Return to Transcripts main page

CNN News Central

Final Arguments In Fani Willis Disqualification Hearing. Aired 3-3:30p ET

Aired March 01, 2024 - 15:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ADAM ABBATE, ATTORNEY FOR FULTON COUNTY DISTRICT ATTORNEY'S OFFICE: I call it divided loyalty, which is a conflict that arises from representing a - becoming a prosecutor and then having represented the defendant prior to becoming a prosecutor and then whether there's an actual personal interest in the outcome. And then others talk about whether the defendant was denied a fundamentally fair trial at the conclusion and the - of the case after conviction.

And these are some of the cases that defense counsel had cited within their brief that had absolutely no application to the issue that we're here before, Your Honor today. The first, McIver v. State has nothing to do or has nothing related to the disqualification of anyone.

JUDGE SCOTT MCAFEE, FULTON COUNTY SUPERIOR COURT: I think some of these are just relating to kind of aspiring for broad language about standards of prosecutors. So point taken there, but if there are more, all right, keep going.

ABBATE: So as it relates to one of the cases that was referenced here earlier and is also referenced in some of the briefing by defense counsel is the Registe v. State, which is 287 Georgia 542. And all of the cases that fall under this, what I would call category, is about a - attorney who formally prosecuted a defendant in, I guess, the same type of case or the same case or similar charges. And that would be why the courts were a - excuse me, the courts found that disqualification would be necessary because of the relationship that existed between the former client and the now person who's being prosecuted, Your Honor.

The next series of slides just 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 contend and 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 that Ms. Willis in this instance received a financial benefit or gain in relation to the outcome of the case. Like many of the cases that involve personal interest, Your Honor, it's all based on a contingency fee where how much they're paid or a bonus, for example, is dependent upon the outcome of the case. That's how one is to show that there's a personal interest in the case.

We have none of that here. And I would submit to the Court, we have absolutely no evidence that Ms. Willis received any financial gain or benefit. The testimony was that Ms. Willis paid all of the money back in cash related to the trips and if didn't pay back in cash, it was in exchange.

MCAFEE: All right. Let me explore this one a little bit.

ABBATE: Mm-hm.

MCAFEE: So in addition to - you're saying it's only an actual conflict, you're - are you also saying that it's only if a financial interest is affecting the final result, the outcome, that's the only one we should be worried about or is it that the prosecution as a whole is what we should be looking at in terms of a stake? So what I'm thinking of, I'm just going to try and come up with some hypos here, what if ADAs are given a bonus for every motion to suppress, they win, a thousand dollars per Fourth Amendment claim they win. Well, now they've got an incentive if one of their officers is lying not to tell you about it because they want to win that motion to suppress. Maybe that doesn't affect the outcome because you can win a motion to suppress or lose in the - that doesn't decide whether it's going to be a guilty or not guilty verdict. But doesn't that affect the prosecution of the case if not the outcome?

ABBATE: Yes, I would definitely agree that that would be an instance where disqualification would be necessary and appropriate, because it's a situation that involves a contingency fee and I would submit to the Court that it actually does end up affecting ...

MCAFEE: It could based on how important the motion to suppress is, right? But if it's immaterial - I don't know. But I guess - so you're saying it's maybe not so much just the whether it's a guilty or not guilty dismissal, no process at the end of the day. It is actually the conduct of the prosecution that should be looked at throughout the course of the prosecution.

ABBATE: Correct. As it relates to how it affects the prosecution, which I would submit the court ultimately is going to affect the end outcome of the case.

[15:04:58]

If you have a contingency fee based on winning or how - if you win a motion to suppress and it's - can - if you win, you get a certain - a bonus as Your Honor referenced. I think that that is ultimately going to affect the end outcome of the case because as Your Honor just said, if there's an instance where an officer is lying or that - where there isn't a good faith to go forward with that motion, the prosecutor would go forward with regardless, because of the contingency fee, which not only affects the prosecution at that point of the proceedings, but ultimately is going to affect the entire case, because if they were to win a motion to suppress or, I guess, the motion would be denied and the evidence wasn't suppressed, knowing that they didn't have a good faith base to go forward affects the ultimate outcome of the case.

So I think it's twofold as Your Honor has referenced. I think it's at that part of the, I guess, the procedure or the proceedings would definitely qualify for reason necessary to disqualify a prosecuting agency. But ultimately that action during the procedure will lead to the ultimate outcome of the case of being or hinging upon a contingency fee like - of the ones in the cases referenced by counsel and the state that are on the screen.

MCAFEE: So - and so getting into the language again, which you just had up there with greater amusements and amusement sales. Greater amusements is one of those. You refer to the appearance of conflict as dictated. Why do you think that's dictated? I think the quote from that one is "it guarantees at least the appearance of a conflict of interest." Why is that dictated? It seems very central to the holding in the case.

