Fulton County District Attorney Paul Howard (Photo: John Disney/ALM)

After exchanging salvos with the state Supreme Court about who was acting in a "bizarre" fashion, Fulton County's district attorney dropped a type of appeal that the justices suggested was wasting everyone's time.

Georgia Gov. Brian Kemp.

But Fulton DA Paul Howard Jr. embarked on a campaign he said was backed by many other prosecutors to push Gov. Brian Kemp for legislation that would curb trial judges' power to act as a "13th juror" and undo jury verdicts.

Two days before oral arguments, Howard withdrew the state's appeal of a Fulton County judge's decision to grant a new trial to convicted murderer Terron "Red" Clark. At issue was the "13th juror" power based on a state law allowing judges to overturn jury verdicts they find "contrary to evidence and the principles of justice and equity."

In a separate case last week, the high court unanimously upheld a Fulton County judge's decision to overturn a murder conviction based on her view that the prosecution's evidence was "weak" and full of "conflicting evidence and credibility concerns."

Justice Sarah H. Warren, Georgia Supreme Court.

In that ruling, Justice Sarah H. Warren wrote for the court that the state's argument—the guilty verdict was demanded by the "great physical laws of the universe"—was "bizarre."

Presiding Justice David Nahmias, joined by Warren and five other justices, added separately that prosecutors' appeals of judges' "13th juror" decisions based on the credibility determinations have "no realistic chance to prevail."

Nahmias warned prosecutors to "think hard" whether an appeal on that basis would be "a waste of the limited resources of the State, the publicly funded lawyers who represent most of the defendants in these cases, and this Court."

Presiding Justice David Nahmias, Supreme Court of Georgia.

Responding in a news release last week, Howard said, "What strikes the State as 'bizarre' are the actions of the trial judge who waited three years to deliver the granting of a new trial and who issued the ruling on her last day in office."

He added, "This Court decided to ridicule prosecutors for filing an objection to an outrageous process. Such action by the Court, in my humble opinion, with all due respect—is 'bizarre.'" 

On Tuesday, Howard told the Daily Report in an email, "Based upon the tone of the Georgia Supreme Court's ruling last week in (State v. Beard), the State will forego its appeals of the usage of the '13^th Juror' statute in lieu of legislative action."

Howard included a letter he sent to Gov. Brian Kemp, urging a change in the "13th juror" law. "Allowing the Judges to single-handedly undo all the hard work of a criminal jury is a slippery slope ripe for abuse," Howard wrote.

He asked Kemp to direct state Attorney General Chris Carr to draft legislation "correcting this injustice," adding that district attorneys "across the state will happily assist" in the effort.

Despite his frustration with judges using the "13th juror" power, Howard did not push for a categorical ban. He noted how, early in his career when he was a criminal defense attorney, one of his clients was granted a new trial, but that matter was "exceptional" and "why the statute was written."

A spokeswoman for Kemp declined to comment, noting his office received the letter Tuesday. Carr could not be reached by deadline. Pete Skandalakis, director of the Prosecuting Attorneys' Council of Georgia, referred a call to Layla Zon, the Alcovy Circuit district attorney who heads the state's District Attorneys Association. She had no comment by deadline.

Andrew Fleischman, who handles criminal defense appeals for Ross & Pines and isn't involved in the cases at hand, said defense lawyers also have borne the state high court's frustrations with appeals based on judicial credibility determinations.

Lawmakers shouldn't dilute Georgia's "13th juror" power because it pales in comparison to what judges can wield in other states. "This is our only gesture in this direction," he said.

Justice Charlie Bethel, Supreme Court of Georgia.

At the Supreme Court on Tuesday, the justices heard arguments in another case dealing with a judge overturning part of a jury verdict in a criminal case. During the argument, Justice Charlie Bethel noted the "13th juror" power is based on statutes and probably common law dating back to at least 1799.