A Subtlety of Criminal Procedure

In a moment where I suspect many of you, like me, are having difficulty focusing on much beyond the tragedy taking place in the Middle East, I want to gently direct your attention back to the trial that will get under way in Fulton County, Georgia, in just a couple of weeks. I do that tonight, to highlight something I’ve found encouraging in the process.

But I need to digress for a moment to make the point. As long-time readers know, I was alarmed by Judge Cannon’s earliest rulings in Florida. They came, not in the current criminal prosecution, but in the moment after the search warrant was executed at Mar-a-Lago, where instead of following the appropriate legal procedures for challenging the execution of a search warrant, Trump made up his own lawsuit in an effort to delay the government’s investigation. The case was assigned to Judge Cannon, who treated Trump’s frivolous lawsuit seriously and with deference until the Eleventh Circuit told her, in no uncertain terms, that she had no jurisdiction to proceed and ordered the case dismissed.

When Cannon first drew that case, there was a lot of criticism about the fact that she was handling it even though she was a Trump appointee. Initially, I wasn’t concerned. I even made the argument that every federal judge gets that gig because they’re appointed by a president from one party or the other, and there was no reason for us to be critical of her before observing how she would handle the case. Of course, I was wrong to be optimistic in that case. But I continue to believe that most judges do take their job seriously and set aside their politics and any party affiliation when they take to the bench. Think of the scores of judges who ruled in favor of the rule of law and not Trump following the 2020 election, including those he appointed.

Of course, setting aside the friends who helped you get there when you’re ruling on a case is a bit less to ask of federal judges, who receive life tenure, than it is for state court judges. In many state systems, judges must run for reelection every four or six years, and often must run with a party designation following their name. Sometimes, there are lower expectations for independence among state court judges—although as the wife of a former Alabama state court judge who would have ruled against me in a case that affected his own financial interests if he thought I was wrong, I’m not sure those expectations are accurate. But in any event, and especially after the experience with Judge Cannon, I’m encouraged by the way Georgia State Court Judge Scott McAfee has been handling the Fulton County prosecution. Let me explain.

McAfee has been impressive, in a quiet, competent sort of way, ever since the Fulton County case was first assigned to him. We were able to scrutinize his courtroom behavior in a way we could not observe Judge Cannon’s, because the state case, by McAfee’s order, is being televised from alpha to omega. The Judge was courteous to both sides, and seemed fair minded, up to speed on the law, and unafraid to rule promptly.

Today, Tuesday, he heard from lawyers for Kenneth Chesebro and Sidney Powell, who proceed to trial later this month, on their pre-trial motions to dismiss the case. Without unnecessarily drawing out the proceedings, he declined to dismiss the case and denied the motions, not on substantive grounds, but because, he told the lawyers, these are the types of motions that are not ripe to be resolved until after the evidence is presented at trial.

In other words, he didn’t deny the motions. He told the lawyers they’d brought them too early. It was a procedural flaw. “This seems like something for a directed verdict,” the judge said after hearing argument from the lawyers.

A judge in a criminal case can direct a verdict of acquittal if the prosecution doesn’t prove its case at trial. It’s called “directed” because the judge takes the case away from the jury and directs that a verdict of “not guilty” be entered.

Here’s the Georgia rule on directed verdicts in criminal cases, found at GA Code § 17-9-1 (2022):

a. Where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or “not guilty” as to the entire offense or to some particular count or offense, the court may direct the verdict of acquittal to which the defendant is entitled under the evidence and may allow the trial to proceed only as to the counts or offenses remaining, if any.

b. The defendant shall be entitled to move for a directed verdict at the close of the evidence offered by the prosecuting attorney or at the close of the case, even if he fails to introduce any evidence at the trial. A defendant who moves for a directed verdict at the close of the evidence offered by the prosecuting attorney may offer evidence in the event that the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted shall not be deemed to be a waiver of the right to trial by jury. The order of the court granting a motion for a directed verdict of acquittal is effective without any assent of the jury.

I’ve added the bolding into subsection b so you can see the timing point. A defendant who is moving for a directed verdict must do so “at the close” of the evidence. Not before trial. How do we know what amounts to a directed verdict, so we can tell when a motion, even if the defendants fail to characterize it as such, is asking the court to grant one? We learn that from subsection a, which tells us a judge can enter a directed verdict when there is no dispute between the parties about what the evidence in the case is, and that evidence is not sufficient to support a verdict of guilt.

Here’s an easy example of a situation where that would be the case: prosecutors are pursuing a murder case, which requires proof of intent to kill, against a defendant who fired a gun, resulting in the death of a person standing with him. But, the government’s evidence, which the defense agrees with, is that the defendant had a sudden seizure that caused him to squeeze the trigger of a gun that was in his hand at the time, leading to the death. Surely there was a death caused by the gun that fired in the defendant’s hand, but there is no proof of intent to kill on this evidence. The prosecution has failed to prove an element of the crime. At the close of the government’s case in this example, the defense would ask for and receive a directed verdict.

The motions Judge McAfee was called upon to consider tomorrow were primarily filed by Chesebro’s attorneys. Powell adopted some of them. Chesebro’s central theme was that his role as the architect of the “fake” electors scheme wasn’t criminal conduct. He used it to argue that the case should be dismissed because it violates the Supremacy Clause of the U.S. Constitution, as well as making a First Amendment claim and arguing the prosecution is barred by attorney-client privilege. Rather than being drawn into the substance of those arguments, Judge McAfee correctly identified them as the type of motion that is asking for a judge to conclude that the evidence rules out any possibility of conviction, and that such a motion, which asks for a directed verdict, was procedurally premature at this point.

It is a subtle procedural point. The defendants did not identify their motions as ones for a directed verdict, but rather as motions for pre-trial dismissal of the charges against them. But the Judge got it right. The time to decide the arguments put forward by the defendants is not now.

It’s not clear whether the defendants’ lawyers did this because they didn’t know any better or because they were making some sort of effort to pre-educate the judge about what they would argue at the close of trial. Either way, it’s clear that this Judge, even though he is brand new to the bench, is far more in control of the proceedings than many pundits predicted. We were optimistic here, based on his prior experience as both a federal and a state court prosecutor, even though others were concerned about his conservative credentials. After his ruling today, we can have still more confidence that he is legally astute and, like all good judges should be, a couple steps ahead of the lawyers in the case. We may not always like every call he makes as the trial proceeds, but what matters here is competence and understanding of the law and trial procedure. This judge clearly gets it. That’s a very good thing in a case of this complexity and importance.

We’re in this together,

Joyce