ABBATE: Because in - I don't disagree with Your Honor, but in that case, an actual conflict was found and the appearance ...

MCAFEE: They didn't find that.

ABBATE: I would disagree with Your Honor. I would - my reading of the case is that an actual conflict was found, but because of that actual conflict, an appearance of impropriety was seen and that's the reference or why the state referenced that case in relation to the argument that an actual conflict is required.

And the series of cases, Young - that was referenced by defense counsel as well as Nichols v. State are both instances where there's a personal interest in the case due to the situation and where, at one point, they were opposing parties. And, of course, there's a personal interest or stake as it relates to prosecuting an opposing party in a civil claim, which what both of those cases reference, which shows that there's an actual conflict of interest that relates to the personal gain of the specific prosecuting agency.

MCAFEE: And what do you make of Nichols' reference to - it's an older case, sometimes the language can be - we're not accustomed to seeing that there's - they refer to the metaphor of Caesar's wife. And generally when that's used as a ethical standard, that's something that goes beyond an - just an actual conflict, right? Isn't that beyond reproach, getting more into appearance world?

ABBATE: Is it getting beyond?

MCAFEE: No, isn't this getting into the appearance aspect of things when we're talking about Caesar's wife?

ABBATE: That - I think it goes beyond that based on the language of the holding in that case where it literally says that the individual had a personal interest in obtaining a fee by forcing a settlement in the civil case and using the criminal case as leverage, so that's not an appearance of impropriety. That is an actual conflict of interest in which arises because of the individual's personal stake in the end outcome of the case, Your Honor.

So that's how I would differentiate, I guess, the representations of defense counsel as it relates to the standard or the burden that must be shown and why the state would submit to the Court in the most recent ruling out of the Georgia appellate courts that an actual conflict is required to be shown. So I'm going to skip through these series of slides. You've heard all about Whitworth (ph).

So I go back to what we referenced earlier or what's been referenced by all parties, that the grounds in which a district attorney can be disqualified is where a conflict of interest is found and where there's forensic misconduct that is found.

[15:10:04]

Those are the two grounds that are to be, I guess, all right, within the purview of the court as it relates to the issues here. And again, I go back to the most recent case that was Justice Pinson wrote about and that it must be - by failing to disqualify the assistant district attorney absent an actual conflict of interest. I think the language there is very clear and I think it's very controlling. And I think it's purposeful, I would submit to the Court, because an actual conflict of interest is what is required in order for a district attorney to be disqualified. Because the cases make very clear and through precedent relating to this issue, that a disqualification of a district attorney is the last, for lack of better words, ditch effort that should be exercised as it relates to the court and curing certain conflicts that may arise.

I think the case law is very clear that every effort is supposed to be made instead of - or I guess in lieu of, disqualifying the District Attorney unless an actual conflict of interest is what's found, Your Honor and it can't be cured.

So, what I would reference to the court as was brought up earlier in Lyons v. State, 271 Georgia 639, a 1999 case where it talks about a theoretical 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. And what I would submit to the Court as well, that that goes to the fact that what has to be shown is an actual conflict, if it's speculation ...

MCAFEE: Is there any qualifier there, though, that's in a post- conviction context?

ABBATE: So ...

MCAFEE: We're talking about competent evidence. We're in a, obviously, in a pre-trial phase here. I've wondered how much import to give that sentence when we're in a pre-trial realm. That's assessing whether to overturn a conviction and usually that's kind of an entirely different standard where we assess as a totality, was there a fair trial? Is there harmless error?

I know there's no harmless error when it comes to disqualifications, but just a thought, if you have any reactions.

ABBATE: Well, I think what Your Honor said is pretty on point in the sense that if a - it's found that if the trial court either applied the wrong standard or should have disqualified the District Attorney, it leads to an automatic reversal, like you said, and it goes back to the trial court. And I think that is very enlightening in the sense that that's only done if an actual conflict is shown, and the fact that it can't just be theoretical, speculative or assumptions that would lead to the appearance of impropriety appearance of a conflict that would lead to ...

MCAFEE: I guess, one of the ...

ABBATE: ... as that ...

MCAFEE: ... I'm borrowing kind of from, as we've been doing in the other pre-trial motions, special demurrers seem to get different treatment pre-trial and post-trial. Post-trial, they get more of a pass, unless you can show some issues and I'm wondering if that same principle applies here with disqualification matters.

ABBATE: Well, and I would ...

MCAFEE: But I don't have the answer to that.

ABBATE: Well, what I would also say and I don't remember the exact line, but I know their - in Judge McBurney's order, he does address some of the concerns that - as it relates to the standard as it's applied, post-conviction versus pre-trial - during pre-trial issues. And what I would say to the court is that ...

MCAFEE: Are you citing that in support? Because I didn't think the state was all that pleased with the analysis you applied.

