We Have A Ruling In Fani Willis Case - EMERGENCY POD

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:53 Thomas: Hello and welcome to Opening Arguments. This is Emergency Pod. I titled in my notes, uh, Fonny Willis's odor of mendacity, or it's going, Matt?

0:01:03 Matt: I've got Georgia on my mind. That's where we're at. Lots of Georgia this week.

0:01:05 Thomas: Yeah, we've got the decision. You're solid on predictions, for one. I think you pretty much called this, uh… maybe not exactly, because there was an interesting approach taken here, but pretty much call it. And also, you called that we would record or today's episode before this would come out. And then it would come out right after release. So, you know, pretty solid on predictions there.

0:01:25 Matt: Am going to have to buy a lottery ticket, yeah.

0:01:26 Thomas: And then I'll predict that you won't win that. And then I'd be solid on prediction. So great, great idea. Yeah.

0:01:29 Matt: That's true. Yeah, there you go. I'll say this for my man Scott McAfee. This guy knows how to split a baby. This is some real classic baby splitting going on here, like laser precision baby splitting that is a compliment, just to be clear, to non-lawyers, I know it doesn't sound like, well, out of context that would sound horrific, wouldn't it, if

0:01:41 Thomas: Yeah, you look like a man who knows his way around splitting a baby. It's a weird thing to say, but no, I, I see it. Of course, kind enough to take the time out of his actual attorney working day. And so therefore I offered, you know, that I could also read the decision. And since I've read it, I'm now the lawyer and Matt's the comedian for this episode. Sorry. Sorry, Matt. That's just it is. So good luck. Make a bunch of jokes. It's not as easy as it looks.

0:02:14 Matt: On it let's do it yeah

0:02:16 Thomas: Okay. So this order, am I very curious to get some analysis. We'll go into it. I didn't know this is a thing you could just do, but it sounds like the judge is like, well, no one else is splitting this baby, so why don't I do it? Really interesting stuff. Also well and clearly written. And so I guess first question, are you still a fan boy of Judge judge McAfee.

0:02:32 Matt: More than ever. I have to say, he really just thread the needle, split the baby, however you want to say it. He navigated these, uh, these rocks. Think he did pretty much exactly the right way here. Also, I have to say, he's definitely an OA listener because both of these decisions from this week are in Garamond, at least some variant of Garamonde. So good.

0:02:54 Thomas: Really?

0:02:54 Matt: On you. Yeah, it's

0:02:54 Thomas: So this is the famed Garamond. I mean, I have to look at it. Is the one I'm looking at on documentcloud.whatevercrap?

0:02:59 Matt: Pretty nice. Yeah.

0:03:02 Thomas: Is that the, okay. I just want to make sure I'm looking at the real Garamonde. Will the real garamonde please stand up?

0:03:02 Matt: That's the guy. Right. It's at some variant. It is definitely Garamonda. And I will say the standard font for Georgia appellate courts, I had to check this out, it is called equity. It's beautiful. I wouldn't complain if to use that. But that was designed by a law topography superstar, Matthew Butterick. Maybe that for another episode, but I actually genuinely like that guy. I know there is such a thing for the, you know, 12 of us.

0:03:08 Thomas: Oh, this is the best. I never would have predicted this is one of the key components you bring to the show, Matt. I thought, you know, it would have been like your immigration law experience, perhaps your criminal law experience. No, it's the font experience. I didn't know.

0:03:42 Matt: That's what I got.

0:03:43 Thomas: But yeah, it's a whole, you've opened up a whole new world of understanding for me. So, yep. One for one so far and I in, don't know, good things on this decision. All right.

0:03:43 Matt: You know, let's, I Good start. Wait one sec. I got to dispose of a cat. Hold on.

0:03:53 Thomas: Oh, I thought that was my cat. I was like, geez, my cats don't like me anymore. That's my solution.

0:04:02 Thomas: Why don't you start and pulled some quotes myself as well. I'm excited to talk about them. But uh, take us through this very beautifully typographed order. Well,

0:04:14 Matt: Well fonted. Yeah So we, we have got some very convenient headings. I'm just going to run down to make sure that we're following the order of the decision. It's very well laid out. I think it makes a lot of sense, after a brief introduction here where he says what he's going to be doing. He gets to talking about actual conflict of interest. Now, from the very beginning, Casey and I were saying there's no way they're going to show actual conflict, because that would have to show there was like a decision to actually exchange money and, you know, to actually have something direct that you could point to, to say this is why she's prosecuting this person for financial gain, right? And so, no surprise here. He just takes you through it and goes through all the facts. He's very careful. He obviously doesn't want to be appealed on this. He's taken it down by the book and talking about all the different ways that this does not meet the standard for disqualification. Because if there is an actual conflict of interest, he's got to disqualify her. So he's not doing that, just off the bat.

0:04:15 Thomas: Yep. Yeah.

0:05:04 Thomas: I have a quote, uh, this is something I was pretty, pretty proud of noting. It was quick in the hearing, a quick little thing in the hearing in the testimony. Grant, now that I didn't watch Closing Arguments, so it's possible this was made very obvious in Closing Arguments. I don't know. But just a quote here. "Attorney considered at least one other option before hiring Wade, extending an offer to our favorite Coen Brothers movie character, Governor Roy Barnes, who declined. The contract allowed a $250 hourly rate, a relatively low amount by Metro Atlanta standards for an attorney with Wade's years of service, and contained a ceiling on the maximum number of hours permitted. Under the terms of the first contract, Wade was not to perform more than 60 hours of work per month without written permission." And here's the thing I wasn't sure of, but apparently this is also true. Quote, "No evidence introduced indicates that permission to exceed those monthly hour caps." His I thought that was really good evidence. And, you know, this fine, well -fonted, baby -splitting judge agrees with me.

