Matthew C. Billips, with Orr, Brown & Billips. (Courtesy photo)

The city of Atlanta has agreed to pay $935,000 after firing its former crime lab chief for testifying as a defense expert in a Florida criminal case.

Donald Mikko was booted from his job after Fulton County District Attorney Paul Howard Jr.  complained to former Atlanta Police Chief George Turner that, as a police official, Mikko should not be assisting criminal defendants even in another state, although his contract allowed him to do so.

Mikko sued APD, Turner, Howard and senior Fulton ADA Sheila Ross, who had been contacted by a Florida prosecutor about Mikko's upcoming testimony and was provided with a report Mikko had prepared.

Ross was accused of telling an APD major that Mikko's report "bad-mouthed Florida law enforcement," and that Howard had said "it does not look good for Atlanta police people, especially the crime lab director, to testify against the prosecution." 

Mikko's complaint, filed in Fulton County, included claims for retaliation in violation of his free speech rights under the state and federal constitutions, racketeering and obstructing justice by conspiring to interfere with a witness' testimony in a criminal trial.

The case was removed to the U.S. District Court for the Northern District of Georgia, where Judge Leigh May dismissed the state claims against Howard and Ross but allowed the federal constitutional claims to survive.

The prosecutors appealed, arguing that they were protected by prosecutorial and qualified immunity.

The U.S. Court of Appeals for the Eleventh Circuit declared in 2017 that they were not shielded by prosecutorial immunity "based on actions taken by prosecutors to prevent a witness from testifying in a case handled by a different prosecutor, from a different office, in a different jurisdiction."

But the appeals court said the prosecutors were protected by qualified immunity because, at the time they sought Mikko's ouster in 2013, there was no clearly established legal precedent that their actions violated his First Amendment rights.

Howard and Ross were dismissed from the suit, and Turner was dismissed earlier this year after arguing he was also protected by qualified immunity for the same reasons cited by the Eleventh Circuit. That left only the city as a defendant.

May also dismissed the racketeering claims.

Mikko moved for summary judgment on the constitutional claim, and his lawyer Matthew Billips said Turner provided key testimony in a deposition.

"I asked two questions," said Billips. "First, I asked, 'Is it true the reason you fired Mr. Mikko was because he testified for a criminal defendant in Florida?' And he said 'yes.'"

"Then I asked, 'If, all other circumstances being the same, Mr. Mikko had testified for the state, would you have fired him?' And he said 'no,'" Billips said.

That was a clear First Amendment violation, Billips said.

"Because of those questions and answers, we won summary judgment on liability, and the only issue left was damages," said Billips, who handled the case with Orr, Brown & Billips colleague Kristine Brown. 

During a mediation before U.S. Magistrate Judge Alan Baverman, Billips said the judge "got the city way up from where they started," but the case was moving ahead toward trial when the defense team, headed by Department of Law attorneys Robert Godfrey and Duane Pritchett, agreed to settle. 

The Atlanta City Council voted on Oct. 7 to approve paying Mikko $935,000 to settle the case.

"We're still waiting for the check," Billips said. 

A spokesman for the city did not immediately reply to a request for comment Friday.

Billips noted that Mikko's was the second case he's handled against APD for retaliating against an employee who testified for a criminal defendant. In 2008, he sued on behalf of an officer who testified as a character witness on behalf of his brother-in-law and was hit with a 30-day suspension and demoted from senior patrol officer to patrol officer.

That case settled for $190,000, Billips said.