Child endangering Cobb County judge prepares for senior judgeship

Governor Kemp To Approve The Application

Former Cobb County Superior Court judge, the Honorable Robert E. Flournoy, III, retired on December 31, 2022 and has publicly conveyed his intention to take the bench and continue as a “Senior Judge” any day now. The only hoop to pass through at this point is getting Governor Brian Kemp to sign off on Flournoy’s application for the coveted and prestigious role of senior judgeship. Under Georgia law, "Senior judge status . . . shall be acquired by a qualified former judge's applying to the Governor for appointment as senior judge. The Governor shall appoint each qualified applicant as a senior judge." See O.C.G.A. 15-1-9.2. So what could stop Kemp from lending his golden seal (signature) of approval? To answer that question, perhaps we should understand what keeps Judge Flournoy from being the typical “shoe-in applicant” for the position.

Circumventing the Jury in Favor of Defendant Pedophile

In 2009, Christian Boone of The Atlanta Journal-Constitution (AJC) authored an article entitled It’s gross, but it ain’t illegal: Judge says teacher not guilty for having sex with student. The article discusses how Judge Flournoy issued a directed verdict to bypass the jury in a case against a 36-year-old Marietta High School teacher who admitted to having a sexual relationship with a 17-year-old student. "It's gross, it's awful, but it ain't illegal," said Flournoy according to the article. "This was a consensual relationship." The prosecutor in the case, Maurice Brown, argued that the teacher used his position to take advantage of a romantically naive teenager. "He led her to believe he was in love with her . . . . He led her to believe she was in love with him." Navigating Justice consulted with Marietta Attorney, Matt McMaster regarding the shortcomings of Georgia's child protective laws, past, present and future, and here was his breakdown:

At the time the It’s gross, but it ain’t illegal article was printed in 2009, O.C.G.A. § 16-6-5.1(b)-(c) read in relevant part:

(b) A . . . custodian or supervisor of another person referred to in this Code section commits sexual assault when he or she engages in sexual contact with another person who is enrolled in a school . . . and such actor has supervisory or disciplinary authority over such other person.

(c)(1) A person commits sexual assault when such person has supervisory or disciplinary authority over another person and such person engages in sexual contact with that other person who is: (A) In the custody of law; or (B) Detained in or is a patient in a hospital or other institution.

(2) A person commits sexual assault when, as an actual or purported practitioner of psychotherapy, he or she engages in sexual contact with another person who the actor knew or should have known is the subject of the actor's actual or purported treatment or counseling, or, if the treatment or counseling relationship was used to facilitate sexual contact between the actor and said person.

(3) Consent of the victim shall not be a defense to a prosecution under this subsection.

. . . .

As is apparent, the use of the term “subsection” restricted (c)(3) to apply only to subsection (c) of O.C.G.A. § 16-6-5.1. Had the term “Code section” been used in place of “subsection,” the former Marietta High School teacher, Mr. Christopher King, would have undoubtedly been found guilty in that case. The Georgia Legislature re-wrote O.C.G.A. § 16-6-5.1 the following year (2010) closing the loophole by adding subsection (e), which reads: “Consent of the victim shall not be a defense to a prosecution under this Code section.”

McMaster continued, “My primary concern with what Flournoy did in that 2009 case is his use of a ‘directed verdict’ to take the decision away from the jury. Why would you do such a thing when we are dealing with kid’s lives? We will never know how many more teacher’s took advantage of their authoritative role in light of that decision by Flournoy prior to the change in legislature. Judge Flournoy should have left it with the jury to decide whether the teacher led the student to believe he was in love with her and whether the teacher led her to believe she was in love with him."

