United States District Court, N.D. Georgia, Rome Division
MICHAEL L. BROWN UNITED STATES DISTRICT JUDGE.
November 5, 2019, the Court held a pretrial conference and
hearing to address outstanding motions. The Court announced
its rulings but provides this order to memorialize and
supplement (some of) its previous findings.
Court denies Defendant Barr's Motion for Judicial Notice
of Adjudicative Facts and Motion for Reconsideration of
Denied Motions (Dkt. 190-1). Defendant Barr has failed to
establish his right to reconsideration by showing (1) an
intervening change in controlling law, (2) the availability
of new evidence, or (3) the need to correct clear error or
prevent manifest injustice. United States v. Morgan,
No. 1:08-CR-208- TCB, 2016 WL 11410576, at *1 (N.D.Ga. Mar.
17, 2016) (“Although no statute or rule expressly
provides for the filing of a motion for reconsideration in
criminal cases, federal district courts necessarily have
substantial discretion in ruling on motions for
reconsideration. As in the context of a motion for
reconsideration filed in a civil case, appropriate grounds
for reconsideration include: (1) an intervening change in
controlling law; (2) the availability of new evidence; and
(3) the need to correct clear error or manifest
injustice.” (quotation marks and citations omitted)).
Whether Judge Cindy Morris of the Whitfield County Superior
Court signed the search warrant authorizing the search of
Defendant Barr's residence is a question of fact.
Defendant Barr filed several motions arguing that he needs
more examples of her signature, signatures from other
witnesses, and additional expert analysis before the Court
can decided this issue. The Court disagrees. Based on the
totality of evidence, the Court finds that Judge Morris
signed the search warrant.
Cindy Morris testified unequivocally that she signed the
warrant. She also provided an affidavit and affirmed its
accuracy on the witness stand. (Dkts. 204-1 at 13; 255 at
6:5-25.) She explained that her handwriting and signature
deteriorate throughout the day as her hand becomes fatigued,
possibly causing her signature to change. (Dkt. 264 at 16.)
She explained she started wearing a brace because of numbness
and pain in her writing hand. (Id.) Judge Morris
also explained her internal process for approving warrants.
She explained that she keeps in her own file a copy of the
executed warrant, affidavit, and return. (Id. at
14.) Before coming to court, she found her copies of those
documents for the warrant at issue and attached them to her
affidavit. (Id. at 15, 20, 26.) Her possession of
the documents corroborates her testimony that she signed the
warrant on the day of the search. Judge Morris was
Dewayne Holmes also testified. He said that he saw Judge
Morris sign the warrant. The undisputed evidence also shows
that Detective Holmes stopped the protective sweep of
Defendant Barr's home when he saw many firearms.
(Id. at 23.) In an abundance of caution, he backed
out of the house and told Defendant Barr he would obtain a
warrant. This historical fact supports his testimony that he
did just that - obtained a warrant. He was credible.
Barr's stand-by counsel (with Defendant Barr's
consent) proffered to the Court that (during Defendant
Barr's investigation of the warrant) he spoke with Lynda
Black, Judge Morris's assistant. The lawyer explained
that Mrs. Black looked at the signature on the warrant at
issue and recognized it as Judge Morris's signature. Mrs.
Black also explained that she showed the signature to Judge
Morris, and Judge Morris confirmed her signature. While Mrs.
Black did not testify, Defendant Barr admits she made this
statement, and the Court accepts that admission. All three
potential witnesses agree that Judge Morris signed the
Barr's own analysis of publicly available documents
containing Judge Morris's signature showed that she has
used the signature at issue here going back to at least
January 2011. (Dkt. 195-2 at 23.) Defendant Barr dismisses
the import of this evidence from his own analysis by simply
expanding the scope of his imagined conspiracy, claiming the
signature “seems to be the ‘default go to
signature' for who knows how many conspirators who have
been violating the rights of the citizens [of Georgia] which
probably consists of countless law enforcement [officers]
with at least knowledge of Judge Cindy Morris'
actions.” (Dkt. 195 at 24.) The Court disagrees with
Defendant Barr's conclusion. Evidence that Judge Morris
used the signature at issue for many years on other documents
supports her testimony that she signed the warrant here.
Court also considered the testimony of Defendant Barr's
witness, Steven Drexler, a forensic handwriting examiner.
After comparing various documents purporting to bear Judge
Morris's signature and noticing a difference between
them, he concluded someone other than Judge Morris signed the
search warrant. He claimed to be 65% to 70% sure in his
assertion. (Dkt. 255 at 43:3-6.) He admitted, however, that
one person could have two very different signatures,
describing the difference as a “credit card
signature” and a “formal signature.”
(Id. at 40:15-22.) He also admitted that a person
could have two different signatures as a result of hand
fatigue or carpal tunnel syndrome. (Id. at
39:21-40:8.) Defendant Barr asked if “a hand element,
like carpal tunnel or something, . . . are you saying that
the probability of someone having a completely different
signature with completely different characteristics
altogether would be the result of fatigue, because that's
what [Judge Morris's] affidavits says?”
(Id. at 47:18-24.) Mr. Drexler answered
“it's possible, yes.” (Id. at 47:25)
asks the Court for more documents containing Judge
Morris's signature, like her home mortgage, driver's
license, and bar records. (Dkts. 203; 224-1.) He also asks
for her medical records documenting her hand ailment.
(Id.) But Defendant Barr already has many examples
of her signature. And regardless of his own belief in the
similarities or differences between the various signatures or
however many other signatures he gets, his own expert has
admitted that fatigue - as opposed to forgery - could account
for the difference between examples of Judge Morris's
signatures. Defendant Barr's own expert assessed Judge
Morris's explanation and found it possible. More signatures
might allow more analysis and might even allow the expert to
increase his percentage of certainty. But however high Mr.
Drexler got that percentage, he has already admitted that her
hand ailment could explain the difference in the appearance
of her signatures. He could not get to 100%, and more
analysis would thus be futile.
light of all the evidence, the Court finds that Judge Morris
signed the warrant at issue. The Court thus denies Defendant
Barr's various motions on this issue, specifically his
Brief in Support of September 6th, 2019 hearing on Judge
Cindy Morris (Dkt. 224-1); Motion for Court to take Notice of
Adjudicative Facts (Dkt. 195); and Affidavit in Support of
Subpoena to Produce Documents (Dkt. 203).
Court adopts the Magistrate Judge's non-final Report and
Recommendation (Dkt. 248) and grants Defendants Diaz's
and Barr's respective motions to dismiss Count 9 of the
Second Superseding Indictment (Dkts. 223, 230-2).
Court denies Defendant Barr's Objection to Juror Oath
(Dkt. 126). Contrary to Defendant Barr's assertion at the
hearing that jurors may do as they wish, the law requires
jurors to follow the law as the Court provides.
Court adopts the Magistrate Judge's non-final Report and
Recommendation (Dkt. 241) and denies Defendant Barr's
Motion to Dismiss the ...