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to republican control of the senate. stop garvey. adam schiff for senate. i'm adam schiff, and i approve this message. 1808836464. that's 1808836464. >> i'm fred pleitgen in tehran. and this is cnn >> welcome to. >> cnn news central. i'm boris sanchez alongside jessica dean in washington. and in just moments we're going to see some pivotal humans in the georgia election subversion case against donald trump and his co-defendants, attorneys for trump and his co-defendants are going to deliver closing arguments in their push to disqualify the person who brought that's sweeping case, fulton county district attorney, fani willis. they claimed that willis financially benefited from her romantic relationship with one of her top prosecutors nathan wade. >> now the judge will

ultimately decide if the defense proved those explosive allegations were going to take you live inside the courtroom once those presentations again, which we are expecting momentarily, but first let's take you to zachary cohen who was outside the courthouse in atlanta, and also here with us seeing an anchor and chief legal analyst, laura coates. zach, let's start with you. how are you expecting all of this to play out today >> you guys any minute, we expect offensive thanks for donald trump and his fellow codefendants to enter into this courtroom in layout for the judge in this case, judge scott mcafee, why the evidence that they've put forward so far, warren's disqualifying fani willis, the district attorney here in yoni from the georgia election subversion case. and look, they're going to have to meet the burden. and one of the things we will look, we're we're looking for for scott mcafee to clarify, today is what that burden is exactly now amounts, whether the evidence amounts to a conflict of interest, they've argued that the evidence shows that fani willis financially benefited from her romantic relationship with wade or even if the burden is is the appearance of a

conflict of interests that could radically change the calculation into whether or not scott mcafee is likely to ultimately disqualify willis but look, the lawyer for the district attorney's office are going to have a chance to push back and make their own case as to why fani willis should remain on the case. and i don't have to state the state it's here for you guys. it's a pivotal moment in this case, sources have told me for weeks now that if fani willis is disqualified, people inside the district attorney's office fear that that means it's the case itself is effectively dead because nobody else in this state will want to pick it up because of the political taint that would be on it. and now we're also looking to see more from scott mcafee offer any clues as to where he might be leaning coming into this hearing? all a lot of questions coming in, but we're hoping that we could at least get some clarity and whether or not we might be headed toward a resolution over the question of whether or not fani willis remains or is disqualified here >> zach, please standby. we are watching judge scott mcafee a

fever proceedings appear to be getting underway a moment ago, we saw the defense team and the prosecution settling into place before we go to the proceedings. let's listen to laura coats and what she has to say about what we're expecting today. it's been stevie, there's been some fireworks. it's been a hot mess. >> this has been a happy to cobbler. we are all way down in georgia, right? and atlanta and thinking about it, think about what the stakes are. zach is right? if fani willis is disqualified and that's a high burden to meet by the way. it is having to show that she had a conflict of interest that actually hurt the defendants, that they cannot have a fair trial, not just issues that are salacious and for the details that people are leaning into here about, but didn't actually impact the ability to have a fair trial bay. those who are moving for it have to connect those dots. it has to be be a financial benefit of some time. they've had trouble establishing that through threadbare and why? because her having an additional income or a separate income and going

dutch, so to speak, cannot be enough to establish conflict of interests. it might surprise people to know that there are romantic endeavors that take place between police officers prosecutors, defense kearney, dredges. it is the real does it actually hurt the defendant is the case here. now today, this judge has had very little patience up till now about how to have this whole thing go down. it is there a burden to prove it? and we're going to see if they actually meet it. >> and so i'm curious who or what you think about the fact that this controversy, whether or not whatever happens today, it is now, has it tainted kind of public opinion on this? and what's the public opinion piece of it moving forward, will it have any bearing on in this trial? >> we ask yourself if you were a juror call to serve in this matter, hoping to focus on the presentation of evidence and instead, you're thinking, know which one of you were involved in what's happening here, trying to get distracted >> nothing. we've heard so far it goes to the underlying facts it's in the case, so that's the most important part here. we haven't touched the allegations against any of those co-defendants. there has

been no credible evidence to undermine any of those allegations as of yet, the focus is that but the idea that she could be disqualified is not just her. it'd be the entire office. it'd be a separate prosecuting counsel in georgia who traveled would then be due to a point or assign because this is not the most attractive case to want to bring for security reasons alone, let alone this scrutiny inside and pay and so the entire office be disqualified, which means they don't have to even follow the grand jury indictment. they don't have to keep this case, keep all the defendant. they could add the defendants, they could not go forward either way. the timeline would be totally thrown off of such a consequential case during a consequences so period in american history, would you say that trump's team has been successful on those two fronts if their strategy has been partly to muddy the waters, as you say, none of what we're watching today are up to this point has really been about the facts of the case outside of sydney powell and kenneth chesebro sort of adjudicating their aspect there angle of

