Something is seriously wrong with American law schools and the disciplinary outfits that are supposed to monitor corrupt conduct of practitioners. You can see the effects of this degradation in the outrageous behavior of government prosecutors and in the judiciary, which ignores its responsibility to decide fairly and without bias. We are churning out dishonest, corrupt lawyers and judges who are more than willing to look the other way at such behavior, condoning the most obvious selective partisan prosecutions. As the awareness of the failure of the judicial system grows, the consequences will be enormous -- respect for the traditional way of resolving disputes and obeying the law are fundamental aspects of a civilized, prosperous nation. Once that is lost, other less tenable means will be employed.
The focus this week was on the absurd case in Georgia, where D.A. Fani Willis is criminalizing Donald Trump’s challenge to the integrity of Georgia’s presidential election in 2020.
In the hearings, we learned of the prosecutor’s illicit affair with someone she then hired for almost three-quarter of a million dollars, a man whom evidence indicated committed perjury in his divorce case. Worse, both Willis and Wade appeared to commit perjury about when their affair began. (Something the judge elided in a too-facile stroke.) The defense argued that the prosecutors must be removed for conflict of interest. Judge McAfee that is hearing the case once worked for Willis, and both he and his wife contributed to her campaign for the office of district attorney. On Friday he issued his decision in the case (days after his own previously uncontested reelection bid suddenly was opposed).
In relevant part he ordered:
An outsider could reasonably think that the District Attorney is not exercising her independent professional judgment totally free of any compromising influences. As long as Wade remains on the case, this unnecessary perception will persist. The testimony introduced, including that of the District Attorney and Wade, did not put these concerns to rest. During argument, the Defendants’ focus largely pivoted from the financial concerns to disproving the testimony of the District Attorney, namely that her romantic relationship actually predated the November 2021 hiring of Wade. On that front, the Court makes a few brief observations. First, the Court finds itself unable to place any stock in the testimony of Terrance Bradley. His inconsistencies, demeanor, and generally non-responsive answers left far too brittle a foundation upon which to build any conclusions. While prior inconsistent statements can be considered as substantive evidence under Georgia law, Bradley’s impeachment by text message did not establish the basis for which he claimed such sweeping knowledge of Wade’s personal affairs. In addition, while the testimony of Robin Yearti raised doubts about the State’s assertions, it ultimately lacked context and detail. Even after considering the proffered cellphone testimony from Defendant Trump, along with the entirety of the other evidence, neither side was able to conclusively establish by a preponderance of the evidence when the relationship evolved into a romantic one. However, an odor of mendacity remains. The Court is not under an obligation to ferret out every instance of potential dishonesty from each witness or defendant ever presented in open. For that reason, the Court finds it unnecessary to reopen the evidence to consider the testimony of Cindi Yeager or Manny Arora, as proffered by Defendants Shafer and Latham respectively. (Shafer Doc. 106, 3/4/24); (Latham Doc. 83, 3/4/24). p. 17 Page 17 23SC188947 court. Such an expectation would mean an end to the efficient disposition of criminal and civil proceedings. Yet reasonable questions about whether the District Attorney and her hand-selected lead SADA testified untruthfully about the timing of their relationship further underpin the finding of an appearance of impropriety and the need to make proportional efforts to cure it. Ultimately, dismissal of the indictment is not the appropriate remedy to adequately dissipate the financial cloud of impropriety and potential untruthfulness found here. See Olsen v. State, 302 Ga. 288, 294 (2017) (“Dismissal of an indictment is an extreme sanction, used only sparingly as a remedy for unlawful government conduct.”) (quoting State v. Lampl, 296 Ga. 892, 896 (2015)). There has not been a showing that the Defendants’ due process rights have been violated or that the issues involved prejudiced the Defendants in any way. Nor is disqualification of a constitutional officer necessary when a less drastic and sufficiently remedial option is available. The Court therefore concludes that the prosecution of this case cannot proceed until the State selects one of two options. The District Attorney may choose to step aside, along with the whole of her office, and refer the prosecution to the Prosecuting Attorneys’ Council for reassignment. See O.C.G.A. § 15-18-5. Alternatively, SADA Wade can withdraw, allowing the District Attorney, the Defendants, and the public to move forward without his presence or remuneration distracting from and potentially compromising the merits of this case.
