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Philip Holloway

    Indigent defense is a complicated issue. Criminal defendants have an absolute constitutional right to be represented by competent counsel and the government has to provide counsel for defendants who cannot afford a lawyer. It doesn’t stop there, however. There is more to indigent defense than simply paying the lawyer. A lawyer without resources for investigators and even expert witnesses is like a captain without a ship. As far back as 1957 the U.S. Court of Appeals for the Second Circuit explained:   Furnishing … a lawyer is not enough: the best lawyer in the world cannot competently defend an accused person if the lawyer cannot obtain existing evidence crucial to the defense, e.g., if the defendant cannot pay the fee of an investigator to find a pivotal missing witness or a necessary document, or that of an expert accountant or a mining engineer or chemist. It might indeed be argued that for the government to defray such expenses which the indigent accused cannot meet, is essential to that assistance of counsel which the Sixth Amendment guarantees …. In such circumstances, if the government does not supply the funds, justice is denied the poor—and represents but a upper-bracket privilege. Most counties in Georgia have a public defender’s office. The Georgia Public Defender Council (GPDC) was created in 2003 and is funded by taxpayers to handle the majority of indigent defense in Georgia. Some indigent defense happens outside this system however. The Grinstead murder trial is one such instance. Ryan Alexander Duke is scheduled to stand trial in Irwin County, Georgia for the murder of high school teacher and beauty queen Tara Grinstead. Duke was arrested with great fanfare in February 2017 for the 2005 alleged murder of Grinstead. He was represented for the next year and a half or so by the public defender’s office for the Tifton Judicial Circuit. He later elected to accept the volunteer services of three Atlanta-area lawyers. His defense is a complicated one and the evidence in the case appears to be extremely voluminous, hyper-technical in some ways, and convoluted. Among other things, the defense is alleging his incriminating statements to investigators qualifies as a “false confession.” For these reasons, the Duke defense team has asked the court to provide funds to pay for defense resources such as investigators and expert witnesses – the sort of resources that any lawyer, prosecutor or defense attorney, needs to properly prepare for and conduct a trial of this magnitude. So far, this funding has been denied. Mr. Duke is of course presumed to be innocent and he is clearly indigent. His election to accept pro bono services of three private attorneys has not changed his indigency. Ironically for Duke, because he accepted the services of volunteer lawyers of his own choosing, he may have to defend himself without the resources he would have had if stayed with the public defender’s office. This illustrates a broader problem with indigent defense in Georgia: How does an indigent defendant level the playing field when represented by private counsel? The Georgia Public Defender Council as an independent state agency and by law is “responsible for assuring that adequate and effective legal representation is provided, independently of political considerations or private interests, to indigent persons…” In 1986, The Georgia Supreme Court held that an indigent defendant has a right to state funds to pay for expert witnesses as related to “critical evidence” that might be open to interpretation among experts. Specifically, the Georgia Supreme Court said that a trial court shall order payment of these funds from public coffers. Every year the legislature funds the GPDC so the GPDC can do its work and pay experts and investigators as needed. The legislature has not made the same provision to fund indigent defense when it occurs outside the framework of the GPDC. So, if the GPDC doesn’t agree to pay these costs, who does? There can be only one answer: the county where the case is pending. But what if the county simply can’t afford it? What if there is a case so big and so complicated that any given county just doesn’t have the money? What if due process and the right to effective counsel demand monies to be paid yet a county – or a court – refuses? Prior to the creation of the GPDC the procedure for obtaining public funds for experts was fairly simple. It was outlined by the Georgia Supreme Court in 1988. Defense counsel – usually court appointed – files a sealed motion with the court explaining what was needed and why. These requests were / are routinely approved so long as the price tag was reasonable. The creation of the GPDC did not abolish this procedure and it is still the norm in many counties in Georgia where indigent defendants are represented by counsel outside of the public defender system. Now back to the earlier question - What if due process and the right to effective counsel demand monies to be paid yet a county – or a court – refuses? Well, in the event of a conviction an appellate reversal may occur. If a trial was expensive the first time around it will be extra costly the second time around. It’s more important to get it right the first time. Judges are obligated to ensure that due process happens in our courts so if the state won’t provide the necessary resources counties are just going to have to step up – and pay up. Philip Holloway, WSB legal analyst, is a criminal lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association's criminal law section. Follow him on Twitter: @PhilHollowayEsq The opinions expressed in this commentary are solely those of the author. 
