SECOND DIVISION

BROWN,
MARKLE and WATKINS, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules

December 19, 2024

In the Court of Appeals of Georgia

A24A1595. ROMAN v. THE STATE.
A24A1596. SHAFER v. THE STATE.
A24A1597. CHEELEY v. THE STATE.
A24A1598. MEADOWS v. THE STATE.
A24A1599. TRUMP v. THE STATE.
A24A1600. LATHAM v. THE STATE.
A24A1601. GIULIANI v. THE STATE.
A24A1602. CLARK v. THE STATE.
A24A1603. FLOYD v. THE STATE.

BROWN, Judge.

Michael Roman, David Shafer, Robert Cheeley, Mark Meadows, Donald

Trump, Cathleen Latham, Rudolph Giuliani, Jeffrey Clark, and Harrison Floyd

(collectively “the appellants”) were charged in a 97-page indictment with RICO

violations and other crimes in connection with an alleged conspiracy to unlawfully

change the outcome of the 2020 presidential election. Pursuant to a granted

interlocutory application, the appellants appeal from the trial court’s order denying

their motion to dismiss the indictment and granting, in part, their motions to

disqualify the Atlanta Judicial Circuit District Attorney Fani Willis (“DA Willis”) and

her office. Collectively, the appellants assert numerous grounds to reverse the trial

court’s order, including that the trial court imposed an improper remedy after

concluding that DA Willis’ “prosecution” is encumbered by a “significant

appearance of impropriety” not grounded on “mere status alone,” but instead

resulting from “specific conduct, [impacting] more than a mere ‘nebulous’ public

interest because it concerns a public prosecutor.” (Emphasis supplied.) In response,

the State asks this Court to affirm the trial court’s order in its totality, including the

imposition of an alternative remedy requiring that either DA Willis, along with the

whole of her office, step aside and refer the case to the Prosecuting Attorneys’

Council for reassignment, or Special Assistant District Attorney Nathan Wade

(“SADA Wade”) withdraw from the case. Importantly, the State has not filed a cross-

appeal asserting that the trial court’s finding of this appearance of impropriety should

be reversed. Accordingly, whether the evidence presented to the trial court adequately

supported, under the appropriate standard of review on appeal, its finding of the

2
existence of an appearance of impropriety is not before this Court. Instead, we must

determine whether the remedy fashioned by the trial court for this undisputed finding

of a “significant” appearance of impropriety was improper as contended by the

appellants. For the reasons explained below, we conclude that it was and therefore

reverse the trial court’s denial of the appellants’ motion to disqualify. We affirm,

however, the denial of the appellants’ motion to dismiss the indictment.

Motion to Disqualify in Special Grand Jury Proceeding. On January 24, 2022, the

Chief Judge of the Superior Court of Fulton County impaneled a special grand jury,

at the request of DA Willis, “for the purpose of investigating the facts and

circumstances relating . . . to possible attempts to disrupt the lawful administration of

the 2020 elections in the State of Georgia[,]” including “the decision by the State

Republican party officials to draft an alternate slate of Presidential electors. . . .” DA

Willis served as the “legal advisor” to the special grand jury, which began receiving

evidence in June of 2022. Around the same time, DA Willis hosted and headlined a

fundraiser for an opposition candidate against Burt Jones in a lieutenant governor race.

After she later publicly identified Jones as a “target” of the grand jury’s investigation,

he and eleven other alternate electors sought to disqualify DA Willis and her office

3
based upon an actual conflict of interest. The superior court overseeing the special

grand jury proceeding disqualified DA Willis and her office from any further criminal

investigation or prosecution of Jones based upon “a plain — and actual and untenable

— conflict.” It reasoned that

concern about the District Attorney’s partiality naturally, immediately,

and reasonably arises in the minds of the public, the pundits, and — most
critically — the subjects of the investigation that necessitates the
disqualification. An investigation of this significance, garnering the
public attention it necessarily does and touching so many political nerves
in our society, cannot be burdened by legitimate doubts about the
District Attorney’s motives. The District Attorney does not have to be
apolitical, but her investigations do.

The superior court denied the motion to disqualify filed by the remaining alternate

electors because they failed to show an actual conflict of interest with DA Willis or any

member of her prosecution team. Its order did not explicitly address the appearance

of impropriety as a ground to disqualify. After the special grand jury issued its final

report recommending criminal charges against the appellants (and others), it was

dissolved on January 9, 2023.

4
 Motion to Disqualify Following Indictment. On August 14, 2023, DA Willis

secured the RICO indictment against the appellants (and ten others). On January 8,

2024, Roman filed a motion to dismiss the indictment and disqualify DA Willis, her

office, and SADA Wade from further prosecuting this case on alleged grounds of

conflict and an appearance of impropriety. Roman alleged a personal relationship

between DA Willis and SADA Wade, along with an alleged personal financial interest

in the case. After DA Willis spoke publicly in a church service on Sunday, January 14,

2024, the other appellants also filed motions seeking dismissal and disqualification on

the same grounds, as well as the additional ground of forensic misconduct in

connection with the church speech and various other extrajudicial statements.

