for colon cancer.♪ ♪it's time to use my voice,♪ ♪i've got a choice, more than one answer.♪ ♪i sat down with my doc.♪ we had a talk. ♪knew just what to say.♪ ♪i asked for cologuard and did it my way.♪ cologuard is a one-of-a kind way to screen for colon cancer that's effective and non-invasive. it's for people 45 plus at average risk, not high risk. false positive and negative results may occur. ask your provider for cologuard. ♪i did it my way!♪ good morning, it's 10:00 eastern. i'm ana cabrera reporting from new york, and we're going to get right to our breaking news this morning. a live televised hearing set to begin any moment now in the sprawling election interference case in georgia, and again, these are live images, hence why you're seeing the camera shake a

little bit. there is the defense table there and we see an attorney for kenneth chesebro's team in front of us. this is a motion's hearing. there are three specific motions we expect to be discusseding that -- that are brought by three of chesebro's co-defendants. it deals with whether the defendants can talk to the grand jurors. second, whether chesebro can obtain the transcripts, and then third whether to reveal the names of the unindicted co-conspirators in this case. also breaking this morning just before this hearing, we're learning judge scott mcafee who will be the judge for this hearing has granted powell and chesebro's request to sever their cases. so lots to discuss. we have a full house today. msnbc's katie phang is with us along with joyce vance, former u.s. attorney out of alabama,

anthony coley, former chief spokesman for attorney general merrick garland and msnbc legal analyst danny cevallos. katie, before we get into today's hearing, let's start with the judge granting severance for chesebro and powell. what does that mean for the bigger picture? >> yeah, so ana, it's kind of what we had anticipated and the order itself kind of walks through why the judge made the decisions that he did. but let's start with a very kind of first issue. number one, he ruled that chesebro and powell must be tried together. recall that they did not want to be tried together. each filed their own respective motion for severance from each other, pretty much pointed the finger at each other in a very polite way. chesebro saying that he wanted to be tried separately. >> okay, thanks, katie. stand by. let's listen in. this is judge scott mcafee. >> just as a preliminary matter, the state intends to comply with all of the legal obligations to turn over the co-conspirator

information with just the understanding that the reason -- the reason why the names of the co-defendants are not already in the indictment, judge, is that it's of course frowned upon putting the individual's names if they're not charged within the charging document. we'll turn those over to the court with a request that the court hold them under a protective order so to speak to protect the identities of those individuals or to control, i guess the public impact of the names that are on that list. >> all right, so it sounds like you want to skip to number three, the motion to disclose the co-conspirators. >> just to do away with. >> let's start with that one, it might be the easiest to get into. so let me make sure i'm understanding what i'm hearing.

so you're wanting to -- you are willing to go ahead and just give this list to defense counsel, formally through the discovery process. >> i'd like to present it to the court. >> okay. >> the court can then distribute it to defense counsel as it sees fit. it's the state's position that because the practice of naming the co-defendant, the unindicted co-defendants or co-conspirators in the indictment has been criticized. the state has elected to do it this way in order to protect those individuals, those names that are on this list. >> i'm tracking you completely there and i agree, i think that's the standard practice, i just -- i'm curious why i would be the middle man. it seems like we could take the folder and give it right to the defendants. i think that would be the regular thing to do. >> i mean, the court could impose a protective order that all of the parties to this case are subject to about disclosure

of discovery to the media if that is the concern to the government. we have a trial on october 23rd. they have the list of co-conspirators. they're consenting to the motion, why don't they just give us that information directly. >> sure, i think we're all about to reach the same place. so the bottom line is it seems like this is a fairly straightforward request. i think federally it would be a bill of particulars and those are fairly routinely approved, so question -- i can file an order if you want me to, but otherwise we'll say that the list of individuals 1 through 30 is going to be disclosed to not only i would think these two defendants but the other 17 defendants through the discovery process and obviously right now. so in terms of a protective order if the state's requesting one and the defense is not objecting, we can certainly do that as well, but otherwise it seems like this is just a fairly routine part of the discovery. >> we'll just look at the language of the protective order, obviously any protective order of not disseminating

discovery or information to the media would have to work both ways. the state would also have to agree with that. we have the list now so i guess it's a moot point. >> i was just about to say that. i'll go ahead and enter a one sentence order saying the motion is moot and presumably this list is numbered so it can identify which count refers to which unindicted conspirator and that sort of thing, right? >> yes, sir. and further, judge, just to streamline the days of arguments more so, the state does plan to turn over the transcript of mr. chi lee's testimony given that he's charged in count 41 in the indictment with perjury, and that testimony is an integral part of proving up our case. >> okay, so now the moelgs motion to unseal the special grand jury transcripts. do we think we've addressed

