Quash Subpoena for Personnel Records - PDF

					                                                                             Fulton County Superior Court
                                                                                    ***EFILED***
                                                                            LexisNexis Transaction ID: 21292161
                                                                                Date: Aug 29 2008 1:16PM
                                                                                Cathelene Robinson, Clerk
                    IN THE SUPERIOR COURT OF FULTON COUNTY
                                STATE OF GEORGIA


STATE OF GEORGIA                              )
                                              )
vs.                                           )       CASE NUMBER 05SC29988
                                              )       JUDGE BODIFORD
BRIAN G. NICHOLS                              )

                 MOTION TO QUASH DEFENDANT’S SUBPOENA
                                    and
               BRIEF IN SUPPORT OF STATE’S MOTION TO QUASH
                         DEFENDANT’S SUBPOENA

       COMES NOW The State, through Paul L. Howard, Jr., District Attorney for the Atlanta

Judicial Circuit, and hereby moves to QUASH certain witness subpoenas served by defendant

upon District Attorney Paul L. Howard, Jr. and Senior Assistant District Attorney Sheila Ross.

Defendant cannot show that the testimony of Paul L. Howard, Jr., or Sheila Ross is absolutely

necessary to establish material facts to the issue at hand. Defendant has failed to show any

compelling need for the testimony of these persons. The State shows that:

       1. The subpoenas are unreasonable and oppressive because the witnesses have no

personal knowledge of any material and admissible evidence relating to any issue raised in the

pending motion;

       2. The subpoenas are in bad faith in calling opposing counsel as witnesses to a situation

that has no relevancy to the issues in the above styled case for a motion that does not present any

issue upon which relief could be granted;

       3. The subpoenas are contrary to public policy: based on the written motion for

disqualification defense counsel has failed to establish any pressing need for this witness’s

testimony. Defense counsel has failed to allege any circumstance that would rise to the level of a

                                                  1
disqualification of the Fulton County District Attorney’s Office, or that would bar the death

penalty in the above styled case, or that would produce any admissible evidence in the case at bar

during trial.

        4. The subpoenas are contrary to public policy, seeking in bad faith to inquire into the

District Attorney's professional discretion and thought processes in charging and presenting this

case.

                            STATEMENT OF MATERIAL FACTS

                                              1

        Defendant is charged in a 53 count indictment charging him with, among other charges, 4

counts of murder for the deaths of Judge Rowland Barnes, court reporter Julie Brandau, Sheriffs

Deputy Seargeant Hoyt Teasley, and Federal Customs Officer Wilhelm.

                                              2

        The State gave proper notice of its intent to seek the death penalty, based upon several

aggravated circumstances, including multiple felonies (murder, aggravated assault, escape), and

multiple deaths.




                                                  2
                              ARGUMENT & CITATION OF AUTHORITY

   I.      DEFENDANT IS NOT ENTITLED TO DOCUMENTS REQUESTED

        Included in the subpoenas served upon District Attorney Howard was a duces tecum in

which the defendant demands the disclosure of documents he has repeatedly asked for and has

yet to provide any legal basis for their disclosure.

           (A.)    Attachment “A”

        In this attachment defendant seeks several items he has asked for repeatedly. The State,

again, provides the following response to these requests.

                       (1).    Documents and records regarding any professional misconduct by
                               former Assistant District Attorney Gayle Abramson

        Defendant cites to no statutory authority that would require this disclosure. Defendant

has previously been provided copies of the redacted personnel file in accordance with the

Georgia rules regarding open records requests. Defendant was also provided an opportunity to

view, but not copy, the un-redacted personnel file.

        Defendant further requests:

               “…any document or record in your possession, and/or contained in
               the Davis file, or any other file or files in the possession or control
               of the Fulton County District Attorney’s Office referencing: any of
               the events surrounding Ms. Abramson’s relationship with Scott
               Davis, Dave Sugarman, Randeep Dhillon, and/or Ward Kelly,
               including any meetings or gatherings between Ms. Abramson and
               any of these individuals either in Atlanta and/or in and around the
               San Francisco Bay area at any time during the period of August
               2004 through the present; any meetings between Ms. Abramson
               and other members of the Office of the Fulton County District
               Attorney, including Mr. Paul Howard, Ms. Sheila Ross, any former
               or current member of the prosecution team in the Nichols case, or
               any other senior management personnel in the office, or any other
               internal or external law enforcement agency, regarding matters
               involving allegations of misconduct by Ms. Abramson or the
               victimization of Ms. Abramson by other persons, at any time

                                                  3
                 between August 2004 and the present; any meetings between Mr.
                 Rand Csehy and other members of the office of the Fulton County
                 District Attorney, including Mr. Paul Howard, Ms. Sheila Ross,
                 any former or current member of the prosecution team in the Davis
                 case and/or the Nichols case, or any internal or external law
                 enforcement agency regarding matters involving allegations of
                 misconduct by Ms. Abramson or the victimization of Ms.
                 Abramson by other persons, at any time between August 2004 and
                 the present; any meetings between any employee of the Fulton
                 County District Attorney’s Office and/or other such employees or
                 outside agencies, regarding such matters; any internal or external
                 referral and/or investigation of such allegations; any restrictions or
                 other disciplinary actions taken by the Fulton County District
                 Attorney’s Office, or any outside agency, against Ms. Abramson
                 and/or Mr. Csehy at any point during their term of employment at
                 the District Attorney’s Office, or thereafter if related to such
                 employment; any documents or records regarding any
                 communications between any employees of the Fulton County
                 District Attorney’s Office, including Mr. Howard, Ms. Ross, other
                 senior management and/or any former or current members of the
                 prosecution team in the Davis case and in the Nichols case,
                 regarding allegations being made by Mr. Nichols, through counsel,
                 regarding misconduct by Ms. Abramson while she was an
                 employee at the District Attorney’s Office.”