The Trial Court’s Order. On March 15, 2024, the trial court entered its order on

the motions after conducting a multiple-day evidentiary hearing. It summarized the

issues and its rulings as follows:

As alleged, the claims presented a possible financial conflict of

interest for the District Attorney. More importantly, the defense motion
and the State’s response created a conflict in the evidence that could
only be resolved through an evidentiary hearing, and one that could not
simply be ignored without endangering a criminally accused’s
constitutional right to procedural due process. After receiving two and

5
 a half days of testimony, during which the Defendants were provided an
opportunity to subpoena and introduce whatever relevant and material
evidence they could muster,[1] the [c]ourt finds that the Defendants
failed to meet their burden of proving that the District Attorney acquired
an actual conflict of interest in this case through her personal
relationship and recurring travels with her lead prosecutor. The other
alleged grounds for disqualification, including forensic misconduct, are
also denied. However, the established record now highlights a significant
appearance of impropriety that infects the current structure of the
prosecution team — an appearance that must be removed through the
State’s selection of one of two options. . . . The District Attorney may
choose to step aside, along with the whole of her office, and refer the
prosecution to the Prosecuting Attorneys’ Council for reassignment. See
OCGA § 15-18-5. Alternatively, SADA Wade can withdraw, allowing the
District Attorney, the Defendants, and the public to move forward
without his presence or remuneration distracting from and potentially
compromising the merits of the case.

(Citation omitted.) The trial court made the following findings of fact in its order:

1
The transcript reveals that the trial court precluded cross-examination of DA
Willis about matters related to forensic misconduct, as well as county codes and
ordinances. It appears that the trial court limited the evidence in the hearing to “the
relationship and/or any financial elements of it” in an off-the-record ruling referenced
in the transcript. The record before us contains no authenticated recording or
transcript of the church speech, and it was never introduced into evidence at the
hearing. The appellants do not assert on appeal that the trial court erred by limiting
their cross-examination and introduction of evidence in the hearing.
6
 On November 1, 2021, the District Attorney hired Nathan Wade
to serve as a SADA and lead the investigation that produced the
indictment in this case. The District Attorney considered at least one
other option before hiring Wade, extending an offer to former Governor
Roy Barnes, who declined. The contract allowed a $250 hourly rate —
a relatively low amount by metro Atlanta standards for an attorney with
Wade’s years of service — and contained a ceiling on the maximum
number of hours permitted. Under the terms of the first contract, Wade
was not to perform more than 60 hours of work per month without
written permission. No evidence introduced indicates that Wade ever
received permission to exceed these monthly hourly caps. His contract
was renewed on November 15, 2022, and again on June 12, 2023.

Between October 2022 and May 2023, the District Attorney and
Wade traveled together on four occasions that resulted in documentable
expenses. The first included an extended trip in October 2022 to Miami
and Aruba and a cruise. Wade initially covered expenses for the October
2022 trip totaling approximately $5,223. In December 2022, the two flew
to Miami for another cruise for which the District Attorney paid $1,394
for plane tickets, while Wade purchased passage for the cruise along with
other vacation-related expenses totaling approximately $3,684. In March
2023, the two traveled to Belize, where Wade covered resort and
restaurant expenses in the amount of approximately $3,000. In May
2023, they traveled to Napa Valley, where Wade covered airfare,
lodging, and Uber rides in the amount of around $2,829. In addition, the
two described taking a number of day-long road trips to Tennessee,

7
Alabama, South Carolina, North Carolina, and other parts of Georgia.
They also admitted to dining out on multiple occasions and taking turns
covering the bill. With seemingly full access to Wade’s primary credit
card statements, the Defendants did not produce evidence of any further
documentable expenses or gifts, nor were any revealed through the
testimony. In total, Defendants point to an aggregate documented benefit
of, at most, approximately $12,000 to $15,000 in the District Attorney’s
favor.

The District Attorney and Wade testified that these expenditures

were not meant as gifts and not designed to benefit the District Attorney.
Both testified that the District Attorney regularly reimbursed Wade in
cash. And if not reimbursed, the District Attorney covered a comparable,
related expense. For example, the District Attorney testified that she
reimbursed Wade in cash for the Aruba trip which she estimated cost
around $2,000 and that she “gave him money” for both cruises. She
further claimed that she reimbursed Wade for the entirety of the Belize
trip and that she paid for the Napa Valley excursions. Finally, while
Wade could have bought meals in 2020 which totaled more than $100,
she would also regularly pay for his meals.

Such a reimbursement practice may be unusual and the lack of any

documentary corroboration understandably concerning. Yet the
testimony withstood direct contradiction, was corroborated by other
evidence (for example, her payment of airfare for two on the 2022 Miami
trip), and was not so incredible as to be inherently unbelievable.