  • From a court watcher’s perspective it’s apparent to most that the upcoming trial of Ryan Duke, charged with the 2005 murder of South Georgia high school teacher Tara Grinstead is sure to be nothing short of a spectacle of epic proportions. We got a preview of things to come during - of all things - a bond hearing where Duke asked, for the first time in two years, to be released on bond. It wasn’t the denial of bond, nor the fact that Duke asked for bond that is particularly noteworthy. It’s what the bond hearing devolved into that raised eyebrows. Despite losing the motion, the defense unexpectedly was able to depose the lead GBI investigator on a wide range of topics in a dress rehearsal for what promises to be a most controversial trial.  To start, let’s have a look at what a bond hearing is supposed to be.  It’s uncommon for bond to be set in murder cases but it’s not unheard of. Courts are supposed to consider the following factors in making bond decisions and the burden of proof is on the defendant to show that he:  Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;  Poses no significant threat or danger to any person, to the community, or to any property in the community;  Poses no significant risk of committing any felony pending trial; and  Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.  Probable cause is not an issue and of course neither is guilt or innocence. A bond hearing is not a trial.  The Duke bond hearing started out as most bond hearings do. The defense called Duke’s brother to testify regarding each of the factors set out above. But then it started a downward spiral into the surreal when the prosecutor called the lead GBI case agent as a witness - presumably as a rebuttal to the defense. A state’s witness, such as an investigator, can occasionally testify - to a point - about “what happened” because that’s relevant - to a point - for the court to determine whether the person poses a danger to the community. But in this case, the testimony was literally all over the place and went into minute detail about many things that have never been heard before. The “bond hearing” was effectively transformed into a deposition - a legal luxury not normally available to a criminal defendant in Georgia.  So just what did we learn from this “bond” hearing? We learned that DNA from the bodily fluid of a police officer was mixed with the victim’s blood on some bedding and that “touch DNA” from Grinstead and Duke (along with DNA from at least two other people) was on a latex glove found outside her residence. “Touch DNA” has its own share of problems in terms of reliability and we can safely expect the defense to explore those problems at trial. Some of that other unidentified DNA from the glove could have come from Bo Dukes - the person accused of helping cover up the murder - and who the defense claims is the actual killer.  We learned there were many investigative steps that could have been taken to verify statements made by both Duke and Dukes. The defense will argue that these follow up steps point to a biased investigation. This could have a huge impact in a trial where the defense will claim that the defendants confession was a false confession.  We learned the GBI, in a breach of protocol and constitutional law, interviewed / talked with Duke twice after he had a lawyer. These interviews were undocumented in the GBI case file. They were not recorded. The DA apparently was unaware at the time that this tactic was being employed by the GBI until the defense raised it with them. The agent didn’t even sign in at the jail. We can only speculate as to why not.  On top of all this, an abundance of otherwise inadmissible evidence consisting of hearsay and innuendo managed to come out publicly at a bond hearing. Most of this wouldn’t have seen the light of day at a trial. As the prosecution correctly pointed out “hearsay” may be admissible at a bond hearing, but it still has to be reliable evidence - not a regurgitation of all the salacious rumors from 2005. And it must be relevant to the issue of bond. It may turn out that the DA made a great tactical mistake by calling their lead case agent to testify and turn this bond hearing into an evidentiary free-for-all with no apparent boundaries. At a minimum it was surely heartbreaking for friends and family of the victim to have to re-live all the pain of the last 13 years by having old wounds reopened in such painful detail.  I’ve previously written about why the venue for this trial really needs to be changed. Now more than ever the jury pool is really tainted - as if it weren’t already. Philip Holloway, WSB legal analyst, is a criminal lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association's criminal law section. Follow him on Twitter: @PhilHollowayEsq The opinions expressed in this commentary are solely those of the author. 
