Georgia Prosecutor Fani Willis’ Court Filing Shows She’s Overmatched, As She Makes Ridiculous Misstatements of Georgia Procedural law

by ShipWreckedCrew

There was a filing earlier in the week by the prosecution in the Georgia case against former President Trump and eighteen co-defendants concerning their rights to timely production of discovery and the impact of the speedy trial motion made Defendants Kenneth Chesebro and Sidney Powell. The filing includes citations to Georgia Appeals Court decisions on a variety of “procedural” issues.

I do not pretend to be an authority on Georgia state procedural law, but there seems to be a process whereby defendants — usually charged with relatively minor offenses based on the limited number of cases I have read — can opt to put the prosecution to the task of putting on its case at trial in a very short time frame. Several cases I read have the time between indictment and trial as under 30 calendar days — way under 30 days in a few case. The tactic seems to be employed where the defense believes the evidence is weak, availability of witnesses might be in question, or the defendant has a rock-solid alibi likely to lead to acquittal so why drag things out. Failure of the government to bring the case to trial results in an outright acquittal on the merits.

Two defendants in the Trump case have filed to exercise their rights to a “speedy trial” under Georgia Law — Kenneth Chesebro and Sidney Powell. I’m not going to speculate in this article on what the internal tactical calculation is on their part in doing so, nor am I quite certain at this point how the pending “removal” motion filed by Mark Meadows to move the case to federal court would impact the “speedy trial” demand by Chesebro and Powell. As a general matter, if the case is moved to federal court, the Federal Rules of Criminal Procedure would apply. I suspect the “speedy trial” provision in Georgia law would be viewed as a procedural rule, and not substantive law, and would no longer apply.

But Chesebro asserted his right under Georgia law to a speedy trial on August 24, and in response the Trial Judge set the trial for October 23 — 60 days after the motion.

I’m not certain as to exactly how under Georgia law the invocation of this speedy trial right by one defendant effects the case as to co-defendants. But basic procedural due process and trial rights guaranteed by the United States Constitution almost certainly compel that the defendant demanding a speedy trial be severed out of the larger case so as to not compromise the rights of co-defendants and their counsel to adequately prepare for trial. I’m going to assume that Willis’ office anticipated that this would happen with at least one defendant because the idea that they might have been caught off-guard by the Chesebro and Powell motions would be tantamount to rank incompetence.

Let’s now turn to the motion that was filed by DA Fani Willis in response to the trial setting and some of the claims made in it.

Basically, the filing lays out a host of procedural issues under Georgia law which Willis’ office wants brought into play by the speedy trial demand of Chesebro and Powell. There are citations to prior case decisions by the Georgia appeals courts — presumably to suggest that those prior decisions support the propositions advanced by Willis and her team.

Yeah — not so much.

And that’s a problem. I’ll return to this farther down below, but if this case gets moved to federal court, and this same group of prosecutors stay on the case (I’m not certain that will be the case), a filing like the one submitted today will get them laughed out of Court and maybe sanctioned by a federal judge.

Due to a limited availability of time today, I’m not going to make an effort to legally dissect the entire filing — I’m just going to isolate a few passages as an example of the borderline misconduct and/or incompetence that it reflects.

Let’s begin with the caption and initial paragraph in the filing, which I screen-shotted below:

First question — who are the “Defendants” that the Court is supposed to address of if this motion is granted?

One would surmise from the caption that she’s referencing all the defendants in the case. But the first sentence she is asking the Court to advise “the Defendants of the effects of their speedy trial demands….” As noted, only two defendants have made such demands. So is she addressing this motion to only those two defendants and not the rest?

It would have been baseline competence to make that point clear at the outset with something like “Defendants Chesebro and Powell had asserted their speedy trial rights under Georgia law. The State hereby requests that the Court….”

Or is she suggesting — with no citation to authority — that the rights of all the named Defendants are implicated by the invocation of speedy trial rights by just two of them?

This next screen-shotted passage cause me to spit-up my coffee laughing:

 
Apparently, DA Fans Willis feels aggrieved and burdened by defendants invoking their statutory rights under Georgia law — her obligation to comply timely with lawful discovery obligations have been “foisted” upon her by the defendants.

