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Final Arguments In Fani Willis Disqualification Hearing. Aired 3:30-4p ET

Aired March 01, 2024 - 15:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[15:30:00]

ADAM ABBATE, ATTORNEY FOR FULTON COUNTY DISTRICT ATTORNEY'S OFFICE: More importantly, when pressed by counsel, he could not pinpoint a time in which he knew that the relationship occurred. There were many instances in which he described that very well could have fallen within the time frame that was testified.

And by both Ms. Willis and Mr. Wade, as it relates to the relationship beginning or transitioning into dating in March of 2022 and into the end of the relationship in August or the summer of 2023.

And as I referenced to the court, the statements that Mr. Bradley made, the state would contend are inadmissible hearsay as it relates to the statements that he was pressed and asked about what Mr. Wade told him. Because Mr. Wade was never confronted with those statements.

And in order for impeachment to be proper, he must be confronted with the specific statements that are alleged to have been made in order to impeach him.

Again, Mr. Bradley had every motive to lie. I believe the text messages are kind of clear, or very clear as it relates to his disdain towards Mr. Wade, which due to the fact that, you know, he was expelled or exiled from a thriving law practice, and it was clear that the practice and Mr. Wade sided with the alleged sexual assault victim, which is clear, he assaulted her due to the fact that he paid her off.

And as I referenced earlier, Ms. Merchant represented to the court that Mr. Bradley had personal firsthand knowledge of basically of it all, of everything. And that he would be able to basically be an impeaching machine. I think your honor referenced him as the star witness when you were addressing the claims that were made by Ms. Cross in relations to Ms. Merchant's representations to the court.

And what I would submit to the court is that all Mr. Bradley's representations as it relates to whether -- when the relationship between Ms. Willis and Mr. Wade began, and whether they cohabitated, because that was a promise that was also made. That he would be able to impeach the investigators as it relates to cohabitation was mere speculation, gossip, and innuendo. And this is your honor.

JUDGE SCOTT MCAFEE, FULTON COUNTY, GEORGIA SUPERIOR COURT: The impression I got -- the impression I got, and we can correct this while we're all here together, is that they, Mr. Bradley, directly overheard a statement from each of these individuals that they could be impeached with. Ms. Merchant, is that accurate?

ASHLEIGH MERCHANT, DONALD TRUMP'S ATTORNEY: Directly overheard, which ones are we talking about?

MCAFEE: Well, essentially, that kind of seemed to be all of them. You had said Allen, Bond, Young, and then the investigators, Hillgreen and Ricks, could all be directly impeached by statements overheard by Mr. Bradley.

MERCHANT: Yes.

ABBATE: In reference to your question, the unequivocal answer was yes. And when your honor is looking through the text messages, I would submit to the court that the text messages don't even say or indicate what was represented to the court in relation to the good faith basis for this motion to disqualify as it relates to the testimony of and the ability to impeach witnesses through Mr. Bradley.

What's been referenced by all counsel is Mr. Bradley's assertion of absolutely as it relates to whether the relationship existed prior to Mr. Wade's hiring. And the question in itself involves speculation because it asks, do you think it started before she hired him? And he says, absolutely. He doesn't say he know. He doesn't provide any context as to how he knows.

And in these text messages and through his testimony with the court, the source of his information was unclear what -- is what I would say to the court. As to a lot of things, other than the one conversation that allegedly occurred between Mr. Wade and Mr. Bradley.

And I would submit to the court that that conversation never occurred. That would be the state's contention. And how do we know that? We know that because that conversation was not confronted, or Mr. Wade was not confronted with that conversation.

And that is evidence, circumstantially, and I'd even say direct, as to that conversation not existing.

[15:35:00]

Because based on the representation made by defense counsel, it would be clear that that would be a conversation that would have been relayed to. Because it wasn't privileged, as your honor found, that would have been relayed to Ms. Merchant. And if that conversation happened, you better believe that would have been a conversation that defense counsel would have confronted Mr. Wade with and against. And the reason they didn't do that was because it didn't exist.