  • Irwin County Superior Court Judge Bill Reinhardt appears set to attempt to seat a jury of Irwin County residents in the trial of Ryan Alexander Duke. Duke is charged with the 2005 murder of Irwin County High School teacher and beauty queen Tara Grinstead. The defense asked for a change of venue, the State did not oppose the change, yet the judge has declined. In my view, this is a mistake. This is a case I have followed closely since the beginning. Way back in what seems like another lifetime I was a police officer in the tiny South Georgia town. I grew up in the area and have even practiced law there. Things are just different there. There's really no other way to put it. It's a great place to live and work but it simply has its own unique character. And the same thing holds true for the local legal system. But a unique local 'flavor' can't outweigh due process and absolute right that a defendant has to a fair trial nor can it outweigh the public's strong interest in a process that yields a result that it can have confidence in. In Georgia, criminal defendants have a constitutional right to be tried in the county where the crime is alleged to have occurred. Defendants can waive this right however and seek a trial elsewhere if a fair and impartial jury can't be seated in that county. At any given time, the population of Irwin County is only about ten thousand people. This case touched nearly every person in Irwin County – personally – in one way or another. It was the local citizens who went door-to-door and field-to-field conducting searches for Tara Grinstead in the days, weeks, and months following her disappearance. It's the local citizens who talk about the case day in and day out in homes, restaurants, offices, and other gatherings. It's the locals who read the local paper when leaked excerpts from the GBI case file were published that described Ryan Duke's incriminating statements to law enforcement on the day of his 2017 arrest. It was the local community that loved their high school history teacher. It's the local community that's locked in a continual debate about whether the authorities have charged the right person. On top of all this, the pretrial publicity has been – and will continue to be – extreme and pervasive. Opinions are strong. The bottom line is that nearly everyone in Irwin County has likely heard of the case and surely a great deal has actually been personally affected by it in some way. Besides helping to ensure a fair trial, there are practical reasons why moving the trial just makes good sense. Chief among those practical reasons is this: in the event of a conviction, the issue of venue will be a major part of the appeal and changing venue removes that consideration. This is a strategic reason why the DA most likely did not oppose the change of venue. He doesn't want to have to try this case twice. In the event of a conviction, the DA needs as few appellate issues to deal with as possible. Moving any trial is no small feat. Logistically it's been described as more difficult than taking a three ring circus on the road. It's expensive too. Irwin County just doesn't have the financial resources that a larger jurisdiction has and moving a trial the likes of this one could cause major financial and other upheaval in terms of government resources. None of these considerations outweigh the right to a fair trial, however, and none of them outweigh the public's right to have confidence in the integrity of the process. Philip Holloway, WSB legal analyst, is a criminal lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association's criminal law section. Follow him on Twitter: @PhilHollowayEsq The opinions expressed in this commentary are solely those of the author.  
  • Police use of force, deadly or otherwise, has been a particularly hot topic in the news in recent years. In this age of social media and near real-time access to cell phone and other video of law enforcement activity it's inevitable that police work, which has always had an element of violence associated with it, would come under an unprecedented degree of scrutiny. Traditionally, nearly all police work occurred 'out of sight' and accordingly was 'out of mind' - at least to the general public. But those days are over and the police and the public are having to adjust to this 'new normal.'   When I went to the police academy in 1989, I remember being taught in no uncertain terms that deadly force was authorized to stop a fleeing felon. In other words, we were told we could shoot someone who was a felon if they were running away from us. Fortunately I was never in a position to test that dubious training. Police training in all subjects is now light years ahead of where it was then. Training in the area of use of force is even further ahead in my view.   