everything with the unindicted co-conspirators? >> yes, your honor. let's move on to number two. so obviously it looks like the idea of the entire report itself has been taken care of, but the motion goes a bit further than that, mr. wade, and says they should -- they want to be able to inspect the entire transcript, assuming there was one, i don't know, and any recordings and essentially anything that the special grand jury produced. so let me just -- let me get your obviously i'll let the defense present their motion. let me first start with where the state is in terms of what you think of that is disclosable and discoverable, if we're -- if the state's following its standard open file policy. maybe give me a bit of background about that and what you think is fair game here. >> yes, sir, basically just the state would contend that any transcripts, any and all transcripts that have been

produced by the grand jury or the special purpose grand jury are not discovered and that defense counsel should not have access, and i know that the court wants to hear further argument -- opportunity to put their case on, but that's our position. >> with the sole exception being mr. chely. >> that's the exception. >> and what if some of these witnesses that testified you call as a witness at trial. >> so judge then we rely on actually the discovery statute that talks about that. we would say that at that point when the state has made the decision to call one of the witnesses that has testified before the grand jury at that point the transcript becomes relevant, and we turn it over. >> all right. so we may have to talk some

logistics, but we'll see where we end up. so your motion. >> your honor, i would just take exception with doing what they call jinx material in federal court where they give it to you at the last second because we have to craft a defense -- >> ask that's what i was getting to. >> so if we look at the litigation that happened before the special grand jury, it's 2022-ex-00024. i'd like to adopt the brief that was filed by the media companies asking for the release of all these transcripts. there's been a lot of law that have been cited so we don't have to sort of go through all of it. lists out the requirements that a special grand jury needs to do and that requirement includes interim reports that have to be presented to the judge as far as what their work is going on. i didn't know if there were transcripts but apparently there are in this case, that's what the prosecution says. we know that based on the report

that was released there were 75 witnesses that testified before the grand jury, which i'm imagining were all recorded. they've already told this court they're going to have 150 witnesses, so whether they choose to call those witnesses or not, i'm entitled to those transcripts to decide if we want to call them if there's any impeachment material out there, inconsistent statements or, in fact, exculpatory materials by any of these people. i think we have an absolute right in the discovery statute. they have to present all the information from their case in chief to us as ordered by your scheduling order, and there's no protection that's out there. we then go to 15-12-80 to give you the criteria for publishing the special grand jury report. i've also cited the cases that talk about the secrecy issues that go away, the foreperson of the special grand jury went to the press and made all kinds of it statements. olson v. state is probably the seminole case, and then i also cited the county special grand

jury case that required a law for disclosure and said secrecy does not apply after they finish. i would further go back about 70 years and go to dennis versus the united states, 86 supreme court, 1840. it's a 1966 case that also talks about requirements for disclosure for grand jury transcripts. in every federal case grand jury transcripts made available to the defense, they just have a different statute. >> it's not every transcript. it's simply going to be the witness that's called. >> the witness transcript. >> you're asking for everything. >> i don't know what exactly they recorded. so if they're talking about witnesses, it's fine. as your honor knows, the grand jury is one way traffic. the d.a. controls the information that's presented to them. so i don't know what it is they're giving them, when we challenge the validity of the indictment which i've done in a separate brief. so i would like everything but at a minimum, i think the law requires the witness statements, whether they choose to use them

or not doesn't avoid the responsibility to give -- maybe i want to use it. i'd like to know who the 75 people were that testified under oath in front of that grand jury aside from mr. chi lee. i don't think there's any way around that. whether it's a protective order or not, that's their choice, we don't plan on sharing anything with the press. we need it and our client needs it to actually prepare for this case. so i think the code sections, the case law, even the supreme court case and frankly fundamental fairness requires that those transcripts at a minimum, the witnesses be turned over, but i think i would be allowed to have all of it. if we're going to challenge the validity of the indictment based on what the grand jurors are presented, i think we have a good faith basis to ask for that. >> what code section are you referring to that you think entitles you to all of it? >> the way -- again, i am no expert in special grand jury, i haven't prosecuted one when i was a prosecutor as far as that

goes. i'm looking at 151280 that generally talks about publishing, and a lot of that was discussed with judge mcmurney. a lot more law is there. i didn't want to just burn trees down if it's already been argued. i highlighted the two statutes in three cases that talk about the secresecrecies, i negligible, much, much lower once the grand jury has ruled or made the recommendations. >> okay. thank you. >> mr. rafferty, i think you joined this one, did you not? >> i did, your honor, and i would join in all the arguments mr. roher has made. >> the only thing i would add and echo are the due process concerns he's raised. that smacks of gainsmanship and would not be the efficient way to try this case.

