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Defects in Indictments: Sufficiency of Special Demurrers in Georgia

Posted by Ben Sessions | Dec 30, 2014 | 0 Comments

Defects in indictments or accusations should be one of the first and foremost concerns for the criminal defense attorney. The indictment forms the issues in the case, and it should inform the criminal defendant of what the government alleges he/she did. Many lawyers unfortunately pay little attention to indictment in terms of how it will later shape the course of the criminal case. Those lawyers who pay little attention to the strategic implications of an unspecific indictment pay even less attention to the demurrers that they file to the indictment. Georgia law requires that special demurrers – demurrers that contend that the indictment is not perfect in form (or specific enough) – must be filed within 10 days from the date of arraignment. However, Georgia law also requires specificity of the alleged defect in a special demurrer. The pleading requirements of special demurrers in Georgia criminal cases is discussed in Jordan:

1. Defendant contends the trial court erred in refusing to conduct a full evidentiary hearing on his pretrial motion to dismiss for governmental misconduct.

On April 17, 1979, the six indicted inmates filed a motion to dismiss the criminal charges for governmental misconduct. They contended the state had engaged in the following alleged acts: physically abused the defendants and prospective witnesses; at all times manipulated the news media to the detriment of the defendants and the black inmate population; operated Georgia State Prison in such a manner as to exacerbate racial tension (such as by discriminatory hiring practices, including employing racially prejudiced white guards who supplied white inmates with weapons); deprived inmates of meaningful programs; allowed easy availability of alcohol and other drugs; and refused to take necessary steps to avoid the riot in this case. Defendants contended that the indictments against them should be dismissed for violation of their rights to due process and equal protection and against cruel and unusual punishment. The trial court denied the pretrial motion without allowing defendant to present evidence concerning conditions at the prison at the time of the riot, although some such testimony was given at trial and at the hearing on defendant's motion for new trial.

The Civil Practice Act is applicable to civil cases. Code Ann. s 81A-101 et seq. Even with notice pleading, civil cases are subject to disposition by judgment on the pleadings. Code Ann. s 81A-112(c). Pleadings in criminal cases are not subject to the Civil Practice Act; they are subject to our code on criminal procedure, Code Title 27, esp. *332 Chs. 15 and 16, and the decisions relating thereto. Demurrers, pleas and motions attacking indictments must set forth the defect in the indictment or the ground of the motion to dismiss with particularity. See 7 EGL Criminal Procedure, ss 40-42. We therefore treat defendant's motion to dismiss the indictment for alleged governmental misconduct as being complete on its face. When so considered, it fails to show grounds for dismissal of the indictment.  

Each of the various allegations of defendant's motion has been examined. Each of them which has any merit would be subject to an action for relief short of dismissal of the indictment. See 42 U.S.C.A. s 1983; Streeter v. Hopper, 618 F.2d 1178 (5th Cir. 1980); Guthrie v. Caldwell, C.A. 3068 (S.D.Ga.); Code Ann. s 27-1201.

Remedies should be tailored to the injury suffered from the constitutional violation alleged and should not unnecessarily result in dismissal of the indictment where the criminal proceeding can proceed with full recognition of defendant's right to a fair trial. See United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981); see also Strong v. State, 246 Ga. 612(5), 272 S.E.2d 281 (1980).

Defendant's allegations do not justify mutiny and murder. See Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). Strong v. State, supra, does not require that an evidentiary hearing be conducted where the motion does not set forth a claim for the relief sought. Accordingly, we find that it was unnecessary for the trial court to hold an evidentiary hearing because the defendant's allegations, even taken as true, would have been an insufficient basis on which to dismiss the indictment.

Jordan v. State, 247 Ga. 328, 331-32, 276 S.E.2d 224, 229-30 (1981).

Georgia criminal defense matter, contact The Sessions Law Firm at (470) 225-7710.

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About the Author

Ben Sessions

I work to provide exceptional service, attention, and results to each of my clients. Most of clients come to me because they are in a completely overwhelming situation. They need someone that will do more than address their legal problems.

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