So what is the law in this area? Can an officer lawfully use lethal force against a felon who is merely running away? The answer of course is no. But unfortunately most examples are not that clear.   When we look at any police use of force, there is one word in the English language to consider. That word is: reasonableness   In 1989 the Supreme Court of The United States decided the landmark case of Graham v. Connor and the precedent set by Graham has been the foundation of police training on use of force ever since.   Graham provides that any use of force incident -deadly or otherwise - must be 'objectively reasonable' under the totality of the circumstances and that '[t]he 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.' It also clarified 'the 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.'   So the next time we see a viral video of a police shooting or other use of force incident try to apply the apply the Graham standard to it and you'll find that it can be extremely difficult to immediately decide whether it was 'justified.' In fact, the Graham case tells us that these things require a careful, deliberate, and thorough investigation into all the facts and circumstances before deciding that issue. Rarely - if ever - are knee jerk decisions based on a single video or social media post helpful. It's worth noting that under the Graham analysis, the presence or absence of a weapon doesn't prove anything either way. The presence of absence of a weapon is merely one factor that must be considered along with the totality of all other circumstances.   Police work can be - by it's very nature - quite ugly and violent. It's never like it is on TV or in the movies. But it is real life and involves real people. We demand that our police swear to support and defend the constitution and laws so we must in turn judge them - and their actions - according to the constitution and laws as interpreted by the courts. Unlike the court of public opinion or social media, courts and investigators don't have the luxury of picking and choosing what parts of the constitution to apply - in these cases they must follow the Graham analysis to wherever it leads - even if it leads to an unpopular place.   And by the way, it turns out that the 'Fleeing Felon Rule' - which I was taught about in the police academy in 1989 was an old rule, grounded in the old English common law that was largely done away with in 1985 when the Supreme Court decided Tennessee v. Garner and held that the police could be sued for shooting a 15 year-old who was merely fleeing and who otherwise posed no lethal threat. In other words, shooting Garner was not 'reasonable.' Philip Holloway, WSB legal analyst, is a criminal lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association's criminal law section. Follow him on Twitter: @PhilHollowayEsq The opinions expressed in this commentary are solely those of the author.
  • Holloway is the legal analyst for WSB Radio. 

News

  • A man said his pain medication and a broken back door are what led to his 2-year-old son wandering onto a busy Florida highway. Jacob Krueger, 25, and the child's mother, 28-year-old Yajaira Tirado were both arrested on neglect charges after their son was found on the highway around 10:30 a.m. Monday with a dirty diaper and bug bites covering his arms.  'I'm sorry,' Krueger said after walking out of jail Tuesday. 'I didn't mean for it to come down to this.' Krueger explained that he and Tirado are on medications for conditions that he said kept them asleep during the ordeal. He also blamed a broken door at the home they rent as why his son was able to escape. >>Read: Toddler wearing dirty diaper, covered in bug bites found crossing highway, police say; 2 arrested When asked why there wasn't any attempt to fix the door to prevent an incident like this, Krueger said, 'There's no way. Doesn't matter if I tried doing something to it.' Krueger went on to deny a responding deputy's claim that his home was littered with broken bottles and smelled like feces. >> Read more trending news  'I love my child. I want the best for them (and) don't ever want to hurt them,' Krueger explained.  Officials said they had been to the home in 2018 for another case of child neglect in which Tirado was arrested after a 1-year-old and 2-year-old were left at the home alone, according to the Volusia County Sheriff's Office.  Deputies said the toddler found crossing the highway was placed in the custody of the Department of Children and Families. Tirado remains in the Volusia County Jail.