there is no real reason for the government, they have to disclose their witnesses to not disclose the transcripts of any witnesses that testified before that special purpose grand jury that is going to testify at the trial. moreover, and i'll raise this at a later point in this hearing today, i do have very grave concerns about the government's compliance with their brady on obligations. i've submitted two brady requests, i have not gotten a response. i believe there could be brady information that is in those transcripts that they are obligated to turn over independent of any statutory discovery obligations. >> mr. wade. >> yes, sir. judge, i think we have started to put the cart before the horse, so to speak. let's start with the premise

that long standing and unquestionable authority indicates that grand jury materials including transcripts and records are not available to criminal defendants because grand jury proceedings are considered to be confidential, and the state is relying upon stensky v. state there, and i have a copy here for the court and counsel, if i might approach, judge. so this stensky case, judge, stands for the very same proposition, which is they're

not -- >> do you think there's any distinction here between these cases that are going to talk about grand jury proceedings and this having been a special grand jury that they're asking for? >> there's no distinction, judge. >> and why not? >> for all practical purposes, judge, it's the same function with the exception of the charging -- the special purpose grand jury is an investigative jury. investigative jury does not make charges decisions but can make recommendations. a regular grand jury obviously has to -- the indictment so -- >> i think mr., o aurora's argument is there's a particular statute that only applies to special grand juries that might

impact that. >> there's not. >> okay. >> where is that statute? >> he cited 151280. >> and just so we're not confusing things, these cases talk about regular grand juries and their deliberations. >> i think that's the question i just put to him, so let's see where we go. >> but there's a difference. >> 151283 judge? >> i think it was just 80. >> that's a disclosure statute. >> there is no distinction, judge. the case law is the same. i think that particularly the oathing case that defense counsel is relying upon is not even a case that considered turning over information. that olson case essentially issue it merely considered which employees of a district attorney's office that can be

present. >> i agree with you there, i think olson goes more towards what we're going to get to about whether they can speak to grand jurors and what about. i think -- and we can -- if you need to do a supplemental brief, we can do that, but the issue is because we don't see them as often, whether special purpose grand juries have some different degree of secrecy than a regular grand jury such that we can't reflexively look at this case law and say, all right, no at hard call. >> so judge, i think that the application is the same. the analysis is the same. why is there a distinction between the special purpose fwrj versus the regular grand jury? the law is clear on the defense counsel not being able to get the transcripts or anything that demonstrates that comes out of the grand jury process, the special purpose grand jury or the regular grand jury process, judge, and that's the stensky case, but i'd like to point --

direct the court's attention to the fact that there's no authority that demonstrates any defendant is entitled to these grand jury transcripts. court's disfavor the release of these transcripts, the defense has pointed to no overriding factor that would override the policy favoring the secrecy of grand juries and that is the guiding principle judge. the supreme court says that the grand jury is a public institution serving community that might suffer if those testifying today knew that the secrecy of their testimony would be lifted tomorrow. this indispensable secrecy of grand jury proceedings must not be broken except where there is a compelling necessity. they have to show what that compelling necessity is, judge. and the kessler case along with the other cases that the state has just given support that

proposition, but also the supreme court in the anderson case does as well. now, let's talk about the supreme court because they've identified five factors, judge, that are present in the douglas oil case that first, the preindicted proceedings were made public many prospective witnesses would be hesitant to come forward ask voluntarily, knowingly and those against whom they testify would be aware of their testimony. that's the first thing. the sect factor against releasing the information is witnesses who appear before the grand jury would be less likely

to testify fully and frankly as they would be open to retribution and also to inducements, which we've seen a little bit of in this case. third, there also would be the risk that those about to be indicted would flee or, fourth, would try to influence individual grand jurors to vote against indictment, five and finally, by preserving the secrecy of the proceedings, we'll assume the persons who are accused but exonerated by the grand jury will not be held up to public ridicule. those are factors, judge, that the court should consider until determining whether or not the grand jury's secrecy provision has been overridden by counsel's arguments. we don't believe, judge, that the defense has relied on any

case that would override those factors, but moreover any treatise that would assist upon -- in their reliance. they did cite to the henry gwinnett county case, judge, even in that case the requirement that secrecy be maintained among all types of grand juries without distinction, and that's in the enri -- a copy of that case. i apologize, i didn't bring a copy of that case, but that's the case that counsel relied

upon and cited in its brief and even in its argument today. that case is found at 284 georgia 510. and it stands for the proposition that the requirement that secrecy be maintained among all types. it says all types of grand juries without distinction. the state would submit to the court there's no difference. >> i'll take a closer look at all the cases you've given me. i think as a an initial reaction, you're probably right when it goes to saying everything should be turned over, but i want to drill down a little bit more on the witnesses who maybe at this point already you know that you're going to call on in november, right? i think that's the whole point of our scheduling order here and what we try to do is we need to

use our trial days efficiently and use our jurors' time efficiently, and i would imagine that the state is going to have an order of proof going into this trial with a list of witnesses, and if there are witnesses that are on there, the idea of waiting until the minute before they're called, and then we've got to now pause the trial for an hour or two while they're reading the transport, i don't think we can do that. would you agree? >> i agree. and i understand that, judge, and the state wasn't intending to convey that it would hold on to a particular witness's transcript until the eve of trial. we're still obviously going through receiving the transcripts. we don't even have every one of the transcripts. we're still going through that process as well, but i don't think that the court has made an unreasonable suggestion that the

