The Georgia Court of Appeals, in a ruling Thursday by a three-judge panel, reversed the criminal contempt of court ruling issued against Statesboro-based defense attorney Francys Johnson by Judge Michael T. Muldrew in Bulloch County Superior Court on Sept. 23, 2021.
Johnson had appeared in court that day as lead attorney for William Marcus “Marc” Wilson as he sought immunity from prosecution for felony murder and other charges for the June 14, 2020, shooting death of Haley Hutcheson, 17. After Muldrew had him removed from the courtroom during a disagreement over the handling of a notebook of documents, Johnson spent more than six hours in the custody of sheriff’s deputies in another room at the Bulloch County Judicial Annex.
Once Johnson was escorted out, Muldrew recessed the immunity hearing for lunch and to attend a funeral. Later that afternoon, he returned and halted the hearing, announcing that Wilson’s attorneys had filed motions to have him recused as judge both from the hearing and from Wilson’s potential trial. Muldrew also referred to Johnson has having been in contempt of court but did not allow him to return to the courtroom.
“Here, the trial judge imposed upon Johnson the sanction of jail time, without having first afforded him meaningful opportunity to defend himself against the trial judge’s conclusion that his conduct was contemptuous,” Presiding Judge Anne Elizabeth Barnes of the Appeals Court’s Fourth Division observed in Thursday’s ruling.
The decision, in which Appeals Court Judges Clyde L. Reese and Todd Markle concurred, cites several previous rulings by the Georgia Supreme Court as precedent. In the first, from 1983 in a case called Dowdy V. Palmour, the state high court affirmed that “a trial judge has the power, when necessary to maintain order in the courtroom, to declare conduct committed in his presence and observed by him to be contemptuous, and after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing.”
In Barnes’ ruling, the “after affording … an opportunity to speak in his or her own behalf” clause is italicized for emphasis. Barnes stated that the Appeals Court decision was based on Johnson’s main argument that he was denied due process and explained that after reviewing the transcript of the Sept. 23 hearing, the appellate judges did not look at further arguments offered on Johnson’s behalf.
“Here, because the record shows that requisite due process was not extended to Johnson, the contempt ruling (whether oral or written) was not authorized and is hereby reversed,” Barnes wrote.
The September 2021 courtroom controversy began after Muldrew’s judicial assistant by mistake handed Wilson’s defense attorneys a notebook that Muldrew said he meant to return to prosecutors from the Ogeechee Judicial Circuit District Attorney’s Office. Johnson and the other defense attorneys had thought the notebook contained school records of Hutcheson and the other teenagers who were riding with her when she was shot, which Muldrew was reviewing to determine whether these could be admitted into evidence.
But it instead contained emails between Wilson and other people, sent while he was in jail awaiting trial. Johnson, in court that day, asserted that he wanted to give it to the clerk of court “for a chain of custody,” but Muldrew insisted that it be given to him instead.
When Johnson insisted on handing the notebook directly to the clerk, Muldrew admonished, “You’re going to go to jail if you don’t hand that to the bailiff,” before ordering Johnson removed.
In their motion to have Muldrew recused from the case, Wilson’s attorneys alleged that the notebook’s handling gave the appearance that improper “ex parte communication,” had occurred between prosecutors and judge without the documents being revealed to the defense in the discovery process.
Senior Judge Michael L. Karpf, specially assigned to decide the recusal motion in Bulloch Superior Court, on Feb. 4 ordered Muldrew recused from the Wilson case. Karpf referred to some of Muldrew’s actions after the notebook incident, along with other details of the aborted Sept. 22-23 hearing, as creating an “appearance of bias,” but Karpf said he did not “ascribe actual bias or prejudice” to Muldrew.
Wilson trial ahead
The case was then reassigned to Judge Ronald K. “Ronnie” Thompson, the Ogeechee Circuit’s newest Superior Court judge. After conducting a new three-day hearing on Wilson’s claim of immunity from prosecution based in Georgia’s “stand your ground” law, Thompson on March 4 rejected that claim but said that Wilson could still use an affirmative self-defense argument at trial.
Thompson also set a $100,000 bond for Wilson’s release to his father’s home, with an ankle monitor for “house arrest” and with other conditions, awaiting trial. Previously denied bond, Wilson, who is now 23, had been in the Bulloch County Jail for more than 20 months before his release that day.
Wilson’s trial is now scheduled to begin with jury selection Aug. 22, following a pretrial hearing slated for Aug. 12.
Meanwhile, Johnson’s appeal of the contempt ruling had been pending as a separate matter before the Court of Appeals, where other attorneys filed the arguments on his behalf. One of them, Mawuli “Mel” Davis, one of Johnson’s partners in the Davis Bozeman Johnson firm, issued a statement Thursday.
“Unfortunately, the images of Judge Michael T. Muldrew using the police to manhandle and arrest Attorney Francys Johnson were reported in the news and shown over and over on television,” Davis said. “The impression in the mind of many in the public was that Attorney Francys Johnson, a longtime civil rights activist and respected lawyer across the state, did something wrong. Today, the Court of Appeals said in its unanimous decision that the person who was wrong was Superior Court Judge Michael T. Muldrew.”
Muldrew was away from his office Friday, and an attempt to reach him for possible comment was unsuccessful.