Again, you heard from Mr. John C. Floyd III, the district attorney's father. As your honor heard, he was a well-respected member of the legal community for over 40 years. But the importance of his testimony was to provide the court with corroboration as it relates to the years leading up to the relationship that transitioned into dating between the district attorney and Mr. Wade. What he testified to is that he moved into her South Fulton home in 2019. The evidence of his moving into that home at that time was his Georgia driver's license, government -- official government document. He further testified that not only did, it wasn't that just Ms. Willis and himself live at the South Fulton home, but that he often would see on numerous occasions the significant other of Ms. Willis that was not Mr. Wade.

He referenced that that person had a nickname of Deuce, and that he kept a lot of his belongings in the garage of Ms. Willis. He specifically said he kept a lot of his disc jockey equipment as he -- is how he referred to it when before the court.

He made very clear that he had never seen Mr. Wade at the South Fulton home that is owned by Ms. Willis. He made clear that he lived in that home with Ms. Willis and Ms. Willis alone, other than her two daughters who would occasionally visit that home until after February of 2021. But what precipitated the soon move of Ms. Willis to what I would reference as safe houses for her protection was a protest that occurred before her home in February of 2021.

He then expressed to the court that Ms. Willis moved in the spring of 2021 and that due to these threats that were taken very seriously, he had only seen his child 13 times. He said, in reference to the questions by defense counsel that were in a -- and I'm just going to be straight up with the court.

They were trying to make Ms. Willis a liar, is how I would submit to the court, in the sense that she testified that she was concerned for her safety and her family's safety, which included her father and her daughters. And that Mr. Floyd remaining in that home kind of rebutted all of that, made it so it wasn't true. But he testified that he stayed in the home because it was the home that she had put her blood, sweat, and tears in and was able to buy.

And that he stayed in the home because there was constant officer presence. He told the court that he bought extra security equipment. He even went as far to tell the court that he slept in different rooms on different nights because he felt his safety was in such a concern.

So I would submit to the court that line of questioning was done in an attempt to discredit Ms. Willis, but failed, would be what the state -- how the state would characterize it. Then he testified about the first time that he did meet Mr. Wade, which is in 2023, here at the district attorney's office. And he talked about how he kept cash in his home and why Ms. Willis kept cash in his home.

And what I would -- what the court should take note of is, the state didn't ask Mr. Floyd about the cash in his home. That came out through the cross examination of defense counsel. So there was, I guess, an implication that Mr. Floyd only did so due to his preparation with the state and his hearing and seeing news articles and clips related to the testimony that had occurred prior to him.

But I would submit to the court that it's telling that that information came out through questions that were asked by defense counsel, which gives credibility to the statements that were made.

[15:40:00]

And he further explained as to why he taught his daughter to keep cash in the home, as it relates to financial independence and having a safety net.

It was further testified that he had multiple safes and that he gave Ms. Willis his first lockbox -- or her first lockbox, for situations as she described when she was testifying. And what I want to make clear is during Ms. Willis' testimony, it was pressed about the cash and where she kept it. Did it follow her, where she laid her head, and things of that nature.

Trying to further discredit the practice that she had as it relates to keeping cash in her home and why she had the ability to pay cash to Mr. Wade and other people and for other situations. And what I would -- what the court should take note of is that there was no evidence that controverted that at all. Where was the evidence that controverted Ms. Willis' claim? In practice of keeping cash in her home, there was none. In fact, the only evidence was -- is it was substantiated through the testimony of her father, Mr. Floyd.

Furthermore, you heard from former Governor Roy Barnes, and his testimony was significant and important, because what I would -- how I would phrase it, Your Honor, is it debunks --

MCAFEE: Let me, on this point, and I think you might have had a more recent opportunity to review his testimony than I have.

You say on the slide that she was the first choice to lead the prosecution. Was that actually his testimony, or was he just -- was his testimony that he was asked to come aboard? Did he use the words that he was asked to lead?

ABBATE: Yes, it would be -- that's my recollection, that he was asked to lead the prosecution. He was asked to take -- or he was asked to fill the position that Mr. Wade is currently in, which is the lead prosecutor.

