Endless prosecution

What's next for Tim Peck? A knife in the chest?

It should come as no surprise if police ?brutality victim Tim Peck confuses himself with Joseph K. Both experienced the legal system at its most surreal, K. in Kafka's strange fiction and Peck in the Fulton County courthouse's strange reality.

When Sheriff's Deputy Kelvin Smith arrested Peck April 11, 2001, he split Peck's shinbone in two and whacked his kneecap into several pieces. The insult did not end there. In a series of events too convoluted to detail, Peck was charged with six crimes, and a judge dismissed the charges; then, Peck was charged a second time, and the district attorney dismissed those charges. Now, Peck's been charged a third time, and nobody can explain why.

Courthouse officials offered CL their theories on Peck's third set of charges. But each explanation raises more questions than it answers. The process is not unlike holding a mirror up to the truth, only to find the truth is another mirror. What you see is a series of possibilities, without end.

Regardless of whether any — or none — of the explanations are true, they point to a courthouse operating under such Byzantine principles that making sense of what happened may be impossible. Nor do the explanations preclude a more sinister origin: Is someone out to get a man facing charges for the third time? Does the resurrection of the charges have anything to do with the lawsuit he's filed against the deputy, the sheriff's department, the county and the restaurant that had hired the deputy as a security guard?

When Magistrate Court Judge Craig Schwall dismissed the case last year at a preliminary hearing, he called Smith's actions "egregious ... and something that the law just cannot condone." Last week, CL approached Schwall with news that some of Peck's charges had resurfaced in the county Solicitor's Office.

"In almost seven years on the bench, I know of no cases — none — that have been accused by the Solicitor's Office after I dismissed them," Schwall said.

But, he added, the scenario is both lawful and possible. Schwall's guess was that as Peck's case approached Schwall's hearing, it started traveling a second course. Paperwork could have begun snaking through the court system as if Peck hadn't requested the hearing — as if the hearing hadn't happened at all, Schwall suggested. And now the case's second path has reached its conclusion at the Solicitor's Office.

There's just one problem. Two of the six charges for which Peck was arrested were felonies. The solicitor can only prosecutor misdemeanors. So the case couldn't have traveled there on its own — somebody had to reduce and transfer the charges.

Schwall said the case could have first traveled to the District Attorney's Office, which has the power to reduce felonies and send cases to the solicitor. But DA spokesman Erik Friedly told CL the DA's office never received the case, never reduced Peck's charges and never transferred them anywhere.

Fulton County Solicitor General Carmen Smith, who filed the third set of charges against Peck, offers another explanation. "I think I figured out the mystery," she said. "This is what happened."

She, like Schwall, figured the case took two separate paths through the courthouse. But she suggested the path forked when Deputy Smith (no relation) decided to seek a warrant against Peck just weeks after the arrest — alleging the very same charges. She said her office is handling the case stemming from the arrest and that Schwall's hearing grew out of the warrant.

"Those two things were not cross-referenced," she said. "This is purely a screw-up as far as tracking the paperwork."

Given the case's bizarre history, on Dec. 13 an assistant solicitor delivered a request to dismiss the case to the State Court chief judge. That probably puts the most recent charges to rest — but it doesn't answer all the questions.

First, there is no record of a warrant being taken out against Peck by anyone. Schwall couldn't even find a record of one in his case file.

Second, the solicitor's explanation doesn't address why the case came to her office, not the DA. "That's kind of what threw me off," she said. "You're absolutely right."

Third, Solicitor Smith couldn't provide a paper trail to back up her argument that the case came to her office from the jail. When asked when she got the case, she answered: "My screen is totally black. I'm really trying to pull it up for you, if you just give me a second. ... What's wrong with my screen? It's totally black. Oh God, what did I do?"

She later called back and said the case arrived from the jail in September 2001 — four months before Schwall's dismissal. State Court computer records, however, shows the case arriving July 19, 2002, six months after Schwall's hearing — and five months after Deputy Smith was fired and Peck filed his lawsuit.

"I don't think that there could be this many errors without someone intentionally playing a role," said Peck's attorney Genevieve Frazier. "It's too much to be a comedy of errors. The term comedy of errors is an understatement in this case."