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Parents who murdered 3-year-old daughter lose appeal in Ga. Supreme Court




            The Supreme Court of Georgia has ruled in favor of the State in a lawsuit brought by three obstetrician-gynecologists who challenged as unconstitutional a Georgia law that prohibits most abortions after 20 weeks of pregnancy.

In today’s ruling, the high court has unanimously upheld a Fulton County court order that dismissed the lawsuit.

 “Simply put, the constitutional doctrine of sovereign immunity forbids our courts to entertain a lawsuit against the State without its consent,” Justice Keith Blackwell writes for the court as the first sentence of a 71-page opinion. However, “we recognize the availability of other means by which aggrieved citizens may obtain prospective relief from threatened enforcement of unconstitutional laws.”

            In November 2012 Eva Lathrop, M.D., Carrie Cwiak, M.D., and Lisa Haddad, M.D., sued Gov. Nathan Deal and 19 other state officers “in their official capacities” to stop the enforcement of certain provisions of House Bill 954, which was due to go into effect within weeks. The legislation forbids a physician from performing an abortion when the probable gestational age of the fetus is 20 weeks or more, unless the pregnancy is “medically futile” or the abortion is necessary to save the life of the woman or to avoid “serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman.” If such circumstances make the procedure necessary, the physician performing the abortion must offer “the best opportunity for the unborn child to survive.” Following the procedure, House Bill 954 requires the physician to file a report about the procedure with the Department of Public Health. The legislation preserves already existing law that makes hospital records of abortion procedures available to district attorneys. Except as permitted by statutory law, the performance of an abortion is a felony in Georgia.

Lathrop and the other physicians claimed that House Bill 954 not only prohibits nearly all abortions after 20 weeks of pregnancy but also “appears to give district attorneys virtually unlimited access to the medical records of all abortion patients within their jurisdictions,” in violation of their constitutional rights to privacy, equal protection and due process. In their lawsuit, the doctors sought “declaratory relief” – a court declaration that the provisions are unconstitutional – and “injunctive relief” – an injunction to prohibit enforcement of House Bill 954’s provisions. In December 2012, shortly before the new law was to take effect, the Fulton County Superior Court granted pre-trial injunctive relief, barring enforcement of the provisions of the Act “insofar as they prohibit pre-viability abortion care.” In 2013, the State filed a motion to dismiss the physicians’ claim against the particular provisions, but the trial court denied the motion. In May 2014, the State filed a second motion to dismiss following the state Supreme Court’s February 2014 decision in Georgia Department of Natural Resources v. Center for a Sustainable Coast, Inc. The State argued that based on this ruling, the case should be dismissed because the State was shielded by sovereign immunity – the legal doctrine that protects the government, its departments and officers from being sued without their consent. Lathrop, Cwiak, and Haddad responded that the Sustainable Coast decision did not involve constitutional claims, and they argued that claims for declaratory and injunctive relief from state actions alleged to be unconstitutional are not barred by sovereign immunity.

In May 2016, the superior court ruled in favor of the State, finding that sovereign immunity “bars any claims against [a defendant] in his official capacity,” and “can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” The doctors then appealed to the Georgia Supreme Court, arguing the trial court erred in ruling that without a waiver by the General Assembly, sovereign immunity shields the State from judicial review of laws challenged as violating individual rights that are protected by the Georgia Constitution.

            In today’s opinion, the high court explains that in its Sustainable Coast decision, it ruled that the doctrine of sovereign immunity applies to lawsuits for injunctive relief. And subsequently, in its 2016 decision in Olvera v. University System of Georgia Board of Regents, it ruled that sovereign immunity likewise applies to lawsuits for declaratory relief.

            “But those decisions involved no constitutional claims, and since Sustainable Coast, we have not had occasion to consider whether the doctrine of sovereign immunity extends to claims for injunctive or declaratory relief that rest upon constitutional grounds,” today’s opinion says. “In this case, we are confronted squarely with that question.

“We hold today that the doctrine of sovereign immunity extends generally to suits against the State, its departments and agencies, and its officers in their official capacities for injunctive and declaratory relief from official acts that are alleged to be unconstitutional.”

With today’s opinion, the high court has attempted to clarify the way citizens may sue state officials for injunctive or declaratory relief against the enforcement of unconstitutional laws. As the Court explains, a suit against officers in their “official capacities” is a suit against the State itself. The law distinguishes between a lawsuit brought against officers in their “official capacities” and a lawsuit brought against officers in their “individual capacities.”

