live in the moment. ask your doctor about otezla. >> okay, so this is clearly the most important day of what is happening in that courtroom. fani willis, she hired her lover to work with her. the question has always been since she put him on the payroll, and paid him more than any other prosecutor in her office, then he was heading her piles of cash as reimbursement, they said because she wanted, like, a dutch situation where she paid have her affair. and her dad backed her up without saying that black folk do that, very insulting. "america reports" now. the case is set to start. ♪ ♪

>> no, no, no, this is the truth, the judge. it is a lie. it is a lie. >> our relationship was not a secret. it was just private. >> did you observe them do things that are common among people having a romantic relationship? >> yes. i like grey goose. >> you never wrote him a check. >> i don't have checks. >> cash is fungible. >> i gave my daughter her first cashbox and told her, always keep some cash. most black folks, they hard cash. i'm not on trial no matter how hard you try to put me on trial. >> just some of the most memorable moments of fani willis and special prosecutor that she hired. closing arguments are set to begin in moments in the hearing that could see both willis and wade disqualified from the georgia election meddling case and with that, so begins friday

afternoon. i'm john roberts in washington. good to be back with you, cassandra. >> great to be great to be with you. anything could happen here. i'm sandra smith. this is a live look right now at two courthouses. more than 500 miles apart. willis is fighting to remain on the trump case. at issue, of course, the timing of that romantic relationship with nathan wade whether it created a conflict of interest. meanwhile, former president donald trump is in florida. where a judge is wearing a start the day for his classified documents case. >> john: as scott mcafee is getting ready, let's go to our panel. shannon bream. gerry vaughn is fox news legal editor. let's start with you. based on what you have heard throughout this whole affair, where do you expect the judge is going to go in his ruling?

>> is starkly different than what we saw a couple weeks ago when you had them on the stand under oath saying this started after i hired him. we always expect these expenses. there's nothing to see here. these allegations are nothing but a political witch hunt as we are trying to prosecute people that we argue tried to overturn the 2020 election but since then, we have had all kinds of new cellular data and texts and testimony that paint a very different picture which now asks the question about whether these two may have potentially perjured themselves. this judge is seen as neutral and fair and very contemplative. i don't think we will hear something from the bench but i don't think it will take them too long. >> this is terrence bradley asked on tuesday whether he lied about willis and wade. listen here. >> did you tell her any lies about mr. wade and miss willis' relationship? expected i like --

>> did i lie? >> that is a simple question. you are a lawyer. >> not that i recall. i don't recall. >> is that something you normally do, mr. bradley? do you tell a lie about -- lies about their friends? >> have i told lies about my friends? i cannot, your honor. >> khyree, that was a pretty simple question. >> yikes. it makes you question him as a friend and the reason they were getting to that point with him was because he had told the defense attorney in a text message that quote, absolutely wade and willis were romantically involved prior to when they put the event that they were in court and shannon's point, the problem is if they relied on a court filing, that is a crime. and they would have to deal with that separately but that would almost certainly be grounds for disqualification and the fact that he said absolutely in the text, then cannot remember if he wrote the text and then went on to say, what i said, actually, i was just speculating.

>> john: you mentioned the text and bring up the text messaging. ashleigh merchant starts out, why she would hire him is insane. like just dating, don't hire him. you think it started before she hired him? absolutely. it started when she left the d.a.'s office and was judge in south fulton. ashleigh merchant, like -- it started when she left the d.a.'s office and was terrence bradley, the municipal court conference. merchant. that is what i figured when he was married. a couple of hours later, is this accurate upon information and belief, willis and wade met while both were serving as magistrate judges and began a romantic relationship at the time. municipal court, merchant, thank you. bradley, but you can't put where they meet, not many people know that. he was afraid, shannon of being smoked out here and he was the source of this information and then when he got on the stand

last week, all of it seemed to completely escape his memory. >> shannon: yes, there were a lot of "i can't recall." but he tried to get out of this altogether because he said at one point he was a legal partner of nationwide -- nathan wade and that he served as an attorney and his worst case. and so this judge, scott mcafee, had a hearing of camera and said let's take a look at this. is there privilege? what is going on here? he decided there was enough that terrence bradley need to move forward and take the stand and he cannot recall anything. the standard here is if there's evidence, it comes to an actual conflict or the appearance of one, so the judge has a lot of latitude and a lot of folks would argue race on what they have seen the last few weeks, you could argue that there is an appearance that there are some things that don't me all of the ethical standards that should be met. >> sandra: kerri, what we were hearing from the judge, it will

