Fulton County District Attorney Fani Willis has gone from criminalizing court filings to committing crimes with respect to her own court filings.
Georgia law makes it unlawful to knowingly file a court document “knowing or having reason to know that such document is false or contains a materially false, fictitious, or fraudulent statement or representation.” Ga. Code Ann. § 16-10-20.1(b)(1).
DA Willis is well-aware of this law; she charged a number of Defendants – including Donald Trump, Rudy Giuliani, and John Eastman – with a violation of that law for filing in a document that contained a “materially false statement in federal court.” And she just violated it this week.
For background, Georgia law allows for a speedy trial demand in accordance with the Sixth Amendment, which provides that “the accused shall enjoy the right to a speedy and public trial.” Two Defendants, Kenneth John Chesebro and Sidney Powell, have made that request pursuant to Georgia law.
DA Willis responded to these speedy trial demands with an utterly false Motion to Advise to inform the Court and the Defendants of the “consequences” of their requests for a speedy trial. This Motion was a violation of § 16-10-20.1(b)(1). By no means are we making a stretch – the statutory violations are clear and obvious. DA Willis and her team invented legal theories and misled the Court about relevant caselaw that allegedly supported her position. Let us explain.
DA Willis made four main assertions in her Motion (quoted in full below):
All of these statements are demonstrably false.
First, DA Willis alleges that because of Defendants’ speedy trial demand, they “cannot now argue that they are entitled to the State’s discovery responses ten (10) days in advance of trial. Smith v. State, 257 Ga. App. 88, 90 (2002); Ruff v. State, 266 Ga. App. 694, 695 (2004)”.
This is not true. Georgia law requires DA Willis to produce a broad spectrum of evidence “no later than ten days prior to trial.” Ga. Code Ann. § 17-16-4. A Defendant’s request for speedy trial does not waive this obligation.
Furthermore, the Defendants are not precluded from arguing they are entitled to evidence under Georgia law by the mere fact they requested a speedy trial. Those cases DA Willis cites in support of her position? They do not apply, they do not stand for the claim DA Willis says they do. The Smith case involved a criminal defendant that requested a continuance. The Ruff case had to do with a defendant rejecting a continuance offer from a trial court where the State did not disclose witnesses in a timely manner. Neither case precludes the ability of a defendant to object to late disclosure of evidence.
Second, and DA Willis states “The Defendants cannot now argue that they are entitled to notice of the State’s similar transaction evidence ten (10) days in advance of trial. Brown v. State, 275 Ga. App. 281, 287 (2005)”.
Again, this is false. Rule 31.1 requires DA Willis to provide notice of intent to present similar transactions to be “given and filed at least 10 days before trial unless the time is shortened or lengthened by the judge.”
The Defendants did not waive that obligation to benefit DA Willis. It still exists, and it still binds DA Willis. The case DA Willis cites – Brown v. State – does not stand for the proposition that this requirement is waived by a request for a speedy trial. In fact, both the Brown case and Rule 31.1. contemplate the necessity of briefing and arguments where the 10 day notice is violated.
Third, DA Willis alleges the request for a speedy trial precludes the Defendants “from calling any witnesses whose statements were not provided to the State at least ten (10) days in advance of trial. Clark v. State, 271 Ga. App. 534, 536 (2005).”
Another falsehood. Georgia law allows for this 10 day witness statement requirement to be shortened or lengthened “as the court permits.” Ga. Code Ann. § 17-16-7. Whether witnesses are excluded for a violation of the notice rule is up to the Judge; there is no outright preclusion, as alleged by DA Willis.
And again, the case DA Willis cites just doesn’t stand for what she says it does. Clark v. State involved a criminal defendant who violated that 10 day witness statement requirement. The trial judge in Clark gave the defendant the option of not calling the witness or the ability to continue his case to a later date so that the witness could testify. There is no outright prohibition from calling a witness where the statement was produced with less than 10 days for trial, as maintained by DA Willis.
Fourth, Willis claims “The Defendants cannot now complain that they received less than seven (7) days notice of the trial date in this case. Linkous v. State, 254 Ga. App. 43, 47 (2002).”
False. Rule 32.1 requires notice of a trial date “not less than 7 days before the trial date or dates.” This notice requirement, which falls on the Court, exists to protect the due process rights of a criminal defendant. (The surprise of a trial date means an attorney cannot effectively represent their client.) It does not go away where speedy trial demand.
And as you might have guessed, the case cited by DA Willis does not stand for the proposition that a speedy trial demand means a criminal defendant waives the 7 day trial notice. The case cited by DA Willis is Linkous v. State, which concerns the remedies where there is a violation of Rule 32.1. It doesn’t excuse non-compliance with Rule 32.1.
At a minimum, the motion from DA Willis was deserving of sanctions. The trial judge, however, denied the motion without full briefing from the Defendants. He wasn’t concerned with accountability.
Finally, you might be curious about the purpose of the filing from DA Willis. Here’s our guess: DA Willis plans to violate her discovery obligations. She doesn’t want to take these cases to trial within the timeline the speedy trial demands afford. (Chesebro is set for trial on October 23, 2023.) Thus, she will violate her discovery and notice requirements, putting the Defendants in the tenuous position of either (1) proceeding to trial without adequate notice; or (2) having to continue the case to another date so that they may adequately prepare for trial.
This is nothing more than dishonest gamesmanship, a violation of Georgia law and an affront to prosecutorial ethics. If DA Willis wants to punish false statements to a court, she should turn herself in.
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