Catoosa County sex cases hinge on agent's barred presence

District Attorney Herbert "Buzz" Franklin speaks to Assistant District Attorney Chris Arnt while he is on the stand appearing before Cobb County Superior Court Senior Judge Grant Brantley during a pre-trial hearing to determine if FBI agent Ken Hillman is guilty of impropriety while at the Catoosa County Courthouse on Monday, April 19, 2015.
District Attorney Herbert "Buzz" Franklin speaks to Assistant District Attorney Chris Arnt while he is on the stand appearing before Cobb County Superior Court Senior Judge Grant Brantley during a pre-trial hearing to determine if FBI agent Ken Hillman is guilty of impropriety while at the Catoosa County Courthouse on Monday, April 19, 2015.

After a judge said lawyers couldn't ask for a suspended FBI agent to come to court, a prosecutor asked for that same agent to come to court.

On May 8, during a pretrial hearing for eight pending cases in Catoosa County Superior Court, Judge Grant Brantley told the local court clerk not to issue any subpoenas for Special Agent Ken Hillman. The lead investigator on those eight cases, Hillman has been under a federal probe himself for two years amid allegations that he lied on police reports and to grand juries about how he conducted the investigations.

Two of the cases are supposed to go to trial in two months.

On May 11, three days after the ruling from Brantley, Lookout Mountain Judicial Circuit District Attorney Herbert "Buzz" Franklin asked for a subpoena anyway.

Clerk Tracy Brown initially issued the subpoena for Hillman, but then she asked Catoosa County Attorney Clifton "Skip" Patty for advice. After exchanging emails with the federal prosecutor leading the Hillman investigation, Patty told Brown to take back the court summons.

"When the DA insisted that he needed the subpoena," Patty said, "I told [Brown] to issue the subpoena in blank."

Translation: Invite Hillman to court yourself.

Franklin declined to comment this week. So did the U.S. Department of Justice, which is investigating Hillman, and a spokesman for the FBI's Atlanta office, where Franklin would send his subpoena.

Brantley said he could not discuss a case pending before him. But on May 8, he told the lawyers in court they could not subpoena Hillman because a federal judge told them not to.

photo Ken Hillman

U.S. District Court Judge Harold Murphy blocked subpoenas for Hillman on those cases twice: once in December, and once in March.

"The court will not look kindly upon having the opportunity to issue another order quashing subpoenas in this case," Murphy wrote on March 17. "All of the subpoenas and renewed subpoenas have been quashed, and counsel should not continue to argue otherwise, in this court or in any other court."

Long wait

Hillman once ran a "To Catch a Predator"-style task force. Police officers posed as parents offering to lend their children to strangers who wanted to have sex with the kids. When those strangers showed up to meet with the children, officers arrested them.

But the task force disbanded two years ago after federal prosecutors began investigating Hillman. Emerson Russell, a local businessman who gave Hillman an apartment where he could operate the task force, said his estranged wife had an affair with the FBI agent.

Russell said he and his daughter watched Angela Russell act like an undercover officer, chatting online with suspects. She told her husband she was part of the task force. Angela Russell is not a trained police officer, and Hillman did not mention her to grand juries when explaining how he investigated the cases -- a potential crime.

For the last two years, several cases tied to Hillman have been at a standstill. Before going to trial, defense attorneys want to know what federal prosecutors find in their criminal investigation of Hillman. Lawyers could use that information to show their clients' arrests were not proper.

Public Defender David Dunn does not want to wait any longer, though. At his request, Brantley scheduled his two cases to go to trial July 20.

That's why Franklin issued a subpoena for Hillman. While prosecutors have chat logs that show what defendants told undercover officers, they won't be able to introduce that evidence without Hillman: He was the one running the online chats, and he is the one who has to testify about them. This strips away the prosecution's key evidence.

Dunn said he was told this week that the prosecution wants to delay his cases, though they don't blame it on Hillman's absence.

They say it's because a different member of the task for isn't available that week.

photo Angela Russell

More conflicts?

Dunn also said Assistant District Attorney Alan Norton is now prosecuting his client's case. Dunn has no problem with that, but another attorney involved in the task force cases has protested Norton's presence.

Last month, defense attorney McCracken Poston argued during a pretrial hearing that every prosecutor in the Lookout Mountain Judicial Circuit should be disqualified, in part because of Norton.

Norton watched Hillman testify to grand juries before the task force disbanded. Because Hillman might have hidden Angela Russell's involvement when he testified, Poston argued, Norton might be a witness in a criminal case against Hillman.

And if Norton is conflicted, Poston said, his whole office is conflicted.

Franklin said in court earlier this month that Poston's argument does not make sense. Franklin said he can "wall off" members of his office -- meaning a conflicted prosecutor will stay away from the unconflicted prosecutors.

Norton did not return a call seeking comment. And Dunn, the defense attorney in the cases Norton is supposed to handle, has not protested.

But Poston still thinks Norton's presence is a problem.

"Alan is a good prosecutor," he said, "but I'm surprised he was put in this position because I intend to call him as a witness, and I would expect that most other lawyers in these cases would as well."

Poston is also upset that Franklin would subpoena Hillman when Poston couldn't do so for pretrial hearings. If Poston can't question Hillman beforehand, and if he can't look at Hillman's files beforehand, he believes he will have a hard time effectively cross-examining the FBI agent on the day of the trial, if and when that day ever comes.

Contact staff writer Tyler Jett at tjett@times freepress.com or at 423-757-6476.

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