8
However, as the District Attorney herself acknowledged, no ledger
exists. Other than a “best guesstimate,” there is no way to be certain that
expenses were split completely evenly — and the District Attorney may
well have received a net benefit of several hundred dollars. Despite this,
after considering all the surrounding circumstances, the [c]ourt finds
that the evidence did not establish the District Attorney’s receipt of a
material financial benefit as a result of her decision to hire and engage in
a romantic relationship with Wade. Simply put, the Defendants have not
presented sufficient evidence indicating that the expenses were not
“roughly divided evenly,” or that the District Attorney was, or currently
remains, “greatly and pecuniarily interested” in this prosecution.

In addition — and much more important — the [c]ourt finds,

based largely on the District Attorney’s testimony, that the evidence
demonstrated that the financial gain flowing from her relationship with
Wade was not a motivating factor on the part of the District Attorney to
indict and prosecute this case. While a general motive for more income
can never be disregarded entirely, the District Attorney was not
financially destitute throughout this time or in any great need, as she
testified that her salary exceeds $200,000 per year without any
indication of excessive expenses or debts. Similarly, the [c]ourt further
finds that the Defendants have failed to demonstrate that the District
Attorney’s conduct has impacted or influenced the case to the
Defendants’ detriment. While prejudice is not a required element for
disqualification, it is relevant to considerations of due process and the
Defendants’ requested remedy of complete dismissal.

9
 Defendants argue that the financial arrangement created an
incentive to prolong the case, but in fact, there is no indication the
District Attorney is interested in delaying anything. Indeed, the record
is quite to the contrary. Before the relationship came to light, the State
requested that trial begin less than six months after indictment. Soon
thereafter, the State opposed severance of the objecting defendants who
did not demand their statutory right to a speedy trial. The State argued
that it only wanted to try the case once (assuming that such a trial would
have been affirmed after any necessary post-conviction appeals). The
State amended its proposed timeline in November 2023 to request that
the trial commence less than one year after the return of the indictment.
And even before indictment, the District Attorney approved a Grand
Jury presentment that included fewer defendants than the Special
Purpose Grand Jury recommended. In sum, the District Attorney has not
in any way acted in conformance with the theory that she arranged a
financial scheme to enrich herself (or endear herself to Wade) by
extending the duration of this prosecution or engaging in excessive
litigation.

Without sufficient evidence that the District Attorney acquired a

personal stake in the prosecution, or that her financial arrangements had
any impact on the case, the Defendants’ claims of an actual conflict must
be denied. This finding is by no means an indication that the [c]ourt
condones this tremendous lapse in judgment or the unprofessional
manner of the District Attorney’s testimony during the evidentiary
hearing. Rather, it is the undersigned’s opinion that Georgia law does not

10
 permit the finding of an actual conflict for simply making bad choices —
even repeatedly — and it is the trial court’s duty to confine itself to the
relevant issues and applicable law properly brought before it.

(Citations omitted.) Although the trial court found “insufficient evidence of an actual

conflict of interest[,]” it also concluded that

the record made at the evidentiary hearing established that the District
Attorney’s prosecution is encumbered by an appearance of impropriety.
This appearance is not created by mere status alone, but comes because
of specific conduct, and impacts more than a mere “nebulous” public
interest because it concerns a public prosecutor. Even if the romantic
relationship began after SADA Wade’s initial contract in November
2021, the District Attorney chose to continue supervising and paying
Wade while maintaining such a relationship. She further allowed the
regular and loose exchange of money between them without any exact or
verifiable measure of reconciliation. This lack of a confirmed financial
split creates the possibility and appearance that the District Attorney
benefitted — albeit non-materially — from a contract whose award lay
solely within her purview and policing.

Most importantly, were the case allowed to proceed unchanged,

the prima facie concerns raised by the Defendants would persist. As the
District Attorney testified, her relationship with Wade has only
“cemented” after these motions and “is stronger than ever.” Wade’s
patently unpersuasive explanation for the inaccurate interrogatories he

11
 submitted in his pending divorce indicates a willingness on his part to
wrongly conceal his relationship with the District Attorney. As the case
moves forward, reasonable members of the public could easily be left to
wonder whether the financial exchanges have continued resulting in
some form of benefit to the District Attorney, or even whether the
romantic relationship has resumed.[2] Put differently, an outsider could
reasonably think that the District Attorney is not exercising her
independent professional judgment totally free of any compromising
influences. As long as Wade remains on the case, this unnecessary
perception will persist.

The testimony introduced, including that of the District Attorney

and Wade, did not put these concerns to rest. During argument, the
Defendants’ focus largely pivoted from the financial concerns to
disproving the testimony of the District Attorney, namely that her
romantic relationship actually predated the November 2021 hiring of
Wade. On that front, the [c]ourt makes a few brief observations. First,
the [c]ourt finds itself unable to place any stock in the testimony of
Terrence Bradley. His inconsistencies, demeanor, and generally non-
responsive answers left far too brittle a foundation upon which to build
any conclusions. While prior inconsistent statements can be considered
as substantive evidence under Georgia law, Bradley’s impeachment by
text message did not establish the basis for which he claimed such
sweeping knowledge of Wade’s personal affairs. In addition, while the

2
DA Willis and SADA Wade testified that their personal relationship ended
sometime in the summer of 2023.
12
 testimony of Robin Yearti raised doubts about the State’s assertions, it
ultimately lacked context and detail. Even after considering the proffered
cell phone testimony from Defendant Trump, along with the entirety of
the other evidence, neither side was able to conclusively establish by a
preponderance of the evidence when the relationship evolved into a
romantic one.

