Case A24A1599 Filed 08/26/2024 Page 1 of 22

IN THE COURT OF APPEALS

STATE OF GEORGIA

DONALD JOHN TRUMP :

Appellant - Defendant, :
: INTERLOCUTORY APPEAL
vs. :
: Docket Number: A24A1599
STATE OF GEORGIA :
Appellee - Plaintiff. :
______________________________________________________________________________

An interlocutory appeal from the Superior Court of Fulton County

Indictment 23-SC-188947
The Honorable Scott F. McAfee, presiding.
______________________________________________________________________________

REPLY BRIEF FOR APPELLANT

PRESIDENT DONALD JOHN TRUMP
______________________________________________________________________________

Donald John Trump Steven H. Sadow

1100 S Ocean Boulevard Georgia Bar No. 622075
Palm Beach, Florida 33480 260 Peachtree Street, Suite 2502
Atlanta, Georgia 30303
Lead counsel for President Trump

Jennifer L. Little
Georgia Bar No. 141596
400 Galleria Pkwy, Suite 1920
Atlanta, Georgia 30339
Counsel for President Trump

Matthew K. Winchester
Georgia Bar No. 399094
Garland Law Building
3151 Maple Drive, NE
Atlanta, Georgia 30305
Appellate counsel for President Trump

ORAL ARGUMENT REQUESTED

 Case A24A1599 Filed 08/26/2024 Page 2 of 22

TABLE OF CONTENTS

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
.
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
.
Part Three: Argument and Citations to Authority . . . . . . . . . . . . . . . . . . . . . . . . . . 1
..
I. The State’s standing argument should be deemed abandoned. Alternatively,
President Trump was aggrieved by Willis’ church speech, a severe violation
of the Georgia Rules of Professional Conduct . . . . . . . . . . . . . . . . . . . . . . . . 1
.
II. Forensic Misconduct: the State’s reliance on the Billings dissent is at odds
with precedent, deviates from Williams, and fails to support its own prejudice
argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
.
A. Williams and prior precedent do not require prejudice to disqualify
Willis for her severe ethical rule violations . . . . . . . . . . . . . . . . . . . . . 7
.
B. If prejudice were required, the State ignores that pretrial prejudice may
be presumed from the presence and participation of a biased prosecutor
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
.
C. The Billings dissent has no persuasive value, nor does it help the State:
Justice Billings endorsed a pretrial prejudice standard that President
Trump has met . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
.
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
.
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C – 1
.

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TABLE OF AUTHORITIES

Supreme Court of the United States Decisions

Pena-Rodriguez v. Colorado, 580 U.S. 206 (2017) . . . . . . . . . . . . . . . . . . . . . . . . 2

.
United States Court of Appeals Decisions

Miller v. North Carolina, 583 F.2d 701 (4th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . 2

.
United States v. Cabrera, 222 F.3d 590 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . 2
.
United States ex rel. Haynes v. McKendrick, 481 F.2d 152 (2d Cir. 1973) . . . . . . 11
.
United States v. Pierce, 86 F.2d 949 (6th Cir. 1936) . . . . . . . . . . . . . . . . . . . . . . . 13
.
Supreme Court of Georgia Decisions

Cheddersingh v. State, 290 Ga. 680 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

.
Debelbot v. State, 305 Ga. 534 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
.
Registe v. State, 287 Ga. 542 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
.
Sons of Confederate Verterans v. Henry Cnty. Bd. of Comms., 315 Ga. 39 (2022) . 1
.
Williams v. State, 258 Ga. 305 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . in passim
.
Court of Appeals of Georgia Decisions

Clos v. Pugia, 204 Ga. App. 843 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

.
Cohen v. Rogers, 338 Ga. App. 156 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2
.
Ford Motor Co. v. Young, 322 Ga. App. 348 (2013) . . . . . . . . . . . . . . . . . . . . . . . . 7
.
In re Hensley, 184 Ga. App. 625 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
.
In re Presentments of Lowndes Cnty. Grand Jury, 166 Ga. App. 258 (1983) . . . . . 5
.

