♪♪ good to be with you, i'm ta katy tur bringing you special coverage for the next three hours out of fulton county, georgia, where judge mcafee will hear the final arguments in the fani willis disqualification hearings. what will he decide? the prosecution and the defense here have essentially swichld places for these hearings, with lawyers for the accused 17 co-conspirators including donald trump, acting like prosecutors

trying to put the d.a. and her defense team on defense. the accusation is that fani willis had an improper relationship with one of her prosecutors and stood to benefit financially from employing him. the subsequent testimony has been salacious at times, heated at others, especially when willis herself took the stand a couple of weeks ago to call the whole investigation bs. and while the alleged conduct is dominating the headlines, it doesn't change the underlying allegations in the original case, which is that more than a dozen people including the former president, have been accused of coordinating to try and illegally overturn the results of the 2020 elections in georgia. joining us now, host of the katie phang show right here on msnbc, katie phang. we are watching the courtroom. judge mcafee is sitting down. katie, give us the initial state of play. >> reporter: so today are going to be the arguments, you can

call them the closing arguments if you want, katie, because this has become a trial within a trial for a case that doesn't even have a trial date. this evidentiary hearing spanning a number of weeks, reopening evidence earlier this week in order to have the former divorce attorney for nathan wade, a man by the name of terrence bradley to have to take the stand to answer more questions by the defense. the state notably not having any for mr. bradley. terrence bradley was promised to be the, quote, star witness for the defense to talk about the timing of the nathan wade, fani willis personal relationship. however, bradley refused to deliver for the defense, so now scott mcafee taking the bench today to listen to these arguments from both sides, each the state and the defense having the opportunity to convince judge mcafee that the law in this case has been met. remember, this is the burden on the defense, katys, the defense has to prove that under the georgia law there's a conflict of interest.

now this case has gone towards was perjury committed by nathan wade and fani willis, and so unfortunately at this point, i think the judge is going to have to address whether or not that has been committed and whether that is enough to be able to take off fani willis from this prosecution. >> all right, so we, again, are watching the lawyers who are there for each of the defense -- for each of the defense teams are there, they're introducing themselves. there's seven defendants there in total, multiple lawyers for many of those defendants. this could be quite a few hours of arguments. lisa rubin is also with us, andrew weissmann is also with us there at the table with me. let's talk quickly about georgia law here and what needs to be proven. an article written by our friend joyce vance and a couple of others talks about how georgia law, georgia law on conflict of interest does not apply here. >> i agree with that, and there's sort of a legal component to this, and there's a factual component, and the unfortunate part is whether i

agree, you agree and joyce agrees. by the way, disagreeing with joyce is always a dangerous thing. this is one where the judge has said he wants to hear it so guess what, he gets to control. he said that the thing that is concerning to him and why he's having the hearing is the money. it's not just having an affair. he doesn't -- that's not what he's focusing on. he said i'm interested in knowing essentially whether these two people went dutch. that's how sort of minute this is in terms of where we're heading. as you said, it has nothing to do with the underlying case. but he said that's something he's concerned about it. so i think that's what we're going to hear argument on. >> it's kind of hard sometimes to keep track of what the allegation is here. i have to -- every time i sit down to do this story, i have to remind myself what is she accused of doing that would make it so that she would not be able to prosecute this case? and it's having an improper relationship and it's benefitting from that relationship. in terms of whether they went dutch, there is evidence that

the defense -- not defense team, the prosecution team, which is acting as the defense, d.a. willis's team wants to present from a guy who works at napa who says he saw fani willis pay a bill with $400 cash, presumably he remembers because almost nobody uses cash these days. so they're trying to present that evidence in this case. remind me, even if they did all of the things that they're accused of doing, why would that affect the original prosecution of these originally 19 co-defendants for trying to overturn an election. >> that's a good question. even if you accept the premise she has financially benefitted from her appointment of her boyfriend nathan wade as a special prosecutor, you have to go one step further for georgia law to see a disqualifying conflict of interest. you have to show that the defendants themselves were disadvantaged somehow by the appointment of nathan wade while he was also fani willis's

boyfriend and paying for trips. and i'm not sure, katy, even if all of the allegations here are true that you can cross that threshold and find that she should be disqualified. >> all right, so the judge is now talking about cell phone records, which the defense team wants to present saying that wade and willis were linked more closely and before that she hired him as a special prosecutor. let's listen in. >> would permit me so the court would understand where i'm coming from, and i believe also mr. cromwell also has a proper for a witness that he has talked with and does have an oral -- >> we've got -- this is the first i've heard of it. are these things that have been discussed or shared with the state at all? >> no, your honor. i literally -- my communication with this particular witness occurred this morning at about 10:10 along with mr. chris know

