In Rare Motion, Atlanta’s D.A. Reversed Tough-On-Crime Stance

On Nov. 7, 2010, Michelle Horne held a knife to a woman’s neck and took her purse and wallet, while the woman’s child looked on, according to a grand jury indictment. Horne then sped off in her own vehicle and attempted to evade Atlanta police officers in pursuit. 

Fulton County District Attorney Paul Howard’s office charged Horne, a then-34-year-old first-time offender, with eight felony and misdemeanor offenses, including armed robbery, aggravated assault, and cruelty to children in the third degree. In 2011, Howard’s office won a conviction against Horne, and she was sentenced to a mandatory minimum of 10 years in prison. Ultimately, she lost an appeal before the Georgia Supreme Court.

But last year, Howard’s office reversed its position in Horne’s case. The office joined Horne’s defense attorneys, Michael Moran and Elizabeth Vila Rogan, a former Fulton County magistrate judge, on an extraordinary motion for a new trial. If granted, the motion would have allowed the Fulton County Superior Court to vacate Horne’s conviction and resentence her to 12 years of probation. A judge denied Rogan’s request on May 29 this year.

The motion is rare in Fulton County: Since 2010, Howard’s office has supported only three other extraordinary motions for a new trial involving a violent offense. Horne’s motion is the only one in Howard’s tenure that concerns armed robbery, per data provided by the DA’s office. In the same year that Horne committed her offense, the county recorded 3,225 robberies.

Advocates, including the Georgia Justice Project, have wondered why Howard—whom they see as an opponent to criminal justice reform measures like pretrial release for violent offenders and bail reform—agreed to the motion in Horne’s case. 

“Georgia prisons are filled with men and women with no prior criminal records who are doing a mandatory 10-year sentence for armed robberies like Ms. Horne’s,” Anna Kurien, a former attorney in the Fulton County public defender’s office, told The Appeal. Kurien learned of Horne’s motion as she prepared to leave the public defender’s office and join The Justice Collaborative, a nonprofit criminal justice policy and media organization. (The Appeal is a project of TJC.)

“While I laud efforts to release people from prison, extraordinary motions for sentence reduction like in Ms. Horne’s case are simply out of reach for defendants too poor to hire private lawyers after their appeal has concluded,” Kurien added.

Michelle Horne’s family is no stranger to the law. Her late father, Edison U. Horne, was a special agent in the FBI for 22 years until his retirement in 1997, and was credited with helping to repair the agency’s relationship with the family of the Rev. Martin Luther King Jr. from what it had been during the J. Edgar Hoover era. 

Her older brother, Derek Horne, completed his undergraduate studies, went to law school, and worked on Capitol Hill in Washington and in Atlanta’s British consulate before establishing his own personal injury firm in Pooler, Georgia.

“Shelly,” as Derek affectionately calls his sister, took a different path. She did one semester at Alabama’s Tuskegee University, their father’s alma mater, before transferring to a school closer to home. She soon dropped out. She struggled with drug addiction, he said. Years later, she was the number-two story on Atlanta-area TV news for leading police on a Sunday afternoon chase after the armed robbery in 2010, Derek recalled.

Derek knew his sister well enough to know that attempts to appeal her conviction gave her time and motivation to address her substance use disorder and rehabilitate in prison. Meanwhile, their mother, Ann Horne, a real estate agent and substitute English teacher, took in Michelle’s then-11-year-old daughter. 

Ann and Derek made a “substantial investment” to pay for Michelle’s appeal and her lawyers, including Rogan. According to Derek, his mother took out as much as $50,000 in loans and refinanced her condo to secure equity, totaling “$100,000 or a little bit more.” Rogan was an attorney at the Atlanta firm Michael Kennedy McIntyre & Associates, recommended by someone with whom Michelle was incarcerated, Derek recalled.

He doubted that the joint motion for his sister’s release would succeed. But he supported the effort because of its potential impact on her morale. “I knew that it provided hope for my sister,” he said.

In their extraordinary motion, filed Sept. 5, Rogan and Executive Assistant District Attorney Linda Dunikoski argued that Horne deserved an early release because she had undergone a remarkable transformation while incarcerated at Pulaski State Prison in Hawkinsville, located about 130 miles south of Atlanta. Rogan wrote that Horne had “maintained an excellent institutional record and has taken steps to prepare to re-enter society.” 

On Sept. 19, Rogan and Dunikoski made similar arguments before Judge Constance Russell, noting that Horne had completed a treatment program for an addiction to cocaine, become a mentor to others in the program, and most important, her attorney argued, expressed remorse toward the victims of her offenses, who were supportive of her early release from prison. 

