4.1.24 MOT To Disqualify FILED
4.1.24 MOT To Disqualify FILED
***EFILED***CL
Date: 4/1/2024 8:54 PM
Che Alexander, Clerk
STATE OF GEORGIA
STATE OF GEORGIA, )
) INDICTMENT NO. 22SC183572
v. )
)
JEFFERY WILLIAMS, ) JUDGE GLANVILLE
Defendant. )
COMES NOW, Mr. Jeffery Williams, by and through undersigned counsel, and hereby files
this Motion to Enforce the Disqualification of Prosecutor Love who has made her Credibility Central
to the Trial and thus, has become an Unsworn Witness in Violation of (1) Mr. Williams’
Constitutional Rights to Due Process; Cross-Examination/Confrontation; and a Fair Trial and (2)
Georgia Rules of Professional Conduct 3.7(a) and 8.4(a)(1). In support of this Motion to Disqualify
1.
2.
Under certain circumstances, an attorney who has first hand knowledge of events presented
at trial may impermissibly act as an unsworn witness. See United States v. Locascio, 6 F.3d 924, 933
(2nd Cir. 1993); Ciak v. United States, 59 F.3d 296, 304-305 (2nd Cir. 1995). Specifically, in Ciak v.
United States, supra, a defense lawyer acted as an unsworn witness when he sought to impeach a
Government witness regarding statements that the Government witness had previously made to
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counsel. A lawyer, who is not sworn as a witness, cannot provide first hand knowledge of events
presented at trial as that lawyer’s testimony and credibility would then be at issue without said
lawyer being put through the rubric of cross-examination as required by the Constitution of the State
3.
Without more, a prosecutor does not become an unsworn witness merely because she has first
hand knowledge of events that are introduced at trial. See United States v. Regan, 103 F.3d 1072,
1083 (2nd Cir. 1977). The Constitutional problem arises and disqualification of the prosecutor is
required when there is an indication at the trial that the prosecutor sought to use her first hand
knowledge of the case to influence the jury. See United States v. Regan, supra; United States v.
White, 545 Fed. Appx. 69(I) (2nd Cir. 2013). An attorney who acts as an unsworn witness must be
disqualified as counsel in part to prevent the attorney from imparting to the jury her first hand
knowledge of events without having to swear an oath and be subject to cross-examination. See
4.
The unsworn witness rule is the reason that the prosecutor must always take care not to
unduly inject herself into the proceedings on trial. United States v. Gholston, 10 F.3d 384(IV) (6th
Cir. 1993).
5.
Prosecutor Love has become a witness in this case solely because Prosecutor Love has, for
1
Ciak v. United States, supra, was abrogated, in part, on other grounds in Mickens v. Taylor,
535 U.S. 162, 172 (fn. 3), 122 S. Ct. 1237, 152 L.Ed.2d 291 (2002). Hence, the proposition used in
this case cited in Ciak v. United States, supra, is valid law.
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some reason that only she is aware, voluntarily and continuously injected herself as an unsworn
witness in this case for which no other witness, investigator or otherwise, is available to answer the
questions that Prosecutor Love has forced Mr. Williams to ask. These questions include, but are not
(i) Why did Prosecutor Love announce in front of the jury that there will be absolutely
no witness at this trial and no witness named on a Witness List who would testify that
on May 12, 2013, Ms. Bennett was not Armed Robbed but unbeknownst to Mr.
Williams, drugs were stolen from her home by “Buc Buc” and later, Mr. Williams
learned of this theft, apologized for “Buc Buc’s” conduct and repaid Ms. Bennett
and/or Mr. Anderson for these stolen drugs? That Prosecutor Love declared her
to misstate these facts to the jury. At a later point in the trial, when a witness or
witnesses testify consistent with the representations elicited through proper cross-
examination of Ms. Bennett (conducted by Attorney Keith Adams), the jurors will
Love’s unsworn factual statement was credible or not;whether Attorney Adams was
credible or not; whether the yet to be called witness/witnesses are credible or not; and
(ii) Prosecutor Love voluntarily and willfully introduced into evidence conversations that
she had while seated on a Courthouse bench outside of this Honorable Court’s
Courtroom while speaking with Ms. Bennett. During this conversation, Prosecutor
Love made Ms. Bennett so uncomfortable that Ms. Bennett announced that she was
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going to hurt herself. Mr. Williams is forced to cross-examine Prosecutor Love on
these events to provide facts to the jury about the demeanor and tactics of Prosecutor
Love when attempting to have this witness testify against Mr. Williams (even though
this witness previously told Prosecutor Love that she had no information that Mr.
