Fulton County Superior Court

——EFILED"FD
Date: 3512024 4:28 PM
Che Alexander, Clerk
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA

STATE OF GEORGIA 1
1 (CASE NO.
v. I
I 23SC188947
DONALD JOHN TRUMP, I
RUDOLPH WILLIAM LOUIS GIULIANI, I
JOHN CHARLES EASTMAN, 1
MARK RANDALL MEADOWS, I
KENNETH JOHN CHESEBRO, I
JEFFREY BOSSERT CLARK, I
JENNA LYNN ELLIS, I
RAY STALLINGS SMITH III, 1
ROBERT DAVID CHEELEY, I
MICHAEL A. ROMAN, I
DAVID JAMES SHAFER, I
SHAWN MICAH TRESHER STILL, I
STEPHEN CLIFFGARD LEE, I
HARRISON WILLIAM PRESCOTT FLOYD, 1
“TREVIAN C. KUTTI, I
SIDNEY KATHERINE POWELL, 1
CATHLEEN ALSTON LATHAM, |
SCOTT GRAHAM HALL, |
MISTY HAMPTON a/k/a EMILY MISTY HAYES
|
Defendants. 1

STATE'S SUPPLEMENTAL BRIEF FOLLOWING HEARING ON MARCH 1. 2024,

CONCERNING STANDARD OF PROOF AND LEGAL STANDARD FOR

At the hearing on March 1, 2024, concerning Defendants’ motions to disqualify District

Attorney Fani T. Willis, the Court posed several questions to the parties concerning the standard
ofproofrequired for disqualification and the legal standard to be applied by the Court. The binding
caselaw in Georgia is clear: a trial court is not authorized to disqualify an elected district attorney
absenta showing, by “a high standardofproof,” that such an elected district attorney either has an

1
actual conflict of interest or has engaged in forensic misconduct.1 This brief will address that

standard of proof recently recognized by the Georgia Court of Appeals and the few circumstances

recognized under Georgia law that constitute actual conflicts of interest for prosecutors.

As a threshold matter, “[t]he elected district attorney is not merely any prosecuting attorney.

[She] is a constitutional officer, and there is only one such officer in each judicial circuit.”

McLaughlin v. Payne, 295 Ga. 609, 612 (2014) (citing GA. CONST. OF 1983, Art. VI, Sec. VIII, Par.

I (a)). Under Georgia’s Constitution, a district attorney is constitutionally mandated “to represent

the state in all criminal cases in the superior court of such district attorney’s circuit.” Id. (citing

GA. CONST. OF 1983, Art. VI, Sec. VIII, Par. I (d)) (cleaned up). Here, the District Attorney seeks

only to do exactly that—perform her solemn duties as mandated by the Georgia Constitution “to

subserve public justice” in a case of great public importance. See State v. Sutherland, 190 Ga. App.

606, 608 (1989). The Defendants ask the Court to impose a novel, hair-trigger standard for the

disqualification of an elected district attorney. But no such standard exists under our law. The true

legal standard, set forth by our appellate courts and confirmed by statutory language, is much

higher and requires proof of an actual, palpable conflict of interest with “a substantial basis in

fact.” Lamb v. State, 267 Ga. 41, 42 (1996). That standard is high for a reason. The public’s interest

in seeking justice is in no way served by a low standard that would allow trial courts broad

authority to invalidate the public’s choice in their elected district attorney, selected by the people

1
This brief will not examine the legal standard surrounding forensic misconduct, which was
covered extensively at the hearing. The State maintains that the evidence presented does not even
come close to establishing that the District Attorney’s statements “were part of a calculated plan
evincing a design to prejudice the defendant[s] in the minds of” potential jurors, the standard
required for a finding of forensic misconduct. Williams v. State, 258 Ga. 305, 315 (1988). No
prosecutor in Georgia has ever been disqualified from prosecuting any case on grounds of
forensic misconduct, and this case should not be the first.

