published Thursday, May 8th, 2014

They forgot about him: Now he can't be retried in son's smothering, Georgia court rules

No retrial for man

A man charged in Catoosa County, Ga., in 2004 with smothering his 6-month-old son will not be retried, because prosecutors forgot about his case for nearly eight years. Yet the case may spur changes in how the district attorney's office handles outstanding appeals.

Alfred Jackson Alexander Sr., then 26, was indicted in December 2004 for allegedly smothering his crying son Eligah Lee Alexander with a pillow in the family's mobile home near Ringgold. In October 2005, a jury found him guilty of child cruelty -- and not guilty of malice murder -- but could not reach a verdict on a felony murder charge. The jury split 11 to 1, resulting in a mistrial.

Alexander served five years and was paroled in June 2009 -- although his November 2005 sentencing called for 15 years in custody followed by five years' probation.

When Chris Arnt, the chief assistant district attorney for the Lookout Mountain Judicial Circuit, realized last spring that the felony murder charge was never retried, he had the case added to the Catoosa County Superior Court's September 2013 trial calendar.

Alexander's public defender, David Dunn, asked to dismiss, citing Alexander's 6th Amendment right to a speedy trial, and Judge Ralph Van Pelt ruled in his favor in September 2013.

The DA's office appealed, but the Georgia Supreme Court upheld Van Pelt's decision Monday.

"His case fell off the trial calender ... and it remained off the calendar for nearly eight years," said the justices' unanimous ruling upholding Van Pelt's order to dismiss the case.

The high court agreed with Van Pelt that more than six years of the delay was due to "the negligent inaction" of the district attorney's office.

Van Pelt also wrote that Alexander's file from the original trial has been destroyed, witnesses are scattered, and Alexander's court-appointed attorney testified that he remembers very little about the case.

Lookout Mountain Judicial Circuit District Attorney Herbert "Buzz" Franklin said he was disappointed by the Georgia Supreme Court's decision.

"We think the trial court should have been reversed," he said.

'Put on the back shelf'

According to Van Pelt's September 2013 order, Arnt discovered the felony murder count hadn't been set for retrial when the state's pathologist from the 2005 trial called him in March 2013 and asked for information from the trial transcript.

Arnt, who had tried the case originally, asked court clerk Tracy Brown to put the felony murder count back on the trial calendar, Van Pelt wrote.

Brown worked for longtime court clerk Norman L. Stone during the time Alexander's case was left off the calendar, Van Pelt wrote, but she "was unable to explain how it was ... never calendared again other than '... we just didn't know how to deal with that, I guess.'"

Brown said Wednesday that "technically, the DA's office is supposed to be the one that makes sure those cases are active and ongoing. If they're going to seek to retry a trial, they have to let us know if it has to be calendared."

The DA's office lost track of the case when Alexander, then in custody, got a court-appointed attorney in July 2007 to appeal the child cruelty conviction, Franklin said.

"That's when it sort of got put on the back shelf," he said.

The DA's office wanted the appeal settled before retrying the felony murder case, he said.

Franklin said his office likely will change the way it handles outstanding appeals.

"Every few years we go through and clear up all the appeals that are outstanding," he said. "We're probably going to have to change how we do that."

Contact staff writer Tim Omarzu at tomarzu@timesfreepress.com or 423-757-6651.

about Tim Omarzu...

Tim Omarzu covers education for the Times Free Press. Omarzu is a longtime journalist who has worked as a reporter and editor at daily and weekly newspapers in Michigan, Nevada and California.

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