who was on the call with me. what the witness would say, who the witness is, a brief summary of what this particular witness would testify to in the event the court allows for evidence to be reopened and on the record i would state that on behalf of my client, mr. shaeffer, we do want the record to be reopened so that the court could hear if they want to bring in someone from california, let them bring them in, and we believe that the court might want to hear the proffer and the evidence we are prepared to proffer today. >> to that point, mr. cromwell's additional evidence in my mind in the interest of fair notice to the other side, i wouldn't -- i wouldn't want that to be part of the argument today because the state has no idea what you're about to say, and i think the purpose of a proffer in large part in this role and in this context is having the -- at

least having the ability to make those initial counterarguments. now, i don't think that would prevent you from acting today's hearing, if you want to file it, make it part of the record, i think that both parties have already elected that they are willing to use that mechanism, but just for today kind of showing up now without having shown this to the other side at all, even this morning, i don't think that would be fair. >> i did not intend to use the proffer in the illegal argument. >> sure. >> i just wanted the court to be aware that we do have an oral proffer, we can file it, and we can supplement the record and file it for the court's consideration literally hot off the press. >> sure. >> as we print it out and -- >> okay. all right. well, mr. cromwell, is there anything you wanted to add to that? >> no, your honor. >> mr. abaa dee, you want to add to that? >> i don't know what it is, i

don't know how to add to it, no. >> all right. just anything on a procedural perspective? >> i mean, from a procedural perspective, i would submit to the court as you've said multiple times, evidence is closed. this is beyond the scope of your honor's ruling on tuesday. tuesday. so i guess we'd object at this point. >> just to explain what's going on here, initially they were talking about cell phone records, and then they went to this proffer of another witness. the defense wanted to introduce a surprise witness that they said had bearing on this case, and they used the prosecution wanting to bring in the person from napa who i mentioned a moment ago saying that they saw fani willis pay with $400. there's a reason if they bring them in, we'll bring this person in and we'll be able to reopen the evidentiary part of this hearing. lisa rubin and andrew weissmann are still with me.

so judge mcafee said you're opening another can of worms here. you can file motions. you can put it all into evidence, and then both sides can reply. >> essentially you didn't give notice to the other side, so you can't just spring this on them, so if you want to at the end of this hearing make some application, they're going to make some application, you're going to make some application. i sort of read that as you want to put it in the record, that's fine, but i'm making a ruling today. >> yeah, he wants to get this over with. >> and he's closed the evidence already. that's why these are closing arguments. so these belated efforts by both sides to lob in additional evidence are probably not well taken by judge mcafee who i believe is tired of this at this point and would like to make a ruling and either get on with it or allow the prosecuting counsel in georgia to appoint a different prosecutor. >> let's say she does get disqualified. let's say judge mcafee says, listen, this doesn't look great. i think she shouldn't be in charge of this case any longer,

that's her entire team. >> her entire office. >> it seems that it could potentially move to fulton county -- not fulton county, to dekalb or cobb county, something pretty close, hold on, i'm listening. i think we're about to hear from ms. merchant, who is one of the lead lawyers hear for the defense. this is not ms. merchant, clearly. john merchant, another merchant. this is -- >> her husband. >> her husband, hello. also representing michael roman who initially brought this allegation. let's start -- let's go back in, let's listen. >> just by way of road map to give you some idea about the allocation of time and what i'm going to be covering, i've been charged with talking to your honor about the conflict issue and the appearance of the conflict and what we believe the evidence to show on that issue. mr. sadow, mr. gillum will be

talking more about the forensic context, ms. willis's church speech, and the book that she gave several interviews for. i won't be discussing any of those issues, so if you'd like to ask me, certainly i can try to address them. that's going to be the focus of their presentation, and then towards the end, other folks may have issues specific type arguments either in follow-up to mine or the forensic misconduct. those are the two lanes we're going to be covering. i'm going to do the conflict piece of it for you. on that issue, your honor, this is a matter of first impression in georgia. i can't find a single case that's been published by the court of appeals or the supreme court that is based on these facts. there are, of course, a number of different appellate court cases that deal with conflict related issues and more importantly appearance of conflict-related issues and some of those are base instead state law. some are based upon the sixth

amendment right to due process that's implicit in all of what we're doing here today. i want to remind the court that we're here today on this motion to disqualify d.a. willis and her office because of her judgment, frankly. she is supposed to be disinterested under the sixth amendment, and she's anything but that. the fact that these proceedings have taken this long through the convoluted way we've made it here today explain that. so as i present my arguments, i want the court to understand that this court represents the guardrails for the sixth amendment in this context, and ms. willis has already been disqualified once. so i would encourage the court to remember what judge mcburney did in his order disqualifying, the same argument was made in that case as to whether or not there needs to be an actual conflict of interest or whether or not the appearance of a conflict of interest might be sufficient under the facts. i want to make clear to the

