Judge considers new motions in Trump Georgia indictment case

Shared from "Atlanta News First." - Streamed live on 14 Sept 2023
(https://www.youtube.com/watch?v=DzxwZR7vImU)
The judge overseeing the Georgia 2020 election racketeering case is scheduled to hear arguments Thursday related to requests by two of 'former' President Donald Trump’s co-defendants who are on track for a speedy trial.

FULL STORY: https://www.atlantanewsfirst.com/2023/09/14/trump-16-others-be-tried-separately-two-other-co-defendants/

Transcript at bottom of text

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Transcript.
0:11
all right uh if you are just joining us
0:19
right now you are looking live inside Fulton County Superior Court um where we are awaiting a hearing to
0:27
begin at any moment now um this is surrounding the massive
0:32
Georgia election meddling case in which the former president Donald Trump
0:38
um and 18 other co-defendants are charged with racketeering and a number
0:43
of other charges there you can see judge McAfee approaching the bench sitting
0:49
down there um sorry I'm working the let me try to get us some audio inside
0:54
the courtroom yes Mr grubman have you received express
1:01
permission from your client to waive his presence good morning your honor and yes we have all right Mr Rafferty yes your
1:06
honor good morning good morning so we have three motions teed up for
1:13
this morning and why don't we Dive Right In uh beginning with the motion to speak
1:20
with the grand jurors joined by Miss Powell that's
1:25
um just as a preliminary matter um the state intends to comply with all
1:32
of its legal and ethical obligations to turn over the uh the co-conspirator information
1:38
um with with with just the understanding that the reason the reason why the the
1:45
names of the co-defendants are not already in the indictment judge is that
1:50
it's it's um of course a frowned upon putting putting the individuals names if
1:56
they're not charged within the charging document we'll turn those over to the
2:02
court with uh what a request that that the court hold them uh under a
2:07
protective order so to speak to protect the identities of those individuals or to control I guess the public impact of
2:16
the names that are on that list all right so it sounds like you want to skip to number three the motion to
2:21
disclose the co-conspirators well just to do away with right kind of streamline
2:27
all right let's start with that one it might be the easiest to get into so uh let me make sure I'm understanding what
2:34
I'm hearing So you you're you're wanting to you you are willing to
2:40
go ahead and just give this list to the defense counsel and formally through the discovery
2:46
process I'd like to present it to the court okay the court can then distribute it to the defense Council as it sees fit
2:53
but it's it's the state's position that um because the practice of naming the
2:59
codependent the other the unindicted codependence or co-conspirators in the
3:04
indictment has been criticized the state is elected to do it this way in order to protect those individuals and those
3:11
names that are uh on this list so I'm tracking you completely there and I agree I think that's the standard
3:17
practice I I just I'm curious why I would be the the middleman it seems like we could take the folder and just give
3:23
it right to the defendants I think that would be the regular thing to do well I mean the court could impose a protective
3:28
order that all of the parties to this case are subject to about disclosure of Discovery to the media if that is the
3:35
concern of the government but we have a trial on October 23rd they have the list of co-conspirators they're consenting to
3:41
the motion why don't they just give us that information correctly sure I think we're all about to reach the same place
3:48
so uh the bottom line is it seems like this is a fairly straightforward request I think federally would be a bill of
3:54
particulars and those are fairly routinely approved so we can I can file an order if you want
4:02
me to but otherwise we'll say that the list of individuals 1 through 30 is
4:08
going to be disclosed to not only I would think these two defendants but uh the other 17 defendants through the
4:15
discovery process and obviously right now so in terms of a protective order if the
4:21
state's requesting one and the defense is not objecting we can certainly do that as well but otherwise it seems like
4:26
this is just a fairly routine part of the discovery we'll just look at the language of the protective order obviously uh any protective order of not
4:33
disseminating Discovery or information to the media would have to work both ways the state would also have to agree with that but we have the list now so
4:41
all right I was just about to say that so I'll go ahead and just enter a one sentence
4:46
order saying the motion is is Moot and presumably this list is numbered so it
4:52
can identify which count refers to which unindited conspirator and that sort of thing right yes sir all right and and
4:58
further just to streamland the today's arguments
5:04
more so the state does plan or intend to turn over the
5:11
transcript of Mr Chili's testimony given that he's charged in count 41 in the
5:17
indictment with perjury and that testimony is an integral part of
5:22
proving up our case okay so now we're moving on to number two the motion unseal the special grand jury
5:28
transcripts as do we think we've addressed everything we need to cover with the undynical conspirators all right
5:35
anything else Mr Rafa do you think we need to take up on that one all right thank you sir all right then uh let's
5:41
move on to number two so obviously it looks like the idea of the entire report
5:47
itself has been taken care of but the motion goes a bit further than that Mr Wade and it says that they should they
5:53
want to be able to inspect the entire transcript assuming there was one I don't know and any recordings and
5:59
essentially anything that the special grand jury produced so
6:06
let me just give kind of let me get your obviously I'll let the defense present their motion but let me first start with
6:11
where the state is in terms of what you think of that is disclosable and discoverable
6:18
if if we're if the state's following its standard open file policy just just
6:23
maybe give me a bit of a background about that and what you think is fair game here yes sir basically just this
6:29
state would contend that any transcripts any and all transcripts that uh have
6:35
been produced uh by the grand jury or the special purpose grand jury are not
6:40
discovered um and that defense counsel should not have access to them
6:46
I know that the court wants to hear further argument and that has this opportunity to put their their
6:52
case on but that's our position with the sole exception being Mr Chili's giving give him that Mr chili is directly
6:59
charged in count 41 of the indictment that's the exception and and what if some of these witnesses that testified
7:06
you call as a witness at trial so judge then we rely on actually the discovery
7:12
statute it talks about that um we would say that at that point when
7:19
the state has made the decision to call one of the witnesses that is
7:25
testified before the grand jury at that point the transcript becomes relevant and you turn it over
7:33
all right so we may have to talk some Logistics but we'll see where we end up so uh Mr grubman or Mr Roy uh your
7:39
motion you're on our way just take exception
7:45
with doing what they call Jenks material in federal court where they gave it to you at the last second because we have to craft a defense based on people and
7:51
