Lawyers argue COVID-19 measures restrict defense

♦ Three members of a white supremacist group are accused of plotting to kill a Bartow couple.

Attorneys for three men accused of plotting to kill a Bartow couple say measures put in place to stave off the coronavirus infection are hindering their ability to provide their clients with adequate representation.

Luke Lane of Rome, Michael Helterbrand of Dalton and Jacob Kaderli of Dacula are accused of plotting to kill the couple they mistakenly identified as members of an antifascist group. A federal affidavit identified the three men as members of a white supremacist organization called The Base.

The issues came out during a Thursday hearing requesting that Floyd County Superior Court Chief Judge Bryant Durham reconsider an earlier denial of bond for all three defendants.

“If it’s just corona(virus), just say that,” Durham said.

“It’s not,” Lane’s attorney Emily Matson replied.

Matson was the first of three lawyers who argued that a combination of events — including a massive amount of evidence in the case and limited access to their clients because of COVID-19 restrictions — hinders their ability to properly represent them.

None of the accused were physically present in the courtroom but they viewed proceedings over a monitor from the Floyd County Jail.

“The pandemic creates new realities with the delay of the case and limitations where we have to grapple with researching the evidence and conferring with our clients,” Matson said after the hearing. “It limits the ability to prepare a legitimate defense.”

Helterbrand’s attorney, Radford Bunker, told the judge the online visitation system at the jail has a sound delay of as much as a minute and a half, which seriously impedes the ability to communicate.

“I can’t be an effective advocate for my client,” Bunker said. He added that, as a public defender, he cannot visit the jail because of guidelines issued on the state level by the Georgia Public Defender Council.

An emergency order issued by the Georgia Supreme Court limiting courts to only essential functions has delayed this case as well as all criminal cases, likely causing a backlog for some time to come.

For instance, when a person accused of a crime is denied bond prosecutors have 90 days to present their case before a grand jury to indict the defendant. The emergency order has stopped the tolling of those time limits.

Attorneys also brought up the enormity of evidence to examine in the case.

That evidence includes the fruits of a months long FBI investigation. The warrant for their arrest stated all three conspired to commit murder between Aug. 2, 2019, and Jan. 14.

Defense attorneys had recently been asked to provide drives with a terabyte of space so the FBI could provide the defendants with the evidence against them. Floyd County Assistant District Attorney Emily Johnson said defense lawyers had complied and the FBI in Atlanta is supposed to supply the evidence to the men’s attorneys.

“We have an enormous amount of evidence ...” Matson said.

“And so this is a blessing,” Durham interjected.

“Not for my client it isn’t,” she replied.

The judge said he would only hear of new issues, not anything that Judge Jack Niedrach had ruled on in the previous bond hearing.

Throughout the hearing Durham repeated the question, “What is different?”

The lawyer for Kaderli, John Lovell, said in the previous hearing that prosecutors spoke a lot about what they characterized as a ritual sacrifice of a ram. But Lovell said the ram was shot in the back of the head and there was no mention of any animal cruelty in the criminal affidavit used to support the arrest warrants.

“There’s no doubt that allegation influenced Judge Niedrach’s decision,” Lovell said.

“What is different?” Durham said.

“That is different — it wasn’t true,” Lovell replied. “If the state was exaggerating some fact to deny bond you should look at it (in a new hearing).”

After the hearing, Floyd County District Attorney Leigh Patterson disagreed with Lovell’s assertion.

“I feel confident we will be able to prove every allegation we have presented to the court and we have not misrepresented any evidence,” Patterson said.

In February, Judge Niedrach stated he had relied on a number of reasons for denying bond including the associations the three men had with The Base — an international group which had already harbored at least one person fleeing from authorities.

Prior to denying bond for the three men Thursday, Durham acknowledged to defense attorneys the situation presents unique issues — and those arguments are being heard across the country.

“I understand your constitutional issues. I agree with them. Appeal,” Durham said.

An evidentiary hearing that appeared to have been scheduled for Thursday was postponed. There was some argument as to whether a the hearing would be considered an essential hearing under the high court’s emergency order.

Judge Durham said Judge Niedrach, who is presiding over the case, will have hearings in two weeks and he advised attorneys to refile their motion for the evidentiary hearing.