0:06:00 Matt: Me. Yeah, I remember discussing that about the cap. That meant a lot to me too. There's this note as well, which is something else we got into. Whenever a private attorney like Wade is paid by the billable hour, a motive exists to extend or prolong the assignment. This, however, is a tension that the legal profession has long accepted. Just as we were discussing that public defenders and every other person who takes things by the hour at different times, especially if you're appointed to do a case by the state.

0:06:19 Thomas: Yeah. Yeah. More quotes on that later.

0:06:26 Matt: Yeah, for sure. But I think that's a really good way to just dispose of that and say, clearly, there's nothing going on here where they're trying to extend the case. This is a very complicated case. He wasn't overbilling. So moving on from that.

0:06:27 Thomas: Yeah. Yeah, exactly. Maybe we talk about some discussion of the actual trips and dinners and that kind of thing. That's kind of what I have next.

0:06:43 Matt: Very thorough summary of the evidence just to make sure that you can't say he didn't get into it. He was, he was listening.

0:06:45 Thomas: Yeah, I like this note here, quote, with seemingly full access to Wade's primary credit card statements, the defendants did not produced evidence of any further documentable expenses or gifts, nor were any revealed through the testimony. In total, defendants point to an aggregate documented benefit, and this is the point I kept making, of at most approximately $12,000 to $15,000 in the district attorney's favor. And again, what I kept saying, too, is this is over at least a couple of years, I think, right, or a year and a half. The judge goes on with the argument of like, essentially, how did this harm the defendants? Which is a great question.

While a general motive for more income can never be disregarded entirely, the district attorney was not financially destitute throughout this time or in any great need as she testified that her salary exceeds $200,000 per year without any indication of excessive expenses or debts. Similarly, the court further finds that have failed to demonstrate that the district attorneys' conduct has impacted or influenced the case to the defendant's detriment. One, not a required element for disqualification, it is relevant to considerations of due process and the defendant's requested remedy of complete dismissal, which, yeah, yeah.

0:07:06 Matt: Yeah, right, No, and I think it's good that he went that far because as he says for actual disqualification, that's the end of the analysis. If you, if you find that there is a conflict, but it is worth looking to see like how did this harm you, right? And there's really nothing they can point to. He in the decision and we're going to get to the appearance of impropriety but he says other Other than a guesstimate, he says, there's no way to be certain that expenses were split completely evenly, and the district attorney may well have received a net benefit of several hundred dollars.

0:08:19 Thomas: Yeah, I took that to be pretty sarcastic. Like, wow, you know, yeah, you're right. She may have benefited to the tune of, you know, $15.73. Cool. Cool, dude.

0:08:22 Matt: You're right.

0:08:32 Thomas: The lines, Matt, of how in the world did this harm you? Show me on the prosecution doll where you were harmed by this. Luck for Trump that their main game plan in all this, as we've often noted, is delay, delay, delay, because that runs counter to the theory that they're going with about how Fonny might have benefited. Here's a good quote. Quote, defendants argue that the financial arrangements created an incentive to prolong the case, but in fact, there is no indication that the DA is interested in delaying anything. Indeed,

0:08:31 Matt: Stop the presses. Yeah, it Yep.

0:09:03 Thomas: The record is quite to the contrary. Before came to light, the state requested that the trial begin less than six months after indictment. In sum, the district attorney has not in any way acted in conformance with the theory that she arranged a financial scheme to enrich herself or endear herself to Wade by extending the duration of the prosecution or engaging in excessive litigation, end quote. And yeah, he had even more about the scheduling. It's like, oh, weird that they want to get this done as fast as effing possible. If your theory is like they're, she's going to keep delaying and delaying and prolonging in order to get those tasty hundreds and hundreds of dollars. Those, those irresistible, you

0:09:43 Matt: Yeah, I think he really disposes of that. Was also, okay, there was a weird kind of thing that did make me wonder if he'd ever been in a human relationship before. Um, you know, no, no shade on my man, but, uh, well, as a judge, as a person, I might have questions, but they're talking about the reimbursement practices they had between them where they were, you know, she was reimbursing him in cash for things that. And he says such a reimbursement practice may be unusual and the lack of any documentary corroboration, understandably concerning. And I'm like, do we keep receipts in relationships? Is that something you do?

0:09:48 Thomas: I was going to say that doesn't ultimately sour you on him at all. It sounds like that's just kind of, yeah.

0:10:18 Thomas: Interesting. So I took that a bit of a different way. What you're saying, but I also read it a bit as, look, as the district attorney, attorney, if you were going to undertake this relationship at this time when it's clearly like you knew, I don't know, I feel like you should have known what you were doing. You should have known this was a little weird.

Perhaps documenting finances just in case there's a, you any sort of alleged conflict of interest, maybe that would have been a sensible thing to do. So I took it more as that way, which, I mean, what do you think? I mean on one hand, yeah, if was just any other normal relationship, 100%. That's weird. Like, you wouldn't do that.

But I Judge McAfee saying, putting down his electric cello and saying, which we'll get to later, and saying like, okay, the proper way to do this was probably not to do it. But, I guess, if you were going to have this relationship, least make it airtight that there was nothing untoward going on.

You even just for this trial, and this is me pontificating, that he didn't say this, but maybe, I don't know, even just for, again, in the general public kind of and your election and your office, like making sure things are airtight that you're not benefiting financially from someone you're paying. It seemed kind of reasonable to me. What do you think?

0:11:30 Matt: Well, this isn't the actual conflict analysis. So he's getting real nitty gritty on it, right? He has to, because he has to really prove that there isn't. And I think that there is a theme all the way through this opinion that he's being pretty stern with her and saying there's a lot of impropriety in different ways. It's not enough to get you off the case, but come on, what were you doing? Is really the undertone for most of this. And remember, this is somebody that Scott McAfee worked under her. She was his supervisor at the DA's office at one point. And now he's overseeing the most important trial of her career. So it's an interesting dynamic here. He clearly, I think he has respect for her, but he's dressing her down a bit as well.

