Transcripts For MSNBCW Chris 20240704

Trying to put the d. A. And her defense team on defense. The accusation is that fani willis had an improper relationship with one of her prosecutors and stood to benefit financially from employing him. The subsequent testimony has been salacious at times, heated at others, especially when willis herself took the stand a couple of weeks ago to call the whole investigation bs. And while the alleged conduct is dominating the headlines, it doesnt change the underlying allegations in the original case, which is that more than a dozen people including the former president , have been accused of coordinating to try and illegally overturn the results of the 2020 elections in georgia. Joining us now, host of the Katie Phang Show right here on msnbc, katie phang. We are watching the courtroom. Judge mcafee is sitting down. Katie, give us the initial state of play. Reporter so today are going to be the arguments, you can call them the closing arguments if you want, katie, because this has become a trial within a trial for a case that doesnt even have a trial date. This evidentiary hearing spanning a number of weeks, reopening evidence earlier this week in order to have the former divorce attorney for nathan wade, a man by the name of Terrence Bradley to have to take the stand to answer more questions by the defense. The state notably not having any for mr. Bradley. Terrence bradley was promised to be the, quote, star witness for the defense to talk about the timing of the nathan wade, fani willis personal relationship. However, bradley refused to deliver for the defense, so now scott mcafee taking the bench today to listen to these arguments from both sides, each the state and the defense having the opportunity to convince judge mcafee that the law in this case has been met. Remember, this is the burden on the defense, katys, the defense has to prove that under the georgia law theres a Conflict Of Interest. Now this case has gone towards was perjury committed by nathan wade and fani willis, and so unfortunately at this point, i think the judge is going to have to address whether or not that has been committed and whether that is enough to be able to take off fani willis from this prosecution. All right, so we, again, are watching the lawyers who are there for each of the defense for each of the Defense Teams are there, theyre introducing themselves. Theres seven defendants there in total, multiple lawyers for many of those defendants. This could be quite a few hours of arguments. Lisa rubin is also with us, Andrew Weissmann is also with us there at the table with me. Lets talk quickly about georgia law here and what needs to be proven. An article written by our friend joyce vance and a couple of others talks about how georgia law, Georgia Law On Conflict Of Interest does not apply here. I agree with that, and theres sort of a legal component to this, and theres a factual component, and the unfortunate part is whether i agree, you agree and joyce agrees. By the way, disagreeing with joyce is always a dangerous thing. This is one where the judge has said he wants to hear it so guess what, he gets to control. He said that the thing that is concerning to him and why hes having the hearing is the money. Its not just having an affair. He doesnt thats not what hes focusing on. He said im interested in knowing essentially whether these two people went dutch. Thats how sort of minute this is in terms of where were heading. As you said, it has nothing to do with the underlying case. But he said thats something hes concerned about it. So i think thats what were going to hear argument on. Its kind of hard sometimes to keep track of what the allegation is here. I have to every time i sit down to do this story, i have to remind myself what is she accused of doing that would make it so that she would not be able to prosecute this case . And its having an improper relationship and its benefitting from that relationship. In terms of whether they went dutch, there is evidence that the defense not defense team, the prosecution team, which is acting as the defense, d. A. Williss team wants to present from a guy who works at napa who says he saw fani willis pay a bill with 400 cash, presumably he remembers because almost nobody uses cash these days. So theyre trying to present that evidence in this case. Remind me, even if they did all of the things that theyre accused of doing, why would that affect the original prosecution of these originally 19 codefendants for trying to overturn an election. Thats a good question. Even if you accept the premise she has financially benefitted from her appointment of her boyfriend nathan wade as a special prosecutor, you have to go one step further for georgia law to see a disqualifying Conflict Of Interest. You have to show that the defendants themselves were disadvantaged somehow by the appointment of nathan wade while he was also fani williss boyfriend and paying for trips. And im not sure, katy, even if all of the allegations here are true that you can cross that threshold and find that she should be disqualified. All right, so the judge is now talking about Cell Phone Records, which the defense team wants to present saying that wade and willis were linked more closely and before that she hired him as a special prosecutor. Lets listen in. Would permit me so the court would understand where im coming from, and i believe also mr. Cromwell also has a proper for a witness that he has talked with and does have an oral weve got this is the first ive heard of it. Are these things that have been discussed or shared with the state at all . No, your honor. I literally my communication with this particular witness occurred this morning at about 10 10 along with mr. Chris know who was on the call with me. What the witness would say, who the witness is, a brief summary of what this particular witness would testify to in the event the court allows for evidence to be reopened and on the record i would state that on behalf of my client, mr. Shaeffer, we do want the record to be reopened so that the court could hear if they want to bring in someone from california, let them bring them in, and we believe that the court might want to hear the proffer and the evidence we are prepared to proffer today. To that point, mr. Cromwells additional