court that the law in georgia suggests and is very clear that we can demonstrate an appearance of a conflict of interest, and that is sufficient. there is -- i'm going to be candid with the court. there is a supreme court decision from 1996, and then there are two court of appeal decisions after that that deal, frankly, in some dicta that suggest that an actual conflict is required, but the supreme court of georgia since those decisions came down has made quite clear that the appearance of a conflict standard still applies, and the reason that's important is i think under the sixth amendment, which is where we're at, in order to preserve the defendant's rights under that -- under that provision, and under corollary provisions of georgia law, you've got to consider the appearance of a conflict. and the reason why the appearance of a conflict is so prescient here is because if this court allows this kind of behavior to go on and allows

d.a.s across the state by its order to engage in these kinds of activities, the entire public confidence in the system will be shot. and the integrity of the system will be undermined, and so with those sort of public policy and constitutional principles, i wanted to turn to the law in georgia on disqualification. and you know, i'm going to give you the law, and i'm going to talk about the facts and how they apply to the law at the end. if you want to talk about the facts earlier, jump right in and i'll be happy to do that. i'm sure your honor is very well prepared and probably knows all the law that i'm going to say to you. to give the skeleton outline, the original case that deals with conflict of interest from the georgia supreme court is williams v. state, 258, and there are basically two messages by which you can disqualify district attorney. one of them is a conflict of interest, and i will suggest to the court, that doesn't mean an actual conflict. that can mean an appearance of

conflict as well. importantly in the williams case, footnote 4, i think this is important for the court's analysis about the facts, the court said there is no clear demarcation line between conflict of interest and forensic misconduct and given ground for disqualification of the prosecutor might be classifiable as either. i think that's important because we have facts that fitin both boxes. if the state stands up and says there's no conflict, that doesn't mean it doesn't apply to the are forensic misconduct. typically forensic misconduct relates to statements the prosecutor designed to impugn the character of the defendant before trial and to affect the jury pool, which we have hear, which i'm not going to discuss. but the facts that we have here very much relate to that issue and crossover. importantly, and i think this is important for the court's consideration of what effect the court's ruling may have, if you deny this motion, there's a good

chance if it's reversed that we would be granted a new trial. so that means we're going to have to do this all over again. in amusement sales versus state, georgia appellate 727. that's a case that cites whitworth, the court said if the assigned prosecutor has acquired a personal interest or stake in the conviction, the trial court abuses this discretion in denying a motion to disqualify him and the defendant is entitled to a new trial. new trial even without a showing of prejudice. so that means if we show the court today -- i think we have through the proceedings today and before -- that ms. willis has developed a very personal interest in this case and your honor denies this motion, we're coming back all over again if the appellate courts say you were wrong. >> so what is that personal interest? >> the personal interest can be -- there's no definition of that under georgia law, and it could be o'a personal financial

interest. it could be a personal interest related to bias against a particular defendant, which sort of falls into the forensic misconduct box. but we have here a very personal financial interest that's been laid out in terms of money received by ms. willis as a result of the scheme that she set up. to get to the issue of the personal interest in the context of an appearance, i think that's important. i do want to suggest to the court that there are a number of cases that post date this actual conflict of interest language that suggests in some of the cases from the '90s that you have to pay attention to what this looks like to the public, and i agree with all of the law and i'm sure the state's going to stand up here and say, it can't be speculative or a conjectural type of personal interest. we don't have that here.

we have something very concrete. as judge mcburney put it, actual and palpable, not speculative and remote. that's exactly what we have here. we've demonstrated through the testimony of the witnesses, some of whom impeached themselves, that we have a very personal interest. and the seminole united states court case that deals with prosecutorial impropriety is young v. u.s. it's 481 u.s. 787 case, in that case it's the opportunity for conflicts to arise that created at least the appearance of impropriety and that's the case that requires that the prosecutor be disinterested. since a scheme injecting a personal interest, financial or otherwise into the enforcement process may bring irrelevant and impermissible factors into the prosecutorial decision. now, there are a number of georgia cases that sort of repeat that theme, reeves v. state 231, georgia appellate 22,

that's a 1998 case, stated a potential conflict of interest existed in the appearance of impropriety existed. davenport, this 1981 case that was decided seven years before williams. when there is at least the appearance of impropriety a defendant is denied fundamental fairness in the state's prosecution of the charges against him or her. there are also rules that govern prosecutors, lawyers in general are bound to preserve and avoid even the appearance of impryty. that's brown v state, 256 georgia appellate, 603, 2002. head v. state, the prosecutor's close personal relationship with the victim in the case may create at least the appearance of a prosecution unfairly based on private interests rather than one properly based on vindication of public interest. aba criminal justice standards for the prosecution function

standard, a prosecutor should avoid appearance of impropriety in performing the prosecution function. the prosecutor should not permit the prosecutor professional judgment or obligations to be affected by the prosecutor's personal, political, financial, professional business, property or other interest or relationships. so the rules that govern her in her own profession say this is wrong because she's developed a financial interest in this case. and at the very least created the appearance of unfairness towards these defendants by setting up a prosecutorial relationship with her boyfriend that she'd been dating for two years according to the testimony. before i move, your honor, to the specific facts. you asked what's personal interest, and i think frankly as i was trying to figure this out, i think you know it when you see it. it's just like in the concurrence and jack abell las versus state of ohio, the