0:11:33 Thomas: Yeah. Yeah. Right.

0:12:04 Thomas: I was going to say, you know, it would have been really bad luck is if he like tried to date her and she wasn't interested. And then I think I would have changed everything. Oh, you do date coworkers, huh? No, good thing that didn't happen.

0:12:09 Matt: Oh yeah, right. Yeah, that might be a little bit of a conflict. Yeah.

0:12:19 Thomas: He pulls out his text. Oh God, everyone's pulling out their text. Fonny, you explicitly told me, oh, we should never date because we work together. And I took that to mean, no, all jokes. None of that's real. Arguments is brought to you by ZBiotics. Let me tell you, if there is a sure fire way to wake up feeling fresh after a night of drinking, it's with ZBiotics. ZBiotics is a pre-alcohol probiotic drink that is the world's first genetically engineered probiotic. Was invented by PhD scientists to tackle rough mornings after drinking. Here's how it works. When you drink, alcohol gets converted to a toxic byproduct in the gut. It's this byproduct, not dehydration, that's the blame for your rough next day.

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0:12:28 Matt: Yeah sure. Sure.

0:13:48 Matt: Think it was interesting, too, that the main case he cites all the way through this as a foundational case about the conflict is a case from 1916 that I couldn't find online. It's called Nichols v. State. And I think he's doing it because it shows how old this analysis is, because just trying to show how established what he's doing here is, even though in many ways, it looks like he is kind of creating new law in Georgia, potentially.

0:14:09 Thomas: Well, yeah, he does acknowledge at places in this decision, like, hey, there's like not really much here. Like there's nothing to go on for this. I mean, there're things here and there, error, but I guess that's a testament to how little, yeah, there's not much precedent on this, it seems like.

0:14:16 Matt: Yeah, right. Yeah, no. And then in the last paragraph, he really brings it home. And I think it's some of the harshest in the opinion. The end of the analysis of actual conflict of interest, this finding is by no means an indication that the court condones this tremendous lapse in judgment or the unprofessional manner of the district attorney's testimony during the evidentiary hearing. That's, yeah, that's pretty harsh.

0:14:35 Thomas: Yeah. Yeah, that's fair. That's fair." I also loved, I don't know if this was anything that you were going to get to, but actually really appreciate, maybe this, you can tell me this is just standard fare, but, I feel like this was the judge being like, I am absolutely not basing this on what the average MAGA moron will think?

0:14:57 Matt: Yes, definitely.

0:14:58 Thomas: Because he goes on at length, quote, borrowing from federal judicial recusal standards, a reasonable person is not an uninformed member of the public with only a passing knowledge of the facts at hand. And then he has some citations. This must be the standard as otherwise in this case, a casual uninformed or misinformed observer, I think that's pretty intentional, might believe that the district attorney must recuse herself herself merely because her father shares a last name with a co -defendant. And I Is think that's a hypothetical, but there's more. Nor is a reasonable person, quote, hypersensitive or unduly suspicious, end quote, with a, without an understanding of the, quote relevant legal legal standards and judicial practice, end quote. So So you think I read that correctly? He's like, look, I don't care what MAGA morons think is going on. You still got to use a reasonable person standard.

0:15:07 Matt: Yeah, that's great. Yeah.

0:15:46 Matt: We're not talking about the reasonable Newsmax viewer, right? That's not what we're doing here. Or you snowflakes out there, they're hypersensitive, right?" So he talks several times about removing the nonpartisan blinders and how he's really trying to do this straight down the middle, which he does. I think that's fair. That's what he's doing.

0:15:50 Thomas: There aren't, so yeah, right, yeah.

0:16:03 Thomas: Do like that she said removing the nonpartisan blinders because like, that's how I think, actually. I think trying to be nonpartison and is actually blinding you to facts, but no, I appreciate that. I think he's doing it. He seems to be being pretty fair here, so.

0:16:08 Matt: Sorry. Yes. Yes, that was the insomnia and coffee talking. So let's move on to appearance of impropriety, which is, I think, the most interesting section, because he really has nothing to go on on this. He's basically cobbling together a bunch of case law to say that I can do this, because the state's argument was it's actual conflict or nothing. And we were saying this when we were talking about the case before, the case, and I was saying, it seems like under the standard, there isn't really an appearance of impropriety in Georgia law. And he's insisting that there is. I think it's reasonable based on the cases he cites here, but it's never seems to be explicitly held.

0:16:40 Thomas: Hmm, interesting. Also makes a note, a kind of a footnote that totally in line with what you said, in, yet I guess, today's episode, maybe if people are listening to this all at once, about Massachusetts having a bill of or whatever it was, where he seems to be like a fan. Maybe it explains his excellent choice in font too. He seems to me a worldly judge. He's not just some backwoods Georgia judge that doesn't get out. Like he notes like, hey, other places have gotten rid of this like appearance standard, which I thought was interesting. Cause I have always heard heard the, the appearance of impropriety or whatever quoted a lot in terms of ethics for lawyers and judges and stuff. But he's saying like, yeah, you too vague and we've kind of moved on from that because it's especially, and this is me again opining, but especially in today's world where anyone, any asshole can accuse you of an appearance of impropriety.

0:17:36 Thomas: Um, he does note that like actually Georgia law still does rely on the mere appearance of impropriety, and he defines it using Black's Law Dictionary, uh, which I've listened to enough Opening Arguments to know, I feel like that's, that means you're kind of, you have, have much to go on if you're quoting the dictionary in your decision, right.

