Henderson case could be dismissed, re-indicted

All parties to the case attended a pre-trial hearing at the Towns County Courthouse on Friday, April 24, to hash out multiple motions related to the case, including a motion to quash the indictment that Henderson’s defense team filed in January.

Before Judge Rich could hear arguments on the several outstanding motions, the specially appointed prosecutor, Enotah Circuit District Attorney Pro Tempore Frank Wood, introduced a “Motion to Enter a Nolle Prosequi.”

Filed just that morning, the new motion features the state’s request to dismiss Henderson’s indictment, which the defense has contended for months contains multiple procedural errors that make the seven criminal charges against the sheriff invalid.

As announced in the hearing, Judge Rich will be taking some time to review the relevant Georgia statutes and case law in deciding the matter of the nolle prosequi, and no timeline was issued regarding when he would reach a decision.

If the judge grants the state’s motion – which both parties want, just on different timelines, discussed below – all other motions become moot, as the case simply goes away, which is why Judge Rich canceled potential motion hearing dates scheduled this week as he considers the request.

Again, granting the nolle prosequi wouldn’t clear Henderson of further legal proceedings given Wood’s intention to seek a superseding indictment from a different panel of grand jurors, a process that may or may not be successful in re-securing charges.

Henderson has pleaded not guilty in his indictment for five felonies and two misdemeanors pertaining to the previously reported Dec. 13, 2024, roadside altercation involving himself and Hiawassee Police Officer Jose Carvajal, the latter of whom also attended the hearing Friday.

Wood’s decision to file the nolle prosequi was in direct response to part of the defense’s initial motion to quash that indictment; Henderson’s team has also filed a supplemental motion to quash.

The motions to quash allege multiple fatal defects in the grand jury process that resulted in indictment. The state has focused on just one of those perceived defects as the reason behind its motion to drop the October indictment: the inclusion of a non-resident grand juror.

In going through the grand jury proceedings following the indictment, Henderson’s attorneys learned that one of the grand jurors was empaneled in Towns County despite that juror’s physical residence being located in Clay County, North Carolina.

Georgia law requires that a person be a resident of a county for six months prior to being considered for grand jury selection, and since the juror in question did not meet the residency requirement, the defense believes the juror was not legally qualified to serve in Towns.

Wood conceded that a separate investigation by the prosecution revealed that “not one inch of (the grand juror’s) property is within the territorial boundaries of the State of Georgia.”

But he pointed to a separate Georgia code section to argue that the contested juror had lawfully served because the juror has a Georgia driver’s license, is registered to vote in Towns County, “and other things as well,” thereby satisfying the legal requirements to be included on the Master Jury List.

And while Wood said he feels confident the state could proceed with the October indictment, he contended in his motion that doing so would potentially result in more delays, as the residency concern might cause “protracted litigation over a single issue that clouds the integrity of the indictment.”

That’s why he decided to enter the new motion on Friday, he said, with a follow-up attempt at a superseding indictment.

But “in the interest of justice,” Wood asked the judge to take the state’s motion under advisement while postponing a decision on the matter until after the prosecution has a chance to present the superseding indictment next month, potentially alleviating “all kinds of issues,” he said.

“The first thing being, when the Georgia Bureau of Investigation worked this case, no original arrest was made,” Wood said, adding that it was only after the indictment succeeded last year that a bench warrant was issued, resulting in Henderson being booked into jail on Oct. 27.

Wood explained his belief that, were the judge to grant the nolle pros too early, Henderson might face re-booking if the superseding indictment succeeds, as the probable-cause finding of the first grand jury would disappear since “that case will no longer exist if the court signs that today.”

“But if the court waits until that superseding indictment is in place, then at that point, your honor, I believe that speeds up this entire process,” Wood said. “I believe that could avoid all of that. We are asking the court for, strictly, the cleanest and most efficient path forward.”

Representing Sheriff Henderson, Hiawassee-based Attorney Larry Sorgen took issue with the state claiming expediency as a priority, asserting that prosecutors had been dragging their feet to that point.

