A judge assigned to decide whether Judge Michael T. Muldrew should be removed from handling William Marcus “Marc” Wilson’s immunity hearing and potential Bulloch County Superior Court murder trial won’t require Muldrew, prosecutors or defense attorneys to testify as witnesses in open court.
Instead, Senior Judge Michael L. Karpf, who convened a hearing on the defense’s recusal motion at 9:30 a.m. Friday, told Wilson’s attorneys they can submit written questions, strictly limited to facts about the conduct of a previous hearing, that Muldrew, Ogeechee Judicial Circuit District Attorney Daphne Totten and Chief Assistant District Attorney Barclay Black will have to answer in sworn statements. The prosecutors from the District Attorney’s Office may, likewise, submit written questions that two of Wilson’s defense attorneys, Mawuli Davis and Martha Hall, would be required to answer.
After giving those instructions and clarifying other matters in just over an hour Friday, Karpf recessed the hearing, slating Dec. 10 as the date to reconvene. But he also made clear that he won’t be announcing in court his decision on whether Muldrew will be removed as the presiding judge for the murder case pending against Wilson on Dec. 10 or any other day.
Georgia’s Uniform Rules of Superior Court require the presiding judge in a recusal hearing to make a written ruling that includes findings of fact and conclusions of law, Karpf told everyone in the courtroom in a brief lesson on the procedure.
“I’m telling you that to let you know that there’s not going to be ruling from the bench at the end of the hearing, whenever and ever we get to that,” Karpf said. “It does require a written order, and that is going to take some time to prepare.”
Another thing he clarified is that he will not be deciding during this extended hearing whether Wilson’s lead defense attorney, Francys Johnson, was actually in contempt of court when Muldrew said he was on Sept. 23, the abortive second day of Wilson’s immunity hearing. Attorneys for Johnson have appealed the contempt ruling, which resulted in Johnson being held by deputies in a room in the Judicial Annex for about six hours that day, to the Georgia Court of Appeals.
Marc Wilson, now 23, has been held in the Bulloch County Jail for more than 400 days on charges of felony murder and aggravated assault for the June 14, 2020, shooting death of Haley Hutcheson, 17. Wilson was never granted bond after two bond hearings before Muldrew.
What it’s all about
Witnesses at earlier hearings testified that Wilson, while driving his car on Veterans Memorial Parkway – Statesboro’s bypass – around 1 a.m. that Sunday, fired a handgun and that a bullet struck Hutcheson in the back of the head as she rode with four other teenagers in a pickup truck.
But defense attorneys have asserted that Wilson, who is biracial, and a white then-girlfriend who was in the car with him had been subjected to a racist attack, including shouted slurs and aggressive driving, by occupants of the truck.
The previous hearing, begun Sept. 22-23 but never concluded, was over a motion filed by Wilson’s attorneys seeking to have him declared immune to prosecution on the basis of Georgia’s “stand his or her ground” law.
During the hearing on Sept. 23, Wilson’s attorneys reported seeing some documents in a notebook that had been handed to them, apparently by mistake, by a judicial assistant to Muldrew, and the judge ordered Johnson to return them. He refused to do so, insisting that the documents should go to the clerk of court instead, for proper chain of custody.
When Muldrew ordered a sheriff’s deputy to seize the notebook from Johnson, the deputy had done so, Davis stated in an affidavit filed in September with the defense’s motion to have Muldrew recused from both the immunity hearing and the overall case. But soon after that, Muldrew ordered deputies to remove Johnson from the courtroom.
In that original filing, Davis stated that the binder contained copies of emails that had passed between Wilson and his parents and other individuals while he is in jail. Davis asserted that the judge received Wilson’s emails as “potential ex parte communications,” meaning for one side in the case and not the other, and had failed to disclose this to the defense.
A supplemental affidavit that Davis filed Thursday – it was logged by the court clerk’s office at 11:36 p.m. – describes the incident involving the folder and Johnson’s removal from the courtroom in greater detail. It also reports, from the defense’s perspective, some other examples of Muldrew’s handling of the Sept. 22-23 hearing and remarks he allegedly made about Johnson and the case.
“Judge Muldrew further indicated that this case was a circus and that he failed to prevent it from becoming a circus,” Davis stated in the last lines of the new four-page filing.
Karpf, who retired as chief judge of the Eastern Judicial Circuit Superior Court in Savannah about three years ago, has about 40 years’ experience as a trial judge. He was assigned by a district court administrator to preside after the two judges who currently share the Ogeechee Judicial Circuit Superior Court bench with Muldrew, Chief Judge F. Gates Peed and Judge Lovett Bennett Jr., recused themselves from hearing the recusal motions.
Not quite quashed
In preparation for the hearing, Wilson’s defense attorneys had issued subpoenas calling Muldrew, Totten and Black as witnesses. Assistant District Attorney Matt Breedon then did most of the talking for the D.A.’s Office as the state sought to have Karpf quash the subpoenas and prevent both the lead prosecutors and the judge from having to testify.
Karpf asked why the state had included Muldrew in its motion, since the judge cannot be represented by the prosecutors. Breedon alleged that the defense was seeking to call Muldrew as a witness as a tactic to force his removal from the case.
“It’s the state’s contention that that was done as means of judge shopping, because once he is subpoenaed and called as a witness, there’s a very good likelihood that he would be disqualified from sitting on the case because he’s taken an adverse position,” Breedon said.
He argued that if Muldrew himself had sought to be exempted from the subpoena, even that might have the same result.
As for Totten and Black testifying, Breedon asserted that they wouldn’t know anything about what occurred at the Sept. 22-23 hearing that couldn’t be learned from the transcript or other sources. The events of that day happened in open court, on the record and “in view of television cameras that recorded the entire proceeding,” he said.
But one of Wilson’s attorneys, Gary Spencer, said the defense believes that the prosecutors could have answers about the propriety of the way the notebook was handled. Muldrew’s court was “in possession for period of some of time, we don’t know how long… of information that should have been turned over to the defense, but was not,” Spencer said.
‘Factual inquiries only’
Karpf said the record from other cases indicates that putting a sitting judge on the witness stand in such a hearing would be “fraught with problems” and that he also couldn’t imagine allowing the defense attorneys to cross-examine the prosecutors, and vice versa.
So what he will allow, in the form of written questions, are “factual inquiries only,” having to do with the September hearing, which he will review before deciding whether they are appropriate. He made Davis and Hall subject to questions because they had included themselves in the defense list of witnesses.
“For Judge Muldrew, it is strictly limited to factual questions related to the hearing on those two days,” Karpf said. “It has got to be very narrowly wrought. I’m not going to allow the questions to broaden the controversy such that his further participation becomes impossible.”
Alluding to Thursday’s supplemental affidavit, Karpf also cautioned the attorneys that he “would not be happy to get any more midnight filings.”