evidence in my mind in the interest of fair notice to the other side, i wouldnt i wouldnt want that to be part of the argument today because the state has no idea what youre about to say, and i think the purpose of a proffer in large part in this role and in this context is having the at least having the ability to make those initial counterarguments. Now, i dont think that would prevent you from acting todays hearing, if you want to file it, make it part of the record, i think that both parties have already elected that they are willing to use that mechanism, but just for today kind of showing up now without having shown this to the other side at all, even this morning, i dont think that would be fair. I did not intend to use the proffer in the illegal argument. Sure. I just wanted the court to be aware that we do have an oral proffer, we can file it, and we can supplement the record and file it for the courts consideration literally hot off the press. Sure. As we print it out and okay. All right. Well, mr. Cromwell, is there anything you wanted to add to that . No, your honor. Mr. Abaa dee, you want to add to that . I dont know what it is, i dont know how to add to it, no. All right. Just anything on a procedural perspective . I mean, from a procedural perspective, i would submit to the court as youve said multiple times, evidence is closed. This is beyond the scope of your honors ruling on tuesday. Tuesday. So i guess wed object at this point. Just to explain whats going on here, initially they were talking about Cell Phone Records, and then they went to this proffer of another witness. The defense wanted to introduce a surprise witness that they said had bearing on this case, and they used the prosecution wanting to bring in the person from napa who i mentioned a moment ago saying that they saw fani willis pay with 400. Theres a reason if they bring them in, well bring this person in and well be able to reopen the evidentiary part of this hearing. Lisa rubin and Andrew Weissmann are still with me. So judge mcafee said youre opening another can of worms here. You can file motions. You can put it all into evidence, and then both sides can reply. Essentially you didnt give notice to the other side, so you cant just spring this on them, so if you want to at the end of this hearing make some application, theyre going to make some application, youre going to make some application. I sort of read that as you want to put it in the record, thats fine, but im making a ruling today. Yeah, he wants to get this over with. And hes closed the evidence already. Thats why these are closing arguments. So these belated efforts by both sides to lob in additional evidence are probably not well taken by judge mcafee who i believe is tired of this at this point and would like to make a ruling and either get on with it or allow the prosecuting counsel in georgia to appoint a different prosecutor. Lets say she does get disqualified. Lets say judge mcafee says, listen, this doesnt look great. I think she shouldnt be in charge of this case any longer, thats her entire team. Her entire office. It seems that it could potentially move to Fulton County not Fulton County, to dekalb or cobb county, something pretty close, hold on, im listening. I think were about to hear from ms. Merchant, who is one of the lead lawyers hear for the defense. This is not ms. Merchant, clearly. John merchant, another merchant. This is her husband. Her husband, hello. Also representing Michael Roman who initially brought this allegation. Lets start lets go back in, lets listen. Just by way of road map to give you some idea about the allocation of time and what im going to be covering, ive been charged with talking to your honor about the conflict issue and the appearance of the conflict and what we believe the evidence to show on that issue. Mr. Sadow, mr. Gillum will be talking more about the forensic context, ms. Williss Church Speech, and the book that she gave several interviews for. I wont be discussing any of those issues, so if youd like to ask me, certainly i can try to address them. Thats going to be the focus of their presentation, and then towards the end, other folks may have issues specific Type Arguments either in followup to mine or the Forensic Misconduct. Those are the two lanes were going to be covering. Im going to do the conflict piece of it for you. On that issue, your honor, this is a matter of First Impression in georgia. I cant find a single case thats been published by the Court Of Appeals or the Supreme Court that is based on these facts. There are, of course, a number of different Appellate Court cases that deal with conflict related issues and more importantly appearance of conflictrelated issues and some of those are base instead state law. Some are based upon the sixth amendment right to due process thats implicit in all of what were doing here today. I want to remind the court that were here today on this motion to disqualify d. A. Willis and her office because of her judgment, frankly. She is supposed to be disinterested under the sixth amendment, and shes anything but that. The fact that these proceedings have taken this long through the convoluted way weve made it here today explain that. So as i present my arguments, i want the court to understand that this court represents the guardrails for the sixth amendment in this context, and ms. Willis has already been disqualified once. So i would encourage the court to remember what judge mcburney did in his order disqualifying, the same argument was made in that case as to whether or not there needs to be an actual Conflict Of Interest or whether or not the appearance of a Conflict Of Interest might be sufficient under the facts. I want to make clear to the court that the law in georgia suggests and is very clear that we can demonstrate an appearance of a Conflict Of Interest, and that is sufficient. There is im going to be candid with the court. There is a Supreme Court decision from 1996, and then there are two court of appeal decisions after that that deal, frankly, in some dicta that suggest that an actual conflict is required, but the Supreme Court of georgia since those decisions came down has made quite clear that the appearance of a conflict standard still applies, and the reason thats important is i think under the sixth amendment, which