DA probe leaves big questions unanswered
DA focused on narrow range of criminal cases involving potential conflicts of interest after Judge English and public defender Cornwell were caught in a sexual act, but none before the tryst; tape disputes investigator’s allegation of revenge by Judge Edwards
Former Chief Superior Court Judge Paschal A. English, just weeks before he was caught in a sexual act with public defender Kim Cornwell, was “steering” Cornwell’s criminal cases to his courtroom in September 2009, according to an investigation undertaken by the Fayette County District Attorney’s Office.
According to the DA’s report, Judge English was directing Cornwell’s cases to be heard in his courtroom during calendar call Sept. 22, a fact confirmed both by fellow judge Christopher Edwards and also by several assistant district attorneys.
Other evidence in the investigation indicates the English-Cornwell affair may have been underway a year ago or longer. A letter alleging the affair was active had been filed with state officials at least a year ago, according to Fayette County Public Defender Joe Saia, Cornwell’s boss, speaking in a recording of an “off the record” conversation that was later made available to The Citizen under Georgia’s open records law.
Cornwell at the time denied the allegation, saying she and English were “just good friends.” The exact date of the letter is unknown and Saia said he never actually saw the letter but he got a phone call inquiring about the matter.
Despite those indications of a major potential judicial conflict, the DA’s investigation pointedly declined to review any cases prior to Oct. 13, 2008 [CORRECTED from 2009], the date on which the sheriff’s deputy discovered English and Cornwell engaged in a sexual act while they were in a parked car in an under-construction subdivision on the outskirts of Fayetteville.
In a press conference Friday, Fayette County District Attorney Scott Ballard said the investigation’s review of criminal cases was limited only to those which occurred immediately after the English-Cornwell affair was confirmed by the sheriff’s deputy.
It could be argued, however, that such an investigation should have focused on cases in the weeks and perhaps months leading up to the date English and Cornwell were discovered by the deputy, on the theory that improper judicial conduct between the two may have been occurring prior to that date.
Should the investigation have determined that extra-judicial conduct had occurred, there remains a potential that tens, if not hundreds, of the cases would potentially need to be retried in court.
Ballard said Friday that existing law requires judges to recuse themselves when they have a personal relationship with an attorney involved in the case.
Ballard did not return several phone calls Tuesday seeking comment on this story. He declared his office’s interest in the issue closed with the release of the report June 11 to news reporters.
The English-Cornwell affair may have been going on well over a year ago, depending on the veracity of a letter alleging the affair which was sent to the Georgia Public Defender Standards Council more than a year ago. That letter was mentioned in an off-the-record but recorded conversation in early April between Saia, Ballard and Superior Court judges Tommy Hankinson and Christopher Edwards.
According to the recording of that conversation, Chief Public Defender Saia said he asked Cornwell about the allegation at the time and she denied it. He said Cornwell told him that she and Judge English were good friends, and that the judge was interested in her husband’s line of work as an attorney who deals with professional athletes as clients.
Saia recalled that he was informed about the letter at least a year ago, if not more.
Despite the investigation’s failure to review cases immediately predating the confirmation of the Judge English-attorney Cornwell affair, and the potential of the affair to have been going on for well over a year, District Attorney Ballard and Saia pronounced Friday that the investigation showed no defendants were prejudiced by the relationship.
Ballard further said that he found no indication that the state was prejudiced by the judge-attorney relationship either.
If the investigation goes no further, the public — and defendants who may have been harmed — may never know for certain whether the outcomes of any criminal cases were tainted by the extra-judicial contact between the judge and the state-paid public defender that may have occurred prior to their being caught by the deputy.
The investigation into the English-Caldwell affair began April 28 after Superior Court Judges Christopher C. Edwards and Tommy R. Hankinson summoned District Attorney Ballard and Chief Public Defender Saia to a meeting in chambers.
In a released recording of the “off the record” portion of that conversation, Edwards outlined the ramifications of any potential extra-judicial relationship between a judge and a defense attorney.
“There’s two possibilities. One is: there are people who ought to be in jail who aren’t,” Edwards said. “The other is: there are people in prison who shouldn’t be.”
Later in the recording, Judge Hankinson refers to the alleged affair as “a big mess.” He noted that English’s court rulings could have been affected by the couple’s relationship, if, for example, the couple had a fight the night before.
“It’s a failure to disclose, and you’re having an affair and what are they talking about then? ... It just stinks. You can’t explain it away.”
Edwards explained that the affair allegations came to his attention in a meeting in English’s chambers April 12 with Peachtree City divorce attorney Susan Brown. Then-Chief Judge English asked Edwards to send Brown his way, and English also asked Edwards to attend the in-chambers meeting.
In the meeting, Judge English asked Brown about a letter one of her clients had written to him which made an accusation about the judge which the client attributed to Brown, Edwards said.
Brown denied making the remark cited in the letter, but soon after she said rumors were flying all over the judicial circuit that English was having affairs including one with defense attorney Kim Cornwell, Edwards recalled.
Edwards noted that Judge English did not deny the affair.
Following that meeting, Edwards said he and Judge Hankinson began legal research to determine the next course of action.
Judge Hankinson, on the recording, reminded Ballard and Saia that the decision on Edwards’ part to share the information about the alleged extra-judicial affair was a difficult one.
“I hope you all appreciate the predicament that Chris has been put in,” Hankinson said. “He has suffered with this burden and struggled to get us to this point. You feel like you’re Brutus with the unkindest cut of all.”
Edwards, earlier in the recording, alluded to the moral and ethical dilemma he was in.
“I am not telling you, ah, that it is my fondest hope that Paschal English hates me for the rest of his life for doing what I’m doing. But I cannot imagine or pretend that I don’t have the duty to have you here and tell you about this when it was right in front of me, right there, okay?” Edwards said.
DA investigator Jeff Turner apparently heard that recorded statement differently. According to Turner’s written statement Friday, he accused Edwards of making a “vengeful” statement about English.
“Scott, both you and I have now listened to the non-transcribed, but recorded meeting. We have both verified that Judge Edwards did make the statement that ‘my fondest hope is that Paschal English hates me for the rest of his life.’ ... I find this comment to be disturbing, especially since Judge English had already submitted his resignation. I agree that trust should be restored in the circuit, and that if any courtroom improprieties occurred that they should be brought to light, but this comment seemed to be a bit vengeful. I base this on listening to the entire tape.”
Reporters from The Citizen who listened to the same tape heard Edwards say this crucial preface: “I am NOT telling you, ah, that it is my fondest hope that Paschal English hates me for the rest of his life for doing what I’m doing ...” [Emphasis added by The Citizen.]
That complete statement from Edwards — indicating that Edwards had no wish to offend English — suggests feelings completely different than the revenge motive alleged by the DA’s investigator and DA Ballard.
On the recording, Ballard suggested that defendants who felt wronged by the extra-judicial relationship between Judge English and attorney Cornwell could be dealt with on a case-by-case basis if any habeas corpus petitions were ever filed.
“How are they ever going to find out about that, Scott?” Judge Hankinson asked the district attorney.
“Well, I don’t know there’s anything to find out,” Ballard replied, apparently referencing the fact that the English-Cornwell relationship was mere rumor at that point.
Later in the conversation, Ballard urged the judicial system should be “careful not to overreact” though he was aware of the need to rebuild the public’s confidence in the system.
“I just think the way we do it needs to be with a mind towards not making things worse, and not overreacting,” Ballard said.
Neither Cornwell nor English would speak about the matter to an investigator for the district attorney’s office, officials confirmed.