then that's and that's what I was getting to Okay so if we look at the litigation that
7:57
happened before the special graduates
8:02
2022-ex-00024 I'd like to adopt the brief that was filed by the media companies asking for the release of all
8:08
these transcripts because they've got a lot of law that I've cited so we don't have to sort of go through all of it
8:13
um ocga 1512-101 lists out the requirements that a special brand jury needs to do
8:19
and that requirement includes interim reports that have to be presented to the judge as far as what their work is going
8:25
on I didn't know if there were transcripts but apparently there are in this case as what the prosecutionist says we know
8:32
that based on the report that was released there are 75 witnesses that testified before the grand jury which
8:38
I'm imagining were all recorded they've already told this court they're going to have 150 Witnesses so whether they
8:44
choose to call those Witnesses or not I'm entitled those transcripts to decide if we want to call them if there's an
8:50
impeachment material out there inconsistent statements or in fact exculpatory material that might have
8:55
been said by any of these people so I think we have an absolute right on the Discovery statute they have to present all the information from their case in
9:01
Chief to us as ordered by your scheduling order and there's no protection that's out there we then go
9:07
to 15-12-80 that gives you the criteria for publishing the special grand jury report
9:12
I've also cited the cases that talk about the secrecy issue sort of goes away hence the I think the four person
9:19
of the special grand jury went to the press and made all kinds of statements about these issues Olson versus state is
9:25
probably the seminal case that's 302 Georgia 288 2017 case and then I also
9:31
cited the in-ray Gwinnett County Special grand jury case that also required allowed for disclosure and said that
9:37
secrecy doesn't apply after they finish that site is in my brief as well your honor I would further
9:43
go back about 70 years and go to Dennis versus United States in the United States Supreme Court 86 Supreme Court
9:50
one eight four zero it's a 1966 case that also talks about requirements for
9:55
disclosure for grand jury transcripts in every federal case grand jury transcripts are made available to the defense they just have a different
10:01
statute as to when that Jenks material has to be released but it's not every transcript it's simply going to be the
10:07
witness that's called the witness Spirit you're asking for everything I don't know what exactly they recorded
10:14
So if they're talking about Witnesses that's fine but as your honor knows the grand jury is one-way traffic there's no
10:20
the D.A controls the information that's presented then so I don't know what it is they're giving them what it is
10:25
they're not giving them when we challenge the validity of the indictment which I've done in a separate brief as far as that goes so I would like
10:31
everything but at a minimum I think the law requires the witness statements whether they choose to use them or not doesn't
10:38
avoid the responsibility to given to us maybe I want to use it I'd like to know who those 75 people were that testified
10:44
under oath in front of that grand jury aside from Mr Chile as they've identified I don't think there's any way
10:49
really around that I think the law supports us and whether it's a protective order non-protective order
10:54
that's their choice we don't plan on sharing anything with the Press but we need it and our client
11:00
needs it to actually prepare for this case so I think the code sections the
11:05
case law even the Supreme Court case law and just frankly fundamental fairness requires
11:11
that those transcripts at a minimum that Witnesses be turned over but I think I would be allowed to have all of it
11:16
because if we're going to challenge the validity of the indictment based on what the grand jurors are presented I think we have a good faith basis to ask for
11:22
that what what what code section are you referring to that you think entitles you to all of it
11:28
um the way again I'm no expert in special grand juries I haven't prosecuted one when I was a prosecutor
11:34
as far as that goes but I'm looking at 15 1280 that generally talks about publishing and a lot of that was
11:39
discussed with judge McBurney with regards to the case site I gave you as far as a special grand jury so a lot
11:45
more law is there so I didn't want to you know just burn trees down if it's already been argued out there so I just
11:50
highlighted the two statutes and essentially three cases that talk about the secrecies
11:56
if not negligible much much lower as far as that goes once the special grand jury is ruled or made the recommendations
12:07
okay Mr Orr Mr Rafferty I think you joined this one did you not I did your honor and and I would join in all the
12:13
arguments that Mr Aurora has made well actually I think maybe you formally didn't own the record but if you went to
12:19
orally now okay and the only thing I would add and Echo for Mr Aurora are the due process concerns that he's raised uh
12:26
the government has said they'll turn them over but only turn them over after they call witnesses that smack the gamesmanship uh and it would not be the
12:33
efficient way to try this case uh there is no real reason for the government they have to disclose their witnesses to
12:39
not disclose the transcripts of any witnesses that testified before that special purpose grand jury that is going
12:45
to testify at the trial moreover and and I'll raise this at a later point in this hearing today I do have some very grave
12:51
concerns about the government's compliance with their Brady obligations I have already submitted two Brady requests I have not gotten even a
12:57
response I'd like the opportunity to raise that later but I believe that there could be Brady information that is
13:03
in those transcripts that they are obligated to turn over independent of any statutory Discovery obligations
13:11
all right Mr Wade yes sir
13:24
because I think we have started to put the the cart before the
13:30
horse so to speak let's start with the premise that that uh long-standing and
13:36
unquestionable Authority indicates that grand jury materials including transcription records are not available
13:42
to criminal defendants because Grandeur proceedings are considered to be confidential and the state is relying
13:49
upon thinks stinsky V State there and I have a copy here for the port and
13:58
and Council if I might approach that
14:11
thank you
14:21
so this this thinsky case along with the Ruffin and The Isaacs case judge stands
14:28
for the very same proposition which is they're not not
14:37
let's go hmm
14:48
do you think there's any distinction here between these cases that are going to talk about grand jury proceedings and
14:55
this having been a special grand jury that they're asking for and why not
15:01
well practical purpose is just it's the same function with the exception of the charging element the special purpose
15:07
grand jury is an investigative tool investigated jury does not make charging decisions but
15:16
can make recommendations um a regular grand jury obviously passes
15:22
down the indictment so um but I think I think Mr Aurora's argument is that there's a particular statute
15:29
that only applies to special grand juries that might impact that there's not okay what is that statute well he
15:37
cited uh 15 12 8 I think it was 15 80 excuse me
15:47
grand juries and their deliberations well I think that I mean I think that's the question I just put to them so let's see where where we go there's a
15:53
difference 15 1283 did I think it was just 80.
