• Judge calls himself '13th juror,' overturns man's murder conviction at last minute

    By: Nicole Carr

    Updated:

    BARROW COUNTY, Ga. - A retiring Barrow County judge has  used a rare statute to throw out a murder conviction, calling himself the 13th juror.

    The decision, supported by a rarely used Georgia statute, has angered the victim’s family, and frustrated local law enforcement and prosecutors. The latter is evidenced in court transcripts.

    “Frankly my honest opinion is it’s an abuse of what I would say is power,” Barrow County Sheriff Jud Smith." That’s an opinion. That’s strong words, but you know, it’s not something you ever see.”

    Senior Judge David Motes is set to retire on Oct. 31. Just last week, he surprised the state, defense and jurors who attended the sentencing hearing for Paul Hamilton. 

    Hamilton, a former magistrate judge, was convicted of felony murder and three counts of aggravated assault. The charges stem from the October 2015 murder of his nephew, Brandon Lay, and he was facing life in prison.

    Motes threw out the conviction, sent the 78-year-old home on bond, and wished him good luck in a retrial that the state has appealed.

    In court transcripts obtained by Channel 2 investigative reporter Nicole Carr, Motes cites what he believed to be his own errors in handling questions about his jury instructions, as well as witness credibility.


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    “And I have never done this in 22 and a half years, but the Court believes that it's sitting as the 13th juror in this case,” Motes said. “The Court believes that the evidence at trial was decidedly and strongly against the weight of the evidence to support a conviction. 

    “I cannot end my career with what I believe to be an injustice,” Motes said.

    Carr reached Lay’s mother in Michigan by phone on Tuesday. 

    “I just about lost it,” Lisa Yurk cried. Everybody I tell is like ‘Lisa, you’re making that up. Nobody walks out of jail after they’re convicted of murder.’”

    Prosecutors, who told Motes in court that they disagreed with the ruling, told Carr they have a policy of not commenting on a judge’s decisions.

    A defense attorney for Motes declined to weigh in detail, but said  “Justice will be served.”

    Paul Hamilton and the 13th juror

    Hamilton admitted to following and shooting Lay in the head at a Hochston intersection on Oct. 17, 2015. Earlier in the day, witnesses told Hamilton they’d seen Lay break into one of his properties, stealing a bucket with silverware.

    In a police report, Hamilton is quoted as confessing to the murder on the scene. He described an altercation with Lay after he cut him off at the intersection.

    “That’s when I shot him deader than (expletive),” Hamilton told authorities.

    After the shooting he also told police “If I catch someone else on my property, you’ll need to call the coroner,” according the report.

    But Motes questioned multiple versions of a story told by a witness during the trial, her drug use and his decision against granting the State’s mistrial motion when he declined to re-charge the jurors. The question in charging revolved around the definition of intent.

    “Even though it’s a little late, he recognized that he made a mistake before he sentenced somebody on a life sentence,” said legal analyst Esther Panitch. “Judges get it wrong sometimes. The ones who take it very seriously will admit when they’re wrong  and will do so before the Court of Appeals forces them to.”

    “Georgia’s 13th juror standard is one of the most important and distinctive parts of our state law,” said Atlanta trial lawyer, Andrew Fleischman, pointing to case law. “It allows a judge to grant a new trial out of conscience. I’ve won two.”

    Motes did not immediately return a Channel 2 message forwarded by his office early Tuesday morning. He’d already left the courthouse on the eve of his final day.

    Sheriff Smith pointed to the fact that everyone involved will have to re-live the trial.

    “No one won here in this situation,” Smith said. “Not a single person won and now we’re having to sit back and fill the pieces of what do we do next?”

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