It was said in that way as well, as it relates to the testimony of Mr. Barnes, so I think it would be very clear. My recollection is that he said lead, but what I can submit to the court that I know he also said that he was asked to fill the position that Mr. Wade is currently filling for the state of Georgia, which is the lead prosecutor.

MCAFEE: At the time, as special grand jury prosecutor, right?

ABBATE: Yes, the special, I guess, yes, as the special prosecutor lead the investigation, which led to the ultimate prosecution that we're here before your Honor today.

He also indicated that the reason he turned that job down was because it didn't pay enough. He said he had mouths to feed at his law firm, and that he also didn't want to live the rest of his life with bodyguards, because he had lived that for the years in which he was the governor of Georgia.

Furthermore, he confirmed the qualifications of Mr. Wade, which I still find it quite interesting and confusing as to attacking Mr. Wade's qualifications. In that, it's almost as if Mr. Roman's counsel is asking that the state put a prosecutor on the case that she sees to be more qualified to attempt to convict her client. It's an interesting argument, and it's one that makes no sense.

Furthermore, if you were to believe the claims and allegations as it relates to Ms. Willis' personal stake in the prosecution, the receiving of financial benefits and gains, then you'd have to believe that she was also dating Roy Barnes, the former governor, and Gabe Banks, in addition to Mr. Wade, if she has this grand plan scheme in order to profit off of the prosecution of this case.

Because that's what they're saying. Or they're saying that she telepathically or prophetically was able to know that Mr. Barnes and Mr. Banks would turn down the position so she could then hire Mr. Wade. It's ridiculous, it's absurd, and it's desperate.

It's a desperate attempt to remove a prosecutor from a case for absolutely no reason, Your Honor, other than harassment and embarrassment.

This slide, and we've been through a lot of the testimony.

MCAFEE: And I should be clear there, it was not introduced in evidence that Mr. Banks turned her down, right? How's that part of the record?

ABBATE: Well, I'd ask the court to take judicial notices, has been asked repeatedly --

MCAFEE: Unless the district attorney had testified to that, I don't recall offhand.

[15:45:00]

ABBATE: I will be frank with the court, I don't recall if Ms. Willis testified to that exact fact. But I know that Mr. Banks represented that to the court during Monday's hearing as it relates to the allegations that were made.

I understand your Honor's position as it relates to that --

MCAFEE: I'm not sure we know exactly what is in the evidence and is not, but regardless, I think your point is made.

ABBATE: I think it's in evidence of the record as it relates to, I guess, the issues that led up to the actual hearing of this case.

So I understand your Honor's position, but it did come out during a proceeding that was prior to the actual hearing.

This slide is just a chart showing kind of the testimony of both the district attorney, Ms. Willis and Mr. Wade, as it relates to how they met, how or when Mr. Wade became the special prosecutor. When their relationship evolved into a romantic one. Talking about the trips in which they took after their relationship evolved into one that became romantic and when it ended.

And what again I would submit to the court is that those facts were consistent. And the only person who contradicted that when the relationship started was Ms. Yurdy. And what I would bring to the court's attention is that it was represented to the court that Ms. Yurdy (ph) was a witness other than Mr. Bradley who could bring to the forefront this issue of cohabitation.

And when pressed and when asked about it, Ms. Yurdy had absolutely no information as it relates to this alleged cohabitation. It was false. She said she had no information.

She was asked about trips. She said she had no information about the trips. Yet, she's such a good friend that Ms. Willis confirmed each year that Mr. Wade and her continued to be in a relationship 2019, 2020, 2021 until their relationship ended due to her forced resignation. And it's splintering of their friendship, your Honor.

You, I guess, several exhibits obviously were tendered in. Most of them were exhibits that came from the sealed divorce of Mr. Wade and Ms. Jocelyn Wade, contracts for legal services, trip itineraries, and the text messages, and I would specifically reference prior to today.

The only text messages that were before your honor were defense exhibits 26 and 27, which it's the assertion of defense counsel that what those show is that Mr. Bradley was -- had information as it relates to the relationship starting prior to March of 2022, and that's just false. Those text messages do not contain that. It does not pinpoint, just as Mr. Bradley couldn't, when the relationship actually started.