15:59
that's a disclosure statue
16:09
there is no distinction just the case law is the same I think that the the
16:15
particularly the the Olsen case that the that defense counselor is relying upon is is not even a case that considered uh
16:23
uh turning over information that that Olsen case um essentially it it merely considered
16:30
which employees of this attorney can be of a disk attorney's office that can be present uh I agree with you there I
16:36
think Olsen goes more towards what we're going to get to about whether they can speak to Grand jurors and what about I I
16:42
think and we can we can if you need to do a separate little brief we can do that but
16:48
the issue is because we don't see them as often whether special purpose grand juries have some different degree of
16:54
secrecy than a regular grand jury such that we can't just reflexively look at this case law and say all right not a
16:59
hard call so judge I think that the the the the application is the same the analysis is
17:06
the same um why is there a distinction between the special purpose grand jury versus
17:12
the the regular grand jury the law is clear on on the defense Council not
17:17
being able to get the transcripts or any or anything that demonstrates uh that
17:22
comes out of the uh grand jury process the special purpose grand jury or the regular grand jury process does
17:29
um and that's the the stensky case the roughest case in the Isaac's case but I like to to point uh direct the Court's
17:36
attention to the fact that there's no Authority that demonstrates any defendant is entitled to these strands
17:41
these grand jury transcripts um of course disfavor the release of uh
17:48
the these transcripts defenses pointed to not no overriding Factor
17:53
um that would override the policy favoring the secrecy of grand series and that is that is the guiding principle
17:59
judges the secrecy of the grand jury the Supreme Court says that the grand jury is a public institution serving
18:05
community that might suffer if those testifying today knew that the secrecy of their testimony would be lifted
18:11
tomorrow this indispensable secret this indispensable secrecy of grand jury proceedings must not
18:17
not be broken except where there is a compelling necessity they have to show
18:22
what that compelling necessity is Judge um and the Kessler case along along with
18:29
the other cases that the state has just given um support that proposition but also the
18:36
the Supreme Court in in the Anderson case does as well
18:41
um now let's talk about the the Supreme Court because they've identified five five factors such
18:48
um that that are present in the in the Douglas oil case that
19:02
that we'd like to address
19:09
first if the pre-indicted proceedings were made public
19:14
many prospective Witnesses would be hesitant to come forward and voluntarily knowingly and those against whom they
19:21
testify will be aware of their testimony that's the first thing second Factor against
19:29
releasing the information is Witnesses who appeared before the grand jury would be less likely to testify fully and
19:35
frankly as they will be open to retribution and also to inducements
19:41
which we've seen a little bit of in this case third
19:46
there also would be the risk that those about to be indicted would flee
19:52
or fourth would try to influence individual Grand jurors to vote against
19:57
indictment five and finally by preserving the
20:02
secrecy of the proceedings we assume the persons who are accused but exonerated by the grand jury will not be held up to
20:10
public ridicule those are factors judged that the court should consider in
20:16
determining whether or not the
20:21
grand jury secrecy provision has been overridden by by council's arguments
20:28
um we don't believe judge that the defense has relied on any case that
20:35
would override those factors but moreover
20:40
foreign ers
20:48
that would assist upon them in their in their Reliance judge um
20:55
they did cite to the Henry Gwinnett County case judge
21:01
um and and even in that case the requirement that secrecy be maintained
21:06
among all types of grand juries without distinction and that's in the inry and
21:12
I've for a copy of that case
21:27
I apologize judge I didn't I didn't bring the court a copy of that Henry Gwinnett County grand jury case but
21:32
that's the case that Council relied upon and cited in its uh in its brief and and
21:38
even in his argument today but that case uh is found at 284 Georgia 510
21:45
and it stands for the proposition that the requirement that secrecy be maintained among all types it says all
21:54
types of grand juries without distinction so again the state would submit to the
22:01
court that there's no difference so I you know obviously I'll take a
22:06
closer look at all the cases you've given me and I think just as an initial reaction your your
22:14
probably right when it goes to saying everything should be turned over but I want to drill down a little bit more on
22:21
the witnesses who maybe at this point already you know that you're going to call
22:27
in November right I think that's the whole point of our scheduling order here and what we try to
22:33
do is that we need to use our trial days efficiently and use our jurors time
22:39
efficiently and I would imagine that the state is going to have an order of proof
22:46
going into this trial with a with a list of witnesses and if though if there are witnesses that are on there the idea of
22:54
waiting until the minute before they're called and then we've got to now pause the
22:59
trial for an hour or two while then they're reading the transcript I don't think we can do that would you agree I
23:04
agree and I and I understand that judge in the state wasn't intended to convey that it was that it would
23:11
um hold on to a particular Witnesses transcript until the eve of trial
23:17
um we're still obviously going through um receiving the transcripts as we don't
23:23
even have every one of the transcripts um and so we're still going through that process as well but I I don't think that
23:31
the court has made an unreasonable uh suggestion that that the state not
23:36
essentially implied that the state would not hold on to the transcription to the
23:41
11th hour that's that's not our our plan and that's not how we so so I would
23:47
think at a bare minimum and maybe we can talk about whether we have to move that timeline at all but your your witness
23:53
list is going to be due 10 days beforehand yes sir and so in conjunction with that I would think that any witness
23:58
on there who has a transcript that that needs to be either expedited or rushed and also provided at that same
24:05
time and if the issue comes up that
24:12
well we didn't put a witness on that 10-day list but now we think we need to call them unless it's for a rebuttal or
24:19
some new issue that's come up during trial I'm going to be looking at that and really wondering if if you know a
24:26
good faith effort has been made to to turn everything over so I think
24:31
I I think that's that's not only what defense counsel was uh referring to but
24:37
I think that's the way what we have to do to proceed efficiently at trial yes sir yes sir and and there's no argument
24:43
or disagreement I think that the court is being reasonable there um but while we're talking about that Discovery
24:49
um we believe that we're still in line with the Court's uh scheduling order as
24:56
it relates to Discovery so Council standing yeah well and we can we'll talk about that then let's get through the
25:01