ABBATE: Well, what I'm citing ...

MCAFEE: Legal analysis, that is.

ABBATE: ...what I'm citing - what you specifically referenced as to the standard that is to be applied pre-trial and post-trial, whether it makes a difference. And what I would say to the court is 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, Your Honor.

What I can't do at the moment is point exactly to the page at the end of the state's argument, I can give you the page number as it relates to Judge McBurney's order.

MCAFEE: I think I know what you're talking about, the footnote where he references the appearance standard.

ABBATE: Yes.

MCAFEE: All right.

ABBATE: Right.

MCAFEE: I'm looking at it.

ABBATE: Further, in Lamb v. State, 267 Georgia 41, on page 42. [15:15:02]

It's a 1996 case where the court says, "Nevertheless, the conflict must be palpable and have a substantial basis in fact. A theoretical or speculative conflict will not impugn a conviction which is supported by competent evidence."

Now, I understand as it relates to the post-conviction factor or the status of the case being in post-conviction based on Your Honor's earlier inquiry. But I would submit to the Court that as it relates to the issue of disqualification, that the standard is the same, whether it's post-conviction or pre-trial.

In Blumenfeld v. Borenstein, which is 247 Georgia 406, the 1981 case. In that case it says, "The appellees have not shown us a case where a per se rule was applied to disqualify an attorney on the basis of an appearance of impropriety alone. The Georgia cases cited by appellee do not stand for the proposition that a trial judge is authorized in Georgia to disqualify an attorney solely on the basis of an appearance of impropriety."

Which further goes to the state's submission to the court that the standard is that an actual conflict must be shown and that conflict that arises shows that there's a personal stake of the District Attorney as it relates to their personal financial gain that's being alleged.

So in the case that's been referenced by all parties here today, Whitworth v. State, 275 Georgia, Appeal 790, a 2005 case. In that case, it says, "Whitworth's complaints are largely based on speculation and conjecture. Applying the any evidence standard to the record, it is clear that the trial court did not abuse its discretion in denying Whitworth's motion to disqualify Morgan based upon his personal interest in his conviction."

MCAFEE: Aren't we past the speculation and conjecture aspect of this, though? I mean, the original and the core of the financial allegation was that there is a relationship and that money has changed hands. There's maybe still an open question of where the ledger stands that I think it was conceded that that balance could run in one way or in the District Attorney's favor. Is that contested?

ABBATE: Yes. What's not contested is that a relationship did develop between ...

MCAFEE: And that purchases were made back and forth, that's the state's position.

ABBATE: That is the state's position. But they were made back and forth - the purchases were made back and forth, either to equal the money that was spent by one party or the other. And if that wasn't done, cash was exchanged in order to equal the costs that were paid by either one of the parties.

MCAFEE: Right. But that's a fact at issue, whether it was split even or whether it goes a little bit one way or another or whether it's all the way $10,000 one way or another, that's a fact at issue as a result of the hearing. It's no longer just a theory that money changed hands is no longer speculation or conjecture.

ABBATE: Well, I agree that money actually changed hands is not speculation and conjecture. But whether that money that changed hands had any financial benefit or gain to the District Attorney, that is all speculation and conjecture. I would submit to the Court absolutely all speculation and conjecture to harass and honestly embarrass the District Attorney based on some of the questions that were asked that had absolutely nothing to do with the proceedings that we were here.

For example, the lien on her alleged house that was highly irrelevant, 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, again, embarrass and harass the District Attorney in a way that was very 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.

And the language in Whitworth, I would, again, submit to the Court, requires that an actual conflict must be shown, which is why the reference to speculation and conjecture is again a reference. Because speculation and conjecture leads to or equals an appearance of impropriety, not necessarily an actual conflict, which I submit to the Court is what is required based on the case law.

[15:20:00]

So in State v. Sutherland, which is 190 Georgia Appeals 606, it's a 1989 case, and it says, "While the prosecuting officer should see that no unfair advantage is taken of the accused, yet he is not a judicial officer. Those who are required to exercise judicial functions in the case are the judge and jury. The public prosecutor is necessarily a partisan in the case. If he were compelled to proceed with the same circumspection as the judge and jury, 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 prosecutors. Because if that standard was to be applied in the manner in which the Sutherland case is referencing, then 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 wrong as it relates to the crimes in which the defendant is - has been indicted or accused of.

So, I want to move into, I guess, the evidence that Your Honor saw and heard during the last couple of days, three total days of testimony as it relates to the witnesses. You heard from Ms. Yeartie, who the state would contend is a disgruntled former employee.

You heard from Terrence Bradley, also someone who is a disgruntled former partner. The text messages in the state's opinion show that he is vengeful. You heard from his own testimony here sitting before the court that he - all he did was speculate and any information that he had or - and garnered and then passed on to Ms. Merchant 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 absolutely no personal knowledge of a romantic relationship between the DA and Mr. Wade.