0:17:36 Matt: Yeah, It is the equivalent of starting off your essay with Webster's Dictionaries Defines, yeah. But he acknowledges, he says, while formally undefined in Georgia precedent, in appearance of impropriety is generally considered, and then he gets the Black's definition, because he's cobbled together a bunch of appellate decisions to show that courts have talked about this, acknowledged it, it's never really been created. That's why he's citing the 1916 decision, because he wants to show that there's some history here. So he's saying that he has the absolute right to look at appearance of impropriety, but that it's a different standard and that it has different results if he gets there. He also notes that judges are held to higher standards. He just can't help himself in noting that if he had done any of this, it'd be a problem.

0:18:29 Thomas: So that's probably why she didn't ask me out is because of that, just kidding all jokes complete jokes but This alternate character that I'm creating is really funny in my mind. I'm just letting you all know.

0:18:31 Matt: Yeah, right. Yeah, because I'm a judge, you know. Yeah, yeah, yeah. Of course. Right, right, right? You know, he notes that unlike an actual conflict, he finds that an appearance of impropriety does not demand disqualification, but he does have the authority to order some kind of remedy because nobody else is going to do it, as you said.

In this case, he finds that it's a little interesting the way he puts this together, because we've been kind of going back and forth about what the appropriate remedy would be and sort of how drastic it could get if she's completely disqualified, because he notes that if there's an actual conflict and someone is disqualified, their entire office is disqualified. But if it appears to be more of a personal thing, potentially that only that prosecutor could be disqualified.

That was a question I've had all the way through this. We'll get to what he actually does as a remedy here. But it's interesting, he's sort of talking you through why he has the authority to do this and why it's very important that we reach some kind of conclusion here if he's not going to disqualify her. I think that was very well done.

0:19:26 Thomas: And that was when I just saw the headlines, I was wondering like, can he, can he do that? I mean, I guess on some level judges can kind of do whatever they want and then I guess could get, get appealed, which, pin in that. Let me, don't let me forget to ask you what, what the, if there's an appeal on this, crap.

0:19:39 Matt: We'll be talking about that.

0:19:40 Thomas: Yeah. So he note somewhere in here, he points out, I think this is pretty fair. I just noted like, yeah, that's fair. Quote, Wade's patently unpersuasive explanation for the inaccurate interrogatories he submitted in his pending divorce indicates a willingness on his part to wrongly conceal his relationship with the district attorney. And I was like, Like, yeah, okay.

0:19:58 Matt: Yeah. The word you're looking for is perjury, I think. They perjured themselves. He says the same thing later about Willis, that she testified untruthfully. She says it pretty much directly.

0:20:03 Thomas: Yeah. Yeah. Think it's, yeah. I think that Wade's is a bit, well, what do you think? I think Wade's a little worse because, you know, he more directly had to, and maybe again, maybe it's because he was forced or just by coincidence had gone on sworn kind of record or whatever before knowing that this was going to happen.

0:20:15 Matt: There's a prayer sworn to him.

0:20:25 Matt: Right. Right, right.

0:20:27 Thomas: And maybe if Fonny Willis had done the same, who knows? Maybe she would have had the same problem, but yeah, not good.

0:20:31 Matt: Yeah, yeah. No, and I think he handles it pretty well, but he has to say it. I mean, we all saw it. We saw the issues here. Then, of course, he makes a finding that I know we both agree with. The court finds itself unable to place any stock in the testimony of Terrence Bradley. Perfect. His inconsistencies, his demeanor, his generally non -responsive answers left far too brittle a foundation upon which to build any conclusions. All that was six hours, seven hours of testimony out the window. Great.

0:20:40 Thomas: Hmm. Yeah. Yeah. No, we agreed on that. That was, uh—that was solid. Well done, judge. Can't Uh, complain. I it's a little interesting to continue it as well, quote, while prior inconsistent statements can be considered as substantive evidence under Georgia law, Bradley's impeachment by text message did not establish the basis for which he claimed such sweeping knowledge of In addition, while the testimony of Robin Yerdy raised doubts about the state's assertions, it ultimately lacked context and detail. Even after considering the proffered cell phone testimony from defendant Trump, along with the entirety of the other evidence, neither side was able to conclusively establish by a preponderance of when the relationship evolved into a romantic one. Now, I think that's interesting. I actually was going to note he didn't talk about that, you know, CSI-esque cell phone tower crap at all. But I guess that now that I reread that, that's the proffered cell phone testimony from defendant Trump.

0:21:47 Matt: Yeah. That's as much credit as he thinks it gets is one sentence, right? And actually, I that paragraph, he just says, I don't know. I don't know. He just sets everything up and knocked them down because that's only a few sentences. That's not even the whole paragraph he just read, but he's knocking out most of the evidence from the defense in this photograph. I'm just saying.

0:21:52 Thomas: Interesting. Yeah. Yeah. Yeah. Which is interesting because we really didn't know how to think about that cell phone evidence, I think, if I'm characterizing you properly. Felt like on one part of me was like, damn, that looks bad. And it's all taken together. It looks like they're just flat out lying. But I feel like if that were true, this judge, I feel he probably would have said that. Like it wouldn't really, you know, like if the judge were able to conclusively say the The relationship started earlier than they said. Do you think that we're really changed his approach here?

0:22:31 Matt: He does kind of strongly suggest that he thinks there's a real issue with that fact, but He doesn't get into it too much. And I don't think it would have changed the decision because honestly, that's not what any of this rests on. It just comes down to their credibility, which he already says is kind of shot.