2
to carry out essential constitutional duties. And our state Supreme Court reinforced this high

standard just weeks ago. See Lee v. State, 2024 Ga. LEXIS 31, *2 (Feb. 6, 2024) (Pinson, J.).

All criminal defendants have certain rights that must be protected by our system of justice,

but among them is neither the right to be tried by a prosecutor of his choosing, Nel v. State, 252

Ga. App. 761, 672 (2001), nor the right to delay his prosecution for no good reason, Terrell v. State,

304 Ga. 183, 187 (2018). Inappropriate or improper disqualification of a district attorney, elected

by the people of this county and constitutionally mandated to represent the state in all criminal

cases in the superior court of this circuit, has severe consequences—both for the people’s faith in

their constitutional right to be represented by a district attorney elected by them, see generally

Kemp v. Gonzalez, 310 Ga. 104 (2020), and for the public’s confidence in our system of justice.

For the reasons set forth below, the Defendants’ motions to dismiss the indictment and disqualify

the Fulton County District Attorney’s Office should be denied.

I. The Defendants bear the burden of proving their claims by a “high standard of
proof,” which necessarily must be more than preponderance of the evidence.

“[I]t is the burden of the party seeking to disqualify counsel to prove that the extraordinary

remedy of disqualification is warranted.” Lewis v. State, 312 Ga. App. 275, 283 (2011). In McGlynn

v. State, 342 Ga. App. 170, 173 (2017), the Georgia Court of Appeals recognized that a court

considering a defendant’s motion to disqualify an elected district attorney and her office based on

alleged misconduct must “[hold] those who allege such misconduct to a high standard of proof.”

(emphasis added). At the hearing in this case, the Defendants urged the Court to adopt a

preponderance of the evidence standard, but under McGlynn, that cannot be the correct standard

of proof. While not squarely addressed in the context of disqualification, Georgia’s appellate courts

have often categorized a “clear and convincing showing of actual malice” as a “high standard of

proof.” Terrell v. Ga. TV Co., 215 Ga. App. 150, 151-52 (1994); see also Atkins v. News Publ'g

3
Co., 290 Ga. App. 78 (2008), Torrance v. Morris Publ’g Group, LLC, 289 Ga. App. 136 (2007),

Strange v. Cox Enters., 211 Ga. App. 731 (1994). Moreover, the Eleventh Circuit Court of Appeals

has regularly and explicitly recognized that “preponderance of the evidence … [is] not a high

standard of proof.” United States v. Knight, 773 Fed. Appx. 1057, 1063 (2019) (emphasis added);

see also United States v. Tolbert, 185 Fed. Appx. 913, 915 (2006), United States v. Cox, 188 Fed.

Appx. 889, 894-95 (2006), United States v. Harris, 200 Fed. Appx. 912, 913 (2006), United States

v. Askew, 193 F.3d 1181, 1183 (1999).

The State maintains that the Defendants have not established an actual conflict of interest

even by a preponderance of the evidence. But even so, based on these cases—specifically the

holding in McGlynn that trial courts must hold defendants seeking disqualification of a prosecutor

“to a high standard of proof”—the Court should hold the Defendants to something higher than a

preponderance of the evidence standard.

II. The Defendants ask the Court to adopt a legal standard that is not recognized under
Georgia law, and they rely on cases that are either cited in a misleading way, are
inapplicable, or actually support the State’s position.

The Defendants rely on numerous cases in support of their motion that are either cited in a

misleading way, are inapplicable, or support the State’s position. The Defendants can point to no

appellate case—because there is no case—where an elected district attorney in Georgia was

properly disqualified solely based on an appearance of a conflict of interest or other appearance of

impropriety. Indeed, if such a case existed, it would undoubtedly have been brought to the Court’s

attention by the Defendants months ago. Instead, the Defendants cobble together flowery,

righteous quotations from inapplicable cases that may sound enticing at first but that entirely

misstate the law in Georgia. In doing so, the Defendants ask the Court to adopt a novel legal

4
standard for the disqualification of an elected constitutional officer that has never before been

recognized in Georgia and that is contrary to decades of case law.