be 90 minutes for both sides. right now, the judge was just going around a few seconds ago. we will get in here and take his life for our viewers. meanwhile, kerri, this was the willis friend and coworker contradicting quite clearly willis and wade's claims in the timing of their relationship. this was another key moment. >> so you know that their personal relationship began shortly after this municipal court conference. >> yes. >> and do you understand that their relationship began in 2019 and continue until the last time you spoke with her? >> yes. >> sandra: all right, i mean, there were so many moments, kerri, where we could point to where the scott massey. >> kerri: and today we can also. >> the doors as part of the closing arguments with her cell phone data from nathan wade's phone should be admitted.

why does that matter? because according to defense, that data shows that wade was in the neighborhood at least 35 times prior to when she hired him. it also shows according to their affidavit, 12,000 cell phone interactions in that year. they would maybe say that is platonic. but nonetheless, it does us a better sense of the depth of their relationship prior to at least when they say the romance began. >> john: what they are discussing now is whether or not they will hear more evidence either now or after closing arguments. and they are in here, more evidence later. the really interesting aspect, to the control room, this will be a call for number three here. don't put it up just yet because i want to make this point. ashleigh merchant has been around these circles in fulton county in georgia for a long, long time. when i was in the atlanta bureau

2011 through 2016, she would come in a couple times a month to be an analyst on fox and fox business. she was friends with nathan wade. she was also friends with terrence bradley. in fact, now let's put it up on the screen. ashleigh merchant, as she is discovering all of the stuff, text, terrence bradley and says, i'm nervous. this is huge. bradley. bradley? back to you are huge. you will be fine. you are one of the best lawyers i know. go be great. i would hazard to guess, shot into those relationships that she had with these two gentlemen professionally, they have been blown sky high but all this. >> i would say there's a little stress there have been to an up to her again and again after they have had all the conversations, those text messages are out there and to say i don't recall, it was speculating after it sounded like in these text messages he was urging her to move forward with this idea that he had information that was going to

back her up. remember also that the willis was disqualified back in 2022 over an earlier part of this investigation having to do with the lieutenant governor because she had taken part in some way connecting to a fundraiser for his democratic opponent and the judge said, she can be political but her cases can't be and so we will have to see if scott mcafee, the judge in this case, it follows along those same threats about whether or not this issue is -- has become political and whether there's been enough of a -- an appearance of conflict to create trouble. >> sandra: we will get in there life when it does happen. kerri, to you in. >> this is willis in what was really a game changing moment in all of this. when she was -- she was offering her testimony, took the stand and said, she is not on trial. watch. >> i object to you getting into people's personal lives. you are confused. you think i'm on top -- trial.

these people are on trial. >> sandra: going back to the very beginning, really remarkable how she came out in all of this. >> kerri: and the state of her trial is on trial because if she is disqualified in her office is disqualified, this will move -- be moved elsewhere and they will take a look at these charges against donald trump and the codefendants. there is typically something used against members of m.s. 13 and the mob and say, this is ridiculous. we are not bringing these charges but there's a lot at stake here. >> kerri, we got to jump in because the closing argument are about to get underway in fulton county and it looks like here we go. stand by, 90 minutes per side. >> may it please the court, your honor, john merchant on behalf of mr. roseman by way of roadmap, the allocation of time and what i'm going to be covering. i've been charged with talking to your on about the conflict

issue and the appearance of conflict and what we believe the evidence to show on that issue. mr. saito, mr. gillam will be talking more about the forensic misconduct piece of it. miss willis' church speech, statements made to the media. fraud on the court. frankly and the book that she gave. so i won't be discussing any of those issues. if you would like to ask me, i can address them. but that is going to be the focus of their presentation and then towards the end of the folks who may have issues specific type arguments for mine or the misconduct. but those are the two lanes that we're going to be covering but i'm going to be doing the conflict piece of it for you and on that issue, your honor, this is a matter of first impression in georgia. i can't find a single case that has been published by the court of appeals or the supreme court that is based on these facts. there are of course a 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 a state law. some of them are based on the ethical rules that govern lawyers. some of them are based upon the sixth amendment ri right of due process. i want to remind the court that we are here today on this motion to disqualify the willis and her office because of her judgment frankly. she is disinterested under the amendment and she is anything but that put the fact that these proceedings have taken this long to the convoluted way he we have made it through today,, explain that xo as i present my arguments, i want court to understand that this court represents the guardrails for the sixth amendment and in this context and miss willis has already been disqualified once. 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 interest might be sufficient under the facts. i want to make clear to the court that the law in georgia suggests and is very clear that we can demonstrate an appearance of a conflict of interest and that is sufficient. there is -- i'm going to be candid with the court. there is a supreme court decision from 1996 and then there are two court of appeals decisions after that that deal frankly in some data that suggest that actual conflict is required. the supreme court of georgia since those decisions came down has made quite clear that the appearance of conflict standard still applies and the reason that is important is i think other the sixth amendment which is where we are at, in order to preserve the defendant's rights under that provision and another quarterly provisions of georgia law. you have got to consider the appearance of a conflict.