0:22:42 Thomas: Exactly. So I guess the point I'm making is like, I don't think, I think I kind of take the judges where he's closer to this than, than we are. And we didn't know how to think about that cell phone stuff. And so I put, I guess I put a decent amount of trust in his view that that doesn't really conclusively prove by a preponderance of the evidence when it happened. But I don't know. Know

0:23:01 Matt: I think you might be able to tell what he thinks about it just by the phrase, even after considering the proffered cell phone testimony from defendant Trump, making the point there that it was Trump that introduced it. I do think from what I understand, I'm not an expert in this stuff, but I think there were forensic issues with that. It was just kind of a rough guess about some things. But we get to the real heart of this, I think our favorite.

0:23:07 Thomas: Yep And I had noted, uh, probably episode title, however, an odor of mendacity remains to transition I know

0:23:25 Matt: Don't you hate that when you can't get that mendacity out of your carpet?

0:23:28 Thomas: I that odor, fortunately, listener, it's not, it's not you, I don't think it's me, I don't think it's even Matt, it's an odor of mendacity remaining

0:23:34 Matt: Took a mendacity shower this morning. I'm good. Wash it out. Yeah,

0:23:35 Thomas: Yeah Yeah But did you use one of those bullshit natural mendacity removers? Because those, you know, like you want to think that natural odor mendacity odor remedies will work, but they just don't. Okay.

0:23:48 Matt: They last for years. So you got to be careful about that. He makes the point that like if it was his job as a judge to ferret out every time he thinks somebody might not be telling the truth that we'd never finish court, right? And we just, you know, people lie in court. He knows that we know that, you you know, perjury is hardly ever charged, but yet reasonable questions about whether the district attorney and her hand -selected lead ADA testified untruthfully about the timing of their relationship further underpin the finding of an appearance of impropriety and the need to make proportional efforts to cure it. Again, this is pretty direct. He doesn't think they're telling the truth, and he thinks that really undercuts both of them.

0:23:55 Thomas: Yeah. Yeah,

0:24:23 Matt: Now we get to the remedy. What do you do about this? And I think he really navigates this because he doesn't want this case to be spiked. He obviously doesn't want to ruin the entire case by disqualifying her. He clearly doesn't think there's enough to do that anyway. But he would rather give them a safe harbor, a way out, away to keep this case going. And he does that pretty directly. He doesn't tell them what to do, but he says, look, you've got two options, right? You can spike your whole case and we can...

0:24:41 Thomas: I know. Talk about splitting the baby.

0:24:45 Matt: I know.

0:24:45 Thomas: It's not, I mean, it's not exactly splitting. It is more like there is a toe and then the rest of the baby. And it is like, okay, I

0:24:48 Matt: This is a hatchet. It's still brilliant, I think. He's laying out the options that we were talking about, that if she stepped aside, then it would have to be referred to for reassignment to the prosecutor's council, and nobody wants that. Or, alternatively, Wade can withdraw, allowing the district attorney, the defendants, and the public to move forward.

0:24:54 Thomas: Yeah?

0:25:09 Thomas: Convenience suitor theory confirmed? Oh, well, I just have to get rid of it. Sorry, no. But we just got to get rid of this guy and then we're fine. We're good to go. But it is interesting. It your impression that if she walks away, then the whole prosecutor has to? Too, because it seemed like that wasn't exactly what you were saying before when you said she could just step aside for a bit. So I guess I'm asking, why do you think it's packaged this way where on one hand, either Wade can withdraw or her whole damn office is out of order? Why wasn't it just either Wade can withdraw or she can withdraw and someone else in her office could take it?

0:25:46 Matt: We're actually talking about—this is pretty subtle—but two different ways she could it step aside. So the one that he's referencing is Georgia 15-18-5, which is the one that requires the Prosecuting Attorney's Council to take it over, which we know would probably be a disaster or at least severely delay the case. But we're also talking about the possibility there's like this kind of loophole where she can just kind of take a break, that she could take leave for a while and appoint somebody else. He doesn't mention that option, but that is another another way that this could have gone. There's a different Georgia code that controls that. We had also talked about the fact that it seems like Wade might be a good sacrificial lamb here because He's not crucial to the case at this point.

0:26:20 Thomas: Yeah, I guess my question specifically is if there some is sort of statutory or whatever method her just going away and not the whole office, why why do you think he didn't give her that option? And it's either her whole damn office goes away or just Wade.

0:26:36 Matt: I can't really tell her to go on leave. I think that's pretty personal. That's my read on him, right?

0:26:41 Thomas: Oh, okay. Well, again, who's making the rules of what can and can't be done? I get the impression that he's kind of out on a limb, just making up his own baby splitting, but maybe not. Are you saying it has to be related okay, so because approach would be more like, oh, you're taking a leave of absence in a way that's like of personal, It's it not like he can say like, yeah, why don't you take some maternity leave or something, you know? So, okay.

0:27:00 Matt: Exactly, right.

0:27:01 Thomas: Makes That

0:27:01 Matt: It seems like this has been tough on you. Why don't you take a vacation, right?" And it's Not officially really something the judge, but he can refer to this part of the code. And that option we were talking about was suggested by a law professor in Georgia. I really liked it. I didn't hear a lot of people talking about it. This has always been, when he says step aside, he means recuse, that she could recuse. And at that point, the office is out. Of course, there's an easy option. And he's not telling her what to do.

He's just saying, like you said, you can pick the toe, you can pick baby, up to you, whatever you want to do." And I would expect we'd hear by the end of the day, I would think that Wade's out, but maybe not. Well, we'll talk about that at the the end, I guess. But real quick, forensic misconduct. You might remember I raised this at the very beginning when we started talking about this case because I hadn't heard that expression before.

It seems like a very Georgia thing. And I really appreciated that he finally defined it because I haven't been able to find anybody to just tell me what it was. Also recognizes forensic misconduct, comma, or improper comment, comma. Thank you. Oh, I needed somebody to tell me. His personal belief in the defendant's guilt, you know, that kind of thing. I did find cases along the line, but I couldn't find anybody to just say directly in like a very clear statement exactly what forensic misconduct is.

