I’ve praised Judge McAfee before, and he seems (despite his Federalist Society history) to be, at least in terms of his courtroom demeanor and his reputation, to be a fair jurist. And I’m not going to go so far as to accuse him of intentional misconduct in this diary.
But hoo boy—has he ever fucked up this case. BIGTIME.
Let me count the ways:
- First of all, by entertaining the original motion from Merchant in the first place, given that it didn’t contain any actual evidence of wrongdoing, simply accusations buoyed by the PROMISE of producing evidence. Asking for a response from Fulton County was reasonable, but Merchant should have been put on notice that actual testimony or other exhibits concerning the necessary elements of her allegations should be required to proceed.
- Second of all… the second that he decided that there was something there, and that Fani Willis might be a witness instead of appearing solely in her role as district attorney, should have asked someone else in the DA’s office to prepare the DA’s response for the purposes of this inquiry. One cannot be both a witness and counsel.
- Third of all, and this is a big one: Merchant suggested that a mini “trial” be conducted on this, i.e. the spectacle that we just witnessed on TV, rather than the usual procedure of motion practice and other pre-trial formalities to try and resolve things without needing an in-person trial or hearing. Her rationale for this was specious as hell: that since the case-in-chief was a criminal trial that is conducted under rules of criminal procedure (with all witnesses being questioned in open court in front of the jury, and available to be cross-examined), that the side issue of “does the prosecution have a conflict of interest” also needs to be treated this way, despite the usual practice of dealing with this stuff in pre-trial motions before a jury is even empaneled. And yet---he gave Merchant exactly what she wanted! Most of what we just saw on TV should have been handled by attorneys exchanging documents with the Court. Witnesses should have been subpoenaed and deposed, and the relevance of their testimony hammered out beforehand. Only if there were any remaining questions of fact that couldn’t be settled via motion practice, should a “trial” (even a bench trial, with judge as both finder of fact and adjudicator of law) have ever been conducted. This is especially true of any questions concerning privileged testimony: Wade’s law partner should have been deposed privately (with the understanding that he can disclose possibly privileged information without risk of being sanctioned as Wade would have had an opportunity to object and filter it out), and Wade been allowed the opportunity to object to any material he thought privileged. Likewise with the text messages exchanged with Merchant: they should have been reviewed privately, with privilege determinations made before being presented anywhere as evidence. The ridiculous farce we saw yesterday, with Terrence Bradley repeatedly asserting attorney-client privilege under open questioning from lawyers (with the possibility of being disbarred or sued for malpractice if he gets it wrong), and questions about the scope of this privilege being hashed out in open court with cameras rolling, and all sorts of legal “gotchas” being employed by both sides, should never ever ever have happened. Surprise witnesses, introduction of text messages from the phone of one of the party’s counsel into evidence, missing witnesses because nobody knows what the schedule is, and various other attempts to possibly shove toothpaste back into the tube once it’s been spilled on television, all these things shouldn’t have happened.
- Finally, McAfee seems to be stating the wrong legal standard for disqualifying a prosecutor. Perhaps he thinks it’s his court and he can remove any lawyer from any proceedings before him that he no longer trusts, especially if it’s a prosecutor, but that’s not what Georgia legal precedent says.
At this point, there are several possible outcomes:
- McAfee might decide that the privileged information is sufficient to impeach Wade and Willis, or otherwise find grounds to remove them from the case. In which case I would expect an appeal, given the many manifest errors of law elucidated above.
- McAfee might decide that no, the threshold hasn’t been crossed, and that this has all been a pointless sideshow. If so, he should make that clear in his ruling.
- McAfee might decide that while there isn’t sufficient grounds to remove Wade and Willis… he doesn’t trust them any more. In which case, we have a bigger problem: can the judge still continue to be the judge on this case, if he distrusts the DA’s office? Or, if this sideshow has tainted his opinion of the district attorney, can the State still get a fair hearing in his courtroom? (And what about other cases which Fulton County might bring that land on his docket?)
The fairest outcome of this might be the recusal of the judge. Both because his handling of this issue has been a first-rate fustercluck and highly prejudicial to justice, and might end up damaging the career of an attorney who isn’t even a party to this case and was only dragged into the matter reluctantly (though if the sexual assault allegations against Bradley are true, that might be a form of karmic justice if he gets in trouble whereas he might have otherwise gotten away with it). But if the judge neither has grounds to remove the state’s counsel, but also no longer trusts them, that’s an issue that might require him to step aside.
And of course, the irony of this is that Georgia has long been known as state where justice is harsh and defendants are treated poorly. But given that the traditional racial roles are reversed in this one, it’s not a surprise that suddenly criminal defendants might need protection from overzealous prosecutors. But something tells me that most defendants who are herded through the Fulton County criminal justice system, will not get anywhere near this level of deference.