and the reason why the appearance of the conflict is so transient here is because if this court allows this kind of behavior to go on and allows the ace across the state by its order to engage in these kinds of activities, the entire public counsel -- 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 return to the law in georgia on disqualification and your honor, i'm going to give you the law and i'm going to talk about the facts and how they apply to the law and if you want to talk about the text earlier, jump right in and i will be happy to do that. i'm sure he probably knows all the law. but to give the skeleton out outline, the original seminal case that deals with conflict of interest from the georgia supreme court is williams the state. that is 258 georgia 305 and they

are basically two methods by which you can disqualified district attorney. one of them is a conflict of interest and i will suggest to the court that does not mean an actual conflict. that could mean an appearance of conflict as well and then forensic misconduct. importantly, in the williams case, and i think this is important for the court's announces about the facts and where each box fixed into. the court said there is no clear demarcation line between conflict of interest and forensic misconduct and given grounds for disqualification prosecutor might be classifiable as either, and i think that is important because we have facts that fit in the boxes. so if the state stands up and says, well, there's no actual conflict here, george, to the mean necessarily that it does not apply to the forensic misconduct. typically forensic misconduct relates to statements of the prosecutor designed to impugn the character of the defendant before trial. and to affect the jury pool. which we have here, which are not going to discuss. but the fact that we have here very much related to that issue and a crossover.

importantly, and i think this is important for the court's consideration of the facts of the court' is willing might have is if you deny this motion, there's a good chance if it is reversed that we will be granted a new trial. so that means we're going to have to do this all over again. in amusement sales versus state 360, georgia appellate 727, that is a case that sites with words, which is physical president only. the court said if the assigned prosecutor has acquired a personal interest or stake in the connection the trial court abuses its discretion in denying a motion to disqualify him and the defendant is entitled to a new trial, even without a showing of prejudice, so that means if we show the court today and we have through the proceedings today and before that miss willis has developed a very personal interest in this case and your audit denies this motion coming back all over again. if the appellate courts say you

were wrong. >> what is that personal interest? >> so that personal interest can be -- there's no definition of that under georgia law and it could be a personal financial interest. it could be a personal interest related to bias against a particular defendant, which sort of falls into the forensic misconduct box. we have here a very personal financial interest that has been laid out in terms of money received by miss willis as a result of the scheme that she sat up and to get to the issue of the personal interest in the context of an appearance, i think that is important. i do want to suggest to the court that there are a number of cases that postdate this actual conflict of interest language that suggests 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 estate is going to stand here and say can be a speculative or conjectural time of personal interest. we don't have that here. we have something very concrete. as the judge put it, actual and probable not speculative and remote. that is exactly what we have here but we have demonstrated to the testimony of witnesses, some of whom impeached themselves that we have a very personal interest. in the symbol united states court case, it deals with prosecutorial and propriety. young vus. and that case, it is the opportunity for conflicts to arise that rated at least the appearance of impropriety. and that is the case that requires that the prosecutor be disinterested since a scheme injecting a personal interest financial or otherwise into the enforcement process may bring

irrelevant and impermissible factors into the prosecutor will decision. there are number of georgia keys that repeat that theme, reeves v state, georgia appellate 22, that is 1998 case. the state of a potential conflict of interest in the proprietary. 157 georgia appellate 704, 1981 case. that was decided seven years before williams. and there is at least the appearance of impropriety in the defendant denied fundamental fairness in the state's persecution of the charges against him or her. there are also rules that govern prosecutors, lawyers in general are bound to preserve and avoid even the appearance of impropriety. that is brown v state, georgia appellate 603202, 2002, had v state, they prosecutors close personal relationship with a victim in the case. it created at least the

appearance of a prosecution rather than one property based on vindication of public interest. ava criminal justice standards for prosecution function standard 3.3-1 -- prosecutor should avoid appearance of the proprietary and perform the prosecution functions. 3-1.7f, the prosecutor should not permit the prosecutor professional judgments or obligations to be affected by the prosecutor's personal political, financial, professional business property or other interest or relationship speaks of the rules that governed her in her own profession say that this is wrong. because she had developed a financial interest in this case. and to the very least, created the appearance of unfairness towards these defendants by setting up a relationship, a prosecutorial relationship with her boyfriend that she had been dating for two years according to the testimony. so before i move, your honor, to the specific facts, you asked what is personal interest.