The cases relied on by the Defendants can be divided into five categories (1) cases that do

not concern disqualification at all but that the Defendants use as a source of flowery and

righteous—though inapplicable—language; (2) cases where criminal defense attorneys were

disqualified on the basis of divided loyalty, in violation of the Georgia Rules of Professional

Conduct; (3) cases where a prosecutor had an actual personal interest or stake in the outcome of a

prosecution; (4) a single case where a defendant was denied a fundamentally fair trial where the

district attorney had previously represented the victim in the case; and (5) cases where no actual

conflict of interest was shown and disqualification was not proper. The first category of cases is

the largest.2 The Court should categorically disregard them in the context of this motion as they

say nothing at all about disqualification of an elected district attorney.

A. Cases involving criminal defense attorneys disqualified on the basis of divided

loyalty are not applicable here.

The second category of cases concerns criminal defense attorneys who were disqualified

on the basis of divided loyalty, in violation of the Georgia Rules of Professional Conduct

specifically relating to representation of individual clients. These cases simply do not apply to the

disqualification of a constitutional officer whose loyalty lies with seeking justice—not with any

individual, private client. Beginning with Registe v. State, 287 Ga. 542 (2010), the Georgia

Supreme Court upheld the disqualification of a criminal defense attorney who had previously been

2
These cases include the following: McIver v. State, 314 Ga. 109 (2022), Sallee v. State, 329 Ga.
App. 612 (2014), State v. Brown, 269 Ga. App. 875 (2004), Collier v. State, 266 Ga. App. 345
(2004), State v. Wooten, 273 Ga. 529 (2001), Allen v. Lefkoff, 265 Ga. 374 (1995), Delaware v.
Van Arsdall, 475 U.S. 673 (1986), Rose v. Clark, 478 U.S. 570 (1986), Vasquez v. Hillery, 474
U.S. 254 (1986), United States v. Birdman, 602 F.2d 547 (3rd Cir. 1979), United States v. Della
Universita, 298 F.2d 365 (2nd Cir. 1962), and Offutt v. United States, 348 U.S. 11 (1954).

5
directly involved in the defendant’s prosecution, including filing an application for search warrants

against the defendant. The Court held that the circumstances implicated at least four ethics rules,

Id. at 544-45, and Rule 1.7 specifically prohibited the attorney’s representation of Registe because

the representation “create[d] a ‘significant risk that … the lawyer’s duties to … a former client …

will materially and adversely affect the representation’ of his present client …, [and] because the

representation ‘includes the assertion of a claim by one client against another client … in the same

… proceeding,’ [the] conflict cannot be waived … .” Id. at 547. Moreover, Rule 1.9 also prohibited

the representation: “[a] lawyer who has formerly represented a client in a matter’ [cannot]

thereafter represent[] another person ‘in the same or a substantially related matter’ if ‘that person’s

interests are materially adverse to the interests of the former client … .’” Id. at 548. These rules

simply do not apply to the circumstances alleged in the Defendants’ motions.3

The remaining cases in this second category follow the same logic as Registe. In Edwards

v. State, 336 Ga. App. 595 (2016), a criminal defense attorney was properly disqualified where he

had previously represented the mother of the victim in the case and neither Edwards nor the

victim’s mother gave informed consent to the conflict created by the defense attorney’s divided

loyalties, as required by Rule 1.7. In both Brown v. State, 256 Ga. App. 603 (2002) and Love v.

State, 202 Ga. App. 889 (1992), defense attorneys were disqualified where members of their firms

had previously been employed as prosecutors and were substantially involved in earlier stages of

3
In the context of cases implicating Rule 1.7, courts have considered whether the facts create an
“actual or serious potential conflict of interest” because, when Rule 1.7 applies, the rule requires
that consideration. Rule 1.7 establishes that a conflict of interest exists in representing a client if
there is a “substantial risk” that a lawyer’s own interest or duties to another client, a former
client, or a third person will materially and adversely affect the representation of the client. Ga.
St. Bar R. 4-102(d):1.7(a). In the present case, where Rule 1.7 is not implicated, a “serious
potential conflict of interest” is insufficient to disqualify an elected district attorney.