          Such a request is similar to a civil defendant’s interrogatories and discovery in Dikeman

v. Mary A. Sterns, P.C., 253 Ga. App. 646 (560 S.E.2d 115) (2002) where the defendant

requested the names and addresses of all of plaintiff’s clients receiving bills at any time during a

16-month period as well as the invoice numbers of all those bills. Defendant further requested

plaintiff to produce calendars, timekeeping computer database, a full and complete copy of the

hard drive of plaintiffs computers that generated documents pertaining to defendant, copies of all

bills sent by plaintiff to any client since January defendant asked plaintiff to list and describe

each individual photocopy plaintiff made and billed to defendant as well as the number of

photocopies billed to all clients, on a per day and per photocopier basis, over a five-month

period.


                                                   4
          The trial court found these discovery requests to be overbroad, oppressive, and annoying

and required an undue burden and expense upon the plaintiff, the Georgia Court of Appeals

agreed and found no abuse of the trial court’s discretion. The court also found that the requests

invaded privacy expectations of Stearns's other clients. Dikeman, supra at 648.

          Under the Georgia Civil Code - while not applicable in criminal cases, may still provide

guidance to the Court in instances like the situation at bar – “The trial court does have a wide

discretion in the entering of orders permitting or preventing the use of interrogatories or taking of

depositions for discovery which are oppressive, unreasonable, unduly burdensome or expensive,

harassing, harsh, insulting, annoying, embarrassing, incriminating or directed to wholly

irrelevant and immaterial or privileged matters, or as to matter concerning which full information

is already at hand.” Hampton Island Founders v. Liberty Capital, 283 Ga. 289 (658 S.E.2d 619)

(2008), citing Travis Meat &c. Co. v. Ashworth, 127 Ga. App. 284, 287, 288 (193 SE2d 166)

(1972).

          The requests of the defendant are oppressive, unreasonable, burdensome, expensive,

harassing, insulting and directed to wholly irrelevant and immaterial matters, some of which are

privileged and protected for privacy concerns.

                 (2)     Un-redacted prosecution file from State v. Davis

          Defendant also requests an un-redacted copy of an unrelated murder prosecution and

specific items from within that file.

          Since this requested case bears no reasonably articulable connection to the case at bar,

this request is obviously in the form of an open records request. Under O.C.G.A. § 50-18-72

(a)(4) the “Records of law enforcement, prosecution, or regulatory agencies in any pending

investigation or prosecution of criminal or unlawful activity, other than initial police arrest

                                                   5
reports and initial incident reports; provided, however, that an investigation or prosecution shall

no longer be deemed to be pending when all direct litigation involving said investigation and

prosecution has become final or otherwise terminated….”

        Under Georgia law a prosecution is deemed pending until such time as all direct appeals

of conviction, including writs of certiorari to the United States Supreme Court have been

exhausted. Parker v. Lee, 259 Ga. 195 (2), (378 S.E.2d 677) (1989) citing Napper v. Georgia

Television Co., 257 Ga. 156 (356 S.E.2d 640) (1987). Additionally, as stated during the trial of

Scott Davis, the state has evidence of a co-conspirator that assisted convict Davis in the murder

of Mr. Coffin. Since that investigation is still pending into that co-conspirator and the case is

still and open investigation and case file thus it is not discloseable in any form, either in toto or in

individual release.

        Additionally, requests (k.)(i.) through (v.) involve information that is under seal in two

different Fulton County Superior Court courtrooms. The actual wiretaps were placed under seal

by the Honorable Gino Brogdon of the Fulton County Superior Court. The motions related to

the wiretaps were placed under seal by the Honorable Tom Campbell of the Fulton County

Superior Court and cannot be disclosed. Requests (k.)(vi.) through (x.) are part of an open case

and are protected from disclosure under Georgia law.

            (B.)      Attachment “B”

        The documents requested by attachment “B” are not protected under any rule of Georgia

law, therefore, the State intends to comply with attachment “B” if the Court is not inclined to

quash the subpoena in toto.




                                                   6
II.    PROPER STANDARD FOR TESTIMONY OF A PROSECUTOR

       The State contends that the subpoenas issued to District Attorney Howard are without

proper basis and should be quashed. The State presents the following discussion on when a

subpoena for a prosecutor’s testimony is proper and when it is not.

       Whether a defending or prosecuting attorney may testify in a case he is trying is within

the discretion of the district court. United States v. Buckhanon, 505 F.2d 1079, 1084 (8th Cir.

