With a written ruling Friday, Senior Judge Michael L. Karpf removed Ogeechee Circuit Superior Court Judge Michael T. Muldrew from presiding further in the murder case pending against William “Marc” Wilson for the June 2020 shooting death of teenager Haley Hutcheson.
Karpf found that, taken together, Muldrew’s “disparate handling” of a defense witness and a prosecution witness, his response to a defense concern about courtroom security, his reaction when a notebook of Wilson’s jail emails was confused for a notebook containing other documents and accidently handed to the defense, as well as his meeting with two defense attorneys alone in his office raised an appearance of bias.
After the notebook dispute late on the morning of Sept. 23, the second day of Wilson’s immunity hearing, Muldrew had Wilson’s lead attorney, Francys Johnson, taken from the courtroom by a deputy and held in custody for the rest of the workday on a contempt of court allegation. Two other lawyers on Wilson’s defense team, Muwali Davis and Martha Hall, then filed a motion and supporting sworn statements seeking to have Muldrew recused as the trial judge.
When Muldrew stated in the courtroom that “the court has done nothing wrong” in anticipation of the recusal motion, this amounted to a judge offering a defense against his recusal, Karpf suggested, and quoted from Georgia Supreme Court ruling that this cannot be done “without that defense itself becoming a basis for recusal.” Then, when Muldrew reconvened the hearing later that day but refused to let Johnson return, “excluding defense counsel at that point conveyed the appearance of personal animus against defense counsel,” Karpf wrote.
During the recusal motion process itself, when District Attorney Daphne Totten filed a motion to quash a defense subpoena to have Muldrew testify, this also “gave the appearance that the DA and the judge were aligned with each other,” Karpf wrote. But “the judge played no part in that filing so no fault is ascribed to him,” he added.
‘Appearance of bias’
“The issue for the court is the appearance of bias or prejudice against defendant and/or his counsel,” Karpf stated in the last paragraph of his seven-page ruling. “Any of the items noted above, standing alone, might not rise to the level of requiring recusal. However, taken together, they could very well cause a fair-minded person not aligned with either side in this case to question the integrity of the proceedings and the judge’s lack of impartiality.”
While adding that he “does not ascribe actual bias or prejudice by the trial judge against defendants or his counsel,” Karpf found that the series of events did create such an appearance.
“In reaching this conclusion the court is mindful that defense counsel Johnson’s conduct during the hearings was vexatious,” he added. “And the court is also mindful that the precipitating events – the improper receipt of school records and delivery of the wrong notebook—were entirely outside of the judge’s control,” Karpf concluded “Nevertheless, for the reasons stated, the court finds that Judge Michael T. Muldrew is recused from this case.”
The abortive hearing that Muldrew conducted Sept. 22-23 was on Wilson’s legal team’s motion
to have him declared immune from 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 in a pickup truck with four other teenagers from Claxton. 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 the defense attorneys have asserted that Wilson, who is biracial, was defending himself and a white then-girlfriend who was in the car with from a racist attack, including shouting of slurs, throwing of beer cans and aggressive driving, by occupants of the truck. Hutcheson was sitting in the back seat between two other teens, according to previous testimony.
Last September’s courtroom drama over the notebook followed the defense’s subpoena of the teenagers’ school records from the Evans County Board of Education. The defense attorneys “improperly cited” the Civil Practice Act in their subpoena, and prosecutors, along with the teenagers’ parents, objected because the school records were protected by a federal law, the Family Educational Rights and Privacy Act, “which had not been complied with,” Karpf wrote in the “findings of fact” part of Friday’s order.
The defense had given a copy of the school records to the prosecutors, who offered to supply it to the court for a review by the judge in his chambers. But later when Muldrew’s assistant was asked to return a notebook thought to contain these records to the prosecutors, he gave it to the defense attorneys by mistake. In fact, that notebook did not contain school records, but “a quantity of emails from the defendant to his family,” Karpf noted.
When Johnson told Muldrew he wanted to give the notebook to the clerk of court to preserve the chain of custody, Muldrew ordered Johnson to give it to him instead. When Johnson refused, Muldrew warned him that he would be jailed if he did not hand it over. After again ordering Johnson to give him the notebook, Johnson ordered a sheriff’s deputy to “forcibly take possession of it,” as Karpf described it, and the deputy also took Johnson out of the courtroom.
Karpf described Johnson’s refusal as “intemperate” but noted that deciding whether this amounted to contempt wasn’t part of his assignment. Johnson’s appeal of the contempt claim, filed by other attorneys on his behalf, is pending before the Georgia Court of Appeals.
The defense attorneys had also alleged that Muldrew treated two witnesses who began to cry while testifying differently, allowing a prosecution witness a break to compose herself, but not a defense witness. Karpf also agreed that this raised the “appearance of bias.”
After Johnson was removed from the courtroom June 23, Muldrew had 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,” another of Wilson’s attorneys, Gary Spencer, told Karpf in a recent Zoom teleconferenced hearing in January.
Karpf’s legal opinion on this, stated in his order, wasn’t based on the content of Muldrew’s statement, but on the fact it was made without prosecutors or a court reporter present, and so amounted to prohibited “ex parte contact” with one side in the case, excluding the other.
“While the defendant can hardly complain that this meeting was prejudicial to him, it raised the possibility that the court might similarly meet ex parte with the prosecution at another time,” Karpf wrote.
He rejected one of the defense’s complaints, that Muldrew never issued a formal ruling after a December 2020 bond reconsideration hearing, so that Wilson has now been in jail more than 500 days, as not supporting the recusal motion. The defense could have sought a mandamus order from a higher court, Karpf stated.
Called for comment
When the Statesboro Herald called Muldrew’s office about the recusal order, an assistant returned with the message that he would have no comment.
"I think the order really speaks for itself," Johnson said when phoned Friday afternoon. "We reiterate Marc Wilson's innocence and we look forward to renewing his application for a bond and immunity before the new judge."
In the last statement of his ruling, Karpf ordered the case returned to the chief judge of the judicial circuit for reassignment consistent with the circuit’s rules.
Chief Judge F. Gates Peed of the Ogeechee Judicial Circuit said that process will involve random assignment to one of the other three judges, which is handled through the clerk’s office.
Those judges are Peed, Judge Lovett Bennett Jr. and Judge Ronald K. “Ronnie” Thompson, who was sworn in Jan. 18 as the four-county circuit’s newly added fourth judge.
The new assignment can probably be made next week, and what will have to be redone in the Wilson case will then be up to the assigned judge, Peed said.
“The defense may ask for reconsideration of bond, and of course the immunity hearing itself would probably, and I’m just guessing, but it would seem to be reasonable that the immunity hearing, if one was pursued, would probably start over,” he said.