However, an odor of mendacity[3] remains. The [c]ourt is not

under an obligation to ferret out every instance of potential dishonesty
from each witness or defendant ever presented in open court. . . . Yet
reasonable questions about whether the District Attorney and her hand-
selected lead SADA testified untruthfully about the timing of their
relationship further underpin the finding of an appearance of impropriety
and the need to make proportional efforts to cure it.

(Citation, footnote, and emphasis omitted.)

It then rejected dismissal of the indictment and disqualification of DA Willis

and her office based upon the following reasoning:

Ultimately, dismissal of the indictment is not the appropriate

remedy to adequately dissipate the financial cloud of impropriety and
potential untruthfulness found here. There has not been a showing that
the Defendants’ due process rights have been violated or that the issues

3
Mendacity means “untruthfulness” or “tendency to lie.” See Webster’s
Encyclopedic Unabridged Dictionary of the English Language.
13
 involved prejudiced the Defendants in any way. Nor is disqualification
of a constitutional officer necessary when a less drastic and sufficiently
remedial option is available[, i.e., the District Attorney’s selection of
whether Wade would withdraw or she would refer the case to the
Prosecuting Attorneys’ Council for reassignment].

1. The appellants contend that the trial court’s failure to disqualify DA Willis

and her office was erroneous in light of the trial court’s finding that the record

established that the “prosecution” is encumbered by “a significant appearance of

impropriety.” In the appellants’ view, the trial court’s forward-looking remedy did

not cure the already existing appearance of impropriety and the “odor of mendacity”

found by the trial court. Based upon the fact findings of the trial court in its order and

the State’s failure to cross-appeal the trial court’s finding of a “significant”

appearance of impropriety, we agree.

As our consideration of the appearance of impropriety is limited to the remedy

fashioned by the trial court, we turn to Georgia law on this issue. While the parties

advocate for diametrically opposed bright-line rules — disqualification of the district

attorney’s office can never result from an appearance of impropriety or

disqualification should always result when the elected district attorney engages in

14
activities that raise the appearance of impropriety — Georgia law requires neither as

a matter of course. Instead, we must examine the particular facts and circumstances

of each case while keeping some general principles in mind. First, the trial court’s

ruling on a motion to disqualify is reviewed for an abuse of discretion. See Neuman v.

State, 311 Ga. 83, 88 (3) (856 SE2d 289) (2021). Second, the issue of attorney

disqualification is viewed as a continuum. See Blumenfeld v. Borenstein, 247 Ga. 406,

409 (276 SE2d 607) (1981).

At one end of the scale where disqualification is always justified and

indeed mandated, even when balanced against a client’s right to an
attorney of choice, is the appearance of impropriety coupled with a
conflict of interest or jeopardy to a client’s confidences. In these
instances, it is clear that the disqualification is necessary for the
protection of the client. Somewhere in the middle of the continuum is
the appearance of impropriety based on conduct on the part of the
attorney. As discussed above, this generally has been found insufficient
to outweigh the client’s interest in counsel of choice. This is probably so
because absent danger to the client, the nebulous interest of the public
at large in the propriety of the Bar is not weighty enough to justify
disqualification. Finally, at the opposite end of the continuum is the
appearance of impropriety based not on conduct but on status alone.
This is an insufficient ground for disqualification.

15
Id. at 409-410. See also Battle v. State, 301 Ga. 694, 698 (3) (804 SE2d 46) (2017)

(stating that the appearance of impropriety may be grounds for disqualification of a

prosecutor) .

Here, we must address the remedy in the context of a significant appearance of

impropriety caused by the conduct of a public prosecutor.

In our criminal justice system, the district attorney represents the people
of the state in prosecuting individuals who have been charged with
violating our state’s criminal laws. The responsibility of a public
prosecutor differs from that of the usual advocate; [her] duty is to seek
justice, not merely to convict. This special duty exists because the
prosecutor represents the sovereign and should exercise restraint in the
discretionary exercise of governmental powers. Therefore, the district
attorney is more than an advocate for one party and has additional
professional responsibilities as a public prosecutor to make decisions in
the public’s interest. In the district attorney’s role as an administrator of
justice, he or she has broad discretion in making decisions prior to trial
about who to prosecute, what charges to bring, and which sentence to
seek.

(Citation and punctuation omitted.) State v. Wooten, 273 Ga. 529, 531 (2) (543 SE2d

721) (2001). These considerations take this case out of the continuum of cases

involving an appearance of impropriety in connection with the conduct of private

16
counsel and a client’s interest in counsel of choice balanced against a more nebulous

public interest.