1974); Gajewski v. United States, 321 F.2d 261, 268 (8th Cir. 1963), cert. denied, 375 U.S. 968,

84 S. Ct. 486, 11 L. Ed. 2d 416 (1964). Requests for such testimony are disfavored. United States

v. Prantil, 764 F.2d 548, 551 (9th Cir. 1985); United States v. Dupuy, 760 F.2d 1492, 1498 (9th

Cir. 1985)

       (a.)    Unreasonable & Burdensome: A subpoena may be quashed if it is

unreasonable and oppressive. OCGA § 24-10-22 (b) (1). This remedy applies to witness

subpoenas issued by the defendant. Dodd v. State, 236 Ga. 572, 574 (224 SE2d 408) (1976).

When a motion to quash is filed, the party serving the subpoena has the initial burden of showing

testimony and/or documents sought are relevant. OCGA § 24-10-22; Bazemore v. State, 244 Ga.

App. 460 (1) (535 SE2d 830) (2000) (emphasis supplied). If that is done, the party moving to

quash has the burden of showing that the subpoena is unreasonable and oppressive. Morris v.

State, 246 Ga. 510, 512 (2) (272 SE2d 254) (1980). Here, defendant abuses the subpoena in an

improper attempt to adduce speculation and opinion evidence concerning instances of conduct

that are not relevant or admissible in the case at bar either as impeachment evidence or

otherwise.




                                                 7
                       (1.)    Proponent's Initial Burden:

       "'The defense must make a prima facie showing that the requested materials are relevant

to his defense and that he has a right to the materials [or testimony], and the trial court may

properly quash an unreasonable and oppressive subpoena.' (Citations and punctuation omitted.)

Wingfield v. State, 229 Ga. App. 75, 83 (5) (493 SE2d 235) (1997)." Tuttle v. State, 232 Ga.

App. 530 (2) (502 SE2d 355) (1998).

       Courts usually are reluctant to permit a prosecutor to serve as a witness in a case he is

prosecuting, except in extraordinary circumstances. Johnson v. State, supra, 23 Md. App. at 141

(citing Gajewski v. United States, 321 F.2d 261, 268 (8th Cir. 1963)); see also United States v.

Dempsey, 740 F. Supp. 1295, 1297 (N.D. IL. 1990); Robinson v. United States, 32 F.2d 505, 510

(8th Cir. 1928). Raines v. State, 142 Md. App. 206, 212 (Md. Ct. Spec. App., 2002); United

States v. Clancy, 276 F.2d 617, 636 (7th Cir. 1960), reversed on other grounds, 365 U.S. 312, 81

S.Ct. 645, 5 L.Ed.2d 574 (1961); United States v. Alu, 246 F.2d 29, 33-34 (2nd Cir. 1957); 97

C.J.S. Witnesses § 113; Annot., 149 A.L.R. 1305.

       Generally, a trial court has wide discretion respecting examination of witnesses. Brennan

v. United States, 240 F.2d 253, 262 (8th Cir. 1957), cert. denied, 353 U.S. 931, 77 S.Ct. 718, 1

L.Ed.2d 723 (1957); London Guarantee & Accident Co. v. Woelfle, 83 F.2d 325, 334 (8th Cir.

1936); Burns v. United States, 286 F.2d 152, 157 (10th Cir. 1961); Sachs v. United States, 281

F.2d 189, 191 (9th 1960), cert. denied, 364 U.S. 909, 81 S.Ct. 272, 5 L.Ed.2d 224 (1960);

Leathers v. United States, 250 F.2d 159, 164-165 (9th 1957). More particularly, under appropriate

circumstances, a court may refuse to even allow a witness to take the stand. May v. United

States, 84 U.S.App.D.C. 233, 175 F.2d 994, 1010 (1949), cert. denied, 338 U.S. 830, 70 S.Ct. 58,

94 L.Ed. 505 (1949); Overholser v. De Marcos, 80 U.S.App.D.C. 91, 149 F.2d 23, 26 (1945),

                                                  8
cert. denied, 325 U.S. 889, 65 S.Ct. 1579, 89 L.Ed. 2002 (1945). Although, as the above

authorities indicate, such judicial discretion is generally exercised to prevent testimony by an

advocate in favor of the party whom he represents, a court may, without abusing its discretion,

refuse to allow the defense to call as a witness the United States Attorney trying the case. Fisher

v. United States, 231 F.2d 99, 104 (9th Cir. 1956). The trial court has broad discretion in

determining whether the defense will be allowed to call a prosecuting attorney to the witness

stand and whether the prosecutor will be permitted to continue trying the case after testifying.

United States v. Birdman, 602 F.2d 547 (3d Cir.1979); United States v. Maloney 241 F.Supp. 49

(W.D.Penn.1965). When an abuse of the trial court's discretion is alleged, the defendant has the

burden of demonstrating that the court's ruling denied him due process. Maloney.

       In United States v. Birdman, 602 F2d 547, 553-55 (3rd Cir. 1979), the United States Court

of Appeals for the Third Circuit examined the case law and identified four policies served by

applying the compelling need standard to the situation of prosecutor-witness: First, there is the

risk that the prosecutor may not be a fully objective witness. Id., 553. Second, there exists the

justifiable fear that, when a prosecutor takes the witness stand, the prestige or prominence of the

prosecutor's office will artificially enhance his credibility as a witness. Accord United States v.