So he's saying, you know, he actually gives it a pretty serious analysis, but he says there's really only one case to guide me. It doesn't seem like what the defendants are asking for is reasonable forensic misconduct because they're talking about all these different comments she made to the press and to the author that was looking at, you know, that was writing the book about her. Does have some criticism of her speech at Big Bethel AME

0:27:02 Thomas: Sense. Yeah, that makes sense, okay.

0:28:20 Thomas: Yeah.

0:28:20 Matt: On 2024. That's something that we talked about at length, I think. But

0:28:20 Thomas: Yeah and I did want to point out because I had a bit of a subtle point here that I thought was pretty decent, but maybe ultimately not. Is the speech of the church and talked about this and, um, noted though, that if the idea is you are biasing the public, essentially, um. Pointed out that, well, since she was just criticizing them and essentially calling them racist, which I get, you know, is bad, but, uh, prejudicial, I guess I should say, even though I agree with it.

0:28:49 Matt: Accurate.

0:28:49 Thomas: Was only about this motion. And so my point that I think Casey ultimately agreed said with, it was interesting. So just saying, Casey thought something I said was interesting was, well, that decision on this motion is just going to be decided by this judge, you know, which we saw. Don't know how that works, but it felt to me like, well it's a little bit neither here nor there. Cause the judge can just not be, you You know, I feel like he can safely be like, well, I'm not prejudiced by that comment. Like I'm a judge. I can I'm better than these.

0:29:15 Matt: Right. I can take it.

0:29:16 Thomas: Yeah, exactly.

0:29:16 Matt: Yeah. Right now.

0:29:18 Thomas: Did push back and say, well just kind of accusing them of racism in general, even though it's related to filing this motion, it might also be prejudicial to the rest of the case, which, yeah, seems like a good point.

0:29:28 Matt: To the jury, potentially.

0:29:29 Thomas: Yeah, Yeah, exactly. And the judge did kind of agree in saying the effect of the speech was to cast racial aspersions at an indicted defendant's decision to file the pretrial motion. But it gets slightly more complicated in a footnote because love these footnotes. You know, footnotES, I feel like it's where where the fun stuff is.

0:29:29 Matt: Yeah, he's good. Oh, have I mentioned it? I do have a footnote fetish. This is something I'm working on, but I love him.

0:29:51 Thomas: Footnotes and fonts. Footnote font fetish. The three F's.

0:29:52 Matt: Yeah yeah, that's true. It's a Garamond footnote, so I'm golden. Yeah as

0:29:55 Thomas: Yeah. Yeah. The only thing that would be better is if there were other fonts you liked and people, would it be better or worse if a judge decided to use different fonts and footnotes just to like get more range, you know, like get more.

0:30:07 Matt: Long as he's following Matthew Butterick's advice about legal topography, I'm OK. As long as he sticks with the book. Yeah, that

0:30:11 Thomas: Okay. But quote, worth noting is that there may be an issue of standing for the other five defendants challenge of the speech. Although counsel for Trump, for defendant Trump expressed an open court, the possibility that he would join the motion after conducting his own investigation, each defendant only formally joined defendant Roman's motion challenging S .A .D .A., Wade, after the speech had been made. Me a second to puzzle that out. But I guess he's saying, if judging the church speech based on her calling the people who filed this motion racist, then only the guy who had filed the motion, the other defendants hadn't joined. So, like, kind of by definition, you can't really say that she's calling them racist because they hadn't join at that point, Which

0:30:52 Matt: Is technically correct. But obviously, you know, we heard Trump when he's when she said that because, you he's right. He's not wrong that when she's just talking about the motion, she's talking about this particular guy and his action. You Know, he correctly finds that she didn't get into the merits of the actual offenses at all. She just talked about the fact that they were trying to disqualify her. So And he said that's too far away to say that this establishes a permanent taint to the jury pool. So we're no taint. We're good.

0:30:58 Thomas: Yeah. Can, Say, I swear to God, this feels intentional. Let me know what you think. Quote, "Providing this type of public comment creates dangerous waters for the district attorney to wade further into." Two

0:31:23 Matt: Yes. This is so carefully written. There's no way. I highlighted that one word in that sentence. I knew you'd catch that. Yeah. I mean, of all the words, he's just getting help himself.

0:31:31 Thomas: Yeah. Come On, man, all right.

0:31:40 Matt: There is no way you read this thing so many times before you put this out. He mentioned like last week that he had his draft ready. He's been very carefully going over this every night.

0:31:41 Thomas: Yeah. Yeah. Fair Enough.

0:31:48 Matt: And, you Know, maybe he had a little debate with his wife or whatever about, you know Yeah, sure, but I appreciate that. Yeah.

0:31:48 Thomas: You Know. Sneaking Something In There, Just For fun. It's Plenty of plausible deniability, but I see what you're doing. You, I Do.

0:31:56 Matt: No. This is a guy who plays Jimmy Hendrix on the cello on stage, so, you know, he can, he can rock it. Uh, right, and then the other grounds and not even worth mentioning. As we discussed at the very beginning when we talked about this motion, because they were obviously trying to throw the whole case out, they had a bunch of kind of specious arguments about why the whole thing should go, and he just knocks him out, just just right away very quickly, what

0:32:00 Thomas: Yeah.

0:32:13 Thomas: I feel like we have the same quote here. Oh, I know these people have no shame, but this would be one of those times where, if this was my job and I was the one being absolutely just, I'd on by a judge who plays electric cello in this manner, I would feel bad. But I know those people don't have those kinds of feelings. In a separate motion adopting the arguments of her co-defendants, defendant Latham presents an additional Theory. "She asserts the right to call the district attorney as a witness at trial to examine her biases toward the defendants and demonstrate that she brought a politically motivated prosecution." Accepting the sole citation raised in support, citation blah blah blah, yep, yep, from '93, good point, requires ignorance of the opinion surrounding context. Actually reading the case and the authority upon which it relies, and not simply quoting a head note, reveals that the Court of Appeals' antiquated use of the word "prosecutor" referred not to the legal officer handling the criminal case on behalf of the public, but rather the, quote, "main witness for the state."

