A district attorney in Georgia takes an oath to prosecute those charged with crimes “impartially and without fear, favor, or affection.” The burglar who breaks into your home, the rapist who sexually assaults a woman, the dealers selling drugs on our street corners to our children, the intoxicated individual behind the wheel who kills our loved ones are all prosecuted by district attorneys and their staff.
None of them have a right to the prosecutor of their choice. The thousands of defendants who are routinely prosecuted by district attorneys do not get to dictate who is allowed to prosecute them. But you wouldn’t know that from what has been happening in District Attorney Fani Willis in Fulton County Superior Court.
I have been a lawyer for almost 40 years. I served as a prosecutor in Fulton for 11 years. In all that time, I have never seen a defendant seek or a judge hold a hearing on the private life of a prosecutor to determine if they are conflicted from trying the defendant for a crime for which they have been indicted by an independent grand jury comprised of impartial citizens residing in the county. And I doubt that any prosecutor across the country has ever seen or been a part of such a hearing.
Credit: Courtesy
Credit: Courtesy
The criminal justice system is an adversarial system. District attorneys are not neutral; they are advocates for the public. A prosecutor’s No. 1 priority, the Fulton County district attorney’s No. 1 priority, is to prosecute those individuals indicted by a grand jury who commit crimes within their locale.
The district attorney prosecutes cases on behalf of the citizens of the county from which they were elected and the indictment against the defendant is always styled as “State of Georgia v....” That is because the defendant is charged with violating the laws of our state, which are designed to protect us, our friends and family.
Because of their role as advocates, prosecutors are not subject to the same disqualification standard as judges. A judge may be disqualified based on the appearance of a conflict of interest. A district attorney in Georgia can only be disqualified in limited instances if there is an actual conflict of interest. An actual conflict of interest generally requires a personal financial stake in the outcome of the proceeding. Eighteen ethics experts, defense attorneys and former federal and state prosecutors have filed an amicus brief in the Fani Willis hearing pointing out that applicable standard under Georgia law.
So long as the prosecutor does not have a financial stake in the outcome of a trial, there is no conflict of interest. What we have been subjected to over the course of almost two months is the dissection of a prosecutor’s personal life. The hearings on the issue were worthy of a reality TV show. But no evidence that any attorney representing the citizens of the State of Georgia had a personal financial stake in the outcome of the criminal trial of any of the defendants was presented.
So the question is, why did a judge allow defendants who have been formally charged with crimes by an impartial and independent grand jury in the 2020 election interference case conduct a public circus “reality TV” hearing about the personal life of a district attorney?
It appears this is happening because of the status of the defendants. Some of the individuals charged in the 2020 election interference case are well known public figures including former President Donald Trump. But their status should not be allowed to upend the normal course of proceedings in a criminal trial.
Otherwise, the standard for prosecutors becomes that salacious allegations merit a public hearing on whether a district attorney should be disqualified: our criminal system will halt as ingenious defendants and their attorneys will use this an avenue to have the prosecution delayed and derailed and the bar to disqualify a prosecutor would become lower that what the law allows.
Allowing the status of the defendants to drive how cases are handled by the courts has the potential to do untold harm. Condoning defendants attacking prosecutors with spurious arguments not supported by Georgia law condones an attack on more than just the prosecutor: It attacks the foundations of our system of justice.
While there has been tremendous coverage and opinions on the issue by print and television media, analysts and politicians, at the end of the hearings, there was no smoke and definitely no fire warranting disqualification of the Fulton County District Attorney’s Office.
Adherence to the rule of law requires the court to move the case forward because there has not been any showing that any prosecutor has a personal financial stake in the outcome of the trial.
Suzanne W. Ockleberry is a former Fulton County Chief Assistant District Attorney and former co-chair of the Fulton County District Attorney Willis’ Integrity Transition Team.
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