She had sought to recuse herself because of the conduct of her predecessor, Paul Howard, who brought felony murder charges against Rolfe after just five days of investigation. Howard’s use of subpoenas in the Brooks case is under investigation by the GBI, and Willis told The Atlanta Journal-Constitution that past and current members of the Fulton DA’s office are likely to be called as witnesses.
Fani Willis speaks at her law firm in Midtown Atlanta on August 4, 2020, about a week before winning a runoff election against Fulton County's longtime district attorney Paul Howard. (ALYSSA POINTER / ALYSSA.POINTER@AJC.COM)
In her letter seeking recusal, Willis wrote that Howard’s actions “create sufficient question of the appropriateness of this office continuing to handle the investigation and possible prosecution of these cases.”
But Carr found no conflict, telling Willis, “the matters are personal to your predecessor” and “do not pertain to you or your office.”
Katie Byrd, a spokesperson for the AG’s office, disputed rumors that Carr couldn’t find a prosecutor willing to take on the case. No such solicitation was ever made, she said.
“When we received the January 25th request, our office reviewed internally and arrived at the conclusion laid out in the letter — that the Fulton DA’s request failed to meet the legal threshold to seek the appointment of another prosecutor,” Byrd said.
According to Willis, Carr’s decision contradicted advice the AG’s office gave her at a Prosecuting Attorneys Council meeting in December.
“The District Attorney disagrees with the Attorney General’s conclusion, as it is contrary to the longstanding practice and position of the Attorney General’s office in these matters,” Willis said in her written statement.
Georgia Attorney General Chris Carr speaks at a press conference at the state Capitol on November 24, 2020. STEVE SCHAEFER / SPECIAL TO THE AJC
Credit: Steve Schaefer
Credit: Steve Schaefer
Carr’s move came as a surprise to some in the legal community. Clark Cunningham, an attorney and legal ethics professor at Georgia State University, said Willis demonstrated sound judgment in passing the case over to the AG.
“The disqualification rule is: When in doubt, don’t,” he said. “When you have a district attorney who says, ‘yes there’s a substantial risk,’ to not honor that request is puzzling.”
Richard Hyde, chief investigator for past attorneys general Mike Bowers and Thurbert Baker, said he does not recall any previous AG denying a recusal.
“We never thought it was up to the attorney general to decide the propriety of the appointment requests,” Hyde said.
That viewpoint of Hyde, Cunningham and others is supported by the Georgia Court of Appeals ruling in 2016 in State v. Mantooth. The court found “counsel is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.” In the current cases involving APD officers, that counsel would be Willis.
The Fulton DA still has options, though trying the cases herself could provide fertile ground for any future appeal, Cunningham said.
He said Willis could choose not to oppose a motion from Rolfe’s attorneys to disqualify the Fulton DA. If there were a court order disqualifying Willis, Carr would have no choice under Georgia law but to appoint a new prosecutor, according to Cunningham.
In his motion, defense attorney Noah Pines accused then-DA Howard of making “ethically inappropriate” statements, if not outright misstatements of fact, to the public about the case.
In a recent interview with The Atlanta Journal-Constitution, Willis said that motion was pivotal in her decision to seek recusal.
“Sometimes as a lawyer you’ll be in a trial and you get a gut punch when you know the other side has got you,” she said. “And this was one of those times.”
To those directly involved in these cases, Carr’s decision left them with more questions than answers.
“While we were disappointed that the Fulton DA made the decision to request a transfer of these cases, we were hopeful that Attorney General Carr would give them to a prosecutor who would pursue these cases vigorously,” said attorneys Chris Stewart, Justin Miller and Mawuli Davis in a statement. They represent Brooks’ family and the two college students stunned with police Tasers — Messiah Young and Taniyah Pilgrim.
“Now we are left in a state of limbo,” the attorneys’ statement said. “Our clients deserve better.”