this and in the second part of it is the fact that the trump team in all of these cases has tried to delay delay, delay. it's been a success for that defense team hasn't it? >> this has been death by 1,000 credibility cuts. why? >> because think about when you're in the courtroom and you're listening to the presentation of evidence, and you have a lawyer whose credibility has been challenged, then turning to a witness and trying to challenge. there's on the stand. oh, these documents don't actually say this or i'm checking to believe what you have to say, trying to persuade jury of 12 people on this, may be thinking, well, hold on. you're not a blank canvas to me. i don't know. so give you the benefit of the doubt in the same way that's a problem. but again, we have not touched the actual meat on the bone of the case, and we have some time between now and if there is a trial, amnesia sets in like you wouldn't believe in a lot of cases. and remember, this is the actual site of the allegations where people's votes were likely affected or

sought to be impacted and that could actually overrule ones irritation with the more salacious, but make no mistake about it. no prosecutor, fani willis, nathan wade, or anyone on that team wants anyone thinking about these aspects as opposed to the facts in this case? well, that's it. you want them you want them focused on the case and boris, you mentioned i think such a salient point, which is it's the muddying of the water is their strategy here because you just said it, we've gotten to the media the case here. it's this is about just muddy up that water as much you possibly can. >> optics are very important. they're important for jurors. they are important for you. think about the hint of impropriety. we challenge our supreme court justices or judges on conflicts of interests. but for this judge, his focus ought to be the law. i mean, the optics we can all agree. nobody should be hearing about whether someone likes grey goose versus why whether a bartenders have future cash or not, what trips you had the time we take in had that kind of time to take a prosecutor

and cnn, i have an issue with that, but i don't have enough about thinking about this. judge has to be focused did you meet the burden you brought us here because you want to disqualify an elected official because you say there is a conflict of interest that will mean that these defendants can't get a fair trial so he has to synthesize he has to focus and yes, to follow that legal obligation. >> i want to bring zach back into the conversation. i believe he's still on okay. zach has gone well, you got me, kid >> about >> one of the things you mentioned, the burden of proof and the challenge that the defense team has to sort of show that there was impropriety, that there was a conflict of interest, et cetera. so, judge mcafee said that he's going to allow this report from a price evan investigator that track the cell phone pings of nathan wade and put them within a certain distance of fani willis at all hours of the night, how could

that impact what we see in this hearing? >> well, first, let's talk about how the technology would work if you think about the way in which your cell phone on receives data and signals. it's kinda like a baton relay race. >> as you go >> to one area, the baton is passed the editor pick it up. that's how you're able to track someone's movements. the investigator, and how i process to get a case in the past and the fbi often does the same thing is to figure out what your course was, what was your actual path based on that baton pinging? what are you and how long were you there? doesn't tell you what the text messages said necessarily doesn't tell you what the nature of the conversation, but the sheer contact of pinging alone, why this is important here is because they have said in testimony that they did not begin a romantic relationship before a certain date, that he did not spend the night. i think it was the phrasing that they asked him about trying to establish that he had visited a particular location where she lived. they were trying to does suggest there was some kind of a loves shaq that's why she didn't live at home any longer. you laugh at that phrase and returned to say, i mean the

beat other side about a love shack wasn't part of the child here, but this is a whole thing, right? the tin roof rested. yeah. but that's the implication there, trying to make here. and so they're trying to discredit and saying you testified in front of this court about certain dates, you have a duty of candor under your ethical obligations in the courtroom. and this judge knows it and they're all lawyers. they want to discredit that very testimony. again, though, does it go to the heart of the matter of disqualification and being able to prove that this is going to hurt the defendants in this action? >> likely not. but remember as well here's what's interesting. you have to fight to get that in through an expert that can be qualified. mrs. expert, to say what you are presenting it as is actually intended to go to the meat of the matter. it's interesting to figure out how cell phone data works but the defense, who raised the motion got to cutesy when they didn't ask precise questions. we said things like, could you spend the night? did you sleep over? >> i have >> prosecuted sex crimes. we

