Criminal charges against Cohutta town attorney dismissed

Oct. 28—Felony criminal charges against Cohutta Town Attorney Todd Johnson were dismissed on Thursday by the Conasauga Judicial Circuit through the Prosecuting Attorneys' Council of Georgia.

On Oct. 4, Varnell Police Department Lt. Winston Swilley obtained an arrest warrant in Whitfield County Magistrate Court for Johnson for criminal attempt to commit bribery and criminal attempt to commit extortion, citing an email Johnson sent to Varnell Solicitor Bryan Rayburn. The affidavit Swilley submitted to obtain the warrant did not say that Johnson is the Cohutta town attorney or that he was acting as a private attorney representing a driver ticketed by a former Varnell police officer.

In the affidavit, Swilley wrote, "Todd Johnson did willfully and with intent take a substantial step to commit bribery when he sent an email to Brain (sic) Rayburn (Varnell city prosecutor) offering a 'small donation' (money or favors) to have two Varnell citations dismissed."

In the administrative dismissal of the charges, the judicial circuit (Whitfield and Murray counties) representatives said Johnson had not committed bribery or extortion but had been seeking a plea bargain for his client.

The dismissal was submitted by Peter J. Skandalakis, district attorney pro tempore, and Gary D. Bergman, assistant district attorney pro tempore. They are with the Prosecuting Attorneys' Council of Georgia and were brought in when District Attorney Bert Poston "conflicted out" of the case. Skandalakis is the executive director of the council and Bergman a prosecutor. The council now has the responsibility in the state to handle conflict appointments and handles some internally and others by assigning the case to another district attorney's office. The dismissal said "the essential element of the offense of bribery is that a defendant must be shown to have offered money or valuables to a government official with the purpose (or intent) of influencing him in the performance of an official act. Mr. Johnson did not make such an offer to Solicitor Rayburn, but rather offered as a plea bargain to have his client pay a small fine to the city of Varnell to resolve his client's charges.

"Also, the crux of the crime of theft by extortion is that a defendant uses a threat to unlawfully obtain property of or from another person. Mr. Johnson's email does not seek to obtain any property from Solicitor Rayburn or any other person."

Poston said he was not surprised by the dismissal.

"As soon as I became aware of the charges and obtained a copy of the email, even before asking Bryan Rayburn how he interpreted the email, it was obvious that Todd Johnson had committed no crime whatsoever," Poston said in an email Thursday. "I would have dismissed the warrants myself but I've known Todd for 30 years, plus Todd and other members of the Cohutta community, including Mayor (Ron) Shinnick, had assisted my son a couple of years ago with his Eagle Scout Project, an outdoor classroom for Cohutta Elementary School. So I did not think it was appropriate that I make the decision."

Poston said he was "shocked that Officer Swilley and (Police) Chief (Kyle) Moreno would take it upon themselves to seek serious felony warrants against an attorney representing a client in their court without talking to me first or at least seeking advice from their own city attorney or city court prosecutor. and without interviewing their only witness, Mr. Rayburn, to make sure he interpreted the email the same way they apparently did."

"I'm also very concerned about the lack of candor with the Magistrate Court," Poston said. "An officer seeking a warrant has a duty to advise the court of all of the relevant facts and circumstances, not only those which support the issuance of the warrant but any exculpatory or mitigating facts or circumstances which might give the judge reason to decline the request. Had Judge (Tom) Phillips known that the alleged communication was from an attorney advocating on behalf of his client, I very much doubt that the warrant would have been issued in the first place."

Phillips said Thursday he isn't sure if Swilley had a legal duty to say Johnson was an attorney representing a client, "but I absolutely think he should have. I hate this happened for Mr. Johnson. If I'd had more information, things certainly may have been handled differently."

Asked if he will be more skeptical of warrant applications by Swilley in the future, Phillips said, "I may very well ask some more questions, depending on what the circumstances are. If you are asking me how I will rule in future cases, I can't do that."