is where were at, in order to preserve the defendants rights under that under that provision, and under corollary provisions of georgia law, youve got to consider the appearance of a conflict. And the reason why the appearance of a conflict is so prescient here is because if this court allows this kind of behavior to go on and allows d. A. S across the state by its order to engage in these kinds of activities, the entire Public Confidence in the system will be shot. And the integrity of the system will be undermined, and so with those sort of Public Policy and constitutional principles, i wanted to turn to the law in georgia on disqualification. And you know, im going to give you the law, and im going to talk about the facts and how they apply to the law at the end. If you want to talk about the facts earlier, jump right in and ill be happy to do that. Im sure your honor is very well prepared and probably knows all the law that im going to say to you. To give the skeleton outline, the original case that deals with Conflict Of Interest from the georgia Supreme Court is williams v. State, 258, and there are basically two messages by which you can disqualify District Attorney. One of them is a Conflict Of Interest, and i will suggest to the court, that doesnt mean an actual conflict. That can mean an appearance of conflict as well. Importantly in the williams case, footnote 4, i think this is important for the courts analysis about the facts, the court said there is no clear Demarcation Line between Conflict Of Interest and Forensic Misconduct and given ground for disqualification of the prosecutor might be classifiable as either. I think thats important because we have facts that fitin both boxes. If the state stands up and says theres no conflict, that doesnt mean it doesnt apply to the are Forensic Misconduct. Typically Forensic Misconduct relates to statements the prosecutor designed to impugn the character of the defendant before trial and to affect the jury pool, which we have hear, which im not going to discuss. But the facts that we have here very much relate to that issue and crossover. Importantly, and i think this is important for the courts consideration of what effect the courts ruling may have, if you deny this motion, theres a good chance if its reversed that we would be granted a new trial. So that means were going to have to do this all over again. In Amusement Sales Versus state, Georgia Appellate 727. Thats a case that cites whitworth, the court said if the assigned prosecutor has acquired a personal interest or stake in the conviction, the trial court abuses this discretion in denying a motion to disqualify him and the defendant is entitled to a new trial. New trial even without a showing of prejudice. So that means if we show the court today i think we have through the proceedings today and before that ms. Willis has developed a very personal interest in this case and your honor denies this motion, were coming back all over again if the Appellate Courts say you were wrong. So what is that personal interest . The personal interest can be theres no definition of that under georgia law, and it could be oa personal financial interest. It could be a personal interest related to bias against a particular defendant, which sort of falls into the Forensic Misconduct box. But we have here a very personal financial interest thats been laid out in terms of money received by ms. Willis as a result of the scheme that she set up. To get to the issue of the personal interest in the context of an appearance, i think thats important. I do want to suggest to the court that there are a number of cases that post date this actual Conflict Of Interest language that suggests in some of the cases from the 90s that you have to Pay Attention to what this looks like to the public, and i agree with all of the law and im sure the states going to stand up here and say, it cant be speculative or a conjectural type of personal interest. We dont have that here. We have something very concrete. As judge mcburney put it, actual and palpable, not speculative and remote. Thats exactly what we have here. Weve demonstrated through the testimony of the witnesses, some of whom impeached themselves, that we have a very personal interest. And the seminole United States court case that deals with prosecutorial impropriety is young v. U. S. Its 481 u. S. 787 case, in that case its the opportunity for conflicts to arise that created at least the appearance of impropriety and thats the case that requires that the prosecutor be disinterested. Since a scheme injecting a personal interest, financial or otherwise into the Enforcement Process may bring irrelevant and impermissible factors into the prosecutorial decision. Now, there are a number of georgia cases that sort of repeat that theme, reeves v. State 231, Georgia Appellate 22, thats a 1998 case, stated a potential Conflict Of Interest existed in the appearance of impropriety existed. Davenport, this 1981 case that was decided seven years before williams. When there is at least the appearance of impropriety a defendant is denied fundamental fairness in the states prosecution of the charges against him or her. There are also rules that govern prosecutors, lawyers in general are bound to preserve and avoid even the appearance of impryty. Thats brown v state, 256 Georgia Appellate, 603, 2002. Head v. State, the prosecutors close personal relationship with the victim in the case may create at least the appearance of a prosecution unfairly based on private interests rather than one properly based on vindication of public interest. Aba Criminal Justice standards for the Prosecution Function standard, a prosecutor should avoid appearance of impropriety in performing the Prosecution Function. The prosecutor should not permit the prosecutor professional judgment or obligations to be affected by the prosecutors personal, political, financial, professional business, property or other interest or relationships. So the rules that govern her in her own profession say this is wrong because shes developed a financial interest in this case. And at the very least created the appearance of unfairness towards these defendants by setting up a prosecutorial relationship with her boyfriend that shed been dating for two years according to the testimony. Before i move, your