and i think frankly, as i was trying to figure this out, i think you know when you see it. it is just like in the concurrence and jacob alick versus the state of ohio, the supreme court case from 1964, justice stewart in his concurrent appearing opinion said, i don't want to see you talking about absurdity but i think you know when you see it. is good enough tracks in front of you that you know when you see it. so i think that, they governing principle helps in 19 some of the facts here. and also, i think it is not just financial and mclaughlin v state, i think there is very familiar with that case, 295 georgia 609, 2014, the supreme court essentially said that because the fda had become a witness in the case and developed a personal interest in the case due to his daughter's relationship with the victim, that he was disqualified. and because he was disqualified, his entire office was

disqualified. so turning to the facts in the case, your honor, i think i have got -- my role is 20 minutes so i got about eight minutes left. so 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 of work. that is not with the issue is here. the issue is that it big -- they began this relationship in 2019, they were dating for two years, and then she awarded him a contract. public money either from fulton county or the state of georgia ended up in his pockets. that decision alone was improper. what was even more improper is that then she and he used that money to go on personal vacations and trips. if your order will remember exhibits 91112 dealt with the expenditures. by wade on trips.

if you do the math on that, if you look at what he spent in the new look at the testimony about what was payback by willis because the cash reimbursement theories, i will talk about in talk about in a second. but if you do the math on what he actually paid for and what dave testified she payback in cash, you still have over 92,000 -- $9,200 in -- is the amount of money they cannot account for in her testimony. and as it will honor will remember, there is no mention of cash in mr. brady's affidavit when the best and first opportunity to raise that issue would have come up is with the estate filed the response in the affidavit, that is nowhere to be found. the first time we heard about cash was here in this courtroom. and so i think she had lost so she has received a personal financial benefit over $9,200 in

this case that she can't account for in the state can't account for the reason we can't account for it is because they came up with the cash three. cash three only raises —-dash. >> judge mcafee: before we get to that, let me ask let me ask you to say. let's saint nicholas zaid to ring was not even there that they had paid it back or that there had been any exchange pictured there first be a consideration of the materiality requirement? >> john: no. >> judge mcafee: indigenization does have you seen any other jurisdiction? >> john: i have not seen that charge. if it was six dollars, that would still be improper. >> judge mcafee: would it be improper if someone buys their boss a stick of gum? is that per se disqualified because there's no materiality required. >> john: i don't disagree that it may not mean those with a materiality requirement. i will say that given a pack of gum is just a justification for disqualified -- i think that is part of the issue, judge. i think it is a fact based on inquiry, by you.

>> judge mcafee: so there's an inquiry involved here. >> john: but i think it looks at whether or not on the grand -- in the grand scheme of things, it violates constitution and whether or not there's an appearance of a conflict and the parents suggest that she received a benefit and we know that she did. they admitted it. we don't have to speculate about that but they said no she said that she got a benefit and she said she payback a certain amounts. so in that regard, your honor, one -- $100 be enough? i think you have to look at it globally and consider all of the witnesses, consider all of the facts. consider the credibility of the witnesses, frankly. i mean, your honor sat here and watched everybody. so i have not spent a lot of time in the specific testimony because your orders are aware of it. when you get to -- factfinder. and you know,. >> judge mcafee: just from a legal perspective, you can't just say dollar amount, look no further. there has to be a totality of the circumstances and analysis.

