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Defense for Sen. Don Balfour attacks state's mistakes, evidence

Don Balfour

Don Balfour

ATLANTA — Mistakes.

The defense team for embattled state Sen. Don Balfour has long preached that the false reimbursement and per diem forms that earned him an indictment were simply that. Mistakes, the product of disorganization and poor record-keeping and a perpetually busy executive-turned-senator.

But on Tuesday, Day 2 of the Fulton County trial against Balfour, the defense turned its sights to the mistakes of the Attorney General’s office, both during previous investigations and current proceedings. When paired with a parade of character witnesses and a spotlight on the relatively small sums of money each count of the indictment deals with, it amounted to a daunting attack for the state to overcome.

“There has been absolutely no evidence of intent to commit a crime,” defense attorney Ken Hodges said.

Tuesday was a day full of testimony, starting with and dominated by Robyn Underwood, the state’s legislative fiscal officer, and Wesley Horne, the now-former Georgia Bureau of Investigation agent who worked the case.

Underwood walked the jury through the process state legislators follow to submit reimbursement forms and verified that the claims in question were indeed erroneous. Under Hodges’ guidance, however, she said she didn’t think Balfour had acted intentionally.

The attorney re-phrased the same heart-of-the-matter question several times.

“You know (Balfour) to be an honest man, don’t you?” Hodges asked.

“With respect to my office, yes,” Underwood said.

According to documents presented, Balfour never ranked lower than seventh in terms of most days reimbursed during the timeframe covered in the indictment, and twice billed the state for the most per diems of any senator. He was reimbursed for 74 days in 2007 (seventh-most); 95 days in 2008 (the most); 65 days in 2009 (seventh-most); 82 days in 2010 (second-most); and 126 days in 2011 (the most).

In 2012, amid the initial probe by the Senate ethics committee and no longer chairman of the rules committee, Balfour was reimbursed for only five days.

The defense turned the state’s insinuation on its head, saying that, as the aforementioned rules chair, Balfour was in one of the most prominent and time-demanding leadership positions in the General Assembly. As he did several times throughout the day, Hodges said that his client was constantly going “100 different directions at 100 miles an hour,” a fact agreed to by Underwood.

“Do you have any evidence that he was not working on those days he turned in?” Hodges asked.

“No,” Underwood said.

When Horne, the former GBI agent, took the stand, Senior Assistant Attorney General David McLaughlin walked him through each charge on the 18-count indictment and outlined every alleged offense.

All but a few of the charges dealt with some form of Balfour, a Republican from Snellville, listing mileage both to and from the airport on each leg of various trips. Others include erroneous per diem filings, and one heavily debated charge deals with a trip for which the senator was reimbursed by both the state and Waffle House. He later repaid the latter.

Doing the calculations himself, defense attorney William Hill hammered Horne with the fact that criminal charges in the case were based on filings that overcharged the state by amounts like $21.04, $32.32, $238 and 616.92. Through his slightly fuzzy math, the total of the indictment’s mistaken reimbursements was $2,276.28.

“At any point during this year-long investigation, did you at any point in time stop … to ask, ‘Do we need to re-think the propriety of this investigation?’” Hill said.

“I ask myself that day every day when I’m working a case,” Horne countered.

Hill and Hodges also pounced on several different small errors that the prosecution made during Tuesday’s proceedings, most of which were reading or remembering dates in the indictment inaccurately. Without directly referencing the similar defense for their client, they continuously pointed them out as “honest” or “simple” mistakes.

There were other errors as well.

As Hill pointed out, count 14 of the indictment was charged under Georgia code 6-10-20 — which doesn’t exist — rather than 16-10-20. Count six was mistakenly charged under code 16-8-1, which is a statute that merely provides definitions of terms used in subsequent criminal codes.

The indictment, which is a public record, also listed Balfour’s personal address and and date of birth on its front page, which is not typical for such a document.

As the state closed its case late in the afternoon, Hodges unsuccessfully moved for a directed verdict to dismiss all counts.

In the remaining 90 minutes in court, the defense ushered 10 character witnesses through — a list including three state senators, a fellow Waffle House exec, a pastor, an official from Georgia Gwinnett College and former Georgia Gov. Roy Barnes.

Barnes praised Balfour as a man of his word and didn’t doubt that his mistakes were indeed that.

“You depend on your staff there to kind of keep up with these things,” Barnes said. “I hate to say this, but you sign whatever your staff puts out. Because you’re just so dang busy.”

Another seven defense witnesses are expected to be called Wednesday, with closing arguments likely to come later in the day.