And furthermore, you have the testimony and the evidence of the text messages that it was mere speculation. If you -- as your Honor, reviews the full chain of text messages, it is clearly Ms. Merchant and Mr. Bradley going through what I can describe as nothing else other than a mere fishing expedition. Between the two of them at first, because it's asked about certain members of the DA's office who would have information as it relates to specifically, for one, Ms. Young.

It is asked whether she would have information, and he had no idea. He said he assumed he was speculating. And that is the same as each person that was subpoenaed in reference in the text messages.

All of that was speculation, and you know it was speculation because not a single one of them testified. That's telling, because if it wasn't mere speculation, if it wasn't mere gossip, and if it wasn't mere conjecture, each one of those people who were subpoenaed would have been called to testify, like District Attorney Willis was, like Mr. Wade was, in order to be confronted and then impeached by Mr. Bradley.

You've heard, obviously, about the phone records, and I have a maybe because whether it comes into the purview of your Honor, as it relates to the determination, your Honor, is to make -- as it relates to the disqualification of the district attorney.

You also have the affidavit from the employee who worked at the winery who confirmed that Ms. Willis did, in fact, pay in cash ups to more than $400.

And I understand that this is part of the proffer of the state, but it's important because that is a witness who the state didn't go find.

[15:50:00]

That is a witness who went to CNN in order to confirm what Ms. Willis testified to, further giving her statement's credibility and credence before the court.

You heard about --

MCAFEE: Before we move on from that one, other than the foundational concerns, would you have a response to the proffer of the cell phone records?

ABBATE: I have, I'll get to that now, I was going to get to it later, but I have several foundational concerns as it relates to the cell phone records.

I don't think I've ever, as Mr. Sadow's motion makes very clear, the state uses cell phone records routinely, and I would agree with that.

We use them routinely, but we use them with an expert, and they're always challenged.

MCAFEE: Right, so, like I said, in the interest of time, setting aside the foundational concerns.

ABBATE: I thought you were asking about them.

MCAFEE: No, no, no, no, focusing on the substance of them, assuming that it would be admissible in the guise that he's proffered. Maybe you have that further up, but what's the reaction to that?

ABBATE: So, what I would say initially is that due to the fact that they were analyzed by someone who was a non-expert, the analyzation of those cell phone records were not properly peer reviewed. They were not -- it's clear from the state's review that the normal practices that are used to check the use of which kind of data is being used.

In reference to the two specific dates, I believe it's September 10th and 11th, and November 29th and 30th. The affidavit that is used to say that Mr. Wade remains at Ms. Willis' -- or in the area of Hapeville. because again, during the hearing, the address for the Yeartie condo never came out.

It was just that it was the Hapeville condo. The actual phone number for Mr. Wade was never established. And the documents that were provided to the state that were certified business records did not have a subscriber page. So we have no idea that the number belongs to Mr. Wade. Now I understand your Honor wants to look past the foundational

issues, and I can appreciate that. But the foundational stuff is very important as it relates to the admissibility of the records.

MCAFEE: No doubt about that, but if somewhere, how they were able to survive those foundational concerns, do you have any reaction?

ABBATE: Yes, I do, and I will skip forward. So I don't -- so what's interesting is that the records that were provided were for -- they start in January of 2021, and they go, I believe it's to November 30th, I think is what the, of 2021, the span of the records. And you heard from all of the witnesses, including Ms. Yeartie -- that Ms. Willis did not move into the Hapeville address until April of 2021. That was the testimony from all of the witnesses. April of 2021.

And that she lived in her South Fulton home from when she met Mr. Wade in October of 2019, up until when she had to move. And the assertion by defense counsel is that Mr. Wade and Ms. Willis began a relationship right after they met in October of 2019.