>> john: i think it is fact specific to a judge. i don't want -- there's no law and it. i can't give you a straight answer because i have not seen anything like that. and i think if we build the materiality requirement, into the case law, then you are down as most because then it is going to be very -- and the appellate courts are going to be decided if it $50 enough, is $100 enough? so i think it is not necessarily the amount of that money. it is the fact that she received it, and it is not insignificant. and i don't take your order has to say because she received $9,200, she is disqualified but i think if we go back to the 20,000-foot level, risko does what is the appearance here? is this furnace to the to defen? does it appear that she is interested in this prosecution or does it appear that she is disinterested? she took the stand. you can tell she is not a disinterested person when it comes to this proceeding. we also argue she is not a disinterested person when it comes to the prosecution as a whole. i'm going to leave for those i

will resist the temptation to defend my wife who are believed to be an excellent lawyer and a member of the bar for 20 years. in good standing. but i will say this, judge. it'll just evaluate the credibility of the witnesses. you evaluate the credibility of the lawyers. and 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. because text messages that are now part of the record which now are substantive evidence for you to consider. for everything that she put in that motion, everything that she tried to elicit for mr. bradley was absolutely 100% true and only was it true, she verified through the witness himself the motion was accurate before it was a vile. so for the state to get up here and in impugning her credi credibility, it is not only improper, it violates broker 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 encourage the court to call him out on when he steps up here. we have to have candor in the tribunal. you cannot lie to the court. you cannot lie to the public. you can apply to the jury and i think that is what he did. so there's other cooperation of our view that she was in this relationship. i think frankly, based on mr. bradley's testimony, your honor can't separate the wheat from the chat when it comes to credibility but mr. bradley had two chances to correct information that he certainly developed amnesia about and he just did not do it. >> judge mcafee: how does the timing of the relationship impact financial interest? >> john m: because it is part of the scheme she created intentionally in order to get benefits to her boyfriend. so there's a reason why they fought so hard on this, judge. 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. or jumping up and down, all of the obvious stuff but there's a reason for that. they know that if your honor finds that relationship started in 2019, that the appointment of wade itself was improper and if that was improper, then he had no business as an average citizen along with the fact that he did not have approval from fulton county to point him in the first place that undermines the indictment. because he had no more business being in the grand jury room then i did. so that is what they are worried about and the reason why it is important for the financial peace, judge, it is how the money went back to her but she put her boyfriend on the spot and then reaped the benefits from it. she created the system. and then did not tell anyone about it. she did not even told her dad about a picnic at the grand scheme of things, if you're looking at totality of the fa facts, and i have got to sit down here for two minutes to make room for my cocounsel. if you look at it, everything

put together, judge, they did this. they knew it was wrong. they hit it and if and 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, confirmed that -- mr. bradley, his text messages were accurate, on his court testimony. but that that fact was accurate. that motion is accurate. and so also i do want to points out, there's no paper trail here for the cash. i know that this was -- i know she and her father both testified that they kept cash on hand, which, i mean, keeping cash on hand in and of itself is not a problem. but when you are a public official and you are required to keep track of gifts that you received, 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 receipts but none of that. so even assuming your 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 and this is just -- >> judge mcafee: does the lack of evidence fall on the state? does the lack of evidence fall on the estate? isn't that where bertans comes in. >> john m: yeah, i think they had an obligation to tell your honor, hey, this is where that money went. and they had the ability to do that. since they did not do it, we have to assume they can't and if they can't, i just want to remind the court of a very important piece of test money from miss willis and i think it was sent to the credibility of all of the offices of the court who testified. she met wade and they developed in 10 minutes after talking to the financial peace, i believe this cash theory. that cannot be rebutted. we have no ability to do that. they did. and they chose not to do it. so with that, your honor, unless your honor has more questions for me i'm going to sit down and turn the podium over to my

distinguished colleague, mr. stayed out. >> judge mcafee: okay, mr. merchant. >> john m: i appreciate the court's time. [papers rustling] >> 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 of the law that has been provided to you in pleadings as well as e-mails, you know you don't need me to tell you with the law is. so i'm going to set up how the disqualification and the dismissal of the indictment should take place under the subset of forensic misconduct.

romans counsel, miss merchant filed on january 8th, her pleading, her motion to dismiss and to disqualify. we were in court the friday of that week in which i've made it known that we, that is president trump may adopt that motion. i waited to see what was going to happen before i did so. that sunday, which would be january the 14th, 2024, the eighth willis took it upon herself to go to a historic black church in atlanta having not responded at all to the motion of miss merchant's client and she made what we now call the church speech and your honor has a reference to that. you didn't necessarily want evidence on that but you know

what the -- church speech was. it was videoed. it was clear that she had knows. she was reading from notes that she had prepared. it was a calculated determination by miss willis to prejudice the defendant and their counsel. how so? 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 it had nothing to do with grace. it has to do with the relationship that had been alleged and later admitted to by miss merchant. miss willis took full opportunity to prejudice the defendants and then comes along

