These had application to the issue that were here before your honor today. The first has nothing to do nothing related to the disqualification of anyone. Some of these are relating to aspiring for broad language of outstanding language to prosecutors. Point taken. If there are more keep going. As it relates to one of the cases referenced here earlier, and is also referenced in some of the briefing by Defense Counsel is georgia 542 and all of the cases that fall under this, what i would call cat category, is about an attorney who formally prosecuted a defendant is the same type of case or similar charges. That is why the courts found the disqualification would be necessary because of the relationship that existed between the former client and the person being prosecuted now. The next series of slides goes through what has been addressed as it relates to the standard that is required when dealing with the issue of disqualification and the state would submit to the court that the defense must show an actual conflict in order to have the District Attorney disqualified and that actual conflict has to be in the form of showing miss willis received a financial benefit or gain in relation to the outcome of the case. Or any of the cases that involve personal interest. It all is based on the Contingency Fee, how much they are paid or a bonus is dependent on the outcome of the case. One is to show there is a personal interest. We have none of that. I would submit we have no evidence miss willis received any financial gain or benefit. The testimony was that miss willis paid the money back in cash and let me explore this. In addition to it is only an actual conflict, are you saying it is only if the financial interest is affecting the final result, the outcome . That is the one we should be worried about . Or is it that the prosecution as a whole is what we should be looking at. What if adas are given a bonus for every motion to suppress they win, 1,000 for the Fourth Amendment claim they win. Now they have an incentive not to tell you about it because they want to win that motion to suppress. Maybe that doesnt affect the outcome. It doesnt decide whether or not it is a guilty or guilty verdict, but doesnt that affect the prosecution of the case . That would be an instance where disqualification is necessary and appropriate because it involves a Contingency Fee and i would submit it does end up affecting it could but if it is some immaterial i dont know. You are saying it is maybe not so much whether it is guilty or not guilty dismissal, it is the conduct of the prosecution that should be looked at throughout the course of the prosecution. Correct, as it relates to the prosecution, which will affect the end outcome of the case. If you win a motion to suppress and if you win, you get a certain bonus, that is going to affect the end outcome of the case. In the instance where an officer is lying or there is not a good faith to go forward with that motion, the prosecutor would go forward with it regardless because of the contingency v, which not only affects the prosecution but is going to affect the entire case because if they were to win a motion to suppress or the motion would be denied and the evidence wasnt suppressed, it affects the ultimate outcome of the case. It is twofold. It is at that part of the procedure, the proceedings, they would definitely qualify for reason necessary to disqualify a prosecuting agency, but ultimately that action would lead to the ultimate outcome of the case of hinging upon a Contingency Fee like the ones in the cases referenced by counsel. Judge mcafee getting into the language, greater amusements is one of those why do you think that is the quote is it guarantees at least the appearance of a Conflict Of Interest. I dont disagree, but in that case, an actual conflict was found. They did not find that. I would disagree with your honor. My reading of the case is that an actual conflict was found but because of that conflict, and appearance of impropriety was seen and that is the reference, why the state referenced that case in relation to the argument that an actual conflict is required. In the series of cases, that was referenced by the Defense Counsel, both instances where there is a personal interest in the case due to the situation and where at one point they were opposing parties. There is a personal interest or stake as it relates to prosecuting an opposing party in a civil claim, which is what both of those cases referenced. It shows there is an actual Conflict Of Interest. What you make of the reference to the older case, sometimes the language can be what we are not accustomed to seeing. They refer to the metaphor of caesars wife and it is used as an ethical standard, that goes beyond an actual conflict, ri right . Is the beyond remotes getting beyond reproach getting more into the appearance world . Is it getting into the appearance aspect of things where we are talking about caesars wife . It goes beyond that based on the language. It literally says individuals have a personal interest in obtaining a fee by forcing settlement and using the Criminal Case as leverage. That is not an appearance of impropriety, that is a Conflict Of Interest that arises because of the personal stake in the end outcome of the case. That is how i would differentiate the representations of the Defense Counsel as it relates to the standard or the burden that must be shown. And why the state would submit to the court and the most recent ruling out of the georgia Appellate Courts that an actual conflict is required to be sh shown. I am going to skip through these series of slides. You have heard about them. I go back to what we referenced earlier, what has been referenced by all parties, the grounds by which a District Attorney can be disqualified is where there is a Conflict Of Interest sound and where there