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Closing Arguments Heard In Bid To Remove Fani Willis From Trump Case. Aired 2-2:30p ET
Aired March 01, 2024 - 14:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[14:00:00]
CRAIG GILLAN, DEFENSE ATTORNEY FOR DAID SHAFTER: And ladies and gentlemen of this congregation, it's true. She didn't do that. She chose to deflect and to do two things that are referee 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 said she's saying why, and in her public discussion with God, why, are they only attacking one in reference to Mr. Wade.
And then she goes on to say, God, isn't it them playing the race card when they only question one? Now, if she had been truthful with that congregation, truthful with the community, she would have said, I had a relationship with him, good, bad, forgive me, whatever. That's what she should have said, but she chose to deflect and say the them, the reference to them and the others and they. It's obviously a reference to the motion filed by, um, by Miss Merchant. They, choose to go after, the black man, and she then goes on again deflecting away and deflecting away from I call the third rail in American society, choosing somebody on the other side of being a racist?
So and so is a racist, they're racist. She was the one playing the race card in a way to try to deflect from her own conduct. She goes on to say, in her discussions with the Lord God, is that, is it that some will never see a black man as qualified, no matter his achievements? Again, the deflection. What is she saying? The listener is not necessarily in that audience in that church. The listener is at Fulton County. The potential jurors who will come into a courtroom and say whether or not they can fairly judge the evidence or judge the defense in this case.
She chose to inject race into the minds of the listeners and virtually everybody in this community and literally everybody in this country has reviewed and analyzed her speech that she made in a premeditated way. And in bringing in not only the race card, but also in bringing in the religious matter, this is exactly what Hammons v. State and our Supreme Court talks about. Condemning is an inflammatory appeal to the jurors' private religious beliefs. Why would she do that? To deflect.
But now, not only is she deflecting, but she is then going forward and in a way telling the community, telling the congregation that God is on her side, not on the side of these people. God, she said, and when she's talking and she's saying, God, pray for their souls, I, meaning God, qualified you, I qualified your imperfect, flawed self, I see you in every hour, do my work. As though she's telling the folks in her very, very, very implicit way, injecting into the minds of the jurors, God wants me to win this case. God wants me to prosecute this case.
And why is he going, and why are these others going after the black man? Well, the answer is very simple. As we said in our brief, we didn't mention Mrs. Cross, Mr. Cross, the white female, or Mr. Floyd, the white male, because there was absolutely no evidence, and is no evidence, of a personal romantic relationship with them in which he obtained these benefits. That's the reason why we are -- we did not do that.
So, she goes forward with her, with the deflections. That's exactly what she does when she goes forward and she talks about a planned interviews time and time again with authors of a book, Find Me the Votes, where she's talking about a case that's going to be tried in this courtroom. It's reprehensible.
JUDGE SCOTT MCAFEE, FULTON COUNTY SUPERIOR COURT: So, in that specific, excuse me, instance. Setting aside the fact that she was willing to go on the record before a case had even reached the jury, what specific statements from that book do you contend cross the line?
Speaker A Well, for example, she's saying, you know, she goes on to talk about all the calls that she gets from people calling her racial terms. And, you know, all the calls are racist. What she's trying to do, and I think there's a reference in there to MAGA people, whatever.
[14:05:09]
In that, what she's really saying is that those people calling me up and making those claims or those horrible racial slurs to me are really people on their side of the fence. That's what she's doing. And there's no reason, Your Honor, ever for a prosecutor to sit down and go forward with this kind of interview. She did it and fined the votes. But then they, -- what really happened here is this hiding of the relationship. Because in hiding the relationship, they have done such a good job. Mr. Wade filed false documents in his divorce case.
On May the 23rd, May of 2023, talking about, have you ever had sexual relations with a person during the course of the marriage or including the period of separation? He's still married. He doesn't have a divorce decree, but his answer is none. Then he's asked whether or not on any occasions he's entertained or been entertained by someone, a member of the opposite sex, in this case a woman, from the date of the marriage to the present. Talking about place and time and all that. What is the answer? None.
Why does he do that? He does that because he doesn't want to tell about the relationship that he has with Ms. Willis and the benefits that he has gotten and that he gave to her. That's exact, -- and what these answers are, are absolutely reprehensible that a member of the State Bar of Georgia would file these answers that are inaccurate. What does Ms. Wade do, excuse me, Ms. Willis do? Ms. Willis, on her financial report, on whether or not she has gotten anything of $100 or more in value from a prohibited source. The court asked earlier about what a threshold might be. Well, for the financial report, it's $100. That's it.