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Piedmont Hosp. v. Reddick, 267 Ga. App. 68 (2004) . . . . . . . . . . . . . . . . . . . . . . . . 7

..
Reid v. Samsung SDI, Co., Ltd., 366 Ga. App. 570 (2023) . . . . . . . . . . . . . . . . . . . 1
.
Thompson v. Macon-Bibb Cnty. Hosp. Auth., 246 Ga. 777 (1980) . . . . . . . . . . . . . 5
.
Zelda Enterprises , LLLP v. Guarino, 343 Ga. App. 250 (2017) . . . . . . . . . . . . . . . 1
.
Other State Decisions

Vermont v. Hohman, 138 Vt. 502 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

.
In re J.S., 140 Vt. 230 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12, 14
.
State v. White, 285 A3d 262 (Me. 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12
.
State v. Farokhrany, 259 Ore. App. 132 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
.
State v. Gonzales, 138 N.M. 271 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
.
State v. Nicholson, 7 SW2d 375 (Mo. Ct. App. 1928) . . . . . . . . . . . . . . . . . . . . . . . 8
.
State v. Snyder, 256 La. 601 (La. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
.
Weddington v. State, 545 A2d 607 (Del. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
.
State v. Kirk, 339 P3d 1213 (Idaho 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
.
Rules of Professional Conduct

Ga. RPC 3.8 (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . in passim

.

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ARGUMENT AND CITATIONS TO AUTHORITY

I. The State’s standing argument should be deemed abandoned.
Alternatively, President Trump was aggrieved by Willis’ church speech,
a severe violation of the Georgia Rules of Professional Conduct.

The State’s ephemeral reference to standing fails for two reasons. First, due

to an absence of any citation to authority, this Court’s local rules dictate that response

argument III (A) be deemed “abandoned.” 1 Ga. Ct. App. L. R(s). 25 (b) (2) & (c)

(2). Second, President Trump was aggrieved by the trial court’s failure to disqualify

Willis and suffered adverse personal impact from Willis’ church speech.

A party has standing 2 when it has suffered an adverse impact to its own rights.

Reid v. Samsung SDI, Co., Ltd., 366 Ga. App. 570, 575 (2023). Specifically, “[t]o

have standing to move for an opposing lawyer’s disqualification, a lawyer must

substantiate a violation of the rules [of professional conduct] which is sufficiently

severe to call in question the fair and efficient administration of justice.” Cohen v.

Rogers, 338 Ga. App. 156, 166 (2016).

1
This Court has applied its abandonment rules to the appellee. See e.g., Zelda Enterprises, LLLP
v. Guarino, 343 Ga. App. 250, 251 n.3 (2017). Local Rule 25 (b) (2) provides: “Part Two [of
appellee's brief] shall contain appellee's argument and the citation of authorities as to each
enumeration of error.” Local Rule Rule 25 (c) (2) provides: “Any enumeration of error that is not
supported in the brief by citation of authority or argument may be deemed abandoned.” With no
citation to authority, the response in Section III (A) fails to comply. State’s Br. at 61-62.
2
A plaintiff with standing is necessary to invoke a court’s judicial power to resolve a dispute, and
the power of Georgia courts — as with any power possessed by a branch of state government —
is conferred by our state Constitution. Sons of Confederate Veterans v. Henry Cnty Bd. of Comms.,
315 Ga. 39, 45 (2) (2022).