After carefully considering the trial court’s findings in its order, we conclude

that it erred by failing to disqualify DA Willis and her office. The remedy crafted by

the trial court to prevent an ongoing appearance of impropriety did nothing to address

the appearance of impropriety that existed at times when DA Willis was exercising her

broad pretrial discretion about who to prosecute and what charges to bring. While we

recognize that an appearance of impropriety generally is not enough to support

disqualification, this is the rare case in which disqualification is mandated and no other

remedy will suffice to restore public confidence in the integrity of these proceedings.4

4
Our opinions in Head v. State, 253 Ga. App. 757 (560 SE2d 536) (2002),
Billings v. State, 212 Ga. App. 125 (441 SE2d 262) (1994), and Whitworth v. State, 275
Ga. App. 790 (622 SE2d 21) (2005), are distinguishable. In Head, we addressed an
appearance of impropriety based upon status alone where the investigator with the
alleged status conflict took no part in the investigation or prosecution of the case. 253
Ga. App. at 758 (2). Similarly, in Billings, the assistant district attorney with the
appearance of impropriety did not participate directly or indirectly in the prosecution
of the case after joining the office of the district attorney. 212 Ga. App. at 365-266 (4).
Here, on the other hand, DA Willis and SADA Wade have been actively involved in
this case from its inception. Division 1 of our opinion in Whitworth is non-binding
physical precedent, and the case addressed only the disqualification of a special
assistant district attorney. 275 Ga. App. at 791-797 (1). Likewise, the Supreme Court
of Georgia’s opinion in Frazier v. State, 257 Ga. 690 (362 SE2d 351) (1987), relied
upon by the trial court, is factually distinguishable and does not require a different
17
Accordingly, we reverse the trial court’s denial of the appellants’ motion to disqualify

DA Willis and her office. As we conclude that the elected district attorney is wholly

disqualified from this case, “the assistant district attorneys — whose only power to

prosecute a case is derived from the constitutional authority of the district attorney

who appointed them — have no authority to proceed.” McLaughlin v. Payne, 295 Ga

609, 613 (761 SE2d 289) (2014) (distinguishing between absolute disqualification of

elected district attorney and disqualification of elected district attorney from serving

as an advocate at trial because he was appearing as a witness).

2. The appellants contend that the trial court erred in denying their motions to

dismiss the indictment. The State responds that the appellants have failed to show

that the trial court erred in finding that the appellants had not shown “that [their] due

process rights have been violated or that the issues involved prejudiced [them] in any

way.”

“Dismissal of an indictment . . . [is] an extreme sanction[ ], used only sparingly

. . . for unlawful government conduct.” State v. Lampl, 296 Ga. 892, 896 (2) (770

result. The issue before the Supreme Court was the disqualification of the entire
district attorney’s office based upon an assistant district attorney’s conflict of interest
rather than the conduct of the elected district attorney. Id. at 693-694 (9).
18
SE2d 629) (2015). In the absence of express statutory authorization, dismissal of an

indictment “generally cannot be imposed absent a violation of a constitutional right.”

(Citation and punctuation omitted.) Id. While this is the rare case in which DA Willis

and her office must be disqualified due to a significant appearance of impropriety, we

cannot conclude that the record also supports the imposition of the extreme sanction

of dismissal of the indictment under the appropriate standard. See Olsen v. State, 302

Ga. 288, 293-294 (2) (806 SE2d 556) (2017); Lamb v. State, 267 Ga. 464, 465-466 (5)

(479 SE2d 719) (1997). We therefore affirm the trial court’s denial of the appellants’

motion to dismiss.

3. The appellants’ remaining enumerations of error are rendered moot by our

holdings in Divisions 1 and 2.

Judgment affirmed in part and reversed in part. Markle, J., concurs. Land, J.,

dissents.

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 A24A1595. ROMAN v. THE STATE; and associated cases.

LAND, Judge, dissenting.

Because the law does not support the result reached by the majority, I

respectfully dissent. I am particularly troubled by the fact that the majority has taken

what has long been a discretionary decision for the trial court to make and converted

it to something else entirely. If this Court was the trier of fact and had the discretion

to choose a remedy based on our own observations, assessment of the credibility of the

witnesses, and weighing of the evidence, then perhaps we would be justified in

reaching the result declared by the majority. But we are not trial judges, and we lack

that authority. Given the unique role of the trial court and the fact that it is the court

which has broad discretion to impose a remedy that fits the situation as it finds it to

be, we should resist the temptation to interfere with that discretion, including its

chosen remedy, just because we happen to see things differently. Doing otherwise
violates well-established precedent, threatens the discretion given to trial courts, and

blurs the distinction between our respective courts.

Our role as appellate judges is critically important, but it often requires

restraint. We are here to ensure the law has been applied correctly and to correct

harmful legal errors when we see them. It is not our job to second-guess trial judges

or to substitute our judgment for theirs. We do not find the facts but instead defer to

the trial court’s factual findings where there is any evidence to support them. “We

review the trial court’s ruling on a motion to disqualify a prosecutor for abuse of

discretion. Such an exercise of discretion is based on the trial court’s findings of fact

which we must sustain if there is any evidence to support them.” (Citations and

punctuation omitted.) Neuman v. State, 311 Ga. 83, 88 (3) (856 SE2d 289) (2021).

