The state of Georgia has dragged its feet for months on allowing defense attorneys to visit the forest where a criminal conspiracy allegedly operated in opposition to the “Cop City” police training center, according to a motion filed this week and the Guardian’s reporting.
In his motion filed in Fulton county superior court, attorney Xavier de Janon is seeking to dismiss all charges related to the South River Forest, located south-east of Atlanta – for his client and for dozens of others. The forest’s importance to the case is underlined by the fact that the indictment mentions the word, “forest”, 310 times in its 109 pages, according to the motion.
Since January, deputy attorney general John Fowler has failed to schedule a visit to the alleged “crime scene”, all while construction of the $109m training center has proceeded apace, according to the motion.
Judge Kimberly Esmond Adams ordered Fowler at a court conference in early May to schedule visits by the end of June, adding that the jury in an eventual trial may also need to visit the site. Fowler sent an email to the more than 70 attorneys involved in the case shortly thereafter – but never followed up to schedule visits, effectively ignoring the judge’s deadline.
“Material, exculpatory evidence has been forever lost” due to months of construction, the motion asserts.
The Guardian confirmed that other defense attorneys in the case have not been able to schedule visits to the construction site and surrounding forest. One attorney sent emails to Fowler “at least six times” about the matter – only to be ignored.
The attorney general and Atlanta police did not return requests for comment.
De Janon’s motion is the second in recent weeks centering on Fowler’s apparent mishandling of the case. Another filed in late June highlighted how the deputy attorney general violated attorney-client privilege by sharing emails between defendants and their attorneys with Atlanta police investigators – instead of excluding them from evidence. The Guardian confirmed these actions as well.
The attorneys behind that motion filed another one 3 July asking the judge to schedule a hearing as soon as possible on the violation and their petition to disqualify Fowler and the “state law department” from the case, asserting that “this is not a matter that should await consideration by the court”.
Fowler said in the same May court conference he did not think police were using Signal to communicate about Cop City – despite being presented by defense attorneys with evidence from the Guardian of law enforcement leadership ordering officers to download the encrypted phone app last year for that very purpose.
The case centers on the state’s use of Rico, or criminal conspiracy law – originally developed to prosecute the mafia. It names 61 people in what experts have told the Guardian is the largest number of defendants ever in a Rico case involving a protest or social movement.
Twenty-three of them were arrested on 5 March 2023 – including De Janon’s client, James “Jamie” Marsicano. On that date, a music festival was held in Intrenchment Creek Park, a DeKalb county public park separated from the Atlanta-owned Cop City site by the creek that gives the park its name.
As many as 1,000 people camped or visited the festival in the park during the March “week of action” held in opposition to the training center. In the late afternoon at the festival, at least 100 people, most wearing masks, left the site of the festival and walked nearly a mile to the construction site, where they burned equipment and set off fireworks, chasing off police. Atlanta police filmed these acts.
Within several hours, dozens of officers swarmed the forested public park as the sun set, creating a chaotic scene that included children running through the forest and teams of festival attendees negotiating their departure from the park with police.
The arrests happened in the park, not at the construction site. Other defendants in the Rico case have also been arrested in the park – which, like the Cop City site, is part of South River Forest, or Weelaunee Forest to activists – a Muscogee (Creek) term.
De Janon and other defense attorneys “have never been able to set foot in the forest after the indictment” – or since 29 August 2023 – the attorney told the Guardian.
The state has provided photos and maps, but that does not substitute for walking through the forest – from where the construction equipment burned to where Marsicano was arrested, for example. “When I read the indictment, I can’t know what they’re talking about,” De Janon said.
DeKalb county closed Intrenchment Creek Park to the public shortly after the festival.
Joe Peery knows nearly every inch of the forest, on both sides of the creek. He has biked and walked there for more than a decade, created or maintained about six miles of trails himself, and led hundreds of people on tours.
“By visiting the site – the exact, specific places – they would learn exactly how far away the music festival was from Cop City,” Peery said. “It’s a pretty good hike.”
“It only benefits [the state] to keep everything hazy – given the fact that most people arrested [in the Rico case] were in a public park,” he added.
Actually seeing the alleged “crime scene” is important “not only for the allegations my client is facing – but all other counts involving things that allegedly happened in the forest”, the attorney said.
Nolan Huber-Rhoades has been filming a documentary on the movement against Cop City for most of its four years, and was at the forest 5 March of last year.
“Being there in person, you can understand the complexities of the land, the nuances of ownership and the legal proceedings around the forest,” he said. “This information could sway a jury.”