state not essentially implied that the state would not hold onto the transcripts into the 11th hour. that's not our plan, and that's not how we -- >> i would think at a bare minimum, and maybe we can with talk about whether we have to move that time line, your witness list is going to be due ten days before hand. >> yes, sir. >> and so in conjunction with that i would think that any witness on there who has a transcript that needs to be either expedited or rushed and also provided at that same time, and if the issue comes up that, well, we didn't put a witness on that ten-day list, but now we think we need to call them, unless it's for a rebuttal or some new issue that's come up during trial, i'm going to be looking at that and really wondering if a good faith effort has been made to turn everything over. so i think -- i think that's not only what defense counsel was

referring to, but i think that's the way what we have to do to proceed efficiently at trial. >> yes, sir, yes, sir, and there's no argument or disagreement. i think that the court is being reasonable there, but while we're talking about that discovery, we believe that we're still in line with the court's scheduling order as it relates to discovery, so counsel -- >> and we can -- we'll talk about that at the end. let's get through the motions first, generally i would think this case is obviously different, but the state's open file policy traditionally has been here's everything we have, unless there's some kind of state secret or a confidential informant or something along those lines. >> yes, sir. >> and you have everything we have, and here we go. >> yes, sir. i don't know if that's the spirit we'll proceed with here. it might streamline things. we'll see where it goes.

>> the district attorney has been clear in our instruction. we are to make information available to them as it becomes available to us. we are here prepared today to turn over portions of the discovery to the two defendants that are going to proceed with trial on the 23rd, obviously we plan to supplement that discovery as we go along and as we receive the information, but we've made a good faith effort in complying and being reasonable and working with defense counsel, and we'll continue to do that. >> all right, and when it comes to supplementing it, i would think that's going to be confined to new discovery? >> yes, sir. >> stuff you don't have right now, right? >> that's stuff we don't have. yes. >> so i think for purposes of motion -- the motion -- let's see, to unseal, i'll take it under advisement as it concerns the entirety of the record or anything that happens there, but as an initial thought at a minimum, it's going to be

granted in part as to any witnesses the state plans to disclose. >> yes, sir. >> all right, anything else, mr. rafferty. >> a couple of comments i want to make. supreme court case douglas versus northwest, supreme court case, it cites to rule 6e of the federal rules of criminal procedure. the problem with that case, your honor, it has to do with the use of grand jury transcripts in a civil proceedings, which i know your honor knows grand jury transcripts in the federal courts as part of a criminal investigation can't just be turned over in civil cases, and so the case he cites has to doed with whether or not and under what circumstances grand jury transcripts from a criminal investigation that results in an indictment can be used by civil practitioners in a civil case. that has nothing to do with this case. and the point i'm making with this, your honor, is this. the government has now cited to a case that really has nothing to do with this. they come to court here today, they don't respond to the motions in writing. they drop some motions on

defense counsel or some cases i should say, they don't put anything in writing and they just say things to your honor. that's a troubling practice for me as somebody who practices mostly in federal court. this is a serious case. >> i think you have to realize, i think that might be the standard practice in this building. >> i understand that, your honor, i look behind me and i see eight folks here on the government side. we're talking about a case that is unique to say the least, involving allegations related to the supremacy clause, first amendment rights, all kinds of things, defense counsel are writing motions. i think we're at least entitled to a written response from the government citing these cases so that we have an opportunity to inspect them because otherwise what happens is the government comes in, cites to a case that has no application whatsoever and suggests to your honor that it is precedent on that governs the disclosure of grand jury transcripts when it does not, and so my concern and my request is that -- and i filed the motion last night where i specifically asked the court to

order the government to respond in writing so that we have a chance to look at these cases before we come to court here today. that's my request. >> so mr. rafferty, i think that obviously some of this going back and forth will be touch and go, but i think what we could easily do today and going forward as well, not every motion may require that, but we can always say if a party wants post hearing briefing, we'll doe do that i'm not intending to rule from the bench on a lot of these complicated issues. i've been handed a stack of cases, and i'm going to read them. it's going to be an expedited time line. i'll certainly give you the opportunity to respond. >> i guess my point is and i think my counsel here would join me in that this process would go a lot quicker if the district attorney's office with their team of lawyers would write a brief that cites to the same cases that they're bringing to court every day so that we have an opportunity before we come before your honor to look at those cases and question whether

or not what those cases say supports what they're claiming, and if they don't, be prepared to address it so that we can move this along. as opposed to us having to go back after today, research the cases, then write a post hearing brief, point out to the judge that what the government is saying is not actually true. that is one of the benefits respectfully, your honor, of requiring the government to put it in writing. >> understood. >> briefly in response to mr. rafferty's argument, he did, in fact, we would say at the 11th hour file a motion requesting that the state respond in writing. the state has done that. i don't know if mr. rafferty has had the opportunity to check his filings, but the state has done that this morning. >> is this for this particular motion? >> it is, judge. >> and you know, obviously i think we're also one of the logistical challenges is that