motions first let me get more into Discovery but you know generally I would think this case is obviously different
25:08
but um the state's open file policy traditionally has been here's everything
25:13
we have unless there's some kind of state secret or a confidential informant or something along those lines yes sir
25:19
and you have everything that we have and here we go yes sir so I don't know if
25:24
that's going to be the spirit that we proceed with here it might streamline things somewhat and it I would uh we'll
25:30
see where we where it goes any thoughts or reactions to that oh it is a spirit just the district attorney has been
25:35
clear in our instruction we are to make information available to them as it becomes available to us
25:41
um we are here prepared today to turn over uh portions of the discovery
25:47
um to the the two defendants that are going to proceed with trial on the 23rd
25:53
obviously we plan to supplement that Discovery as we go along and as we receive the information but we've made a
26:01
good faith effort in complying and being reasonable and working with defense
26:07
counsel and we'll continue to do that all right and when it comes to supplementing supplementing it I would think that's going to be confined to new
26:13
discovery yes stuff you don't have right now right now so I think for purposes of
26:20
motion the motion uh let's see to unseal uh I'll I'll take it under advisement as
26:25
it concerns the entirety of the record or anything that happened there uh but
26:30
as an initial thought at a minimum it's going to be granted in part as to any Witnesses the state plans to disclose
26:37
yes sir all right anything else Mr Happy comments sure
26:44
um we decided to a Supreme Court case Douglas oil versus petrol stops Northwest the Supreme Court case it
26:50
cites to rule 6E of the federal rules of criminal procedure the problem with that case your honor and the Casey cited is
26:56
it has to do with the use of grand jury transcripts in a civil proceeding which I know your honor knows grand jury
27:02
transcripts in the federal courts as part of a criminal investigation can't just be turned over in civil cases
27:08
and so the Casey sites has to do with whether or not and under one circumstances grand jury transcripts
27:14
from a criminal investigation that results in an indictment can be used by civil practitioners in a civil case that
27:21
has nothing to do with this case and the point I'm making with this your honor is this um the government has now cited to a
27:28
case that really has nothing to do with this they come to court here today they don't respond to the Motions in writing they drop some motions on defense
27:34
counsel or some cases I should say they don't put anything in writing and they just say things to your honor and that's
27:40
a troubling practice for me as somebody who practices mostly in federal court this is a serious case I think you have
27:46
to realize I think that might be the standard practice in this building I understand that Robert but I look behind me and I see eight eight folks here on
27:53
the government side we're talking about a case that is unique to say the least
27:58
involving allegations related to the supremacy cross First Amendment rights
28:03
all kinds of things defense counsel are writing motions I think we're at least entitled to a written response from the
28:10
government citing these cases so that we have an opportunity to inspect them because otherwise what happens is the
28:17
government comes in cites to a case that has no application whatsoever and suggests to your honor that it is
28:23
precedent on that governs the disclosure of injury transcripts when it does not and so my concern my request is that and
28:31
I I filed a motion last night where I specifically asked the court to order the government to respond in writing so
28:38
that we have a chance to look at these cases before we come to court here today
28:43
that's my request so Mr Raffia uh I think that obviously some of this going
28:49
back and forth will be touch and go but I think what we we could easily do today and and going forward as well not every
28:56
motion may require that but we can always say if if a party wants postering briefing we'll do that I I'm not
29:02
intending to to rule from the bench on these on a lot of these complicated issues I mean I've handed a stack of
29:07
cases and I'm going to read them and and we're going to have time to get through it it's going to be an expedited timeline and but I'm certainly going to
29:13
give you the opportunity to respond I appreciate that your honor but my I guess my point is and I think my Council uh here would join me in that you know
29:20
this process would go a lot quicker if the District Attorney's office with their team of lawyers would write a
29:26
brief that cites to the same cases that they're bringing to court every day so that we have an opportunity before we
29:31
come before your honor to look at those cases and question whether or not what those cases say supports what they're
29:38
claiming and if they don't be prepared to address it so that we can move this along as opposed to us having to go back
29:44
after today research the cases then write a post hearing brief point out to the judge that what the government is
29:50
saying is not actually true so that is one of the benefits respectfully or honor of requiring the government to put
29:57
it in writing all right understood so just briefly in
30:03
response to Mr Rafferty's um argument um he did in fact
30:09
um we would say at the 11th Hour foul a motion requesting that the state
30:14
um respond in writing the state has done that um I don't know if Mr Rafferty has had the opportunity to check his filings but
30:21
the state has done that this morning um is this is this for this particular motion no okay
30:27
um and you know obviously I think we're also one of the logistical challenges we're dealing with the case is that you
30:33
you file something and it's taking hours for it to post the docket so we're just gonna have to recognize that and I think
30:39
that's why we I would say emailing a courtesy copy is going to be the way to go yes sir so this morning the state is
30:46
filed it um it does cite to the then speak about the cases that the state is uh excited
30:52
to this morning and provided copies all right so Mr Raffia and Mr Roy obviously you want a chance to respond to this and
30:58
and review it so we're not ruling on this today and we can and take the time to allow you to do that just perfect the
31:03
record on a couple of things with this special Branch here if that's okay sure sure
31:08
so again I'm citing back to judgment Bernie's order as well as the issues on the
31:14
special grand jury case and when you look at 15 1280 they specifically said
31:20
it's different from a regular grand jury because they make recommendations as to should we release this report or not
31:26
release the report and they vote on it there's all kinds of discrepancies that aren't the same as a criminal grand jury
31:32
which is what we've got here now I take exception to the courts I know you made a comment that if they're going to call
31:37
a witness they have to turn it over in a certain time I get what about all the other Witnesses they don't plan on calling they may be Witnesses for me
31:44
1716-4 should Trump all that because that's the discovery statute that says any witness they've talked to has made a
31:50
written statement has to be turned over that's where the due process is they don't get to pick and choose what Witnesses we get to see or not see I
31:57
might want some of them and if we wait I guess your order says disclose everything by the 20th of September so