honor, to the specific facts. You asked whats personal interest, and i think frankly as i was trying to figure this out, i think you know it when you see it. Its just like in the concurrence and jack abell las versus state of ohio, the Supreme Court case from 1964. Justice stewart said i know when i see it talking about obscenity. I think you know it when you see it. I think theres enough facts in front of you that you know it when you see it, and so i think that governing principle helps enlighten some of the facts here. And also, i think its not just financial and mclaughlin v. State, i think the courts very familiar with that case, 295, georgia 609, 2014, the Supreme Court essentially said that because the acting d. A. Had become a witness in the case and developed a personal interest in the case due to his daughters relationship with the victim that he was disqualified. Because he was disqualified, his entire office was disqualified. So turning to the facts of the case, your honor, i think ive got my role is 20 minutes. Ive got about eight minutes left. The relationship, why did we spend so much time on a relationship between these two people . We frankly couldnt care less if they had a personal relationship outside of work. That is not what the issue is here. The issue is that they began this relationship in 2019. They were dating for two years, and then she awarded him a contract where public money either from Fulton County or the state of georgia ended up in his pockets. That decision alone was improper. Whats even more improper is that she and he used that money to go on personal vacations and trips. If your honor will remember exhibits 9, 11, and 12 dealt with the expenditures by wade on trips. If you do the math on that, if you look at what he spent and then you look at the testimony about what was paid back by willis because the cash reimbursement theory, ill talk about in a second, but if you do the math on what he actually paid for and what they testified she paid back in cash, you still have over 9,200. 9,247 to be exact is the amount of money they cannot account for in her testimony. And as your honor will remember, there was no mention of cash in mr. Wades affidavit when the best and first opportunity to raise that issue would have come up is when the state filed their response in his affidavit, that is nowhere to be found in there. The first time we heard about cash was here in this courtroom, and so i think so shes received a personal financial benefit of over 9,200 in this case that she cant account for and the state cant account for, and the reason we cant count for it is they came up with a cash theory. Cash theory only raised before we get into that, let me ask you this, lets say the theory wasnt even there that they had paid it back or that there had been any exchange, should there first be a consideration of Immateriality Requirement . In this jurisdiction its not in this jurisdiction, have you seen that in any other jurisdiction . I havent seen that judge. If it was 6, that would still be improper. Would it be improper where its a per se disqualification if someone buys their boss a stick of gum . Is that per se disqualifying because theres no Materiality Requirement . I dont disagree that it may not meet a Materiality Requirement. I wont say give me a pack of gum is justification for Disqualifying A District Attorney. I think thats part of the issue. I think its a fact based issue by you. Theres a continuum involved here. I think the continuum involves you looking at whether or not on The Grand Scheme in The Grand Scheme of things it violates the constitution. And whether or not theres an appearance of a conflict and the appearance suggests that she actually received a benefit, and we know that she did. They admitted it. We dont have to speculate about that. She said she got a benefit, and she said she paid back certain amounts. So in that regard, your honor, would 100 be enough . I think you have to look at it globally, consider all of the witnesses, consider all the facts. Consider the credibility of the witnesses frankly. Your honor sat here and watched everybodiment i havent spent a lot of time going into the specific testimony. You get to evaluate the credibility of the witnesses as a fact finder and, you know, just just from a legal perspective, though, youre saying we cant just say a dollar amount, look no further. There has to be a totality of the circumstances analysis. I think its fact specific, judge. I dont really want you to pin me down on that. Theres no law on it. I cant give you a straight answer because i havent seen anything like that. I dont and i think if we build a Materiality Requirement into the case law, then youre down a Slippery Slope then because then its going to be the Appellate Courts are going to be deciing is 50 enough . Is 100 enough . So i think its not necessarily the amount of the money. Its the fact that she received it and its not insignificant. And i dont think your order has to say because she received 9,200 shes disqualified. I think if we go back to the 20,000 foot level, wheres the whats the appearance here . Is this fairness to the defendants . Does it appear that she is interested in this prosecution or does it appear that shes disinterested . She took the stand, shes not a disinterested person when it comes to this proceed, but we also argue shes not a disinterested person when it comes to the prosecution as a whole. Im going to leave ill resist the temptation to defend my wife who i believe to be an excellent lawyer and a member of the bar for 20 years in good standing, but i will say this, judge, you dont just evaluate the credibility of the witnesses, you evaluate the credibility of the lawyers, and mr. Abaa dee stood up here in open court in front of National News and in front of the National Public and called her a liar. I need to address that for one minute. These Text Messages that are now part of the record, which now are substantive evidence for you to consider, prove everything that she put in that motion, everything that she tried to elicit from mr. Bradley was absolutely 100 true. Not only was it true, she verified through the witness himself that the motion was accurate before it was filed. So for the state to get up here and impugn her credibility, its not only improper, it violates