you e file something and it's taking hours to post to docket. we're just going to have to recognize that and i think that's why i would say emailing a courtesy copy is going to be the way to go. >> yes, sir. so this morning the state has filed it. it does cite to and speak about the cases that the state has cited to this morning and provided copies. >> all right. so mr. rafferty, obviously you want a chance to respond to this and review it so we're not ruling on this today and we can take the time to allow you to do that. >> just to correct the record on a couple of things with the special grand jury if that's okay. >> sure. again, i'm citing back to judge mcburney's order as well as the issues on the special grand jury case. when you look at 151280. they specifically said it's different from a regular grand jury, they make recommendations as to should we release this report and not release the report and they vote on it and there's all kinds of discrepancies that aren't the same as a criminal grand jury, which is what we've got here.

i take exception to the courts, i know you made a comment if they're going to call a witness, what about all the other witnesses they don't plan on calling. they my be witnesses for me. 17164 should trump all of that. that's the discovery statute that says any witness they've talked to that's made a statement has to be turned over. i might want some of them. if we wait, i guess your order says disclose everything by the september of 20th. i need to be able to review it to figure out what my defense is going to be versus doing it on the fly like we do in federal court, and we don't have trial by ambush. that's why i appreciate we're here and the discovery statutes are strong. that's my point to you, and i would also go ahead and cite to olson again which is the most recent case, that specifically says notably the oath of secrecy no longer extends to the state's attorney and even the grand jury's oath encompasses only deliberations and not all things

occurring in the grand jury room. so at least for the special grand jury part aside from the second brief that we've got, we should be able to get everything that happens in there aside from arguably deliberations, but at a minimum at least 75 witnesses or whatever else that they presented. so i would say that your honor said at least what they're going to use, i think that's not correct enough. it should be everything. thank you. >> all right, like i said, i'll take a look at it. i also just a passing thought as well when it comes to brady concerns, i think we could also utilize a mechanism where maybe they have to in camera give me the entire transcript, so if during the trial something comes up that we think is brady material or should have been disclosed, we can pause things and correct it from there. >> on that point your honor, with respect to brady i'd like to talk about it in a bit. i would like to remind government counsel, brady is in the eyes of the beholder. what the d.a. considers to be

brady material does not. i'd ask the court to inspect it and see if it does fit with what i claim. if it does, i'm entitled to it. >> understood. let's move on obviously because -- and we may knead to come back to this one at another hearing. depending on how it goes. so the last motion that we had scheduled for today is the motion to speak with the grand jurors. >> this one's mine, judge, and good morning again. >> for this motion i want to begin with the indisputable proposition that i'm sure my colleagues on the state side will agree with, of course, that mr. chesebro and also ms. powell, although i don't speak for her have the right under georgia law to be charged only by way of a grand jury. that is a key tool as we all know to prevent prosecutorial overreach. i would argue it's one of the most important provisions in federal and state law.

so that's clear. we don't have to i don't think argue that point. so then i think, your honor, the question becomes if you accept that premise, what does that right mean? what does that right entail? so if, for example, a prosecutor simply gets up and summarizes to a grand jury a lengthy indictment as opposed to allowing the grand jurors to read it and understand it independent of the prosecutor, is that indictment valid under georgia law? to be quite clear, your honor, the case law is kind of sparse. we would argue that the answer is no. thankfully we don't have to argue that case right now, but the reason we would argue if that were the case, the answer is no, is because the law is clear. the grand jury must act independently of the prosecution. i'll be quite frank, you know, and this is not -- i want to make clear, not in any way negative against these ladies and gentlemen who sit here at this table, but just generally i

have very serious questions, very serious questions based on publicly available information, which unfortunately is all we have to go on, that this grand jury as well as the special purpose grand jury was independent. but we don't know that. that's the problem. we don't know that. and in order for us to find out the answer, which clearly we're entitled to find out, we have to be able to access information. your honor, i do very much appreciate the fact that mr. wade stood up here and said the spirit of openness applies to this case, and i truly hope that from the moment mr. wade said that forward, that's what happens. i wouldn't be doing my job, your honor, if i didn't tell you for the record i personally do not believe that that has been the spirit of the state of georgia in this particular case. i think quite the opposite, you

kno your honor, that every time we file a motion or ask simply for access to the same information that the folks on the state side have where it's responded to and said, no, we can't do that. i know there's a discovery deadline that's i think in a couple of days. i understand that, but quite frankly, your honor, we turned over -- they asked, this is exactly what happened. the state said mr. grubman, mr. arora, we have your discovery. all you have to do is give us an 8 terabyte hard drive. that day literally probably within two hours we were down here with the hard drive, follow-up email. where's our discovery? where's our discovery? where's our discovery? there is no -- we haven't gotten the discovery. and your honor, i'm not saying they violated the court's order, because that deadline hasn't come. if we're really going to be open