A large part of today’s opinion is devoted to the history of sovereign immunity in Georgia. “The doctrine of sovereign immunity has been a part of our law for more than 230 years,” the opinion says. In 1784, Georgia adopted the common law of England. And under the common law, one could not sue the State unless the State had consented to it. One could, however, bring suit against government officials as individuals.

Therefore, today’s opinion says, if the State is threatening to enforce an unconstitutional law, citizens do not have the right to sue the State or the officers in their “official capacities” unless they have consent to do so, but they do have the right to sue the officers who are threatening to enforce the law in their “individual capacities.”

            Here, the physicians brought their lawsuit against the State, and: “The constitutional doctrine of sovereign immunity bars any suit against the State to which it has not given its consent, including suits against state departments, agencies, and officers in their official capacities, and including suits for injunctive and declaratory relief,” the opinion states. “If the consent of the State is to be found, it must be found in the constitution itself or the statutory law. We find no consent that would permit this suit against the Governor and nineteen other state officers in their official capacities, and the trial court, therefore, did not err when it dismissed the suit.”

            The opinion points out, however, that, “as we have explained at some length, the doctrine of sovereign immunity usually poses no bar to suits in which state officers are sued in their individual capacities for official acts that are alleged to be unconstitutional.” Therefore, there are “prospective remedies that Lathrop, Cwiak, and Haddad may pursue against state officers in their individual capacities,” the opinion says.

            (In a footnote at the end of the opinion, the Supreme Court acknowledges that lawsuits against individual state officials may be less convenient than suits against the State itself. But the Court suggests that if it wished, the General Assembly could eliminate that inconvenience “by enacting a statutory waiver of sovereign immunity for suits like this one.”)

Attorneys for Appellants (Physicians): Donald Samuel, Susan Camp, Alexa Kolbi-Molinas

Attorneys for Appellees (State): Christopher Carr, Attorney General, Sarah Warren, Dep. Solicitor General, Victoria Powell, Asst. A.G.



            The Supreme Court of Georgia has ruled in favor of the State and thrown out a Fulton County judge’s ruling that the requirement that “sexually dangerous predators” must wear electronic ankle monitors is unconstitutional.

            In today’s unanimous opinion, written by Chief Justice P. Harris Hines, the high court has vacated the superior court’s judgment and remanded the case with direction it be dismissed.

            In 2006, Kenneth Berzett pleaded guilty to child molestation and is a convicted child molester. Under Georgia Code § 42-1-14, the state’s Sexual Offender Registration Review Board determines how likely it is that a sexual offender will engage in another sexual crime against a minor or in a dangerous sexual offense, then assigns to the offender the classification of Level I risk, Level II risk or “sexually dangerous predator.” The Board determined Berzett was at high risk of committing another sexual offense against a minor and classified him as a sexually dangerous predator. Under subsection (e) of the statute, “Any sexually dangerous predator shall be required to wear an electronic monitoring system” that has the capacity to locate the predator and record his location through a link to a global positioning satellite system, record the predator’s presence near a crime scene or prohibited area, and set off an automatic alarm if the system is removed or tampered with. According to briefs filed in the case, Berzett today is director of Mighty Man Ministries, a job his lawyers say requires him to travel around the state and to South Carolina helping farmers. His sex offender obligations, including his monitoring, are handled by the Washington County Sheriff’s Department.

Berzett sued the Sexual Offender Registration Review Board in two separate actions. In the first, he filed a petition for judicial review of his classification as a sexually dangerous predator, and in the second, he filed a petition for “declaratory relief,” seeking an order from the court declaring that § 42-1-14 – and in particular its ankle monitor provisions – is unconstitutional. The Board filed a motion asking the court to dismiss Berzett’s petition for a declaration about the statute’s constitutionality. In April 2015, following a hearing, the trial court upheld the Board’s classification of Berzett as a sexually dangerous predator. Berzett did not appeal that ruling. But the trial court denied the State’s motion to dismiss his petition for declaratory relief, allowing the case to go forward. The court ruled that the lawsuit was not barred by sovereign immunity, which protects state agencies from being sued, and was not moot as a result of the upholding of Berzett’s classification. Ultimately the trial court issued a “writ of prohibition” against the Sexual Offender Registration Review Board, prohibiting it from requiring Berzett to wear and pay for the tracking device, and from otherwise enforcing any provisions of § 42-1-14 (e) against Berzett. The Board then appealed to the Georgia Supreme Court, arguing that the trial court lacked the authority to rule on Berzett’s petition for declaratory relief because no actual controversy existed between the Board and Berzett.