Berger Versus the United States, which is a case that says the state cant just get up here and make any argument it wants, and i encourage the court to call him out on it when he steps up here. We have to have candor towards tribunal. You cannot lie to the court. You cannot lie to the public, and you cannot lie to the jury, and i think thats what he did. So theres other corroboration of our view that she was in this relationship. I think, frankly, based on mr. Bradleys testimony your honor can separate the wheat from the shaft when it comes it credibility, but mr. Bradley had two chances to correct information that he suddenly developed amnesia about, but he just didnt do it. How does the timing of the relationship impact financial interest . Because its part of the scheme she created intentionally in order to give benefits to her boyfriend. So they had theres a reason why they fought so hard on this, judge. I mean, theres a reason that every single subpoena was objected to, every single questioned with asked mr. Bradley was objected to. The jumping up and down, the obfuscation. Theres a reason for that. They know if your honor niends relationship started in 2019 that the appointment of wade itself was improper, and if that was improper, he had no business as an average citizen along with the fact that he didnt have approval from didnt have approval from Fulton County to appoint him in the first place, that undermines the indictment, creates a structural impairment in the indictment. He had no more Business Being in the grand jury room than i did. So thats what theyre worried about, and the reason why its important for the financial piece, judge, is its how the money ended up going back to her. She put her boyfriend in the spot, paid him, and then reaped the benefits from it. She created the system, and then didnt tell anybody about it. She didnt even tell her dad about it. So i think in The Grand Scheme of things, if youre looking at the totality of the facts. Ive got to sit down here, about two minutes to make room for my cocounsel, if you look at everything put together, judge, they did this. They knew it was wrong. They hid it, and even when they were called out on it, they tried to create an excuse for it by saying it happened after the fact. We know now from the testimony, ms. Yeartytie confirmed. The motion is accurate. And so also i do want to point out theres no paper trail here for the cash. I know that this was i know she and her father both testified that they kept cash on hand, which i mean, keeping cash on hand in and of itself is not a problem, but when youre a public official and youre required to keep track of gifts you receive, then you need to keep track of it. Theres no paper trail, no deposit history, no withdrawal history, no receipts, none of that. So even assuming their testimony could be credible, and we dont think it is, you still dont have enough information to track all that money that she received. And this is just does the lack of evidence fall on the state . Does the lack of evidence fall on the state . Isnt that where burdens come in . Yes, i think they had an obligation to tell your honor, hey, this is where the money went. And they certainly had the ability to do that if they could do it. Since they didnt do it, we have to assume they cant, and if they cant, i just want to remind the court of very important piece of testimony from ms. Willis that i think goes to credibility of all of the officers of the court who testified. She met with wade and they developed in ten minutes after talking about the financial piece, i believe, this cash theory that could not be rebutted. We have no ability to do that. They did and they chose not to do it. So with that, your honor, unless your honor has more questions for me, im going to sit down and turn the podium over to my distinguished colleague mr. Sadow. Thank you, mr. Merchant. Appreciate the courts time. Good afternoon, your honor. Im going to speak to what i would call a subset of Forensic Misconduct, and im going to assume that all the law thats been provided to you in pleadings as well as emails you know you dont need me to tell you what the law is. So i want to just set up how the disqualification and then dismissal of the indictment should take place under the subset of Forensic Misconduct. Romans counsel, mr. Merchant, filed on yan 8 her pleading, her motion to dismiss and to disqualify. We were in court that friday of that week in which i made it known that we, that is president trump, may adopt that motion. I waited to see wanted to see what was going to happen before i did so. That sunday, which would be january the 14th, 2024, d. A. Willis took it upon herself to go to a Historic Black Church in atlanta, having not responded at all to the motion of ms. Merchants client roman, and she made what we now call the Church Speech, and your honor has reference to that. You didnt necessarily want evidence on that, but you know what the Church Speech was. It was videoed. It was clear that ms. Willis had notes. She was reading from notes that she had prepared. It was a calculated determination by ms. Willis to prejudice the defendants and their counsel. How so . By making an issue out of the fact that the person that was challenged in the roman motion was black, without telling the public or the Church Members or anyone for that matter that the reason that mr. Wade was being challenged was not because he was black, had nothing to do with race. It had to do with the relationship that had been alleged and later admitted to by ms. Merchant. Ms. Willis took full opportunity to prejudice the defendants and then comes along later in a pleading and says it wasnt designed or intended to be at the defendants at all or the Defense Counsel, which with All Due Respect is just nonsense. The purpose of that was to get public sympathy, public empathy for what ms. Merchant had already alleged in her motion. Now, that was a violation of the professional rules of conduct. It was a violation of 3. 