(iii) Prosecutor Love voluntarily and wilfully entered text messages between herself and
Ms. Bennett into evidence during re-direct examination while treating Ms. Bennett
examine Prosecutor Love about these text messages to which only Prosecutor Love
and Ms. Bennett were party. This is especially needed because the text messages
and
(iv) Prosecutor Love cross-examined Ms. Bennett and revealed to the jury that Prosecutor
Love asserted facts that Ms. Bennett stated in text messages or other communication
that (i) Ms. Bennett did not care what this Honorable Court Ordered since no one
could make Ms. Bennett testify and that (ii) Ms. Bennett gave explicit instructions
to tell this Honorable Court to “kiss [Ms. Bennett’s] a*s.” However, the text
messages introduced into evidence by Prosecutor Love between Ms. Bennett and the
Importantly, the four (4) instances above are only some examples of areas of necessary
2
This Honorable Court Ordered Prosecutor Love to produce all text messages with this
witness. Based upon reason and belief, these text messages may not have been fully produced.
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questioning and there is no other witness from whom similar information can be obtained, save
Prosecutor Love. See United States v. Watson, 952 F.2d 982, 986 (8th Cir. 1991)(the party seeking
testimony of the trial prosecutor must demonstrate that the cross-examination is vital to the case and
that there is no ability to present the same or similar facts from another source and therefore, this
creates a compelling need for testimony from the trial prosecutor and the disqualification of the trial
prosecutor). Prosecutor Love has failed to abide by the law and our ethical mandates that restrict her
comments only to matters on the Record. Prosecutor Love has made reference to her presence at
interviews and conversations with Ms. Bennett that occurred only between Prosecutor Love and Ms.
Bennett. Prosecutor Love’s alleged personal knowledge of these incidents which Prosecutor Love,
alone, placed in issue before the jury triggers Mr. Williams’ Constitutional right to cross-examine
Prosecutor Love. See United States v. Ashman, 979 F.2d 469(fn. 15) (7th Cir. 1992). Thus, Mr.
Williams will cross-examine Prosecutor Love on the above representations as same cannot stand
unchallenged in front of the jury and the only way to test the truth of these assertions is to cross-
6.
A prosecutor may not make herself an unsworn witness by supporting her case by her own
veracity and position. Moreover, a prosecutor may not introduce facts at trial without being sworn
7.
Prosecutor Love has placed her own veracity and credibility at issue in this case which is
impermissible, unethical and unlawful. See New York v. Paperno, 429 N.E.2d 797 (1981)(the
unsworn witness rule poses subtle problems in Courts’ efforts to preserve the Constitutional right
to a fair trial because the prosecutor may not inject her own credibility into the trial); New York v.
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Vann, 388 N.Y.S.2d 902 (1976). The primary rationale for limiting the prosecutor’s conduct is
rooted in the great concern that the criminal process be fair and such misconduct by the prosecutor
amounts to a subtle form of testimony against the criminally accused as to which the criminally
accused has no effective means of cross-examination. Therefore, the unsworn witness rule is founded
upon the danger that the jury, impressed by the prestige of the Office of the District Attorney, will
add great weight to the beliefs and opinions of the prosecutor. See New York v. Paperno, supra. The
unsworn witness rule protects and preserves the criminally accused’s Constitutional right to a fair
trial by recognizing that the prosecutor’s conduct and credibility will be an issue for the trial jury to
determine. Thus, in any case where the prosecutor’s veracity, believability and conduct is placed as
a material issue in the case, that prosecutor must be disqualified from going forward on the case. See
New York v. Paperno, supra. In the case at bar, this is not a pre-trial matter. Prosecutor Love, sua
sponte, before the petit jury and all to hear and see, voluntarily and knowingly and against the rules
of ethics and the law, injected her own credibility, veracity and memory of facts into the trial for the
jurors to scrutinize. Jurors must now decide whom they believe, i.e. Prosecutor Love, Ms. Bennett,
Attorney Keith Adams or the witness(es) yet to testify that Prosecutor Love already leveled is a liar
about “Buc Buc” stealing drugs from Ms. Bennett. Mr. Williams has no way to confront the
prosecutor as she has impermissibly and unlawfully become an unsworn witness and hence, now
must be disqualified.