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Applying the standard from Cohen, President Trump has unquestionably

“substantiated” Willis’ violation of the Georgia Rules of Professional Conduct

(GRPC) – specifically, Rule 3.8(g). The Opening Brief explained why Willis’ speech

did not serve a legitimate law enforcement purpose, and why the language Willis

employed “ha[d] a substantial likelihood of heightening public condemnation of the

accused.” Trump at 34-36. The State’s response does not dispute the trial court’s

finding that the church speech was “legally improper.” State’s Br. at 68. Willis’

intentional injection of false allegations of racism into this high-profile case is

undoubtedly severe enough “to call in question the fair and efficient administration

of justice.” Cohen, 338 Ga. App. at 166.

Willis’ improper allegations of racism are “especially pernicious in the

administration of justice.” Pena-Rodriguez v. Colorado, 580 U.S. 206, 223 (2017).

Courts recognize that “few forms of prejudice are so virulent,” Miller v. North

Carolina, 583 F.2d 701, 707 (4th Cir. 1978), so much so that state and federal courts

alike observe structural implications in a prosecutor’s appeal to racial bias.

Weddington v. State, 545 A2d 607, 614-15 (Del. 1988) (right to a fair trial free from

improper racial implications is so basic that an infringement can never be treated as

harmless error); State v. Kirk, 339 P23d 1213, 1218-19 (Idaho 2014) (vacating

conviction and noting relaxed standards for prejudicial error where “prosecution

invoked racial consideration”); United States v. Cabrera, 222 F.3d 590, 597 (9th Cir.

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2000) (prosecutors’ argument that defense counsel engaged in “racist speculation”

lacked merit and was “serious prosecutorial misconduct” requiring reversal

irrespective of harm). Willis wrongly labeled defendants and their counsel as racists:

that’s as “severe” as it gets.

Moreover, Willis’ speech remark that her prosecution of the defendants was

“God’s work” essentially inverted the presumption of innocence and thus shifted the

burden of proof. Burden-shifting has resulted in “plain error” reversal because it

“seriously affect[s] the fairness and reputation of judicial proceedings.”

Cheddersingh v. State, 290 Ga. 680, 686 (2012) (plain error where verdict form

required jury to find defendant “not guilty beyond a reasonable doubt”); cf. Debelbot

v. State, 305 Ga. 534, 544 (2019) (Bethel, J., concurring) (describing prosecutor’s

erroneous summation on the burden of proof as “repugnant to our system of criminal

justice.”). Squarely implicated by Willis’ extrajudicial comments, the admonitions

from these cases show that Willis’ violation of GRPC 3.8(g) is “serious enough to

call into question the fair administration of justice.” Cohen, 338 Ga. App. at 166.

Standing is shown.

Pretermitting fairness, President Trump was injured by Willis’ “legally

improper” speech because national and local media outlets broadcast and reported

Willis’ claim as an attack against the defense. Willis falsely declared that allegations

against her stemmed from racism to hide the fact that they were true. Willis

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obviously intended that every potential Fulton County juror who heard or read

Willis’ racist speech should label the defendants as racists.

The State’s “interpretation” of the speech (i.e., that Willis was vague, or that

it was debatable to whom she referred) is disingenuous at best. Willis’ purpose was

plain: to obscure her misconduct by falsely accusing the defense of racism. Willis’

strategic use of pronouns was neither innocuous nor vague—Willis repeatedly used

“them,” “they,” and linked these terms to her antagonist: “white male republicans.”

[No. A24A1596 (Shafer) at 1677]. The only “white male republicans” included in

Willis’ perception of “[God’s] work” (her prosecution of this case) were President

Trump and the other defendants. Contrary to the State’s attempt to elevate form over

substance, “so many others” (plural) could not refer only to Roman (singular).

