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McCracken Poston's Legal Cases (18)

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Criminal defense

State v. J.M.H. 2021CR000008 Catoosa (GA) Superior Court

Mar 17, 2025

OUTCOME: Dismissed

The defendant worked in the office of a local business. In December of 2018 she was accused of forgery and embezzlement of between $150,000-$250,000 of company funds over four years, by manipulating he ... r salary and use of company credit cards, and the payment by the company of her personal credit card bills. The defendant was resolute that she did not take any company money that was not approved by the owner of the company, but stated that she had been the beneficiary of significant largesse from the owner over that period, including for some time a doubling of her salary. Investigators told local media that the defendant "continued to cook the books" to keep the doubled salary coming in. Interviewing a former accountant for the business in Omaha, Nebraska, it was soon determined that the defendant's claims had merit. The accountant gave a sworn affidavit that it was the company owner who approved the doubling of the defendant's salary, directing the accountant to make it happen. The affidavit also revealed other matters that helped put the relationship between employer and employee into a perspective that helped explain the circumstances that caused false charges to be leveled at the defendant. After six years and multiple prosecutors, the newly elected District Attorney took charge of the situation and dismissed the case, as he should have. Essentially, the defense tried the case to the prosecutor, as new revelations were revealed about the unusual employer/employee arrangement. It was refreshing to see a prosecutor not get stuck in the rut of prosecuting cases that have long fallen apart from the prosecutorial perspective.

Criminal defense

State v.JLMc, 15cr00584, Whitfield (Georgia) Superior Court

Jun 12, 2017

OUTCOME: Not Guilty Verdict

Defendant had worked as an office manager for a dental chain that had a primary focus on Medicaid patients. In the midst of an investigation by the U.S. Senate Finance and Judiciary Committees on Medi ... caid fraud, the COO of the company sent two private security agents to interrogate the defendant. The defendant claimed she was intimidated and pressured to sign a three-page fully detailed confession that she had taken cash from the company in the amount of over $112,000.00. The Defendant recanted the confession as soon as she met with the city police investigator, admitting that she had not deposited the cash from the dental office, but stating that she had used the funds with company permission from the COO himself to develop an intense incentive program with the funds. There was testimony that the Defendant had purchased many creature comforts for the office staff, and that there were even cash prizes for meeting or exceeding the selling of additional services, most of which were billed through Medicaid. This was exactly the type of corporate behavior that was the focus of the U.S. Senate inquiries. A timeline of the events showed the Defendant's location breaking company records as a result of the incentives, which counsel argued made the location "like something between a game show and a sweatshop." With the U.S. Senate bearing down on the company, it was argued that the COO suddenly saw the Defendant as a great liability, and needed to explain the absence of the funds in a manner that would not implicate the company in the federal investigation, so he sent two men he had worked with before to get the Defendant's "confession". Counsel put on an expert witness as to the Defendant's psychological testing, which included the Gudjonsson Suggestiabilty Scale and the TOMM "effort" test. The results showed the Defendant was "extremely" suggestible, "...in the 99th percentile of suggestibility." Counsel challenged the credibility of her inquisitors, contending that the head of the security company, who had for three decades in marketing touted his three years as a player in the National Football League, had in fact never played in the NFL. Counsel presented rosters for the three teams that the witness had claimed he had played for, which confirmed that the witness had never played in the NFL. The witness admitted that he had never played one down of professional football. The Defendant had limited evidence of receipts of her spending the money for the company, but a key state witness on cross-examination confirmed most of the cash-purchased items that the Defendant had used the funds to purchase for the company.

Criminal defense

State v. SDG, 2012-CR-38, Walker (Georgia) Superior Court

May 18, 2017

OUTCOME: Not Guilty Verdict

SDG was an employee of a privately owned pharmacy, until she was fired by the husband and wife owners in 2010, after they produced several video recorded instances where it appeared she was removing ca ... sh from the cash register over several weeks. SDG denied the theft, claiming she had authority to remove the money. The owner-pharmacist and his friend had held SDG in the back room for three hours, forcing her to watch the video and trying to elicit a confession, which did not come. While SDG was an employee of the pharmacy, the owner-pharmacist and his co-owner wife had at least fifteen other part-time employees that were paid "off books". One of the only defenses of SDG was that she was following the orders of the co-owner who kept the books, a request to remove $100 bills and large amounts rom the register to keep another employee from cashing 3rd party checks, some of which had been bad. As this was the main defense, SDG subpoenaed IRS Forms W-2 and 1099 from the pharmacy to show the large number of cash-paid, off-books employees for which she would remove cash from the drawer to pay. The State opposed the subpoenas to produce this evidence on behalf of the witness and prevailed in quashing the subpoena. SDG took the issue on direct interlocutory appeal to the Georgia Court of Appeals, which reversed the Superior Court's ruling quashing the subpoenas. The State then appealed the ruling of the Georgia Court of Appeals to the Supreme Court of Georgia, which affirmed the Court of Appeals reversal of the lower court. Upon receipt of the subpoenaed documents, SDG was ready for trial, and the case finally came to trial in May, 2017. After a four day trial, the Walker County jury deliberated for 50 minutes before returning a "not guilty" verdict.