8g. Theres no question about it. It wasnt in response to anything that was said. It was a public statement, extra judicial for the purpose of make ago comment upon the defendant. It would be in Sfons A Motion that was filed. It wasnt filed in response to a pleading. It was filed in response to a motion, and the motion were allegations made. If ms. Willis wanted to respond at that point, she could have said the facts of the matter. Instead she misstated what the situation was, took advantage of the opportunity, the ethical violation. And the ethical violation makes it clear you must refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused. Can you think of anything more that would heighten public condemnation of the defendants than alleging that Defense Counsel and the defendants were making their motion based on race and religion . Thats as bad as it gets in Fulton County with All Due Respect. Thats exactly, thats exactly what ms. Willis wanted done. And remember, the state still had not responded. So then what we get from the state is we get an affidavit filed as part of their response, and that affidavit says specifically, and the affidavit is mr. Wades, says specifically in paragraph 26 and 27 that the relationship did not begin until 2022. It acknowledges the relationship and says it didnt begin until 2022, and the pleading thats filed, the states pleading, the response indicates not exactly that, but it says there was no relationship as of november 1 of 2021, and thats on page 7. So now we know that timing is the issue because ms. Merchant made it clear that we alleged and had evidence that indicated the timing was before mr. Wade was hired, not after. So the state now has piled an affidavit and a pleading that claims post hiring into 2022, and then mr. Wade, willis testified to the same thing under oath. Ms. Yeartie says it began in 2019. Why would she know . She would know because shes a former friend. The states going to get up here and say you cant believe any Defense Witness because theyre Defense Witnesses and only people that would Tell The Truth would be wade and willis. I suggest to you that thats mott accurate. I suggest that the testimony that mr. Wade gave and ms. Willis gave and im specifically dealing now with the timing issue, without getting into anything else, that that brought forth a true concern about their truthfulness and being what is required of a lawyer in this state, which is candor for the tribunal, and thats 3. 3 of the professional rules. Specifically small a, one, make a false statement, a Material Fact or law to a tribunal. So thats, as i posit it to the court, thats the second ethical violation. And then you also have 8. 4 of professional rules, it says its a violation of the Georgia Rules Of Professional Conduct for lawyer 2, and thats a 4, engge in a professional conduct involving dishonesty, fraud, deceit or misrepresentation. Do you have to find that wade and willis lied, you have to find there is a concern, a legitimate concern based on the evidence in case about their truthfulness, a legitimate concern about the truthfulness, which equates to an appearance of impropriety because once you have the appearance of impropriety under Forensic Misconduct, the law in georgia is clear, thats enough to disqualify. So why should you find theres a concern with their truthfulness . Yeartie is the first one. You have that testimony. But then we go to what is the most obvious indication that willis and wade were not truthful on the point of timing, and thats bradley. Defense exhibit 26 came into evidence. Defense exhibit 26 comes in and says and you know i went into this the last hearing. It says that on january the 5th, 2024 at approximately 9 49 a. M. , theres Text Messages that are exchanged between ms. Merchant and mr. Bradley, and the Text Messages go like just date, and thats from ms. Merchant. Ms. Merchant says, do you think it started before she hired him . Bradley, who we now know from Defense Exhibit 39 has been texting with ms. Merchant for a number of months. This is not the first time, this is months within the communications between the two. Mr. Bradley says absolutely. Now, absolutely is not a speculative word. Thats not speculation. Thats a definitive statement, and bradley then unprompted says this, and unprompted is important. It started when she left the d. A. s office and was a judge in south fulton. It goes on, ms. Merchant says or she liked it started when she left the d. A. s office with the appropriate emoji or whatever one would call it to say it was liked, and then mr. Bradley say they met at the Municipal Court cle conference. Again, unprompted. Hes now definitively telling ms. Merchant when this relationship started. Ms. Merchant said thats what i figured when he was married. And ms. Merchant talking about a couple of hours later, she texts and says upon information relief, willis and wade met while both were serving as Magistrate Judges and began a romantic relationship at that time. And mr. Bradley responds, no, Municipal Court, thank you. Doesnt say it didnt start then. He doesnt suggest that shes wrong other than magistrate court, municipal. Now, we have that, and its in evidence, and what does bradley do . He knows that hes put himself in a position that if he testifies truthfully up on the witness stand, your honor is in a position to be able to find that both willis and wade lied. So what does bradley do . Look, you were an assistant u. S. Attorney, you know how this works when you have witnesses in this situation, mr. Bradley did everything he could possibly do to evade answering questions. No recollection, couldnt remember. It was speculation. Anything he could possibly say that would cause your honor not to believe that bradley knew when this relationship started. I suggest they were clear cut lies and the truth is in Defense Exhibit 26. And so if we take that view that he thoroughly impeached himself, he did not give truthful conduct, whats left standing . Generally you would see someone whos impeached, perhaps we have some kind of core that you could point back to and say thats the time he was telling the truth. In these Text Messages, is it ever definitively shown how he knew this and that he actually did know it other than just an assertion outright, absolutely . Usually if a state has a witness that goes sideways, theyve got him locked in. Theyve sat down with a detective and got a full statement. We dont have that here. What you have is the text message, which is a prior statement of bradley that he did on his own, that was not given to him by someone else. The only thing that the court has just noted is how do we