Status as of February 2008
1. The Trial began in the Cobb County Superior Court with Judge George Kreeger presiding on August 20, 2001.ended on September 6, 2001. It ended with a conviction verdict on Friday September 7, 2001 on or about 6:30 PM after almost three days of jury deliberations.
2. Judge Kreeger sentenced Gunther on October 22, 2001, to 180 years: 90 years to serve in custody and 90 years probation.
3. A Motion for New Trial was filed on October 25, 2001 by trial lawyer Jimmy Berry.
4. Shortly after, Gunthers family hired Mr. Robert Rosenthal, a New York based lawyer who is an expert in Child Molestation cases involving Mass Hysteria. Mr. Rosenthal agreed on analyzing the case and provided legal advice to the family. At about the same time, Gunther filed for Indigent Status and applied for a state assigned attorney. Mr. Mitch Durham was assigned the case for the appeal stages.
5. An Amended Motion for New Trial was filed byattorneys Mr. Mitch Durham, Mr. Jimmy Berry and Ms. Cindi Yeager. The later two acting Pro-Bono.
6. The trial transcripts had more than 3,400 pages. Mr. Rosenthal prepared a document of about 230 pages, summarizing the trial transcripts. By analyzing the trial testimonies, Mr. Rosenthal found that the charges on which Gunther was convicted did not result from isolated instances of Child Molestation as the Prosecutor, Eleanor Kornahrens, now Eleanor Dixon, convinced the jury during trial.
Instead, Mr. Rosenthal found that the charges were the result of a chain of events resulting in Mass Hysteria. The most important was that, according to the testimony of one of the non-accuser children, the first child that accused Gunther and triggered the chain of events was apparently lying. This testimony was ignored by defense lawyer, Mr. Jimmy Berry. The other children were all related in one way or another and had been all questioned by their parents several times before accusations were elicited and taken to forensic interviews.
7. A hearing for the Motion for New Trial was held at the Cobb County Superior Court and presided by judge George Kreeger, who was also the trial judge, on February 5, 2003.
8. The Motion for New Trial was denied by Judge Kreeger on February 10, 2003.
9. A Notice of Appeal to the Georgia Court of Appeal was filed on March 11, 2003. An Appellant Brief was filed on October 2, 2003 and an Appellants Reply Brief was filed on December 19, 2003.
10. The Georgia Court of Appeals affirmed the convictions on March 24, 2004.
11. A Petition for Certiorari to the Georgia Supreme Court was filed on April 13, 2004 and was denied on September 7, 2004.
12. During the appeal stages, Gunther and his family started to compile facts and information related with the case and the Trial. On one side, the Discovery documents were reviewed and a copy was obtained of the more relevant issues. Also, newspaper and Internet articles related with the trial were compiled. A copy of 74 articles was obtained, approximately 60% of them were pre-trial related articles and most contained only negative information about the case.
13. The next step in the Appeal process was the State Habeas. Gunthers family hired Ms. Deborah M. Vaughan of Novy, Jaymes and Vaughan law firm. An Application for Writ of Habeas Corpus was filed at the Superior Court of Mitchell County on April 25, 2005, the county where Gunther was being held in custody. A Brief in Support of the Application for Writ of Habeas Corpus was also filed by Ms. Vaughan and her law firm partner, Mr. Eugene Novy.
14. Among the enumeration of errors listed in the Application for Writ of Habeas Corpus, one of them was the intent to get the court to review and accept as part of the record the video taped forensic interviews of the non-accuser children along with the transcript of those interviews. Also, the pre-trial and trial publicity newspaper and Internet articles were presented. Several other errors that contributed to the deficient performance of his trial counsel were raised for this purpose.
15. DVD copies of the video taped forensic interviews of the non-accuser children that were given to the defense by the state during the pre-trial discovery phase were made. An affidavit signed by each non-accuser child, and parent, authenticating its forensic interviews were also obtained and introduced as evidence. Subpoenas were served to Ms. Eleanor Dixon, the trial prosecutor, and Mr. Berry for their appearances to the habeas hearing. Ms. Dixon was also served with a production subpoena requiring her to bring her entire file, including the original tapes, to the hearing.
16. An evidentiary hearing for the Writ of Habeas Corpus was held on December 12, 2005, at Autry State Prison, located in Mitchell County in southwest Georgia. The hearing lasted about 6 hours and was presided by Judge Richard Porter III, Judge of Superior Courts for the South Georgia Judicial Circuit.
On a positive note for the case, Judge Porter accepted as part of the record about 74 news articles concerning the case and the affidavits signed by the non-accuser children. However, since Ms. Dixon did not bring the entire file or the original tapes, Judge Porter seemed reluctant to accept the DVD copies of the interviews based on the states objection. Nonetheless, Judge Porter gave Gunthers lawyers, Ms. Vaughan and Mr. Novy, until January 31, 2006 to review the original video taped interviews and come up with a better argument to introduce the non-accuser children interviews as evidence. Ms. Dixon had testified that she had no control of such evidence and that they were stored by the Cobb County Police Department.
17. Ms. Vaughan contacted Sgt. Forester, Supervisor at the Cobb County Crimes Against Children unit, and he advised Ms. Vaughan that any request and arrangements for reviewing or obtaining the tapes had to be done through Ms. Dixon. An Open records Request letter to Sgt. Forrester was sent on January 12, 2006.
18. Lt. T. R. Alexander, from the Cobb County Department of Public Safety, Central Records Division, is sent a second, but new, Georgia Open Records Request on January 13, 2006.
19. After an exchange of several letters and phone calls with various Cobb County officials, Ms. Vaughan sent a letter requesting assistance to Judge Porter on January 24, 2006. The letter mentioned, for 45 days we have received nothing but the continued run around from the Cobb County District Attorney Office, Cobb County Crimes Against Children Unit Supervisor and from the head of the Cobb County Police Department Central Records Division.
20. On February 16, 2006, in a written letter Judge Porter decides to admit without further necessity of authenticity the DVDs that were not admitted on the Hearing date. Meanwhile, the original videotapes were never produced by Cobb County.
21. The Petition for Writ of Habeas Corpus was denied by Judge Porter on May 31, 2006, on a final order prepared by Mr. Mark Gilbert, Special Assistant Attorney General.
22. A Petitioners Notice of Appeal to the Georgia Supreme Court was filed on June 16, 2006.
23. An Application for Certificate of Probable Cause from the Superior Court of Mitchell Countys denial of Petition for Habeas Corpus was filed in the Georgia Supreme Court on June 28, 2006.
24. The Application for Certificate of Probable Cause to appeal the denial of Habeas Corpus was denied by the Georgia Supreme Court on November 6, 2006.
25. The next stage, which will be Gunthers last chance to revert his conviction, is a Federal Habeas. There is a deadline to file the corresponding application by June 2007.
26. Currently, Attorney Rodney Zell, of Zell and Zell law firm of Atlanta, has been retained for the Federal Habeas. Mr. Zell is in the process of reviewing the files that pertain to the case.