re: Judge Scott McAfee is ruling on Fani Willis disqualification tomorrow

The payment issue

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Such a reimbursement practice may be unusual and the lack of any documentary corroboration understandably concerning. Yet the testimony withstood direct contradiction, was corroborated by other evidence (for example, her payment of airfare for two on the 2022 Miami trip), and was not so incredible as to be inherently unbelievable. However, as the District Attorney herself acknowledged, no ledger exists. Other than a “best guesstimate,” there is 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. Despite this, after considering all the surrounding circumstances, the Court finds that the evidence did not establish the District Attorney’s receipt of a material financial benefit as a result of her decision to hire and engage in a romantic relationship with Wade. Simply put, the Defendants have not presented sufficient evidence indicating that the expenses were not “roughly divided evenly,” or that the District Attorney was, or currently remains, “greatly and pecuniarily interested” in this prosecution. Nichols v. State, 17 Ga. App. at 606.

In addition - and much more important - the Court finds, based largely on the District Attorney’s testimony, that the evidence demonstrated that the financial gain flowing from her relationship with Wade was not a motivating factor on the part of the District Attorney to indict and prosecute this case. 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 the Defendants have failed to demonstrate that the District Attorney’s conduct has impacted or influenced the case to the Defendants’ detriment. While prejudice is not a required element for disqualification, it is relevant to considerations of due process and the Defendants’ requested remedy of complete dismissal.

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So, the Defendants shot their load too early. They needed to gather more evidence to make this argument. Now that Willis and Wade are locked into this story, it opens up a separate avenue to attack either. That attack wouldn't be proper in this litigation or via this motion.

The appearance of impropriety issue

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While formally undefined in Georgia precedent, an appearance of impropriety is generally considered “conduct or status that would lead a reasonable person to think that the actor is behaving or will be inclined to behave inappropriately or wrongfully.” Black’s Law Dictionary 122-23 (11th ed. 2019).4 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. See Cheney v. United States Dist. Court for Dist. of Columbia, 541 U.S. 913, 924 (2004) (Scalia, J., sitting alone). This must be the standard, as otherwise in this case a casual, uninformed, or misinformed observer might believe the District Attorney must recuse herself merely because her father shares a last name with a co-defendant. Nor is a reasonable person “hypersensitive or unduly suspicious” without an understanding of the “relevant legal standards and judicial practice.” In re Sherwin-Williams Co., 607 F.3d 474, 478 (7th Cir. 2010) (citing In re Mason, 916 F.2d 384, 386 (7th Cir. 1990)).

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One final observation can be gleaned from a careful study of our appellate decisions applying this standard: the remedy can vary. Unlike an actual conflict, the finding of an appearance of impropriety does not automatically demand disqualification. Our Supreme Court has previously analyzed disqualification under an appearance standard in a civil case using a continuum, recognizing that disqualification is not always the appropriate outcome:

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At one end of the scale where disqualification is always justified and indeed mandated, even when balanced against a client’s right to an attorney of choice, is the appearance of impropriety coupled with a conflict of interest or jeopardy to a client’s confidences. In these instances, it is clear that the disqualification is necessary for the protection of the client. Somewhere in the middle of the continuum is the appearance of impropriety based on conduct on the part of the attorney. As discussed above, this generally has been found insufficient to outweigh the client’s interest in counsel of choice. This is probably so because absent danger to the client, the nebulous interest of the public at large in the propriety of the Bar is not weighty enough to justify disqualification. Finally, at the opposite end of the continuum is the appearance of impropriety based not on conduct but on status alone. This is an insufficient ground for disqualification.

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Blumenfeld v. Borenstein, 247 Ga. 406, 409-10 (1981); Stinson v. State, 210 Ga. App. 570, 571 (1993) (applying Blumenfield to criminal defense counsel). The Supreme Court further noted that disqualification due to an appearance of impropriety should rarely occur where there is no danger that the actual trial of the case will be tainted. Blumenfeld, 247 Ga. at 407-08; see also Board of Education v. Nyquist, 590 F2d 1241, 1247 (2nd Cir. 1979) (“when there is no claim that the trial will be tainted, appearance of impropriety is simply too slender a reed on which to rest a disqualification order except in the rarest cases”). Similarly, in Billings v. State, 212 Ga. App. 125, 129 (1994), although the Court of Appeals found the existence of an appearance of impropriety, it noted that the appearance could be cured through screening the affected prosecutor from participation or discussion of the affected case. See also Head, 253 Ga. App. at 758 (“Moreover, to insure that no conflict of interest or the appearance of one might develop, the district attorney took the prudent step of ordering the investigator to take no part in the investigation or prosecution of the case.”). These cases indicate that a trial court can consider alternative solutions to cure the appearance of impropriety.

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So yeah, what I assumed during the trial. Basically if the issue is caused by the attorney, in a prosecution, a common remedy is to just remove the prosecutor causing the impropriety (which would be either Wade or Willis, in this instance).

Dismissal was not a proportionate remedy:

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Ultimately, dismissal of the indictment is not the appropriate remedy to adequately dissipate the financial cloud of impropriety and potential untruthfulness found here. See Olsen v. State, 302 Ga. 288, 294 (2017) (“Dismissal of an indictment is an extreme sanction, used only sparingly as a remedy for unlawful government conduct.”) (quoting State v. Lampl, 296 Ga. 892, 896 (2015)). There has not been a showing that the Defendants’ due process rights have been violated or that the issues involved prejudiced the Defendants in any way. Nor is disqualification of a constitutional officer necessary when a less drastic and sufficiently remedial option is available. The Court therefore concludes that the prosecution of this case cannot proceed until the State selects one of two options. The District Attorney may choose to step aside, along with the whole of her office, and refer the prosecution to the Prosecuting Attorneys’ Council for reassignment. See O.C.G.A. § 15-18-5. Alternatively, SADA Wade can withdraw, allowing the District Attorney, the Defendants, and the public to move forward without his presence or remuneration distracting from and potentially compromising the merits of this case.

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