A perhaps more dangerous and less known loophole exists now in light of the “new” Equitable Caregiver Act, which was enacted in 2019. “As you of course know I ran in the recent election for Superior Court Judge here in Cobb County, and my running was inspired by a case I was involved in where the judge completely misused the Equitable Caregiver Act to put a child in a very dangerous situation,” said McMaster. “I am of course referring to ‘The Lion’s Den’ case published on my campaign website. That was where a combination of judges, including Judge Flournoy and Judge Kreegar, enabled the placement of a 15-year-old girl into the home of a 42-year-old unmarried man. I represented the father in that case.” Here is an excerpt from the “The Lion’s Den” article published on the mcmasterforcobb.com website:

Since that April 15, 2021 hearing, Father has not been able to communicate with his only daughter while she has been in the custody of the 42 year-old-man. Because this young lady is now 16 years old, if our worst fears materialize into reality, this man cannot be prosecuted for statutory rape under Georgia law. See O.C.G.A. § 16-6-3. No, this man did not adopt her; and no, there was no emergency warranting such a placement of this child. He is merely one of at least five (5) ex-boyfriends that the Mother has had over a period of eight (8) years, with one major caveat: he was represented by Judge Flournoy's former attorney who helped Judge Flournoy gain custody of his grandson in 2010 and also happened to be Judge Flournoy's election campaign Treasurer since 2016. I later learned that this is Judge Flournoy's lame duck term, meaning he is not running for re-election in 2022. Here is an Affidavit of the child's Aunt which shows how dangerous this man and the circumstances enabled by Judge Flournoy truly are.

The Georgia Legislature identifies certain situations that leave some individuals vulnerable to the will and desires of others (e.g., school teachers, psychiatrists, law enforcement, etc.), and it is clear that Georgia sexual abuse laws are created for the very purpose of deterring the exploitation of vulnerable individuals. These laws do not require any proof of violence, abuse, or other improper conduct for their application and prosecution—only that the relationship exists.

"Georgia’s statutory rape law does not provide a deterrent for a 43-year-old court ordered male custodian of a non-blood-related 16-year-old girl from developing a romantic relationship with that girl while in his custody," McMaster explained. "In fact, there is no protection under Georgia law for the minor child at risk in 'The Lion's Den' article."

Cronyism and Bullying from the Bench

Perhaps Flournoy’s most notorious trait is his unruly temperament on the bench and his failure to recuse himself from cases that he should not preside over. For example, in 2010 he Kreegar . At the time, this all could have been chalked up to be a matter of unfortunate events for the prosecutors of one of the most famous RICO cases, and perhaps the largest white-collar scandal, in Cobb County history. But judge Kreegar has lent his assistance to the Brownings and Flournoy in a more recent case in a far more controversial capacity.

In another case pending in Cobb County, judge Flournoy engaged in what was described as a yelling match. In another custody case,…, the custodial father has completely on August 8, 2022, even though the case had been closed for over four years, judge Flournoy released a lot of sensitive evidence by order to the Clerk of Court. All evidence was either released or destroyed with no electronic copies left on the record.

Despite his notoriety, the Judicial Qualifications Commission (JQC) has not shown itself as attempting to deter Flournoy. “The reality is if the JQC was functional and doing its job in Cobb, we wouldn’t have so many problems with our judges,” said Marietta Attorney, Matt McMaster, who has publicly been one of Judge Flournoy's biggest critics as of late. “[Flournoy’s] decisions and influence have already enabled dangerous situations and there is no reasonable expectation that he will change his philosophy or habits once he is a senior judge. Senior judges are responsible for handling sensitive matters such as temporary restraining orders for stalking and abuse and similar matters related to child custody. Flournoy has a reputation of succumbing to his ego, deferring his judgment to his friends who aren't necessarily known for their integrity in the legal community, and not impartially considering the facts of a case. We can't have this with our senior judges.”

An Open Records Request regarding Flournoy’s application was sent to Governor Kemp’s office on behalf of Navigating Justice on January 2, 2023, but no word on that request has been received as of the publishing of this article. Right now, it's all eyes on Kemp.

The Judicial Qualifications Commission was created by Constitutional Amendment in 1972, then reconstituted by Constitutional Amendment in 2016, to conduct investigations and hearings with respect to complaints of ethical misconduct by Georgia judges. The Commission is also authorized to issue Advisory Opinions regarding judicial misconduct. Read more at gajqc.gov.