Cobb County judge considers overturning guilty verdict using 'rare' 13th juror statute

COBB COUNTY, Ga. - A Cobb County man found guilty last week of concealing his girlfriend’s death could have the jury’s verdict overturned by the judge before sentencing.

The family of Hailey Johnson, the victim, fears the judge may invoke a statute that would allow him to override at least part of the verdict.

The news left Hailey’s mom in shock.

"My heart sank, I was devastated," said Barbara Johnson.

Hailey's death around Christmas in 2022 remains a sore subject for her family, but her tragic loss came back front and center during her boyfriend’s trial last week as he faced several charges including concealing her death.

"Court was brutal. You have to hear, as a family, things you never want to hear about a loved one," Barbara said.

The trial lasted four days in a Cobb County courtroom before Barbara says a jury found Brooks Cleary guilty of all the charges he faced. The verdict was a long time coming for Barbara, who says her daughter died after being shot in the head.

Hailey Johnson, Brooks Cleary

"It gave us peace that, yes, maybe she may get justice," she said. "That's what we promised her, and then immediately the judge took that away."

Barbara says after the verdict was read, Cobb County Superior Court Judge Jason Marbutt announced he was considering acting as the 13th juror to override at least part of the verdict.

Cobb County Superior Court Judge Jason Marbutt

Georgia’s 13th juror statute gives judges the power to essentially throw out a jury’s guilty verdict if they believe the jury got it wrong, but Barbara says the judge has not revealed his reasoning.

"The judge can go directly against the jury and undo what they have done and get a new trial," said Tom Church, a Georgia trial lawyer.

Church is not involved in the case, but says the statute is not used often.

"It's very rare for a judge sitting alone to go against what a jury has found," he said. "It never happens, and that's why when it does happen, it's usually because there's something that's very unusual or exceptional about the case."

Barbara says Judge Marbutt has not said exactly what he was going to do, but a hearing is set for Wednesday.

"What is the point of having a jury if the judge can just come by and say, 'I don't really like what they said, so we'll change that,'" Barbara said.

Barbara Johnson

The hearing is set for Wednesday afternoon at the Cobb County Courthouse.

FOX 5 reached out to the Cobb County District Attorney’s Office but was told they cannot comment on pending cases. We also reached out to the defense attorney but did not hear back.