supreme court case from 1964. justice stewart said i know when i see it talking about obscenity. i think you know it when you see it. i think there's enough facts in front of you that you know it when you see it, and so i think that governing principle helps enlighten some of the facts here. and also, i think it's not just financial and mclaughlin v. state, i think the court's very familiar with that case, 295, georgia 609, 2014, the supreme court essentially said that because the acting d.a. had become a witness in the case and developed a personal interest in the case due to his daughter's relationship with the victim that he was disqualified. because he was disqualified, his entire office was disqualified. so turning to the facts of the case, your honor, i think i've got -- my role is 20 minutes. i've got about eight minutes left. the relationship, why did we

spend so much time on a relationship between these two people? we frankly couldn't care less if they had a personal relationship outside of work. that is not what the issue is here. the issue is that they began this relationship in 2019. they were dating for two years, and then she awarded him a contract where public money either from fulton county or the state of georgia ended up in his pockets. that decision alone was improper. what's even more improper is that she and he used that money to go on personal vacations and trips. if your honor will remember exhibits 9, 11, and 12 dealt with the expenditures by wade on trips. if you do the math on that, if you look at what he spent and then you look at the testimony about what was paid back by willis because the cash reimbursement theory, i'll talk

about in a second, but if you do the math on what he actually paid for and what they testified she paid back in cash, you still have over $9,200. $9,247 to be exact is the amount of money they cannot account for in her testimony. and as your honor will remember, there was no mention of cash in mr. wade's affidavit when the best and first opportunity to raise that issue would have come up is when the state filed their response in his affidavit, that is nowhere to be found in there. the first time we heard about cash was here in this courtroom, and so i think -- so she's received a personal financial benefit of over $9,200 in this case that she can't account for and the state can't account for, and the reason we can't count for it is they came up with a cash theory. cash theory only raised -- >> before we get into that, let

me ask you this, let's say the theory wasn't even there that they had paid it back or that there had been any exchange, should there first be a consideration of immateriality requirement? in this jurisdiction -- it's not in this jurisdiction, have you seen that in any other jurisdiction? >> i haven't seen that judge. if it was $6, that would still be improper. >> would it be improper where it's a per se disqualification if someone buys their boss a stick of gum? is that per se disqualifying because there's no materiality requirement? >> i don't disagree that it may not meet a materiality requirement. i won't say give me a pack of gum is justification for disqualifying a district attorney. i think that's part of the issue. i think it's a fact based issue by you. >> there's a continuum involved here. >> i think the continuum involves you looking at whether or not on the grand scheme -- in the grand scheme of things it violates the constitution. and whether or not there's an appearance of a conflict and the

appearance suggests that she actually received a benefit, and we know that she did. they admitted it. we don't have to speculate about that. she said she got a benefit, and she said she paid back certain amounts. so in that regard, your honor, would $100 be enough? i think you have to look at it globally, consider all of the witnesses, consider all the facts. consider the credibility of the witnesses frankly. your honor sat here and watched everybodiment i haven't spent a lot of time going into the specific testimony. you get to evaluate the credibility of the witnesses as a fact finder and, you know, just -- >> just from a legal perspective, though, you're saying we can't just say a dollar amount, look no further. there has to be a totality of the circumstances analysis. >> i think it's fact specific, judge. i don't really want you to pin me down on that. there's no law on it. i can't give you a straight answer because i haven't seen anything like that. i don't -- and i think if we build a materiality requirement

into the case law, then you're down a slippery slope then because then it's going to be -- the appellate courts are going to be deciing is $50 enough? is $100 enough? so i think it's not necessarily the amount of the money. it's the fact that she received it and it's not insignificant. and i don't think your order has to say because she received $9,200 she's disqualified. i think if we go back to the 20,000 foot level, where's the -- what's the appearance here? is this fairness to the defendants? does it appear that she is interested in this prosecution or does it appear that she's disinterested? she took the stand, she's not a disinterested person when it comes to this proceed, but we also argue she's not a disinterested person when it comes to the prosecution as a whole. i'm going to leave -- i'll resist the temptation to defend my wife who i believe to be an excellent lawyer and a member of the bar for 20 years in good standing, but i will say this, judge, you don't just evaluate

the credibility of the witnesses, you evaluate the credibility of the lawyers, and mr. abaa dee stood up here in open court in front of national news and in front of the national public and called her a liar. i need to address that for one minute. these text messages that are now part of the record, which now are substantive evidence for you to consider, prove everything that she put in that motion, everything that she tried to elicit from mr. bradley was absolutely 100% true. not only was it true, she verified through the witness himself that the motion was accurate before it was filed. so for the state to get up here and impugn her credibility, it's not only improper, it violates berger versus the united states, which is a case that says the state can't just get up here and make any argument it wants, and i encourage the court to call him out on it when he steps up here. we have to have candor towards tribunal. you cannot lie to the court. you cannot lie to the public, and you cannot lie to the jury,