and we're really going to talk about the spirit of openness, i really hope that starts here, and this is just another avenue, our request to speak to the grand jurors to allow us to have the same information that the state has. now, your honor, we went back and forth internally, to be honest with you, about even filing this motion. not because we don't want to talk to the grand jurors, but with all respect to the court and to the state, we quite frankly didn't think we were required to necessarily ask the court for permission. as you know, judge, grand jury secrecy with all due respect for mr. wade citing all those cases that predated the olson case, it doesn't exist, except for deliberations. it does not. the supreme court in state v. olson was absolutely positively clear as mr. arora stated, there is no grand jury secrecy here in the state of georgia. there is grand jury secrecy in

the federal courts as your honor knows. that does not apply here. prior to there were certain legislative changes and there was a time my understanding is in the state of georgia where there was similar rules as to federal court, and that is no longer the case. so there's no secrecy. now, there is confidentiality, of course, and main -- the only part that's truly secret and confidential is the deliberations, and i want to make sure it's clear that we are not asking to speak to the grand jurors about their deliberations. we will not do that. we're officers of the court. we know we can't. we won't do it. now, mr. wade laid out certain factors of the purposes of grand jury confidentiality. i think he named five, but the olson case named four. i'm sure there's different formulations. so i'm just going to go through four. prospective jurors would be hesitant to come testify.

actual witnesses would be less likely to testify fully and frankly if the grand jury was open to others. the supreme court said there was a risk that those that were indicted would flee or would try to influence the grand jury against returning indictment if the grand jury was open, and fourth, it was ensuring that those accused but exonerated by the grand jury, apparently that happens from time to time, wouldn't be subject to public ridicule. i would submit to you that none of those purposes apply here. none of those purposes in fact, even apply after a grand jury issues an indictment. >> let me jump in and having read the olson case up to today, and i think there was one collin that really predates it. in collin they've got the defense calling a grand jury witness to talk through some of these issues of who can be present during deliberations, who can be present during the presentation of evidence and so it seems to me that i agree with

you that you have a right to talk to grand jury witnesses. what about, we'll get to. but -- and i'll say on the front end, i appreciate you filing it this way because these grand jurors have been through a lot, and i think we need to recognize that and craft a remedy here that recognizes that. so my initial reaction just to lay it out there is that, yes, i think you have the right to speak with the grand jurors, how that happens i think we can discuss or craft. i think maybe -- i don't even know if you can have their contact information. i've heard that it maybe already be out there. i think that might have to be something that is facilitated in hand with the state. it also has to be something that's voluntary on their part. but then the question turns to what end are we doing it, and i think that as you alluded to, if the inquiry is to determine did they act independently? all right. but the standard you're laying out here that they have to

-- where i then start drawing -- kind of pausing is this standard or this benchmark that they have to have affirmatively read every word of the indictment. and that's where i wonder if this might not be -- might not be a point in doing down that road. if you have some other reason you want to explore, so be it. >> i wouldn't necessarily say every word, and if i did say that, i apologize, but what i do think we would have a valid argument on -- and obviously at the right time the court would -- is that if it was simply summarized, your honor, please understand and i hope everyone understands, all the information that we have is the stuff that these folks print in their papers. we don't know. so i'm not saying -- i am not saying that that's what happened in this case. i will say -- >> let's even play in that sand box a little bit. we're previewing the arguments. at trial, a jury could come back

with a 15-minute verdict and there would have been no way they could have read at length the title or even looked at every exhibit and there's no inspection or remedy for that. why would the grand jury -- where would this rule come from? >> well, it's not like there's a rule in the statutes, but what there is is there's a rule -- there's a theme in the case law and we cite many cases, and i'm sure we could cite a lot of other cases that the grand jury must be independent, now that's why i start with asking what did that mean. does it mean that they have to read every single word? i don't know, you know, and if that issue comes before the court, we will brief that issue and we'll figure it out. however, i would argue that if the state of georgia in this particular case presented their case to the grand jury in one day, which i can't say for sure but based on the publicly available information, that's a

possibility. it would cause my eyebrows to go up a lot. and i'm not alone. judge choflat in the united states v. sigma international. now that case has been vacated. it's not presidential. yeah, that's the right word. but that being said, the dicta still applies. >> but it didn't -- that case didn't have so much to do with any method of how the jurors reviewed the indictment. i think they were citing the transcript of the ausa essentially steering them exactly where to go. >> your honor, the thing is, that may have happened here. i don't know. >> and i hear you there, my point being is that just summarizing an indictment to me, you know, for example, if we know the deliberations, we can't go into that, that's protected, how would you ever ask the question of whether another grand juror read the indictment to everybody else during

deliberations? i don't think you're going to be able to even answer your own question. >> i respectfully disagree. we could craft some questions. obviously we have to think of the language. what i think we want to know, mr. and mrs. grand juror, when the evidence was being presented to you, did you have the opportunity to ask questions? did you have the opportunity to follow up? judge choflat said, and this is dicta, but rely on dicta as at least persuasive, so too would we dismiss an indictment that was issued by a kangaroo grand jury, one whose deliberations were so overborn that the indictment was prosecutor or judge's handiwork by an independently functioning grand jury. now, while we can't ask the grand jurors what exactly happened in the deliberations, what i think we absolutely can ask and we will ask, i will put this on the record, is was there anyone other than the grand