have to be quite precise in the language to actually get the testimony in they tried to dance around an issue. it might hurt them in the end. all right. well, let's listen and listen in and see as this begins down in your old county of the conflict issue and the appearance of the conflict and what we believe the evidence to show on that issue. mr. sadow, mr. gilliam will be talking more about the forensic misconduct piece of it ms willis is church speech statements made to the media. fraud on the court. frankly, and the book that she gave several interviews for. so i won't be discussing any of those issues. so you if you'd like to ask me, certainly i can try to address them, but that is going to be the focus of their presentation and then towards the end, other folks may have issues specific type arguments, either in follow up to mine or the forensic misconduct, but those are the two lanes that we're going to be covering, but i'm gonna do the conflict piece of it for you on that issue. your honor this is a matter of first impression in georgia. i can't

find a single case that's been published by the court of appeals or the supreme court. that is based on these facts. there of course, number of different appellate court cases that deal with conflict related issues. and more importantly, appearance of conflict related issues and some of those are based in state law, some of them are based on the ethical rules that govern lawyers. some of them are based upon the sixth amendment right to due process. that's implicit in all of what we're doing here today. i want to remind the court that we're here today on this motion to disqualify da willis and her office because of her judgment. frankly, xi is supposed to be disinterested under the sixth amendment and she's anything but that the fact that these proceedings have taken this long convoluted, looted way we've 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. wants 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 interests might be sufficient under the facts. i want to make clear to the court that i the law in georgia suggest and is very clear that we can demonstrate an appearance of a conflict of interest. and that is sufficient. >> there are there is i'm going to be candid with the court. there is a supreme court decision from 1996 lambie state, and then there are two court of appeal decisions after that debt deal. frankly, in some dikta that suggests that an actual conflict is required, but the supreme court or georgia's, since those decisions came down, has made quite clear that the appearance of a conflict like standards still applies. and the reason that's important is i think under the sixth amendment, which is where we're at in

order to preserve the defendant's rights under that under that provision and under corollary provisions of georgia law, you've got you've got to consider the appearance of 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 in alouds das 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 your honor, i'm gonna i'm gonna give you the law and i'm going to talk about the facts and how they apply the law at the end, if you want to talk about the facts earlier, jump right in and i'll be happy to do that. i'm sure you're 100 is very well-prepared and probably knows all the law that i'm going to cite to you. but to give the skeleton outline

the original the seminal case that deals with conflict of interest from the georgia supreme court is williams v. state. that's 258, georgia 305. and they're basically two methods by which you can disqualify a district attorney. one of them is a conflict of interests, and i'll suggest that to the core, that doesn't mean an actual conflict, that could mean an appearance of conflict as well and then forensic misconduct importantly, in the williams case, though in footnote four, and i think this is important for the court's analysis about the facts and where do they which box it fits into the court said there was no clear demarcation line between conflict of interests and forensic misconduct given a given ground for disqualification of the prosecutor, might be classifiable as either. and i think that's important because we have facts that fit in both boxes. so if the state stands up and says, well, there's no actual conflict here, judge, that doesn't mean necessarily that it doesn't apply forensic misconduct typically, forensic misconduct relates to statements that the prosecutor

designed to impugn the character of the defendant before trial and to effect the jury pool, which we have here, which i'm not going to discuss, but the facts that we have here very much relate to that issue and there's crossover importantly and i think this is important for the court's consideration of what but in the court's ruling may have >> it is >> if you deny this motion, there's a good chance if it's reversed that we would be granted a new trial. so that means we're going to have to do this all over again in amusement sales versus state 316, georgia appellate let's 727 that's the case that cites whitworth, which is physical precedent. only. >> the court said >> at 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 the defendant is entitled to a new trial. new trial, even without a showing prejudice so that means if if if we show the court today and i think we have

through the proceedings today and before that, ms willis has developed a very personal interest in this and, your honor denies this motion. we're coming back all over again. if the appellate courts say, let's say you were wrong. >> so what does that personal interests so the personal interests can be there's no definition of that under georgia law, and it could be a personal financial interests, it could be >> a personal interests related to bias against a particular defendant, which sort of falls into the forensic misconduct box but we have here a very personal financial interests that's been laid out in terms of money received by ms as a result of the scheme that she set up >> to >> get to the issue of personal interest in the context of an appearance. i think that's important. i do want to suggest to the court that there are a number of cases on that a postdate. this actual conflict

