Attorneys for a near-brain-dead inmate have asked a Clayton County magistrate to recuse herself, as they continue to fight to have him released from custody so private insurance can pick up the tab for his care, and not taxpayers.
Defense attorney Dwight Thomas and Clayton Executive Assistant District Attorney Jason Green agreed to Andre Shiver's release on a signature bond, which would not require his parents to put up money through a bail bondsman. Once out of custody, Shiver's private insurance will cover the costs of his care, said Thomas.
"The simplest thing is to sign a consent order allowing for a signature bond." he said. "This is creating an enormous medical bill that Clayton County taxpayers are having to pay. This makes no sense at all."
Clayton Magistrate Betrice Scott has, so far, declined to accept the agreement. Thomas took issue with Scott making a call to Green without notifying him, known as an ex parte communication.
"That's wrong of her to call the prosecutor without me," said Thomas.
Thomas filed a motion of recusal Tuesday, asking that the case be reassigned to another magistrate.
"The ex parte communications set forth dealt with substantive matters and counsel for Defendant was not notified by Judge Scott as to the substance of said communications, and thus, not given an opportunity to respond," states the motion.
Chief Magistrate Daphne Walker said it would be improper to publicly comment on the issue.
Thomas is also upset that Scott has announced that she will waive Shiver's right to attend his preliminary hearing.
"If the Defendant was medically and physically unable to leave the hospital to be present at the Feb. 9 preliminary hearing –– he is almost brain dead –– that she took the position that she could and would waive his appearance at a critical stage of the proceeding, over objection of defense counsel," said Thomas.
Thomas said Wednesday that Shiver is unable to attend the hearing, set for this afternoon. "But we do not waive that right," he said. "We either want it continued or have a signature bond ordered, so he can be released from custody. If he bonds out, there is no need for a preliminary hearing."
Thomas and Green also agree that if Shiver recovers from his injuries, he will immediately return to jail.
Police said Shiver, 19, burst into a Jonesboro home in December and shot the resident, Marcus Lively, in the hand. Lively fired back, hitting him in the head. Shiver has reportedly suffered a traumatic brain injury from which he may likely never recover, said Thomas, one of two Atlanta attorneys fighting to get him out of county custody.
As long as Shiver remains in custody, albeit at Southern Crescent Traumatic Brain Center, where he is guarded 24 hours a day by a Clayton sheriff's deputy, taxpayers foot the bill for his care. Thomas said the emergency room costs are $200,000-$300,000, and the weekly tab for Shiver's care is about $22,000.
When Clayton County police responded to the shooting, they discovered several credit card processing work stations, safes, jewelry, several luxury cars and about $200,000 in cash. Sgt. Otis Willis, III, said officers called in the U.S. Secret Service and Department of Revenue to investigate the findings.
Willis said the home invasion and shooting took place specifically because of criminal activity inside the house.
Lively and another resident of the house, Ednecdia Sutina Johnson, 46, were charged in Clayton County, in connection with the findings. However, Clayton District Attorney Tracy Graham Lawson dismissed the state's case against the pair because similar charges are being sought in U.S. District Court.