Attorneys for three defendants who oppose the construction of Atlanta’s planned public safety training center have filed a motion seeking to disqualify the Attorney General’s Office from prosecuting the RICO case, alleging that attorney-client privileged information was accessed and distributed. The AG’s office filed a response denying the allegations.
In the motion, the defense lawyers who represent Marlon Kautz, Savannah Patterson and Adele MacLean asked Judge Kimberly Esmond Adams to disqualify the AG’s office and the Atlanta Police Department from the case and dismiss the indictment against their clients.
Attorneys filing the motion were Don Samuel, who represents Kautz, Joel McDurmon, who represents MacLean, and Kristen Novay, who represents Patterson.
Defense attorneys alleged that the agencies accessed attorney-client privileged information after a raid on their clients’ home on May 31, 2023 and later shared that information with police and reviewed the privileged information. Officials seized numerous computers, phones and other digital and storage devices.
In a written response, prosecutor Hallie Scott Dixon denied all the allegations made in the motion.
“Not one of those assertions is true,” Dixon wrote. “Indeed, defendant’s motion relies on its own false assumption and assertions to a degree that makes the illegitimacy of the motion itself plain.”
In the motion, attorneys said they notified the AG’s office that all three had retained counsel before the raid occurred and that there was bound to be some attorney-client privileged information, including emails and text messages, among the seized items
Defense attorneys advised lead prosecutor John Fowler to employ a “filter team” to ensure that the privileged information was not reviewed by anyone involved in the case and requested to be involved in preparing the protocol to ensure no problem would arise.
“As for the filter team, we will get one,” Fowler told Samuel in an email weeks after the May 2023 raid.
In her response, Dixon said said the suggestion of a filter team was only for the seized devices and defense attorneys made no previous mention of the Gmail records and prosecutors didn’t know a filter team was also needed for the email communication.
Credit: John Spink
Credit: John Spink
Ten months later, Fowler told Samuel that the AG’s office had downloaded all the information from the seized devices but would not review or share any of the material until a filter team scrubbed the material, according to the motion.
Defense attorneys argued that the AG’s office and Atlanta Police had already secured all of MacLean’s and Patterson’s emails after issuing a search warrant to Google on July 7, 2023, weeks after the AG’s office had agreed that a filter team was needed when reviewing defendants seized devices.
“Included in the material sent by Google were detailed memoranda prepared by counsel for all three defendants, and communications from the defendants to counsel, all of which were privileged and clearly not open to inspection by the Assistant Attorneys General, their staff, or the Atlanta Police Investigators,” Samuel wrote in the motion.
Attorneys say that no filter team was ever put in place.
“No filter team was initiated, no effort was made to protect the attorney-client privilege, and the search warrant itself did not provided for the use of a filter team, despite the AG’s awareness of the need to have a filter in place,” attorneys wrote before adding that the judge who signed the warrant was not advised about the filter team either.
In her written response to the motion, Dixon stated that the AG’s office had not reviewed the emails. However, she did say APD had review the emails and prepared reports but said prosecutors had not read those reports or had any communication with APD about the contents of the emails.
“Assuming privileged communications regarding defense strategy are, in fact, contained in the Gmail records, no prosecutor has read any of the defendant’s emails or a report about the defendant’s emails, much less an email between defendant and counsel,” Dixon wrote.
Dixon clarified that the emails were obtained by an APD detective before the indictment was even released “as part of the investigation into relevant financial transactions without knowledge that attorney-client communications were contained in those emails,” and that prosecutors had no knowledge it contained attorney-client privileged information.
“Those emails have been produced in discovery, but the contents remain unread, unreviewed, and unknown to the prosecution,” Dixon wrote.
In a response to the AG’s office response, defense attorneys argue the AG’s office was repeatedly warned about the privileged information, but simply ignored them, calling their actions “reckless” and “avoidable.” The attorneys also called it “unconscionable” that the AG’s office had distributed discovery to people without even looking at the contents.
“It further leads to the ineluctable conclusion that prosecutors have not complied with the statutory rules of discovery, but rather have provided nothing other than a “dump” of millions of pages of documents and detritus that may or may not have any bearing on this case,” attorneys wrote.
Attorneys also noted that the privileged communication was distributed to all defense teams as part of discovery in the RICO case.
Defense lawyers argues that the information should have never been distributed to the other 58 defendants, other members of the AG’s office, Atlanta Police, GBI or any other law enforcement agency or member of the prosecution team.
Credit: John Spink
Credit: John Spink
Defense attorneys said that the AG’s office allowed Atlanta Police to review all the emails before sending them to all the attorneys involved in the case. Samuel added that something similar was done with other defendant’s email accounts.
“There is no way to put the genie back in the bottle,” defense attorneys wrote, adding that the documents included advice about the activities of the Atlanta Solidarity Defense Fund, how to defend against prosecution or seizure of money and a review of the fund’s activities.
Months after the raid, the Attorney General’s Office issued an indictment charging 61 defendants, including Kautz, Patterson and MacLean, with violating the state’s RICO act. The indictment also names them, as bail funds organizers, who were arrested in May 2023 during a raid at a home on Mayson Avenue for alleged actions taken as executives with the nonprofit Network for Strong Communities to support the Defend the Atlanta Forest, which prosecutor allege is an organization responsible for numerous acts of vandalism surrounding the training center site. All three face one count of RICO and 15 counts of money laundering in the indictment.
Attorneys requested the indictment against their three clients be dismissed, for the AG’s office to be removed from prosecuting the case, asked that the Fowler and prosecutors in the case have no further discussions about the motion so that “further encroachment of the attorney client privilege is not perpetrated by the prosecutors,” remove any law enforcement agency who accessed the documents including Atlanta Police.
Defense attorneys requested a hearing, in which prosecutors will appear as witnesses. They also asked for the AG’s office to document every person who accessed the privileged information. Dixon asked for the defendant’s motion be denied, stating that a simple conversation with the prosecution team would have cleared any issues up before a motion was filed.
“Instead of exercising minimal diligence before filing a motion full of recklessly inaccurate assumptions and representations to the Court, the Defense chose instead to file its erroneous and inflammatory motion without making any effort to communicate with the prosecution or otherwise inquire about the situation,” Dixon wrote.
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