8.
This prosecutor has become an unsworn witness and has introduced facts that now divert the
jury from its proper function. This seriously threatens Mr. Williams’ Constitutional rights to a fair
trial, to confront witnesses, to Due Process and to have the prosecutor impeach a witness based upon
her personal interactions without Mr. Williams being able to impeach the prosecutor. Prosecutor
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Love, without any assistance from anyone else, has made herself a witness in this case. If Prosecutor
Love is allowed to continue to represent the State of Georgia by and through the Fulton County
District Attorney’s Office, and she cannot be called as a witness, the jurors will have to determine
whether Prosecutor Love was truthful or not in her factual assertions referenced above and her
explanation of text messages, whether complete or not, without any questioning or examination by
the accused. This is unfair and violates the above-referenced Constitutional rights.
9.
In Georgia, Courts have discussed unsworn witnesses in relation to juror misconduct when
a juror introduced extrajudicial evidence into the province of the jury and therefore, essentially
became an unsworn witness against the criminally accused. This violates the criminally accused’s
Sixth Amendment right to a fair trial and his Constitutional right to confront that unsworn witness.
Georgia Courts have pronounced that when this unsworn witness rule is present in a criminal case,
there is a presumption that harm was present and reversible error must be found unless the State
proves, beyond a reasonable doubt, that no harm has occurred. See, for example, Chambers v. State,
321 Ga. App. 512(1), 739 S.E.2d 513 (2013). In the Constitutional sense, a trial by jury in a criminal
case mandates and necessarily includes, at the very least, that the evidence developed against the
criminally accused shall come from the witness stand in a public Courtroom where there is full
effective assistance of counsel, Due Process and the right to a fair trial. See Turner v. Louisiana, 379
10.
Mr. Williams has the Constitutional right to confront and cross-examine witnesses against
him, now including Prosecutor Love. These Constitutional rights are fundamental to a fair trial. See
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Hammock v. State, 277 Ga. 612(2), 592 S.E.2d 415 (2004).
11.
As discussed above, the prosecutor injected her own personal knowledge of material facts
at issue in this case and has become an unsworn witness against the criminally accused since
Prosecutor Love has made factual assertions without having been sworn as a witness. When the
lawyer is a prosecutor who makes factual assertions without being sworn as a witness, the error goes
to the heart of fundamental fairness and Due Process of law under the Georgia Constitution as well
as the United States Constitution. Without mistake, this is a Constitutional issue and not an
evidentiary issue. See Dillon v. Kentucky, 475 S.W.3d (2015). Mr. Williams cannot receive a fair
trial with Prosecutor Love representing the State of Georgia since Prosecutor Love has injected her
own credibility into this case for the jury to determine. A lawyer shall not insert personal knowledge
of facts in issue except when testifying as a witness. Generally, a lawyer is prohibited from acting
as an advocate at trial where the lawyer is likely to be a necessary witness. There is no doubt that
assertions of facts from Prosecutor Love as to the content of prior conversations with a material
witness have the effect of making a witness of the lawyer and allowing her credibility to be
substituted for that of the witness. This practice is improper, unconstitutional and unethical. See
12.
Professional Responsibility 8.4(a)(1), mandate that a lawyer shall not insert facts unless they are
testifying under oath. Pursuant to Rule 3.7, “The opposing party has proper objection where the
combination of roles may prejudice that party's rights in the litigation.” As demonstrated herein, Mr.
