The Georgia Supreme Court reversed a Bibb County judge's ruling that wiretap evidence in a 2008 murder trial can be used.
Judge Keith Blackwell, according to a news release, wrote prosecutors did not present a "satisfactory explanation" for their failure to "immediately" present wiretap evidence to the judge so he could seal it, which is required by federal law.
In early 2008, the release states the Jones County Sheriff's Office approached the Bibb County District Attorney's Office about conducting an investigation into the wiretapping of Benjamin Finney's cell phone.
Assistant District Attorney Kimberly Schwartz applied for a 30-day wiretap warrant to put Finney's text messages, email and phone conversations from his cell phone under surveillance.
The warrant was granted, but on March 7, a different judge signed an order that allowed the warrant to remain in effect for another 30 days until April 7, 2008. Surveillance ended March 20, 2008.
However, the release states it wasn't until April 23 (16 days after the warrant expired) that the evidence was submitted to a judge and the evidence was sealed.
Finney was a suspect in the February 4, 2008 shooting death of 55-year-old Gwendolyn Cole in Macon. Officers also believed at the time Finney was involved in dealing drugs in Jones County.
The widow had been shot multiple times at her Macon home after two men, who had earlier come to her home looking for her son, allegedly bombarded the house with dozens of shots from a gun.
Finney, along with Marlon Jackson, were indicted in 2013 on murder charges.
On Monday, District Attorney David Cooke released a statement that said he was not suprised by the court decision, because the original prosecutor in the case did not follow the law. He says all prosecutors in his office are now trained in properly handling wiretap evidence.
Cooke took office in 2012.
His statement
"Earlier today we learned that the Georgia Supreme Court ruled that wiretap evidence against Benjamin Finney, who is facing charges for murder, will not be admissible at trial.
"In 2008, former ADA Kimberly Swartz failed to immediately present the recordings from that wiretap to the court so that they could be sealed according to law. Although the law allows some reasonable delay for this requirement, former ADA Schwartz did not present these communications for sixteen days after the deadline. She could provide no satisfactory explanation for the delay. Given those circumstances, there’s no surprise that the Georgia Supreme Court ruled this evidence inadmissible.
"When gathering evidence in any criminal prosecution, the burden rests with law enforcement and prosecutors to ensure that proper procedure is followed. To that end, my administration requires every Assistant DA and Investigator involved in wiretaps to attend mandatory training on wiretap surveillance and compliance. And every wiretap deadline is tracked internally so that precious evidence will not be needlessly suppressed.
"Justice, and the citizens of the Macon Circuit, deserve no less."