Willis used these terms as insidious, calculated references to President Trump

and the other defendants. Willis knew what she was doing and got precisely the

reaction she wanted:3 the overwhelming media coverage of her false and pernicious

3
Here is how the Washington Post described her appearance: “Sunday was the first time Willis
had been seen in public since Roman’s motion. Her appearance at Big Bethel AME as part of a
special Sunday service honoring King ahead of the holiday that honors him Monday had been
previously scheduled, and though her office suggested she intended to honor the invitation as the
church’s keynote speaker, it was not clear Willis would talk about the controversy. News of her
impending appearance was the leading news story on local television Sunday, and as Willis entered
the church sanctuary to the soaring soundtrack of a choir and an archival audio of a sermon from
King urging followers to keep strong in their faith, her every move was trailed by a bank of local
news cameras set up in the church balcony”. See Fani Willis, Trump Georgia case prosecutor,
ends silence on misconduct accusations, https://www.washingtonpost.com/national-
security/2024/01/14/fani-willis-georgia-trump/ (last visited Aug. 22, 2024).

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subterfuge would slander the defendants before the entire nation. Willis calculated

this result despite her duty to protect the presumption of innocence, due process, and

a fair trial. In re: J.S., 140 Vt. 230, 232 (1981) (“It is unconscionable for a prosecutor

. . . to undermine the rights specifically granted in the Constitution [s]he has taken

an oath to uphold.”)

This Court has held that individuals criticized in grand jury reports suffer

injury to personal rights, and that applies equally to individuals who are not named

directly but are instead part of a criticized group. In re Presentments of Lowndes

County Grand Jury, 166 Ga. App. 258 (1983) (unnamed individuals injured and

entitled to expungement of grand jury report criticizing police department);

Thompson v. Macon-Bibb County Hosp. Auth., 246 Ga. 777 (1980) (individual rights

implicated by report that criticized but did not indict); In re Hensley, 184 Ga. App.

625 (1987) (rights of numerous individuals identified in report affected).

Therefore, under either standing theory (severe violation of the GRPC

affecting fairness or injury to personal rights), President Trump has standing. 4

4
Notably, the State’s Amicus Curiae does not join the State’s standing argument, nor advances a
standing argument of its own, instead merely citing (in a footnote) the trial court’s footnote alluding
to the standing question. Amicus Br. at 21, n. 12.

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II. Forensic Misconduct: the State’s reliance on the Billings dissent is at odds
with precedent, deviates from Williams, and fails to support its own
prejudice argument.

Willis’ comments, speech, and courtroom behavior were flagrant violations of

her ethical duties, intentionally wielded in direct contravention of GRPC 3.8(g)

against presumptively innocent defendants, for her personal and political gain. To

side-step damaging facts, the State seeks to narrow the law; it incorrectly restricts

Williams, as the trial court did, to reach only comments on the guilt of the accused.5

According to the State, so long as it refrains from saying “the defendant is

guilty,” a prosecutor may do and say anything, no matter how defamatory, unethical,

or widely reported it is, because time is a sufficient cure for harm. The State

contends this Court is without recourse to punish the offending prosecutor and must

disregard the deliberate ethical violations, false allegations of racism, and claims to

“do[ing] God’s work,” because the case will not be tried soon. Nonsense.

The State’s response errs in three ways: (1) Williams and prior precedent do

not require prejudice; (2) even if prejudice were required, the State ignores that

prejudice results from a biased prosecutor; and (3) the Billings dissent has no

5
The State’s argument omits that forensic misconduct decisions in other states have included
appeals to racial or religious bias. See State v. Farokhrany, 259 Ore. App. 132 (2013) (prosecutor’s
discussion of Sharia law constituted forensic misconduct because it involved issues of “racial,
ethnic, or religious bias”).

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persuasive value, nor does it help the State: Justice Billings in fact endorsed a pretrial

prejudice standard that is easily met here.

A. Williams and prior precedent do not require prejudice to disqualify

Willis for her severe ethical rule violations.