She doesn't report any of all of the benefits that she received from Mr. Wade. All the trips, all the entertainment, all the three nights in the luxury suite in Aruba. All of that, none of that is here. And they say, oh, well, maybe it all balanced out, even though I can't prove it with the cash. Well, that's like saying, did I give the court a Christmas present? Well, maybe I gave the court a Christmas present and the court gave me one back. The court has to fill out a form whether you got a Christmas present from anybody. You say, I got one from Mr. Gillen. You don't say, nah, well, I gave him one back. So, it really evens out.
They're false reports. And because they're false, what they had to do is they had to say, uh-oh, Ms. Merchant has caught us. And so, what we're going to do is we're going to get, in our response, we're going to get Mr. Wade to file a false declaration, which he does. His declaration in this case is false. And the evidence showing that that is false, as it relates to the timing, you know, and the court asked earlier, why does it matter, you know, if the relationship was before or after November 1, 2021? The answer is they think it's important. And frankly, I do, too.
Because when she's hiring somebody and she's not telling the people who are going to be paying the tab up to $700,000, hey, I just hired my boyfriend who's taking me on a trip to the Caribbean and taking me down to Aruba and taking me to California. Hope you don't mind. No disclosure whatsoever. And the money flows off. But because they got caught, they then commit what I think is forensic, an additional component of forensic misconduct, and that is fraud on this court. When they filed that affidavit, and now it's been proven, I think, beyond virtually any doubt, any doubt that the relationship occurred prior to November 1, 2021, and the benefits that were there.
And we don't have to run around. And I love the, you know, we've got all the records showing from Mr. Wade about the payment for these trips, for the cruises, for the flights, all this stuff. What's the only way, as they sat around and met together before they testified and came up with their story, what's the only way that they can save themselves? Pay no attention to the records. Pay no attention to the airlines and to the flights and vacations and the cruises. I paid him back in cash. Show us your receipts. Where did you take cash out of the bank? Ever. Oh, I don't have any. Well, show us the deposits that he had.
[14:10:09]
Well, never. We don't have any. What we have here is a fraud on this court, which has been shown, I think, overwhelmingly by the evidence and overwhelmingly through not only the testimony of Yeartie, the testimony of the e-mails and the text from Mr. Bradley, to Ms. Merchant, as well as all the documents that they had no answer to other than the just trust me, I gave him money, it evaporated, I don't know where it came from, and he doesn't know what he did with it. Just please trust us and believe us because it's our only way out of the trap that they set for themselves.
These people, sadly, and I hate to say it, as the court knows, I was a prosecutor for about $3.5 million years it seems, in the federal building, and I was an assistant D.A. beforehand. Prosecutors don't act like this. Lawyers don't act like this. These people, Your Honor, is a systematic misconduct, and they need to go. Thank you.
RICHARD RICE, DEFENSE ATTORNEY FOR ROBERT CHEELEY: Your Honor, I'm going to cover a few factual details without overly rehashing what has already been said. During the pendency of this investigation in this case, Mr. Wade and Ms. Willis basically lived Robin Leach's lifestyle of the rich and famous. And they did this riding on the backs of the defendants in this case, funded by the taxpayers of Fulton County and the state of Georgia, with the money that was paid to Mr. Wade through the contract that Ms. Willis got him. That money flow, that is the personal interest that you asked about.
She was personally benefiting from the position, from the job, from the scope of the investigation, from the scope of the indictment, and how they conducted it. And we know this we know from the records that have been submitted before the court that Mr. Wade paid at least $17,095 towards this relationship. That does not even include the various dinners, the day trips that both Wade and Willis admitted. So that number is likely even higher. We know from the documents that Ms. Willis only paid $1,394 for an airline ticket.
We know from Ms. Yeartie, who was pretty much uncontested, there was no evidence presented by the state disputing her time frame, that that relationship started in 2019. She saw them kissing. She saw them hugging. Now whether or not they had sex before January of 2022, I do not know. They admitted sometime in early 2022, and I found it curious that they both, Wade and Willis, just went straight to the sex. So maybe that's when they started having sex. I do not know. But the relationship predated that. And their combined and overly suggestive focus on that is a red herring to this court and to the defense, that's what they want you to focus on. They want you to ignore all the evidence that the relationship predated that.
The relationship started in 2019. The relationship continued through 2020. The relationship continued through 2021. Looking at the cell phone communications, just in the first 11 months of 2021, over 2,000 calls, almost 9,800 texts. I don't even think love-struck teenagers communicate that much. The November 29th, and November 30th-- Escobade (ph). Phone call from Ms. Willis, between Ms. Willis and Mr. Wade, 11.32 that night. Shortly after midnight, the phone starts traveling down from where Mr. Wade lives. It ends up where Ms. Willis is staying. And he's there until roughly 4.55 a.m. None of the excuses. none of the explanations that Mr. Wade gave, going to the Porsche experience. Going to dinner. Going to the airport. None of that explains that. I'm pretty sure the Porsche experience isn't open in the middle of the night. I'm pretty sure that there weren't any restaurants that he drove 30 to 45 minutes to go eat at in the middle of the night, right after he talked to Ms. Willis.
