published Thursday, May 1st, 2014

Girlfriend's chat led to child sex conviction for Cobb County man

Three weeks ago, a Cobb County, Ga., man pleaded guilty to child molestation. He admitted to inappropriately touching two girls and was sentenced to serve 10 years in prison.

Now, new evidence suggests a judge was given false information in an affidavit for the search warrant that led to Michael Dwayne Kibler's arrest.

The affidavit supposedly came out of Internet chats between Kibler and FBI special agent Ken Hillman, former chief of the controversial Northwest Georgia Internet Crimes Against Children Task Force.

But a witness said a woman who was neither a trained investigator nor a sworn officer actually chatted with Kibler and then coached Hillman on what to say in the affidavit.

Information about the affidavit came to light as the U.S. Department of Justice investigates Hillman, the FBI special agent who used to be in charge of the local "To Catch a Predator"-style task force. The FBI suspended Hillman after his alleged mistress, Angela Russell, said she chatted online with suspects undercover as part of the investigations.

When David Scroggins, a Rossville detective and a member of the task force, applied for a search warrant in Cobb County Superior Court in October 2012, he did not mention Russell. He said Hillman chatted with Kibler.

However, in a recorded conversation with Lookout Mountain Judicial Circuit District Attorney Herbert "Buzz" Franklin, Russell said she chatted with a target from the Atlanta area who admitted to molesting two girls. Franklin asked her if she chatted with any suspects without Hillman's supervision.

"No," she told the prosecutor. "He always knew what I was doing."

"So anything you did in the way of chats would have been under Hillman's supervision?" Franklin asked.

"Yeah," she said. "I feel like they were. I hope he feels like they were."

On Wednesday, Franklin declined to say when that conversation took place. He said he could not comment because that information is part of the federal investigation into Hillman's actions.

On April 2, Russell's estranged husband, Emerson Russell, met with an agent from the Office of Inspector General -- the office that investigates impropriety in the FBI.

Emerson Russell's attorney, McCracken Poston, was at that meeting. He said Emerson Russell told the investigator that Russell sat next to Angela while she texted Hillman in Cobb County, explaining the details of her chat with Kibler for the affidavit.

A judge granted Scroggins the warrant to search Kibler's house, cars and computer, and Kibler subsequently admitted to molesting two children. Scroggins then called Cobb County Police Detective Thomas Bastis, who took over the investigation.

On Wednesday, Scroggins told the Times Free Press he believes he told the truth when he applied for the warrant. The detective said Hillman claimed he chatted with Kibler -- not Angela Russell. But Scroggins believes that shouldn't matter.

"I don't give a [expletive] who did the communication with Kibler," he said. "What bothers me is that Kibler was molesting [two girls], had been for years. ... We went down and arrested that sorry [expletive] because that's what we do."

Even if the affidavit is false, Scroggins said, that shouldn't impact how Kibler's case played out in court. The information is more pertinent in the federal investigation into Hillman.

"While it will certainly be an issue for him if he did not appropriately disclose info or has done other things that have been alleged, that will be an issue for Hillman," Scroggins said. "I don't see it as an issue for the case."

Attorneys who represent other defendants caught by the task force say Kibler should not have been prosecuted. On principle, they argue, a sworn affidavit can't contain lies. But some legal scholars suggest Kibler's case will stand, that the contents of the affidavit don't matter.

Had Kibler's attorney known of the allegation, he could have raised it in an evidentiary hearing, said Lawrence Zimmerman, an Atlanta attorney who represents another man arrested by the task force. If proven, that information would have been removed and a judge would decide if any other piece of the warrant could still be used to justify a search and eventual arrest.

"That warrant would clearly be bad," Zimmerman said of the Kibler case.

And Poston, who also represents a man arrested by the task force, said a case like this undercuts the credibility of the FBI.

"Nobody begrudges anyone for stopping what appeared to be going on [with Kibler]," he said. "No lawyer that I know of is against that at all, stopping a bad situation involving children. But this is an FBI agent. They are trained to make the best cases in the world and the strongest cases in the world. It's a slippery slope when you start lying to magistrates and to grand juries. Where do you stop then?"

But two legal scholars said that even if the affidavit had false information, Kibler probably will not be able to appeal the case.

Jessica Gabel, a Georgia State law professor, said Kibler would have to argue he would not have pleaded guilty if he had known that information.

But even so, Gabel added, "most courts are going to say, 'Sorry, you kind of shot yourself in the foot by pleading guilty in the case.'"

Donald E. Wilkes Jr., a professor of law emeritus at the University of Georgia, said Kibler may not have had a chance to get the case thrown out, even if he hadn't pleaded guilty.

Over the last 30 years, Wilkes said, the U.S. Supreme Court has narrowed the scope of the Fourth Amendment, which is supposed to guard citizens from unreasonable searches and seizures.

"If [Scroggins] had told the judge the truth, that the FBI agent's girlfriend was the source of the information, I don't think the judge would have rejected the search warrant," Wilkes said. "The judge would have no problem accepting the evidence."

Louis Turchiarelli, the Atlanta attorney who represented Kibler, did not return multiple calls seeking comment Wednesday.

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

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