know he wasnt speculating . Because you dont have to accept the fact that he wasnt speculating. The cases that i provided i think by email yesterday, the first dealing with that, you can disbelieve that testimony and draw a negative inference. Thats the ferguson case. On lee, the other case, you can simply take the prior inconsistent statement as substantive evidence. It has the same value, and thats what im asking you to do. To take what was the unprompted statement in Defense Exhibit 26 of bradley and take that on its face, face value, that that is an indication that bradley, in fact, knew and had said he did. If you accept that, you have to have concerns about the truthfulness of willis and wade on the timing issue. And i dont know if this is something maybe one of your cocounsel are going to address as well. We heard about the law, it applies how were outside kind of the orbit of the core of cases were used to dealing with here where it deals with Side Switching or where someone is in the relationship, the client relationship. The proposition youre putting forward now is that if a representative of the state, a lead prosecutor, the District Attorney themselves says something thats untruthful on the record, that is something that immediately has to be proactively policed by the trial court . Basically what im getting at is where in the law do we find the remedy to an untruthful statement . Generally we send you down the street to the bar, right . And thats why i gave you the cases of Regis Tarks E and edwards yesterday. They deal with counsel, and in both those cases, the trial judge found ethical violations on the part of Defense Counsel or potential ethical violations. Went through the ethical violations and said based on that youre disqualified. You cannot be the attorney of record in this case. Whats good for the goose is good for the gander. If Defense Counsel conclude kicked off of a case because of ethical violations, i suggest the same thing can happen for are prosecutors when ethical violations deal with truthfulness, candor to the court, extrajudicial statements, those are the things that this court can rely upon and say based on those, again, i find an appearance of impropriety. Where would be the limiting principle that District Attorney signs every indictment, assigned to this courtroom, does that mean shes off every case . If i found that shes untruthful, is that what youre suggesting . You dont have to find im not saying you have to find she was untruthful. You dont have to make a finding of fact that they lied. All you have to do is make a finding of fact that you have genuine legitimate concerns about their credibility, about their truthfulness, and once you find that, then you can apply registae and edwards. If i have genuine concerns about her truthfulness on a particular occasion, how do those not spill over into every criminal case . She testified under oath and so did mr. Wade. They didnt have to testify falsely. They could have testified truthfully. They could have indicated that the relationship, the timing was in fact, before mr. Wade was hired. They chose not to, and in that sense, that dishonesty, that constitutes a violation of their ethical responsibilities this is not signing an indictment. This is not filing a pleading in which both sides have their own positions. This is a requirement that every witness has to Tell The Truth under oath, and if they dont Tell The Truth under oath or theres a significant concern about their credibility, then theyre violating their ethical rules, and as anyone will tell you, as your honor already knew from when you were a prosecutor, prosecutors are held to a higher standard. Theyre the ones that are supposed to be seeking justice. They dont have a particular theyre supposed to be disinterested. When you have the lead prosecutor and the d. A. Giving what i suggest to you is untruthful testimony based on what yeartie has said, based on what bradley said in his texts. Based on the whole way it was presented to you, bradley didnt want to testify. He first came up with his Attorney Client privilege thing on that. And your honor was fortunately went into that. And then when bradley knew he had to testify about it, you saw what happened. You can draw the inference, as ive suggested on bradley, that what he said in the text message, Defense Exhibit 26 is true. The relationship, in fact, started prior to november 1st of 2021, that yeartie says that, and now without the relationshi started prior to november 1st of 2021, that yeartie says that, and now without getting into any detail, the Cell Phone Records. The Cell Phone Records show that during that period of time from lets say April 1 Of 2021 to november 1st, im sorry, November 30th of 2021, that there was a number, a considerable number of 35 or more occasions where it appeared that based on the records that mr. Wade was down in the area where ms. Willis was staying in yearties apartment. But more important is there are two occasions, and the state has not challenged those. There are two occasions where the records reflect that it appears mr. Wade spent the night at that apartment. The state may say we dont accept that, but they didnt challenge it, and even when they brought forth when they brought forth today, supplemental 2 and 3, they didnt challenge it again. What does that suggest . Thats Corroborating Evidence of what yeartie had said, of what bradley said in his text message. Its also Impeachment Evidence as to what wade and willis said about how many times is that significant in terms of the times . Didnt mr. Wade testify that he was there at least ten times during that time frame. Youve now found 35. Well, a minimum of 35, but never overnight. He said he never spent overnight. Put that to the side, just in terms of the fact that he did say he had been over there, he visited the place, and i would presume he wasnt obviously keeping a very good accounting of it, but that wasnt something that was entirely denied. If youre asking me do we win on the point that he said more than ten or around ten and we say 35, do we win on that point, no. Its not determinant. The overnight might raise more concerns. It does, and thats the reason we highlighted in the affidavit of mr. Middlestat, that is suggestive that they were not being honest with the court. How much