6
the defendants’ prosecutions.4 Finally, in Reeves v. State, 231 Ga. App. 22 (1998), a defendant’s

conviction was reversed where (1) his criminal defense attorney had accepted a job offer with the

same district attorney’s office that was prosecuting the defendant, (2) the record did not establish

that the defense attorney had disclosed that fact to the defendant, (3) the defendant asserted on

appeal that disclosure of his attorney’s future employment would have affected his decision

making, and (4) the defense attorney waived a jury trial, called no defense witnesses, and failed to

have the bench trial transcribed. While Reeves refers to an “appearance of impropriety,” it is

factually distinct from the present motion, was decided under the former ethics rules that do not

apply here, and is non-binding physical precedent. See Ga. R. App. P. 33.2(a)(2).

B. Cases involving prosecutors with a personal interest in the outcome of a

proceeding demonstrate that no disqualifying conflict of interest exists here.

The third category of cases relied on by the Defendants consists of cases where a prosecutor

had acquired a personal interest in the outcome of the proceeding. In both Greater Ga. Amusements

v. State, 317 Ga. App. 118 (2012) and Amusement Sales, Inc. v. State, 316 Ga. App. 727 (2012),

special prosecutors were disqualified from civil asset forfeiture proceedings where they were paid

on a contingency fee basis. While Greater Ga. Amusements refers to the appearance of a conflict

of interest necessarily created by such a contingency fee arrangement, the case was ultimately

decided on public policy grounds—not conflict of interest grounds—so that reference is dicta:

“application of a legal standard that the Court merely assumed and explicitly did not adopt.”5

4
The Georgia Rules of Professional Conduct, in their current form, became effective January 1,
2001. Love was decided under a prior version of the rules, and Brown was tried in April 2001 and
relies on cases decided under the prior rules. Accordingly, neither Love nor Brown explicitly
references Rule 1.7 of the current Georgia Rules of Professional Conduct.
5
The same can be said for the Georgia Supreme Court’s reference to “the appearance of
impropriety” in Battle v. State, 301 Ga. 694, 698 (2017). In that case, the district attorney was not
disqualified because there was “no evidence … [of] any conflict of interest or a personal
relationship with the victim or his mother or any personal interest in obtaining the sought

7
Alexander v. State, 313 Ga. 521, 529 (2022) (emphasis added). “And, ‘dicta is not binding on

anyone for any purpose.’” Id. Moreover, Greater Ga. Amusements is non-binding physical

precedent, see Ga. R. App. P. 33.2(a)(2), and fewer than six weeks after it was decided, the binding,

better-reasoned opinion in Amusement Sales, Inc. held that such contingency fee arrangements

created an actual conflict of interest “in light of the [special prosecutors] having a personal

financial stake in the outcome.”6 Amusement Sales, Inc., 316 Ga. App. at 736 (emphasis added).

In the remaining cases in this category, disqualification was appropriate based on actual

conflicts of interest. In Young v. U.S. ex rel. Vuitton et Fils S. A., 481 U.S. 787 (1987), special

prosecutors in a criminal contempt action were disqualified because they also represented the

plaintiff in the underlying civil injunction action that gave rise to the criminal contempt action, and

their prosecution of the criminal case gave them a “bargaining chip in civil negotiations.” By the

same logic, in Nichols v. State, 17 Ga. App. 593 (1916), the solicitor-general was disqualified from

prosecuting Nichols for perjury in an underlying civil personal injury action where the solicitor-

general, in his private capacity, also represented the personal injury plaintiff against Nichols and

allegedly used the criminal prosecution to force a settlement in the personal injury case.