32:03
I'm assuming we'll get a big batch of Discovery have been told up to eight terabytes by the 20th I need to be able
32:09
to review it to figure out what my defense necessarily is going to be versus doing it on the fly like we do in federal court and we don't have trial by
32:15
Ambush that's why I appreciate we're here in the discovery statutes are strong so that's my point to you and I would
32:21
also go ahead and cite the Olsen again which is the most recent case that specifically says notably the oath of
32:28
secrecy no longer extends to the state's attorney and even the grand jurors oath encompasses only deliberations and not
32:34
all things occurring in the Grand Jury Room so at least for the special grand jury participe from the second brief
32:39
that we've got we should be able to get everything that happens in there aside from arguably deliberations but at a
32:46
minimum at least the 75 Witnesses or whatever else that they presented so I would say that your honor said at least
32:52
what they're going to use I think that's not correct enough it should be everything thank you all right uh like I
32:57
said I'll take a look at it I also just a passing thought as well when it comes to Brady concerns I think we could also
33:05
utilize a mechanism where maybe they have to in camera give me the entire transcript and so if during the trial
33:11
something comes up that we think uh as Brady material or should have been disclosed we can we can pause things and
33:18
and correct it from there and on that point you're on with respective Brady as I said I'd like to talk about it in a bit but I would just remind defense the
33:26
government Council here that uh Brady is in the high the eyes of the beholder what I consider to be Brady material is
33:31
what matters what the DA's office considers to be Brady material does not if I contend it's Brady material I'd ask
33:37
the court to inspect it and see if it does fit with one I claim if it does I'm entitled to it I understand okay let's
33:44
move on obviously because and we may need to come back to this one uh at another hearing uh depending on how we
33:50
go how it goes so the last motion that we had scheduled for today is the motion
33:56
to speak with the grand jurors Mr Roman it looks like this one's yours this one's mine judge and good morning again
34:03
um for this motion I want to begin with the indisputable proposition that I'm sure
34:10
my colleagues on the Stateside will agree with of course that Mr chesborough and also Miss Powell although obviously
34:17
I don't speak for her have the right under Georgia law to be charged only by way of a grand jury that is a key tool
34:25
as we all know to prevent prosecutorial overreach I would argue it's one of the most important Provisions in both
34:31
federal and state law um so that's clear we don't have to I don't think argue that point so then I
34:38
think your honor the question becomes if you accept that premise what does that right mean what does that right entail
34:46
so if for example a prosecutor simply gets up and summarizes to a grand jury a
34:52
lengthy indictment as opposed to allowing the grand jurors to read it and
34:58
understand it independent of the prosecutor is that indictment valid under Georgia law
35:03
to be quite clear your honor their the case law is kind of sparse we would
35:09
argue that the answer is no thankfully we don't have to argue that case right now but the reason we would argue if
35:16
that were the case the answer is no is because the law is clear the grand jury must act independently of the
35:22
prosecution I'll be quite Frank your honor and this is not I want to make clear not in any
35:28
way um negative against these lady and gentlemen who sit here at this table but
35:34
just generally I have very serious questions very serious questions based on publicly available information which
35:40
unfortunately is all we have to go on that this grand jury as well as the
35:46
special purpose grand jury was independent but we don't know that that's the problem we don't know that
35:53
and in order for us to find out the answer which clearly we're entitled to find out we have to be able to access
36:00
information your honor I do very much appreciate the
36:06
fact that uh Mr Wade stood up here and said the spirit of openness applies to
36:13
this case and I truly hope that from the moment Mr Wade said that forward that's
36:18
what happens I wouldn't be doing my job your honor if I didn't tell you for the record I
36:24
personally do not believe that that has been the spirit of the state of Georgia in this particular case
36:31
I think quite the opposite your honor that every time we file a motion or ask
36:38
simply for access to the same information that the folks on the state
36:44
side have where it's responded to and said no we can't do that I know there's
36:50
a discovery deadline that's I think in a couple of days I understand that
36:55
quite frankly your honor we turned over this uh they asked they this is exactly
37:01
what happened the state said Mr grubman Mr Aurora we have your Discovery all you
37:07
have to do is give us an eight terabyte hard drive that day literally probably within two
37:14
hours we were down here with the hard drive follow-up email where's our Discovery
37:20
where's our Discovery where's our Discovery there is no we haven't gotten the discovery and your honor I'm not
37:26
saying they violated the Court's order because that deadline hasn't come but if we're really being open and if we're
37:32
really gonna talk about the spirit of openness I really hope that starts here
37:38
and this is just another Avenue our request to speak to the Grand jurors to
37:44
allow us to have the same information that the state has now your honor we
37:50
went back and forth internally to be honest with you about even filing this motion not because we don't want to talk
37:56
to the Grand jurors but with all respect to the court and to the state we quite frankly didn't think we were required to
38:03
necessarily ask the court for permission as you know judge grand jury secrecy
38:09
with all due respect from Mr Wade citing all those cases that predated the Olsen
38:16
case it doesn't exist except for deliberations it does not the Supreme
38:21
Court and state the Olsen was absolutely positively clear as Mr Aurora stated
38:28
there is no grand jury secrecy here in the state of Georgia there is grand jury
38:34
secrecy in the federal courts as you're on her nose that does not apply here prior to us there were certain
38:41
legislative changes and there was a time my understanding is in the state of Georgia where there was similar rules as
38:47
to federal court and that is no longer the case so there's no secrecy now there is confidentiality of course and Main
38:56
the only part that's truly secret and confidential is the deliberations and I
39:02
want to make sure it's clear that we are not asking to speak to the Grand jurors about out their deliberations we will
39:09
not do that we're officers of the Court we know we can't we won't do it now
39:14
Mr um Wade laid out certain factors of the
39:20
purposes of grand jury confidentiality I think he named five but the Olsen case names four I'm sure there's different
39:26
formulations so I'm just going to go through four again prospective jurors would be hesitant to come testify
39:34
actual Witnesses would be less likely to testify fully and frankly if the grand jury was open to others
39:41
the Supreme Court said there was a risk that those that were indicted would flee or would try to influence the grand jury
39:48