He highlighted the fact that Wood waited until the morning of the hearing to address the motion to quash that had been outstanding since January, arguing further that the state was now seeking to put things off even longer to fix the problems with its case as his client continues to suffer.

“We have our witnesses here – if they want to withdraw their motion, we’re ready to go forward on all of our merits to quash this indictment,” Sorgen said. “But if they choose not to, fine; give them what they want. Dismiss the case.

“If they want to seek another indictment, they have every legal right to do so, and they will follow the legal procedures to do so. But that’s their burden; it’s not the court’s burden.”

Addressing the issue of delays to date, Wood told the judge that the prosecution had needed time to prepare for the various motions, apologizing “that it has taken so long to get this motion to the court.”

He pointed out that the defense took a couple of months from the time of indictment to file its initial motion to quash, so he felt it reasonable that the state would also require a multi-month period to do its own investigation and preparations.

Wood said the prosecution was prepared to argue all outstanding motions, including the merits of the other defects alleged in the defense’s motions to quash.

But he stated that, ultimately, his goal was “to get this case tried as fast as possible,” which in his opinion would be best accomplished by giving him time to seek a superseding indictment to eliminate the primary issue of dispute.

“I know that bringing this motion to the court and presenting a superseding indictment does delay that slightly,” Wood said. “But it’s the state’s contention, your honor, that that delay is far less than the delay that we would face if we proceeded with the motion to quash.”

Aside from an upcoming specially set trial involving a child death, Wood told the judge that, if he can get a true bill on a superseding indictment in May, he would make this case a priority amid the regular caseload in his home circuit, the neighboring Appalachian Judicial Circuit.

Another reason the timing of a nolle pros ruling is important: if the state’s motion to voluntarily dismiss the October indictment is granted before Henderson can potentially be re-indicted, all criminal charges against the sheriff would go away – if not for good, then at least for a time.

Citing state law, Sorgen argued that dropping the case would trigger Henderson’s immediate reinstatement to his full duties as sheriff and entitle him to backpay for the time he has spent suspended without compensation, and Sorgen asked that the judge consider the issue.

Wood expressed skepticism that the court has the authority to address that situation given the suspension originated outside of the Superior Court’s jurisdiction, and he cited another portion of state law highlighting the potential need for the Georgia Attorney General and/or the Governor’s Office to weigh in on the affair.

He contended that the suspension/reinstatement issue was yet another reason for the judge to delay a ruling on the state’s motion.

For reference, Gov. Brian Kemp originally suspended Henderson via executive order on Oct. 21, 2025, about a week before his indictment, and the matter of the sheriff’s potential reinstatement in light of a nolle pros decision remained outstanding at press time.

In closing Friday, Judge Rich said he would be reviewing the code sections and case law cited by the state, as well as the code sections cited by the defense, in deciding what to do with the nolle pros motion.

“So, I am going to take it under advisement for right this second, and we’ll just proceed whenever I rule or whenever there is a subsequent movement by the parties,” Judge Rich said. “I appreciate y’all being available, and we’ll handle all the dates for next week (being) canceled.”

Word had gotten around before the hearing that the case was going to be dropped, so it wasn’t the outcome Henderson and his team were hoping for. But afterward, Sorgen told the newspaper that the sheriff is doing well, remaining confident that he will be cleared of all wrongdoing.

“Whatever happens here, we’re ready to go to trial on the lack of the merits of this case,” he said.

Sorgen clarified that if the judge rejects the state’s nolle pros request and the case continues, then the motions that were scheduled to be heard Friday would be subject to one or more rescheduled motion hearings.

If the case goes away, however, Sorgen insists that the sheriff, “by law, is automatically and immediately reinstated.”

Sorgen also said that if Henderson is reinstated but comes under another indictment, there would be a process to determine whether he is re-suspended, presenting a scenario in which Henderson could potentially retain his full role as sheriff amid ongoing criminal proceedings.