UPDATE (Sept. 14, 2023, 10:05 a.m. ET): Judge Scott McAfee on Thursday severed Kenneth Chesebro and Sidney Powell from Donald Trump and the other 16 defendants in the Georgia election interference case. Chesebro and Powell’s trial is set to begin on Oct. 23. A potential trial date for the other defendants hasn’t yet been set.
Fulton County District Attorney Fani Willis still wants all 19 defendants in her racketeering indictment tried together. But while the law favors trying co-defendants together, that’s unlikely to happen for all 19 defendants in this case, partly because two of the defendants have requested speedy trials that other defendants shouldn’t be forced into.
Wlllis’ latest insistence on keeping everyone together came in a filing on Tuesday to Judge Scott McAfee, in which she told the county judge that “the trial of 19 defendants would be feasible within the Fulton County Courthouse, whereas breaking this case up into multiple lengthy trials would create an enormous strain on the judicial resources of the Fulton County Superior Court.”
Their entitlement to a speedy trial if requested may effectively force severance as a practical matter here.
No doubt, the prosecution would rather get everything done in one take. But that doesn’t solve the speedy trial issue. That issue arises with lawyers Kenneth Chesebro and Sidney Powell, who requested speedy trials while their other co–defendants did not. McAfee rejected efforts by Chesebro and Powell to be tried separately from each other, but that still leaves those two defendants in a different situation than Donald Trump and the other remaining 16 defendants.
That is, Chesebro and Powell should get the speedy trial they asked for, slated to begin next month, without forcing the other 17 defendants into a speedy trial they haven’t asked for. Another way to think of it is that defendants aren’t automatically entitled to severance as a legal matter, but their entitlement to a speedy trial if requested may effectively force severance as a practical matter here.
And whatever inconvenience multiple trials pose for the prosecution, the court system or both, they shouldn’t come as a surprise. No one should assume a 19-defendant indictment leads to a single trial, whether those defendants are split up by severance, plea, some combination of the two, or any host of issues that arise in a simple case, saying nothing of this sprawling indictment featuring a former president and current presidential candidate.
Within that reality, Willis does raise an issue that the court may want to address. She observed in her filing that while the trial is set for Oct. 23, the deadline to file a speedy trial demand is Nov. 5. The DA therefore writes that if the court grants severance, “a potential consequence could be a cascade of additional speedy trial demands emanating from the severed defendants.” She warned: Each of these demands could spread out over the coming weeks, forcing the Fulton County Court System to simultaneously accommodate three or more trials, on the same facts, before three or more sets of judges and juries. Realistically, holding three or more simultaneous, high-profile trials would create a host of security issues and would create unavoidable burdens on witnesses and victims, who would be forced to testify three or more times on the same set of facts in the same case.
True, that would be chaotic. But Willis also raised a solution: Make defendants who don’t want to go to trial next month waive their speedy trial right. That, she wrote, “would prevent the logistical quagmire described above, the inevitable harm to victims and witnesses, and the risk of gamesmanship.” Trump and former White House chief of staff Mark Meadows have already filed such waivers, and more co-defendants may follow suit if they want to make the severance call even easier for the judge. But here’s the bottom line: However the court decides to split up the defendants, they’ll almost certainly be split up, at least when it comes to splitting Chesebro and Powell from the other 17 defendants. And if that’s what happens, it doesn’t mean there won’t be further splits within those 17. But first, let’s see if that is, in fact, what the judge does ahead of next month’s scheduled trial.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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