The State’s insistence that disqualification is limited to comments regarding

the guilt of the accused or misconduct that prejudices the defendant’s trial is

foreclosed by numerous cases. State v. Registe, 287 Ga. 542 (2010) (despite

defendant’s Sixth Amendment right to choice of counsel, defense attorney

disqualified for ethical rule violation); Clos v. Pugia, 204 Ga. App. 843, 844–845(1)

(1992) (rather than mechanically applying disqualification rules, trial court must

weigh the degree to which public trust may be eroded and should examine facts

peculiar to each case to balance the need to ensure attorneys ethical conduct and

other social interests); Ford Motor Co. v. Young, 322 Ga. App. 348, 356-57 (3)

(2013) (pro hac vice admissions revoked based on ethical rule violations regarding

candor to the court and fairness to opposing counsel and finding the attorney’s

admissions “may be detrimental to the prompt, fair and efficient administration of

justice”). Significantly, in Ford, this Court wrote:

[W]e have previously held that trial courts may disqualify attorneys for
violations of the disciplinary rules. For example, in Piedmont Hosp. v.
Reddick, 267 Ga. App. 68 (2004), we held that the trial court erred in
ruling that, because sanctions for violations of disciplinary rules appear
to be the exclusive province of the Supreme Court of Georgia, not of
the trial court, it lacked authority to determine whether plaintiff's
counsel violated Rule 4.2 of the Georgia Rules of Professional Conduct

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and therefore should be disqualified. We noted that the determination

of whether an attorney should be disqualified from representing a client
in a judicial proceeding rests in the sound discretion of the trial judge.
(internal citations omitted).

Neither these cases nor Williams require prejudice. The Williams Court

analyzed the ethical rule and considered the facts and circumstances surrounding the

comments. 258 Ga. at 313-14. Williams then explained that improper prosecutorial

statements can create a conflict of interest and/or constitute forensic misconduct,

holding that the line between the two is not clear and “a given ground for

disqualification might be classified as either.” Id. at 314 n.4. First, Williams clarified

that a conflict is created when a prosecutor’s improper comments show a personal

interest or stake in the conviction. 258 Ga. 305, 314 (citing Hohman (personal bias

created conflict) and Fugitt (prosecutorial misconduct motivated by personal interest

in obtaining mistrial)). 6 Second, improper prosecutorial comments may constitute

disqualifying forensic misconduct, and courts should look to the motive and intent

behind the statements in determining disqualification.

Williams did not hold that a trial court is prohibited from nor lacks discretion

to disqualify prosecutors for ethical violations or improper comments demonstrating

6
The trial court truncated the conflict analysis by restricting it to a financial interest. Consistent
with Williams, other states hold that misconduct demonstrating bias, improper influence, or
partiality creates a disqualifying conflict due to a personal interest or stake. State v. Nicholson, 7
S.W.2d 375, 378 (Mo.Ct.App. 1928)(any influence that impacts fairness); see State v. Snyder, 256
La. 601 (La. 1970)(bias might impact impartiality); State v. Gonzales, 138 N.M. 271, 273
(2005)(bias might influence professional judgment).

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partiality, bias, or personal interest. Instead, Williams pointed to each factor and held

the improper comments in that case were not so “egregious” that disqualification

was required. Thus, the trial court erred by restricting Williams to comments on guilt

and by restricting its conflict analysis to the financial benefit Willis received. Ethical

violations, bias, and personal interest are factors warranting disqualification under

either a forensic misconduct or conflict analysis.

The State accepts the finding that Willis’ speech was “not inadvertent.” As

for the argument that Willis’ speech, viewed together with her prior (and subsequent)

racial invocations, evinced a calculated plan to prejudice appellants before potential

jurors, the State argues that “Find Me the Votes” and Willis’ slew of other nationally

publicized comments have “no connection.” State’s Br. at 85.

No connection? The connection is Willis’ repeated public display of racial

animus towards appellants. “Welded together” by defense attorneys, says the State,

to overstate the appeal. Id. Overstated? Courts across this Nation go to tremendous

lengths to keep racial considerations out of the criminal justice system. Yet, it was

Willis who “welded together” this theme by consistently and publicly injecting the

same improper topic: racism.