jurors in the deliberations, and that i think is what the other case that we cite, collins, stands for the proposition, but your honor, we simply want information. i would -- the reason we filed this brief, this motion, is to be above board and make sure that everything was out there in the open. however, i would respectfully push back, your honor. we would not -- we would not agree, obviously, a court could order anything they want for any member of the prosecution to be part of those conversations. we are officers of the court. we know the rules. we will follow the orders. i would also ask the court to state -- or i would ask the prosecution to state on the record and commit. i'm not saying that there's going to do this. i have seen other prosecutors do this, if the court grants this motion. they will not attempt to influence the grand juror's decision of whether or not they talk to us. we of course know it's voluntary. we would never once the grand

juror said i don't want to talk to you, we're going to hang up. i can promise you that, whether it's us or our representative. i think there's a risk here that someone from the state might try to get to them first and that would be inappropriate. >> what if the grand juror wants a prosecutor to be on the call listening as well. >> if a grand juror wants a prosecutor to be on the call, i mean, if they proactively say that, we can see where it is. they're not inviting us into their prep, you know, they're not inviting us. i've never got an invitation to help them draft the motion and to talk to them sit in their conference room, and they don't have the right to be with us. if they want to talk to the grand jurors, they've always been able to talk to the grand jurors. they have talked to the grand jurors. i like mr. wade a lot, but i don't want him on that phone call because he's my aadversary. and quite frankly, i think that if -- think about this, your honor, if hypothetically there was something that happened in a grand jury that wasn't appropriate, the fact that a member of the prosecution was on

this call i think would prevent or at least make it less likely that a grand juror would be honest with us -- what if a grand juror felt -- and i'm not saying this was true -- what a grand juror felt they were bullied by the state into prosecuting. what if the grand jury felt the state went overboard. as an officer of the court, your honor, i think the court with all due respect just needs to be able to trust counsel that we will do the right thing and i could commit 100% that we will. these grand jurors, you're absolutely right, have been through a lot. they've sacrificed a lot. we are professionals. we are not those people. >> what -- how would you -- or would you be planning to document this in some way? or would you be recording these calls? >> yes. >> would you have a court reporter? what would be the plan? >> we haven't talked exactly about the logistics, but there

would be some sort of reporting, whether it's a court reporter, a good old iphone recorder, whatever it is, and we would tell the grand jurors you're not required to do so in the state of georgia, i would be much inclined to tell the grand jurors, hey, look, we're recording tell the grand jurors, look, we're recording this. just so there's no question of what was asked. obviously, judge, the last thing i want to happen is someone to incorrectly accuse me or my team. we'll have some sort of recording, unlike the state of georgia, as mr. rafferty said, they have about 15 lawyers, a bunch of investigators and basically an unlimited budget paid for by the good taxpayers of fulton county, myself included. we don't. i want to be clear, despite what the media may have said, we don't have a unlimited budget. unless the court would volunteer

your court reporter, i don't know we can afford that, but we'll certainly record it. >> all right, so essentially what i'm hearing is what you would be asking for is we propose if not the exact questions, the subject matter very carefully phrased in advance. this would be a volunteer meeting. it would be documented in some way. and even if it's -- if the state is not on the call, i think we could even also have someone from the court there as well, just at any point if the juror feels they need to kind of pull the rip cord. >> yes, your honor. >> otherwise, i don't think there's much point going into the merits of the motion because it's premature. that's the initial reaction. mr. wade. sorry, mr. rafferty. >> i did join the motion. the other other point i would make is the possibility that these interviews not be conducted by phone at all. perhaps they could be conducted in person and there could be a combination made, i would think,

with the state and with the defense, to conduct these in person as opposed to over the phone. >> and i think in me, the driving consideration is going to be the desire of the grand juror. do they want to come all the way back down here and deal with it or would they rather do it over the phone. >> let me be clear, the state is absolutely opposed to any of this, and ms. young is going to come before the court and tell the court why. i thought that at the outset of the arguments, i thought i was clear before we started to argue in terms of the discovery. he has indicated we hadn't given them anything. i thought it was clear the discovery is here. >> i feel like we keep getting back to discovery. let's save that until the end there. >> those are his arguments, judge. >> right now, we're focusing on grand jurors. we'll get to that. >> ahead of schedule. >> we'll get to that. let's talk about grand jurors.