As this Court correctly pointed out at the hearing in this matter, and as these cases

demonstrate, to create a disqualifying conflict of interest, a prosecutor’s alleged “personal benefit”

must be material: there must be some factual relationship between the alleged benefit and the

prosecutor’s involvement in the case in order to show a personal stake or interest in the outcome

convictions.” Id. Where the Court did not adopt an “appearance of impropriety” standard in
rendering its decision, that language is necessarily dicta. The Court in Battle applied an actual
conflict of interest standard, and again, no Georgia prosecutor has ever been disqualified based
solely on an appearance of impropriety.
6
While Greater Ga. Amusements appears after Amusement Sales, Inc. in the Georgia Appeals
Reports, Greater Ga. Amusements was decided on May 25, 2012, and Amusement Sales, Inc. was
decided several weeks later on July 11, 2012.

8
of the proceedings. See Amusement Sales, Inc., 316 Ga. App. at 736. Here, the Defendants have

not even alleged—and certainly have not proven—that the District Attorney received any benefit

contingent upon the outcome of this case. A nebulous alleged benefit that is either (1) not personal

or (2) not directly tied to the outcome of the case—traditionally, the conviction of the defendant—

is not enough to warrant disqualification. See Sutherland, 190 Ga. App. at 607 (disqualification

not appropriate where the “criminal charges … have no factual connection whatsoever to the

[alleged personal interest] and the outcome in neither proceeding would in any way have an effect

upon the other.”). Otherwise, as this Court observed at the hearing, any alleged improper “personal

benefit” received by a district attorney under any circumstance would disqualify her from

prosecuting every case in which she signed her name to the indictment; that is—obviously—an

unworkable interpretation of the law.

C. The remaining cases relied on by the Defendants demonstrate that no

disqualifying conflict of interest exists here.

The fourth category of cases relied on by the Defendants—a single case, Davenport v.

State, 157 Ga. App. 704 (1981)—concerns a defendant’s right to a fundamentally fair trial. In

Davenport, the Court held that a defendant charged with shooting her estranged husband was

denied a fundamentally fair trial where (1) the district attorney had previously represented the

husband in the divorce proceedings that were pending at the time of the shooting, (2) the district

attorney “was cognizant of information and incidents that occurred between the victim and

[defendant] by virtue of his representation of [the victim] in the divorce proceedings,” and (3) the

district attorney sat at counsel’s table for the entirety of the trial. 157 Ga. App. at 705-06. The Court

held that “public policy prohibits a district attorney from prosecuting a case … while representing

the victim of the alleged criminal act in a divorce proceeding involving the accused.” Id. at 706.

9
Both the facts and the legal principles in Davenport are far too remote from the present case for

that case to be applicable here.

The final category of cases relied on by the Defendants involves cases where

disqualification was found not to be proper: (1) a special prosecutor who accepted future

employment with a law firm that previously represented a prosecution witness in a collateral matter

was not grounds for disqualification because no actual conflict was shown, Whitworth v. State, 275

Ga. App. 790 (2005) (“The Supreme Court of Georgia has repeatedly held that an ‘actual conflict

of interest’ is required to warrant reversal for failure to disqualify.” (emphasis added)); (2) a district

attorney’s office investigator’s close personal friendship with a victim was not grounds for

disqualification, Head v. State, 253 Ga. App. 727 (2002); and (3) a prosecutor’s statements to the

media, after a hung jury, that “the score is 35-1 for conviction” and that “there is substantial reason

to believe [the defendant] is guilty” did not amount to either forensic misconduct or any other

grounds for disqualification, Williams, 258 Ga. at 314-15. None of these cases suggest that a

district attorney may be disqualified based on anything less than an actual conflict of interest.

III. Multiple Georgia Supreme Court cases clearly establish that Georgia trial courts
are not authorized to disqualify an elected district attorney absent an actual conflict
of interest; an appearance of a conflict of interest is insufficient.

