Grant James Spencer, who has been waiting two years in the Bulloch County Jail, is slated for a jury trial the week of Oct. 11 on charges of murder and aggravated battery in the death of Michael Joseph Gatto.

Both Spencer and Gatto were Georgia Southern students when Gatto, 18 and a newly arrived freshman from Cumming, died after a confrontation at the Rude Rudy’s nightclub in the University Plaza shopping center the night of Aug. 27-28, 2014. Spencer, then 20, worked as a bouncer at Rude Rudy’s, but court documents say he was off-duty at the time.

“The most horrible part about the whole case is that it’s a tragedy for two families,” L. David Wolfe, one of Spencer’s defense attorneys, said Friday. “Two young men’s lives have been destroyed and one of them has been lost, so it’s a terrible, terrible situation.”

Much of the attention soon after Gatto’s death focused on Statesboro’s bar scene and the role of underage drinking. Rude Rudy’s business owner Jonathan Earl Starkey surrendered his alcohol license to the city soon after the incident, and the club closed. Gatto’s parents lobbied for passage of a Georgia law, effective this year, that makes 21 the minimum age for bouncers and, with some exceptions, prohibits customers under 21 from entering bars that serve little or no food.

Arrested by Statesboro police later on Aug. 28, 2014, Spencer was formally denied bond by Ogeechee Circuit Chief Judge William Woodrum Jr. after a hearing that October. The bond hearing and subsequent motions and hearings have created a pretrial record more than 500 pages long.

“In this particular case, there have been various motions that were filed by the defense that had to be addressed by the court before we could be ready for trial,” said Assistant District Attorney Daphne Totten, assigned to prosecute the case.

‘Felony murder’

The indictment returned by a Bulloch County grand jury in November 2014 charged Spencer with murder during the commission of a felony, with aggravated battery being that alleged felony. So the kind of murder he is accused of is so-called felony murder, which doesn’t involve the element of premeditation required for malice murder, the other kind of murder recognized under Georgia law.

But if a defendant is convicted, the potential penalties for both kinds of murder are the same: life with the possibility of parole, life without parole, or the death penalty. Ogeechee Circuit District Attorney Richard Mallard is not seeking the death penalty for Spencer.

But the fact that Georgia law appears to allow no other alternative to a life sentence if Spencer were convicted of the murder charge has been the focus of some of the defense’s efforts to this point.

Spencer’s attorneys, Wolfe from Atlanta and Matt Hube of Statesboro, filed motions in Bulloch County Superior Court seeking to have Georgia’s life-without-parole provision thrown out and also challenging the state’s felony murder law as unconstitutionally vague. Woodrum rejected these motions. But he referred his decision on the felony murder statute for immediate review by the Georgia Supreme Court, which unanimously denied the request in April.

If there were a felony murder conviction, Spencer’s attorneys could still raise the question of the statute’s constitutionality on appeal, Wolfe said.

Stories, not evidence

In the investigation, the Statesboro Police Department obtained video from Rude Rudy’s that is said in court documents to show the confrontation.

One version of events, cited by Spencer’s lawyers in a document supporting one of their motions, was that two patrons told bartenders they saw Gatto steal tip money from near the cash register. The bartenders told Spencer and other “off-duty” bouncers, and when they approached and Gatto turned toward Spencer, he hit Gatto, who fell to the floor, the document states.

However, Statesboro police, in their affidavit for obtaining a warrant, alleged that Spencer punched Gatto numerous times. He died of a skull fracture and blunt force trauma, the indictment asserted.

But none of this is evidence. Judges instruct jurors to ignore anything they have seen or heard in news reports or elsewhere and to pay attention only to what is presented in the courtroom.

Spencer’s lawyers cited “pervasive, speculative, misleading and inflammatory media coverage,” in a recent motion for a change of venue to another county. No ruling has been filed on that motion. Judges usually rule on change of venue requests after jury selection has been attempted.

Court records also show that the defense attorneys filed a Georgia Open Records Act request Sept. 8 with the city of Statesboro seeking extensive documentation of the city’s enforcement of alcoholic beverage laws, its actions against Rude Rudy’s and related matters.

Headed to trial

Woodrum scheduled jury selection for Oct. 11 with the trial to begin immediately after.

The Georgia Board of Pardons and Paroles states on its website that someone convicted of murder now, if sentenced to life in prison with parole possible, will first be considered for parole after 30 years.

The defense attorneys sought a plea deal for Spencer but have not gotten one from prosecutors, Wolfe said.

 “We’ve been amenable to that all along, in fact have suggested it all along, but they’ve not been receptive to our overtures,” he said.

Herald reporter Al Hackle may be reached at (912) 489-9458.