Johnston, 690 F2d 638, 643 (7th Cir. 1982). Third, the jury may understandably be confused by

the prosecutor's dual role. Id. The jury would be required to segregate the factual testimonial

account of the prosecutor-witness from the exhortations of the prosecutor-advocate. United

States v. Prantil, 764 F2d 548, 552 (II) (A) (9th Cir. 1985). "Naturally, the potential for jury

confusion is perhaps at its height during final argument when the prosecutor must marshall all

the evidence, including his own testimony, cast it in a favorable light, and then urge the jury to

accept the government's claims." Id.

                                                  9
                               (i.)    "Compelling Need" Test:

       There is no Georgia law on this precise issue. Compare Shelton v. State, 206 Ga. App.

579, 581 (426 SE2d 69) (1992) (government must have a compelling need for counsel's

testimony). The federal courts have universally condemned the practice of a government

prosecutor's testifying at a trial in which he is participating; As a general rule federal courts

refuse to permit a prosecutor to be called as a witness in a trial in which he is participating; such

testimony is permitted only if required by a compelling need. United States v. Schwartzbaum,

527 F.2d 249, 253 (2d Cir. 1975), cert. denied, 424 U.S. 942, 96 S. Ct. 1410, 47 L. Ed. 2d 348

(1976); see United States v. Birdman, 602 F.2d 547, 553 (3d Cir. 1979), cert. denied, 445 U.S.

906, 100 S. Ct. 1084, 63 L. Ed. 2d 322 (1980); United States v. Dupuy, 760 F2d 1492, 1498 (9th

Cir. 1985). "In order for either side in a criminal case to call a prosecutor or a defense attorney

to testify, who is or was involved in the case, a court must be satisfied that a compelling need for

the testimony exists. Ullmann v. State, 230 Conn. 698, 718, 647 A.2d 324 (1994). Such a

determination is discretionary but disfavored.

       To determine whether the defendant should be allowed to depart from the general rule

and call the prosecuting attorney, we adopt the "compelling need" standard where the defendant

"must demonstrate a compelling need before a participating prosecutor will be permitted to

testify." Thompson, 567 A.2d at 840 (citing United States v. Prantil, 764 F.2d 548 (9th Cir.

1985); United States v. Dack, 747 F.2d 1172 (7th Cir. 1984); United States v. Schwartzbaum,

527 F.2d 249 (2d Cir. 1975), cert. denied, 424 U.S. 942, 96 S. Ct. 1410, 47 L. Ed. 2d 348

(1976)). See Montez, 573 P.2d at 36.

       The party seeking such testimony must demonstrate that the evidence is vital to his case,

and that his inability to present the same or similar facts from another source creates a

                                                  10
compelling need for the testimony. See Gajewski, 321 F.2d at 269 (defendant must show

prosecutor "possesses information vital to the defense"); Prantil, 764 F.2d at 551 ("a defendant

has an obligation to exhaust other available sources of evidence before a court should sustain

[his] efforts to call a participating prosecutor as a witness"); United States v. Tamura, 694 F.2d

591, 601 (9th Cir. 1982) (movant must demonstrate a "compelling need" for opposing counsel's

testimony). The District Court's ruling on such a motion will not be reversed "'absent a clear and

prejudicial abuse of discretion.'" United States Envtl. Protection Agency v. City of Green Forest,

Ark., 921 F.2d 1394, 1409 (8th Cir. 1990) [***5] (quoting Wade v. Haynes, 663 F.2d 778, 783

(8th Cir. 1981), aff'd. sub nom. Smith v. Wade, 461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d 632

(1983)), cert. denied, 502 U.S. 956, 112 S. Ct. 414, 116 L. Ed. 2d 435 (U.S. 1991). State v.

Aguilar, 135 Idaho 894, 895-896 (Idaho Ct. App., 2001)

       To establish a "compelling need," the defendant must first demonstrate that the testimony

is necessary and not merely relevant. The defendant must also show that the testimony of the

participating prosecutor would not be cumulative of other testimony or evidence and that he has

exhausted other available sources of comparably probative evidence. Thompson, 567 A.2d at

840. Rudolph v. State, 829 P.2d 269, 273 (Wyo., 1992). The establishment of a "compelling

need" requires the exercise of the court's discretion to determine whether the testimony is

necessary and whether all other available sources of comparably probative evidence have

been exhausted." State v. Smith, 856 A2d 466 (Conn. App. 2004).




                                                 11
                                       (ii.)    Not Cumulative:

       “When evidence is merely cumulative, the appellant does not have a compelling need to

introduce it. We hold, therefore, that the district court did not abuse its discretion in denying the

appellant's request to call the assistant district attorney because appellant did not demonstrate a

compelling need for his testimony.” Rudolph v. State, 829 P.2d 269, 274 (Wyo., 1992).

                                        (iii)   More Than Mere Relevance:

       A defendant must show more than mere relevance to compel a prosecutor to testify.