“There are two generally recognized grounds for disqualification of a prosecuting attorney.

The first such ground is based on a conflict of interest, and the second ground has been described

as ‘forensic misconduct.’” Williams, 258 Ga. at 314. Under Georgia law, conflicts of interest have

been found only where a “prosecutor previously has represented the defendant with respect to the

offense charged,” “has consulted with the defendant in a professional capacity with regard thereto,”

or “where the prosecutor has acquired a personal interest or stake in the [outcome of the

proceedings].” Id. No other disqualifying conflict of interest has ever been recognized under

10
Georgia law. Moreover, as the Georgia Supreme Court again reiterated less than a month ago, an

actual conflict of interest is required for disqualification of a prosecutor. Lee, 2024 Ga. LEXIS 31

at *2 (“[T]he trial court did not abuse its discretion … by failing to disqualify the Assistant District

Attorney absent an actual conflict of interest.” (emphasis added)).

This has been the unchanged law of this state for decades. In Blumenfeld v. Borenstein, the

Georgia Supreme Court considered whether a trial court erred in disqualifying an attorney based

on an “appearance of impropriety” that resulted from the fact that two lawyers representing

opposing parties in the matter were married. 247 Ga. 406 (1981). The Court recognized that

“[a]lthough the issue has never been squarely addressed in Georgia, courts in other jurisdictions

have rarely been willing to disqualify an attorney based on the appearance of impropriety alone

where there is no danger that the actual trial of the case will be tainted.” Id. at 407-08. The Court

reversed the trial court and rejected the notion that trial courts are authorized to disqualify attorneys

based on an appearance of impropriety:

Appellees have not shown us a case where a per se rule was applied to disqualify
an attorney on the basis of an appearance of impropriety alone. The Georgia cases
cited by appellee do not stand for the proposition that a trial judge is authorized in
Georgia to disqualify an attorney solely on the basis of an appearance of
impropriety.

Id. at 409 (emphasis added). Significantly, the Court did not restrict its language here to status-

based conflicts, and the state of the law has not changed since Blumenfeld was decided more than

40 years ago. Based on the State’s reading of the caselaw, no appellate case in this state has, before

or since Blumenfeld, ever authorized a trial judge to disqualify a prosecutor solely based on the

appearance of a conflict of interest.

This concept has been reinforced in multiple cases since Blumenfeld. In Lyons v. State, the

Georgia Supreme Court refused to accept a defendant’s argument that the trial court erred in

11
refusing to grant his motion to disqualify the district attorney based on an appearance of

impropriety.7 271 Ga. 639, 640 (1999). The Court reiterated that “[a] theoretical or speculative

conflict will not impugn a conviction which is supported by competent evidence.” Id. (quoting

Lamb, 267 Ga. at 42). While Lamb did not involve disqualification of a district attorney, in that

case the Court reiterated that an alleged conflict “must be palpable and have a substantial basis in

fact.” 267 Ga. at 42. Decisions of the Georgia Court of Appeals are in accord. In Whitworth v.

State, the Court affirmed a trial court’s denial of a motion to disqualify the prosecutor where “no

actual conflict of interest was shown.” 275 Ga. App. at 796. “The Supreme Court of Georgia has

repeatedly held that an ‘actual conflict of interest’ is required to warrant reversal [of a conviction]

for failure to disqualify.” Id. (citing Pruitt v. State, 270 Ga. 745, 753 (1999)). “A ‘theoretical or

speculative conflict’ is simply not sufficient.” Id.

Every Georgia case that has addressed the issue has reached the same conclusion: in order

to authorize a trial court to disqualify an elected district attorney, an actual conflict of interest must

be proven. No prosecutor in this state has ever been disqualified on the appearance of a conflict.

IV. O.C.G.A. § 15-18-5 confirms multiple Georgia cases holding that an actual conflict
of interest must be shown to disqualify an elected district attorney.

