Burrell Ellis, the removed CEO of DeKalb County, has been secretly recorded by DeKalb County District Attorney Robert James’ Office using two law enforcement methods, a wiretap and audio-videotape by an informant. Both of the these techniques are being contested by Mr. Ellis. A wire tap court order, which can be obtained from a DeKalb County Superior Court Judge, is presumptively legal at this point since it was court authorized. The transcripts released to date certainly supports the DA’s case.
The legality of the audio-videotape recorded by the informant was challenged by the defense. A provision in Georgia law is quirky, counterintuitive, differs from almost all other states, and is not well know, even by Georgia rank-and-file law enforcement officers. Georgia Code 16-11-62(2) makes it unlawful to video-record an individual where there is an expectation of privacy absent consent of the party(s) video-taped. Georgia law does provide for a law enforcement exception, but only with a court order, see Georgia Code 16-11-64(b). Apparently, the DA’s Office did not obtain that court order.
In April, Superior Court Judge Courtney Johnson ruled in favor of the prosecution in resolving this issue. In denying the defense’s motion, Judge Johnson found there was no expectation of privacy in Ellis’ Office, and accordingly, Georgia law prohibiting videotaping without the consent of all parties was not violated. This may not be the last of this issue. If CEO Ellis were convicted, one should expect an appeal of Judge Johnson’s ruling.