is forensic misconduct of that is found. Those are the two grounds that are to be within the purview of the court as it relates to the issues here. I go back to the most recent case that the justice wrote about, it must be by failing to disqualify the assistant District Attorney absent an official Conflict Of Interest. It is clear and controlling and purposeful. An actual Conflict Of Interest is what is required for a District Attorney to be disqualified because the case is making very clear and through the president relating to this issue that a disqualification of a District Attorney is the last ditch effort that should be exercised as it relates to court and curing certain conflicts that may arise. The case law is very clear that every effort is supposed to be made in lieu of disqualifying the District Attorney unless an actual Conflict Of Interest is what is found. And, it cannot be cured. What i would reference to the court as was brought up earlier, a 1999 case where it talks about a serial radical or speculative conflict will not impugn a conviction, meaning that speculation, conjecture, things of that nature, assumptions are not enough for anything to arise to an actual conflict. What i would submit as well is that goes to the fact that what has to be shown is an actual conflict. Judge mcafee is there a qualifier there that shows that is in a postconviction context . Competent evidence . We are in pretrial here. I have wondered how much important to give that since we are in the pretrial realm. That is assessing whether to overturn the conviction and that is a different standard where we assess as a totality. Just a thought, if you have any reactions. What your honor has said is on point. If it is found that the trial court applied the wrong standard or should have disqualified the District Attorney, it leads to an automatic reversal and it goes back to the trial court. That is a very in the sense that that is only done if an actual conflict is shown and the fact that it cannot just be theoretical, speculative, or assumptions that would lead to the appearance of impropriety, the appearance of a conflict that would lead to judge mcafee i am borrowing from special get Special Treatment unless you can so some issues and i wonder if the same principle applies, but i dont have the answer to that. I dont remember the line, but the judgment, he does address the concerns as it relates to the standard as it is applied postconviction versus pretrial. What i would say to the court is that are you showing support i didnt think the state was that pleased with the analysis. I am citing what she referenced as the standard to be applied pretrial and posttrial whether it makes a difference and the answer is no as it relates to the speculative nature of the allegations or the claims made by Defense Counsel as it relates to whether a conflict actually exists. What i cannot do at the moment is point exactly to the page at the end of the states argument. I can give you the page number. You are talking about the footnote where he references the appearance. Further, on page 42, a 1996 case where the court says that conflict must be palpable and have substantial basis in fact, theoretical will not impugn the conviction which is supported by competent evidence. I would submit to the court that as it relates to the issue of disqualification, the standard is the same whether it is postconviction or pretrial. The 1981 case, in that case, it says the appellants has not shown or a personal rule has disqualified an attorney on the basis of impropriety alone. A trial judge is authorized in georgia to disqualify an attorney based on the appearance of impropriety. Which further goes to the mission to the court that the standard is an actual conflict must be shown and that conflict that arises shows there is a personal stake as it relates to the personal financial gain that is being alleged. In the case that has been referenced by all parties today, the 2005 case. It says the complaints are based on speculation and conjecture, applying evidence standard, it is clear the trial court did not abuse its discretion to disqualify based on personal interest in his conviction. Arent we passed the conjecture and speculation issue of this so far . There is a relationship and money changed hands. There is an open question of where the ledger stands, but i think it was conceded that that balance could run in the District Attorneys favor. Is that contested . Yes. What is not contested is that a relationship did develop. And that purchases were made back and forth. That is the states position. That is the states position. Purchases were made back and forth to eat will the money that was spent by one party or another and if that wasnt done, cash was exchanged to equal the cost that was paid by either one of the parties. Whether it was split even or it goes a little bit one way or another or whether it is 10,000. 01 way or another, that is a fact issue. It is no longer just a theory that money changed hands. I agree money changed hands has not speculation or conjecture. The money that changed hands can have financial benefit or gains, that is all speculation and conjecture. Absolutely all speculation and conjecture to harass and embarrass the District Attorney based on the questions that were asked that have nothing to do with the proceedings. For example the lien on her house that had nothing to do with the proceedings and the exchange of money between the District Attorney and mr. Wade. The point of that line of questioning was to embarrass and harass the District Attorney in a way that was public and in a way that was to impugn her character as it relates to that line of questioning in front of the court, in front of anyone watching the proceedings as it unfolded. The language, i would submit to the court, an actual conflict must be shown, which is