The Mark Fogarty Case

The case against Fogarty was made stronger when five other women who came forward and testified that Fogarty was the man who offered to change their tires as well. Three other women came forward and testified that Fogarty had approached them for dates in the same Ingle’s parking lot several months before the tire cases. Fogarty admitted flirting with the three women and asking them for dates. Fogarty, however, denied flattening anyone’s tires. Fortunately, Fogarty had a strong alibi for almost all of the offenses involving the flat tires: he was in Disneyworld with his wife and child. He had vacation photos, hotel receipts, and gas receipts to prove it. The jury found him not guilty of all of the flat tire cases except for the Flood kidnapping. That was the only flat tire case for which Fogarty did not have an alibi.

I took over the case after the guilty verdict. I got the case because Fogarty was housed in the J-Pod with Marlow Gholston, who I had recently got acquitted where he claimed he was innocent. There was another fact that linked the two inmates: Gholston and Fogarty both had the same lawyer at their first trials.

As in the Marlow case, I started to re-investigate the Fogarty case when I took it over. The first thing that stood out was the photo line-ups. Jaymie Flood was initially shown a line up (see below) which contained another suspect (not Fogarty).

When Fogarty became a suspect, they re-used several of the old photographs (see below) previously shown to the witness.

The second thing that stood out about the case was the fingerprint found on the victim’s car. The guy who changed Jaymie’s tire left his fingerprint on her car door handle. For some reason, the fingerprint was never tested to see who it belonged to (see right). When they tested against Fogarty, the print did not match.

Finally, the state had never disclosed to the defense all of the leads on the case they had received when they broadcast the suspect’s picture. After the composite photo was shown on television, police got calls from several law enforcement agencies about possible links, and other witnesses called police to report similarities to people they knew. The leads were what police used to investigate possible suspects. Fogarty was not arrested until weeks after the kidnapping, so the police obtained over 85 calls which were noted on "lead sheets." Fogarty’s trial lawyer asked the prosecutor for the lead sheets, but none were available according to the prosecutor. When I got the case, I asked to review the state’s file. The prosecutor who tried the Fogarty case had since left the DA’s office to teach paralegal school in Asheville, NC. The new prosecutor was a neighbor of mine who agreed to allow me to review the entire state’s file. I found the lead sheets and made copies. I also made copies of all of the audio tapes of the police interviews with eyewitnesses. The lead sheets confirmed that police did not thoroughly investigate the case. Once Fogarty was identified as a suspect, the investigation stopped, even though Fogarty was out of town when several of the incidents occurred.

I also called the first lawyer and asked if I could review his file. He agreed. The fee contract when the lawyer was hired was a problem. The lawyer was paid $25,000 up front to represent Fogarty on all the charges. But, if another suspect was "arrested or identified," the lawyer would have to refund $15,000 to Fogarty. These types of agreements are not favored because they arguably create a conflict of interest between the lawyer and the client. For example, the lawyer might not use his best efforts to "identify" another suspect if his contract called for a refund of $15,000 if he was successful. The fingerprint not being tested to "identify" another suspect was arguably due to the fee contract. The fee contract issue was very complex, and difficult to assert given the first lawyer’s popularity in the local legal community. When the issue was first brought to the attention of the DA, it sounded as if he may agree to a new trial because of the conflict of interest problems caused by the contract.

This did not happen, however. When the fee contract issue was raised, the news spread quickly amongst local lawyers. I had accused a popular attorney of unethical conduct. Most lawyers sided with the attorney and against me. The first test of the public sentiment on my raising the issue came in the Gwinnet County Bar Association’s spring election of officers. As I had been successfully elected to all of the lower offices for the past three years, I was next in line to be Bar President. Another criminal defense lawyer who had not been previously involved in the Bar Association, decided to run against me. I lost. Some lawyers would no longer speak to me.

When the issue was finally raised in the Courts, I also lost. While the Court of Appeals found the contract did create a conflict of interest, they held there was no prejudice shown by the lawyer’s conduct in the case. Our next step was to appeal to the Georgia Supreme Court. The day I learned the case was accepted by the Court, I came home and wrote the entire brief that weekend. As it turned out, it was a good thing I did because the very next week I was nearly killed in a motorcycle accident. When I came to, I learned that I had broken my back, my jaw, and lost hearing in one of my ears. I had some great doctors who helped me back. My mouth was wired shut for 6 weeks, and I lost 40 pounds on my liquid diet. They moved a hospital bed in my den where I lived for the next two months. I couldn’t go upstairs, and could only get out of bed to go to the bathroom. I was in bad shape.

As it turned out, the Supreme Court pushed back the oral arguments in the case which gave me time to recover. The arguments were held at the University of Georgia law school in October 1999.

I lost again. The Supreme Court held that the fee contract merely stated that the attorney would get more money if the case went to trial, which is not a conflict of interest. I persevered. I even asked the United States Supreme Court to look at the case, which was denied almost a year later.

I had been asking the DA to run the fingerprint through the computer fingerprint database for years, but he had refused. I went back to the trial court and asked the judge to order the fingerprint to be tested once and for all. I brought in a fingerprint expert from the crime lab who testified that the fingerprint was good enough to run through the computers. If there was a match, the whole process would take 15-20 minutes. I lost again. I appealed again. I lost the appeals.

The next avenue was to file a petition for habeas corpus in federal court. The case was reviewed by the federal judges who also wondered why the fingerprint was not tested. (Federal order PDF) Finally, the federal judge ordered the fingerprint testing, and it was the state who appealed this ruling. On the appeal, the state claimed they would get a flood of requests to test evidence in old cases if they granted the request in this one case. The appeal was denied and a second federal judge ordered the fingerprint to be tested for a second time.

The federal case is still pending. More on the case when we get the final order.

When I first took the Fogarty case in 1995, his family paid me $1000.00. Since that time, I have worked on the case without charge because of my belief in Fogarty's innocence. One day, I expect to prove his innocence and free Fogarty from prison.