            In today’s opinion, the high court agrees. “We will not decide the constitutionality of a law where no justiciable case or controversy is presented,” the opinion says.

Under § 42-1-14 (a) and (b), the Review Board is required to make the initial risk assessment and classification of sexual offenders and decides on petitions for reevaluation of that classification. “The Board does not, however, receive payment for the cost of the electronic monitoring system that sexually dangerous predators are required to wear, place the monitors on them, or play any role in the post-classification administration of the monitoring system,” the opinion says. Throughout the statute, “monitoring of other sexual offender obligations is assigned to the sheriff or appropriate officials other than the Board.” In this case, the Washington County Sheriff’s Department placed a GPS monitor on Berzett’s ankle and continues to monitor his sexual offender obligations, including the wearing of his GPS device.

            Therefore, “once the Board’s classification duties were complete and its classification decision became final, the Board no longer had an interest in the controversy adverse to that of Berzett,” the opinion says. “To the extent that he raises in this declaratory judgment action any constitutional challenges to the statutory provisions regarding classification, such as due process, those challenges could and should have been raised in his petition for judicial review of the Board’s classification decision.”

            “In short, although there may be some actual or justiciable controversy between Berzett and the Washington County Sheriff, there is no present controversy whatsoever between Berzett and the Board.” Therefore, “the superior court erred when it denied the Board’s motion to dismiss Berzett’s declaratory judgment action.” And because Berzett’s cause of action for declaratory judgment should have been dismissed, “his request for injunctive relief also should have been dismissed” for the same reasons.

            “Accordingly, the judgment of the superior court must be vacated, and the case remanded with direction that the court dismiss Berzett’s petition in its entirety,” the opinion concludes.

Attorneys for Appellant (State): Samuel Olens, Attorney General, Beth Burton, Dep. A.G., Joseph Drolet, Sr. Asst. A.G., Rebecca Dobras, Asst. A.G.

Attorneys for Appellee (Berzett): Mark Yurachek, Thomas Rawlings




            A mother and father convicted in Clayton County of murdering their 3-year-old daughter have lost their appeal in an opinion today by the Georgia Supreme Court.

            In today’s unanimous opinion, written by Justice David Nahmias, the high court has unanimously upheld the convictions and life prison sentences with no chance of parole given to Margarita Gomez and Alejandro Martinez Huitron for the 2010 murder of their 3-year-old daughter, Esmerelda.

            According to the facts at trial and detailed at length in today’s opinion: On May 31, 2010, Gomez and Huitron spent the day at their apartment in Forest Park with their two daughters, Esmerelda and 2-year-old Perla. Joseph, Gomez’s infant son by another man, did not live with them. Around 8:00 p.m., Esmerelda suffered a severe head injury, resulting in a skull fracture and brain and retinal hemorrhaging. Gomez and Huitron called 911, and the child was taken to Hughes Spalding Children’s Hospital and later flown to Egleston Hospital in Decatur, where she died on June 3.

            Gomez and Huitron were interviewed separately several times by officers from the Forest Park Police Department, first on the night of Esmerelda’s injuries, again a few days later, and finally on June 10, when they each participated in a re-enactment of how they supposedly found Esmerelda. Each time, a Spanish-speaking interpreter was used. Initially, Gomez and Huitron both said that when Esmerelda was injured, they were washing dishes or about to wash dishes in their kitchen while the two girls were playing in the back bedroom. They heard a scream from one of the girls and ran to the bedroom. In another version given later by Gomez, Huitron was on the back patio grilling and she was in the kitchen when they heard the scream.

            Both parents claimed they found Esmerelda lying on her back on the bedroom floor between a small table and one of two beds. According to Gomez, Esmerelda looked as if she was struggling to speak or get up before she fainted. According to Huitron, Esmerelda was unconscious and having trouble breathing, with a small amount of blood on her face. They moved the child into the living room, and one or both parents performed CPR while one of them called an ambulance. Both parents claimed they did not see what caused Esmerelda’s injuries but hypothesized she had fallen while jumping on the bed, because she liked to play on the bed.