You also heard from the special prosecutor, Mr. Wade, a former judge.

You heard from the 80th governor of the state of Georgia, Roy Barnes.

You heard from the first female elected district attorney of Fulton County and you heard from her father, who was a 40-plus year practicing attorney in good standing when he left the practice of law.

And what I would submit to the Court is that Ms. Yeartie's 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 ...

MCAFEE: Are those in evidence? Would his responses during a motion to quash, which weren't subject to cross examination by defense attorneys, weren't even part of the evidentiary record of the hearing. Again, I'm just kind of puzzled by that. You didn't ask the question of Ms. Yeartie, what did you tell your attorney before coming here. And then we could have dealt with privilege issues and whatever else.

ABBATE: I would - I mean, I would agree with the court, it's not in evidence, but it was ...

MCAFEE: Yes.

ABBATE: ... a statement by an officer of this court, to the court, during a hearing related to her testimony and how we were to proceed with her testimony in this hearing. But I would - it's clear that what was represented as to why she would not have, I guess, be an appropriate person to testify was that she had absolutely no knowledge of the romantic relationship. That was the basis of why her counsel was saying that she shouldn't have to testify, that she shouldn't be compelled to the court.

MCAFEE: So then under that theory, if accepted, where did the incentive arise between Monday and Thursday for her to completely change things around?

ABBATE: Where did the incentive arise?

MCAFEE: Because she was fighting so hard to avoid the - if we're going down that road, you proposed she was fighting to have - not to come in here and testify at all. And then she comes in here and testifies. Why would you testify the way she did, if she didn't want to testify so strongly? If we're going down this road of trying to just gauge her interests and these kind of things, I don't know if I'm quite following that theory.

ABBATE: And I can appreciate that.

[15:24:58] But I would say it's - the reason she didn't want to testify but submit to the Court is because this is an incredibly public forum where she would have to testify against a former friend and a former boss. And I think the change, I wouldn't qualify it as an incentive. What I would qualify it as is, ultimately, when she was forced to testify ...

MCAFEE: A motive.

ABBATE: ... right, a motive and a bias as to why she testified in the manner in which she did. When asked by Ms. Merchant as to the reasons for her leaving, she kind of danced around the issue. And then as Ms. Cross asked her about whether she resigned or forced to leave, she was fired, she came out and said, she was given the choice, you can either resign, but either way, you're leaving. You're fired, or you can resign in a manner in which she wouldn't be officially fired, when she's trying to get future employment and things of that nature.

So I would submit to the Court that there's absolutely no incentive - an incentive is not why Ms. Yeartie's testimony changed or the state would contend her testimony changed. But it was - the reason she testified the way she did was because of her bias towards the DA, which gave her motive to what the state would contend is be less than honest before the court. And I would ...

MCAFEE: But if we're going to draw inferences based on her fighting the subpoena, why would she have fought it if she had such a bias and wanted to say these untruths?

ABBATE: Because she didn't want to come on national television and have to - be exposed to the things that - well, I don't know anybody who wants to testify before a court in a normal trial, a normal proceeding. But one of - what I would qualify in this high profile of a nature - where everybody would be able to watch and learn what she has to say as it unfolds in the courtroom. And I'd further submit to the Court there is reference to - she left the DA's office and the text message that were submitted in, I believe, what is it, Defense Exhibit 39, that it's because she released confidential information in the DA's office, from the DA's office, that led to her firing, that she wasn't ...

MCAFEE: And I know I'm - because it's more conversational, which I appreciate. I know I might be getting you off script, so I don't want to use up all your time if you need to get through some other things.

ABBATE: Next, Terrence Bradley, and I believe the one thing that the state and defense counsel can agree on, that he was less than honest at times during the proceeding and during his testimony. He - when pressed or asked by Mr. Sadow why he was fired, he basically chalked it up to a dispute between partners in a business.

But when pressed by Ms. Cross, it was clear that that wasn't the reason. And what 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, when appearing before the court, has a duty of candor. And when Ms. 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 and the state's opinion to expose that. More importantly, it goes to his credibility. And the statements that had been represented by defense counsel that he allegedly had made in the past.

So it was important to bring that to the court's attention, because when a witness is testifying, the court is assessing their credibility and determined whether to believe the veracity of the statements made by the witness or not. So that is the most important factor when determining whether somebody is telling the truth or a lie.

Furthermore, he reluctantly, when pressed, finally admitted that he paid off the assault victim. Eventually, it got - it started with an escrow account and led to, he did pay off the victim in that case. He testified over a span of three days, and like I referenced to the Court, he must have said 15 times that he had no personal firsthand knowledge as it relates to the relationship between Ms. Willis and Mr. Wade.

[15:30:05]