The Supreme Court of Georgia has reversed a pre-trial ruling in a Polk County case in which the State is seeking the death penalty against a man accused of the sexual assault and murder of his girlfriend’s 21-month-old daughter.
In today’s unanimous decision, written by Justice Michael P. Boggs, the high court has ruled that the trial court erred in revealing to the prosecution the defense attorneys’ motions to keep secret their requests for access by mental health experts to examine their client. As this Court has ruled in previous cases, “a defendant has a legitimate interest in making requests for access to expert assistance ex parte if not doing so would place him in the position of ‘revealing his theory of the case,’” the opinion says.
In this highly publicized case, the State is seeking the death penalty against Dustin Drew Putnal, who was 27 years old when he was accused of murdering 21-month-old Ella Grayce Gail Pointer while her mother was at work. Putnal is due to be tried for one count each of malice murder, aggravated battery, and aggravated sexual battery, and two counts each of felony murder and cruelty to children in the first degree. At trial, the State will attempt to prove that on Oct. 28 or 29, 2016, Putnal caused the toddler’s death by inflicting blunt force trauma to her head after committing sexual battery against her by penetrating her vagina with an unknown foreign object.
Because Putnal is indigent, he is represented by the capital defender division of the Georgia Public Defender Council. State law requires the State to fund the costs of obtaining expert witnesses for indigent capital defendants, so Putnal does not need to apply for county funds for expert assistance. However, he must obtain an order from the trial court to allow his
expert consultants to gain access to him, as the Polk County sheriff requires a court order for outside parties to be allowed to examine inmates in the county detention center where Putnal is incarcerated. In June 2017, Putnal’s attorneys presented the court with “ex parte” motions, requesting that two mental health experts retained by the defense be allowed access to Putnal at the detention center where he was incarcerated. (An “ex parte” motion is a motion made without notice to the other side, which in this case is the State.) Each motion included the expert’s name, discipline, and the type of examination the expert would conduct. On June 27, 2017, the judge signed two orders proposed by the defense, each of which stated that the order “shall be confidential and shall not be disclosed until such direction from the court.” Yet three days later, the trial judge – acting on his own and without prior notice to the defense – filed both motions and orders publicly with the clerk of court and had the motions served upon the State. In a reply email, the defense attorney objected to the trial court’s public disclosures.
After the trial court issued an order denying Putnal’s motion to proceed ex parte and under seal, his attorneys appealed the pre-trial ruling to the state Supreme Court, arguing that the ruling cripples Putnal’s right to prepare his defense under the protection of attorney-client privilege. The Supreme Court agreed to review the case, instructing the parties to address whether the trial court erred in denying Putnal’s motion to proceed ex parte and under seal with regard to matters pertaining to his expert mental health evaluation. The high court also asked the parties to discuss the effect of the Georgia Supreme Court’s 1992 decision in Zant v. Brantley, in which it ruled that the State was not entitled to be present at a hearing concerning the defendant’s request for an access order similar to the access orders involved in Putnal’s case.
In today’s 28-page opinion, “we conclude that the issue presented in this case is controlled by Brantley. We therefore reverse the trial court order from which Putnal appeals, and we remand this case for further proceedings consistent with this opinion,” the opinion says.
“Here, the trial court’s disclosures occurred less than three months after the State filed a notice of its intent to seek the death penalty, and the disclosures revealed the identities of the first two mental health experts that defense counsel has retained to examine Putnal. As a result, the State has known since the beginning of the defense’s investigation of the case what defense theory and mitigation strategy were being considered and explored.”
The State argued that it had anticipated the defense would explore Putnal’s mental health before trial, and thus no trial strategy was revealed by the trial court’s disclosures. However, “The State’s argument is not persuasive,” today’s opinion says. “The State’s ‘expectation’ is not equivalent to discovering the defense or defenses a defendant is actually exploring or to learning details of the defense’s investigation.”
The State also argued that Putnal cannot suffer any harm from the trial court’s disclosures because they did not reveal the results of any evaluation or whether Putnal plans to proceed with a defense at trial based on the examinations. “We disagree,” the opinion says. “The two motions and orders revealed to the State contain the identities of Putnal’s experts and their specialized areas of practice within the mental health field, the specific items that the experts intend to bring into the detention center to use to examine and test Putnal, and the defense’s generalized bases for seeking to conduct those examinations.”
“Although it is impossible to know with certainty before trial whether and to precisely what extent Putnal has been prejudiced, it is conceivable that, without additional curative measures, he could turn out to have been prejudiced to an extent that would require any
conviction or sentence to be set aside,” the opinion says. “We do not attempt to ascertain the likelihood of such prejudice, but we remand for the trial court to do so and to consider in light of its assessment of the likelihood of prejudice whether additional curative measures are now in order.” Among other things, the opinion says, “the trial court on remand should first consider the possibility that the defense may not call as witnesses at Putnal’s trial the mental health experts revealed to the State.” Putnal “never should have been required to reveal the names of these experts to the State, much less any other information about them or their services relating to Putnal.”
Also on remand, “Given that the State is seeking the death penalty against Putnal, his right to investigate for mitigating evidence is also pertinent to the analysis,” today’s opinion says.
“We express no opinion about what additional curative measures, if any, are in order at this point,” the opinion concludes. “The trial court, however, should do what it can to ensure that the proceedings in this case from this point forward are not tainted by its improper disclosures of Putnal’s ex parte motions and orders to an extent that ultimately would require the setting aside of any conviction or sentence.”
According to Polk County Police, 27 year-old Dustin D. Putnal has been charged with the murder and sexual assault of of a 21 month-old child.
Reports stated that on October 29, 2016 between 1:30 am and 2:00 am, the Polk County Police Department and E.M.S. personnel were dispatched to 45 Adamson Drive apartment number 19 in Cedartown to a child not breathing. Once on scene it was discovered that a 21 month on baby girl was not breathing and E.M.S. personnel began C.P.R.
The baby was transported to the Polk County Medical center in Cedartown then airlifted to Egelston hospital in Atlanta. The child passed away on Sunday October 30, 2016 at approximately 4:46 pm. The baby was identified as Ella Grayce Pointer.
Putnal was dating Ella’s mother and the two lived with him at the Adamson Drive apartment at the time of her death.
Putnal has been housed in the Polk County Jail since the time of the incident after being arrested for probation violation charge.
The investigation is still ongoing with more arrest pending.
Putnal is charged with murder, felony murder, 2 counts of aggravated child molestation, aggravated battery, 2 counts of aggravated sexual battery, and felony cruelty to children.