Prosecutors Want Crocker Defense Attorneys Held in Contempt

The only death penalty case pending in the Ogeechee Circuit has been slow going since it began, but has been at a near-standstill for more than a year. Now, prosecutors are asking a judge to hold defense attorneys in contempt, but defense attorneys say the state has not provided all of the evidence it should and sought an ‘unlawful order’ from the judge.

State Says Defense Not Following Discovery Orders

The pending criminal case against Elwyn John Crocker, Kimberly Renee Wright, and Mark Anthony Wright has stalled due to actions – or a lack thereof – by defense attorneys, prosecutors say.

In a motion filed last week in Effingham County Superior Court, Assistant District Attorney Matt Breedon asked a judge to compel the defense to provide their discovery and for defense counsel to be held in contempt. Additionally, the motion asks for sanctions of defense attorneys.

According to court documents, on May 19, 2023, Judge F. Gates Peed ordered all discovery to be provided by both the State and the Defense by August 15, 2023. In criminal court proceedings, ‘discovery’ is a formal process of exchanging information, including witness lists and information on which evidence will be or may be presented at trial. Prosecutors say that as of July 8, 2024, no mitigation discovery had been provided by the defense.

“Defense counsel has repeatedly refused to comply with this Court’s orders regarding the disclosure of discoverable information,” the motion reads. “Therefore, the State respectfully requests that this Court compel defense counsel to comply with this Court’s orders and to impose any sanctions that this Court deems appropriate for these willful violations.”

Prosecutors subsequently requested a hearing be set on the matter, but one has not yet been scheduled. The motion denoted Judge F. Gates Peed, however, Peed was removed from the Crocker component of the case in 2023 after a series of motions and hearings regarding ex-parte communication with Peed on the part of District Attorney Daphne Totten’s office. According to court records, the State v. Elwyn Crocker case is now assigned to Judge Michael Muldrew. Peed remains the judge for the cases against the other defendants in the case.

This isn’t the first time prosecutors have filed a motion to compel discovery. The same motion was filed against Crocker’s attorneys on December 14, 2023, but no hearing was scheduled by Judge Muldrew and no additional discovery has been provided by the defense.

Defense Attorney Says State Hasn’t Met Discovery Timeline Either

• Elwyn John Crocker is currently represented by Jerilyn Bell and Kara Stangl, both of the Georgia Capital Defender’s office.
• Kimberly Renee Wright is represented by Nathanial L. Studelska and Christian G. Lamar of the Georgia Capital Defender’s office.
• Mark Anthony Wright is represented by Allan R. Sincox.

Sincox filed a motion three days after Breedon’s motion for contempt titled Motion to Vacate Unlawful Discovery Order. In his motion, Sincox argued that the order should be vacated because the order requires the defense to provide ‘mitigation discovery,’ which is says it cannot do until all of the discovery by the state has been provided. Essentially, defense counsel does not know how it will respond to arguments to be made by the state since the state has not provided all of the evidence it plans to present.

Sincox said the order signed by Peed violated state statute on discovery in death penalty cases. He referenced OCGA 17-16-4(b)(3)(A) and handful of higher court rulings which say ‘a defendant must also disclose, at or before the guilty/innocence verdict, mitigation evidence that it intends to introduce in the sentencing phase.’

From the motion:

“On March 8, 2023, the State filed a motion to take an evidence deposition of Captain Rick Daily [sic] in Elwyn Crocker’s case. In that motion, the State asked the Court to order the Defense to provide all of its mitigation evidence so that Daily could review it and comment on it. As nearly as counsel for Mr. Wright have been able to determine, this motion was not filed in Mr. Wright’s case. On August 15, 2023, this court entered an order directing, inter alia, that the Defense must provide all mitigation discovery to the State. Apparently, there was some sort of hearing on the State’s motion in Elwyn Crocker’s case, but no such hearing took place in this case before the court entered its order, and at no time does it appear that the State ever informed the court that the law does not require the Defense to provide mitigation discovery before a verdict is reached at the guilt/innocence phase…

…Under the Unified Appeal Procedure applicable to all death penalty cases, the Defense has an absolute duty to continuously investigate possible mitigation evidence and it must be permitted to do so “in secret” because what may be useful evidence in mitigation could potentially be detrimental to the Defense at the guilty/innocence phase.”

The motion goes on to cite Georgia case law in which the courts have determined that “the defense need not produce any substantive discovery to the State regarding its sentencing phase evidence until the announcement or publication of the verdict in the guilt/innocence phase.”

“Aside from the fact that the State ignored the law when it sought an order directing the Defense to provide the State with discovery of the Defense mitigation evidence before the guilty/innocence phase has been resolved, the State also ignored the portion of the discovery statute which clearly states that the Defense obligation to provide reciprocal discovery to the State does not arise until the State has completed its discovery obligations to the defense. See OCGA 17-6-4(b)(2).”

State Has Failed to Provide ‘At Least 3 Critically Important Recordings’

The motion filed by Sincox also states that prosecutors in District Attorney Daphne Totten’s office have not “provided at least three critically important recordings referenced in the report of the primary investigator.”

It continues:

“Moreover, when the Defense retained an expert to examine the State’s disclosures with regard to the electronic evidence in the case, that expert discovered that there are more than 60 electronic devices, disks, flash drives and other electronic evidence about which the State has provided no useful reports or other analysis. (A copy of this discovery requested is attached as Exhibit A) The Defense is not in a position to answer the State’s request for discovery until this evidence has been produced and analyzed.”

The state has not filed a response to Sincox’s motion.