  • The Democratic presidential primary debates begin Wednesday with 10 candidates going head-to-head in Miami as the 2020 presidential election season gets underway. >>Read more trending news Sen. Elizabeth Warren, Beto O’Rourke, Sen. Amy Klobuchar and seven others will likely face questions on border security, health care and climate change on the first night of the two-night event. >>Jamie Dupree: Warren leads Democrats into first night of 2020 debates Here’s what to know about and how to watch Wednesday’s Democratic debate.  When and where is the debate being held? The debate will be broken up into two nights with 10 candidates on the stage to debate each night. The debates will take place on Wednesday and Thursday at the Adrienne Arsht Center for the Performing Arts in Miami. Who will be on the stage on Wednesday? Here is the lineup for Wednesday’s debate: Sen. Cory Booker of New Jersey  Sen. Elizabeth Warren of Massachusetts  Former Rep. Beto O'Rourke of Texas  Former Rep. John Delaney of Maryland Rep. Tulsi Gabbard of Hawaii  Sen. Amy Klobuchar of Minnesota  Former Housing Secretary Julián Castro  New York City Mayor Bill de Blasio Gov. Jay Inslee of Washington  Rep. Tim Ryan of Ohio  Where will they stand onstage? The candidates will stand from left to right in this order – de Blasio, Ryan, Castro, Booker, Warren, O’Rourke, Klobuchar, Gabbard, Inslee, Delaney.  Who will be asking the questions at the debate? Lester Holt, Savannah Guthrie, Chuck Todd, Rachel Maddow and José Diaz-Balart will moderate the debate. Holt, Guthrie and Diaz-Balart will moderate the first hour, with Holt, Todd and Maddow asking questions in the second hour. How can I watch the debate? NBC is sponsoring the debate, but it will be shown on all three major networks and on cable news channels. It will stream online free (without requiring an account with a television provider) at NBCNews.com, MSNBC.com, the NBC News Mobile App and OTT apps, and Telemundo's digital platforms. What time wil it be on? The debate will air from 9 p.m. to 11 p.m. on Wednesday. Where can I watch the livestream? Here is the livestream link of the debate from YouTube Live coverage: Come back here beginning at 7 p.m. for live coverage of the first night of the debate. 
  • Police arrested a woman who allegedly tried to kidnap a couple’s children in the atrium of Hartsfield-Jackson International Airport on Saturday morning. Police said Esther Daniels, 26, tried to grab a stroller with a child in it before being fended off by the child’s mother. She then picked up one of the couple’s other children and walked away, but the father took the child back from her, Atlanta police spokesman Sgt. John Chafee said in an emailed statement. >> Read more trending news  An officer responded a few minutes later and found Daniels in a frenzied mental state, Chafee said. She then allegedly ran toward a nearby family and had to be restrained by the officer, Chafee said.  Daniels, who lives in Kansas, eventually calmed down and was escorted to the police precinct in a wheelchair, the statement said. She was checked out at Grady Memorial Hospital before being taken to the Clayton County Jail. Daniels was charged with kidnapping and obstructing an officer. Her bond has not been set.
  • A Virginia man and woman are facing homicide charges after their 2-month-old daughter died from cocaine and heroin intoxication last year, authorities said. According to WDBJ-TV, police on Tuesday arrested Eugene Chandler Jr., 27, and Shaleigh Brumfield, 26, of Danville, on felony homicide charges in the baby's November 2018 death. Officials also charged the pair with child abuse and neglect, the news station reported. >> Read more trending news On Nov. 24, Danville police and emergency crews responded to a report of an infant who couldn't breathe, according to court documents. The child, identified as Marleigh Rain Chandler, was pronounced dead at a nearby hospital, the Danville Register & Bee reported. While searching the family's home, investigators discovered evidence of drug use, including marijuana and drug paraphernalia, WSET reported. The Western District Office of the Chief Medical Examiner conducted an autopsy, which revealed that Marleigh died from 'acute heroin and cocaine intoxication in a setting of co-sleeping,' officials said. Chandler and Brumfield were booked into the Danville City Jail, where they are being held without bond.