Here, the trial court expressly found that appellants failed to show that the

district attorney had an actual conflict of interest, failed to show that she received any

material financial benefit as a result of her relationship with Nathan Wade, failed to

show that she had a personal stake in the conviction of any defendant, failed to show

that her relationship with Wade involved any actual impropriety on her part, and

failed to show that their relationship, including their financial arrangements, had any

actual impact on the case. Because there was some evidence presented to the trial
2
court that supported these findings, we are bound to accept them. Neuman, 311 Ga.

at 88 (3). The majority does not dispute these findings. Rather, it holds, with the

citation of no supporting authority and apparently for the first time in the history of

our state, that the mere existence of an appearance of impropriety, in and of itself, is

sufficient to reverse the trial court’s refusal to disqualify the district attorney and her

entire office. As shown below, the law does not support this outcome; rather, it

compels precisely the opposite.

Where, as here, a prosecutor has no actual conflict of interest and the trial

court, based on the evidence presented to it, rejects the allegations of actual

impropriety, we have no authority to reverse the trial court’s denial of a motion to

disqualify. None. Even where there is an appearance of impropriety. Our binding

precedent and the doctrine of stare decisis require our restraint and do not permit us

to impose a different remedy than the one chosen by the trial court simply because we

might see the matter differently and might have chosen to impose another remedy had

we been the trial judge.

For at least the last 43 years, our appellate courts have held that an appearance

of impropriety, without an actual conflict of interest or actual impropriety, provides

no basis for the reversal of a trial court’s denial of a motion to disqualify. This is true
3
in civil cases and criminal cases, and it applies to prosecutors. Our Supreme Court

first addressed this issue in 1981 after a trial court disqualified an attorney based on an

appearance of impropriety arising from the fact that counsel for a caveator was

married to an attorney who previously represented the propounder of a will.

Concluding that counsel should not be disqualified under these circumstances, the

Supreme Court declared that “[a]lthough the issue has never been squarely addressed

in Georgia, courts in other jurisdictions have rarely been willing to disqualify an

attorney based on an appearance of impropriety alone where there is no danger that

the actual trial of the case will be tainted.” Blumenfeld v. Borenstein, 247 Ga. 406, 407-

408 (276 SE2d 607) (1981). Accepting the trial court’s finding that there was no actual

impropriety but rather just an appearance of such, the Supreme Court held that

disqualification could not stand.

Appellees have not shown us a case where a per se rule was applied to
disqualify an attorney on the basis of an appearance of impropriety alone.
The Georgia cases cited by appellee do not stand for the proposition that
a trial judge is authorized in Georgia to disqualify an attorney solely on
the basis of an appearance of impropriety. . . . It is perhaps helpful to
view the issue of attorney disqualification as a continuum. At one end of
the scale where disqualification is always justified and indeed mandated,
even when balanced against a client’s right to an attorney of choice, is

4
 the appearance of impropriety coupled with a conflict of interest or
jeopardy to a client’s confidences. In these instances, it is clear that the
disqualification is necessary for the protection of the client. Somewhere
in the middle of the continuum is the appearance of impropriety based
on conduct on the part of the attorney. As discussed above, this generally
has been found insufficient to outweigh the client’s interest in counsel
of choice. This is probably so because absent danger to the client, the
nebulous interest of the public at large in the propriety of the Bar is not
weighty enough to justify disqualification. Finally, at the opposite end of
the continuum is the appearance of impropriety based not on conduct
but on status alone. This is an insufficient ground for disqualification.
This is particularly clear in this case in light of the trial court’s specific
finding that there was no actual impropriety on the part of any of the
parties.

Id. at 409.1

1
The trial court in Blumenfeld granted the motion to disqualify on the basis of
Canon 9 of the then existing Code of Professional Responsibility, which provided:
“A lawyer should avoid even the appearance of professional impropriety.” Id. at 407.
Notably, the Supreme Court revised Georgia’s Rules of Professional Conduct,
effective January 1, 2001, and among other changes removed Canon 9 and any
mention of “appearance of impropriety” outside of the context of lawyers’ direct
dealings with a tribunal. See current Rule of Professional Conduct 3.5, comment 2
(imposing an “appearance” standard on lawyers whose conduct could be seen as
“tampering with judicial impartiality”); compare Code of Judicial Conduct, Rule 1.2,
comment 2 (“Judges must avoid all impropriety and appearance of impropriety”)
(emphasis supplied). The fact that the rules have changed since Blumenfeld gives us
even more reason to defer to the trial court’s refusal to disqualify the district attorney
here. See Herrmann v. GutterGuard, Inc., 199 Fed. Appx. 745, 755 (IV) (11th Cir.
5
 In one of Georgia’s leading criminal cases dealing with the disqualification of

prosecutors, Williams v. State, 258 Ga. 305 (369 SE2d 232) (1988), there is no

discussion of disqualification based on mere appearances. Rather, the entire discussion

is premised on actual conflicts of interest (found not to exist here) and actual

disqualifying “forensic misconduct” (likewise found not to exist here). In Williams,

our Supreme Court held as follows:

There are two generally recognized grounds for disqualification of a

prosecuting attorney. The first such ground is based on a conflict of
interest, and the second ground has been described as ‘forensic
misconduct.’ A conflict of interest has been held to arise where the
prosecutor previously has represented the defendant with respect to the
offense charged, or has consulted with the defendant in a professional
capacity with regard thereto; such conflict also has been held to arise
where the prosecutor has acquired a personal interest or stake in the
defendant’s conviction.

2006) (“the [district] court properly applied the conflict of interest standard [Georgia
Code of Professional Responsibility 1.9(b)] and did not apply the outdated
appearance of impropriety standard [former Georgia Canon 9]”). As a leading scholar
on disqualification has noted in describing this movement away from an appearance
of impropriety standard, “prosecutors cannot realistically be expected to comply with
the standards of impartiality required of judges”; in many states, “prosecutorial
disqualification is deemed to be appropriate only when the remedy is needed to
prevent the accused from suffering prejudice.” Richard Flamm, Lawyer
Disqualification (2014 ed.), § 31.3, p. 816.
6
Id. at 314 (2) (B), citing “The Nature and Consequences of Forensic Misconduct in

the Prosecution of a Criminal Case,” 54 Colum. L. Rev. 946 (1954). Here, there is no

contention that the district attorney previously represented or consulted with any of

the defendants, and there has been no showing that she has a personal interest or stake

in any conviction. These facts support the trial court’s conclusion that she has no

actual conflict of interest.

In 2005, this court was faced with an appeal from a conviction where the

defendant contended that a special prosecutor should have been disqualified. We

explicitly rejected the argument that “the appearance of impropriety alone is sufficient

to require a reversal” and labeled that argument “irrelevant to the case” given the fact

that the defendant had “failed to demonstrate an actual conflict of interest.”

Whitworth v. State, 275 Ga. App. 790, 794 (1) (c) (622 SE2d 21) (2005). Elaborating

on this point, this court stated that “no actual conflict of interest was shown. As

previously noted, a prosecutor, who is not a judicial officer, is not held to as high a

standard of independence and neutrality as is a judge. The Supreme Court of Georgia

7
has repeatedly held that an ‘actual conflict of interest’ is required to warrant reversal

for failure to disqualify.” Id. at 796 (1) (c).2

In Kamara v. Henson, 340 Ga. App. 111 (796 SE2d 496) (2017), disapproved on

other grounds, Fulton County v. Ward-Poag, 310 Ga. 289 (849 SE2d 465) (2020), this

Court was presented with the issue under consideration here – specifically, whether

a trial court’s denial of a motion to disqualify counsel based on an alleged appearance

of impropriety should be overturned. Our holding could not have been clearer: “We

affirm the trial court’s denial of Kamara’s motion to disqualify [d]efense [c]ounsel .

. . because the trial court did not abuse its discretion in denying the motion in the absence of

an actual conflict of interest or actual impropriety.” (Emphasis added.) Id. at 111. Citing

Blumenfeld, we elaborated:

Absent an actual conflict of interest or actual impropriety, we cannot say

that the trial court abused its discretion in denying Kamara’s motion to
disqualify [d]efense [c]ounsel. See Blumenfeld v. Borenstein, 247 Ga. 406,

2
This court’s opinion in Whitworth is physical precedent only because Judge
Adams did not fully concur with all of the reasoning contained in the majority opinion.
However, with respect to the issue discussed above, Judge Adams did fully concur
with the other two judges. Writing separately, he stated that while he could not agree
with all that was stated by the majority, he did agree with the result because there had
been no adequate showing that the special prosecutor had an actual conflict of interest.
Id. at 801-802. On this point, then, it appears that all three judges were in agreement.
8
 409-410 (276 SE2d 607) (1981) (mere appearance of impropriety is an
insufficient ground for disqualification). Consequently, we affirm the
trial court’s judgment in this regard. In sum, we affirm the denial of
Kamara’s motion to disqualify [d]efense [c]ounsel, because there is no
actual conflict of interest or actual impropriety.

Id. at 116 (2).

In Ga. Trails & Rentals, Inc. v. Rogers, 359 Ga. App. 207 (855 SE2d 103) (2021),

we once again affirmed a trial court’s denial of a motion to disqualify counsel where

there was no actual conflict of interest, stating:

Moreover, as the trial court found in denying the motion to disqualify,

the appellants have presented no evidence of an actual conflict to
support disqualification. The appellants repeatedly refer to ‘potential’
conflicts in this circumstance, but our Supreme Court has held that
absent an actual conflict of interest or actual impropriety, the trial court does
not abuse its discretion in denying a motion to disqualify counsel.

(Emphasis supplied.) Id. at 213-214 (1).

