Ms. Willis is prosecuting the defendants for allegedly interfering illegally in the 2020 elections, and became the subject of several investigations herself earlier this year when one of the defendants alleged an affair with the case’s lead prosecutor and misuse of public funds.
Fulton County Superior Court Judge Scott McAfee found an appearance of impropriety and legally improper speech tied to the affair, which was acknowledged in court, and ruled that the problem could be remedied if one, but not both, of the parties was removed from the case. He ordered special counsel Nathan Wade to be taken off the case, else Ms. Willis and her entire team would have to go. Mr. Wade resigned hours after the ruling.
Eight defendants sought review of the judge’s decision, which the judge noted was uncharted territory, and the judge granted the request within 10 days. The appeals court still has more than a month to accept or decline to review the judge’s decision to allow Ms. Willis to continue to prosecute the case.
Defendants had argued that the judge erred in finding improper behavior but ordering only one of the two parties implicated to leave the case. They further argued that the judge incorrectly applied the standards and the defense had met the burden of showing forensic misconduct.
Ms. Willis is now arguing that the defense was unable to show any forensic misconduct, and that the judge did not make any error in his decision.
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Judge McAfee had found a speech Ms. Willis gave to be “legally improper,” as it cast “racial aspersions” over the defense even if she did not name defendants.In court, the state had also argued that Ms. Willis was referring to others in that speech, while the defense pointed to news articles about the speech that all reported Ms. Willis was referring to the defendants. The judge found the state’s arguments unpersuasive.
However, the judge ruled that the controversy surrounding the speech was tied to the affair issue, and that Mr. Wade’s leaving the case would remedy it as it would no longer be an issue in the future.
Defendants argued the speech and the judge’s finding that it was legally improper constituted forensic misconduct. They had also claimed that Ms. Willis implied she was doing God’s work by prosecuting the defendants, and had made other public comments suggesting their guilt in a pattern displaying prejudice.
The district attorney argued in her response brief in the appeals court that to qualify as forensic misconduct, the state supreme court found that the prosecutor’s comments must be “of such egregious nature” that one considers whether they are “part of a calculated plan evincing a design to prejudice the defendant in the minds of jurors.”
“A comment may be improper without being disqualifying,” the district attorney argued.
She added that the comments concerned “the office’s conviction rates; the charges in the indictment; the procedural posture of the case; the need for or importance of the investigation; or personal anecdotes,” and the church speech “failed to name any defendant.”
“The case is too far removed from jury selection for any actual prejudice or improper effect on the jury pool to actualize,” the district attorney argued. “Days of evidence and testimony failed to disclose anything like a calculated pre-trial plan designed to prejudice the defendants or secure their convictions.”