As the State’s brief essentially conceded Williams’ first two factors (improper

extrajudicial statements and calculated conduct, not inadvertence)—the only issue

remaining is whether Willis’ intentional injection of racism into this historic case, on

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national television, “of such egregious nature as to require [her] disqualification” Id.

at 314. Of course it was. The elected District Attorney of Fulton County,7 with

news outlets trailing her every move, intentionally injecting false racist claims in a

Black church, before potential Black jurors who were celebrating MLK, Jr. (blocks

from where he lived his entire life – in Fulton County) is quintessentially

“egregious.” Willis calculated and deliberate plan to prejudice the accused through

unethical, racially charged media comments requires nothing less than

disqualification.

Given the “structural” concerns noted by the citations in Part I, supra, Willis’

intentional injection of racist allegations against the defendants was among the most

severe violations of GRPC 3.8(g) conceivable.8 Prosecutors do not have “carte

blanche to engage in improper commentary,” and when a lawyer’s conduct is

“inimical to the integrity of the judicial system,” courts must correct the wrong and

“send a message that such conduct will not be tolerated.” See e.g., State v. White,

285 A.3d 262 (Me. 2022) (citing Berger, impartiality, and the higher standards

applicable to prosecutors, concrete action beyond verbal rebuke was necessary

because the “prosecutor should have taken great pains” to ensure the focus remained

7
Most respectfully, it is important for the record to reflect that the DA who is falsely claiming
President Trump and the other appealing defendants are racists, is also Black.
8
Tellingly, the State does not even attempt to respond to President Trump’s argument that Willis’
“legally improper” speech violated GRPC 3.8(g).

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on the relevant issues). Injection of race is “antithetical to the purposes of the

Fourteenth Amendment . . . whether in a procedure underlying, the atmosphere

surrounding, or the actual conduct of, a trial.” United States ex. Rel. Haynes v.

McKendrick, 481 F.2d 152, 159, 161 (2d Cir. 1973).

Significantly, GRPC 3.8(g) does not sound in actual or even presumed

prejudice. It states a prosecutor must “refrain from making extrajudicial comments

that have a substantial likelihood of heightening public condemnation of the

accused.” The purpose of the rule is to safeguard the integrity of the justice system

and guard against prejudice from a prosecutor’s out-of-court statements. In today’s

political and social climate, a widely disseminated extrajudicial statement by the DA

publicly and falsely labeling President Trump and the other defendants as racists in

a historic Atlanta Black church celebrating the birthday of MLK, Jr. was

unmistakenly designed to heighten public condemnation, in direct contravention of

3.8(g). Under these circumstances, the mere verbal rebuke of Willis by the trial

judge was utterly insufficient—it demanded disqualification.

B. If prejudice were required, the State ignores that pretrial prejudice

may be presumed from the presence and participation of a biased
prosecutor.

“[T]he consequences of failing . . . to remedy the prejudice now would

jeopardize the proceedings at a later time when the prospects of delay would be

multiplied and the consequences probably more drastic with respect to the rights of

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the defendant or the people of the State of [Georgia] or both.” In re: J.S., 140 Vt.

230, 232 (1981). In In re: J.S., also an interlocutory appeal, the majority presumed

prejudice from a prosecutor’s improper extrajudicial statement. This improper

statement showed the prosecutor’s inability to act “impartially and with the objective

of doing justice without regard to his personal feelings.” Id. at 231. Like in White,

the J.S. Court specifically sent to Vermont prosecutors a “directive as to acceptable

conduct.” Id. In the face of this compelling analogy, the State pivots focus to a

dissent.

But even if this Court accepts the State’s incorrect argument that prejudice is

required to disqualify, the State (unlike the dissent it relies upon) mistakenly ignores

the Williams Court’s clear acceptance of the legal proposition that the burden may

be met by an accused at the pretrial stage. The State does not engage the compelling

reasons given by the In re: J.S. majority to presume prejudice from the participation

of a biased prosecutor.