later in a pleading and says, it was not designed or intended to be at the defense counsel which with all due respect is just nonsense. the purpose of that was to get public sympathy, public empathy for what mitch burton had already alleged in her motion. now, that was a violation of the professional rules of conduct. it was a violation of 3.8g. it is no question about it. was it written response to anything that was said? it was a public statement, extrajudicial for the purpose of making a comment upon the defendant. >> judge mcafee: would it be response to a motion? >> steve: it was not respond -- filed an response to a pleading. it was filed in response to emotion and the motion or allegations made as -- if miss willis wa wanted to respond at t 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 a traditional who comments that have a substantial likelihood of heightening public condemnation of the accused. can you think of anything more that would heighten public condemnation of the defendants alleging that the defense counsel and the defendants were making the motion based on race and religion. that is as bad as it gets in fulton county, with all due respect. that is exactly what ms. willis want -- wanted done. and remember, the state has still not responded. so then what we get from the state as we get an affidavit filed as part of their response. and that affidavit says specifically in the affidavit is

mr. wade. says specifically, in paragraph 26 and 27, that the relationship did not begin until 2022. and acknowledges the relationship and says it did not begin until 2022. in the pleading that is filed, the state's pleading of response indicates that exactly that but says there is no relationship as of november at 1 of 2021. and that is on page seven. so now we know the timing is the issue because miss merchant made it clear that we alleged and had evidence that indicated the timing was before mr. wade was hired, not after. so the state now has filed an affidavit and a pleading that claims post hiring into 2022.

and then mr. wade willis testified for the same thing under oath. now, miss your kid says it began in 2019. why would she know. she would know because she was a former prospect under the state is going to get up here that you can't believe any defense witness. and only people that would tell the truth would be wade and willis but i suggest to you that that is not accurate. i suggest that the testimony that was -- mr. wade gave an miss willis gave an specifically dealing now with the timing issue. without getting into anything else. that that brought forth a true concern about their truthfulness in being what is required of a lawyer in the state, which is candor of the tribunal. and that is 3.3 of professional specifically small a1 could make a false statement of material

fact or law to the tribunal. to that, as i posit to the court, that is the second ethical violation. and that you also have 8.4 of the professional rules that says it is a violation of the georgia rules of professional conduct for lawyer two as a4 to engage in a professional conduct involving dishonesty, fraud, this vision is, representation, do you have to find that wade and willis right? no. what you need to be able to find is that there is a concern, a legitimate 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, the law in georgia is clear, that is enough to disqualify you.

so why should you find there's a concern with their truthfulness? [indistinct] is the first one. you have that to find. that you go to what is the most obvious indication. that willis and wade were not truthful at the point of timing. and and the bradley. defense exhibit 26 came into evidence. defense evidence "america reports" comes in and says and you know i went into this here. it says on january the fifth, 2024, approximately 9:49 a.m., this, text messages that are exchanged between ms. merchant and mr. bradley. and the text messages, [indistinct] just date. that is from miss merchant.

miss merchant says, do you think it started before she hired him? bradley, who we are now a note from defense exhibit 39 has been texting with miss merchant for a number of months. this is not the first time. this is months within the communications between the two. mr. bradley says, absolutely. now, absolutely is not a speculative word. that is not speculation. that is a definitive statement. and bradley eaton unprompted as this -- says this and unprompted is important to get started when she left 38 office office and was a judge in south fulton. it goes on, miss merchant says, or she -- it started when she left the d.a.'s office. the appropriate emoji or whatever one would call it to

say it was like. and then street ready said, they met at the municipal court, c.l.e. conference, again, unprompted. he is now definitively telling miss merchant when this relationship started. miss merchant said, that is what i figured. when he was married and then miss merchant says and went on talking about a couple hours later. she texts and says, upon information, willis and wade met while both were serving as magistrate judges and began a romantic relationship at that time. and mr. bradley responds, no, municipal court. thank you. but does not say it did not start then. he does not suggest that she is wrong other than magistrate court municipal. now, we have that and it is in evidence and what is bradley do. he knows that he has put himself in a position. that if he testifies truthfully

on the witness stand, your ho honor is in a position to be able to [indistinct] -- find that both willis and wade lied. so what does bradley do? if you are an assistant u.s. attorney, you know how this works when you have witnesses in the situation. mr. bradley did everything he could possibly do to evade answering questions. no recollection. could not 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 is in exhibit 26. >> judge mcafee: and so if we take that view that he thoroughly impeached himself and he did not give truthful con conduct, you know, what is left standing?