William’s Constitutional Rights are prejudiced where, as here, Prosecutor Love’s dual roles, as an
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advocate and an unsworn witness, allow her to inject testimony in the trial which will not be subject
a lawyer cannot do directly what they cannot do indirectly. Obviously, Prosecutor Love could not
be sworn as a witness and continue to carry the torch as trial prosecutor for the State of Georgia in
this case. Thus, she has successfully done indirectly what she could not do directly by testifying as
an unsworn witness through redirect questions, which were really a cross-examination since this
Honorable Court permitted Ms. Bennett to be deemed a hostile witness. In fact, this Honorable Court
permitted Prosecutor Love to treat Ms. Bennett as a hostile witness and cross-examine her based
upon incorrect factual assertions by Prosecutor Love that Ms. Bennett communicated/texted that this
Honorable Court could “kiss her a*s.” (See text messages introduced into evidence by Prosecutor
Love’s factual basis put forth at trial before the jury and this Honorable Court).
13.
Prosecutor Love asked Ms. Bennett a series of leading questions starting with “isn’t it
true you told me. . .?” as well as “isn’t it true that I told you. . .?” Prosecutor Love will be taken
to task on these questions which include, but are not limited to, the seeming misrepresentation
that Ms. Bennett was defiant and cursed at this Honorable Court in text messages. Same is not
14.
In the case at issue, Prosecutor Love voluntarily, unequivocally, repeatedly and specifically
referenced conversations between herself and Ms. Bennett in a vehicle, on a Courthouse bench, in
text messages and relied upon her own memory and her own unsworn repetition of Ms. Bennett’s
statements. Prosecutor Love challenged Ms. Bennett as to material facts through her questioning.
Mr. Williams has the right to exercise his Constitutional mandates and cross-examine this
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prosecutor. Otherwise, a mistrial must be granted as Mr. Williams was goaded into requesting same
by the prosecutor.
15.
As held in United States v. Locasio, supra, this prosecutor has injected herself into
participating in events that have been exploited at trial and therefore, has conveyed first hand
knowledge of events without being sworn under oath as a witness subject to cross-examination. This
Honorable Attorney Adams’ questioning of Ms. Bennett on proper cross-examination that this May
12, 2013, Mother’s Day incident was a theft by a third party of Ms. Bennett’s and Mr. Anderson’s
drugs and same was unknown to Mr. Williams and when Mr. Williams learned about this theft, Mr.
Williams apologized for “Buc Buc’s” theft and repaid for these drugs. However, the prosecutor,
being unsworn, improperly blurted out in front of the jury that Attorney Keith Adams’ question had
no factual basis, was not true and that there is no witness, whatsoever, on the Witness List or
otherwise that would support Attorney Adams’ inquiry. These “facts” testified to by unsworn
Prosecutor Love were not objections to a question posed during cross-examination but were
improper injections of testimony by the unsworn prosecutor which mandate that Mr. Williams must
16.
Also, it is relevant that Brady was violated as Prosecutor Love failed to disclose to Mr.
Williams (until it came out when Ms. Bennett did not appear for trial testimony in March 2024) that
(1) Ms. Bennett stated in November, 2023, that she did not remember any of the events on May 12,
2013–a statement subject to be revealed under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10
L.Ed.2d 215 (1963); (2) that Ms. Bennett felt threatened by Prosecutor Love to the point that she
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wanted to harm herself– (this Brady evidence goes to impeachment by mental health as well as
potential strong arm conduct by the prosecutor and her office). These text messages were not
revealed to Mr. Williams until Mr. Williams asked, on multiple occasions, for this Honorable Court
to Order the prosecution to reveal same pursuant to Ms. Bennett’s claim that she was being sexually
harassed by the District Attorney’s investigator. All of the above, plus other unstated topics, must
Brady evidence was not turned over to Mr. Williams in a timely manner. Further, Mr. Williams will
cross-examine Prosecutor Love on the fact that she potentially did not reveal all text messages when
Ordered to do so by this Honorable Court between her and Ms. Bennett and that the arrest of Ms.
Bennett, on video, was not given to Mr. Williams until Ordered by this Honorable Court, well after
17.
