The judge overseeing a multidefendant double murder case in Cobb County rejected prosecutors' efforts to hold defense attorneys responsible for a mistrial declared because a potential juror looked at a post from a defense lawyer's Facebook page and shared her findings with other panelists.

Cobb County District Attorney Vic Reynolds' office last week filed an “emergency motion” accusing defense attorneys Kim Frye and Ashleigh Merchant of violating bar rules barring public comment that might be prejudicial and false statements to the court.

The motion, filed by Chief Assistant District Attorney Jesse Evans and Assistant District Attorney Rachel Hines, asked Judge A. Gregory Poole to prohibit anyone involved in the case from making any “extrajudicial comment” on the case.

Late Monday afternoon, Poole said he had reviewed the evidence and posts in question and found nothing objectionable.

Poole also said he saw no “emergency” and agreed with the defense lawyers' arguments that the juror who ignored instructions not to research the case or discuss it with anyone was responsible for the mistrial.

And, he said, the order prosecutors requested would violate the U.S. Constitution.

“I don't have the authority to violate anybody's First Amendment rights,” said Poole, and “I don't see any violation of the rules.”

The case was before him was on remand from the Georgia Supreme Court, which reversed a jury's 2012 convictions. Poole warned against further delay in a case he said has already generated too much acrimony.

“Do you really want to start down this road?” asked Poole.

The case involves an armed robbery and two deaths in 2009. Lawyers for defendants Desmond Post, Rolaunda Fripp and Joseph Brown filed pretrial recusal motions against then-trial Judge Reuben Green on the grounds that, prior to his 2010 appointment to the bench, he had been a Cobb County prosecutor, and that former Cobb DA Pat Head served as treasurer for Green's judicial campaign.

Green refused to recuse, and the three were convicted at trial.

In 2015, the Supreme Court ruled that Green should have referred the recusal motion to another judge and ordered a new trial.

As detailed in recent court filings, jury selection for the new trial began on March 12. After four days of voir dire and interviews with 48 prospective jurors,  Juror 44 said she had met Frye, one of the defense lawyers, 10 years earlier when both were members of a support group. Juror 44 was excused for cause.

Then another panelist, Juror 46, said that Juror 44 had told her and other jurors that the case was a retrial of a nine-year-old case and involved “a recusal issue.”

She also told the court that Juror 44 said she'd found the information on Frye's Facebook page.

Merchant asked for a mistrial, and Poole granted it with no objection by the state.

After the mistrial was declared, prosecutors viewed Frye and Merchant's Facebook pages and filed the emergency motion accusing them of tainting the jury pool and violating the Rules of Professional Conduct.

Attached to the motion is a copy of a November 2015 Facebook post from Frye that started, “Happy today that my only murder case client that was tried and received a life sentence had her case reversed today by the Georgia Supreme Court.” She mentioned that Green's recusal was the issue, cited the Supreme Court case name and number, and congratulated Merchant and five other defense lawyers involved in the case.

Prosecutors also included a photo Merchant posted after the mistrial of herself, Frye and co-counsel Bert Cohen giving a thumbs-ups along with the hashtags “stillnotguilty” and “mistrialmeansnotguiltystill,” which the prosecution said was a false statement and indicated the lawyers were “celebrating the mistrial they helped create.”

In a response pleading and at Monday's hearing, Frye and Merchant said the DA's office was trying to blame them for Juror 44's misconduct and threaten their law licenses and livelihoods in an effort to “chill” defense lawyers.

They noted that the Cobb County district attorney's office routinely makes public statements regarding many cases with far more specificity than any of the lawyers' posts and thus cannot claim to have “clean hands” regarding the issue. 

“It is evident the state's allegations have been made in bad faith solely to impugn the character and personal and professional reputation of defense counsel and intimidate counsel into backing down in their advocacy,” said the defense response Merchant filed Friday.

Merchant's filing also asked the court to award attorney fees against the state for the time and expense of researching and filing the response.

In denying the state's motion, Poole urged the lawyers on both sides to “get your heads together” and work to bring the case to trial.

“I don't know why we have a problem in this case with lawyers not getting along,” Poole said.

Noting that he has known all of the attorneys involved for many years, Poole cautioned against “airing out  your dirty laundry in public. Defense lawyers and prosecutors are watching—and this is nasty.”