“How dare they!?!? Don’t they realize this isn’t really about having a trial. I just wanted a press conference and a platform to run for a higher office! Now they expect me to actually do my job and send them discovery on a timely basis?”

But even with such hardships being piled upon her, if the defense counsel get hard drives to her by September 5, their super-speedy computers will be able to load up those hard drives with discovery — only takes ‘em 10 days.

I think my Apple Watch works faster.

Apparently, according to Willis, invoking one’s speedy trial rights works as a simultaneous waiver of rights with regard to the timing of receipt of discovery.

“]P]ersonally, willfully, and deliberately…” — well, that is certainly laying down a marker. “[T]he defendants have effectively waived any claim to access the State’s file information ten (10) days in advance of trial.”

But who is exactly is the “Defense” that she is referring to here in the caption? The first sentence seems to limit the point to the Defendants who have filed for their speedy trial rights. This is more sloppy drafting and reflects sloppy and imprecise thinking. You don’t just pound this stuff out on your computer keyboard one-time through and hit “Send.” I can’t say I’ve “never” don’t that, but usually this stuff gets a couple of read-thrus and the imprecision in the language is recognized and corrected.

But what about the substantive claim of “deliberate” “waiver” — and the reference to Smith v. State? She claims that a defendant who invokes his right to a speedy trial waives any claim to receive evidence at least ten (10) days in advance of trial.”

Is that what the Smith case says? I read it and my reaction was “Oh Fook.”

Skipping down in the opinion, the Court held:

The holding of the case had nothing to do with a speedy trial demand altering the right to discovery. The holding of the case once again deals with the discretion to alter deadlines that is granted to the Trial Court when there is a speedy trial demand. Even though production was late to Smith, his counsel had access to the material — which was sufficient to satisfy the Court he had adequate access prior to trial. He could not show prejudice post-trial from the having access to the material only six days between the “call of the calendar” and the start of the trial. When the claim of error is a discovery violation, a defendant on appeal must show prejudice from the error.

 
This case does not support the claim made by Willis that a demand for a speedy trial alters a defendant’s right to discovery or the State’s obligation to timely produce discovery. If the discovery is late, and the defendant can show lack of time to review and harm to his defense at trial, he has a basis for reversal. It is a question left to the discretion of the Trial Court, to be determined on a case-by-case basis. The demand for a speedy trial was made in late August, and a trial has been set for

It is true that under Georgia law a defendant who invokes his right to a speedy trial is required to live with the collateral consequences of such an invocation with regard to failures by the Government to timely produce all discovery — so long as the Government’s failure is not willful or in bad faith. Where a failure to timely produce discovery is identified, a defendant must agree to a continuance, of whatever length the Court deems necessary, or waive objections to use of the evidence on the basis of the discovery violation. This view simply recognizes that exclusion of relevant evidence is a harsh sanction that does not advance the “truth seeking” process of a trial. It recognizes the attributes of a trial that moves forward in a condensed time-frame, and seeks to avoid “gamesmanship” by either side to gain and advantage through application of the law’s requirements.

Next she writes the following:

 
While that is the law in Georgia, it rests upon a couple of pre-suppositions — the main one being that a defendant cannot demand a greatly accelerated trial date and then fail to comply with the discovery obligations that apply to both parties. What she mis-states here is she fails to mention that Defendants have an alternative to not being able to call witnesses if they fail to meet their discovery obligation — they can request a continuance that will give them the time to provide the witness statements to the Government as provided by law. So it is true that witness testimony could be precluded for failure to provide the statements, but ONLY if the Defendant insisted on going forward rather than continuing the case in order to comply. To say that the Defendants will be precluded is not a substantively accurate statement of the law.

Here is another page from he same pleading that summarizes various points of procedural law in Georgia, with the motion covering them in detail lower down in the document.

 
When I first looked at these briefly, and pulled up the cited cases, my first reaction was “She got every one of them wrong. The cases don’t support the claims she made.”

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