published Saturday, October 26th, 2013

Chattooga court's illegal charges go back to 2007

HISTORY OF CHARGES

Chattooga County cases nolle prossed upon the payment of cost, since 2007

Under Sam Finster: 154 cases, $36,779

Under Carlton Vines: 53 cases, $10,145.25

Under Jerry Westbrook: 52 cases, $7,765

Under Kristina Cook Graham: 2 cases, $885

Source: Chattooga County Clerk of Court records

The practice in Chattooga County State Court of charging court costs on unprosecuted cases occurred before the current judge was on the bench.

According to a report compiled by a clerk of court employee, people paid a total of $19,070 on 109 nolle-prossed -- or unprosecuted -- cases in 2007-08 under three other judges.

This information comes one day after the Times Free Press ran a story showing that people paid $36,504 on 152 nolle-prossed cases from 2009 through this year.

All but four of the 152 cases occurred under current State Court Judge Sam Finster.

The other four happened in front of Judge Jerry Westbrook, who normally oversees juvenile cases but has at times stepped in as a replacement in State Court.

Westbrook also was the judge who handled many of the cases from 2007 until 2008, though not as many as Carlton Vines, who held the position until the Georgia Judicial Qualifications Committee suspended him for unrelated violations. Vines declined to comment Friday.

Between Westbrook and Vines, Judge Kristina Cook Graham was on the bench for a pair of cases in which people paid the court for nolle-prossed cases. Graham, who normally works in Superior Court, did not return multiple calls seeking comment.

On Friday, Westbrook said he was the first judge to begin charging court costs for these cases. But he didn't charge defendants. Instead, Westbrook said, he charged victims.

"The person that took the warrant out had to pay the court cost if they declined to prosecute," he said. "A lot of times it was a man [defendant] and a wife [victim], and the money came out of the same pocket. But no, it never was assessed against the defendant."

This is different than the system in State Court under Finster. In September, the judge said that he often lets State Solicitor Sanford "Buddy" Hill "nolle prosequi" -- or decline to prosecute -- cases after a defendant pays a court cost. However, Finster said he would stop allowing such a practice after the Times Free Press pointed out it is illegal.

According to Article 1, Section 1, Paragraph 14 of the Georgia Constitution, nobody can be forced to pay money in a criminal case unless he is convicted. And, according to the Official Code of Georgia Annotated 15-13-35, a prosecutor cannot charge costs in a case if the court did not find the defendant guilty.

Westbrook speculated that Finster followed in his footsteps, but with a slight change.

"We never did charge a defendant," Westbrook said. "That's what Sam thought he was doing. He thought he'd come along doing the same thing I'd been doing. But that wasn't what I was doing."

Like Finster has said, Westbrook argued that asking for court costs on nolle-prossed cases saved the county money. He estimated that between 10 and 15 percent of cases in state court ended without a prosecution because victims changed their minds.

But he doesn't consider them victims, saying, "They became 'not a victim' when they came down there and said they wasn't going to testify."

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

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