time have i used . Have i . Youre close. Im letting them use the hook. So suggestive, again, raising issues, im wondering about burton. Were dealing with a preponderance standard. We are dealing with a preponderance standard. It is Corroborating Evidence of evidence we did put up, and that was the purpose of the Cell Phone Records. They corroborate what yeartie says, they corroborate what bradley said in Defense Exhibit 26. And they impeach to that extent wade and williss testimony. If you find by a preponderance of the evidence, so i can finish this up, if you find by a preponderance of the evidence that what i call subset of Forensic Misconduct, ethical violations has been shown and that there is a significant and legitimate concern about the truthfulness of wade and willis, theyre disqualified. Now, obviously factual findings are yours, but the law allows you to do that. You dont have to do it through an actual conflict. Thats the other side of the equation, and thats what i have argued and i think thats what mr. Gibbons can argue. Before i let you go. This is an interesting classification. Youre saying forensic conduct isnt just commenting publicly about the case indicating guilt, youre saying forensic conduct is anything a District Attorney says falls under that box . No. Im saying that Forensic Misconduct as a subset of that would include violations, ethical violations, which impact the ability of the defendants to get a fair trial as well as impact the courts ability to have faith that the prosecutors, these two prosecutors are acting in good faith in their own conduct. Same idea dealing with, as i said, Defense Counsel in the two cases i mentioned. Ethical violations can give rise to disqualification, and i suggest we have that here. All right. Thank you, mr. Sanow. Thank you. Wheres the shot clock when you need it. Right there. Your honor, i want to address very directly here, what we have is a systematic continuous pattern, a calculated plan, evidencing a design to prejudice the defendants in this case in the minds of the jurors. This is what we have seen. This is the problem that the District Attorney has is not that the District Attorney had some sort of brief off the Cuff Statement in an interaction with a reporter like williams, thats not what we have here. We have someone who sat down, wrote out her speech, wrote out her plan. Who sat down for, whether its two, three or six times what the editors of find me the votes and told and got her message out about this case before it was supposed to be tried in this courtroom. And so that is the problem that we have. We have a pattern of Forensic Misconduct on behalf of ms. Willis. So, i mean, we have a pattern of public statements being made. I take it you and your team have dive instead and read the book. I know she was asked about specific portions of it. The only case i can find talking about when someone crosses the line on Public Comments is williams case. There has to be an implication of saying the defendant, a particular defendant is guilty, and it even denied it, right, so have you found any case in georgia where they actually said that a prosecutor had gone too far in the Public Comments. Does one exist . Number one, thank goodness it doesnt happen often. Sadly its already happened here. In williams, the prosecutor had one response to an inquiry the court found that was improper, but did not have this pattern. It doesnt necessarily mean a comment about the, quote, guilt or innocence, although that was a pattern in williams. Its the improper comments by a prosecutor, for example, in williams they cite the nature and consequences of misconduct, in prosecution of a case, a 1955 Columbia Law School article, and how prophetic that was. When williams cites that case in a law school article, they talk about an awful lot more than simply comments about specific guilt, references to guilt. What you have here, your honor, is a comment, and we cant look. It doesnt apply only if a prosecutor said i think the defendant is guilty in my mind. No. Its more pernicious than that. What we have here is someone who sat down and drew up a plan for two reasons, drew up a plan for two reasons. And what she did reminds me of what the court in texas talks about, and that is that pretrial can create major problems for a defendant, indeed, more harmful than publicity during a trial, for it may set the Community Opinion as to guilt or innocence. Thats what we have here. Thats exactly what we have. And the court talks about the power of the television camera. So what do we have and what did this prosecutor do. What she chose to do is sort of what was criticized by the Supreme Court in shepherd versus maxwell. Legal trials are not like elections to be run through the use of meeting halls, and radio or the newspaper. Thats exactly what we have here. What we have is a deflection. What this is all about is more insidious than just making the comments that shes made. Its a deflection. What she chose to do was to say, okay, i have done my best to hide the relationship with nathan wade, and nathan wade has done his very best by filing false documents in his divorce case to hide his relationship with ms. Willis. Now, and so what did they do . Well, when ms. Merchan filed the motion to disqualify, now the game plan has to change. The game plan, i call the deflection begins to take place. The deflection is when the District Attorney sat down and wrote out, im sure the court has. When you look at that video, its in evidence, for a speech at church, she has written out everything and shes reading from it. She chooses to deflect, the court asked earlier, wasnt she really responding to the motion that had been filed against her, that she had. If she had, she would have looked the members of that church in the face and say, theres been an allegation that i had a romantic allegation with mr. Wade, and ladies and gentlemen, this congregation, its true. She didnt do that. She chose to deflect, and to do two things that are reprehensible for any lawyer but particularly for a prosecutor. She chose to pull out the race card and the god card. Thats what she did. And she wrote it out. She went on to deflect away from the allegations in the wade motion, and shes saying why in her talk, public discussion with god, why are they only attacking one, in reference t