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Burrell Ellis a free man, conviction reversed
Nov. 30, 2016 — Former DeKalb County CEO Burrell Ellis’s conviction for perjury and attempted extortion was overturned today by the Georgia Supreme Court.
I’m running out the door, but here’s court spokeswoman Jane Hansen’s excellent-as-always summary of the decision (and a link to the court’s full opinion).
The Supreme Court of Georgia has unanimously reversed the attempted extortion and perjury convictions against former DeKalb County Chief Executive Officer W. Burrell Ellis, Jr. for his alleged attempts to “shake down” a county contractor for campaign contributions.
In today’s opinion, Justice Harold Melton writes for the Court that while the evidence was sufficient to convict Ellis, due to technical errors, the criminal convictions against Ellis, who has already served his time in prison and been released, must be reversed. It will be up to the District attorney whether to retry him.
According to the facts at trial, in an effort to raise money to eliminate his campaign debt, in 2012 Ellis allegedly attempted to extort a campaign contribution from Power and Energy Services, Inc. through its co-owner, Brandon Cummings. Power and Energy Services, an Austell business, had a $250,000 contract with DeKalb County to provide generator repairs for its County Department of Watershed Management. Beginning in June 2012, Ellis made several calls to Power and Energy in an effort to procure a campaign contribution from the company, but apparently the calls were not returned. In a Sept. 27, 2012 recorded telephone conversation later played for the jury between Ellis and Cummings, Ellis asked for a campaign contribution four times and implicitly threatened Cummings that he would cut Power and Energy’s contract with DeKalb County if the company did not make a $2,500 contribution to his campaign. Specifically, Ellis said to Cummings: (1) He had already told the DeKalb County Procurement Director, Kelvin Walton, to “just go ahead and cut (Power and Energy’s) contract;” (2) “Why are we doing business with this company, that’s my thought;” (3) “You know, I could ask the question, why is DeKalb County doing business with a Cobb County business;” and, in response to Cummings’ question asking Ellis why Power and Energy should give to his campaign, (4) “If I’ve got to answer that for you . . . I’m probably not talking to the right person.” Cummings testified at trial that the call made him feel that his contract would be cut if he did not contribute, and that he felt “threatened.”
The next day, in another recorded telephone conversation, Ellis told Walton to “let (Power and Energy’s contract) expire,” and “put a note in their file” so that Power and Energy could never win another contract with DeKalb County. At the time, Walton was working as a confidential informant for the District Attorney’s office. Walton later testified that Ellis had encouraged him to put pressure on Power and Energy by letting them know that Walton had the power to cancel contracts. When Power and Energy did not make the requested campaign contribution, consistent with Ellis’ earlier threat, the company’s contract with the County was put on hold and the company’s work with the County ceased. Ellis informed Walton that Power and Energy’s contract was cut due to its failure to return his phone calls. Walton testified that it was Ellis’ idea for the County to cease doing business with Power and Energy, and that a company’s failure to return phone calls did not present a valid reason for the County to terminate its contract with that company.
On Jan. 7, 2013, Ellis was questioned by a Special Purpose Grand Jury impaneled by the Chief Judge of the DeKalb Superior Court to investigate the circumstances surrounding contracts involving the county’s Department of Watershed Management from Jan. 1, 2002 through Dec. 31, 2010. Despite the specific time period, Ellis was asked a number of questions related to events that occurred outside that time period, and some of his answers led to the perjury charges. Ellis told the grand jurors, “I don’t get involved in who gets work and who doesn’t get work,” and “I don’t make the call to…not give work to people.” He specifically answered “no,” that he had “never” ordered that a contract be canceled due to a vendor’s failure to return calls.
Ellis’ first trial ended in a mistrial after the jury was unable to reach a unanimous verdict. He was re-tried on nine counts in the indictment and on July 1, 2015, the jury convicted him of one count of criminal attempt to commit theft by extortion and three counts of perjury. (For sentencing purposes, two of his perjury counts were merged with the third so he was ultimately convicted of one count of perjury.) Ellis was sentenced to five years, with 18 months to be served behind bars. He was released from prison March 1, 2016. Instead of filing a motion for new trial, Ellis appealed his convictions directly to the Georgia Supreme Court.
In today’s 30-page opinion, the high court concludes that, “We find that the evidence presented at trial was sufficient to enable a rational trier of fact to find Ellis guilty of the two charges upon which he was ultimately convicted – one count of perjury and one count of attempt to commit theft by extortion – beyond a reasonable doubt.”
However, although the high court agrees with the trial court that Ellis’ constitutional rights to due process and equal protection were not violated, and it has upheld that part of the trial court’s ruling, “we must nevertheless reverse Ellis’ convictions based on certain evidentiary errors that occurred at his trial. Accordingly, we affirm in part and reverse in part to allow for a retrial on the charges of criminal attempt to commit theft by extortion and perjury.”
In today’s opinion, the high court finds that the trial judge made a harmful error in allowing a Special Purpose Grand Juror to testify at Ellis’ trial. The State introduced the grand juror’s testimony in an effort to prove that Ellis’ false statements to the special grand jury were “material” – or essential and key – to the grand jury’s investigation. However, whether a false statement was material “is normally an issue for the jury,” the opinion says. “Such testimony went directly to the issues being investigated by the Special Purpose Grand Jury, and served as a direct invitation for the jurors at Ellis’ trial to resolve the issue of materiality consistent with the ‘opinion’ of the individual Special Grand Juror. This was inappropriate.”
“We must therefore reverse Ellis’ conviction for perjury to allow for a new trial on the perjury counts against him,” the opinion says.
The trial court also committed reversible error by prohibiting Ellis from presenting any evidence of his interactions with several other vendors who were not named in the indictment. At trial, the defense wanted to call several other vendors to testify that there was no retribution from the County or Ellis for not contributing to his campaign. In today’s opinion, the high court concludes that the evidence should have been admitted because “the State opened the door to the admission of this evidence.”
During questioning of Walton, the prosecutor asked him about a recorded conversation he had with Ellis, in which Ellis had said, “You know me. I’m not pressuring anybody….I’ve never once said, ‘don’t do business with somebody because they won’t contribute to my [campaign].” Asked by the prosecutor whether “that general comment” that Ellis “doesn’t pressure people” was consistent with his experience, Walton responded, “No it was not.”
Because the defense had been limited to speaking only about the vendors who were the subject of the indictment against Ellis, “we conclude that the State went beyond the boundaries that had been imposed on the defense,” the opinion says. “By doing so, the State created an implication that Ellis had a general policy of pressuring vendors to contribute to his campaign and that Ellis was being dishonest when he stated in one of the recordings that he did not have a problem with, or seek retaliation against, vendors who did not contribute to his campaign.” As a result, “the State opened the door for Ellis to defend himself against that implication by presenting evidence of his own about his interactions with other vendors besides those listed in the indictment.”
“We must therefore reverse Ellis’ conviction for attempt to commit theft by extortion to allow for a new trial on this charge as well,” today’s opinion concludes.