Georgia Governor repeats mistake of former governor Roy Barnes, but did Kemp have a choice?

You be the Judge...

The Honorable Robert E. Flournoy, III, was appointed to the Cobb County Superior Court bench by Georgia Governor Roy E. Barnes on July 14, 2000 and was elected without opposition in 2002, 2006, 2010, 2014 and 2018. He was named "Cobb County Judge of the Year" in 2005 and was the recipient of the "Jimmy Berry Champion of Justice Award" in 2015. Judge Flournoy retired on December 31, 2022 and has since been appointed as a “Senior Judge” of the Superior Courts of Georgia by Governor Brian Kemp. This appointment is of course not without controversy. 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. According to Open Records, Judge Flournoy sent his application for Senior Judge status to Governor Brian Kemp's office on October 24, 2022. However, the statute requires an application by a qualified "former" judge and not a judge still presiding during his or her final elected term. That being said, there exists a potential procedural blemish in the initiation of Flournoy's application. Despite this timing issue, Governor Kemp granted Flournoy’s request appointing him as a senior judge on January 4, 2023. Procedural snafu aside, why else might Judge Flournoy lack qualification for senior judge status? To answer that question, perhaps we should understand more about Flournoy’s suspect decisions during his tenure on the bench.

Barnes Law Group and the Cobb EMC Scandal

One of Flournoy's most notorious rulings came in 2011 in what may very well be the largest white-collar scandal in Cobb County history. According to an AJC article authored by Margaret Newkirk, Judge Flournoy threw out a 31-count racketeering and theft indictment against former Cobb EMC CEO, Dwight Brown. Brown at the time was represented by Barnes Law Group, founded by former governor Roy Barnes who appointed Flournoy to the Cobb County Superior Court bench in 2000. Flournoy based his ruling on testimony that the indictment was not returned in a place open to the public as required under Georgia law.

Flournoy's decision was upheld on appeal by the Supreme Court of Georgia based on the testimony of another Cobb County Superior Court Judge, George H. Kreeger, and the following three witnesses with close ties to both Judge Flournoy and former governor Barnes:

• Tyler Browning, Judge Flournoy's first staff attorney, latest campaign chairman and son of longtime friend Tom Browning
• John Salter, Barnes Law Group attorney and son-in-law to Roy Barnes
• Cameron Tribble, Barnes Law Group attorney and attorney for former Cobb EMC CEO, Dwight Brown

Despite his personal relationships with Roy Barnes and Tyler Browning, Flournoy did not recuse himself from that case. Judge Flournoy, Judge Kreeger and Tom Browning would years later collectively play a much more sinister roll in enabling a situation of potential child grooming which could in turn lead to human trafficking. That case is better known as [The Lion's Den].

The Lion’s Den

A dangerous loophole exists in the “new” Equitable Caregiver Act, which was enacted in 2019. This was most notably made known in 2021 when a combination of judges and attorneys, including Judge Flournoy, Judge Kreeger and attorney Tom Browning, enabled the placement of a 15-year-old girl (now 17) into the home of a 42-year-old unmarried man, not blood related to her and who had a history of abusing the mother. 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 [Tom Browning] 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 General Assembly 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 assault 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. "That is what's so dangerous about what Flournoy and Kreeger did in 'The Lion's Den' case."

Circumventing the Jury in Favor of Teacher Who Slept With 17-year-old High School Student

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." For the previously published Child endangering Cobb County judge prepares for senior judgeship article (January 3, 2023), 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 that 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 Judge 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 kids’ lives? Flournoy should have left it with the jury to decide whether the teacher used his position to take advantage of a romantically naive high school student such that it was not true consent."

No Help On the Horizon

In the face of his notoriety, the Judicial Qualifications Commission (JQC) has not yet shown itself as attempting to deter Flournoy. “The reality is if our judges respected the JQC, we wouldn’t have so many problems with our judiciary,” said McMaster, who has publicly been one of Cobb Judiciary'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 emergency matters related to child custody. Flournoy has a reputation of succumbing to his ego, deferring his judgment to his friends, and not impartially considering the facts of a case. We can't have this with our senior judges.”

On January 10, 2023, Navigating Justice sent a request for comment to the JQC regarding McMaster’s criticism above. However, the recent Director of the JQC, Chuck Boring, resigned on or about January 17, 2023 and Interim Director Courtney Veal declined to provide a material response to inquiries as shown in her letter dated January 24, 2023, a copy of which is available here.

The Verdict

Did Governor Kemp have a choice? Recall that the applicable law states: "The Governor shall appoint each qualified applicant as a senior judge." All things considered, the pivotal issue is whether or not Flournoy was a "qualified applicant" at the time of his appointment. While reasonable minds may differ, there is strong argument to say that Judge Flournoy was not a qualified applicant and that Governor Kemp made an honest mistake in appointing Flournoy as a senior judge.

On January 28, 2023, Navigating Justice sent a request for comment to the Office of the Governor, Brian P. Kemp, regarding Judge Flournoy's recent appointment. No response from the Governor's Office has yet been provided. The residual question remains: How will Governor Kemp address his error? Time will tell...

"The first step in solving any problem is acknowledging that the problem exists."
- Matthew D. McMaster, Esq.
January 2022 (citing Unknown)

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If you are aware of similar problems in Georgia legal matters, send the details and documents here: https://navigatingjustice.org/reporting/
February 2, 2023

This article comes as a follow-up to the previously published Child endangering Cobb County judge prepares for senior judgeship (January 3, 2023).