• Publication: The Athens Observer (Athens, Georgia)
• Author: Elton Manzione
• Original Publication Date: Thursday, May 16, 1996

A Lawrenceville State Court Judge has granted motions for protective orders filed on behalf of Police Sgt. W.J. Smith and local attorney Ed Tolley. Smith is the chief investigator in the ongoing Jennifer Stone murder probe.

Former School Superintendent Carol Purvis’ attorney, Scott McLarty, had sought testimony from Tolley and Smith in connection with a defamation suit brought by Purvis against the Clarke County School District.

Judge David Fuller made the decision after a hearing Friday, in which attorneys for Tolley and Smith argued for the protective orders.

Davis Burch, Tolley’s attorney, began his argument by providing Fuller with a series of Observer articles, based on public record court documents, which he characterized as “unfounded and unchecked.” The articles detailed how Tolley may have become privy to some of the information which is now being termed “state secrets” by the motion for protective order filed on behalf of Smith.

The information—produced during the investigation of the 1992 murder of Stone—named Michael Gaines as a possible suspect in the murder. Gaines is the son of Superior Court Judge Joseph Gaines, who presided over Purvis’ racketeering trial and conviction. The conviction was overturned by an appeals court which ruled the case should never have been presented to a jury.

Tolley apparently obtained the information at a time when he was representing Michael Gaines in a divorce case. A request to produce documents, filed at that time, was specific enough to suggest Tolley knew what was in the records.

Tolley also represented Gaines in an unusual “pre-warrant” probation revocation hearing, nearly simultaneous to the Stone murder.

McLarty argued that Tolley, the state’s key witness against Purvis in the racketeering trial, had a grudge against Purvis; and Gaines, because of Tolley’s representation of his son, was not impartial during the trial.

“We need to be able to get evidence to offset the defense that my client’s character cannot be defamed because of this prosecution,” McLarty said.

“The facts we know right now raise a question as to whether Judge Gaines should have been sitting on any criminal cases at this time,” particularly with Tolley’s role in [Purvis’ 1992 prosecution],” McLarty said.

McLarty said he requested Tolley bring records of his representation of Michael Gaines, not because he sought access to any particulars in them.

“I requested him to bring those documents so he can’t say ‘I don’t remember.’ I’ve been there and done that,” McLarty said.

Burch argued McLarty’s sole purpose in subpoenaing Tolley and the records was to annoy and harass Tolley and to expose him to ridicule.

“Mr. Tolley has no information which will produce any admissible evidence in this suit,” Burch told the court.

McLarty countered that Tolley was representing former School Superintendent John Balentine at the time Balentine publicly stated Purvis “missed” a state Teacher Retirement System payment. Tolley was also president of the school board at the time of the “missed” payment. Teacher Retirement System officials acknowledged no payments were missed.

“Mr. Burch’s saying Tolley doesn’t know anything about this case just doesn’t get it,” McLarty said.

“Mr. Tolley has a cozy relationship with the District Attorney and the judge,” McLarty said.

“It is vital we show all this to determine whether or not my client’s reputation was justifiably injured by his 1992 prosecution,” McLarty said.

Assistant County Attorney Ellen Whitaker, arguing on behalf of Smith, said that Georgia law treated pending criminal investigations as state matters exempt from the Open Records Act.

“There is no balance of public interest, where the motion for discovery is irrelevant,” Whitaker argued. “This material is clearly irrelevant [to the Purvis defamation suit].”

McLarty countered that Tolley’s request to produce in Michael Gaines divorce case, as reported by The Athens Observer, “specifically sought identifiable documents.”

McLarty also noted that no protective order had been filed by the county in response to Tolley’s request.

“The ‘state secrets’ defense cannot be selectively applied,” McLarty said. “If he had access to them, they’re no longer secret.”

No one denied Tolley may have had access to the documents. He declined comment after the hearing and did not return subsequent phone calls.

McLarty said he subpoenaed the documents to be sure the material was available to Smith when he was being questioned.