generally, you would see someone who is impeached, perhaps we have some kind of core that you can point to an essay, that is the time he was telling the truth and these text messages, is it ever definitively shown how he knew this and that he actually did know it other than just an assertion outright absolutely? usually if a state has a witness that goes sideways, they have him locked in. they have sat down with the detective, got a full statement. we don't have that here. >> steve: but what you have is the 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 just noted is how do we know he was not speculating because you don't have to accept the fact that he was not spectating. the case those cases that are provided i think by e-mail yesterday, the first dealing with that, you can disbelieve that testimony and draw a negative inference. that is the case. the other case you can simply

take the consistent statement has a substantive evidence. has the same value and that is what i'm asking you to do, to take what was the unprompted statement in defense exhibit 26 of bradley and take that on its face to face value and that is an indication that bradley in fact new and said he did. if you accept that, you have to have concerns about the truthfulness of willis and wade on the timing issue. >> judge mcafee: i don't know if sub -- this is something they are going to address as well. we heard about the laws outside kind of the orbit of the core of cases we are dealing with here where it deals with side switching or where someone is in the relationship, the client relationship the proposition you are putting forward now is that if a representative of the state, the lead prosecutor, the district attorney themselves

says something that is untruthful on the record, that is something that immediately has to be proactively policed by the trial court. basically what i'm getting at is, where in the law do we find the remedy to an untruthful statement? generally we sent you down the street to the bar, right? >> steve: and that is why i give you the cases of the street and edwards issued it. those are not presently, the total cases dealing with prosecutors but they do with counsel. and in both those cases, the trial judge found ethical violations on the part of defense counsel or potential ethical violations. went through the ethical violations and said based on that, you are disqualified. you cannot pay the attorney of record in this case. what is good for the goose is good for the gander. of the defense counsel can be kicked off the case because of ethical violations, i suggest the same thing can happen for prosecutors when violations deal

with truthfulness, candor to the court, extrajudicial statements, those are the things that this court can rely upon and say based on those, again, i find the appearance of proprietary. and eight where it would be principle that the district attorney signs every indictment? and every case? >> steve: if it would be -- >> judge mcafee: if i sound that she was untruthful. >> steve: i'm not saying you have to find she was untruthful or the ghost you don't have to make the finding of fact that they lied. all you have to do is make the finding of fact that you have genuine legitimate concerns about their credibility. about their truthfulness. and once you find that, then you can apply magistrate and edwards. >> judge mcafee: but it is the same principle, though, if i have dan roan -- genuine concerns about the particular occasion and spilling over into the criminal case that the

district attorney brings. >> steve: it is because she testified under oath and so did mr. wade. he did not have to testify falsely. they could have testified truthfully. they could have indicated that that relationship, the timing, it was, in fact, for those before mr. wade was hired. they chose not to. and in that sense, that dishonesty, that constitutes a violation of their ethical responsibility is. 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, then they are violating their ethical rules and as anyone will tell you as your honor already knew. >> you were a prosecutor, prosecutors are healed to a higher standard. they are the ones that are supposed to be seeking justice, they don't have a continuous -- they are supposed to be disinterested.

when you have the lead prosecutor and the d.a. giving what i suggest to you is untruthful testimony based on what your tea has said. based on what bradley has said, based on the whole way was presented to you. bradley did not want to testify. he had the attorney-client privilege thing on that. and when bradley knew he had to testify about that, you saw what happened. you can draw in the inferences as i suggested on bradley. what he said in the text mes message, defense exhibit 26 is to. the relationship and facts started prior to novemb november 1st of 2021. that [indistinct] says that at 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 the 30th of 2021, that there was a number of, a 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 staying in the [indistinct]. but more importantly is 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 in that apartment. the state makes a, we don't accept that. but they did not challenge it. and even when they brought forth what they brought forth today, they did not challenge it again. so what does that suggest. that is cooperating evidence of what [indistinct] had said, of what bradley said in his text message. it also impeachment evidence as to what wade and willis said about how many times --