Those reasons are fully applicable here. J.S. relied on Hohman 11 and Berger

to find pretrial prejudice from the mere presence and participation of a biased

prosecutor. Id. No more was required.

11
Notably, Hohman found that disqualification was required due to the “personal bias” and
“attitude” shown via the prosecutor’s improper comments, and it pointed to the manipulation of
prosecutorial power for personal or political profit, the obligation to govern impartially, and the
“serious questions” regarding the ethical propriety of the prosecutor’s conduct.

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Nevertheless, the State dubiously protests that Williams must have imported

into its forensic misconduct definition the views expressed in Justice Billings’

dissent. Not so. There is no evidence in Williams division 2 that the Georgia

Supreme Court adopted anything beyond Billings’ citation to the Columbia note and

the note’s broad definition. Rather than restrict disqualification to misconduct with

tangible prejudice at trial, Williams omitted the dissent’s language and reasoning.

The Williams Court had every opportunity to adopt Billings dissent, or select

views expressed therein, but it did not.13 The State echoes Justice Billings’

“emphatic” argument that misconduct can disqualify only when it deprives a fair

trial or influences the trier of fact, State’s Br. at 72-73, but Williams never used the

terms “fair trial,” “fairness at trial,” or “prejudice”—much less influence on the fact

finder. 258 Ga. at 313-14. Likewise, Williams did not incorporate the “cumulative

effect upon the jury” language from United States v. Pierce, 86 F.2d 949 (6th Cir.

1936),14 instead retaining only the “calculated plan” concept into the pretrial stage

disqualification analysis.

13
Viewing these distinctions, the Williams Court’s’ cite to Billings’ dissent is nothing more than a
reference to the general acceptance of two separate grounds to disqualify a prosecuting attorney.
14
The State’s quote from Pierce supports appellants: “That it was intended to prejudice the jury is
sufficient ground for a conclusion that it in fact did so.” State’s Br. at 75-76. Here, the trial court’s
finding that Willis’ speech was “not inadvertent” leaves little doubt as to her intent to prejudice.

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C. The Billings dissent has no persuasive value, nor does it help the
State: Justice Billings endorsed a pretrial prejudice standard that
President Trump has met.

Sound reasons explain why Williams did not limit disqualification to only the

trial circumstances described by the State. First, Justice Billings used disjunctive

phrases permitting disqualification where prosecutorial misconduct creates only the

potential for prejudice. In re: J.S., 140 Vt. at 235-36 (Billings, J., dissenting) (“To

disqualify a prosecutor, prejudice or the potential for prejudice must be

demonstrated.”) (emphasis added). Second, and most importantly, Justice Billings

joined Justice Hill’s dissent, which advocated for a pretrial prejudice standard to

“rigorously protect defendants” and “would not require a showing of actual, or

likely, harm.” Id. at 239-40 (Hill, J., dissenting) (emphasis added).

In a death knell here for the State’s argument, Justice Hill wrote:

[B]efore a trial, the court should be sensitive to the potential for

prejudice to the defendant. I believe that a trial court should disqualify
the state's attorney if his continued presence in the case would cause
a reasonable potential for prejudice to the defendant. A reasonable
potential for prejudice standard would rigorously protect defendants. It
would not require a showing of actual, or likely, harm. Rather, the
trial court would focus on the possibility of an unfair trial. Yet, this
rule would place the burden on defendants of demonstrating some real,
not imagined, chance of prejudice. (emphasis added).

Here, even Hill’s “reasonable potential for prejudice” pretrial standard is

easily met. With nationwide slanderous media coverage on every available

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network,15 appellants have shown that there is not only a “real chance,” but a

substantial probability, for unfair treatment during the trial process.

