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No trial date yet in Gatto's death
Attorney claims Georgia law is unconstitutional
NEW spencer mug
James Grant Spencer

Almost a year and a half after 18-year-old Michael Gatto was killed in an attack by a 20-year-old bartender, attorneys are still hashing out details, with no solid trial date in sight.

On Monday, David Wolfe, an attorney from Atlanta who is representing James Grant Spencer, the man charged with aggravated battery and felony murder in Gatto's death, sought to have a Georgia law ruled unconstitutional because it does not apply to his client and therefore could lead to possible sentencing that may be "cruel and unusual."

Spencer, now 21 and of an Olympic Boulevard address, is charged with aggravated battery and felony murder in connection with Gatto's death after the Aug. 28 incident at Rude Rudy's bar, which is now closed

Spencer allegedly physically attacked Gatto during an incident at the bar, where Spencer worked as a bouncer. According to a post that appeared on Rude Rudy's Facebook page but which was removed shortly after it was posted, Spencer was not on duty at the time of the attack. The bar closed permanently after owner Jonathan Starkey surrendered his alcohol license prior to a scheduled hearing before City Council in September regarding the incident and alleged alcohol violations.

Wolfe cited what he said is a relatively new amendment to a Georgia law, Official Code of Georgia Annotated 16-5-1, which reads, in part: "A person commits the offense of murder in the second degree when, in the commission of cruelty to children in the second degree, he or she causes the death of another human being irrespective of malice.

"A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life. A person convicted of the offense of murder in the second degree shall be punished by imprisonment for not less than ten nor more than 30 years."

Wolfe argued that Spencer should not have been charged with second-degree murder because the victim was not a child, so there were no charges of second-degree cruelty to children. The law, which provides for a lighter sentence for second-degree murder, does not apply, so the possibility of a lesser sentence and the ability to argue Spencer's case shows disparity in the law, he said.

While felony murder provides for a sentence of life in prison with or without parole, a second-degree murder charge could result in a sentence of 10-30 years in prison.

Wolfe disputed the felony murder charge, which implies a defendant intended to kill, and claimed he plans to pursue Spencer's defense by arguing he was criminally negligent but had no intent to kill.

Ogeechee Judicial Circuit Assistant District Attorney Daphne Totten countered Wolfe's arguments.

"Wolfe is essentially trying to rewrite facts of our case," she said. "Michael Gatto received several blows with the fist of Mr. Spencer. This is not a criminally negligent act."

If Gatto had been 16 at the time of his death, the charge against Spencer would not have been second-degree cruelty to children, which is specified in the Georgia law Wolfe cited, but a more serious charge, she said.

After lengthy discussion about whether O.C.G.A § 16-5-1 is constitutional, Bulloch County Superior Court Judge William Woodrum stated he would further address the motion in January.

Spencer remains in the Bulloch County Jail without bond, awaiting trial.

Herald reporter Holli Deal Saxon may be reached at (912) 489-9414.


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