of interests language that suggests that 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 i'm sure the state's going to stand up here and say it can't be a speculative or conjectural type of personal interest and we don't have that here. we have something very concrete. >> and as judge mcburney put it, actual and palpable, not speculative than remote. that's exactly what we have here. we've demonstrated through testimony of the witnesses some of whom impeach themselves that we have a very personal interests in the seminole united states court case that deals with prosecutorial impropriety is young, the us that's a 41 us 787 case. and that case, it's the opportunity for conflicts arise that created at least the

appearance of impropriety and that's the case that requires that the prosecutor be disinterested since a scheme injecting a personal interest financial, or otherwise into the enforcement prospect process that's 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 to 31 georgia appellate 22. that's 1998 case, stated a potential conflict of interest existed in the appearance of impropriety existed davenport v. state 157 georgia appellate 70 for this 1981 case that was decided seven years before williams, when there is at least the appearance of impropriety, a defendant is denied phantom fundamental fairness in the state's prosecution of the charges against him or her there were also rules that govern prosecutors lawyers, and in general are bound to preserve and avoid even the appearance of impropriety that's brown v. state to 56 georgia appellate 603 to zero

to 2000 to head v. state they prosecutors close personal relationship with the victim in a case may create at least the appearance of a problem execution unfairly based on private interests rather than one properly based on vindication of public interest aba, criminal justice standards for the prosecution function standard 3.3 dash one point to see prosecutors should avoid appearance of impropriety and performing the prosecution function. three dash 1.7 f, the prosecutor should not permit the prosecutor professional judgment or obligations to be affected by the prosecutors personal, political, financial, professional, business process pretty or other interests or relationships. so the rules that govern her in her own profession say that this is wrong because she's developed a financial interest in this case into the very least, created the appearance of unfairness towards these defendants by setting up a relationship prosecutorial relationship with

her boyfriend that she'd been dating for two years according to the testimony >> so >> before i move here, ana to the specific facts, ai you asked what's personal interests? i think frankly, as i was trying to figure this out, i think, you know what, when you see it, it's just like in the concurrence and jacobellis versus state of ohio supreme court case from 1964. justice stewart and in his concurring opinion said, i know when i see yeah. talking about obscenity, i think you know what when you see it. i think there's enough facts in front of you that, you know it when you see it and i think that the governing principle helps enlightened some of the facts here and also i think it's not just financial and mcglothlin we stayed i think courts very familiar with that case tu-95, georgia 609 2014, the supreme court essentially said that because the actin da 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 and not men because he was disqualified his entire office was disqualified >> so >> turning to the facts of the case, your honor, i think i've got my role is 20 minutes, so i've got about eight minutes left so why why did the relationship why did we spend so much time on a relationship between these two people? we frankly, couldn't care less if they had a personal relationship outside at 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. but what's even what's even more improper is then she she and he used that money to go on personal vacations and trips if your

honour will remember, exhibits 9, 11.12 dealt with the expenditures by wade on trips >> if you if you >> do the math on that, if you look at what what he spent and then you look at the testimony about what was paid back by willis because the cash reimbursement theory will i'll talk about in a second, but he if you, if you do the math on what he actually paid for him and what they testified she paid back in cash. you still have over $9,200.90, $200 in $247 to be exact? is the amount of money they cannot account for. in her testimony. and as you're on a rule, remember, there was no mention of cash and mr. wade's affidavit when the best and first opportunity to raise that issue would have come up is when the state file their response in his

affidavit, that is nowhere to be found in the first time we heard about cash was here in this courtroom and so i think she had he so she's received a personal financial benefit of over $9,200 in this case that she can't account for and mistake can account for. the reason we can't account for it is because they they came up with a cache theory. cash theory only, only rate we're going to that. >> let me ask you this. melissa, they couldn't have let's say the theory wasn't even there that they had paid it back or that there have been any exchange is should there be a consideration of a materiality requirement? now that you've seen that in this jurisdiction or not, it's not in this jurisdiction. have you seen any other jurisdiction? i haven't seen that, judge. and if it was $6, i would still be in proper would it be improper where it's a per say, disqualification of someone buys their boss of stick of gum. is that per say, disqualifying because there's no materiality requirement >> well, no, i don't disagree that it may not muted