Finally, our Supreme Court reiterated these principles less than a year ago in

a criminal case involving a motion to disqualify a prosecutor based on an alleged

conflict of interest. In Lee v. State, 318 Ga. 412 (897 SE2d 856) (2024), the Supreme

Court affirmed the denial of the motion to disqualify, succinctly declaring that “the

9
trial court did not abuse its discretion . . . by failing to disqualify the Assistant District

Attorney absent an actual conflict of interest.”3 (Emphasis supplied.) Id. at 412-413.

The majority opinion in this case cannot be reconciled with any of these cases,

but we are bound to follow them. “Stare decisis is the preferred course because it

promotes the evenhanded, predictable, and consistent development of legal principles,

fosters reliance on judicial decisions, and contributes to the actual and perceived

integrity of the judicial process.” Payne v. Tennessee, 501 U. S. 808, 827 (111 S.Ct.

3
Lee is notable because it involved a motion to disqualify a prosecutor. Thus,
any suggestion that Blumenfeld and its progeny do not apply to prosecutors is
dispelled completely by Lee. Further, all of these cases are consistent with the often
repeated principle that disqualification of counsel is an extraordinary remedy that
should be granted sparingly. Hodge v. URFA-Sexton, LP, 295 Ga. 136, 139 (1) (758
SE2d 314) (2014); Bernocchi v. Forcucci, 279 Ga. 460, 462 (2) (614 SE2d 775)
(2005); Blumenfeld, 247 Ga. at 408-409. This principle is just as true for prosecutors,
including an elected district attorney, as it is for private attorneys, and there is no
good reason not to apply it here. “The elected district attorney is not merely any
prosecuting attorney. [Sh]e is a constitutional officer, and there is only one such
officer in each judicial circuit.” McLaughlin v. Payne, 295 Ga. 609, 612 (761 SE2d
289) (2014), citing Ga. Const. of 1983, Art. VI, Sec. VIII, Para. I (a). The district
attorney was elected by the voters of her circuit. We should tread lightly when asked
to deprive the electorate of the attorney they chose to perform this job, especially
where there has been no finding of an actual conflict of interest or actual impropriety.
See, e. g., State v. Giese, 386 N. C. 127, 137 (V) (900 SE2d 881) (2024)
(disqualification of elected district attorney interferes with her performance of
constitutionally mandated duty and cannot stand in the absence of “an actual conflict
of interest or legitimate due process concerns”).
10
2597, 114 LEd2d 720) (1991). If we are not going to follow binding precedent and have

no good reason to overrule it, all of these virtues of stare decisis are threatened.

In this case, the trial court expressly found that the district attorney had no

conflict of interest and rejected the allegations of actual impropriety arising from her

relationship with Nathan Wade. It rejected the notion that she received any material

financial benefit from her hiring of Wade, that she hired him as part of a scheme to

enrich herself, or that their financial arrangements had any impact on this case. It was

certainly critical of her choices and chastised her for making them. I take no issue with

that criticism, and if the trial court had chosen, in its discretion, to disqualify her and

her office, this would be a different case. But that is not the remedy the trial court

chose, and I believe our case law prohibits us from rejecting that remedy just because

we don’t like it or just because we might have gone further had we been the trial judge.

See State v. Evans, 187 Ga. App. 649, 651 (3) (371 SE2d 432) (1988)(decision to

disqualify prosecutor based on appearance of impropriety “is within the discretion of

the trial court and the appellate courts will not interfere where, as here, the court’s

discretion was not abused”), overruled on other grounds, State v. Smith, 268 Ga. 75,

n.7 (485 SE2d 491) (1997); First Key Homes of Ga., LLC v. Robinson, 365 Ga. App. 882,

882 (880 SE2d 371) (2022) (“The ultimate determination of whether an attorney
11
should be disqualified from representing a client in a judicial proceeding rests in the

sound discretion of the trial judge.”) (citation and punctuation omitted); Bowers v.

CSX Transp., Inc., 369 Ga. App. 875, 883-884 (b) (894 SE2d 690) (2023) (“review

under abuse of discretion standard recognizes that there is a range of possible

conclusions the trial judge may reach and we will affirm a trial court’s decision even

though we would have gone the other way had it been our call”) (citation and

punctuation omitted). See also, United States v. Miller, 624 F.2d 1198, 1201 (III) (3rd

Cir. 1980) (abuse of discretion standard applies to trial court’s chosen remedy on

motion to disqualify; trial court “has a wide discretion in framing its sanctions to be

just and fair to all parties involved”) (citation and punctuation omitted).

Every day in courtrooms all over this state, trial judges solemnly and diligently

fulfill their constitutional obligations and perform a vital and indispensable public

service when they convene hearings, listen to testimony, observe witnesses, make

credibility determinations, resolve conflicts in the evidence, weigh the evidence, and

exercise their discretion in countless ways. We should not lightly interfere with their

work or weaken their discretion by imposing our will because we don’t like the result.

Because I am convinced that is what the majority has done in this case, I respectfully

dissent.
12