[14:15:09] Teenagers have a name for those kind of calls and those kind of x- rays. I won't go into it, but the documentary evidence, the objective evidence, undercuts everything that both Wade and Willis said. When you look at Miss Yeartie again, she unequivocally said that the relationship began in 2019. She saw physical evidence of a romantic relationship. Mr. Bradley, in the text messages which are substantive evidence, said that the relationship began in 2019. Again, his January temporary amnesia that somehow was triggered temporarily after Gabe Banks called him, we can question that, but we do have statements from him that specifically said that the relationship predated Mr. Wade's appointment by Miss Willis.
You asked, well, in Mr. Wade, you asked what the materiality would be, how much is enough? Well, clearly, 17,000 is enough. But Fulton County has told us, has told Mrs. Willis what the materiality is. It's a hundred dollars in a year. She twice signed declarations, certifications that she did not receive any gifts, and even under her strained explanation, there were monies, there were gifts, there were dinners, there were excess contributions flowing her way that exceeded a hundred dollars. Her excuse, or I'm sorry, her explanation, well, I just paid it in cash, that just does not stand a reason. It does not hold up to the light of truth.
Anyone that has ever been in a money laundering trial, a forfeiture trial, if that's the explanation we give the state, they laugh. Oh, I just gave cash, I have no records for it, I have no source for it. The only thing that she could say that was a source for the money, because at times she said she was down to 500 to a thousand dollars, the only explanation she had is, well, sometimes I go to Publix (ph) and I may get an extra 50 that shows up on your debit card or your credit card. Did they bring those records in? No, they bring her bank accounts in, no, did they bring any documentary evidence in? No, they did not. And why is that important, Judge?
Yes, the burden is ours, but under OCGA 24-14-22, if a party has evidence in such party's power and within such party's reach by which he or she may repel a claim, and they had that power, Miss Willis had that power, Mr. Wade had that power, that they can repel the claim that we have made against them, but they admit to produce it, or if they produce weaker evidence, then you as the fact finder, Judge, it is in your power to disregard that, and a presumption arises that that documentary evidence that is in their possession that they failed to produce supports our claim. And that is something that the state relies on regularly in criminal trials, and that is something that the court should rely on in this case when formulating its factual findings.
And we know that both Mr. Wade and Miss Willis have some difficulty expressing the truth when it comes to their relationship in these cases. We know Mr. Wade lied in his interrogatories multiple times. We know Miss Willis falsely certified that she hadn't received any gifts from anybody, and Mr. Wade clearly was a prohibited source, he was someone doing business with Fulton County. Anything over a hundred dollars in a year she had to put down, and she put zero. And it defies imagination that she could somehow forget about all these trips, all these dinners, all these day trips, and not put that money down. You had asked, I think it was Mr. Gillen, did she say in that church
speech or anywhere else that the defendants were guilty? And I think she did. In that church speech, she said in that church speech, and she was talking about a conversation that she apparently had with God, talking about herself, she said, this leader has a trial conviction rate of 95 percent. She said the trial team this leader put together has a conviction rate of 95. I do not see how anyone, and I think that was purposefully intended by Miss Willis, I do not see how anyone can listen to those two statements and not take that Miss Willis is telling everyone in that church and everyone that's going to hear that in the media afterwards that these defendants are guilty.
[14:20:09]
That is what she was saying. She is a prosecutor. She's familiar with the U.S. v. Berger. Every single attorney that's ever been a prosecutor is familiar with the dictates of that U.S. Supreme Court case. That is a foul blow. That is improper, and she violated pretty much every tenet a prosecutor must abide by to seek truth and justice in a particular case.
So, Judge, when you're looking at this, the uncontroverted evidence shows that they had a relationship prior. The uncontroverted evidence shows that Mr. Wade lavishly spent on Ms. Willis. The uncontroverted evidence shows that the money that he was spending on Ms. Willis came from this contract that he had. And I'm not just talking about the contract as a special prosecutor, but there's also those other questionable contracts that no matter whom his partner seemed to be, they also got. There is a direct financial benefit that Ms. Willis received from this.
And Judge, looking back at what Judge McBurney said, if merely hosting a fundraiser for a political opponent of a putative defendant creates not only the appearance, but an actual conflict, then what Ms. Willis has done since then in this case creates an actual conflict. But again, as prior counsel has stated, we only need to show the appearance of a conflict, and we have done that by a preponderance of the evidence. In fact, I believe we've shown an actual conflict. But nonetheless, the result should be that Ms. Willis and her office should be disqualified from this case. We still have a few more minutes. I think Mr. Cromwell may have something to say. Thank you, Your Honor.
