The senior judge considering whether Ogeechee Circuit Superior Court Judge Michael T. Muldrew should be recused from trying Marc Wilson for murder in the June 2020 shooting death of Haley Hutcheson recently ordered Muldrew and two prosecutors to answer, in writing, certain questions submitted by Wilson's defense lawyers.

Senior Judge Michael L. Karpf, in his written Dec. 27 order, also told Muldrew and the prosecutors, namely District Attorney Daphne Totten and Chief Assistant District Attorney Barclay Black, not to answer some of the questions the defense proposed. But Karpf left the questions to be avoided in the order, writing “no” beside them and “yes” beside the questions to be answered.

When he convened a hearing Nov. 19 on the defense team’s motion to have Muldrew removed from the case, Karpf told the lawyers that the questioning of the judge and prosecutors would follow this written, tightly controlled format.

In the recent order, Karpf explained his opposition to having Muldrew testify in open court by citing a 2015 Georgia Supreme Court ruling. The state’s high court said that “a judge cannot become actively involved in presenting evidence or argument against a motion seeking his recusal without that defense itself becoming a basis for recusal.”

“It is for this reason that the court has refused to allow the judge to testify,” Karpf wrote. “As for the district attorney, the court deems it inappropriate to allow the prosecutor to be examined by the defense.”

He added that “the same rule would apply in reverse – the state cannot question the defense either.”

It was the defense attorneys who issued subpoenas to have Muldrew, Totten and Black testify, and the prosecutors had responded with a motion to quash the subpoenas.

The Statesboro Herald previously reported that Karpf told attorneys on both sides Nov. 19 they could propose questions for the other side, subject to his review. A clarification here: He did say that at first, but the prosecutors said they would have no questions for the defense attorneys. However, two of the defense attorneys, Mawuli Davis and Martha C. Hall, were to submit affidavits giving their version of events.

Immunity claim

The allowed questions for Muldrew and the prosecutors have to do with an abortive hearing Muldrew conducted Sept. 22-23 on a defense motion to have Wilson declared immune to prosecution on a “stand his or her ground” self-defense claim.

Witnesses at earlier hearings testified that Wilson, while driving his car on Veterans Memorial Parkway – Statesboro’s bypass – around 1 a.m. Sunday, June 14, 2020, fired a handgun and that a bullet struck Hutcheson, 17, in the back of the head as she rode with four other teenagers, from Claxton, in a pickup truck. Wilson, now 23, from Sharpsburg but with Statesboro connections, faces one charge of felony murder but five aggravated assault charges and a charge of possessing a firearm while committing a felony.

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.

Sept. 23 dispute

On the second day of the September 2021 immunity hearing, Muldrew accused Wilson’s lead attorney, Francys Johnson, of acting in contempt of court and had him removed from the courtroom in the custody of deputies for several hours.

Wilson’s attorneys  have now reported in affidavits that earlier that morning, a judicial assistant to Muldrew handed them, apparently by mistake, a notebook that  contained emails between Wilson, while in jail, and his family members and friends. Muldrew reportedly later said he had instructed his assistant to hand the notebook to Totten.

When Johnson told Muldrew the defense team had received the notebook, he ordered

Johnson to return it to him. Johnson refused to do so, insisting that the documents should go to the clerk of court instead.

When Muldrew ordered a sheriff’s deputy to seize the notebook from Johnson, the deputy had done so, but then Muldrew ordered deputies to remove Johnson from the courtroom anyway, Davis stated in an affidavit filed in September with the motion for recusal. Davis asserted that Muldrew had received Wilson’s emails as “potential ex parte communications,” for the prosecution and failed to disclose this to the defense.

About a notebook

These are three of the questions from the defense that Karpf, in his Dec. 27 order, instructed Muldrew to answer: “How did you come into possession of the notebook?” “What instructions did you give your Judicial Assistant in regards to the notebook?” and “Who provided you the notebook?”

But examples of questions Karpf did not allow Muldrew to answer are “Did you put your receipt of the notebook on the record? If so when?” and “What was in the notebook that the Defense was not entitled to review?”

Earlier in the order, Karpf stated that he was limiting the questions “to factual matters surrounding the immunity hearing which gave rise to the recusal motion.” He instructed Muldrew and the prosecutors to give short answers that do not appear argumentative.

These are three of the questions he required the prosecutors to answer: “When did the State realize that Judge Muldrew had actual possession of the material that was actually in the notebook?” “What, if any, communication did the State have with Judge Muldrew between the first and second day of the immunity hearing?” and “What, if any, communication did the Court have with State after the detention of Attorney Francys Johnson regarding the proceedings of this case?”

Some questions to Muldrew follow from Hall’s report, in her affidavit filed Nov. 23, that Muldrew told defense attorneys while in his chambers that he had “spoken with not less than a dozen lawyers … including at least three qualified African American criminal defense attorneys who … expressed their concerns” about the defense team’s handling of the case.

In his order, Karpf required Muldrew to answer whether he said he had spoken to other lawyers about the case and who those other lawyers were. But Karpf disallowed a question about who were “the Black lawyers” contacted.

No questions are included about other actions by Muldrew that Davis and Hall complained of in their affidavits.

‘Order by default’

In her Nov. 23 affidavit, Hall noted that Wilson had at that time been in jail for 525 days. After denying him bond in August 2020, Muldrew conducted a second bond hearing along with Wilson’s arraignment on Dec. 15, 2020, but never issued a ruling, after saying he expected to make a decision in a few days.

“My initial concern regarding Judge Muldrew’s impartiality began as a result of no ruling on the Motion for Reconsideration of Bond notwithstanding requests for an order and to this day we have still not received an order,” Hall wrote in late November.

But she noted that Muldrew had said during a March 1, 2021 hearing, “And I suppose by my silence that’s … order by default.” Hall submitted the court transcript passage with her affidavit.

Karpf in his order stated that Muldrew and the prosecutors should file their responses with the clerk of court within 14 days.  If all calendar days are included, that would mean by Monday.

Karpf has slated a further hearing on the recusal motion for 9:30 a.m. Jan. 25 at the Bulloch County Judicial Annex. Attorneys could question other witnesses at that time. But there will be no ruling from the bench on Muldrew’s recusal.

As Karpf told everyone at the Nov. 19 hearing, the state’s Superior Court rules require a written ruling, which he said will take some time to prepare.