and i think that's what he did. so there's other corroboration of our view that she was in this relationship. i think, frankly, based on mr. bradley's testimony your honor can separate the wheat from the shaft when it comes it credibility, but mr. bradley had two chances to correct information that he suddenly developed amnesia about, but he just didn't do it. >> how does the timing of the relationship impact financial interest? >> because it's part of the scheme she created intentionally in order to give benefits to her boyfriend. so they had -- there's a reason why they fought so hard on this, judge. i mean, there's a reason that every single subpoena was objected to, every single questioned with asked mr. bradley was objected to. the jumping up and down, the obfuscation. there's a reason for that. they know if your honor niends relationship started in 2019 that the appointment of wade itself was improper, and if that

was improper, he had no business as an average citizen along with the fact that he didn't have approval from -- didn't have approval from fulton county to appoint him in the first place, that undermines the indictment, creates a structural impairment in the indictment. he had no more business being in the grand jury room than i did. so that's what they're worried about, and the reason why it's important for the financial piece, judge, is it's how the money ended up going back to her. she put her boyfriend in the spot, paid him, and then reaped the benefits from it. she created the system, and then didn't tell anybody about it. she didn't even tell her dad about it. so i think in the grand scheme of things, if you're looking at the totality of the facts. i've got to sit down here, about two minutes to make room for my cocounsel, if you look at everything put together, judge, they did this. they knew it was wrong. they hid it, and even when they were called out on it, they tried to create an excuse for it by saying it happened after the fact. we know now from the testimony,

ms. yeartytie confirmed. the motion is accurate. and so also i do want to point out there's no paper trail here for the cash. i know that this was -- i know she and her father both testified that they kept cash on hand, which i mean, keeping cash on hand in and of itself is not a problem, but when you're a public official and you're required to keep track of gifts you receive, then you need to keep track of it. there's no paper trail, no deposit history, no withdrawal history, no receipts, none of that. so even assuming their testimony could be credible, and we don't think it is, you still don't have enough information to track all that money that she received. and this is just -- >> does the lack of evidence

fall on the state? does the lack of evidence fall on the state? isn't that where burdens come in? >> yes, i think they had an obligation to tell your honor, hey, this is where the money went. and they certainly had the ability to do that if they could do it. since they didn't do it, we have to assume they can't, and if they can't, i just want to remind the court of very important piece of testimony from ms. willis that i think goes to credibility of all of the officers of the court who testified. she met with wade and they developed in ten minutes after talking about the financial piece, i believe, this cash theory that could not be rebutted. we have no ability to do that. they did and they chose not to do it. so with that, your honor, unless your honor has more questions for me, i'm going to sit down and turn the podium over to my distinguished colleague mr. sadow. >> thank you, mr. merchant. >> appreciate the court's time.

>> good afternoon, your honor. i'm going to speak to what i would call a subset of forensic misconduct, and i'm going to assume that all the law that's been provided to you in pleadings as well as emails you know you don't need me to tell you what the law is. so i want to just set up how the disqualification and then dismissal of the indictment should take place under the subset of forensic misconduct. roman's counsel, mr. merchant, filed on yan 8 her pleading, her motion to dismiss and to disqualify.

we were in court that friday of that week in which i made it known that we, that is president trump, may adopt that motion. i waited to see -- wanted to see what was going to happen before i did so. that sunday, which would be january the 14th, 2024, d.a. willis took it upon herself to go to a historic black church in atlanta, having not responded at all to the motion of ms. merchant's client roman, and she made what we now call the church speech, and your honor has reference to that. you didn't necessarily want evidence on that, but you know what the church speech was. it was videoed. it was clear that ms. willis had notes. she was reading from notes that she had prepared. it was a calculated

determination by ms. willis to prejudice the defendants and their counsel. how so? by making an issue out of the fact that the person that was challenged in the roman motion was black, without telling the public or the church members or anyone for that matter that the reason that mr. wade was being challenged was not because he was black, had nothing to do with race. it had to do with the relationship that had been alleged and later admitted to by ms. merchant. ms. willis took full opportunity to prejudice the defendants and then comes along later in a pleading and says it wasn't designed or intended to be at the defendants at all or the defense counsel, which with all due respect is just nonsense. the purpose of that was to get

public sympathy, public empathy for what ms. merchant had already alleged in her motion. now, that was a violation of the professional rules of conduct. it was a violation of 3.8g. there's no question about it. it wasn't in response to anything that was said. it was a public statement, extra judicial for the purpose of make ago comment upon the defendant. >> it would be in sfons a motion that was filed. >> it wasn't filed in response to a pleading. it was filed in response to a motion, and the motion were allegations made. if ms. willis wanted to respond at that point, she could have said the facts of the matter. instead she misstated what the situation was, took advantage of the opportunity, the ethical violation. and the ethical violation makes

it clear you must refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused. can you think of anything more that would heighten public condemnation of the defendants than alleging that defense counsel and the defendants were making their motion based on race and religion? that's as bad as it gets in fulton county with all due respect. that's exactly, that's exactly what ms. willis wanted done. and remember, the state still had not responded. so then what we get from the state is we get an affidavit filed as part of their response, and that affidavit says specifically, and the affidavit is mr. wade's, says specifically in paragraph 26 and 27 that the relationship did not begin until

