“If this isn’t an explicit threat, it’s awfully close,” said Amy Lee Copeland, a criminal defense attorney and former Georgia-based federal prosecutor.
Kutti never refers to Freeman by name in the video, which was recorded last week and first reported by MeidasTouch, a left-leaning news website, over the weekend. But she discusses video which was recorded in a police station — portions of her January 2021 conversation with Freeman were captured on police body cam video in a Cobb County precinct. She also references “your mama’s fingerprints,” which seemingly refer to Freeman’s daughter, Shaye Moss, who also served as a poll worker at State Farm Arena on election night 2020.
“There’s a woman sitting somewhere who knows this whole thing is a lie. Who knows I never did anything to her. Who knows I never — who knows she begged me for help,” Kutti said.
Kutti, who previously worked for the Kanye West and R. Kelly, was indicted on three felony counts in August for her alleged role in Freeman’s harassment. She was charged with racketeering, influencing witnesses and conspiracy to commit solicitation of false statements and writings.
She is one of the 15 remaining defendants in Fulton’s election interference case involving former President Donald Trump.
‘Round peg into a square hole’
Kutti’s $75,000 bond agreement bars her from performing any “act to intimidate any person known to her to be a codefendant or witness in this case.” She’s also banned from posting on social media, including Instagram, about the case’s facts.
Steve Greenberg, Kutti’s attorney, said “any effort to interpret Ms. Kutti’s Instagram as a threat is, like the underlying case, an attempt to fit a round peg into a square hole.”
“Ms. Kutti has a First Amendment right to comment and certainly did not violate her bond,” Greenberg said.
It will ultimately be up to Fulton DA Fani Willis to decide whether to seek jail time, stronger terms for Kutti’s bond agreement — or even separate charges of intimidating a witness or obstruction.
A spokesman for DA Fani Willis declined to comment.
If recent actions are any guide, Willis won’t go easy on Kutti.
Last month, Fulton’s top prosecutor sought to revoke the bond of Harrison Floyd, a co-defendant who’s been accused of conspiring with Kutti and others to produce a false confession from Freeman.
Citing comments Floyd made on social media and in conservative podcasts, including about Freeman, Willis said Floyd posed a “significant risk of intimidating witnesses and otherwise obstructing the administration of justice.”
Fulton Superior Court Judge Scott McAfee later ruled that Floyd had technically violated the terms of his bond agreement but said the violations did not merit jail time. He instead modified Floyd’s bond agreement to ban him from speaking or making social media posts about witnesses or others charged in the case.
McAfee’s order appears to have worked so far. Floyd hasn’t posted to his more than 30,000 followers on X, formerly known as Twitter, since the hearing.
Crossing the line?
Some observers viewed McAfee’s Floyd ruling as setting a line in the sand for other defendants. Legal analysts interviewed by The Atlanta Journal-Constitution said Kutti’s remarks appear to have crossed it.
“I think we definitely could see the DA wanting to take action on it,” said defense attorney Noah Pines, a former DeKalb County prosecutor.
Pines said that Kutti appears to violate her bond agreement in two places: by seemingly threatening Freeman and posting on social media about the facts of the case, including mentioning video footage at the police station.
Copeland said other comments Kutti made in the video, including about Trump’s political base being a “militia,” is further suggestive of violence and armed conflict.
“There’s a chance that the judge may say, ‘let’s make this explicit. If anything like this happens again you’re out of luck and going back to jail,’” said Copeland. “He may do that, but when you hear this in context of the entire 54-minute clip, it’s very troubling.”
Anthony Michael Kreis, a Georgia State University law professor, said it will be up to the DA’s team to prove in court what Kutti meant in her remarks, that she violated her bond and the public interest favors putting her behind bars.
“I don’t think they’ll have a hard time with that showing here,” Kreis said on X.
New defense strategy
Kutti made her Instagram remarks as part of a push to raise money for her legal defense fund.
She follows other defendants, including Trump and Floyd, who have sought to harness outrage on social media as part of their legal strategy and to enhance their public profile.
Trump has made a career out of name-calling his opponents, including, most recently, judges and prosecutors. And Floyd’s fights with Fulton prosecutors, stemming from his drama-filled surrender, has helped him raise more than $345,000 to date and become a cause célèbre for some corners of the far right.
Kutti has had less success. As of Monday afternoon, she had raised $940 out of her goal of $250,000 on the Christian fundraising platform GiveSendGo.
“They’re really trying to litigate this in the court of public opinion,” Copeland said. She noted that ultimately for a jury to acquit, defendants need only one juror to hold out.
Pines was skeptical of Kutti’s First Amendment defense, saying she accepted a bond agreement that restricts those rights in exchange for staying out of jail. He noted that even if prosecutors opt to do nothing now, Kutti’s statements can come back to bite her in the future.
“If I was the State, I would be curating every post that’s made to see if I can use it in my trial,” Pines said.
Kutti was allegedly recruited by Floyd to speak with Freeman after a white pastor wasn’t able to connect with the poll worker, according to the indictment. The thinking was that Kutti could be more effective speaking with Freeman since they are both Black.
Kutti traveled to Freeman’s Cobb County home on Jan. 4, 2021, roughly a month after Trump’s personal attorney, Rudy Giuliani, first singled out Freeman and Moss by playing portions of surveillance video from State Farm Arena to state legislators.
Kutti told Freeman she was in danger and purported to be a crisis manager who could help. The grandmother initially ignored her but after calling the cops eventually agreed to speak with Kutti at a Cobb County police station.
During that conversation, which was partially captured by police body camera footage, Kutti said Freeman was “a loose end for a party that needs to tidy up.” She told Freeman that “an armed squad of federal” officers would “approach” Freeman and her family within 48 hours and said she could help if Freeman confessed to committing election fraud.
Investigations from the FBI, GBI and Georgia Secretary of State found that Freeman did nothing wrong.