A defendant in the Rob Bennett stabbing case is appealing to quash his indictment.
Brian Huff was indicted for involuntary manslaughter by a “biased” grand jury, according to his lawyer, J. Tom Morgan of Balch & Bingham.
Huff's attorney plans to file an amicus brief, which will fall in suit with the appeal filed by David Colwell's attorney, Jeff Ellington, to the Georgia Supreme Court.
Colwell is charged with voluntary manslaughter.
“We are not joining in the appeal,” Morgan said. “We have other issues that differ from Mr. Colwell's appeal. I will file an amicus brief because we have one identical issue.”
The issue both defendants share is concern over a grand juror who was dismissed, but still participated in proceedings.
“The judge made the ruling that this particular juror should be dismissed for having bias and intent to the outcome,” Morgan said.
“After being dismissed Monday, the juror returned Tuesday and participated in questioning witnesses.”
Defense attorneys are not present during grand jury proceedings and District Attorney Scott Ballard was unaware the juror was dismissed, according to Morgan.
The appeal must be filed in the next 20 days.
The Georgia Supreme Court then allows the prosecution to file a response before setting a hearing date.
Morgan said he will present other issues of concern during the hearing.
He alleges that another grand juror was untruthful in responses, and was overheard making biased and derogatory comments about Huff and Colwell.
Another issue is the testifying of Bennett's parents.
“Their testifying before the grand jury, had no purpose, but to prejudice and inflame grand jurors,” Morgan said.
The motion filed by Colwell's attorney was denied by the presiding Judge Byron Smith and the Georgia Court of Appeals.
Both attorneys contend only an out of town grand jury can make a fair and impartial judgement in the case.