materiality requirement, but it's a personal benefit. i won't say that getting back to gum is just justification for disqualifying a disregard think that's part of the issue, judge. i think it's a fact-based inquiries by you. >> so there's a continuum involved here. yeah. i but i think 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 there's 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 don't have to speculate about that. they said that they she said she got a benefit and she said she paid back certain amounts in that regard, your honor, i don't know what $100 be enough with $200 be enough. i think you have to look at it globally and consider all of the witnesses, consider all of the facts, consider consider the credibility of the witnesses. frankly. i mean, your honor, sat here and watched everybody, so i haven't spent a lot of time going into the specific testimony because your honors well aware of it, but you get to evaluate the credibility of the witnesses. there's the fact

finder and just for joining us from a legal perspective though, you're saying we can't just say dollar amount. look no further. there has to be a totality of the circumstances analysis i think i think it's fact specific, judge. i don't really want you to pin me down on that because there's no walnut. i can't give you a straight answer because i haven't seen anything like that. i don't and i think if we build a materiality requirement into the into the case law, then you're down, you're down a slippery slope that and because then it's going to be the appellate courts are going to be deciding what was $50 enough is $100 enough. so i think it's not necessarily the amount of the money. it's the fact that she received it and it's not insignificant. i don't think your order has to say because she received $9,200. she's disqualified. i think if we go back to the 20,000 foot level, where's the what's the appearance here? is this fairness to the defendants? does it appear that she is interested in this prosecution or does it appear that she's disinterested? she took the stand? you can tell she's not a disinterested

person when it comes to this proceeding, but we also argue she's not a disinterested person when it comes to the prosecution as a whole i'm going to leave for all resist the temptation to defend my wife and who i believe to be an excellent lawyer and member of the bar for 20 years in good standing. but i will say this, judge, you don't just evaluate the credibility of the witnesses you evaluate the credibility of the lawyers. and mr. body stood up here in open court in front of national news and the national public and called her a liar. i need to address that for one minute this technique, 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 for mr. bradley was absolutely 100% true. we not only was it true, she verified

through the witness himself at the motion was accurate for it was filed so for the state to get up here and impugn her credibility it's not only improper, it violates burger versus united states, which is a case that says the state can't just get up here and make any argument it wants and i encouraged the court to call him out on it when he did when he steps up here. do we have to have candor towards the tribunal. you cannot lie to the core cannot lie to the public, cannot lie to the jury. and i think that's what he did so there's other corroboration of our view that she she was in this relationship. i think, frankly, based on mr. bradley's testimony, your honor, can separate the wheat from the shaft when it comes to credibility, but he mr. bradley had two chances to correct information that he suddenly develop amnesia about, but he just didn't do it >> how does the timing of the relationship impact? a financial interest? >> because it's part of the scheme she created intentionally in order to give

benefits to her boyfriend. so they there's a reason why they fought so hard on in this, judge. i mean, there's a reason there's a reason that every single subpoena was objected to every single question we asked mr. bradley was objected to the jumping up and down all all of the obvious case. there's a reason for that. they know that if your honor finds that that relationship started in 2019, that the appointment of weight itself was improper, and if that was improper than he had no business as an average citizen along with the fact that he didn't have approval from they didn't have approved from fulton county to appoint him in the first place that undermines the indictment, create structural impairment in the indictment because he had no more business being in the grand jury room than i did so that's what they're worried about. and the reason why it's important for the financial piece judges, it's how the money ended up going back to her. she put her boyfriend in the spot, paid him, and then reap the benefits from it that she created the system and then didn't tell anybody about it. she didn't even tell her dad about it.

>> so i think >> in the grand scheme of things, if you're looking at the totality of the facts and i've got to sit down here about two minutes to make room for my co-counsel if you look at it, everything put together, judges, they tried they did this. they knew it was wrong. they hit it, and they didn't 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 mr. yeartie confirmed that mr. bradley his text messages were accurate, not his testimony, but but that fact was accurate. the motion is accurate. and so also, i do want to point out there's no paper trail here. now for the cash i know that this was i know she she and her father both testified both testified that they kept cash you're on hand, which i mean, keeping cash on hand in its in and of itself is not a problem. we're a public official and you're required to keep track