Will Chamberlain takes issue with this resolution as do I, because it defies logic:
He found, factually, that the "District Attorney's prosecution is encumbered by an appearance of impropriety" and that it came about as result of "specific conduct, and impacts more than a 'nebulous' public interest because it concerns a public prosecutor."
He also found that "an odor of mendacity remains" and that "reasonable questions about whether the District Attorney and her hand-selected lead SADA testified untruthfully... further underpin the finding of an appearance of impropriety."
McAfee also held that an appearance of impropriety can warrant disqualification of individual prosecutors, BUT not the prosecutor's office as a whole, and further held that removing Wade would "cure" the appearance of impropriety.
I just don't think this last legal holding can survive appellate scrutiny. The appearance of impropriety implicates BOTH Willis and Wade. There are reasonable questions about whether Willis testified truthfully and about whether she financially gained from the prosecution. Those questions don't just go away if Wade withdraws.
Further, the cases Judge McAfee cites for the proposition that an appearance of impropriety doesn't require the whole office to be [disqualified] are cases where it was the line prosecutor who had the conflict issues, not the elected district attorney. When it's a line prosecutor, sure, it's easy enough to just replace that specific prosecutor and cure the issue. But when it's the elected DA who has the conflict -- well, every prosecutor in the office reports to the elected DA. There's no way to remove the "odor of mendacity" without removing the entire office.
Professor Jonathan Turley sees in the Georgia case a broader, nationwide problem, ”the odor of selective prosecution.”
Turley discusses a number of cases in support of his view that the selective prosecution of persons and views on the right has become intolerable.
There’s the contrast in Special Counsel Robert Hur’s decision not to prosecute Joe Biden who for four decades “serially violat[ed] laws governing classified documents” including reading from one of them to his “non-cleared ghostwriter” with Special Counsel Jack Smith’s prosecution of Donald Trump for retaining classified documents in a locked room at Mar-a-Lago, a facility under watch by the Secret Service.
Then there’s Letitia James in New York, who ran on a pledge to prosecute Trump for something never named, “Ultimately, James used a law in an unprecedented way to secure an absurd penalty of half a billion dollars, even though no one lost a dime because of the Trump loans.” James is not alone in this nonsense. Another prosecutor, Manhattan district attorney Alvin Bragg:
has also come up with an unprecedented way of using a state law to effectively prosecute Trump for a federal offense that the Justice Department has already rejected.
The same odor has been lingering in the Hunter Biden cases. The Justice Department had reached a ridiculous plea agreement with Hunter Biden that would have allowed for no jail time and a sweeping immunity agreement that would have protected him from all his other alleged crimes.
As the plea agreement fell apart in court, the prosecutor admitted that he had never seen a defendant given such a deal over his long career. This came after the Justice Department had allowed the statute of limitations to run out on major felonies and scuttled efforts to conduct searches and interviews. Even after that embarrassing hearing, the Justice Department was still trying to preserve the agreement.
He gives even more examples of the “odor of mendacity” in our courtrooms and offers only one hopeful sign -- a California judge, Cormac J. Carney, issued a rare opinion slamming demonstrable selective prosecution of conservative groups.
With almost every law professor in the country supporting the Left and hiring of new law school faculty controlled by the existing pro-Democrat faculty, with bar disciplinary groups largely drawn from the same tranche of leftists and their sympathizers at the moment, only rare courage by the judiciary can change this. Of course, if you think Trump’s tweets are too bothersome to vote for him, you can be sure this mendacious infestation of justice will only get worse.
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