Dr. Jordan Greenbaum, who had been called to consult on Esmerelda’s case at Egleston because the treating doctors suspected child abuse, called Gomez on June 2 to get a medical history of Esmerelda. The doctor asked Gomez specifically about a big bruise on the little girl’s abdomen. Gomez said the child hit herself on furniture. Dr. Greenbaum, who found numerous bruises on Esmerelda’s belly, also asked Gomez if she could think of any injuries she had seen on Esmerelda’s skin and Gomez said she could recall only one bruise; she had not noticed any other.

            The next day, Officer Karen Henry, who specialized in child abuse cases, interviewed Gomez. Gomez told her as well that she had not seen any bruises or marks on Esmerelda, that the only other injury Esmerelda had suffered was eight days earlier when she fell in the bathtub, and that Esmerelda had fallen out of bed while sleeping but had not injured herself. Officer Henry testified, however, that the pictures she saw of Esmerelda showed bruises on the side of her abdomen, from her armpit to her diaper area, which had begun to heal.

            When examining the family’s apartment about three hours after the 911 call, investigators found clumps of dark hair in the bathroom and outside, one to two feet from the concrete patio. They also found spots of dry blood on the floor in the front bedroom, in the hallway between the bathroom and bedrooms, and on the floor in the back bedroom. The swabbings matched Esmerelda’s DNA.

            At trial, four medical experts testified for the State. Dr. Amita Shroff, who treated Esmerelda at Hughes Spalding, testified that Esmerelda had a “Battle’s sign” – bruising on the side of her face, behind her ear, and tracking down her neck – which indicates a skull fracture, and fixed and dilated pupils, which indicate brain damage. She also had blood in her ear and on her nose, as well as bruises on her nose, chin, back, and abdomen. The child’s abdomen was distended and she had an abrasion on her left flank. The doctor testified that there was no way a fall from a bed could have caused these injuries; they could be caused only by something traumatic like a car accident, falling off a 15-to-20 story building, or having her head slammed onto a hard object like concrete or a bathtub.

            Similarly, Dr. Rajamani Iyer, Esmerelda’s pediatrician, testified that based on an autopsy photograph of Esmerelda’s head, the child’s injuries were not consistent with a fall from the bed and looked like child abuse. Dr. Iyer also testified that the injuries could have been caused by a chair, concrete, or other hard object. 

            Dr. Greenbaum, who had seen Esmerelda at Egleston and was an expert in child abuse medicine, explained that Esmerelda’s sub-retinal hemorrhaging was so severe that it could only have been caused by a few things, including major head trauma and leukemia (and there was no evidence that Esmerelda had leukemia). Dr. Greenbaum also testified that Esmerelda had numerous injuries to her torso and two rib fractures that had begun to heal, meaning they were at least seven to 10 days old.  She too concluded that Esmerelda’s injuries were caused by abuse. 

            The State’s final witness was Dr. Lora Darrisaw, the GBI medical examiner who performed Esmerelda’s autopsy. She testified that Esmerelda’s injuries could have been caused when “Her head hit something very, very hard that doesn’t move.” She could not have sustained her injuries by falling on anything in the bedroom; the only surface that seemed consistent with the injuries was the concrete patio outside the apartment. Dr. Darrisaw also noted that there was a build-up of iron in Esmerelda’s brain, indicating that she had suffered an earlier head injury.  Dr. Darrisaw ruled the cause of death to be blunt force trauma and concluded it was not an accident.      

            Several witnesses testified about the relationship between the parents and their little girl.  An officer who spoke to Gomez at the hospital testified that when he told her Esmerelda might die, she said she believed the child would be OK, but when he told her she would not be able to take her other daughter, Perla, home, Gomez started crying.

            Joanna Duarte, one of Gomez’s friends, testified that Gomez had said Esmerelda was the “product of a rape” and that Gomez had sent the child to Mexico when she was 10 or 11 months old.  Around November 2009, when Esmerelda was about 3 years old, Gomez asked Duarte to bring her back. Esmerelda had lice when she returned, and when Duarte gave Esmerelda to Gomez, she offered to get Gomez a prescription for lice shampoo. Instead, Gomez shaved off all of Esmerelda’s hair to prevent the lice from spreading to Perla. Duarte testified that Gomez always showed Perla more affection, saying that Perla was prettier because she looked like Huitron and calling Esmerelda “ugly.” Duarte said Esmerelda did not seem attached to her mother and whenever the child saw Duarte, she asked the woman to take her with her. Ana Maldonado, who sometimes cared for the children, testified the little girl also indicated she did not want to be left with Huitron. 