of gifts that you receive, then you need to keep track of it. but there's no paper trail. there's no deposit history, there's no withdrawal history, there's no receipt it's none of that. so even even assuming their testimony could be credible, and we don't think that it is, you still don't have enough information to keep to track all that money that she received this is just what would the lack of evidence fall in the state isn't that what business does the lack of adam's fall on the state isn't isn't that what burdens come in? >> it true? 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 didn't do it, we have to assume they can't. and if they can't i just want to remind the court of very important piece of testimony from ms willis that i think those two credibility of all of the officers of the >> court who testified she met with wade and they develop 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 we're that, your honour, unless you're on or has more questions for me, i'm going to sit down and turn the podium over to my distinguished colleague, mr. sadow. >> name mr. merchant. appreciate the court's time. >> good afternoon, your honor. >> i'm >> going to speak to what i would call a subset of forensic misconduct and i'm going to assume that all the law that's been provided to you in meetings as well as emails you know, you don't 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 roman council. this merchant filed on january 8 are 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's sunday, which would be january the 14th, 2024 da willis took it upon herself to go to a historic black church in atlanta, having not responded at all to the motion

of ms merchant's client, roman, and she made what we've now call the church speech. and your honor, has referenced to that. you didn't necessarily want evidence on that, but you know what the church speak? 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, too prejudice the defendant and their counsel. how 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 and nothing to do with race. it had to do with the relationship that had been alleged and later admitted to

buy ms merchant's ms willis took full opportunity to >> prejudice the defendant's and then comes along later in a pleading and says it wasn't designed or intended to be at the defendants at all, or they're defense council, which will 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 3.8 g it's no question about it. it wasn't in response to anything that was said. it was a public statement, extra judicial for the purpose of making a comment upon the defendants would it would be in response to emotion that was fine, but it wasn't filed in a response in a pleading. it was filed in

response to a motion and the motion were allegations made as if this 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 an ethical violation, and the ethical violation makes it clear that you must refrain from making extradition judicial comments that have a substantial likelihood of heightening public condemnation of the accused. can you think of anything more that would heightened public condemnation of the defendants? then alleging that the fence council and the defendants were making their motion based on race and religion that's just bad as it gets in fulton county with all due respect. that's exactly that's exactly what ms willis wanted done. and remember the states still had not responded so then what we get from the state is where you get an

affidavit filed as part of their response in that affidavit says specifically in the affidavit is mr. wade says specifically in paragraph 26.27 that the relationship did not begin until 2022 it acknowledges the relationship and says it didn't begin until 2022 and the pleading that's filed, the state's pleading a response indicates not exactly that, but it says there was no relationship as of november 1 of 2021, and that's on page seven so now we know that timing is the issue because this merchant made it clear that we alleged and had evidenced that indicated the

timing was before mr. wade was hired, not after the state now has filed an affidavit and a pleading that claims post hiring into 2022. and then mr. wade willis testified to the same thing under oath now, ms ert says it began in 2019. why would she know? she would know because she was a former friend. i know the state is going to get up here and say you can't believe essentially what they're going to say is you can't believe any defense witness because their defense witnesses and only people would tell the truth would be wade and willis i suggest to you that that's not accurate. i suggest that the testimony that mr. wade gave and ms willis gave, and i'm 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

toward the tribunal and that's 3.3 of the pressure rules. >> specifically >> small a one, make a false statement of material fact or law to a tribunal >> so that's >> as i posit to the court, that's the second ethical violation >> and then you also have 8.4 of the professional rules. it says it's a violation of the georgia rules of professional conduct for lawyer to and that's a4 engaged in a professional conduct involving dishonesty, fraud, deceit, or misrepresentation. >> now do you have to find that wade and willis slide know what you need to be able to find is that there is a concern of a >> gediman concern based on the evidence in this 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. that's enough. to disqualify. so why should you find there's a concern with their truthfulness >> here? t 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 that's bradley defense exhibit 26 came into evidence defense exhibit 26 comes in and says you know, i went into this the last hearing. it says >> that on january the fifth, 2024, at approximately 09:49 a.m. there's text messages

that are exchanged between this merchant and mr. bradley. and the text messages go like just date and that's from his merchant this 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's for a number of months this is not the first time. this is months within the communications between the two. mr. bradley says absolutely not absolutely is not a speculative word that's not speculation. that's a definitive statement and bradley, then unprompted as this and unprompted, it's important. it started when she left the da's office and was a judge in south fulton it goes on, this merchant says she

liked it started when she left the da's office with the appropriate emoji or whatever one would call it to say, it was liked. >> and then ms >> bradley mr. bradley say they met at the municipal court cle conference again, unprompted he's now definitively telling ms merchant when this relationship started ms merchant said that's what i figured when he was married. and then this merchant says, and we're now talking about a couple of hours later she texts and says upon information and relief, willis and wade met while both were serving as magistrate judges and began a romantic relationship at that time. and mr. bradley responds, know municipal court. thank you. it doesn't say it didn't start then he doesn't suggest that she's wrong other than

magistrate court municipal. now, >> we have that. it's in evidence. and what is bradley do he knows that he's put himself in a position that if he testifies truthfully on the witness stand your honor, isn't a position to be able to find if you choose, do they both willis and wade line? so what is bradley do? but you weren't assistant us 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. couldn't 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 wise, and the truth isn't defense exhibit 26.