But Russell, who had sentenced Horne to prison seven years earlier, questioned why the DA had agreed to such a motion.

“I’ve been on this bench since 1996,” the judge said. “I have sentenced 17-year-olds, 18-year-olds, 19-year-olds to the same sentence. Why is this different? And how does everybody else get in line to have this considered, if it’s legal?”

Rogan and Dunikoski argued that the motion was allowable under a 2013 state provision that gives judges the discretion to resentence violent offenders, if the DA’s office and defense attorney agree. But the examples of modified or vacated sentences in Fulton County that Rogan cited dealt with low-level drug offenders, not violent offenders like Horne. Rogan did cite examples of violent offenders whose sentences were modified or vacated, but in other Georgia counties.

Rachel Holmes, senior attorney at the Georgia Justice Project, told The Appeal: “We would love for every person to get the same consideration that Ms. Horne is getting, and to look deeper into our clients’ stories and other indigent defendants’ stories and see what’s really warranted in terms of their sentence, and whether or not they’ve been rehabilitated.”

Why is this different? And how does everybody else get in line to have this considered, if it’s legal?

Judge Constance Russell Fulton County Superior Court

During the September hearing, Russell, the judge, seemed to agree. “The posture that we’re in now, the concern that I have, quite frankly, is ‘more money and better family’ should not equal ‘more justice,’” Russell said at the hearing. “The 17-year-old who’s represented by the public defender, how do they get in line? What do they have to say? What can they show, [so] that you’re standing here in exactly the same position?”

Rogan acknowledged during the hearing that “it may appear that money’s buying special treatment” but disagreed it was true of Horne. 

In May 2019, Russell denied the motion. “The outcomes of [the cases you cited] are reflective of the recognition nationally that extended incarceration and draconian consequences attributable to non-violent drug offenses can cause injustices that should be rectified,” Russell wrote in her decision. “Ms. Horne’s circumstances are distinctly different.”

Reached by phone, Dunikoski declined to comment for this article. Rogan did not respond to The Appeal’s emailed request for comment. She was recently indicted for first-degree forgery in an unrelated case.

According to the most recent and available statistics, Fulton County, with a population of roughly 1 million people, recorded 7,179 violent crimes in 2017, a 13 percent decline in the number of violent crimes recorded in 2010, when Horne committed the robbery.

Despite the downward trend in violent crime, Howard, who has served as Fulton County district attorney for 22 years, has opposed recent criminal justice reform efforts. In March, his office sought to expand a list of violent offenses—including armed robbery—that render defendants ineligible for pretrial release on bond. He has focused in particular on withholding bail for repeat offenders and asked that appointed magistrate judges, who typically preside over misdemeanor cases, stop making release decisions.

“It is my opinion, the citizens of our county would feel more secure if the release of a repeat offender, a violent offender or one involving a sex related crime was ordered by an elected Fulton County Judge, someone who has been vetted and selected by the community, and who is directly accountable to the community,” Howard wrote to Atlanta’s top court officials.

Horne has committed more than one violent offense. About a week before the Nov. 7 robbery, she committed another armed robbery, during which she took a woman’s purse and a cell phone at knifepoint. The two cases were merged, according to court records.

The Fulton County district attorney’s office would not comment on how Horne’s request for early release got to the office. DA spokesperson Chris Hopper said that, in the future, the office “will be assigning these sorts of cases to our Conviction Integrity Unit, which is still in development.” Howard’s office unveiled plans for the unit in April.

On March 5, more than a year before her planned release, Horne, now 43, was transferred from a state prison to the Atlanta Transitional Center, a two-building, five-story facility that prepares soon-to-be-released prisoners with good behavior for re-entry into society. The program allows residents to work jobs outside the facility and have access to the internet and the use of a cell phone, privileges they could not have while in a Georgia prison.

Horne spent her first Mother’s Day in eight years with her 19-year-old daughter, mother, and brother, she told The Appeal in a June 12 email. “It was fabulous. The greatest feeling ever.”

Reached by phone in June, Horne told The Appeal she was grateful that the court even considered rewarding her for rehabilitation. But there are many more men and women who need the same consideration, she said. 

“If you’re doing good, and you’re on the right path, and you’re going to do the right thing, then I believe that people should be up for early release,” Horne said. “It shouldn’t matter how much money you have. My mom didn’t have the money—she’s up to her neck in loans.”

No matter a defendant’s representation, she said, “the prosecution should be able to look through the system and pull people and say, ‘Look what this person’s done. Obviously, they’ve changed.’”

Correction: An earlier version of this article stated that Michelle Horne is a repeat offender. She is not; she has committed more than one violent offense.