Given that, the testimony sought by this subpoena is not even relevant to any issue in the case at

bar, much less material to any portion of the case and at its zenith is wholly inadmissible and

improper impeachment evidence in the case at bar. Other courts in other states have held,

"Under the compelling need test, which we adopt today, the [proponent] must show that: (1)

there is no feasible alternative for obtaining and presenting the information to the jury except

through . . . counsel's testimony; and (2) the testimony is essential, not merely relevant, to the

[proponent's] case." Flores v. State, 155 SW3d 144 (Tex. Crim. App. 2004). If the testimony is

neither relevant nor material, the court will not allow defendant's counsel to raise the possibility

of calling the prosecutor as a witness merely to disqualify him from the trial of the case. People

v. Arabadjis, 93 Misc. 2d 826, 829 (N.Y. Misc., 1978)

       The trial court is charged with making the determination of the materiality of the witness'

testimony and must, of course, honor the defendant's constitutional rights of confrontation and

compulsory process. United States v. Prantil, 764 F.2d 548, 552 (9th Cir. 1985). The defendant

who wants to call his prosecutor as a witness must demonstrate that the testimony is necessary

and not merely relevant, and he must show that he has exhausted other available sources of

comparably probative evidence. Id., 551.

                                                  12
       The elected official has been deposed and interviewed and the persons assigned to

prosecute Defendant’s rape case have been interviewed previously. Defendant has presented no

compelling need for any further live testimony.

                       (2) Public Policy:

       Even from a public policy standpoint, the Eleventh Circuit has held that a defendant is

not entitled to call the prosecutor to testify absent a showing of compelling need. United States

v. Roberson, 897 F2d 1092, 1098 (11th Cir. 1990). Unless the prosecutor has essential

information that cannot be obtained by other means, he cannot be compelled to testify. In this

motion the defendant has listed as witnesses, Ms. Abramson, Mr. Csehy, Mr. Kadish, Mr. Morris

and Mr. Sugarman, and the defendant has failed to show that the information sought could not be

obtained through these witnesses, thus failing to establish a “compelling need” for the testimony

of a prosecutor.

                       (3)     Inherent Conflict:

       In Georgia, the conflict inherent in defense counsels' dual role as advocate and witness

(to the alleged – unlawful - agreement) constitutes ineffective assistance of counsel. This type of

"conflict is evaluated under the Strickland standard, rather than Cuyler v. Sullivan, which is

reserved for conflicts arising from multiple representation." Wright v. State, 267 Ga. 496 (480

SE2d 13) (1997). Under the circumstances of that case, counsel's taking the witness stand was

contrary to former Disciplinary Rule 5-102, which provide[d] that "except when essential to the

ends of justice a lawyer should avoid testifying in court in behalf of his client." Wright, supra,

267 Ga. 496 (480 SE2d 13) (1997).

       "'Although mere colloquy between counsel and the court is insufficient to perfect the

record, the statement of a prosecutor or defense attorney in his or her "place" and "for the record"

                                                  13
is prima facie true and, if not objected to, it serves in the nature of a stipulation. Morris v. State,

228 Ga. 39, 48-49 (11) (184 SE2d 82) (1971).' Staples v. State, 209 Ga. App. 802 (434 SE2d

757)." Rector v. State, 213 Ga. App. 450, 451 (1), n.1 (444 SE2d 862) (1994). See also

Whitehead v. State, 96 Ga. App. 382, 384 (100 SE2d 139) ("Attorneys are officers of the court,

and a statement to the court in his place is prima facie true and needs no further verification

unless the same is required by the court or the opposite party."

        Permitting a prosecutor to call the defendant's attorney as a witness "inevitably confuses

the distinctions between advocate and witness, argument and testimony, [and] is acceptable only

if required by compelling and legitimate need." Conversely, permitting a defendant to call his

prosecuting attorney as a witness, therefore, "inevitably confuses the distinctions between

advocate and witness, argument and testimony, [and] is acceptable only if required by

compelling and legitimate need." United States v. Schwartzbaum, supra, 253. Because these

concerns implicate fundamental tenets of our adversarial system, we adopt the federal standard.

Accordingly, we hold that a defendant must demonstrate a compelling need before a

participating prosecutor will be permitted to testify. State v. Thompson, 20 Conn. App. 290, 295-

297 (Conn. App. Ct., 1989).

        To be sure, an accused's right to call relevant witnesses and to present a complete defense

may not be abrogated for the sake of trial convenience or for the purpose of protecting a United

States Attorney from possible embarrassment while testifying, if he possesses information vital

to the defense. But here, the trial court is fully justified in requiring Defendant to indicate in

advance the general nature of the testimony he desires to elicit from the above stated employee

of the Fulton County District Attorney’s Office before the trial court rules that the above

referenced person be called to testify. Gajewski v. United States, 321 F.2d 261, 268-269 (8th

                                                  14
Cir., 1963).

           The trial court has broad discretion in determining whether the defense will be allowed to

call a prosecuting attorney to the witness stand and whether the prosecutor will be permitted to

continue trying the case after testifying. Cf. Hogervorst. See also United States v. Birdman, 602

F.2d 547 (3d Cir.1979); United States v. Maloney 241 F.Supp. 49 (W.D.Penn.1965).

    III.          DEFENDANT HAS PRESENTED NO REASON TO JUSTIFY
                  DISQUALIFICATION OF THE FULTON COUNTY DISTRICT
                  ATTORNEY’S OFFICE

           Georgia law requires a finding of actual conflict – theoretical or speculative conflict will

not be sufficient. Williams v. State, 258 Ga. 305, 314 (2)(B) (369 S.E.2d 232) (1988);

Whitworth 275 Ga. App. 790, (1)(b), (622 S.E.2d 21) (2005), citing Lyons v. State, 271 Ga. 639,

640 (2) (522 S.E.2d 225) (1999). Georgia law expects prosecutors to be advocates and

“necessarily partisan.” Scott v. State, 53 Ga. App. 61 (185 S.E. 131) (1936), aff’d, 184 Ga. 164

(190 S.E. 582) (1937). Georgia law does not automatically disqualify an entire prosecutor’s

office because one prosecutor may be disqualified. State v. Sutherland, 190 Ga. App. 606 (379

S.E.2d 580) (1989), citing Frazier v. State, 257 Ga. 690, 693 (9) (362 S.E.2d 351) (1987).