The practice of trial lawyers testifying at trial is not approved by the Courts except where
made necessary by the circumstances of the case. See Levin v. State, 222 Ga. App. 123, 473 S.E.2d
582 (1996). Prosecutor Love’s sworn testimony has been made necessary by Prosecutor Love’s own
voluntary conduct at trial. Ordering Prosecutor Love to become a witness in this case and
Constitutional rights. Prosecutor Love voluntarily injected conversations that she had personally,
whether by text message or in person, with Ms. Bennett and hence, attempted to impeach Ms.
Bennett with prior inconsistent statements made to Prosecutor Love, alone, that Mr. Williams has
the Constitutional right to explore. See Galvin v. State, 330 Ga. App. 589(2), 768 S.E.2d 773 (2015).
18.
If a lawyer is both counsel and witness as Prosecutor Love has made herself in the case at bar,
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the opposing party, to wit: Mr. Williams, is handicapped in challenging the credibility of Prosecutor
Love since Prosecutor Love also appears as an advocate in the case. An advocate who becomes a
witness is in the unseemly and ineffective position of arguing her own credibility. The roles of an
advocate and of a witness are inconsistent as the function of an advocate is to advance or argue the
case of another while that of a witness is to state facts objectively. Furthermore, where the question
arises at it does in this case whether Prosecutor Love should be disqualified from continuing as a trial
prosecutor, doubts should be resolved in favor of the lawyer testifying and against her continuing
as an advocate. See Castell v. Kemp, 254 Ga. 556, 331 S.E.2d 528 (1985). Moreover, our Highest
Court has explained that when a lawyer becomes a witness in the case, the lawyer should leave the
trial of the case to other counsel. Castell v. Kemp, supra. Prosecutor Love has placed her credibility
as an unsworn witness squarely in front of the jury and this causes innumerable threats to the
integrity and reliability of our judicial process. Castell v. Kemp, supra. The rules of the Code of
Professional Responsibility do have the effect of law. Cambron v. Canal Insurance Co., 246 Ga. 147,
151, 269 S.E.2d 426 (1980). Although couched in aspirational terms, these Rules of Professional
Responsibility cannot be ignored if Courts are to maintain integrity and credibility of our judicial
19.
As noted by the Honorable Eleventh Circuit Court of Appeals, it would be improper for a
Government attorney who has independent and personal knowledge about facts that will be
controverted at the trial to act as a prosecutor if she uses that inside information to testify indirectly
by implying to the jury that she has personal knowledge or insight. See United States v. Hosford, 782
F.2d 936, 939 (11th Cir. 1986). Moreover, disqualification of Prosecutor Love is warranted since this
prosecutor made statements before the jury insinuating or eluding to personal knowledge. United
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States v. Prantil, 764 F.2d 548, 555-556 (9th Cir. 1985). In the case at bar, Prosecutor Love has
already influenced the jury or at least attempted to influence the jury to find her credible rather than
find Attorney Keith Adams credible or Witness Bennett credible through her personal involvement
in the facts of this case. This is not permissible and Prosecutor Love must be disqualified from
WHEREFORE, Mr. Williams respectfully requests a hearing on this Motion and at the
(iii) that a mistrial be declared based upon prosecutorial misconduct by Prosecutor Love
injecting herself into the controversy at issue, placing her credibility at issue to now
be decided by the trial jury which creates an unfair, unsworn witness problem for Mr.
Williams.
The prosecutor’s voluntary conduct denies Mr. Williams his right to confrontation, a fair trial
and Due Process under the applicable sections of the United States Constitution and Georgia
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(404) 352-5636 (fax)
[email protected]
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CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of the within and foregoing
HAS MADE HER CREDIBILITY CENTRAL TO THE TRIAL AND THUS, HAS BECOME
TRIAL AND (2) GEORGIA RULES OF PROFESSIONAL CONDUCT 3.7(a) AND 8.4(a)(1)
[email protected]
[email protected]
[email protected]
[email protected]
Demetrius Smith, Esq.
Adriane Love, Esq.
Simone Hylton, Esq.
Dane Uhelski, Esq.
Fulton County District Attorney’s Office
136 Pryor Street SW
Atlanta, GA 30303
Respectfully submitted,
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