District Attorneys Office).
Trooper Stones testimony additionally provided critical conclusions concerning the new finding:
There is a probability that Ms. Lindsey is in the forward sitting position in the vehicle.
The question is whether the driver of the Nissan, what they could see. And of course if someone is there to their right as theyre making a left turn, its going to hinder them to see.
Okay. And as an accident reconstructionist whos testified before in trials, you testified earlier that you had, would that be a factor that you would consider important? It could be, yes, sir.
It would be speculation to guess when she entered that front area, right? In the video when she did, I can tell you in the video that it appears that shes in it just seconds before the crash.
Well, if you have somebody up front thats in a higher seating position or higher area, higher than the seat is itself, as it moves forward, they go out the window.
The State did not disclose the above information to the Defense. This Court, on May 24, 2019, found this non-disclosure to be a violation of Brady v, Maryland, 373 U.S. 83 (1963), and a violation of Georgia Rule of Professional Conduct 3.8(d). The purpose of this hearing will be to inform the Court whether criminal contempt proceedings will move forward. In the event that such charges arise, any individual so charged will be given specific notice of the charge and an opportunity to be heard. At this hearing, and at all subsequent hearings, the District Attorney and Assistant District Attorneys are made aware that they are entitled to all of the rights afforded to them under the United States Constitution which include, but are not limited to, the right to the presumption of innocence, the right to confront witnesses, the right to testify, the right to offer evidence, the right to representation by attorney, and the right against self-incrimination.
Pursuant to O.C.G.A. § 15-18-5 the District Attorneys Office shall notify the Attorney Generals office of its disqualification from prosecuting this matter. In the event the District Attorneys Office fails or refuses to notify the Attorney General, Judge Simpson will notify the Attorney General.
SO ORDERED this 4 day of June, 2019.
Hon. John Simpson
Superior Court Judge
The Coweta Judicial Circuit