           Under Georgia case law and the Georgia standard for disqualification, Defendant has not

met his burden of showing actual conflict or forensic misconduct. Defendant’s presents facts in

the following sections and the State will discuss those facts as they may apply to Georgia law.

           Disqualification is not mandated in order to assure a fair trial, and Defendant has not

shown that an actual conflict exists. Scott v. State, 53 Ga. App. 61, 68 (185 SE 131), Whitworth

v. State




                                                    15
       (A)     Actual conflict standard

       The Supreme Court of Georgia in a later opinion, Lyons v. State, 271 Ga. 639, 640 (2)

(522 S.E.2d 225) (1999) stated that such a conflict of interest must be more than a “theoretical or

speculative conflict,” an actual conflict must be involved. Whitworth v. State, 275 Ga. App. 790

(622 S.E.2d 21) (2005). That a showing of actual conflict must occur before disqualification is

proper was recently supported by the 11th Circuit. Judge Robert Story, in an order on a defense

motion to disqualify an Assistant United States Attorney in the trial against former Atlanta

Mayor Bill Campbell said the motion was premature because it was “based on the mere

possibility that the prosecution would conduct itself in such a way as to blur the distinction

between advocate and witness.” Judge Won’t Nix Prosecutor for Campbell, Fulton County

Daily Report, October 26, 2005, p.1. In Campbell, as here, no actual conflict has been shown.

       (B)     Forensic Misconduct Standard

       Forensic misconduct has been described as the improper expression of the prosecuting

attorney of his personal belief in the defendant’s guilt. Williams, 258 Ga. at 315. In Vermont

“[P]rosecutor's forensic misconduct has been defined as ‘any activity by the prosecutor which

tends to divert the jury from making its determination of guilt or innocence by weighing the

legally admitted evidence in the manner prescribed by law.’” In Re J.S., 436 A.2d 772 (140 Vt.

230) (1981).

       In order for this court to find that disqualification is required because of forensic

misconduct on the part of a prosecutor the Defendant must show that there has been an improper

expression of the prosecuting attorney of his personal belief in the defendant’s guilt. Williams,

258 Ga. at 315. Additionally, the Williams court also said that the statements must be part of a

calculated plan to prejudice the defendant in the minds of jurors, or whether such statements

                                                 16
were inadvertent, though improper. Williams, does hold that simply because a statement made

by a prosecutor may be improper there is no per se rule requiring disqualification. Williams,

supra at 315 (c).

        Additionally, there is a legal standard embodied in Rule 3.6 that requires the trial court to

balance interests of the defendant against First Amendment rights. The legal standard requires a

finding that the extra judicial statements will have a substantial likelihood of materially

prejudicing the trial. Atlanta Journal-Constitution v. State, 266 Ga. App. 168, 170 – 171 (596

S.E.2d 694) (2004) (Emphasis in original).

        Therefore, it would seem to be incumbent upon Defendant to do more than simply allege

a violation of the ethical rules. It appears that the appellate courts require a showing of a

substantial likelihood of material prejudice. And, because no material prejudice is shown, the

State respectfully requests that this Court properly deny the renewed motion.

        (C) Speculation is Inadmissible

        Courts have allowed disqualification of government counsel in limited circumstances.

See, e.g., Young v. United States, 481 U.S. 787, 807 (95 LE2d 740, 107 SC 2124) (1987) (actual

conflict of interest because appointed prosecutor also represented another party); United States v.

Heldt, 668 F2d 1238, 1275 (D.C. Cir. 1981) (bona fide allegations of bad faith performance of

official duties by government counsel in a civil case); United States v. Prantil, 764 F2d 548, 552-

53 (9th Cir. 1985) (prosecutor who will act as a witness at trial). Further, because disqualifying

government attorneys implicates separation of powers issues, the generally accepted remedy is to

disqualify "a specific Assistant United States Attorney . . ., not all the attorneys in" the office.

Crocker, 159 F. Supp. 2d at 1284. In light of these principles, every circuit court that has

considered the disqualification of an entire United States Attorney's office has reversed the

                                                  17
disqualification. See Whittaker, 268 F.3d 185 (3rd Cir. 2001); Vlahos, 33 F.3d 758 (7th Cir.

1994); Caggiano, 660 F2d 184 (6th Cir. 1981)." United States v. Bolden, 353 F3d 870 (10th Cir.

2003).