Criminal defense

State vs. P. F., (#19988) Gordon (Georgia) Superior Court

Jul 29, 2009

OUTCOME: Not Guilty (DUI)

The "Diet Mountain Dew" Case. The defendant was driving his truck at night, pulling a trailer and boat, along a straight road near a recreational lake when he left the roadway and wrecked, destroying ... the vehicle, boat and trailer. He was partially ejected from the vehicle, and suffered severe head and other bodily injuries. While awaiting the arrival of an air ambulance, the investigating state trooper noted "red eyes" , "slurred speech", and "disheveled clothing" without commentary of the nature of the accident and injuries which obviously contributed to the defendant's appearance. Furthermore, the trooper asked the defendant questions, including asking how much the defendant had to drink before the accident. The trooper's assertations in the report that the defendant admitted drinking "five or more beers" was not supported by the audiotape portion of the dash video camera. Nor were the trooper's assertions that the defendant smelled of alcohol, which was in fact denied by a first responder the trooper questioned. The word "beer" was not mentioned. The defendant consented to blood alcohol testing, but first responders were unable to draw blood. The defendant was airlifted to nearby Chattanooga, Tennessee, but the state trooper did not follow up to request that the hospital draw the blood due to "staffing problems." The defendant was prescribed medication which caused him to continually feel tired, and by history he countered this effect by consuming large quantities of the soft drink "Diet Mountain Dew." In a conversation with his father just before the accident, the defendant told his father that for the weekend ahead he anticipated he would need and was then looking for a place to buy "five or more bottles of Diet Mountain Dew." The defense postulated that this was the last thing n the defendant's mind before the accident, and when the state trooper asked how much he had to drink, the severely wounded and confused defendant refered back to the discussion he was just having with his father, and thence said the number "five" before drifting in and out of consciousness.

Criminal defense

J.L.H. V. THE STATE

Nov 18, 2008

OUTCOME: Judgment Reversed

Following a jury trial (McCracken Poston was not trial counsel for the Appellant at the jury trial), Appellant J. L. H. was convicted of four counts of aggravatged assault, three counts of aggravated b ... attery, and two counts of burglary. J.L.H. appealed to the Georgia Court of Appeals, contending that the trial court erred in failing to instruct the jury on his sole defense of self-defense and accident. The Court of Appeals agreed, and reversed all convictions on November 18, 2008.

Criminal defense

State vs. C.C.M. (06CR22209); State vs. L.M.(06CR22210), Walker (Georgia) Superior Court

Aug 15, 2008

OUTCOME: All charges dismissed

During the State's prosecution of Tommy Ray-Brent Marsh, the last operator of the now infamous Tri-State Crematory in Noble, Georgia, public outcry inflamed by media reports of the findings of bodies i ... n Noble, Georgia, along with premature statements and misrepresentations by the state medical examiner that the hudreds of bodies found on the site "go back twenty years" put a great deal of pressure on local officials to arrest each member of the family of operator Brent Marsh, who himself had only operated the family-run crematory for approximately six years. The medical examiner later recanted his earlier opinion, indicating that all of the uncremated bodies were from the six year period that Brent Marsh solely operated the facility. The damage was done, however, and with state and federal elected officials looking on, the family of Brent Marsh was arrested and paraded before the battery of national and international media. Arrested were Brent Marsh's father, T.R.M.; his mother C.C.M.; and sister L.M.. Most interestingly, however, was that the only charges that the state could muster regarded alleged administrative errors, where the defendants had allegedly signed state form death certificates of properly cremated bodies in the early years of the crematory, on a line on the form reserved for the signature of "funeral director," when they were not in fact licensed funeral directors. The first strategy of the defense was to locate and interview a number of retired state officials from the Georgia Department of Human Resources, Vital Records Division. A review of state policies over the twenty years of the existence of the crematory indicated that there had been changes in the form of the official state death certificate over those years, and there existed an extensive record of apparent disagreement as to who should sign the forms as the person over the final disposition of the body represented by each form. A retired state employee was located in Middle Georgia who gave an affidavit that she had on many occasions over the relevant period of time instructed the representatives of the Tri-State Crematory to sign the said forms on the line designated for "funeral director," even though she knew they were not licensed as such, because "there was a lot of pressure for us to complete the forms," and she even admitted putting the names of the crematory's representatives on the form if it had been submitted to the Atlanta agency unsigned. When the defense presented this affidavit and a number of others that portrayed how such procedures were common, an agreement was reached with the state to place the cases on the dead docket for a period of two years, after which all charges against the defendants were dismissed. Although arrested, patriarch Tommy Ray Marsh had passed away in 2003, three years before the indictments were brought. He was specifically vindicated by affidavit of the defense witness. T.R., C.C.M. and L.M. were never accused of any offense related to the uncremated bodies which gave rise to the charges against Brent Marsh.