why the reference is again referenced. Speculation and conjecture leads to order equals an appearance of impropriety, not necessary a conflict. In state versus sutherland, the 1989 case, while the prosecuting officers should see no unfair advantage is taken of the accused, those required to exercise in the case by the judge and the jury, the Public Prosecutor is a partisan in the case. If we were to proceed, there would be an end to the conviction of criminals, which goes to the premise that the appearance of impropriety is to apply to judges, not prose prosecutors. If that standard was to be applied in the manner in which the sutherland case is referencing, there would never be a criminal prosecution because the state is always going to appear biased as it relates to getting justice for the victims or righting the wrongs as it relates to the crimes the defendant has been indicted or been accused of. During the last couple of days, three total days of testimony as it relates to the witnesses you heard from. One is a former disgruntled employee, someone who is disgruntled, a former partner, the Text Messages show he is vengeful. You heard from his own testimony here that all he did was speculate and any information he had or garnered and passed on was mere speculation. I believe he said that over and over again when asked if he had personal knowledge. My recollection is around 15 times he said he had no personal knowledge of a romantic relationship between the d. A. And mr. Wade. You heard from the special prosecutor, mr. Wade, a former judge, you heard from the 80th governor of the state of georgia, roy barnes, The First Female Elected and what i would submit to the court is that her testimony was nothing more than inconsistent, at best, based on what i referenced to the Court Earlier as it relates to the representations that were made by her counsel prior to judge mcafee are those in evidence that were subject to crossexamination . I am puzzled by that. You didnt ask the question, what did you tell your attorney before coming here and we could have dealt with privilege issues and whatever else. There is not evidence, but there wasnt a statement by an officer of this court during a hearing or related to her testimony and how we could proceed with her testimony. It is clear that what was represented as to why she would not be an appropriate person to testify was she had no knowledge of the romantic relationship. That was the basis of why counsel was saying she should not have to testify. Where did the incentive arrive between monday and thursday for her to change things around . She was fighting so hard not to testify at all and then she comes in here and testifies. Why would she testify the way she did it she didnt want to testify . I dont know if i am following that theory. I appreciate that but i would say the reason she did not want to testify is because this is a public forum where she would have to testify against a former friend and boss. The change, i would not qualify it as an incentive. I would qualify it as, judge mcafee a motive and bias as to why she testified in the manner in which she did. When asked by miss merchant asked of the reasons her leaving, she danced around the issue. As miss cross asked whether she resigned or was forced to leave, she was fired, she came out and said she was given the choice she could resign, but either way you are leaving. You are fired or you can resign in a manner of which she would not be officially fired and when she is getting future employment and things of that nature. I would submit there is no incentive. It is not why the testimony changed but the reason she testified the way she did was because of her biased towards the d. A. , which gave her motive to be less than honest before the court. If we are going to draw inferences based on her fighting the subpoena, why would she have fought it . Because she didnt want to come on National Television and be exposed to the things that i dont know anybody who wants to testify before a court in a normal trial. Everybody would be able to watch and learn what she has to say as it unfolds in the courtroom and further submit to the court there is reference to she left the d. A. s office and the Text Messages that were submitted, the defense of the other 39, it is because she released confidential information. In the d. A. s office, from the d. A. s office that led to her firing. Judge mcafee it is more conversational and i might be getting you off script. Terence bradley on the one thing the state and Defense Counsel can agree on, he was less than honest at times during the preceding and during his testimony. When pressed or asked why he was fired, he chalked it up to a dispute between partners. In a business. When pressed by miss cross, it was clear that was not the reason and i would submit to the court, what has been referenced by Defense Counsel as baffling as to why the state would go into such a topic area, the state, as all counsel has, has a duty of candor. When miss cross knew she was going to have to cross mr. Bradley, she knew he lied and she had a duty of candor to the court to expose that. More importantly, it goes to his credibility. And to the statements that had been represented by the Defense Counsel that he allegedly had made in the past. It was important to bring that to the courts attention because when a witness is testifying, the court is assessing credibility and whether to believe the veracity of the statements made by the witness or not. That is the most important factor when determining whether somebody is telling the truth or a lie. Furthermore, he reluctantly, when pressed, admitted he paid off the assault victim, it started with an escrow account, led to he did pay off the victim in that case. He testified over a span of three days like i referenced to the court. He said he had no personal firs