>> judge mcafee: is not significant in terms of the times, did mr. wade testified that he was there at least 10 times during that timeframe? you have found 35. >> steve: minimum of 35 but never overnight. he said he never spent overnight. >> judge mcafee: but to the side, to the terms of the fact that he visited the place and presumed he was not obviously keeping a very good accounting of it but that was not something that was entirely denied. >> steve: if you are asking me, do we win on the point that he said more than 10 or around 10 and we say 35, do we win on that point? no. >> judge mcafee: the overnight may raise some concerns. >> steve: it does and that is the reason we highlighted it in the affidavits of mr. mittelstadt because that is suggested that they were not being honest to the court. so then -- how much time have i used? have i? [laughter] >> judge mcafee: i'm letting

them use the hook. so suggestive, again, raising issues on wondering about bu burden. are we dealing with a preponderance standard? >> steve: we are dealing with a progress standard, no question about that. >> judge mcafee: so does the suggest and get us there? >> steve: no, but it is cooperating evidence of evidence that we did put out and that was the purpose of the cell phone records. they cooperate with -- they cooperate with bradley says. and they impeach to extend wade and willis' testimony. so if you find by preponderance of the evidence, if you find by preponderance of the evidence that what i call a subset of forensic misconduct, ethical violations, has been shown and that there is a significant, a legitimate concern about the truthfulness of wade and willis, they are disqualified. no, of is your defects or findings of yours. but the law allows you to do that.

you don't have to do it through an actual conflict. that is the other side of the equation and that is what i have argued and i think that is what goes is going to argue. >> judge mcafee: before i let you go, this is an interesting classification. you are seeing "america reports" conduct is not commenting public about the case, indicating get those skills. you are saying that it is a thing it district attorney says? >> steve: no. i'm saying that forensic misconduct as a subset of that, would include violations 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 at the prosecutors, these two prosecutors are acting in good faith in their own conduct. same idea dealing with the defense counsel in the two cases i mentioned ethical violations can give rise to disqualification and i suggest we have that here. >> judge mcafee: all right,

thank you mr. saito. where is the shot clock where you need it. >> your order, want to address very quickly here what we have is a systematic continuous pattern, a calculated plan evidencing a design to prejudice the defendants in this case in the minds of the jurors. this is what we have seen. this is there's the problem that the district attorney has is not that the district attorney had some sort of brief of the cost statement and interaction with a reporter like in williams. that is not what we have here. we have someone who sat down, it wrote out her speech, wrote out her plan, who wrote sat down with -- whether it is two, three, or six times with the

editors of find me the votes 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 of miss willis. >> judge mcafee: so, i mean, we have a pattern of public statements being made to get you or your team has dived into the book. i know she was asked about the specific portions in it. the only case that i can find exit talking about when someone crosses the line on public comments is that williams case and it talks about there has to be an implication of seeing the defendant, a particular defendant, is guilty. and it even denied it. have you found any case in georgia where they actually said that the prosecutor had gone too far in the comments. >> craig: number one, thank goodness it doesn't happen often. sadly, it has already happened here. in williams, the prosecutor had one response to an inquiry the

court found that was improper but did not have this pattern. now, it doesn't necessarily mean a comment about the" guilt or innocence." all of that was a pattern in williams. it is the improper comments by a prosecutor for example, in williams, they cite the nation and consequences of forensic misconduct and prosecution of criminal case, 1955 columbia law school article and how prophetic that was. when williams sites that case in the article, they talk about an awful lot more than simply the comments about specific guilt, references to guilt, which you have here, your honor, is a comment and we can't look at it does and it does not apply only if a prosecutor said, i think the defendant is guilty. in my mind.

no, it is 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 in which she did reminds me of what the court in texas talks about and that is that pretrial can create major problems for the defendants, indeed, the more harmful than publicity during a trial for makes it the community opinion as to guilt or innocence. that is what we have here. that is exactly what we have. and the court talks about the power of the television camera. so what do we have? and what did this prosecutor do? what he chose to do is sort of what was criticized by the supreme court in shepard v maxwell. legal trials are like those are not local elections to be won through the use of meeting halls and radio or the newspaper.

that is exactly what we have here. what we have is a deflection. what this is all about is more insidious than just making the comments that she has made. it is a 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 miss willis. now, and so what did they do? well, one miss merchant filed a motion to disqualify, now the game plan has to change. to game. to game plan i called the deflection. it begins to take place. the election is when the district attorney sat down and wrote out, look at -- i'm sure the court has, when you look at that video, it is in evidence of

the speech in church. she has written out everything and she is reading from it. she chooses to deflect, the court asked earlier, wasn't she really responding to the motion of those that had been filed against her. with that she had. because if she had, she would have looked at members in the 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, of this congregation, it is true. she did not do that. she chose to deflect and to do two things that are reprehensible. for any lawyer but particularly for a prosecutor, she chose to pull out the racecar and the guard card. that is what she did and she rode it out. she went on to the flight away from the allegations in the wade motion and she said, she is saying, why in her talk public discussion wit