IV.      BAR THE DEATH PENALTY

         The thought processes and strategies of attorneys are protected under the work product

privilege. Specifically, the Georgia Supreme Court has "repeatedly rejected challenges to the

legislature's determination that district attorneys should have the discretion to decide whether a

murder defendant meets the statutory criteria for the death penalty and whether to pursue the

death penalty when a defendant is eligible." Terrell v. State, 276 Ga. 34, 42 (5) (572 SE2d 595)

(2002). Accord Jenkins v. State, 269 Ga. 282, 285 (498 SE2d 502) (1998); McClain v. State, 267

Ga. 378, 389 (477 SE2d 814) (1996); Crowe v. State, 265 Ga. 582 (458 SE2d 799) (1995). See

also Gregg v. Georgia, 428 U.S. 153, 199 (96 SC 2909, 49 LE2d 859) (1976) (Stewart, Powell,

Stevens, JJ., rejecting constitutional challenge to prosecutors' discretion to choose when to

pursue the death penalty against an indicted murder defendant).

         The defendant again cites no law supporting his requested remedy that the Court require

the State to withdraw the death penalty from this case. It is clear from the wording of the

Defendant’s motion that he seeks to deprive the duly elected and sworn district attorneys of this

State of their own, legislatively recognized discretion in deciding when to seek the death penalty.

         The United States Supreme Court has expressly upheld Georgia's system of imposing the

death penalty and rejected a defendant's claim that the system was unconstitutional given a

prosecutor's “unfettered authority to select those persons whom he wishes to prosecute for a

capital offense.” Gregg v. Georgia, 428 U.S. 153, 199 (96 S. Ct. 2909; 49 L. Ed. 2d 859) (1976).

The existence of prosecutorial discretion has been upheld in other jurisdictions as well. See

                                                18
Proffitt v. Florida, 428 U.S. 242, 253, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976) (rejecting

petitioner's contention that the Florida death penalty system is arbitrary because the prosecutor

decides whether to charge a capital offense and accept or reject a plea to a lesser offense); See

also Black v. Bell, 181 F. Supp. 2d 832 (M.D.TN, 2001) (citing “Campbell v. Kincheloe, 829

F.2d 1453, 1465 (9th Cir. 1987)(Supreme Court has rejected argument that death penalty statute

is unconstitutional because it vests unbridled discretion in prosecutor to decide when to seek the

death penalty). See also United States v. Davis, 904 F. Supp. 554, 559 (E.D.La. 1995)(“[A]

general challenge to the ability of the government to decide to pursue capital punishment against

certain defendants must fail.). The decision in Bush v. Gore, a case involving the method of

counting ballots for a presidential election, does not require a different result. Accordingly,

Respondent is entitled to summary judgment on this claim.”); Threadgill v. State, 146 S.W.3d

654, 671 (TX 2004); Rayford v. State, 125 S.W.3d 521, 534 (2003); State v. Cross, 156 Wn.2d

580, 625 - 626 (132 P.2d 80, 101) (2006).

       Absent a showing that the District Attorney acted in an unconstitutional manner in this

case, Defendant cannot invade the Prosecutor’s exercise of discretion in seeking the death

penalty against him. Rower v. State, 264 Ga. 323 (443 S.E.2d 839) (1994).

       “Whether the death penalty will be sought requires exercise of professional judgement as

to whether aggravating circumstances exist and whether the imposition of the death penalty

should be submitted to a jury for a determination. The final decision is entirely with the jury.”

Crowe v. State, 265 Ga. 582 (458 S.E.2d 799) (1995). As long as the circumstances of the crime

involve one or more of the aggravating factors listed in O.C.G.A. §17-10-30(b)(7), then the

district attorney’s discretion is within constitutional bounds.



                                                 19
   V.      USE OF EVIDENCE FOR IMPEACHMENT

        In the defendant’s motion he contends that evidence attained in these hearings would be

admissible as impeachment evidence against a state’s witness. This is an erroneous

interpretation of Georgia law.

        O.C.G.A.§ 24-2-2 states “The general character of the parties and especially their conduct

in other transactions are irrelevant matter unless the nature of the action involves such character

and renders necessary or proper the investigation of such conduct.” Georgia courts have

interpreted this statute to mean that previous acts of misconduct are not valid impeachment

evidence unless those acts resulted in a conviction. Gilbert v. State, 265 Ga. App. 76, 78 (593

S.E.2d 25)(2003) (“…specific instances of misconduct cannot be used to impeach a witness'

credibility unless the misconduct has resulted in a criminal conviction.”)

        This was further clarified in 2005 when O.C.G.A. § 24-9-84.1 was signed into law. This

statute makes clear in section (a) that the only bad conduct usable as impeachment evidence is

that bad conduct for which there is a criminal conviction. Additionally, O.C.G.A. § 24-9-84 (1)

makes clear that a witnesses general bad character may be impeached only by reputation for

truthfulness or untruthfulness.

        It has been a longstanding rule in Georgia jurisprudence that “the testimony of a witness

that he has done some act that the law makes a crime is not a legal method of impeachment.”

Durrett v. State, 135 Ga. App. 749 (219 S.E.2d 9)(1975); Richards v. State, 157 Ga. App. 601

(278 S.E.2d 63)(1981); Brooks v. State, 182 Ga. App. 144 (355 S.E.2d 435)(1987); Scott v.

Chapman, 203 Ga. App. 58 (416 S.E.2d 111)(1992); Vincent v. State, 210 Ga. App. 6 (435

S.E.2d 222)(1993).

        As the Court can plainly see only instances of bad conduct that resulted in criminal

                                                 20
convictions are usable as impeachment evidence against a witness. Gordillo v. State, 255 Ga.