The cases set forth above that hold that proof of an actual conflict of interest is required to

disqualify an elected district attorney are confirmed by the language of O.C.G.A. § 15-18-5. That

statute explains the procedure for the appointment of appoint a substitute “[w]hen a district

attorney’s office is disqualified from interest or relationship to engage in a prosecution.” O.C.G.A.

§ 15-18-5 (emphasis added). The statute makes no mention of disqualification due to an

7
These cases examine the question in a post-conviction context. At the hearing on this matter,
the Court inquired as to whether a different standard may apply pre-trial. No Georgia case has
ever held that the standard for disqualifying an elected district attorney is different based on
whether the question is raised before or after trial.

12
“appearance” of a conflict of interest based on personal interest or relationship. This Court must

“construe the statute according to its terms [and] give words their plain and ordinary meaning.” La

Fontaine v. Signature Research, Inc., 305 Ga. 107, 108 (2019) (cleaned up). Moreover, this

statutory language has remained unchanged since the state’s first codification of the common law,

which took effect on January 1, 1862: “When a Solicitor is absent, or indisposed, or disqualified

from interest or relationship to engage in a prosecution, the presiding Judge must appoint a

competent attorney of the Circuit to act in his place … .” Orig. Code Ga. 1860, § 358 (emphasis

added). This language, as old as Georgia’s statutory law itself, should guide the Court.

V. References to “Caesar’s wife” in certain cases do not lessen the requirement that an
actual conflict of interest must be shown to disqualify an elected district attorney.

At the hearing on this matter, the Court also referred to the occasionally invoked example

of “Caesar’s wife.” The language to which the Court referred was first used in Nichols v. State:

“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.” 17 Ga. App. at 606 (cleaned up). The Court noted this language

and questioned whether it suggests that something less than an actual conflict of interest could

suffice to disqualify a prosecutor. The State has not found any case that has ever made such a

holding, and in State v. Sutherland, the Georgia Court of Appeals went out of its way to reinforce

the differing standards between prosecutors and factfinders such as judges or juries. Shortly after

quoting the “Caesar’s wife” language found in Nichols and other cases, the Court explained:

Mr. Wilson’s civil action is entirely separate from appellee’s criminal prosecution
and, assuming that Mr. Thacker is a partisan, he has not been shown to be such a
partisan as would disqualify him from proceeding with the prosecution of appellee.
“‘While the prosecuting officer should see that no unfair advantage is taken of the
accused, yet he is not a judicial officer. Those who are required to exercise judicial
functions in the case are the judge and jury. The public prosecutor is necessarily a
partisan in the case. If he were compelled to proceed with the same circumspection

13
 as the judge and jury, there would be an end to the conviction of criminals.’” Scott
v. State, [53 Ga. App. 61, 67 (3) (1935)]. The record shows nothing to suggest that,
in his handling of the prosecution of appellee, Mr. Thacker was “acting in his
personal or individual character, or for his personal or individual interest, but in his
character as an officer of the law specially charged by statute to perform this
particular duty. He was not employed by any private person to prosecute, and his
acts in connection with the instant case were ‘not with a view to the interest of any
client, but alone to subserve public justice.’” Pinkney v. State, 22 Ga. App. 105, 109
(95 SE 539) (1918). The trial court erred in granting appellee’s motion to quash the
indictments on the ground of Mr. Thacker’s disqualification.

Sutherland, 190 Ga. App. at 607-08 (emphasis added). Sutherland thus acknowledges the example

of “Caesar’s wife” cited in Nichols and other cases but emphasizes that prosecutors are not held to

the same standard as judges. Instead, prosecutors can only be disqualified in cases where they are

acting in their own “personal or individual interest” rather than in their “character as an officer of

the law specially charged by statute to perform this particular duty.” Sutherland also invokes, yet

again, the example of private prosecution —for example, contingency-fee-based prosecution—as

an example of the sort of actual conflict of interest required for disqualification. Indeed, in every

case the State has found involving disqualification of a prosecutor based on personal stake or

interest, that personal interest has consisted of the prosecutor enjoying some direct pecuniary gain

contingent upon the outcome of the criminal case. Without such a personal interest, sufficient to

wholly displace the prosecutor’s role as an officer of the law, disqualification is not authorized.

