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Judge recusal hearing in Wilson murder case resumes via Zoom
Prosecutors and Muldrew answer in writing, which is how Judge Karpf will render decision
A lone person observes the livestream at the Bulloch County Judicial Annex of the closing arguments in Ogeechee Circuit Superior Court Judge Michael T. Muldrew's recusal hearing related to the trial of Marc Wilson for murder in the June 2020 shooting deat
A lone person observes the livestream at the Bulloch County Judicial Annex of the closing arguments in Ogeechee Circuit Superior Court Judge Michael T. Muldrew's recusal hearing related to the trial of Marc Wilson for murder in the June 2020 shooting death of Haley Hutcheson on Tuesday, Jan. 25. - photo by By SCOTT BRYANT/staff

Attorneys for both sides delivered oral arguments via a Zoom and Vimeo hookup Tuesday on the issue of whether Judge Michael Muldrew should be recused from handling Marc Wilson’s murder trial, with Senior Judge Michael Karpf preparing to deliver a decision in writing.

Karpf also appeared via Zoom, with two large screens set up at the front of the Bulloch County Judicial  Annex jury assembly room, which served as a nearly vacant courtroom, open to the public.  Journalists watched the livestreamed video remotely.

William Marcus Wilson, now 23, faces a felony murder charge for the June 14, 2020, shooting death of Haley Hutcheson, 17, and five charges of aggravated assault for firing a handgun at the pickup truck in which Hutcheson and four other teenagers were traveling on Veterans Memorial Parkway in   Statesboro around 1 a.m. that Sunday.

Wilson’s defense team filed a motion Sept. 23, 2021, to have Muldrew, an elected Ogeechee Judicial Circuit Superior Court judge who was previously a prosecutor in the circuit, recused from the case. That was after he had Wilson’s lead attorney, Francys Johnson, removed from the courtroom that day, the second morning of Wilson’s immunity hearing, and held in custody for several hours for contempt of court.

Tuesday, Wilson appeared on screen, in one of the Zoom panels, seated beside Johnson in a separate courtroom at the Bulloch County Jail. But four other attorneys for Wilson’s defense also appeared from various locations, and one of them, Gary Spencer, did all of the talking for defense team.

“In our affidavits in support of the motion, we have certainly shown that in this particular instance Judge Muldrew has shown an appearance of partiality or a lack of impartiality,” Spencer said in his opening remarks.

He argued, citing a 2012 Georgia Supreme Court ruling in a civil case involving the city of Savannah, that even the appearance of impartiality is enough to warrant recusal.

Another of the defense attorneys, Muwali Davis, had filed an affidavit, or sworn statement, with the motion for recusal, and Davis and yet another of Wilson’s lawyers, Martha Hall, later filed supplemental affidavits about Muldrew’s handling of the case.

The first alleged “appearance of partiality” Spencer cited dates back to the second bond hearing Muldrew held for Wilson, on Dec. 15, 2020.

“We can start from the fact that we are still waiting for a ruling on the bond reconsideration motion,” Spencer said. “Mr. Wilson has been in custody for more than 600 days now, and has no record, has ties to the community and has ties to law enforcement. We were promised a ruling on the reconsideration. We never received that ruling.”

That ruling is crucial, he said, because either Wilson would be granted bond for pretrial release or, if denied bond, the defense could appeal that decision or at least find out what the judge’s reasons were.

“But we’ve got no ruling at all, so certainly we wonder if the court (meaning Muldrew) is impartial in this matter,” Spencer said.

In a Nov. 23 affidavit, Hall had cited the lack of an order on the bond reconsideration and noted that Muldrew had said during a March 1, 2021 hearing, “And I suppose by my silence that’s … order by default.”

The defense attorneys also allege that Muldrew had treated two prosecution and defense witnesses differently. When a prosecution witness began to cry during the immunity hearing, he gave her time to sit with her attorney and compose herself, but when a defense witness had the same difficulty, “the court would not give her the same comfort level … and the court indicated it had someplace else to go,” Spencer said.

Also during the Sept.  22-23 hearing when Johnson told Muldrew that a man was present who had a made a threat against him on social media, “the court refused to take any action on it,” Spencer claimed. But after declining Johnson’s request that the man, who was sitting up front, be removed and a deputy’s suggestion that he be asked to move to a seat in the back, Muldrew did say it could be suggested that he take a seat in the middle of the courtroom, Hall stated in her affidavit. She also reported that Muldrew had offered to have everyone present pass through the metal detector a second time that day, Sept. 22.