against returning indictment if the grand jury was open and fourth it was
39:53
ensuring that those accused but exonerated by the grand jury apparently that happens from time to time wouldn't
40:00
be subject to public ridicule your honor I would submit to you that none of those
40:06
purposes apply here none of those purposes in fact even apply after a grand jury issues an
40:13
indictment let me let me jump in and haven't read the Olsen case up to today and I think there was one Colin that
40:20
really predates it yes and in column they've got the defense calling a grand jury witness to talk through some of
40:26
these issues of who can be present during deliberations who can be present during the presentation of evidence and and so it seems to me uh that I agree
40:33
with you that you have a right to talk to Grand Jury Witnesses what about we'll get to but
40:40
and I'll say it on the front end I I appreciate you filing it this way because these Grand jurors have been through a lot yes and I think we need to
40:47
recognize that and craft a remedy here that recognizes that so
40:54
my initial reaction just to lay it out there is that yes I think you have the right to speak with grand jurors how that happens I
41:01
think we can discuss or craft I think maybe I don't even know if you can have their contact information I've heard
41:07
that it maybe already be out there but I think that might have to be something that is facilitated in hand with the with the
41:14
state it also has to be something that's voluntary on that part on their part but then the question
41:20
turns to to what end are we are we doing it and I think that as you alluded to if
41:26
the inquiry is to determine did they act independently all right but the standard you're laying out here that they have to
41:32
where I then start you know drawing kind of pausing is this
41:38
this standard or this Benchmark that they have to have affirmatively read every word of the indictment and that's
41:44
where I wonder if this might not be uh they're not there might not be a point in going
41:50
down that road if you have some other reason you you want to explore then then so be it but this idea that we have to
41:55
show example your honor first I I wouldn't necessarily say every word and if I did say that I apologize but what I
42:02
do think um we would have a valid argument on and obviously at the right time the court would is that if it was simply
42:09
summarized your honor please understand and I hope everyone understands all the
42:14
information that we have is the stuff that these folks print in their papers we don't know so I'm not saying I am not
42:22
saying that that's what happened in this case let's even let's even play in that
42:27
sandbox a little bit let's say it was just summarize and again we're just previewing the arguments to see if this is even worth getting into later
42:33
at a trial a jury could come back with a 15-minute verdict and there'd have been
42:38
no way that they could have read a lengthy indictment or even looked at every exhibit and there's there's no inspection or remedy for that
42:45
so why why would the grand jury where'd this rule come from well the the there's it's not like there's a rule in
42:51
the statues but what there is is there's a rule there's a theme in the case law and we cite many cases and I'm sure we
42:58
could cite a lot of other cases that the grand jury must be independent now what
43:03
is that that's why I start with asking what did that mean does it mean that they have to read every single word I
43:09
don't know your honor and if that issue comes before the court we will brief that issue and we'll figure it out
43:15
however I would argue that if the grant if the state of
43:20
Georgia in this particular case presented their case to the grand jury
43:26
in one day which I can't say for sure
43:31
but based on the publicly available information that's a possibility
43:36
it would cause my eyebrows to go up a lot and I'm not alone judge Cho flat in
43:43
the United States V Sigma International now that case has been vacated it's not
43:49
president presidential uh yeah that's the right word um but that being said the dicta still
43:57
applies but it didn't that case didn't have so much to do with any method of how the jurors reviewed
44:03
the indictment I think they were citing the transcript of the ausa essentially steering them exactly where to go and
44:09
and your honor the thing is that may have happened here I don't know and I hear you there at the just my
44:15
point being is that just a summarizing an indictment to me um
44:21
you know for for example if we know the deliberations we can't go into that that's protected
44:27
how would you ever ask the question of whether another Grandeur read the indictment to everybody else during the liberations I don't even think you're
44:33
gonna be able to answer your own question I respectfully disagree your honor and we could
44:39
um craft some questions obviously we would have to think of the language but what I think we want to know is
44:45
Mr Mrs grandeur when the evidence was being presented to you
44:52
did you have the opportunity to ask questions did you have the opportunity to follow up judge tro flat said and
44:59
this is dicta but we rely on dicta all the time as as at least persuasive
45:04
so too would we dismiss an indictment that was issued by a kangaroo grand jury
45:10
quote unquote one whose the liberations were so overborn by a prosecutor or judge that the indictment was in effect
45:16
the prosecutor or judge's handiwork and not the result of considered judgment by an independently functioning grand jury
45:22
now while we can't ask the grand jurors what exactly happened in the deliberations what I think we absolutely
45:28
can ask and we will ask I will put this on the record is was there anyone other
45:33
than the grand jurors in the deliberations and that I think is what the other case that we cite Collins
45:40
stands for the proposition but your honor we simply want information I would
45:46
the reason we filed this brief this motion is to be above board and make
45:52
sure that everything was out there in the open however I would respectfully push back your honor we would not we
45:59
would not agree obviously Court could order anything they want for any member of the prosecution to be part of those
46:05
conversations we are officers of the Court we know the rules we will follow the orders I would also ask the court to
46:13
state or I would ask the prosecution to State on the record and commit I'm not saying that they're going to do this but
46:18
I have seen other prosecutors do this that the if the court grants this motion they will not attempt to influence the
46:26
grandeur's decision of whether or not they talk to us we of course know it's voluntary we would never once the
46:32
Grandeur said I don't want to talk to you we're going to hang up I can promise you that whether it's us or our
46:37
representative but I think there's a risk here that someone from the state might try to get to them first and that
46:44
would be inappropriate what if the Grandeur once a prosecutor to just be on the call listening as well if the
46:50
Grandeur wants a prosecutor to be on a call then I mean if they proactively say
46:55
that we can we can see where it is but they're not inviting us into art into
47:01
their prep you know they're not inviting us I've never got an invitation to help them draft the motion or to talk to them
47:08
sit in their conference room and they don't have the right to be with us if they want to talk to the Grand jurors they've always been able to talk to
47:15