>> and so if we take that view that he thoroughly impeached himself, but he did not give truthful conduct what's left standing generally, you would see someone who's in p-hat. perhaps we have some kind of core that you could point back to and say that's 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 a assertion outright. absolutely usually, if a state has a witness that goes sideways, they've got them locked in and they've sat down with a detective. i've got a full statement we don't have that here. >> well, what you have is a 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 is just noted is how do we know he wasn't speculating because you don't have to accept the fact that he wasn't

speculating the cases that i provided. i think by email yesterday, the first dealing with that, you can disbelieve that testimony and draw negative inference. that's 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 that's what i'm asking you to do to take what was the unprompted statement in defense exhibit 26? 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 don't know if this is something maybe one of your co-counsel, we're going to dress as well. we heard about the law applies. hour. we're outside the orbit of the core of cases were used to dealing with here where it deals with sides switching more where someone is in the relationship

the client relationship the proposition you're putting forward now is that if a representative, the state a lead prosecutor, the district attorney themselves assess something that's untruthful on the record that is something that immediately has to be proactively policed by the trial court is basically what i'm getting at is where in the law that we find the remedy to an untruthful statement generally we send you down the street to the bar, right? >> and that's why i gave you the cases of registry and edwards yesterday while those aren't prosecutorial cases are dealing with prosecutors, they deal with counsel. and in both those cases, the trial judge found ethical violations on the part of defense council or potential ethical violations, went through the ethical violations and said, based on that, you are disqualify, you cannot be the attorney of record in

>> extra judicial statement those are the things that this court can rely upon and say based on those, again, i find it appearance of >> impropriety. >> where would be the limiting >> principle the district attorney signs every >> indictment assigned to this >> courtroom. >> yes. i mean, she's off every case no, it would be when if i've found that she's untruthful, is that what you're kind of suggesting that you don't have to find. again, i'm not saying you have to find she was untruthful or the wade was untruthful. you don't have to make a finding of fact that they lie. all you have to do is make a finding of fact that you have genuine, legitimate concerns about there the credibility about their truthfulness. >> and once you >> find that, then you can

apply register and edwards. >> well, but it's the same principle that if i have genuine concerns about her truthfulness on a particular occasion, how do those not spill over into every criminal case? a district attorney brings? >> well, it's because she testified under oath. and so did mr. wade. they didn't 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 don't tell the truth under oath, or there's a significant concern about their credibility. they violating their ethical rules. and it's anyone will tell you as your honor, already knew

from when you were a prosecutor prosecutors are held to a higher standard they're the ones that are supposed to be seeking justice. they don't have a particular supposed to be disinterested when you have the lead prosecutor and the da giving what i suggest to you is untruthful testimony based on what ert has said, based on what bradley said in his text, based on the whole way it was presented to you, bradley didn't want to testify. he first came up with this attorney-client privilege thing on that and you're on hunter 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 i've suggested on bradley that's what he said in a text message defense exhibit 26 is true. the relationship, in fact, started prior to november 1 of 2021. that yeartie says that and now,

without getting into any detail cell phone records, the cell phone records show that during that period of time from let's say, april 1 of 2021 to november 1st. i'm sorry, november 30 of 2021, that there was a number it 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 saying and yeartie's department but more important is there are two occasions in 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. state may say we don't accept that but they didn't challenge it. and even when they brought forth, but they brought forth today supplemental 2.3, they didn't challenge it again. so what does that suggest? >> that's