Deputy Chief Assistant District Attorney Matthew Breedon, who did the talking for the prosecution Tuesday, asserted that the Facebook posts were “not a serious threat that the court needed to take action on, and further, courthouse security is handled by the sheriff, not the court.”

Karpf had started his recusal hearing with a brief, in-person session in November. But he recessed it after stating that neither Muldrew nor two prosecutors the defense had subpoenaed would have to testify in court. Instead, the defense attorneys were allowed to submit written questions, which Karpf vetted before requiring Muldrew, and separately District Attorney Daphne Totten with Chief Assistant District Attorney Barclay Black, to answer some of them.


The notebook matter

The original basis for the defense’s motion for recusal was Muldrew’s ordered removal of Johnson from the courtroom Sept. 22, which was triggered by Johnson’s refusal to hand over a notebook of documents to the judge. According to Totten’s written response, prosecutors thought this contained “school records,” meaning those of teenagers who were in the pickup truck with Hutcheson, until Davis informed the court that the notebook, handed to defense attorneys by Muldrew’s assistant J.B. Edwards, actually contained “jail emails.”

Spencer said these appeared to be emails between Wilson and his parents.

The defense attorneys allege that the emails having been in possession of the court without their knowledge constituted “ex parte’ communication,” meaning favoring one side in the matter or interests outside the courtroom.


Muldrew’s answers

In one of his written answers, Muldrew stated that he “did not see the contents of the notebook.” He only “opened the notebook and saw a blue cover page that stated something about emails” and then “closed the notebook,” he wrote.

After receiving the notebook, Muldrew had ordered a deputy to remove Johnson from the courtroom and later said he had been in contempt of court. Spencer argued that the judge “didn’t give (Johnson) a notice and opportunity to be heard” on the summary contempt order “but  basically put him in custody and  almost committed an act of false imprisonment.”

After Johnson was removed from the courtroom that September morning, Muldrew called Davis and Hall alone into his office and  told  them that “other lawyers  had told him that they believed the defense was creating a circus  and  they were worried about Mr. Wilson, basically,  about how  bad the defense was performing,” Spencer said. He said Muldrew had added that “he had heard this from three qualified African  American  lawyers.”

“We’re not sure what the purpose of that conversation was, other than to potentially isolate Mr. Johnson from Mr. Davis and Ms. Hall and the rest of us, but that’s what was said,” Spencer said. “But more importantly, the court then injected race.”


Which lawyers?

In his written responses, Muldrew said “no” to the question whether he had told Davis and Hall he had spoken with other lawyers about the case. “No. I told them that other attorneys had spoken to me about their concerns about the quality of the representation of Marcus Wilson,” he wrote.

Muldrew had declined to answer the question of who those attorneys were, stating that it was irrelevant to the recusal issue as set forth by Davis in his Sept.  23 affidavit.

“It would be improper for this Court to betray the confidence of defense attorneys who have no part in this case but were only expressing concern about the nature of the representation of the Defendant,” Muldrew stated.


The state’s position

Breedon argued that the defense team’s claims “ignore the law on recusals,” referring specifically to one of the state’s Uniform Superior Court Rules.

The threshold for a judge to be removed from a case should be bias against one of the parties and a “systemic pattern of conduct towards persons similarly situated,” he said. It should also reflect bias “stemming from an extrajudicial source, outside the courtroom,” but Muldrew was acting on what he saw in the courtroom, Breedon asserted.

“What we have is Mr.  Johnson saying, I would like Judge Muldrew recused because he held me in contempt, and because he  held  me  in contempt, he must be biased  against  me,” Breedon said. “That would mean that every time a judge holds an attorney in contempt, he is therefore biased against that attorney for all of time.”

Karpf reiterated that he is required to file a written order “with findings of fact and conclusions of law.”

“I will  get an  order  out  as quickly as I can,” he said.  “This case (the recusal motion) has taken far too long  to get to this point, by the way.  I recognize the holidays interrupted in part and certainly the virus has been an issue as well, but it’s time for this case to be over one way or another, because there is a very serious and important case underlying all this that needs to go forward.”


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