App. 73 (564 S.E.2d 486)(2002) (impeachment dealing with specific bad acts is improper). This

principle has been applied in various instances in Georgia law. For example in Wetta v. State,

217 Ga. App. 128 (456 S.E.2d 696)(1995), Wetta sought to attack the victim's credibility with

evidence that she had an affair with a married man and then threatened to tell his wife unless he

gave or loaned her money. In responding to the allegation the Court of Appeals acknowledged

that O.C.G.A. § 24-9-84 provides that a witness may be impeached by a showing of general bad

character, specific acts of bad character are not admissible, but held that the proffered testimony

of related solely to specific bad acts and not to the general bad character of the victim. Therefore,

the testimony was not admissible.

       Georgia courts have extended this rule to protect law enforcement officers as well. See,

Brooks v. State, 182 Ga. App. 144 (355 S.E.2d 435)(1987) (During the trial, appellant's counsel

asked Officer Spratlin if he had stolen from his former employer. The Court refused to allow the

evidence in holding, “It is necessary that a copy of the record of conviction be introduced.

Accordingly, the testimony of a witness that he has done some act that the law makes a crime is

not a legal method of impeachment.”).

       In Woods v. State, 210 Ga. App. 172 (435 S.E.2d 464)(1993) the defense was not entitled

to challenge the former officer's credibility by questioning him about allegations of illegal drug

use unrelated to this case to raise an inference that he was not worthy of belief. The Court held

“[I]nstances of specific misconduct may not be used to impeach a witness' character or veracity

unless the misconduct has resulted in the conviction of a crime involving moral turpitude, and

the proper method of proving such a conviction is by the introduction of a certified copy thereof.

(Citations and punctuation omitted.) Hall v. State, 180 Ga. App. 881, 884 (350 S.E.2d 801)

                                                 21
(1986); Brooks v. State, 182 Ga. App. 144, 146 (355 S.E.2d 435) (1987). "[E]xcept as

specifically allowed by law, [evidence] of a witness' conduct in other transactions, criminal or

otherwise, having no logical connection with the subject matter of his testimony[, is

inadmissible]. . . . Rewis v. State, 109 Ga. App. 83, 86 (134 S.E.2d 875) (1964)." Scott v.

Chapman, 203 Ga. App. 58, 59 (416 S.E.2d 111) (1992).”

Conclusion and Prayers for Relief

         The statutory and case law in Georgia is unequivocal and abundantly clear, impeachment

of a witness is limited to general character for truthfulness (O.C.G.A. § 24-9-84) and by certified

copy of prior convictions (O.C.G.A. § 24-9-84.1). The State respectfully requests this Court to

issue an order barring any impeachment evidence not specifically delineated by Georgia

statutory or case law, and that prior to the questioning of any witness regarding impeachment

evidence that is not character for truthfulness or prior convictions, the parties should bring the

issue to the Court at side bar or out of the presence of the jury for a determination of

admissibility.

   IV.      CONCLUSION

         The State contends that the witness and duces tecum subpoenas issues for District

Attorney Howard should be quashed as any testimony that may be sought would not relate to any

material or relevant issue in the case at bar. Further, the documents requested in attachment “A”

are protected from disclosure for the above stated reasons. The motions of the defendant are

mere attempts to slander and smear a former employee and serve no basis in law. The testimony

is not evidence of misconduct by the State. The testimony does not create impeachment

evidence. The allegations do not rise to the level of disqualification under either the forensic

misconduct standard or the conflict of interest standard.

                                                 22
       Defendant also fails to satisfy the requirement that prior to any subpoena issued to a

prosecutor the defendant must show that the evidence is not attainable by any other source.

Defendant has Ms. Abramson, Mr. Csehy, Mr. Sugarman, Mr. Morris and Mr. Kadish on their

witness list. The testimony of Ms. Ross and Mr. Howard would add nothing to their testimony.

Further, any testimony from Mr. Howard and Ms. Ross regarding the actions of any former

employee would be hearsay and not admissible.

       For these reasons the State respectfully requests that this Court quash any and all

subpoenas issued for District Attorney Howard and Ms. Sheila Ross.

       Respectfully submitted this   29th    day of August 2008.



                                                    /s/
                                             Christopher M. Quinn
                                             Senior Assistant District Attorney
                                             Atlanta Judicial Circuit




Office of the Fulton County District Attorney
136 Pryor Street SW, 3rd Floor
Atlanta, Georgia 30303
TEL: (404) 730-7007
FAX: (404) 730-5398

                                                23
                                 CERTIFICATE OF SERVICE



        I hereby certify that I have served within and foregoing response to Defendant’s motion
together with any and all attachments, to the attorney for the defendant, by electronic filing to the
attention of:

Mr. Henderson Hill
741 Kenilworth Avenue, Suite 300
Charlotte, North Carolina 20204

Mr. Robert McGlasson
1024 Clairemont Avenue
Decatur, Georgia 30030

Ms. Penelope Marshall
P. O. Box 13025
Wilmington, Delaware 19850

Mr. Josh Moore
Office of the Georgia Capital Defender
225 Peachtree Street, NE, Suite 900 South Tower
Atlanta Georgia 30303-1727


       This    29th    day of August 2008



                                                     /s/
                                              Christopher M. Quinn
                                              Senior Assistant District Attorney
                                              Atlanta Judicial Circuit




                                                 24

				
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