A Georgia Judge Declines to Enjoin Law Reviewing DA Actions

On Friday, Fulton County Superior Court Judge Paige Reese Whitaker denied a request for an injunction by four district attorneys “who have sued to overturn the commission.” The commission was created by a newly-enacted Georgia law that had the power to discipline and remove state prosecutors. The plaintiffs, four district attorneys, asserted that the law establishing the commission “unconstitutionally infringes on their power.”

In declining to freeze the new law, as requested by the district attorneys, Judge Whitaker “suggested that she will ultimately rule against a lawsuit attacking the measure.”

As reported, some Republicans in Georgia want the new commission to discipline or remove Fulton County District Attorney Fani Willis for indicting former President Donald Trump and 18 others.” News coverage discloses that Willis is not one of the plaintiffs in the suit, although she opposed the law.

As reported, “Georgia’s law is one in a series of attempts nationwide by Republicans to impose controls on prosecutors they don’t like.” The targets of the ire of the Republicans are what have been categorized as progressive prosecutors. The Republicans have expressed their disfavor with prosecutors on issues such as minimizing charges in and reducing the number of drug possession cases, and seeking shorter prison sentences. In general, the Republicans assert that these democrat “progressive” prosecutors “are coddling criminals.”

The commission has not begun operating yet, and its rules must be approved by the state Supreme Court. The plaintiffs argued that, anticipation of the law’s implementation, prosecutors “are already changing their behavior because they’re worried about getting investigated.” The plaintiffs did not explain why prosecutors consider changing their behavior was justified even if they were to be investigated.

Judge Whitaker ruled no proof has been offered that “anyone has been hurt by the law yet.” As a matter of law, “only people who can prove an injury have standing to bring a lawsuit.” Judge Whitaker wrote: “Plaintiffs have not shown an injunction is a ‘vital necessity’ to preventing an immediate and irreparable injury.”

As reported in some media outlets, “More damaging to those who oppose the law is Whitaker’s finding that the suit is unlikely to succeed.” The judge opined that the state Attorney General was correct that the law “doesn’t violate the state constitution.”

“The court is persuaded that the Georgia Constitution expressly authorizes the General Assembly to impose duties on district attorneys and to create the grounds and processes to (discipline) or remove district attorneys who fail to meet those legal duties,” Whitaker wrote.

Background of the law indicates that the concept of “prosecutorial discretion,” allows prosecutors to decide what criminal charges to seek and how heavy of a sentence to pursue. “The Georgia law states a prosecutor can’t refuse to prosecute whole categories of crimes, but must instead decide charges case by case.”

The principle of prosecutorial discretion, described by some as the “bedrock of the American judicial system,” applies both to district attorneys and elected solicitors general, who prosecute lower-level crimes in some Georgia counties.

State Attorney General Carr, a Republican, argued that if district attorneys don’t prosecute, they are violating their oaths of office. Carr is quoted as saying: “All Georgians deserve to be safe, and it’s a district attorney’s duty to enforce the law.” Carr made his major point when he stated: “When elected prosecutors fail to do so, crime goes up and victims are denied justice.”

Plaintiffs said they are not giving up. The want a full trial and will take their case to the state Supreme Court to protect what they have characterized as “prosecutorial independence.”

D & B Staff

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Episode 11