0:32:34 Matt: Yes. 1938 Oh,

0:33:16 Thomas: Which, uh, yeah.

0:33:16 Matt: That's the worst when the judge actually reads your cases that you cite. Well,

0:33:19 Thomas: Yeah, I was, didn't know you were going to check. Ugh. All right, fine. Yeah, that's, that's pretty bad. That would be professionally embarrassing for me.

0:33:27 Matt: She was asking for that. That was insane. That, like, she thinks she gets to call the DA in the middle of trial to be like, "Hey, why are you doing this?" Come on, you think that's gonna happen? Like, which, this was the most movie case I've seen in a long time, but he points out, of course, that if he wants to claim selective prosecution, you got to bring that to me before the trial, right? We have to talk about it in a motion.

0:33:36 Thomas: Only happens in movies. Yeah.

0:33:48 Thomas: Yeah.

0:33:48 Matt: Has some kind of salty remarks here about things that he would consider if you brought them to me, which I thought were pretty direct. And one of them was essentially a gag order. Basically, he's like, if somebody wanted me to ask her to stop talking about the case in public, I would be happy to consider that motion.

0:33:54 Thomas: Yep. Yep, yep.

0:34:03 Matt: I thought that was pretty telling. He's trying to save her from herself, I think, a little bit.

0:34:04 Thomas: Interesting. Yeah I mean and not not for nothing. I don't know if it's happened in this case, but like Trump's been gag ordered a time or two. So I feel like Yeah, I mean, it's yeah, it I feel like it's a good move by the judge. I think because it does seem a little bit unfair, unfair maybe to at least the appearance of unfairness for him to have been gagged so many times publicly and for, uh, for Willis to a saying a little bit too much. So yeah, reasonable.

0:34:13 Matt: Yeah, for good reason.

0:34:31 Matt: As we've discussed, it's very unusual for a prosecutor to talk this much in public about about that. But so, okay. So conclusions, what do we get to?

0:34:34 Thomas: Yeah. Yeah, figured it was worth reading the entire conclusion paragraph. I Think, quote, "Whether this case ends in convictions, acquittals, or something in between, the result should be one that instills confidence in the process. A reasonable observer unburdened by partisan blinders should believe the law was impartially applied and of crimes had a fair opportunity to present their defenses, and that any verdict was based on our criminal justice system's best efforts at ascertaining the truth. Any distractions that detract from these goals, if remedial under the law, should be proportionally addressed. After consideration of the record established on on these motions, the court finds the evidence legally insufficient to support a finding of an actual conflict of interest. However, the appearance of impropriety remains and must be handled as previously outlined before the prosecution can proceed. The defendant's motions are therefore granted in part and denied in part." That's it.

0:34:41 Matt: Yeah, it's good.

0:35:31 Matt: Everybody wins something.

0:35:32 Thomas: Granted in part and delayed in part does a lot of work. You know, I came across that in something we covered on Where There's Woke, where's a total asshole being an idiot about the law, and it was like, all right, he got one tiny technicality, but at the end it's still like, well, you know, we have, we all you want some, I want some, and it's like, yeah, okay, everything was denied except one dumb thing.

0:35:35 Matt: Yes, it does.

0:35:48 Matt: Yeah, well, you asked the court to dismiss the case and make you a sandwich. And he's like, no, no sandwich. Denied. Entire sandwich denied. No. I think that's a brilliant conclusion. I really did it. I think he also, very interesting thing, you ask about the appeal and where this goes from here. Because he does not want this appealed. In yesterday's decision, he specifically said that he will certify an appeal. And I think he said he would expedite it if they brought an appeal to the dismissal of the charges. In this one, he doesn't say that. And it's up to him, because this is not a direct appeal. This is what's considered to be a collateral issue about whether this prosecutor should be on this case. He can certify the appeal or not. It's not an automatic of right appeal.

0:35:59 Thomas: Yeah, yep. Yep. So You can be like, I am the law, and then they just Wow, I didn't know judges could do that and

0:36:32 Matt: Exactly. And when it's collateral, when it'S not directly to the merits of the case. And as we've discussed many times, this is pretty far from the merits of the case. We've got a sideshow here. But Fannie Willis could theoretically appeal this. I don't see any benefit to her. The only benefit would be because she really wants to keep Nathan Wade on, and that wouldn't look very good under the circumstances.

0:36:49 Thomas: It would slow it down, right?

0:36:51 Matt: A lot. Yeah, no, if you appeal this, I don't know how long appeals take in Georgia, but I think safe to say probably a year or more in any state appellate court right now. So that's not worth it.

0:36:51 Thomas: Right. Yeah. Jeez. She can cash in those hundreds of hundreds of dollars, though.

0:37:02 Matt: That's right. Yeah, just keep billing. Of course, the defendants can appeal it and say that she have been fully disqualified or

0:37:08 Thomas: That's actually what I was. I didn't think about her appealing it because I.

0:37:10 Matt: Right, I got to look at both sides.

0:37:11 Thomas: Yeah, no, that's good point.

0:37:12 Matt: You know, I think that he's—I caught a kind of a subtle message there in the fact that he said specifically to the state yesterday that if you want to appeal this, here's what you can do. And he doesn't say anything like that here. And this is a very thorough decision. It is very well backed up. It's very well thought out. He's really covered every piece of this. And I think he's telling them, don't bother. This is not something that's worth appealing. Let's keep going. I'm going to hear this case. Case.