Grand jurors they have talked to the Grand jurors but I like Mr Wade a lot but I don't want him on that phone call
47:20
because he's my adversary and quite frankly I think that if think about this
47:25
your honor if hypothetically there was something that happened in the grand
47:31
jury that wasn't appropriate the fact that a member of the prosecution was on this call I think would prevent or at
47:39
least make it less likely that a grand juror would be honest with us what if a grand juror felt felt and I'm not saying
47:44
this is true but what if a grand juror felt that they were bullied by the state into Prosecuting what if a grand juror
47:51
felt that the state you know went a little overboard well if Mr Wade was on the phone I don't think they're going to
47:56
admit that to me so as an officer of the Court your honor I think the court with all due respect just needs to be able to
48:04
trust Council that we will do the right thing and I could commit 100 that we will these Grand jurors you're
48:09
absolutely right have been through a lot they sacrificed a lot we are not that you know there's been doxing and all
48:15
sorts of things we are professionals we are not those people uh What uh how
48:21
would you or would you be planning to document this in somewhere would you be recording these calls did you have a
48:27
court reporter what would be the plan I believe there would be some so we haven't talked exactly about the logistics but there would be some sort
48:33
of recording whether it's a court reporter just a good old you know uh
48:39
iPhone recorder or whatever it is and we would tell the grand jurors that you know even though you're not required to
48:45
do so in the state of Georgia I would be much inclined to tell the grand jurors hey look we're recording this it's you
48:51
know just so there's no question of what was asked obviously judge the last thing I want to happen is for anyone to
48:57
incorrectly accuse me or someone on my team of going past what we're allowed to ask so for my own sake we'll definitely
49:04
have some sort of recording um you know unlike the state of Georgia as Mr Rafferty said they have about 15
49:10
lawyers a bunch of uh investigators and basically an unlimited budget paid for by the good taxpayers of Fulton County
49:18
myself included we don't I want to be clear despite what the media may have said we don't have an unlimited budget
49:24
so whether we could ask a court reporter to be there unless the court would volunteer uh your court reporter I don't
49:30
know that we can afford that quite frankly but we will certainly record it all right so essentially what I'm
49:36
hearing is uh what you'd be asking before is that we'd propose the if not the exact
49:43
questions but the subject matter very carefully phrased in advance this would be a voluntary meeting it would be
49:48
documented in some way and even if it's if the state is not on the call I think
49:54
that we could even we could also have someone from the court there as well just at any point if the juror feels
50:00
like they need to kind of pull the rip cord yes your honor um all right but otherwise I don't think
50:06
there's much Point going into the the merits of the motion because we're just a bit premature so so that's the initial
50:13
reaction uh Mr Wade oh sorry Mr Raffi you joined this one excuse me I did join the motion your honor the only other
50:18
point I would make I joined Mr grubman's arguments is the possibility that these interviews not be conducted in uh by
50:25
phone at all that perhaps they can be conducted in person and there could be accommodations made I would think with
50:30
with the state and with the defense conduct these uh in person as opposed to over the point that's just my only
50:36
understand and I think in me the driving consideration is going to be the uh
50:42
desire of the Grandeur do they want to come all the way back down here and deal with that or they rather just do it over the phone
50:49
um all right Mr Wade just let me be clear this thing is absolutely opposed to any of this um and Miss Young is going to come
50:55
before the court and and tell the court why but but I thought that at the outset of Mr grubman's arguments
51:01
um I thought that I was clear before we started to argue um in terms of the discovery Mr government has indicated that we hadn't
51:09
given him anything but I thought that I was clear that the discovery was here well let's let's keep I feel we keep getting back to Discovery let's let's
51:15
let's let's say that to the end there but those are his arguments and I didn't want the court to well right now we're
51:21
focusing on Grand jurors let's let's give them I understand we'll get to that ahead of schedule we'll get to that uh
51:26
let's talk about grandeurs prepare a brief PowerPoint all right another
51:34
PowerPoint here we go PowerPoint before I mean come on this
51:41
goes to my my original pointer honor which is the state spends the time to
51:46
put together a PowerPoint to respond to emotion uh that takes a lot of time I understand I'm sure it's going to be
51:52
persuasive it would be much more efficient for all involved If instead of putting together a PowerPoint somebody
51:59
put pen to paper on the team of eight lawyers here put it in writing so that we could see the cases we could move
52:05
through this argument and we could get to the end much quicker now we're going to see these cases from the state for
52:11
the first time uh Mr Aurora Mr grubbin and myself will look at these we'll go back we'll probably find things that
52:18
perhaps are inaccurate and have no choice but to then file some supplemental briefing with a trial date
52:24
on October 23rd this process is just not an efficient use of the Court's time the
52:30
more efficient process here is to write a brief file it like we do in federal court all the time like this DA's office
52:38
did in federal court in this very case in front of Judge Jones and just file it
52:43
here that's my ask all right understood and I think again let's we're just going to take that up on a motion by motion uh
52:50
basis sure
52:55
if you wanna the responsibility to be able to get to Brand yours and I think
53:02
the state and your honor are probably on the same page so I'm going to try to go through this pretty quickly in regards
53:07
to deliberations because what the defense motion stated was and their motion is that they wanted to know if
53:13
the grand jurors had been read the indictment and that was the purpose for them talking to the Grand jurors here today we find that there are some other
53:20
reasons that they may want to speak to them but the state's belief is that that is not moving as the court talked about
53:27
deliberation it is part of the um granddoury's reading whether or
53:35
not it was read to them whether or not they read it during deliberations were all trial lawyers here we know that a copy of the indictment goes back with
53:41
the jurors when it's a trial jury they're reading over it to make sure that the evidence matches the evidence that's been presented that's the same
53:48
thing with the grand jury they're given a copy of the indictment they can do it do with it as they please and if we
53:53
start to get into questioning that we are getting into what they were doing during their deliberations as the court
53:59
pointed out did the four person read it to them did someone else read it that's all part of their deliberation process
54:04
which has clearly been um prohibited by the anyone getting into their
54:10
deliberation process so the state's contention is that these questions about the the green jury and reading of the
54:16