2022. it acknowledges the relationship and says it didn't begin until 2022, and the pleading that's filed, the state's pleading, the response indicates not exactly that, but it says there was no relationship as of november 1 of 2021, and that's on page 7. so now we know that timing is the issue because ms. merchant made it clear that we alleged and had evidence that indicated the timing was before mr. wade was hired, not after. so the state now has piled an affidavit and a pleading that claims post hiring into 2022, and then mr. wade, willis testified to the same thing under oath.

ms. yeartie says it began in 2019. why would she know? she would know because she's a former friend. the state's going to get up here and say you can't believe any defense witness because they're defense witnesses and only people that would tell the truth would be wade and willis. i suggest to you that that's mott accurate. i suggest that the testimony that mr. wade gave and ms. willis gave and i'm specifically dealing now with the timing issue, without getting into anything else, that that brought forth a true concern about their truthfulness and being what is required of a lawyer in this state, which is candor for the tribunal, and that's 3.3 of the professional rules. specifically small a, one, make a false statement, a material fact or law to a tribunal. so that's, as i posit it to the court, that's the second ethical violation. and then you also have 8.4 of

professional rules, it says it's a violation of the georgia rules of professional conduct for lawyer 2, and that's a 4, engge in a professional conduct involving dishonesty, fraud, deceit or misrepresentation. >> do you have to find that wade and willis lied, you have to find there is a concern, a legitimate concern based on the evidence in case about their truthfulness, a legitimate concern about the truthfulness, which equates to an appearance of impropriety because once you have the appearance of impropriety under forensic misconduct, the law in georgia is clear, that's enough to disqualify. so why should you find there's a concern with their truthfulness? yeartie is the first one. you have that testimony. but then we go to what is the

most obvious indication that willis and wade were not truthful on the point of timing, and that's bradley. defense exhibit 26 came into evidence. defense exhibit 26 comes in and says -- and you know i went into this the last hearing. it says that on january the 5th, 2024 at approximately 9:49 a.m., there's text messages that are exchanged between ms. merchant and mr. bradley, and the text messages go like just date, and that's from ms. merchant. ms. merchant says, do you think it started before she hired him? bradley, who we now know from defense exhibit 39 has been texting with ms. merchant for a number of months.

this is not the first time, this is months within the communications between the two. mr. bradley says absolutely. now, absolutely is not a speculative word. that's not speculation. that's a definitive statement, and bradley then unprompted says this, and unprompted is important. it started when she left the d.a.'s office and was a judge in south fulton. it goes on, ms. merchant says or she liked it started when she left the d.a.'s office with the appropriate emoji or whatever one would call it to say it was liked, and then mr. bradley say they met at the municipal court cle conference. again, unprompted. he's now definitively telling ms. merchant when this

relationship started. ms. merchant said that's what i figured when he was married. and ms. merchant talking about a couple of hours later, she texts and says upon information relief, willis and wade met while both were serving as magistrate judges and began a romantic relationship at that time. and mr. bradley responds, no, municipal court, thank you. doesn't say it didn't start then. he doesn't suggest that she's wrong other than magistrate court, municipal. now, we have that, and it's in evidence, and what does bradley do? he knows that he's put himself in a position that if he testifies truthfully up on the witness stand, your honor is in a position to be able to find that both willis and wade lied.

so what does bradley do? look, you were an assistant u.s. attorney, you know how this works when you have witnesses in this situation, mr. bradley did everything he could possibly do to evade answering questions. no recollection, couldn't remember. it was speculation. anything he could possibly say that would cause your honor not to believe that bradley knew when this relationship started. i suggest they were clear cut lies and the truth is in defense exhibit 26. >> and so if we take that view that he thoroughly impeached himself, he did not give truthful conduct, what's left standing? generally you would see someone who's impeached, perhaps we have some kind of core that you could point back to and say that's the time he was telling the truth.

