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Content warning: this article mentions an assault on a minor
After more than a year of waiting for the court to rule on certain motions, a family has filed an emergency motion for a hearing in the case of their daughter, who was the victim of a hate crime in 2017.
On Dec. 29, 2022, plaintiffs in the DeKalb Superior Court case Jane Smith Et al v. Bell Fund V Perimeter LLC Et al. filed an emergency motion for a hearing, citing the need to resolve multiple pending motions, some of which have been before the court for more than a year. The plaintiffs are the family of Mary Smith (a pseudonym), an African American girl who was the victim of a hate crime in 2017.
According to court documents, Mary – who is using a pseudonym due to her age at the time of the incident – was 15 years old when she was attacked and sexually assaulted at Dunwoody’s Bell Perimeter Center Apartments. The attack occurred on the fifth floor of the apartment complex when Mary was taking the trash out to a chute on the floor. Court documents – including a signed affidavit from Pete Simi, an expert in extremist groups and white supremacy – state that the perpetrator repeatedly used racial slurs during the attack. The perpetrator has not been caught.
The Dunwoody Police Department previously provided an initial incident report for the case, but would not provide 911 call audio, Chatcomm dispatch audio, or any video from dash or body cameras, citing that the case is still open. A spokesperson previously stated there have been no leads since 2017.
“Five years later, [Mary] still suffers from a diagnosed concussion and brain injury, severe post-traumatic stress disorder, ongoing seizures, post-traumatic migraine headaches, and other life-altering damages,” reads the emergency motion. “More importantly for this Court, in the more than five years that have elapsed since her brutal assault, none of the trusted institutions in this state have done as they are sworn to do.”
This emergency motion was filed exactly a year after the plaintiffs filed a motion asking the court to hold a status conference, or a meeting where parties provide updates on different aspects of the case. The emergency motion asks that the court promptly set a hearing for a status conference, enter a scheduling order (or an order that sets deadlines for when certain events in a case must occur), enter a protective order for the plaintiffs, and resolve multiple other pending motions before the court.
The motion further states that Mary has not been afforded the proper standard of care for crime victims. According to the Crime Victims’ Rights Act, victims of a crime have the right to, among other things, “proceedings free from unreasonable delay” and “be treated with fairness and with respect for the victim’s dignity and privacy.”
“The perpetrator remains at large, law enforcement has failed to fulfill its function, there have been no resources applied by the district attorney, and—of importance to this motion—the Court has so far not provided the most basic protections for Mary Smith and her Family,” reads the motion.
Due to Mary’s age at the time of the attack, the plaintiffs made a motion to use pseudonyms on Oct. 9, 2020. Judge Tangela Barrie, the judge at the time the motion was made, did not make a decision on the pseudonym issue until more than a year later on Nov. 17, 2021.
In August of 2022, the plaintiffs filed a motion to recuse Barrie, accusing her of faking official correspondence in relation to the case. Barrie was recused in October 2022 because of speculation that she might hold bias towards plaintiff’s counsel at the time, Michael Simmons. According to court documents, Simmons withdrew from the case in October 2022 due to a health issue. The plaintiffs are now represented by attorneys from the law firm Lowe Yeager & Brown.
In addition to taking more than a year to rule on the use of pseudonyms, the court took roughly a year to decide on motions to dismiss filed by multiple defendants in the case. According to Georgia Code, courts should rule on a motion to dismiss within 90 days. Motions to dismiss were filed on Nov. 16, 2020 and Dec. 10, 2020, and were not ruled on until Nov.17, 2021.
On Sept. 16, 2021, the plaintiffs filed a motion for a protective order to prevent public disclosure of Mary’s personal information. An amended version of this motion was supported by a signed affidavit from Pete Simi, who also testified as an expert witness in the trial of those who organized the white nationalist “Unite the Right” rally in Charlottesville, Va. in 2017. Simi said in his opinion, the court should use “all resources available in terms of protective measures” for the Smith family.
According to court documents, part of the reason the plaintiffs asked for a status conference in the first place was due to the parties’ inability to decide on terms for a protective order. As of the publication of this article, no ruling has been made on a protective order.
As of the date of this article’s publication, 15 other motions remain pending, according to the emergency motion. Those motions include a defendant’s motion to compel discovery, which has been pending since Oct. 22, 2021; a defendant’s motion for summary judgment, which has been pending since March 23, 2022; the plaintiff’s motion to disqualify counsel, which has been pending since July 6, 2022; and a defendant’s motion for a gag order, which has been pending since Oct. 18, 2022.
The Georgia Code of Judicial Conduct calls for judges to dispose of all judicial matters “fairly, promptly, and efficiently,” and makes note of each party’s right “to have issues resolved without unnecessary cost or delay.”
“With respect, matters in this case have not been disposed of fairly, promptly, or efficiently. The first judge assigned to this case was recused when another judge granted a motion to recuse. A third judge recused herself,” reads the emergency order. “The current, fourth judge could understandably need some time to become acquainted with the file since her assignment on October 19, 2022. However, it has been 71 days—more than two months—with no action.”
There have been four judges associated with this case. Initially, Judge Stacey Hydrick was assigned to rule on the motion to recuse Barrie. Hydrick voluntarily recused herself from the case on Sept. 14, 2022, and Judge Yolanda C. Parker-Smith was assigned to rule on the recusal motion. Once the motion to recuse was granted, Judge Nora Polk was assigned to the case moving forward.
According to the court docket, a hearing has been scheduled for 9:30 a.m. on Jan. 6.
Representatives for Polk and for Chief Judge LaTisha Dear Jackson, who took over as chief for Judge Asha Jackson after her term ended on Dec. 31, did not respond directly to requests for comment.
The court administrator for DeKalb County Superior Court responded via email, saying: “This case transferred to Division 8 in October after a recusal motion was granted. A request for emergency motion was filed 12/29/2022. The hearing for the emergency motion is Friday, January 6, 2023, at 9:30 am. Currently, we have no further comments regarding this litigation.”
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