0:37:34 Thomas: And we know that Trump's representation inside and all of them are completely reasonable and open to such, subtle hints like that. Matt. So exactly.

0:37:42 Matt: Concerned with judicial economy. Very important to the Trump team. He

0:37:45 Thomas: I'm sure we'll see 800 appeals probably. But what would that do if he's given them this message and they're like, nah, still want to appeal? What happens?

0:37:53 Matt: Deny the certification of the appeal in this case, so far as I know. Yeah, no, he can just say, nope, I said what I said. And this is not, just doesn't go to your guilt or innocence. This is just like a totally ancillary thing that I've already found has nothing to do with anything that's going to affect the case. So onward, I hope.

0:37:55 Thomas: Just right away. Yeah. Nice.

0:38:08 Thomas: Well, there you go. Think there's only one thing to do at this point, Matt. And last requested multiple times by Matt. It is time to play a little bit of of this electric cello.

0:38:12 Matt: It's the the cello, isn't it?

0:38:23 Matt: Is Scott McAfee in high school being a total badass as a cello player. And I'm a big fan of cellists.

0:38:27 Thomas: He's in high school? Okay, true to his look, he looks 40. Now he looks 70, in high -school he looked 40. Okay, consistent.

0:38:28 Matt: Yeah. Yeah, no, he's a talented cello player. I piano, but I played violin for a while. I know a lot of cello plays. And so he starts off doing like a Bach piece, doing a very standard acoustic cello thing. And then he's like, I can't do this anymore. And he comes back out with the Jimmy Hendrix headband, no, I think this is very funny, for especially for someone who's a future member of the Federalist Society, uh, comes out, yeah.

0:38:52 Thomas: Wait, he is? You still like this asshole?

0:38:54 Matt: Um, I think he's being very fair, he's not acting, you know, I can still take judges on their merits, uh, come out decked out like Jimny Hendricks at Woodstock with the, uh, know, the bandana, and he's carrying a really badass electric cello, and he's going to do the Jimi Hendrix at Woodstock Star Spangled Banner. That's what we're listening to right now.

0:39:00 Thomas: Jeez. Let's get some acting in there. The showmanship. A little pitchy, but you know.

0:40:09 Matt: He's got fans.

0:40:11 Thomas: Yeah. I wonder if they still follow him around in court, you know? This shouldn't exist. I mean the footage. It's great. It was a fantastic high school presentation.

0:40:27 Matt: Yeah, it's so good.

0:40:29 Thomas: I have similar skeletons in my closet somewhere and they just shouldn't be filmed. They shouldn't be filmed, you know, we who

0:40:33 Matt: They're not on YouTube. Yeah. It's YouTube. But again, we can appreciate it. I respect it. Honestly, it's a little weird because this is, of course, one of the great moments of countercultural history in 1969 that he's replicating as a white kid in Illinois or wherever he is, a future Federal Society member.

0:40:47 Thomas: Will yeah no one who joins the Federalist Society should be allowed to have ever played this. I'm sorry, yeah.

0:40:53 Matt: Yeah just think it's funny that he did it. I think he's pretty talented from what I can tell. We can't let that go. We have to play some of it. So there you go.

0:40:53 Thomas: Yeah oh boy, he's only got 89 subscribers. I'm surprised this wasn't on the same YouTube channel as this. 12 years old? Oh my gosh, wait, yeah, high school? What? What? This guy is five years old. His high school. Okay, this is not. Okay, I

0:41:15 Matt: Don't think about it too much. I don't like to think about it myself.

0:41:16 Thomas: Can't handle this. I was

0:41:17 Matt: I'm 43. I can't take it.

0:41:18 Thomas: Trying to think about like, okay, why is this on YouTube? I was in high school and that wasn't on YouTube. And then it's because he graduated. Well, this is from March, 2007. And this is him in high School. What is this man? I can' t handle this, God. God,

0:41:26 Matt: Yeah. Yep. Yeah, I graduated high school 11 years before this and I'm not a judge, but here we are.

0:41:34 Thomas: I, to cast aspersions on your favorite judge, I'm sorry, but the real affirmative action has always been the Federalist Society and being conservative. It'll make you a judge at 14, apparently. Hey, he rocked that decision. He split that baby like only Jimi Hendrix could. I don't know.

0:41:43 Matt: Oh, yeah. Sure. Yeah but I will say I think you understand the law a lot better than understands Jimi Hendrix. So yeah anytime.

0:41:55 Thomas: Yep. Yep. Well, there you go. Thanks so much for coming on for the emergency recording. Appreciate it, Matt. Matt, and your law chambers, I suppose. You all Monday.

0:42:03 Matt: I

0:42:06 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

0:42:23 Thomas: Need to hear the words, just in case. Are you actually recording? Okay, sorry.

0:42:26 Matt: I'm recording, yes. Sorry, I thought I said that. Okay, yeah, definitely am.

0:42:29 Thomas: Yeah, I just said I'm recording and you're like, yeah good for you, that's awesome, cool, great news. No I'm just kidding.

0:42:33 Matt: Keep going.

0:42:36 Thomas: That you, who's, where's that, over of mendacity?

0:42:38 Matt: Maybe it was a chair creak.

0:42:38 Thomas: No. Okay, no.

0:42:40 Matt: Sorry, I thought you meant a noise. Because you can do that again.

0:42:41 Thomas: No. See, I'm so in character, Matt, you know, it's Uh, so It's done, look, if you're gonna be the comedy of this show, you're gonna have to learn the ropes. No, I'm Just Kidding.

0:42:45 Matt: Yeah, yeah, sure. I'm just so used to you catching noises that I make. I thought your saying is that a noise? Yeah, but yeah, I

0:42:52 Thomas: That's So True No That That odor fortunately