in these text messages, is it ever definitively shown how he knew this and that he actually did know it other than just an assertion outright, absolutely? usually if a state has a witness that goes sideways, they've got him locked in. they've sat down with a detective and got a full statement. we don't have that here. >> what you have is the text message, which is a prior statement of bradley that he did on his own, that was not given to him by someone else. the only thing that the court has just noted is how do we know he wasn't speculating? because you don't have to accept the fact that he wasn't speculating. the cases that i provided i think by email yesterday, the first dealing with that, you can disbelieve that testimony and draw a negative inference. that's the ferguson case. on lee, the other case, you can simply take the prior inconsistent statement as substantive evidence. it has the same value, and that's what i'm asking you to do. to take what was the unprompted statement in defense exhibit 26

of bradley and take that on its face, face value, that that is an indication that bradley, in fact, knew and had said he did. if you accept that, you have to have concerns about the truthfulness of willis and wade on the timing issue. >> and i don't know if this is something maybe one of your cocounsel are going to address as well. we heard about the law, it applies how we're outside kind of the orbit of the core of cases we're used to dealing with here where it deals with side switching or where someone is in the relationship, the client relationship. the proposition you're putting forward now is that if a representative of the state, a lead prosecutor, the district attorney themselves says something that's untruthful on the record, that is something that immediately has to be proactively policed by the trial court? basically what i'm getting at is where in the law do we find the

remedy to an untruthful statement? generally we send you down the street to the bar, right? >> and that's why i gave you the cases of regis tarks e and edwards yesterday. they deal with counsel, and in both those cases, the trial judge found ethical violations on the part of defense counsel or potential ethical violations. went through the ethical violations and said based on that you're disqualified. you cannot be the attorney of record in this case. what's good for the goose is good for the gander. if defense counsel conclude kicked off of a case because of ethical violations, i suggest the same thing can happen for are prosecutors when ethical violations deal with truthfulness, candor to the court, extrajudicial statements, those are the things that this court can rely upon and say based on those, again, i find an

appearance of impropriety. >> where would be the limiting principle that district attorney signs every indictment, assigned to this courtroom, does that mean she's off every case? >> if i found that she's untruthful, is that what you're suggesting? >> you don't have to find -- i'm not saying you have to find she was untruthful. you don't have to make a finding of fact that they lied. all you have to do is make a finding of fact that you have genuine legitimate concerns about their credibility, about their truthfulness, and once you find that, then you can apply registae and edwards. >> if i have genuine concerns about her truthfulness on a particular occasion, how do those not spill over into every criminal case? >> she testified under oath and so did mr. wade. they didn't have to testify falsely. they could have testified truthfully. they could have indicated that the relationship, the timing was

in fact, before mr. wade was hired. they chose not to, and in that sense, that dishonesty, that constitutes a violation of their ethical responsibilities this is not signing an indictment. this is not filing a pleading in which both sides have their own positions. this is a requirement that every witness has to tell the truth under oath, and if they don't tell the truth under oath or there's a significant concern about their credibility, then they're violating their ethical rules, and as anyone will tell you, as your honor already knew from when you were a prosecutor, prosecutors are held to a higher standard. they're the ones that are supposed to be seeking justice. they don't have a particular -- they're supposed to be disinterested. when you have the lead prosecutor and the d.a. giving what i suggest to you is untruthful testimony based on

what yeartie has said, based on what bradley said in his texts. based on the whole way it was presented to you, bradley didn't want to testify. he first came up with his attorney/client privilege thing on that. and your honor was fortunately went into that. and then when bradley knew he had to testify about it, you saw what happened. you can draw the inference, as i've suggested on bradley, that what he said in the text message, defense exhibit 26 is true. the relationship, in fact, started prior to november 1st of 2021, that yeartie says that, and now without the relationshi started prior to november 1st of 2021, that yeartie says that, and now without getting into any detail, the cell phone records. the cell phone records show that during that period of time from let's say april 1 of 2021 to november 1st, i'm sorry, november 30th of 2021, that there was a number, a considerable number of 35 or

more occasions where it appeared that based on the records that mr. wade was down in the area where ms. willis was staying in yeartie's apartment. but more important is there are two occasions, and the state has not challenged those. there are two occasions where the records reflect that it appears mr. wade spent the night at that apartment. the state may say we don't accept that, but they didn't challenge it, and even when they brought forth when they brought forth today, supplemental 2 and 3, they didn't challenge it again. what does that suggest? that's corroborating evidence of what yeartie had said, of what bradley said in his text message. it's also impeachment evidence as to what wade and willis said about how many times -- >> is that significant in terms of the times? didn't mr. wade testify that he

was there at least ten times during that time frame. you've now found 35. >> well, a minimum of 35, but never overnight. he said he never spent overnight. >> put that to the side, just in terms of the fact that he did say he had been over there, he visited the place, and i would presume he wasn't obviously keeping a very good accounting of it, but that wasn't something that was entirely denied. >> if you're asking me do we win on the point that he said more than ten or around ten and we say 35, do we win on that point, no. it's not determinant. >> the overnight might raise more concerns. >> it does, and that's the reason we highlighted in the affidavit of mr. middlestat, that is suggestive that they were not being honest with the court. how much time have i used? have i? >> you're close. >> i'm letting them use the hook. so suggestive, again, raising issues, i'm wondering about burton.

