Elwyn John Crocker Sr. and his co-defendants facing the death penalty for the deaths of his two children, Elwyn Jr. and Mary, will have a new judge presiding over the case.
The decision follows a motion by defense attorneys in July of 2023 over ex parte communications by District Attorney Daphne Totten’s office with the judge and unlawfully obtained medical records.
This second attempt at recusal has once again delayed the case which is nearly five years old. Both children were found buried in the backyard of the family’s home in late 2018. Elwyn Jr. had been missing for more than two years and authorities say Crocker and four others kept the two children in dog kennels, naked and deprived of nourishment and other basic care. Investigators charged five individuals with a host of offenses related to the deaths and alleged abuse.
Basis of the Recusal
- There was an apparent violation of the Code of Judicial Conduct
- Crocker’s constitutional right to privacy was violated
- Prosecutors obtained a court order not permitted by law
At issue in the motion filed by the defense were privileged medical records of Elwyn Crocker Sr., which were later filed in the public court file in the Clerk’s Office by the District Attorney in March of 2023. The state had obtained medical records from health care providers while Crocker had been incarcerated at the Effingham County Jail, which had prompted the defense to file a motion to disallow the state from using any of those documents. The defense cited the expectation of and right to privacy in medical records, even when incarcerated in a county jail.
Specifically, the records obtained were for all medical records since his date of incarceration, which the defense said were not narrowly tailored to an investigation. In addition, the ex parte order ordered the medical record custodian at the jail to not disclose to anyone that the records had been requested by the State or released by the custodian.
“At that time, [defense] counsel was unaware of how the State had obtained these records in violation of HIPAA, as there was no court order, warrant, subpoena, or any kind of process indicating the State’s source of this information. Regardless, it was apparent that the State had obtained protected health information without any legal basis for doing so or as a basis for breaching the privileged nature of this information,” the motion read.
In June 2023, a hearing was held on the matter and Crocker’s attorney, Jerilyn Bell, asked the state to reveal the source of how the State obtained the information. ADA Matt Breedon stated that he did not know but would find out.
From the motion:
“He revealed the following day that an ex parte hearing was held, at which an investigator for the State appeared before the Court and requested that this Court, Honorable F. Gates Peed, sign an ex parte order requiring that Mr. Crocker’s medical records be turned over to the State. Ms. Bell then requested that Defense counsel be provided with the record of that hearing, including any recording or transcript; to which the Court responded that none existed. Counsel was provided an ex parte order but nothing else was provided.”
According to the motion, the ex parte order indicated the records were sought “in the furtherance of this investigation; Said information is pertinent to an ongoing investigation being conducted by the District Attorney of the Ogeechee Judicial Circuit.”
The issue, the defense argued, was that the defense had filed a motion in March of 2021 preventing any Ex parte communication between the State and the Court, which is standard in death penalty cases, and the state consented to that motion. Now, attorneys say, the state violated its own order by engaging in ex parte communication with the Court.
“It is not apparent and without dispute that the Court and the State have both violated the Court’s own order entered in this case,” Crocker’s motion reads. The defense also cited the Code of Judicial Conduct, which expressly prohibits such communication. “None of the exceptions contained within the Code of Judicial Conduct apply to this case, because the procedure employed by the State to obtain Mr. Crocker’s medical records was illegal; it was not done in conformance with the law…”
Further, the motion states inconsistent statements made by ADA Matt Breedon when he first told the court he was unaware of how the medical records were obtained and then, the following day, said it was through an ex parte order.
Order from Administrative Judge
In July 2023, Administrative Judge for the First Judicial Circuit, Judge Jay Stewart, presided over a hearing on the matter. Shortly thereafter, he issued an order in which he granted the defense’s request.
The order stated that the allegations laid out by the defense in the affidavit were ‘sufficient grounds to warrant recusal.’
“In the case at bar, the objective evidence is that the trial judge signed an order preventing any Ex Parte communication between him and the state, which was filed on May 17, 2022. On February 24, 2023, the same trial judge signed an order presented by Investigator Andre Wright of the Ogeechee Judicial Circuit District Attorney’s Office titled “EXPARTE ORDER,” which ordered the Custodian of Records at the Effingham County Jail to furnish the Defendant’s medical records possessed by the Effingham County Jail to the Office of the District Attorney…
…This Court concludes that these objective facts are such that a “fair-minded impartial person would have a reasonable perception” that the trial judge favored the State over the Defendant. This finding does not in any way indicate the trial judge’s intent, but rather reflects an objective application of the applicable standard to the facts giving rise to the instant motion.
…It is further Ordered that another Superior Court Judge shall be assigned to preside over the instant case.”
The order was signed by Stewart in July and filed in the Clerk’s office on August 25. Court documents indicate the case is now assigned to Judge Michael Muldrew.
Not the First Attempt at Recusal
In 2022, defense attorneys for Crocker sought to have Peed recused from the case on the basis of his hearing matters pertaining to the DFCS case immediately following the discovery of Elwyn Jr. and Mary, saying it put Peed in a position of impartiality as he heard things which would not be discussed at trial.
A judge from the Brunswick Judicial Circuit denied the request
You can read more about that below.