MCAFEE: Thank you.
HARRY MACDOUGALD, DEFENSE ATTORNEY FOR JEFFREY CLARK: Good afternoon, Your Honor. Harry McDougald for Mr. Clark. I'm going to talk further about conflicts, and I'm going to assume the most difficult standard for us to meet, which is actual conflict. But before I begin that, I want to add just a little bit to what has already been said about the standards that apply to prosecutors. Our appellate courts have said often the administration of the law, and especially that of the criminal law, should, like Caesar's wife, be above suspicion and should be free from all temptation, bias, or prejudice so far as it is possible for our courts to accomplish it. The first occurrence of that that I can find is Nichols v. State more than 100 years ago, 1915, the most recent, Registre v. State in the Supreme Court in 2010, although they don't refer to Caesar's wife. That requirement is also embedded in the prosecutor's statutory oath, 15-18 -2. Which requires impartiality and without fear or favor discharge my duties as district attorney and take away my lawful compensation, so help me god.
The general rule on conflicts of interest for lawyers is in Rule of Professional Conduct 1.7. And we all know, it's all drummed into us, that we cannot have a conflict of interest. And if we do, we have to withdraw or we will be disqualified. The basic idea is that a conflict of interest impairs the lawyer's independent professional judgment. That's the test of a conflict and whether it can be waived and whether it's disqualifying. And that conflict is not just financial.
It can be any conflict that impairs your independent professional judgment, and you see that in McLaughlin v. Payne. The court asked what was a personal interest for purposes of disqualification. It's anything that impairs professional judgment. That's reflected in the ABA standards that were quoted by Mr. Merchant, which list the prosecutor's personal, political, financial, professional, business, property, or other interests or relationships. And that's really embedded in the prosecutor's oath to act impartially. And the earlier disqualification order by Judge McBurney was based on political interests, not financial.
[14:25:19]
What my colleagues have described as forensic misconduct is also cognizable as a conflict of interest based on that footnote in the Williams case. The root of all of the problems that we see in this court right now is a conflict of interest arising from their individual personal interests in perpetuating and concealing their relationship. That's the original sin from which all of the other problems flow. There are six different actual conflicts of interest in this case, any one of which warrants disqualification but collectively, practically compelling.
First, the financial conflict that's already been covered. Second, the personal and personal ambition, political ambition. Third, there's a dovetailed or complementary pattern of deceit and concealment of the relationship and the money. Fourth, the speech at the church. Fifth, the motion for protective order that the DA filed in Mr. Wade's divorce case. Sixth, the way the state has conducted the defense of this motion to disqualify, especially the hearing.
On the financial piece, the court asked for a limiting principle and asked about materiality. The limiting principle is whatever impairs the independent professional judgment of the lawyer. That is applied routinely. We have a county code section that flatly prohibits gifts from contractors. Period. We have, by analogy, the federal bribery statute, which has a threshold of $5,000. 18 U.S.C. 666. The court asked about burdens and inferences. The court can draw a negative inference from the state's failure to produce evidence to support the invisible magic cash balancing theory, based on State V. Thomas 311, Georgia 407, particularly footnote 19. As to the timing question that the court asked about. There were two contracts for Mr. Wade executed after they acknowledged the relationship began. Each one of them afflicted or conflicted under county and common law. The second conflict.
Is her political ambition for which he was previously chastised by Judge McBurney. And that's also present in this book. The inside flap of this book says that they were given quote exclusive access to thousands of secret documents, emails, text messages and audio recordings. The court has twice denied defense motions to unseal special purpose grand jury materials. She helped herself to get the glory of this book. I introduced certified copies of a number of county code sections. I'm not going to walk through those, but I'll tell you why they matter. The stack of law from the state constitution down to the county ordinances imposes a regime on the D. A. under which she has three obligations.
She has to go to the county commission to get approval to pay him like she did. She cannot accept gifts from a prohibited source. She has to disclose the gifts that she received. She evaded all of those requirements. Section two dash 69 of the county code prohibits gifts from prohibited sources, which he was. There's no boyfriend exception. The disclosure forms. The evidence is sufficient for you to find that her disclosure form for 2022 is false. And then it is a false writing. That's an actual conflict of interest between her legal duty of disclosure, her legal duty of candor as a prosecutor and her private and personal interests in concealing the relationship, concealing the gifts and keeping the gravy train rolling for as long as possible.
His part in the pattern of concealment. It's a story you see in many divorce cases. The husband is hiding things from his wife. How much money he's making. The other woman. And what he's spending on the other woman. And he got on that stand. Widening interrogatories, then he got on the stand and he lied about lying in the interrogatories. And the lawyers for the D. A. The D. A. Office. They just sat there.
