Police “Subpoenas” Puzzle Lawyers

Fulton County Daily Report
Greg Land
September 13, 2006

ATLANTA ATTORNEYS Charles B. Pekor, Jr. and Daniel E. DeWoskin  were in a meeting at their downtown Atlanta office last month when a pair of detectives from East Point arrived and demanded an audience.

Upon emerging, DeWoskin was presented with a “Court Order for the Production of Documents” bearing a large shield with the legend “East Point Police Department.” Signed by East Point Municipal Court Chief Judge Rashida O. Oliver, the paper ordered DeWoskin and a client, Joseph Woods, to produce a list of documents pertaining to the security business operated by Woods and unspecified certification records for one of his employees.

A boldfaced paragraph warned that the documents must be produced within 10 days “OR a representative MUST appear personally in The East Point Court” on Sept. 6 – seven days later – or “Failure to Appear Warrants” would be issued.

“We were astounded to see what appeared to be an illegal subpoena, apparently issued by the police department itself,” said Pekor during an interview. “It was even more disturbing that a police department was trying to seize attorney-client documents using bogus subpoenas.” Pekor detailed the encounter in a motion he filed Sept. 5 in Fulton County Superior Court seeking an emergency injunction to stop the enforcement of the subpoena. Within hours of his filing, Oliver had faxed Pekor a signed order, oddly dated Sept. 1, quashing and withdrawing the subpoena.

On Sept.6 Pekor filed to dismiss his action,  Carver Bible College et al. v. City of East Point et al.,  No. 2006CV2168. But the short-lived case poses questions about why Oliver signed the subpoena and tells a strange story about what may be a turf fight between East Point officers who moonlight as security guards and a private security company.

Unusual situation

Oliver, who graduated from the Georgia State University College of Law and was admitted to the State Bar of Georgia in 1994, was appointed by the East Point City Council in February 2005, acccording to council minutes posted online.

Reached by telephone, Oliver declined to discuss the subpoena, where it originated or whether she routinely issues such orders for – and on the stationary of – the police department. Fellow East Point Municipal Court Judge Glen Eswrd Ashman said he was unfamiliar with the case but did not recall ever seeing or issuing any subpoenas bearing a police department shield.

After hearing about the situation, Atlanta Municipal Court Judge Andrew A. Mickle said, “Without seeing the document, I can tell you immediately that, one, a subpoena must be signed by the clerk of the court, and two, a police department cannot be given subpoena power.

“A judge can issue a search warrant,” he added. “Thats how it’s usually handled.”

Calls to the detectives, Allyn E. Glover and Robert C. Gray, were returned by East Point Capt. R.C. Popham.

“That’s the way our subpoenas are,” said Popham, adding that he was unaware of any irregularities but that the incident may lead to a review of the documents. East Point City Attorney Nina Hickson, through an assistant, referred questions to Oliver. East Point city spokeswoman Zee Bradford said the mayor’s office had received no complaint about the judge, and had no further comment.

Events in dispute

According to Pekor and DeWoskin’s complaint, the East Point detectives were seeking documents retlated to the lawyers’ client, Woods, and his company, Apex Security. Woods’ employee, James Wilson, was on patrol for Apex in the Regency Park Apartments on Aug. 16. According to a statement Wilson made to East Point police in a department incident report, Wilson and a partner saw a woman get into a parked SUV with two men in “a known drug area.’

What happened next is in dispute.

According to Wilson’s account, he approached the vehicle and tapped on the window with his flashlight. The vehicle started to pull off when a man jumped out of the passenger side; Wilson raised his flashlight and scratched the man’s head, he said according to the report. But the police report reveals the two suspicious men wer undercover East Point police officers. One of the officers claimed Wilson had snatched the door open and struck him with the flashlight and several times with his fists before the officer could identify himself.

Worried that the ruckus would “blow their cover,” the undercover officers said in the report that, once they had made their identities known, they told the security guards to meet at a nearby restaurant, where several other East Point officers and Apex’s chief, Woods, soon arrived. Wilson was cuffed and placed in a car, but – following a conference – he was released.

The report said that East Point officers later determined that Woods and Wilson are certified by the Georgia Peach Officer Standards and Training Council, that Woods oversaw a volunteer force for Carver Bible College in southwest Atlanta, and that his firm had been hired by the apartment complex to provide security.

The report also noted that Apex’s corporate registration with the Secretary of State had lapsed as of last year.

When Woods and Wilson were contacted by East Point police, they retained lawyers Pekor and DeWoskin. The lawyers exchanged phone calls with the detectives, recalled Pekor, “then I didn’t hear anything else, and I assumed they had dropped it.” But on Aug. 30, the detectives arrived at Pekor’s office bearing the purported subpoena, seeking Wilson’s training records and a list of documents related to the Bible College and Apex.

“The ‘officers’ were extremely rude, threatening and intimidating to our paralegal,” wrote Pekor in the Fulton County motion. “We asked Detective Glover what pending court case this was in reference to, and he advised us that there was no pending court case, but rather an ‘ongoing police investigation,’ and that the subpoena was being issued in that connection.”

Glover, according to the motion, “advised us that failure to comply with the ‘subpoena’ would result in a warrant for our arrest,…When we attempted to point out to Detective Glover that, to our understanding, in the State of Georgia, subpoenas can only be lawfully issued in connection with an existing court case, or by a duly empanelled Grand Jury, he told us that we had ‘only three options, bring the records in person, fax them or mail them,’ or be arrested, to the best of my recollection.”

According to the police report, on the same day, the detectives visited Garvin Abernathy Jr., vice president of business affairs at Carver Bible College in southwest Atlanta, and presented him one of the purported subpoenas, demanding “complete copy personnel records for Chief Joseph Woods” and “all agreements made with Joseph Woods for Security/Police protections.”

On Sept. 2, an East Point officer found Wilson on duty at the apartments, and arrested him on aggravated assault charges; after several hours in jail, he was released on bond. On Sept. 5, Pekor filed his motion to enjoin the subpoenas on behalf of Carver, Woods, Wilson and DeWoskin; that afternoon, he received notice that the subpoenas had been quashed.

After reviewing the police reports, the Daily Report attempted to reach the detectives and Popham by telephone and e-mail for further inquiry, but there was no response.

Pekor, pressed for an explanation of the delayed arrest and intense interest in Apex’s affairs, said the company had replaced several East Point officers who had formerly provided security for the apartment complex, and he suspects retaliation.

“Our understanding is that the security company was hired about three months ago, and there may be some resentment there,” he said. He noted that, in the aftermath of the Aug. 16 incident at the apartments, “there was a big powwow with the police and a captain, and everybody just decided it was all a mistake, no harm, no foul, and everybody went home.” Later, he said, “they may have decided ‘Hey, now we can shut those [security] guys down.'”

He said his clients declined to speak to the  Daily Report. Attempts to reach Regency Park mangement were unsuccessful.