VI. The Defendants have not met their burden of proving either an actual conflict of
interest or forensic misconduct on the part of the District Attorney.

For the reasons set forth above, the Court should not disqualify the Fulton County District

Attorney’s Office from prosecution of this matter where the evidence before the Court fails to

demonstrate an actual conflict of interest or forensic misconduct on the part of the District Attorney

by a “high standard of proof.” McGlynn, 342 Ga. App. at 173. To whatever extent the Defendants

allege that the District Attorney received a benefit arising out of this prosecution, they have made

no allegation—and have offered no evidence—that the District Attorney has any improper, direct,

14
and material personal stake or interest in the outcome of these proceedings sufficient to authorize

disqualification. See Lee, 2024 LEXIS 31 at *2; Williams, 258 Ga. at 314-315; Amusement Sales,

Inc., 316 Ga. App. at 736; Whitworth, 275 Ga. App. at 796. The Defendants’ suggestions

concerning what constitutes an improper personal stake or interest are both unsupported by law,

and, as the Court rightly pointed out at hearing in this matter, entirely unworkable. Application of

the actual legal standards, reiterated by Georgia courts and by statute as set forth above, leads to

only one authorized outcome: the indictment should not be dismissed, and the Fulton County

District Attorney’s Office should not be disqualified.

Respectfully submitted this 5th day of March 2024,

FANI T. WILLIS
District Attorney
Atlanta Judicial Circuit

Adam Abbate
Georgia Bar No. 516126
Chief Deputy District Attorney
Fulton County District Attorney’s Office
136 Pryor Street SW, 3rd Floor
Atlanta, Georgia 30303
[email protected]

/s/ John W. “Will” Wooten

John W. “Will” Wooten
Georgia Bar No. 410684
Deputy District Attorney
Fulton County District Attorney’s Office
136 Pryor Street SW, 3rd Floor
Atlanta, Georgia 30303
[email protected]

15
 IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA

STATE OF GEORGIA |
| CASE NO.
v. |
| 23SC188947
DONALD JOHN TRUMP, |
RUDOLPH WILLIAM LOUIS GIULIANI, |
JOHN CHARLES EASTMAN, |
MARK RANDALL MEADOWS, |
KENNETH JOHN CHESEBRO, |
JEFFREY BOSSERT CLARK, |
JENNA LYNN ELLIS, |
RAY STALLINGS SMITH III, |
ROBERT DAVID CHEELEY, |
MICHAEL A. ROMAN, |
DAVID JAMES SHAFER, |
SHAWN MICAH TRESHER STILL, |
STEPHEN CLIFFGARD LEE, |
HARRISON WILLIAM PRESCOTT FLOYD, |
TREVIAN C. KUTTI, |
SIDNEY KATHERINE POWELL, |
CATHLEEN ALSTON LATHAM, |
SCOTT GRAHAM HALL, |
MISTY HAMPTON a/k/a EMILY MISTY HAYES |
Defendants. |

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a copy of this STATE’S SUPPLEMENTAL

BRIEF FOLLOWING HEARING ON MARCH 1, 2024, CONCERNING STANDARD OF

PROOF AND LEGAL STANDARD FOR DISQUALIFICATION OF AN ELECTED DISTRICT

ATTORNEY, upon all counsel who have entered appearances as counsel of record in this matter

via the Fulton County e-filing system.

This 5th day of March 2024,

FANI T. WILLIS
District Attorney
Atlanta Judicial Circuit

16
 /s/ John W. “Will” Wooten
John W. “Will” Wooten
Georgia Bar No. 410684
Deputy District Attorney
Fulton County District Attorney’s Office
136 Pryor Street SW, 3rd Floor
Atlanta, Georgia 30303
[email protected]

17