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'I Would Avoid Blacks on This Jury': Will a Secret Memo See a Murder Case Overturned?

Attorney Stephen Reba found the memo amid a sheaf of loose papers in one of 10 banker boxes left over from the 2007 murder trial of a coastal Georgia physician: an itemized list of recommendations as to who should sit, and not sit, on Dr. Noel Chua s jury.

A paragraph on the first page grabbed Reba s eye.

Personally, I would avoid blacks on this jury. I understand you have some constitutional concerns there that have to be kept in mind, but try to avoid them.

Reba, a Decatur attorney, said the memo he found in the Brunswick Circuit district attorney s old case files in the summer of 2013 raises serious questions about whether, in striking the jury that ultimately convicted Chua, either the DA, now a circuit superior court judge, or his staff may have flouted the U.S. Supreme Court s 1986 decision in Batson v. Kentucky.

Batson established, and the U.S. Supreme Court upheld, that the use of preemptory challenges to keep African-Americans off juries because of their race violates the U.S. Constitution s Equal Protection Clause. Chua is a Filipino-American.

Finding the memo was, said Reba, a Harry Caray holy cow moment a reference to the professional baseball broadcaster who employed the catchphrase whenever a player hit a homerun.

The memo was unsigned. But it included the author s contact information. After some sleuthing, Reba traced it to Steve Berry, now a New York Times best-selling author of historical conspiracy thrillers featuring his recurring character, former government operative Cotton Malone. At the time of Chua s murder trial, Berry was a coastal Georgia lawyer and an elected Camden County official.

My initial thought was, This is incredible, Reba said. What must have actually been going on in this case if they had so casually kept this [memo] and thrown it back into the DA s file?

He photographed the memo with his cellphone. My first thought, quite frankly, was that I m going to request [a copy of] this document and it s going to disappear.

A Fight for the Memo

Reba was right. For nearly three years after his discovery, prosecutors fought to keep the memo secret, claiming it was privileged attorney work product and, thus, exempt from the state s open records law. Only after Reba filed a public records suit against the DA and successfully appealed a lower court ruling backing the exemption did the current DA, Jackie Johnson, finally surrender the memo last year.

Berry s memo and its recommendation to keep African-Americans off the jury that convicted Chua has become the focal point of Reba s efforts to win a new trial for Chua, who is serving a life sentence.

Murder Charges for Popular Doc

Chua was a popular and widely liked physician in Camden County in coastal Georgia. In 2006, he was charged with felony murder and multiple counts of illegally providing prescription drugs outside the scope of a legitimate medical practice after Jamie Carter Chua s 20-year-old housemate, intern and sometime patient was found dead in Chua s home after overdosing on a cocktail of prescription narcotics.

Chua s trial lawyer, Don Samuel of Atlanta s Garland, Samuel and Loeb, said Chua s prosecution was one of the first cases in Georgia in which a doctor was prosecuted for murder based simply on prescription practices. Chua, he added, was not a pain clinic doctor, and his practice was not a pill mill.

The Supreme Court of Georgia unanimiously affirmed Chua s conviction in 2011.

Chua s prosecution prompted public protests by his patients. County deputies wore Free Chua buttons alongside protesters, and the physician garnered public support from then-Camden County Sheriff Bill Smith, who had a quadriplegic son whom Chua had treated.

Testimony Proves Elusive

Reba was working on Chua s habeas petition when he discovered the Berry memo. Last April, he arranged to have Berry subpoenaed at a Georgia book-signing to testify at an Aug. 8 habeas hearing for Chua in Macon. But Berry, slated to be the hearing s key witness, didn t show up.

Bibb County Superior Court Judge Verda Colvin, who presided at the hearing, called Berry s absence disturbing. The judge said she would set a new date to take Berry s testimony and, if the author again failed to appear, she would initiate contempt proceedings.

Berry did not respond to a lengthy email or voicemails from the Daily Report. When a reporter reached him on his cellphone, she was disconnected after identifying herself. When she called back, Berry, citing a terrible connection because he was in the middle of nowhere, requested a callback an hour later. When the reporter called again, she was routed to Berry voicemail. Berry s lawyer, Alma attorney Theodore Solomon also did not respond to a detailed email and voicemails asking about the memo and Berry s decision not to appear without filing a motion to quash the subpoena.

Even without Berry s testimony, his potentially explosive memo, its contents and questions about whether prosecutors used it in selecting the jury that convicted Chua took center stage the hearing.

The memo suggested that African-Americans specifically should be struck from Chua s jury because Camden County s then-Sheriff Bill Smith, who had publicly supported Chua and was critical of his arrest, might attempt to influence them. Bill has lots of ties there, and they would be easiest for him to get to, the memo said.

The memo listed more than 80 jurors, even though their names, according to one court pleading, had been ordered kept under seal by a judge prior to jury selection. (Daily Report has chosen to redact the jurors names.) Potential jurors were described as nutty as a loon, drug head, looney tunes, a bit of a loose cannon and nut case. Beside one potential juror s name was the notation: He s gay. Just so you ll know, since that could become an issue here.

Brunswick Circuit DA Johnson who was an assistant district attorney when she and then-DA Stephen Kelley, now a Superior Court judge, prosecuted Chua in 2007 testified at the Aug. 8 hearing. Johnson repeatedly insisted she was unaware of the existence of the Berry memo until after Reba filed an open records request and had never used the memo in questioning potential Chua jurors. Race, she said, played no role in striking the Chua jury.

She also defended her office s fight to keep the memo secret. Johnson said two assistant DAs, after reviwing the memo, had advised her that it constituted confidential attorney work product and, as such, was privileged. She said she made some assumptions that Kelley probably had prepared it or gotten it from someone.

Johnson s decision to wage a three-year legal battle to keep secret a memo she claimed she never saw and never used prompted Judge Colvin to ask why Johnson would claim it was attorney work product. Why not just say she had never seen it before, didn t know where it came from and let Reba have it?, the judge asked.

But Johnson, citing her office s formal response to the open records suit, suggested she wasn t sure it wasn t planted.

It appeared that lawsuit was somehow politically motivated. To me, it looked like some sort of political game, she said.

Johnson also testified that she talked to Berry about the memo, who called after the open records suit became public. He was concerned it would adversely affect him, she said.

Kelley didn t testify at the hearing. But last month, he gave a deposition identifying Berry as the memo s author. At the time, Berry was a county commissioner, the judge said. We constantly used elected officials for jury information.

Samuel, Chua s trial lawyer, also testified at the Aug. 8 hearing. He recalled that during jury selection, he had challenged what he viewed as prosecutors unconstitutional focus on striking African-Americans from the jury. Then-Superior Court Judge Amanda Williams who four years later would resign to end a state ethics investigation of her tenure denied Samuel s motion after prosecutors cited what she agreed were racially neutral reasons for their strikes.

Samuel told the court he only learned of the Berry memo when Reba shared it with him. Samuel said if he had known that the district attorney had consciously avoided placing African-Americans on Chua s jury, That s the very definition of a Batson challenge. Yes, I would have raised it on appeal. I would have raised it in a motion for a new trial and, presumably, I would have won.

Contact R. Robin McDonald at rmcdonald@alm.com. On Twitter: @rrobinmcdonald