            A caseworker with the Babies Can’t Wait program of the Georgia Department of Health testified that when she went to do an evaluation of Gomez’s infant son, Joseph, in November 2009, she was alarmed that both Joseph and Esmerelda appeared “very malnourished.” She said the little girl was the same size as her younger sister and appeared frightened. She said Esmerelda’s hair had been cut off, her head was wrapped in a scarf and she was dressed in tattered clothing. This prompted the caseworker to make a referral for Esmerelda, as well as the baby, to receive services from Babies Can’t Wait, but when the caseworker tried to follow up with Gomez, her contact numbers had been disconnected and she had moved.

            Maldonado testified that Gomez had “given” the baby Joseph to her because “Huitron didn’t want him there with them.” When the caseworker eventually located the baby, she found he was thriving and appeared happy and healthy in Maldonado’s care.

            Gomez and Huitron did not testify at their joint trial or call any witnesses. The defense theory for both Appellants was that Esmerelda had been injured in an accident. The jury, however, rejected that theory and following a joint trial, in November 2012, the jury found Gomez and Huitron guilty of felony murder, aggravated assault, contributing to the deprivation of a minor and cruelty to a child. They then appealed to the state Supreme Court, arguing that 18 errors had been made during the trial, including that the evidence was insufficient to support their convictions.

            In today’s 48-page opinion, the high court disagrees. “When viewed in the light most favorable to the verdicts, the extremity of Esmerelda’s injuries on May 31, 2010, which the State’s multiple experts testified were not consistent with Appellants’ [i.e. Gomez’s and Huitron’s] not-quite-matching accounts of the injuries as an accident; the fact that Appellants, Esmerelda’s parents, were the only adults in the apartment when the child was injured; and the evidence of Esmerelda’s prior injuries, sufficiently supported the jury’s findings of guilt beyond a reasonable doubt on the charges related to her injuries on May 31 and her resulting death three days later,” the opinion says.

Although today’s opinion has upheld Gomez’s and Huitron’s murder convictions and life-without-parole prison sentences, in “wading through the multitude of charges brought by the State based on what the evidence indicated was a single deadly act by Appellants, the trial court made a few errors in entering convictions and imposing sentences,” the opinion says. To correct those errors, the Supreme Court has thrown out the couple’s convictions and sentences for aggravated assault with hands, second degree cruelty to children, and felony murder based on the deprivation of a minor.

As to the remainder of the parents’ arguments, the high court has rejected them all.

Attorneys for Appellants (Gomez, Huitron): James Bischoff, John Kraus

Attorneys for Appellee (State): Tracy Lawson, District Attorney, Erman Tanjuatco, Dep. Chief D.A., Elizabeth Baker, Dep. Chief Asst. D.A.





IN OTHER CASES, the Supreme Court of Georgia has upheld murder convictions and life prison sentences for:


* Jerrick Atkinson (Fulton)                             ATKINSON V. THE STATE (S17A0611)

(The Court has upheld Atkinson’s convictions for malice murder and other crimes, and his sentence to life in prison with no chance of parole. But the Court has thrown out some counts the trial court should have vacated for sentencing purposes.)


* Stephen Bailey (DeKalb Co.)                       BAILEY V. THE STATE (S17A0364)


* Travon Menefee (Fulton Co.)                      MENEFEE V. THE STATE (S17A0542) *

* Christian D. Williams (Fulton Co.)              WILLIAMS V. THE STATE (S17A0543) *

                                                                        (The Court has upheld Menefee’s and Williams’

                                                                        murder convictions and life prison sentences. But

                                                                        the trial court made sentencing errors, so the case is

                                                                        being sent back to the trial court because both men

must still be sentenced for attempted armed robbery. The high court has thrown out their sentences for aggravated assault which should have been merged into the malice murder count.)


* Menefee and Williams were co-defendants


* Gregory Malik Walker, Jr. (Clayton Co.)    WALKER V. THE STATE (S17A0385)