indictment summary is part of deliberations and they can't get into that because it's prohibited and I'll
54:21
just just cite ocga 15 1267 says the current grand jury oath requires grand
54:28
jury to keep the deliberations of the grand jury secret unless called upon to give evidence thereof in some court of
54:35
law in this state and it talks about extraneous Prejudice information which I think goes towards
54:41
the Sigmund case is kind of what they were talking about as the court pointed out whether or not the prosecutor was
54:46
steering them to a per to a particular decision um it talks about outside influences are
54:52
mistaken entering the verdict none of those things here exist and I'll get to their solution as to how they want to
54:57
handle that with the court but I'll also state that Federal rule 606 as well as
55:03
the um 2406 here in Georgia mirrors that which basically says the same thing that
55:09
the validity of a verdict or an indictment a jury shall not testify or an affidavit otherwise nor shallow jury
55:16
statements be received in as evidence in any such Manner and that gets into what
55:22
is the purpose of this vordia that they want to do of these Grand jurors how can
55:28
it be used according to the law it can't be used as evidence at trial they can't
55:33
testify they can't give affidavits so how are they going to even use this information that they receive well we've
55:39
got this I think it was the Colin case where an entire indictment was dismissed when uh when people were inside the
55:45
deliberations and so I guess the question would be how on Earth is a defendant ever supposed to find out
55:51
whether that happened without talking to the Grand jurors well you know we're officers of the Court you
55:58
eat the grain drawers that's what they're asking us to do state is their places officers of the
56:04
Court this is what the grand juror said to them we then can stay in our places officers of the Court only the grand
56:10
jurors was present during deliberation so but in Colin it says the defense presented the testimony of a grand jury
56:16
witness to support his assertion and I know it's not really on directed or that's just kind of been passing a fact
56:22
that's present there but I certainly haven't found anything in Georgia law that says no one's allowed
56:28
to talk to their grand jurors well I don't and I think it's not that they're not allowed to talk to them judge but
56:34
they're trying I'm basing on what their motions think sure sure and I think we've arrived at the same place there
56:40
where it's gonna again and why I'm kind of seeing that this might all be futile but
56:47
I'm with you that deliberations are a hard stop and I think the defense has conceded that so really what it all is coming down to it seems to me is what
56:55
are they allowed to be asked right I'll kind of move on to that point
57:01
talking about two or 4403 about the relevance and specifically lcga 15 12 73
57:07
specially States Admissions and Communications among Grand jurors are excluded as evidence on grounds of
57:13
public policy so I just think the things that they are asking or gets into how would the how are the
57:20
jurors communicating with one another I think it all goes towards how they deliberate it Mr grubman got up here and
57:26
talked how quickly could they have come to this decision you know it's a 98-page indictment that all goes towards their
57:33
deliberation asking questions about that is part of the deliberation process which is is prohibited
57:40
so I think if we're going to get to the to this point which the state does not concede we should we have to figure out
57:46
then how is it going to be used because the case law is clear testimony of grandeur Witnesses they
57:53
cannot use this to impeach their findings and that's what they're asking to do they're trying to ask these questions in
58:00
order to impeach the true bill that the grand jurors sat down that's what they're essentially asking
58:07
to do and it's not allowed based on the case law and by Statute and I'll just cite to one case that they
58:16
I don't know if they mentioned but the United States versus van Eagle it says an indictment returned by a legally
58:22
constituted grand jury is presumed to be valid on its face similarly there is a
58:28
strong consumption of regularity that attaches to all grand jury proceedings a defendant seeking to challenge the
58:35
presumption has a difficult burden because it's hard to override and that site is 809 Federal sup 1360. so judge I
58:44
think we have to get into is it relevant is it admissible the questions that they want to ask these jurors and based on
58:51
the case law it is not because what they're asking is we want you to change your mind we want you to answer a question in a way that is going to
58:57
impeach your findings none of the questions that they're at all of those things are reaching towards
59:02
that was there someone else in there did the prosecutor steer you a certain way all of that is to impeach the finding of
59:08
a true bill of the indictment and there's nothing here that says that it should be
59:14
I want to touch upon the public policy and the safety that the court talked about and we've heard it these Grand
59:20
jurors have already experienced doxing threats we've had to contact they've
59:27
contacted our office because of safety concerns we've had to contact law
59:32
enforcement agencies all over Fulton County to then make sure that these Grand jurors are safe so I think one
59:38
consideration the court also needs to make in allowing this is a is the safety
59:43
of these grand juries and their concerns that have already been voiced but I'll just say the Georgia Supreme Court
59:49
observed the grand jury as a public institution serving the community might suffer if
59:55
those testifying today knew that the secrecy of their testimony will be lifted tomorrow the indispensable
1:00:01
secrecy of grand jury proceedings must not be broken except where there's a compelling necessity there hasn't been
1:00:07
any compelling necessity that's been raised by this defense to then Pierce this veil of secrecy of the grand
1:00:14
jury what was the site for that that last one
1:00:20
which where's that coming from that would be nice to
1:00:26
know can you spell that one for me you have that case joke yes yes in my stack
1:00:37
let's pause one moment sir
1:00:56
and then the state kind of talked about Douglas versus oil but I just want to point out again judge just talking about
1:01:02
deliberations and the fact that it should be um when discussing the charges and votes of
1:01:08
the indictment and I think all of the questions that Mr Grumman talked about that's where it's going so if we're
1:01:13
going to do this which state once again does not believe we should it's going to have to be crafted very carefully to
1:01:19
make sure that we're in line with the statutes and the case law all right well I think we've oh I'm
1:01:26
sorry and just one more thing judge because we talked about the grand jurors and the safety and I've just you know
1:01:32
all these K all these cases are in there for the court but I just want to we have to make sure that we're keeping that
1:01:38
Paramount because they're asking to be able to call these jurors these jurors have already said we're concerned we've
1:01:43
had to and I'm handing them actually another copy of the written response that um I gave to to the court but
1:01:51
because of public policy and safety judge I think that is another reason why we should not allow this and then
1:01:56
finally the lack of authority what they stated to the court was