What's interesting and what's telling is that Mr. Wade's handset doesn't once appear in anywhere near the area of her South Fulton home. But they're dating, but they're in a serious relationship. And if you were to believe what the defense counsel says that they have been in a relationship from October of 2019 up until she moves in April of 2021, so a year and a half or so. But he never once enters the area of her home. They want you to believe that that's a lie, which is why counsel for defense continued to press District Attorney Willis and Mr. Wade as to whether he had ever been to that South Fulton home.

Well, this corroborates that that was not a lie, that he had never been to that home. And it's more than suspect if you've been in a relationship, as they claim, for all this time, but never once went to the house. So I think that's telling.

What I would also bring to the court's attention in the state's initial review of the records, that from January of 2021 to March of 2021, those times when Ms. Willis did not live, again, at the Hapeville Address, she didn't move there until April of 2021, that his handset appears in that area 23 times.

MCAFEE: Sure. How do you reconcile that with this testimony that was alluded to, I think, by opposing counsel, the reasons he gave for being in the area? Well, would those line up to 23 times? I think, you know, well, I think there are too many reasons for being there, right?

[15:55:00]

ABBATE: Well, I think that's the point. I would say yes, that is the point. He referenced that that's an area that he -- it was not uncommon for him to be in. And it clearly, that is the case, because Ms. Willis didn't live in that area. So again, it's further corroboration as to what Mr. Wade indicated to the court. And when, I guess, after Ms. Willis moved into the condo in April of 2021, they appeared 35 times. Now, I want to make clear to the court, both Ms. Willis and Mr. Wade never denied that he had been to that condo before. The specific testimony that was elicited by Ms. Willis and Mr. Wade was that he had never laid his head, was the direct quote at that condo. Which these records don't prove that he laid his head anywhere.

If you were to believe the analysis, or if you were to, if you were to give credence to what the non-expert says as it relates to Mr. Wade's handset in September and November for the three to four hours that the phone is alleged to have remained. That doesn't disprove anything that was testified by both Mr. Wade and District Attorney Willis. It was that he visited there.

The specific hours of their visits was not something that was pursued during the questioning of both of the parties. So what I would also submit to the court is that if you look at the days as it relates to -- in September and November, the use, I guess the type of information that is used to make the plots for the longitude and latitude of the handset is data records. It's not voice records, it's not SMS or text messages, it's data records.

And it is not uncommon for an expert to testify as it relates specifically to AT&T records, that that actual data record is unreliable as it relates to the location of the handset due to the type of information that it is, that it's data. It's not the voice and the SMS, which I know your Honor, as has been referenced, was a prosecutor not only here in this county, but for the federal government where this kind of information is commonly used.

So in the comments that were made by the court, it was clear that you understood and understand the use of cell phone records to put somebody in an area, and again, not in a specific location.

I'd also bring to the court's attention, as it relates to the validity of the affidavit and the analysis done by the expert that was hired by Mr. Sadow, is that not once does it reference the fact that AT&T records commonly have duplicate and triplicate entries within the call detail records. That is something that is commonly seen, and that is something that is seen in these records. And that is something that leads to the incorrect number of times that has been alleged that Ms. Willis and Mr. Wade were in communication through text and voicemail.

And I'd also submit to the court that that number doesn't prove anything again, doesn't prove that anybody's in a relationship. It proves that they were in communication with each other. And I think your Honor can use your own life experience as it relates to people you work with or friends that you are close with. And the number of times that you make calls to any of those people.

I can submit to the court that I have a friend who I have been friends with for 15 years. And she worked in the office previously with me and based on our professional relationship and our personal relationship, the friendship that we had had and still have, that we talk 30 times a day. So that doesn't mean we're in a relationship.

So the assertion that the number of times that Ms. Willis and Mr. Wade have spoken to each other, whether it's through text message or phone, it has no validity as it relates to them being in a relationship.

What I would submit to the court is that what was shown through all of the evidence was that there's been a true cost to Ms. Willis as it relates to her life. That she had additional expenses that she had to endure because of her position, in the sense that she told the court that she had a mortgage, but on top of that mortgage, that a house she didn't live in anymore, she had to pay for a safe house. That her home was vandalized and there were racial epithets and sexual bigotry that were spray painted onto her house.

The concern of her safety and her life is something that was testified to.