Chief Magistrate Judge Chris Griffin said he thinks it is likely he will give more scrutiny to warrant applications by Swilley.

"I would study the probable cause very closely," he said.

Varnell Mayor Tom Dickson said the dismissal of the charges "wasn't unexpected."

He declined to answer whether the City Council might require officers in the future to consult the district attorney's office before obtaining felony arrest warrants or whether Moreno or Swilley might face discipline, saying those are matters that would have to be decided by the City Council after talking to City Attorney Terry Miller.

Johnson has referred questions to his attorney, Leslie Waycaster, who could not be reached immediately Thursday. Waycaster said after Johnson's arrest that Johnson's email is typical of communications between opposing attorneys.

He said Johnson was pointing out weaknesses in the case against his client and trying to save his client from having to take a day off from work to travel to Varnell. He said Johnson's remark about "a small donation to the Varnell cause would keep (his client) in Atlanta" was not an attempt at bribery.

"There is procedure in Georgia called a predisposition where if you get a ticket you can pay the fine and it stays with the city or county where the ticket was issued," he said. "But the ticket doesn't get reported at the state level, so it doesn't affect your points on your driver's license and it doesn't show up on your driving record where your insurance rates are affected. That's what Todd is talking about."

Rayburn said that is how he interpreted Johnson's email.

"Todd is a great attorney, and he and I have never had any issues whatsoever," he said. "His email was simply an attempt to advocate for his client. I never perceived the email as an attempt to bribe or extort me. These types of conversations are had daily between prosecuting attorneys and defense attorneys."

Johnson had sent Rayburn the email regarding a client Johnson represents who had been stopped for speeding and a window tint violation by then-Varnell police officer Shawn Norris on Sept. 10 on Highway 201.

In the email, Johnson said Varnell had hired Norris, whom he called Morris, "against Bert Poston's advice" and that because of certain allegations against Norris "Bert will dismiss any of his charges according to my information."

He said he was trying to resolve his client's case.

"I was hoping a small donation to the Varnell cause would keep (his client) in Atlanta, but I await your sage advice, sir," the email said.

In an incident report, Moreno said based on the comments in the email about a donation, Johnson "is attempting to bypass due process and reward Varnell if his request is fulfilled."

In a supplemental report, Swilley said after reviewing the evidence he had determined Johnson "has willfully and knowingly committed the offense of criminal attempt to commit bribery and criminal attempt to commit extortion .. to bypass due process to get two citations dismissed by monetary means" and referenced the section of Johnson's email mentioning "a small donation to the Varnell cause." He said Johnson's reference to "Officer Norris' past shows a substantial step in (committing) extortion by stating events he states as fact even though the charges were dropped" against Norris.

Rayburn said he was not involved in the investigation and the officers did not speak with him.

"I figured out about the criminal investigation and the warrant after the warrant had been issued by Magistrate Court," he said.

Rayburn said he did not send a copy of the email to Moreno but did send it to the city clerk because he had warned city officials earlier that defense attorneys would seek to have cases involving Norris "bound up" to Superior Court, where the district attorney's office would not prosecute them. He said Johnson's email showed his prediction was coming true.

In 2018 Norris and another officer with the Walker County Sheriff's Office were charged with attempted rape. The charges were dismissed in 2019.

According to Norris' Georgia Peace Officer Standards and Training Council (POST) profile, before he was an officer Norris was found guilty in 2002 of misdemeanor stalking and harassing communication. For actions in 2011 he was indicted for criminal trespass, stalking, criminal attempt to commit aggravated stalking and obstruction of an officer while with the Ware County Sheriff's Office. In 2014, those charges were placed on the dead docket (not prosecuted). In 2015 the charges were "nolle prossed," abandoned by the prosecutor.

In 2016, POST placed Norris on 36 months probation and ordered him to complete a domestic violence course and issued a public reprimand.

A phone number for Norris could not be found. City officials said he submitted his resignation from the police department on Oct. 2, effective Oct. 15. Moreno said Norris was looking for a job with health insurance.