>> corroborating evidence of what year tay had said of what bradley said in his text message. it's also impeachment evidence as to what wade and willis plus said about how many times is that a significant in terms of just the times didn't mr. wade testified that he was there at least ten times during that timeframe. you've now found 35 well, minimum of 35. okay. but never overnight. he said he never spent overnight. >> but that to the side though, just in terms of the fact that he did say we've been over there that had visited the place and presumably wasn't obviously keeping a very good accounting of it, but that wasn't something that was entirely denied i >> if you're asking me, do we win on the point that he said more than ten are around ten and we say 35. do we went on that point or no. >> okay. it's not determined the overnight rate might raise some more concerns understood. it does. and that's the reason why we highlighted in the affidavit of mr. mental status, because that is the just that

they were not being honest to the court so then how much time with my use have i i'm letting them use the hook so suggestive. again, raising issues. i'm wondering about burden as it were dealing with a preponderance standard we are dealing with the preponderance standard in its far burden. >> no question about that. >> so to suggest that get us there >> nobody it is corroborating evidence of evidence that we did put up and that's what the purpose of the cell phone records they corroborate what year t says. they corroborate what bradley said. defense exhibit 26 and they impeach to that extent, way they willis testimony so if you find by a preponderance of the evidence on me, so i can finish this up. if you find by a preponderance of the evidence that my 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 disqualified. >> now, obviously, factual >> findings are yours, but the law allows you to do that. you don't have to do it through an actual conflict that's the other side of the equation. and that's what i've argued and i think that's what mr. gibbons before i let you go though, this is an interesting classification you're saying forensic conduct isn't just commenting publicly about the >> case indicating guilt. you're saying forensic conduct is just anything a district attorney says, no, i was under that box. i'm saying that improper forensic misconduct as a subset of that would clued violations or ethical violations which impact the ability of the defendants to get a fair trial, as well as impact the court's ability to have faith that the prosecutors these two prosecutors, are acting in good faith in their own conduct same idea of

dealing with, as i said, defense council 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. santa. thank you. >> where's the shot clock when you needed right? your? honor, i want to address very directly here what we have is a a systematic, continuous pattern a calculated plan evidencing, designed to prejudice the defendant's in this case in the minds of the jurors this this is what we have seen. this isn't an the problem that the district attorney has. it's not that the district attorney had some sort of brief off the cuff statement in an interaction with a reporter like and williams, that's all we have here. we have someone who's sat down, wrote out her

speech, wrote out her plan who wrote as sat down for whether it's sick to three or six times with the editors of fine 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 take it you are your team has died and and read read the book. i know she was asked about specific portions the only case that i can find actually talking about when someone crosses the line on public comments, is that william's case? and it talks about there has to be an application of saying the defendant a particular defendant is guilty. and it even denied it. right. >> so have you found any case in georgia? >> were they >> actually said that a prosecutor had gone too far in their public comments. does one

exist? >> well, number one, thank goodness, it doesn't happen often, sadly, it's already happened here. now in williams, the prosecutor had one response to an inquiry of the court found it was improper, but did not have this pattern. now, it doesn't necessarily mean i comment about the quote, guilt or innocence, although that was a pattern in williams, it's the improper comments by a prosecutor for example, in williams, they cite the nature and consequences of forensic misconduct and prosecution of criminal case, a 1955 laws of columbia law school, article. and how prophetic that was when they went were williams sites that case in their law school article, they talk about an awful lot more than simply a comments about about specific if it guilt references to guilt, which you have here.

your honor, is a comment and we can't look at it, doesn't apply only if a prosecutor said, i think the defendant is guilty in my mind no, it's 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 coordinate stv texas talks about and that is that pretrial can create major problems for defendant indeed more harmful than publicity during it for all read may set the community opinion as to guilt or innocence. that's what we have here. that's exactly what we have. and the court and estes talks about the power of the television camera. >> so what >> what do we have and what did, what did this prosecutor do? what she chose to do is sort of what was criticized by

the supreme court and shepherd the maxwell legal trials are like, are not like elections to be won through the use of meeting halls the radio, or are the newspaper that's exactly what we have here what we have is a deflection. what this is all about is, is more insidious than just making the comments that she's made. it say 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 what did they do? now when ms merchant file the motion to disqualify i now, the game plan has to change. the game plan. i call the deflection, begins to

take place that reflection is when the, when the, when the district attorney sat down and wrote out. but look at the look, i'm sure the court has when you look at that video, it's in evidence of her speech, a church she has written now at everything and she's reading from it. she chooses to deflect the court asked earlier, wasn't she really responding to the motion that had been filed against her? would that she had because if she had she would have looked a members of that church in the face and say, i have been there's been an allegation that i had a romantic relationship with mr. wade and ladies and gentlemen, that's congregation. it's true she didn't do that she chose to deflect and to do two things that are rep. free hansel for any lawyer, but particularly for a prosecutor. she chose to pull out the race card and the god card.