Criminal defense

United States v. S.P. (4-05-CR-033 HLM), U.S. Dist. Ct., Northern Dist. of GA

Oct 06, 2005

OUTCOME: Dismissed (successful alibi defense)

In 2004-2005, a federal and state undercover operation dubbed "Operation Meth Merchant" targeted almost exclusively Indian-born owners and operators of convenience stores in Northwest Georgia. Undercov ... er (and in almost all cases caucasion) operatives were wired and sent into Indian-owned convenience stores where the operative would attempt to buy the otherwise legal components of methamphetamine. It is interesting to note that in most of these cases, the store operators would refuse to sell more than the legal amount allowed of any chemical component (i.e., pseudoephedrine). The operative would purchase any amount and at some point mumble a slang word or phrase with supposed relevance in the drug parlance, which the government designated was sufficient notice to the clerk on what the purchaser intended to do with the items. One immediate problem with the manner of the operation is that many of the foreign-born store clerks spoke and understood minimal English. The most significant problem with this operation, however, was that after a purported purchase the government agents would in many of the cases scan the parking lot and run license plate registration information on the cars in the lot. Upon the acquisition of an Indian name, it was assumed that the car belonged to the suspected Indian-born clerk within the store, and the identification of the vehicle's owner was obtained and later shown to the operative who would then attempt to "identify" the store clerk who "knowingly" sold to the operative the components of methamphetamine. S.P. was a young man who was arrested in Newark, New Jersey as he arrived back to the United States from his wedding and honeymoon in his native India. He was accused of being the convenience store clerk in Whitfield County, Georgia when an undercover operative purchased the components of methamphetamine during the so-called "Operation Meth Merchant." Those arrested in "Operation Meth Merchant" suffered many indignities, including refusal of jail personnel to recognize or respect any cultural or religious dietary restrictions of some of the defendants. S.P. spent many days in jails all over the Eastern U.S. as he wound his way through the system to his first appearance in the federal court in Georgia. S.P., through counsel, continued to maintain his innocence. It was determined that a car owned by S.P. was indeed at the targeted location on the date alleged, as it had been left there with the owner of the store who had months before loaned S.P. the money to purchase the car. By the time of "Operation Meth Merchant," S.P. had long left Georgia to work in a family-owned Subway restaurant in Hicksville, New York, and he felt he did not need the car in New York, and opted to leave it with his benefactor. The defense provided information in the form of an alibi defense that at the moment the government operative was alleging S.P. was behind the counter at the convenience store in Whitfield County, Georgia, he was actually behind the counter and running the register at the Subway restaurant on Long Island, New York. Register tapes supported this fact. S.P. was one of many of the so-called "Operation Meth Merchant" defendants to be vindicated by revealing alibi defenses. These successful alibi defenses caused much more scrutiny of many more of the cases of the operation, and many more were dismissed, or had their cases dismissed after the government offered "corporate" defendants to plea in an offer where individual defendants cases were dismissed.. S.P.'s case was dismissed, due to his successful alibi defense.

Criminal defense

United States vs. M.P. (4-05-CR-030 HLM), U.S. Dist. Ct., Northern Dist. of GA

Jul 14, 2005

OUTCOME: Dismissed (successful alibi defense)