Willis placed herself within two disqualification categories proposed by both

dissenters: a biased prosecutor and a prosecutor with personal (financial and

political) interest in the proceedings. Id. at 239-40 (Hill, J., dissenting). Justice

Billings notes that (1) the key aspect of Hohman is “the awesome power to prosecute

ought never to be manipulated for personal or political profit,” and (2) a

disqualifying conflict exists when a prosecutor “tie[s] h[er] political future to

convicting [the defendants].” Id.

Unlike the distinction Justice Billings raised when analyzing political interest

(i.e., no campaign at the time), Willis was engaged in a re-election campaign when

she made her church speech, participated in “Find Me the Votes,” testified

unprofessionally in court, and has repeatedly commented to the media. Like the

Hohman prosecutor’s comment to voters that he would convict a defendant, or

commenting on evidence, Willis falsely told churchgoers (potential jurors and

voters) that defendants were racists, she was doing God’s work while acting

ethically, and the allegations against her were untrue. Willis thereby tied her personal

15
The Washington Post noted that a bank of local news cameras trailed Willis’ every move and
comment.

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and political interests to the outcome of these proceedings and publicly commented

on the merits of them.

The trial court found that the effect of Willis’ January 14, 2024 MLK church

speech was to cast racial aspersions, that an “odor of mendacity” lingered over

Willis’ and Wade’s disqualification testimony,16 and that Willis exhibited a

“tremendous lapse in judgment” and acted “unprofessionally” in court. Willis

deliberately chose to “play the race” card, 17 in a calculated effort to bring public

condemnation against the accused and deflect public attention away from herself.

Even to this day, Willis shows no remorse: “They don’t want me to talk about race,

but I’m going to talk about it anyway.”

“[T]here is no clear demarcation line between conflict of interest and forensic

misconduct, and a given ground for disqualification of the prosecutor might be

classifiable as either.” Williams, 258 Ga. at 314, n.4. Whether this Court focuses on

Willis’ calculated “play[ing] the race” card to engender public condemnation, her

unprofessionalism, or the “odor of mendacity,” the outcome must be the same:

disqualification. Willis flagrantly violated the Georgia Rules of Professional

16
The trial court stopped short of making a finding regarding Willis’ testimony or her GRPC
violations because it incorrectly determined it was unable to disqualify for such conduct.
17
“O Lord, they going to be mad when I call them out on this nonsense. First thing they said, "oh
she going to play the race card now. But no, God, isn’t it them playing the race card when they
only question one?”

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Conduct, and her forensic misconduct was calculated and egregious. Willis must

therefore be disqualified.

CONCLUSION

For the foregoing reasons, President Trump respectfully requests this Court to

VACATE in part the order denying his motion to disqualify the prosecutor and

REMAND his case to the trial court with instructions that indictment 23-SC-188947

be DISMISSED, or alternatively, that Willis and her office be DISQUALIFIED

from further participation in these proceedings.

Respectfully submitted this 26th day of August, 2024.

/s/ Steven H. Sadow

Steven H. Sadow
Georgia Bar No. 622075
Lead counsel for President Trump

/s/ Jennifer L. Little /s/ Matthew K. Winchester

Jennifer L. Little Matthew K. Winchester
Georgia Bar No. 141596 Georgia Bar No. 399094
Counsel for President Trump Counsel for President Trump

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 Case A24A1599 Filed 08/26/2024 Page 22 of 22

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a true and correct copy of the

foregoing REPLY BRIEF upon Mr. Alex Bernick, by filing the foregoing via the

Court of Appeals E-Fast service, and by depositing the same in the U.S. Mail with

adequate postage affixed to insure delivery, addressed to Fulton County District

Attorney, 136 Pryor Street, third floor, Atlanta, Georgia 30303.

Pursuant to Court of Appeals Rule 24(f), undersigneds hereby certify that this

brief does not exceed the criminal case word limit imposed by Rule 24(a).

This 26th day of August, 2024.

/s/ Matthew K. Winchester

Matthew K. Winchester
Georgia Bar No. 399094

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