  • When the first Democratic presidential primary debate kicks off Wednesday night, Kirkland Dent will be watching. Dent, 28, a medical librarian at Mercer University in Macon, has been trying to keep up with the sprawling Democratic field aiming to unseat President Donald Trump — “I can probably name 80% of them,” he said. But he is looking forward to seeing them in action. “I’m curious about what their goals are, what issues they want to tackle.” So are Judy Hauser, Michael Murphy-McCarthy and John Chastain. They are among about a dozen Democratic and independent voters in Georgia who have agreed to take part in an informal focus group organized by The Atlanta Journal-Constitution to discuss the 2020 Democratic primary race. The AJC checked in with them for the first time ahead of the debates Wednesday and Thursday in Miami, the first opportunity many voters will get to see the candidates answer questions for a national audience. THE LATEST | Georgia Presidential candidate visit tracker MORE | Democratic presidential hopefuls emphasize Georgia’s big role in 2020 For the most part, the Georgia voters said they have been paying some attention to the race but want to know more. That’s true of Democratic voters nationally, too. According to a poll released this week by The Associated Press-NORC Center for Public Affairs, only 35% of Democrats who are registered to vote say they’re paying close attention to the campaign. The size of the field doesn’t help, and most of the Georgia voters who talked to the AJC said they are eager for it to thin out a bit. The debates, which will feature 10 candidates on stage each night, won’t give the contenders a lot of time to make their case. “It’s going to be really, really hard to stand out in that big a crowd,” said Murphy-McCarthy, who lives in Peachtree Corners and works in IT. “It will be easier to fall down than to stand out.” Dent said a number of candidates have stood out for him so far: Joe Biden, Pete Buttigieg, Kamala Harris, Elizabeth Warren and Andrew Yang. But he’s open to being surprised by lesser-known candidates. “It’s important for our generation to start paying attention a lot more,” he said. RELATED | Biden reverses stance on Hyde abortion amendment at Atlanta event MORE | Georgia’s ‘heartbeat’ law targeted by Democratic presidential hopefuls Chastain, 73, lives in largely Republican Cherokee County. “If I say I am a Democrat, it’s like I have the plague,” he joked. He said he’s very interested in the Democratic primary race and wants to hear candidates get specific at the debates. “I’m looking for some action plans,” he said, “I want to know what they are going to do, not just getting Trump out.” He’s retired and said health care is a top issue. Hauser, a registered nurse from Buckhead, wants a candidate who can win. “We need someone who is going to be able to take on Trump and his mouth,” she said. She said she likes Biden but is also interested in Buttigieg and Harris. Biden, she said, “has very good core values. Yes, he’s made some mistakes, but who hasn’t?” His age doesn’t bother her. “I see him as a one-term president that will bring this country back on even keel,” she said. Murphy-McCarthy, 51, said he’s been impressed by Warren but says he’s open to the others. “I’m OK with somebody coming out of nowhere,” he said. DEEPER COVERAGE | Which Democratic candidates have raised the most in Georgia PHOTOS | Top Democratic presidential contenders campaign in Atlanta Howard Giambrone of Coweta County is an independent who has mostly voted for Republicans in the past, but he is considering a Democrat in 2020. It won’t be Bernie Sanders or Warren, who he says are too liberal. He said he is looking for a candidate who is fiscally responsible, supportive of the military and has what he considers a moderate view on immigration. Giambrone’s wife is from Colombia and he doesn’t like Trump’s immigration policies. “I want to strengthen the border but make coming here (legally) less difficult,” he said. So far he thinks Biden and Cory Booker are possibilities. What can the candidates say to win him over? “I want to hear fresh ideas and get away from trashing Trump,” he said. William Black, 38, is a housekeeper in Jones County. He said his top issues are race relations and global warming, and his favorite candidates so far are Sanders and Biden. He isn’t too worried about the size of the field. “They will weed themselves out,” he said. He’s happy to see the enthusiasm. “It’s good for the Democratic Party that there’s that level of interest of people who want to change the country.” How to follow Democratic presidential debates NBC will host the first Democratic presidential debates Wednesday and Thursday, starting at 9 and concluding at 11 each night. Each night will feature 10 candidates. The debates will be broadcast by NBC News and also appear on MSNBC and Telemundo. Telemundo will broadcast the debate in Spanish. They also will stream online free on NBC News’ digital platforms, including NBCNews.com, MSNBC.com, the NBC News Mobile App and OTT apps on Roku, Apple TV and Amazon Fire TV, in addition to Telemundo’s digital platforms. NBC News will also stream the debates live and in full on Facebook, Twitter and YouTube.
  • A 58-year-old man is behind bars after police said he raped a child nightly over a three-year period. According to the Jackson Sun, William Paul Godwin of Parsons, Tennessee, was arrested Sunday and charged with 12 counts of child rape, as well as one count of continuous child rape, authorities said. >> Read more news stories Godwin is accused of forcing the girl into sexual intercourse nightly beginning in fall 2012, when she was 5, the Sun reported. The victim said the rapes continued until summer 2015, according to court documents. Godwin was jailed on $100,000 bond and is scheduled to appear in court July 8, WBBJ reported. Read more here or here.