In 2004-2005 a federal and state undercover operation called "Operation Meth Merchant" targeted almost exclusively Indian-born owners and operators of convenience stores in Northwest Georgia. Undercove ... r (and in almost all cases caucasion) operatives were wired and sent into multiple convenience stores where the operative would attempt to buy the otherwise legal components of methamphetamine. It is interesting to note that in most of these cases, the store operators would refuse to sell more than the legal amount allowed of any chemical component (i.e., pseudoephedrine). The operative would purchase any amount and at some point mumble a slang word or phrase with supposed relevance in the drug parlance, which the government designated was sufficient notice to the clerk on what the purchaser intended to do with the items. One immediate problem with the manner of the operation is that many of the foreign-born store clerks spoke and understood minimal English. The most significant problem with this operation, however, was that after a purported purchase the government agents would in many of the cases scan the parking lot and run license plate registration information on the cars in the lot. Upon the acquisition of an Indian name, it was assumed that the car belonged to the suspected Indian-born clerk within the store, and the identification of the vehicle's owner was obtained and later shown to the operative who would then attempt to "identify" the store clerk who "knowingly" sold to the operative the components of methamphetamine. M.P. and her husband C.P. owned a van that was parked close to one of the targeted convenience stores in Fort Oglethorpe, Georgia. When that registration and her identification was obtained, the operative quickly and without hesitation "identified" M.P. as the woman behind the counter who sold the operative pseudoephedrine after the operative stated the phrase: "I gotta finish a cook." The operative also identified M.P.'s husband C.P. as being behind the counter on a previous occasion. M.P. was arrested with scores of other Indian-born individuals when "Operation Meth Merchant" was revealed and the arrests heralded by federal and state prosecutors. When her husband protested her arrest, he was arrested as well. Those arrested in "Operation Meth Merchant" suffered many indignities, including refusal of jail personnel to recognize or respect any cultural or religious dietary restrictions of some of the defendants. M.P., through counsel, continued to maintain her innocence. It was determined that while the van belonging to M.P. and C.P. was indeed at the targeted location on the date alleged, it had been brought to that location by an employee of the couple's security camera business. The actual store owners had contracted with the couple to install security equipment in the store. Neither M.P. nor her husband C.P. had any other interest in the targeted store, other than as a vendor for the contracted security equipment, which was being installed by an employee. The defense also provided information in the form of an alibi defense that at the moment the government operative was alleging M.P. was behind the counter at the convenience store in Fort Oglethorpe, Georgia, she was actually an hour's drive away in Cleveland, Tennessee, picking up one of her young children from daycare. M.P. was the first of many of the so-called "Operation Meth Merchant" defendants to be vindicated by revealing alibi defenses. In fact, on the dates alleged by the operative that her husband C.P. had been behind the store counter, his passport proved he was on a long trip to his native India. M.P.'s successful alibi defense caused much more scrutiny of many more of the cases of the operation, and many more were dismissed. Until her arrest, M.P. had never spent one night away from her children. Her case was dismissed.

Criminal defense

State vs. J.W. (03CR00573), Catoosa (Georgia) Superior Court

Jun 24, 2005

OUTCOME: Jury: Not Guilty (Cts 1,2,3, and 5); Guilty (Ct.4)

J.W. was charged with (1) Murder, (2) Felony Murder, (3) Aggravated Assault, (4) Concealing a Death, and (5) Possession of Firearm during commission of a crime. The defendant J.W. was accused of the ... murder of a cousin who was acting as a caretaker for the defendant's elderly and increasingly senile father, and of then ultimately disposing of the victim's body first in Tennessee, then in a National Park in the Appalachain Mountains in North Carolina. The defendant had admitted to taking the dead body of the victim out of the jurisdiction and trying to destroy and hide the body in two different places in Tennessee and North Carolina, but denied the murder. The defense was that despite all of the incriminating evidence and actions of the defendant in trying to get rid of the evidence of a murder (the dead body of the victim), there was not sufficient evidence that he actually killed the victim, and that the defendant had been acting to protect his elderly father after another relative suggested to him that his elderly father had committed the murder. There was testimony by a key state witness, developed under cross-examination, that left open the door of possibility that the very (uncharged) relative who implicated the defendant was actually responsible for the murder. The jury returned verdicts of Not Guilty on Counts 1, 2, 3, and 5. The Defendant having admitted his guilt in Count 4 (Concealing a Death)before and throughout the trial, he was convicted of that count and received a sentence of ten years.

Criminal defense

State vs. E.R. (04CR13279); State vs. T.R. (04CR13328), Dade (Georgia) Superior Court

May 12, 2005

OUTCOME: Not Guilty, Not Guilty (Jury Verdicts)

E.R. and T.R. are respectively father and son from a respected family in Northwest Georgia's Dade County. While walking up to inquire as to why Dade County Sheriff's Department cars were at some nearby ... rental apartments that he owned (a domestic call that turned out to be made on behalf of a person with a relative in the Dade Sheriff's Office), E.R., who had serious health problems, was thrown to the ground and charged with felony obstruction of an officer. When his son T.R. went to the Dade County Jail to ascertain the condition of his father, he was maced, thrown to the ground and arrested with his own charge of felony obstruction. Neither man had offered any violence or obstruction. The defense suggested throughout the trial that there is rampant use of steriods among law enfocement officers in the region, and that steriod use is associated with emotional instability in the form of anger and violent outbursts in the user. There was also evidence in the form of dash-mounted cameras that helped the defense show the actions of the two defendants were understandable and were unjustifiably met with force and arrest. Despite a motion to sever defendants (the incidents took place in different locations at different times of the same day), the defense was forced to have a joint trial with both defendants together. This probably turned out for the best, however, in that the jury could observe a pattern of behavior on the part of the chief state witness and "victim" in two separate incidences of overreaction. The jury acquitted both defendants.