concurring specially.
I concur fully in the majority opinion. I write separately to express my concerns about its recitation that we are to apply a “flagrant abuse” standard of review.
I do not dispute that it is an accurate recitation of our law. It follows a line of cases going back to a decision authored by Justice Joseph Rucker Lamar, who later served on the Supreme Court of the United States, Jernagin v. State, 118 Ga. 307 (45 SE 411) (1903), and through the case which the parties agree to be the leading authority in the present context, Ayala v. State, 262 Ga. 704 (425 SE2d 282) (1993).
Nevertheless I question what it means to say that we will reverse only for flagrant abuse of discretion. The most obvious interpretation is that we will affirm in cases of merely ordinary abuse of discretion. But that interpretation seems to me problematic.
Such an interpretation would be at least in tension with our Supreme Court’s opinion in Ayala, which reaffirms that a trial court “must explain its reasons for denying bond to assist appellate review,” *371262 Ga. at 705, reaffirms that “[i]n this state, unlike many other states, the presumption of innocence has always remained with the person accused of a capital offense, even during the trial,” 262 Ga. at 706, and holds that while “the defendant has the burden of coming forward initially with evidence,” 262 Ga. at 705, the state nevertheless “has the burden of persuasion in convincing the superior court that a defendant is not entitled to pretrial release.” 262 Ga. at 706. And a rule requiring us to affirm in cases of less-than-flagrant abuse of discretion would lack the principled justification underlying the rule that plain error review is limited to obvious error. See Guajardo v. State, 290 Ga. 172, 175-176 (4) (718 SE2d 292) (2011).
Decided May 29, 2014. Thomas W. West, for appellant. Daniel J. Porter, District Attorney, John A. Warr, Assistant District Attorney, for appellee.Review for abuse of discretion is necessarily deferential: discretion is authority to choose. And our case law frequently reaffirms that the discretion afforded our trial courts is broad. See Krause v. State, 286 Ga. 745, 749 (5) (691 SE2d 211) (2010) (trial court has broad discretion to grant or deny motion for severance); Ogletree v. State, 300 Ga. App. 365, 366 (685 SE2d 351) (2009) (absent prosecutorial misconduct, trial court has broad discretion in deciding whether to grant a mistrial); Christopher v. State, 262 Ga. App. 257, 264 (6) (585 SE2d 107) (2003) (trial court has broad discretion in regulation and controlling the business of the court). So it seems to me that “flagrant” in this context is simply an intensifier — an exercise in lily gilding better avoided.