we're dealing with a preponderance standard. >> we are dealing with a preponderance standard. >> it is corroborating evidence of evidence we did put up, and that was the purpose of the cell phone records. they corroborate what yeartie says, they corroborate what bradley said in defense exhibit 26. and they impeach to that extent wade and willis's testimony. if you find by a preponderance of the evidence, so i can finish this up, if you find by a preponderance of the evidence that what i call subset of forensic misconduct, ethical violations has been shown and that there is a significant and legitimate concern about the truthfulness of wade and willis, they're disqualified. now, obviously factual findings are yours, but the law allows you to do that. you don't have to do it through an actual conflict. that's the other side of the equation, and that's what i have

argued and i think that's what mr. gibbons can argue. >> before i let you go. this is an interesting classification. you're saying forensic conduct isn't just commenting publicly about the case indicating guilt, you're saying forensic conduct is anything a district attorney says falls under that box? >> no. i'm saying that forensic misconduct as a subset of that would include violations, ethical violations, which impact the ability of the defendants to get a fair trial as well as impact the court's ability to have faith that the prosecutors, these two prosecutors are acting in good faith in their own conduct. same idea dealing with, as i said, defense counsel in the two cases i mentioned. ethical violations can give rise to disqualification, and i suggest we have that here. >> all right. thank you, mr. sanow. >> thank you. >> where's the shot clock when

you need it. >> right there. >> your honor, i want to address very directly here, what we have is a systematic continuous pattern, a calculated plan, evidencing a design to prejudice the defendants in this case in the minds of the jurors. this is what we have seen. this is the problem that the district attorney has is not that the district attorney had some sort of brief off the cuff statement in an interaction with a reporter like williams, that's not what we have here. we have someone who sat down, wrote out her speech, wrote out her plan. who sat down for, whether it's two, three or six times what the editors of find me the votes and told and got her message out about this case before it was

supposed to be tried in this courtroom. and so that is the problem that we have. we have a pattern of forensic misconduct on behalf of ms. willis. >> so, i mean, we have a pattern of public statements being made. i take it you and your team have dive instead and read the book. i know she was asked about specific portions of it. the only case i can find talking about when someone crosses the line on public comments is williams case. there has to be an implication of saying the defendant, a particular defendant is guilty, and it even denied it, right, so have you found any case in georgia where they actually said that a prosecutor had gone too far in the public comments. does one exist? >> number one, thank goodness it doesn't happen often. sadly it's already happened here. in williams, the prosecutor had one response to an inquiry the court found that was improper, but did not have this pattern. it doesn't necessarily mean a

comment about the, quote, guilt or innocence, although that was a pattern in williams. it's the improper comments by a prosecutor, for example, in williams they cite the nature and consequences of misconduct, in prosecution of a case, a 1955 columbia law school article, and how prophetic that was. when williams' cites that case in a law school article, they talk about an awful lot more than simply comments about specific guilt, references to guilt. what you have here, your honor, is a comment, and we can't look. it doesn't apply only if a prosecutor said i think the defendant is guilty in my mind. no. it's more pernicious than that. what we have here is someone who

sat down and drew up a plan for two reasons, drew up a plan for two reasons. and what she did reminds me of what the court in texas talks about, and that is that pretrial can create major problems for a defendant, indeed, more harmful than publicity during a trial, for it may set the community opinion as to guilt or innocence. that's what we have here. that's exactly what we have. and the court talks about the power of the television camera. so what do we have and what did this prosecutor do. what she chose to do is sort of what was criticized by the supreme court in shepherd versus maxwell. legal trials are not like elections to be run through the use of meeting halls, and radio or the newspaper. that's exactly what we have here. what we have is a deflection.

what this is all about is more insidious than just making the comments that she's made. it's a deflection. what she chose to do was to say, okay, i have done my best to hide the relationship with nathan wade, and nathan wade has done his very best by filing false documents in his divorce case to hide his relationship with ms. willis. now, and so what did they do? well, when ms. merchan filed the motion to disqualify, now the game plan has to change. the game plan, i call the deflection begins to take place. the deflection is when the district attorney sat down and wrote out, i'm sure the court has. when you look at that video, it's in evidence, for a speech at church, she has written out everything and she's reading from it. she chooses to deflect, the

court asked earlier, wasn't she really responding to the motion that had been filed against her, that she had. if she had, she would have looked the members of that church in the face and say, there's been an allegation that i had a romantic allegation with mr. wade, and ladies and gentlemen, this congregation, it's true. she didn't do that. she chose to deflect, and to do two things that are reprehensible for any lawyer but particularly for a prosecutor. she chose to pull out the race card and the god card. that's what she did. and she wrote it out. she went on to deflect away from the allegations in the wade motion, and she's saying why in her talk, public discussion with god, why are they only attacking one, in reference t