>> judge, i did prepare a brief. >> another, another power point. >> your honor -- >> come on, this is -- >> this goes to my point, your honor, the state spends the time to put together a power point to respond to a motion. that takes a lot of time. i'm sure it's going to be persuasive. it would be much more efficient for all involved if instead of putting together a power point, someone put it into writing so we can see the cases, we can move through this argument, and we can get to the end much quicker. now, we're going to see these cases from the state for the first time. mr. aurora, mr. grum ntd and myself will look at these. we'll probably find things that perhaps are inaccurate and have no choice but then to file some supplementing briefing. with a trial date on october 23rd, this process is just not an efficient use of the court's

time. the more efficient proshere is to write a brief, file it like we do in federal court all the time, like this d.a.'s office did in federal court in this very case in front of judge jones. and just file it here. that's my ask. >> all right, understood. i think again, we're going to take that up on a motion by motion basis. ms. young. >> if i may approach. this is a copy. to be able to speak to grand jurors. i think the state and your honor are probably on the same page so i'm going to try to go through this quickly in regards to deliberations because what the defense motion stated was in their motion is they wanted to know if the grand jurors had been read the indictment. that was the purpose for them talking to the grand jurors. here today, we find there are other reasons they may want to speak to them. the state's belief is as the court talked about deliberation,

it is part of the grand jury's reading, whether or not it was red to them, whether they read it during deliberations. we're all trial lawyers. we know a copy of the indictment goes back with the jurors when it's a trial jury. they're reading over it to make sure the evidence matches the evidence presented. that's the same thing with the grand jury. they're given a copy of the indictment. if we start to get into questioning that, we're getting into what they were doing during their deliberations. did the foreperson read it to them,id getting into their deliberation process. so the state's contingent is that these questions about the grand jury and reading of the indictment summary is part of deliberations and they can't get into that because it's prohibited. i'll just cite ocga 1512-57 says the current grand jury oath requires grand jury to keep the

deliberations of the grand jury secret unless called upon to give evidence there of in some court of the state. it talks to extraneous prejudice information which i think goes toward the signan case is what they were talking unl, whether or not the prosecutor was steering them to a particular decision. it talks about outside influences or mistaken entering the verdict. none of those things exist. i'll get to their solution as to how they want to handle that with the court. i will also state federal rule 606 as well as 2406 here in georgia mirrors that, which basically says the same thing, the validity of a verdict or an indictment a jury shall not testify or an affidavit otherwise norshall a jury's statements be received as evidence in any such manner. that gets into what is the purpose of this voir dire.

they can't testify, they can't give affidavits so how are they going to use this information they receive? >> we have this, i think it was the colin case, where an entire indictment was dismissed when people were inside the deliberations. so i guess the question would be, how on earth is a defendant ever supposed to find out whether that happened without talking to the grand jurors? >> we're officers of the court. we can state no one was in there besides the grand jurors. that's what they're asking for us to do for them. they can state as their place as officers of the court, this is what the grand juror said to them. we can state in our place as officers of the court, only grand jurors were present during deliberation. >> in colin it says the defense presented the testimony of a grand jury witness to support his assertion. i know it's not really on directed, that's just in passing a fact that's present there, but i certainly haven't found anything in georgia law that says no one is allowed to talk to the grand jurors.

>> i think it's not that they're not allowed to talk to them, judge, but i'm basing on what their motion stated. >> sure, and i think we have arrived at the same place there, where it's -- again, kind of seeing this might be futile, but i'm with you that deliberations are a hard stop. i think the defense has conceded it. really what it's all coming down to is what are they allowed to be asked. >> i'll move on to that point, talking about 204-403, about the relevance. and specifically lcga 1512-63 states admissions and communications among grand jurors are excluded as evidence on grounds of public policy. i think the things they are asking for gets into how were the jurors communicating with one another. it all goes towards how they deliberated. mr. grubman talked, how quickly could they have come to this decision.

it's 98-page indictment. that all goes towards their deliberation. asking questions about that is part of the deliberation process, which is prohibited. so i think if we're going to get to this point which the state does not concede we should, we have to figure out, then how is it going to be used, because the case law is clear. testimony of grand jury witnesses they cannot use this to impeach their findings. and that's what they're asking to do. they're trying to ask these questions in order to impeach the true bill that the grand jurors sat down. that's what they're essentially asking to do, and it's not allowed based on the case law. and by statute. and i'll just cite one case, i don't know if they mentioned, but united states v. van eagle, it says an indictment returned by a legally constituted grand jury is presumed to be valid on its face, similarly, there's a strong presumption that attaches

to all grand jury proceedings. a defendant seeking to challenge the presumption has a difficult burden. because it's hard to override, and that cite is 809 federal sub 130. i think we have to get into, is it relevant, admissible the questions they want to ask the jurors. based on the case law, it's not. what we're asking is we want you to change your mind, answer a question in a way that's going to impeach your findings. all of those things are reaching toward that. was there someone else in there? did the prosecutor steer you a certain way? all of that is to impeach the finding of a true bill of the indictment. and there's nothing here that says that it should be. i want to touch upon the public policy and the safety that the court talked about. we have heard it, these grand jurors have already experienced doxing, threats. we have had to contact -- they have contacted our office because of safety concerns. we h